Hopkins v. Texas Power & Light Co.

• Citation: 514 S.W.2d 143
• Decision Date: 05 September 1974
• Docket Number: No. 18346,18346
• Parties: Richard Dean HOPKINS, Appellant, v. TEXAS POWER AND LIGHT COMPANY et al., Appellees.
• Court: Texas Court of Appeals

Page 143

514 S.W.2d 143

Richard Dean HOPKINS, Appellant, v. TEXAS POWER AND LIGHT COMPANY et al., Appellees.

No. 18346.

Court of Civil Appeals of Texas,

Dallas.

Sept. 5, 1974.

Rehearing Denied Oct. 10, 1974.

Harold J. Eisenman, Waldman & Smallwood, Beaumont, for appellant.

Gordon H. Rowe, Jr., Gardere, Porter & DeHay, L. W. Anderson, Anderson, Henley, Shields, Bradford & Pritchard, J. Dan Bohannan, Burford, Ryburn & Ford, Dallas, for appellees.

BATEMAN, Justice.

This is a common law damage suit for personal injuries sustained by appellant Richard Dean Hopkins, a painting subcontractor who was working on a portion of the shopping center known as the Irving Mall. Hopkins appeals from a take-nothing summary judgment rendered in favor of the three defendants, Texas Power and Light Company, Rob-Roy Electric, Inc. and Childs Construction Co.

Our problem is to determine whether the undisputed summary-judgment evidence, viewed in the light most favorable to Hopkins, showed as a matter of law that none of the defendants breached any duty of care owing by it to Hopkins, resulting in his injuries, and whether the doctrine of Volenti non fit injuria applies. Our examination of the summary-judgment evidence, and particularly the deposition of the plaintiff Hopkins, compels us to hold that on the occasion in question he was, as to each of the defendants, a trespasser, or at most a mere licensee; and that he knew and appreciated the danger confronting him and voluntarily assumed the risk thereof.

Hopkins was self-employed, being a partner with his brother in the commercial painting business, having had about fourteen years experience therein. His work is that of a field superintendent over several employees. The job on which he was working on the occasion in question is known as the Penney Card Shop. Luther Hill and Associates had the contract to build that particular area in the Mall, and Hopkins and his brother had the painting subcontract under Luther Hill and Associates to paint the walls and ceiling of the Penney Card Shop.

Appellee Childs Construction Company ('Childs') was the general contractor for the mall section only, having no responsibility for providing electric lighting or power, either temporary or permanent service, in the individual leased areas, such as the Card Shop. Childs' only responsibilities concerning such individual areas were to pour the concrete floors, install sprinkler systems, build outside and back walls, install the electric 'disconnect' at the top of each meter box and pull the electric wires up to the individual leased premises. Childs' responsibilities stopped at the leased premises, and the individual tenants had the responsibility for wiring within the shops themselves.

Appellee Rob-Roy Electric, Inc. ('Rob-Roy') had the contract to do the electrical work for the mall generally, not including the individual leases. It had no responsibility for anything inside the Penney Card Shop except to get the wires to the shop itself. Rob-Roy pulled the wires inside the back of the Shop, and after peeling the insulation from the ends of the wires, twisted the bare wires together to inform any other electrician that the wires were not 'hot.'

Appellee Texas Power and Light Company ('TP ') installed the individual meters and supplied electric current. The individual tenants had the responsibility of arranging with TP for individual meters and electric service. No request had been made to TP for electric service to the Penney Card Ship. All of Rob-Roy's work had been finished and inspected and approved by the City Inspector, but the wiring inside the Card Shop had not been completed or inspected, so no meter could have been installed for the Penney Card Shop prior to the date of the accident.

Hopkins was painting inside the Card Shop on Monday, July 5, 1971, a holiday. Since he was working in a leased area, the general contractor, (Childs) had no right to deny him access, and its permission to work in the leased area on a holiday was not required. Hopkins and his employees had electric lights in the Shop that morning, but they went off at about 1:30 p.m. The power for these lights came from a temporary service line which ran through the Shop . Hopkins left the Shop area in search for a source of power. He met Childs' watchman, Smith, who at Hopkins' request took him to two different meter closets, the second one having in it a box marked 'Penney Cards.' This was approximately 150 feet from the Card Shop. Smith did not tell Hopkins to do anything, or not to do anything, but simply showed him the meter closet. The closet area was well lighted.

Hopkins opened the door of the closet and found therein four 'disconnect' boxes, each having a meter box directly under it. Three of these had meters installed in them, and the disconnect boxes above them had levers pushed in the upward or 'on' position. The box marked 'Penney Cards' had no meter installed in it but had a metal disc over the place where the meter would eventually be placed . The lever of the disconnect box above that meter box was in the down or 'off' position. Hopkins flipped that lever up to the 'on' position within three or four seconds after opening the meter closet . This did not produce any discernible effect, so he opened the meter box that had the metal disc on it. He testified by deposition that he was 'bound to have' seen all four installations when he opened the closet but did not pay any attention as to whether the other three had meters installed in them, that if he had paid any attention he would have seen that the others had meters. After he opened the lower box he saw a switch which he also turned to the 'on' position, whereupon the box suddenly 'exploded' in his face. For reasons of safety, this switch is constructed so that it cannot be turned to the 'on' position when the meter box door is closed. Only fifteen or twenty seconds elapsed from the time he opened the closet door until he flipped the switch inside the meter box. Hopkins received burns on his face, neck and hand, and was off work for one month.

Hopkins made numerous admissions in his deposition which show quite definitely that he was not an invitee, as he alleged, but was a trespasser, or at most a licensee. He testified that all electric lines should be considered as being 'hot'; that he knew that the switch is 'off' when in the down position and 'on' when in the up position; that he knew that he should not turn a switch 'on' without further checking to see why it was in the 'off' position; that he knew the switch on the Penney Card Box was in the 'off' position; that he knew the difference between temporary and permanent service; that he knew he should not open or close a meter box that does not have the meter installed; that he knew he should not turn a switch 'on' where there is no meter without first checking it out; that he knew he should first check to see if the power is on and whether there is a shortage because electricity is dangerous; that he knew there should have been a meter before one could lawfully get electricity; that he knew electricity can hurt or kill; that he knew there was no permanent service to the Penney Card Shop, and that flipping the switch called for the exercise of care on his part since it involved electricity; that he knew that going into the meter closet area could be dangerous and that he took the risk of danger when he began flipping the switches; that he knew that the meter area was incomplete and still under construction.

Hopkins had never attempted to locate the source of power which provided the electric lighting for the Card Shop, and never tried to...