Bullington v. Texas Elec. Service Co., 75-3658

• Decision Date: 07 April 1978
• Docket Number: No. 75-3658,75-3658
• Citation: 570 F.2d 1272
• Parties: Connie BULLINGTON, Plaintiff-Appellant, v. TEXAS ELECTRIC SERVICE COMPANY et al., Defendants-Appellees, Aetna Casualty & Surety Company, Intervenor.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1272

570 F.2d 1272

Connie BULLINGTON, Plaintiff-Appellant, v. TEXAS ELECTRIC SERVICE COMPANY et al., Defendants-Appellees Aetna Casualty & Surety Company, Intervenor.

No. 75-3658.

United States Court of Appeals Fifth Circuit.

April 7, 1978.

Laurance L. Priddy, Fort Worth, Tex., for plaintiff-appellant.

William L. Hughes, Jr., Fort Worth, Tex., for Tex. Electric, etc.

Grover Swift, Fort Worth, Tex., for Boro Industries, Inc.

Appeal from the United States District Court for the Northern District of Texas.

Before GODBOLD, TJOFLAT and HILL, Circuit Judges.

TJOFLAT, Circuit Judge:

In this diversity case, the surviving spouse of a deceased construction worker seeks to recover damages under Texas tort law for the fatal injuries sustained by her husband while he was involved in a small construction project in Fort Worth, Texas. ¹ There are two defendants: (1) Boro Industries, Inc. (Boro), the owner of the building on which the deceased was working at the time of his death; and (2) the Texas Electric Service Company (Texas Electric), a Texas corporation that owned and maintained certain high-voltage power lines in close proximity to the building project in question. In the proceedings below, the district court granted summary judgment for both defendants, and the plaintiff appealed.

A recent decision of the Supreme Court of Texas, Parker v. Highland Park, Inc., 21 Tex.Sup.Ct.J. 188 (Feb. 8, 1978), handed down on February 8, 1978, and called to our attention since oral argument, has abolished the theory of law on which the district court predicated its award of summary judgment. Consequently, we must vacate the judgment and remand this case for further proceedings. In undertaking to explain why the Parker decision requires this result, we think it appropriate to review in some detail the salient facts of this case and how the district court arrived at its disposition.

I

The facts of the case are largely undisputed. The plaintiff's deceased spouse, William Bullington, was a construction worker employed by the Component Construction Corporation (Component). Component had been subcontracted to do certain work on the construction of a metal building for Boro on Boro's premises. The work included the installation of metal gutter pipe along the upper edge of the one-story building. The installation of the gutter pipe involved hoisting the pipe to the roof of the building in twenty-foot sections and then anchoring the sections in place along the edge of the roof.

At the time this work was taking place, Texas Electric owned an easement and maintained power lines quite close to the site on which Boro's building was being erected. Prior to Bullington's accident, in fact, the lines had been snapped once by a piece of construction equipment. No one had been injured when the lines were broken, and they were repaired by Texas Electric. An investigation undertaken after Bullington's accident revealed that between the power lines and the edge of Boro's building there was a clearance of approximately five feet, eight inches. From the record before us, it appears that Texas Electric's lines were in place long before the construction of Boro's building began.

Component's job-site superintendent, James Eads, was aware of the proximity of the power lines and was apparently disturbed over the situation. He spoke with Boro representatives about the problem, but could secure no immediate remedial measures since in all likelihood this would have entailed shutting down an operational Boro plant located nearby. Eads did alter Component's construction methods to minimize the risk of exposure to the high-voltage wires, and he warned Component's employees of the problem on a daily basis.

William Bullington began working on the Boro job about two weeks prior to his fatal accident. There is no real question that he knew about the wires and the danger of the situation. He was warned about the danger when he came on the job, was reminded of it daily, and was specifically cautioned by his superintendent, Eads, no more than ten or fifteen minutes before the accident happened.

The accident in question occurred on August 24, 1972. On that day, Bullington was to install the twenty-foot sections of gutter pipe. Bullington stationed himself on the roof of the building while a fellow Component employee remained on the ground. The employee on the ground would secure a section of pipe in a vice grip attached to the end of a rope, and Bullington would then hoist that section onto the roof. At the time of the accident, this operation was being performed on the side of the building next to the Texas Electric power lines.

No one saw the accident itself. The worker on the ground heard a thud from the roof and summoned the superintendent, Eads. Eads went up onto the roof to inspect and found Bullington lying dead across a section of pipe. There were burn marks near the end of the pipe and on the lowest of the electrical wires. The pipe was not attached to the vice grip and rope apparatus, which may permit the inference that the accident occurred sometime after the pipe had been hoisted to the roof and detached from the vice grip.

Mrs. Bullington initiated this litigation with a complaint filed in the district court on May 8, 1973. The controlling pleading for instant purposes is her second amended complaint, filed on August 19, 1974. Both Texas Electric and Boro moved for summary judgment based on a number of theories, and eventually the district court granted those motions.

The district court entered two orders to undergird its summary judgment for the defendants. The first was entered on July 15, 1975, and it relied upon two theories of Texas tort law then in force: (1) the so-called "no duty" rule, which defined certain of the responsibilities inherent in the relationship between an owner-occupier of land and his business invitees; and (2) the Texas doctrine of volenti non fit injuria, which was simply another name for the common-law doctrine of assumption of risk. Briefly, the no duty doctrine related to the landowner's duty to warn his business invitees of unsafe conditions existing on his premises. If the unsafe conditions were not obvious, but were known (or in the exercise of reasonable care should have been known) to the owner, then it was the owner's duty to warn his business invitees about the unsafe conditions. If, on the other hand, the dangerous conditions were open and obvious, then the landowner was said to have "no duty" to warn his invitees of those conditions. The volenti doctrine was a relative of "no duty" but was broader in scope. Volenti was an affirmative defense which stated that when one is fully aware of the risk of injury in a given context, but nevertheless voluntarily exposes oneself to that risk, one cannot later recover if the exposure results in injury. In its order entered on July 15, 1975, the district court held that each of these doctrines would preclude the plaintiff's recovery under Texas law.

Soon after the district court entered its July 15 order, the court was advised that one week prior to the entry of that order the Texas Supreme Court had abolished the volenti defense as a self-sufficient bar to recovery under Texas law. Farley v. M.M. Cattle Co., 529 S.W.2d 751 (Tex.1975). Instead, the Texas Court said volenti would henceforth be subsumed under principles of contributory negligence. Accordingly, the district court entered a supplemental order on September 17, 1975. In that order, the court withdrew its prior holding that volenti barred recovery in this case, but maintained that the no duty doctrine still operated to preclude the plaintiff's recovery and declined to vacate its summary judgment for the defendants. This appeal ensued.

II

That the Texas Supreme Court has now abolished the no duty rule does not in principle preclude our affirmance of the judgment below, of course. Even though the district court relied solely on the no duty rule, we are obligated to examine the law as it now exists in order to determine whether, on the facts developed in the summary judgment proceedings, the current state of the law might require that we affirm the district court notwithstanding the abolition of the no duty rule. In our view, it cannot.

The record before us discloses that there is a crucial gap in the direct evidence of exactly what happened when William Bullington suffered the fatal accident which underlies this case. There were no witnesses to the events that occurred on Boro's roof immediately prior to Bullington's accident, nor did anyone see the accident itself. Thus, a determination of exactly what happened in this case will have to rest on circumstantial evidence, and the trier of fact will be required to assess a wide assortment of permissible...