City of Austin v. Lopez ex rel. Lopez

• Decision Date: 24 June 2021
• Docket Number: NO. 03-19-00786-CV,03-19-00786-CV
• Citation: 632 S.W.3d 200
• Parties: The CITY OF AUSTIN d/b/a Austin Energy, Appellant, Saljar, Inc. d/b/a OK Corral Night Club, Cross-Appellant v. Maria Del Rosario MEMBRENO LOPEZ AS NEXT FRIEND OF Jaime Antonio Membreno LOPEZ, Appellee, The City of Austin d/b/a Austin Energy, Cross-Appellee
• Court: Texas Court of Appeals

632 S.W.3d 200

The CITY OF AUSTIN d/b/a Austin Energy, Appellant, Saljar, Inc. d/b/a OK Corral Night Club, Cross-Appellant

v.Maria Del Rosario MEMBRENO LOPEZ AS NEXT FRIEND OF Jaime Antonio Membreno LOPEZ, Appellee, The City of Austin d/b/a Austin Energy, Cross-Appellee

NO. 03-19-00786-CV

Court of Appeals of Texas, Austin.

Filed: June 24, 2021

Alexandra W. Albright, Austin, Rhett Hoestenbach, for Appellant Saljar, Inc. d/b/a OK Corral Night Club.

Breck Harrison, Austin, Danica Lynn Milios, Austin, David May, Aldean E. Kainz, Austin, Chris Edwards, Patrick Dresslar, for Appellant The City of Austin d/b/a Austin Energy.

Richard D. Davis, for Najjar, Jason, Salem, Salim.

Kevin J. Terrazas, Austin, Abbey C. Gray, for Appellee.

Before Justices Baker, Triana, and Kelly

OPINION

Gisela D. Triana, Justice

The City of Austin d/b/a Austin Energy (City) appeals from the trial court's final judgment after the jury returned a verdict against the City in favor of appellee Maria Del Rosario Membreno Lopez as Next Friend of Jaime Antonio Membreno Lopez (Membreno Lopez). In four issues, the City asserts charge error and three evidentiary-sufficiency issues. In its cross-appeal, Saljar, Inc. d/b/a OK Corral Night Club (Saljar) raises four issues, also asserting charge error and three evidentiary-sufficiency issues. For the reasons explained below, we affirm the trial court's judgment.

BACKGROUND

Factual background

This case arises from a tragic and fatal accident on a construction site at the OK Corral Night Club in February 2009. Decedent Jaime Membreno was an employee of Luis Romero d/b/a Luis Romero Construction (Romero), working as part of the stucco crew at the construction project.¹ The nightclub is owned and operated by Saljar, whose principals are Ghasson Jason Najjar and Salim Salem. Membreno was fatally injured while standing on a metal scaffold that the stucco crew had erected near the City's power line. Membreno was electrocuted when he contacted the line with a 10-foot roll of metal mesh that he was holding while cutting it with metal wire-cutters.

The power line that Membreno came in contact with had been installed by the City in 1975 after the City obtained an easement in 1972. The power line was on the west side of the property, which is a strip mall. In November 2008, Saljar entered into a lease for space in the shopping center to open a nightclub. Saljar remodeled the building and acted as the general contractor for the remodeling project. Saljar hired Romero to put stucco and mesh "around the front of the building [to] th[e] western side" of the building.

In January 2009, Saljar applied to the City for a construction permit and included a site plan and a sealed architectural drawing that purported to show the planned scope of work. Both documents were inaccurate. The site plan incorrectly described the scope of work, omitting any indication that construction work would be performed on the west side of the building where the power lines are located; instead, it only showed that work would be done on the north side of the building where there are no power lines. This omission made the permit application eligible for an expedited review process that would allow the nightclub to open sooner. The sealed architectural drawing did not disclose an overhang along the perimeter of the roof on the west side of the building that extended the building three feet closer to the City's power lines. That overhang on the west side of the building was where Membreno was working when he made contact with the power line.

Romero and his crew, including Membreno, erected a scaffold starting on the west side of the building that wrapped around towards the front door on the north side of the building. Romero testified that when they erected the scaffolding, he, Membreno, and the rest of the stucco crew observed that the power lines were "maybe two feet away ... from the scaffold" but continued working. It is undisputed that no one contacted the City to request that it de-energize the power lines as required by the Texas Health and Safety Code and that the work was being performed within six feet of the power lines in violation of Texas law and Occupational Safety and Health Administration (OSHA) regulations. See Tex. Health & Safety Code §§ 752.003 -.004; 29 C.F.R. § 1926.451. In addition, Saljar never scheduled the pre-construction meeting that was a condition of the permit.

Several Austin Energy employees went out to the accident site on the day of the accident, shortly after Membreno's fatal injury.² One of them, former Austin Energy Design Supervisor Joe McNair, made a sketch at the site that was the only depiction of the scaffold with measurements that was admitted at trial. In addition, a number of photographs taken of the accident site were admitted into evidence at trial. The photograph below is one of them:

Procedural background

Membreno Lopez sued the City for negligence and negligence per se on behalf of her minor child, whom she asserts is Membreno's only child and sole heir.³ In her live pleading at the time of trial (her ninth amended petition), Membreno Lopez alleged that the City owned and operated the utility poles and the power line. Membreno Lopez also alleged that the City:

• installed the power line "too close to the building where Jaime Membreno was killed";

• "failed to regularly inspect and maintain the poles," and as a result, "the poles began to lean towards the building allowing the high-voltage lines to become dangerously close to the side of the building where the scaffolding was constructed and ultimately where Mr. Membreno was working";

• is "solely responsible" for operating and maintaining the power line and has been since the line's original construction in 1975; and

• "failed to maintain the electrical distribution line, which allowed it to lean too close to the building where Jaime Membreno was."

Membreno Lopez further alleged that the City was negligent by granting construction permits to Saljar and by not properly inspecting the construction and not de-energizing the power line. In connection with her negligence per se claim, she alleged that the overhead lines violated the National Electrical Safety Code (NESC) standards related to power-line overhead clearances and distances from buildings.

Membreno Lopez also sued Romero, Saljar, Saljar's principals Najjar and Salem, the property manager Stephen Cole, and the property owner and landlord, the Estate of W. H. Bullard (through its independent administrator George J. Vassar), specifically alleging a premises-liability claim against Saljar, Cole, and Vassar.⁴ Membreno Lopez settled her claims against Romero, Saljar, Najjar, Salem, Cole, and Vassar before trial.

The City filed cross-claims against Romero and Saljar, alleging that they violated Chapter 752 of the Texas Health and Safety Code and must therefore indemnify the City for all losses incurred as a result of Membreno's contact with the power line. See Tex. Health & Safety Code § 752.008 (providing that person, firm, corporation, or association that commits violation under Chapter 752 "is liable to the owner or operator of the line for all damages to the facilities and for all liability that the owner or operator incurs as a result of the contact").

Before trial, in its May 2019 reply in support of its summary-judgment motion, the City put Membreno Lopez on notice of its contention that her claim sounds in premises liability, not in general negligence or negligence per se. In response to Membreno Lopez's contention that utility providers owe common-law duties to the public, including Membreno, the City argued that Texas law is clear "that where the plaintiff's injury is allegedly caused by a dangerous premises condition created by a premises owner or occupier's negligence, as alleged here, rather than by contemporaneous negligent conduct[,] the plaintiff's claim sounds in premises liability and the premises owner therefore owed, at most, a premises-liability duty and not a general-negligence duty." The trial court denied the City's summary-judgment motion, and the case was tried to a jury in June 2019.

At trial, Membreno Lopez put on evidence to support the theory of liability outlined in her petition, arguing that the City was negligent in operating and maintaining its public-utility line because it had failed to inspect its lines and poles to "make sure [they] are not leaning" or "getting too close to buildings." Membreno Lopez's expert witness testified that the cause of Membreno's death was the "defective" power line and pole. The expert opined, based on contemporaneous photographs, that the pole was leaning five to ten degrees from vertical. He further opined that if the pole had been straightened, it would have been between three-and-a-half feet to six feet farther from the building.

Both at the close of Membreno Lopez's evidence and again after the parties rested, the City moved for directed verdict, contending that Membreno Lopez's theory alleging that the City's failure to maintain its lines and poles created the dangerous condition that caused the accident is a premises-liability claim, not a general-negligence claim, and that judgment should be rendered in its favor because Membreno Lopez had not alleged or adduced any evidence that the City's contemporaneous conduct caused Membreno's death, as required to recover on a general-negligence claim. The trial court denied the City's motion.

The City later objected to the submission of a general-negligence question on the ground that the question submitted an invalid theory of recovery, but the trial court overruled the objection and submitted the question to the jury.⁵ The jury found the City negligent and assigned it with 26% responsibility for the accident.⁶ The jury also found Romero, Saljar, and Membreno negligent, assigning them 34%, 30%, and 10% responsibility, respectively.⁷ The jury further found that Saljar and Romero "exercise[d] some degree of...