Hanus v. Texas Utilities Co.

• Decision Date: 14 March 2002
• Docket Number: No. 2-00-448-CV.,2-00-448-CV.
• Citation: Hanus v. Texas Utilities Co., 71 S.W.3d 874 (Tex. App. 2002)
• Parties: Brigid HANUS, Individually and Appellant on Behalf of the Estate of David Lee Hanus, Appellant, v. TEXAS UTILITIES COMPANY, Appellee.
• Court: Texas Court of Appeals

71 S.W.3d 874

Brigid HANUS, Individually and Appellant on Behalf of the Estate of David Lee Hanus, Appellant, v. TEXAS UTILITIES COMPANY, Appellee.

No. 2-00-448-CV.

Court of Appeals of Texas, Fort Worth.

March 14, 2002.

Laird & Jones, L.L.P., Gregory G. Jones, Fort Worth, for appellant.

Cantey & Hanger, L.L.P., John C. Stewart, David A. Palmer, Fort Worth, for appellee.

Panel B: LIVINGSTON, DAUPHINOT, and WALKER, JJ.

OPINION

LIVINGSTON, Justice.

Introduction

Brigid Hanus ("Hanus"), individually and on behalf of the estate of her late husband David Lee Hanus ("Decedent"), appeals the trial court's grant of summary judgment in favor of Texas Utilities Company ("TU") on her strict products liability and negligence claims. In four issues, Hanus contends that the trial court erred: (1) in not recognizing that TU's failure to warn that power lines were buried constituted a marketing defect that rendered the electricity the lines carried unreasonably dangerous; (2) in holding that TU conclusively negated an element of the negligence claim; and (3) in granting, if it did, TU's requested no-evidence summary judgment. We affirm the trial court's judgment.

Background Facts

Decedent was using a gas-powered auger to dig postholes in his backyard. While digging, he hit the buried electrical cable that carried electricity to his home. The charge carried by the 120/240 volt electrical cable killed him. Hanus subsequently sued TU for the wrongful death of Decedent under negligence, gross negligence, and strict liability theories. TU then sought both traditional and no-evidence summary judgments under Texas Rules of Civil Procedure 166(a) and 166(a)i. The trial court granted TU's motion for summary judgment and entered judgment for TU without specifying on what grounds the judgment was based or whether it was granting a traditional or no-evidence summary judgment.

Standard of Review

1. Traditional Summary Judgment

In a summary judgment case, the issue on appeal is whether the movant met her summary judgment burden by establishing that no genuine issue of material fact exists and that the movant is entitled to judgment as a matter of law. Tex.R. Civ. P. 166a(c); KPMG Peat Marwick v. Harrison County Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex.1999); City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex.1979). A defendant is entitled to summary judgment if the summary judgment evidence establishes, as a matter of law, that at least one element of a plaintiff's cause of action cannot be established. Elliott-Williams Co. v. Diaz, 9 S.W.3d 801, 803 (Tex.1999). To accomplish this, the defendant-movant must present summary judgment evidence that negates an element of the plaintiff's claim. Once this evidence is presented, the burden shifts to the plaintiff to put on competent controverting evidence that proves the existence of a genuine issue of material fact with regard to the element challenged by the defendant. Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex.1995).

A defendant is entitled to summary judgment on an affirmative defense if the defendant conclusively proves all the elements of the affirmative defense. KPMG Peat Marwick, 988 S.W.2d at 748. To accomplish this, the defendant-movant must present summary judgment evidence that establishes each element of the affirmative defense as a matter of law. Ryland Group, Inc. v. Hood, 924 S.W.2d 120, 121 (Tex.1996).

2. No-Evidence Summary Judgment

After an adequate time for discovery, the party without the burden of proof may, without presenting evidence, move for summary judgment on the ground that there is no evidence to support an essential element of the nonmovant's claim or defense. Tex.R. Civ. P. 166a(i). A no-evidence summary judgment is essentially a pretrial directed verdict, and we apply the same legal sufficiency standard in reviewing a no-evidence summary judgment as we apply in reviewing a directed verdict. Frazier v. Yu, 987 S.W.2d 607, 610 (Tex. App.-Fort Worth 1999, pet. denied); Moore v. K Mart Corp., 981 S.W.2d 266, 269 (Tex.App.-San Antonio 1998, pet. denied). If the nonmovant brings forward more than a scintilla of probative evidence that raises a genuine issue of material fact, then a no-evidence summary judgment is not proper. Moore, 981 S.W.2d at 269.

Strict Liability Claims

Hanus contends that the trial court erred in granting summary judgment on her strict liability claim because: (1) as a matter of law, TU had a duty to warn of the dangers associated with its electricity lines; (2) TU failed to negate any element of the claim; and (3) her summary judgment evidence raised fact questions as to each element of the claim.

In Texas, section 402A of the Restatement (Second) of Torts governs claims for strict liability in tort. See Restatement (Second) Of Torts § 402A (1965); Firestone Steel Prods. Co. v. Barajas, 927 S.W.2d 608, 613 (Tex.1996). In order to recover for an injury on the theory of strict products liability in tort, the plaintiff bears the burden of proving that: (1) the defendant placed a product into the stream of commerce; (2) the product was in a defective or unreasonably dangerous condition; and (3) there was a causal connection between such condition and the plaintiff's injuries or damages. Houston Lighting & Power Co. v. Reynolds, 765 S.W.2d 784, 785 (Tex.1988); Armstrong Rubber Co. v. Urquidez, 570 S.W.2d 374, 376 (Tex.1978). Because it is a commodity that can be manufactured, transported, and sold like other goods, electricity is considered a product for strict liability purposes after it has been converted, as it had been here, to a form usable by consumers.¹ See Reynolds, 765 S.W.2d at 785.

A product may be unreasonably dangerous due to a defect in its manufacture (manufacturing defect) or design (design defect), or because of a failure to provide adequate warnings or instructions (marketing defect). Am. Tobacco Co. v. Grinnell, 951 S.W.2d 420, 426 (Tex.1997); Caterpillar, Inc. v. Shears, 911 S.W.2d 379, 382 (Tex.1995). Hanus alleged in her petition and in her response to TU's motion for summary judgment that the electricity was unreasonably dangerous due to a marketing defect, specifically due to TU's failure to provide adequate warnings.

While TU argued in the trial court and to this court that it can only be held liable in a strict products liability action if Hanus could prove the electricity passing through the underground cable was defective, Texas law clearly provides that a lack of adequate warnings or instructions can render an otherwise adequate product unreasonably dangerous. See Sauder Custom Fabrication, Inc. v. Boyd, 967 S.W.2d 349, 351 (Tex.1998); Caterpillar, 911 S.W.2d at 382 (citing Lucas v. Tex. Indus., Inc., 696 S.W.2d 372, 377 (Tex.1984)). To support its argument that Hanus must show a defect in the electricity itself in order to prevail on her strict liability claims, TU cites Erwin v. Guadalupe Valley Elec. Co-op, 505 S.W.2d 353, 355 (Tex.Civ.App.-San Antonio 1974, writ ref'd n.r.e.) and Gray v. Enserch, Inc., 665 S.W.2d 601, 605 (Tex.App.-Fort Worth 1984, writ ref'd n.r.e.). We decline to follow Erwin and do not construe Gray as broadly as does TU.

After noting that the petition contained an allegation that the electricity was defective because of a failure to warn of dangers associated with the product, the Erwin court explicitly held that "[t]he petition does not allege the existence of any defect in the electrical current, other than the fact that the transmission line through which the current passes was not placed high enough above the ground." 505 S.W.2d at 355. Thus, the court failed entirely to address the marketing-defect claim. Gray cited Erwin when it held that "[t]he doctrine of strict product liability will not apply against a utility when the product delivered by the utility is not defective." 665 S.W.2d at 605. This does not preclude the application of strict product liability principles to a utility company, however, when a failure to warn has rendered the product delivered by the utility defective. Therefore, we consider Hanus' marketing-defect strict liability claim based on TU's alleged failure to warn.

Negligence Claims

Hanus' negligence issues mirror her strict liability issues. She argues that the trial court erred in granting summary judgment against her negligence claim because: (1) as a matter of law, TU had a duty to warn of the dangers associated with its buried power lines; (2) TU failed to negate any element of the claim; and (3) her summary judgment evidence raised fact questions as to each element of the claim. The common-law doctrine of negligence consists of three elements: (1) a legal duty owed by one person to another; (2) a breach of that duty; and (3) damages proximately resulting from the breach. Mellon Mortgage Co. v. Holder, 5 S.W.3d 654, 663 (Tex.1999) (Baker, J. concurring); Greater Houston Transp. Co. v. Phillips, 801 S.W.2d 523, 525 (Tex.1990).

Duty to Warn

The central question in both marketing-defect cases and negligent failure to warn cases is when is a warning necessary to avoid creating an unreasonably dangerous product; in other words, under what circumstances is a manufacturer required to provide a warning. We examine the possible existence of a duty to warn of the dangers of a product in strict liability claims as a question of law. Am. Tobacco, 951 S.W.2d at 426; Firestone Steel, 927 S.W.2d at 613. In determining whether a duty exists in a particular case, we follow well-established guidelines.

In a marketing-defect suit, an unreasonably dangerous product must present a threat of a harm that would elude the common perception of the product. See Joseph E. Seagram & Sons, Inc. v. McGuire, 814 S.W.2d 385, 387-88 (Tex. 1991). Therefore, a manufacturer has a duty to warn if it knows or should know of the potential harm to a user because of the nature of its product. Am. Tobacco, 951 S.W.2d at 426; Bristol-Myers Co. v....