Oncor Elec. Delivery Co. v. Murillo
| Decision Date | 16 October 2014 |
| Docket Number | No. 01–10–01123–CV.,01–10–01123–CV. |
| Citation | 449 S.W.3d 583 |
| Parties | ONCOR ELECTRIC DELIVERY COMPANY, LLC, Appellant v. Marco MURILLO, Appellee. |
| Court | Texas Court of Appeals |
H. Victor Thomas, King & Spalding LLP, Houston, TX, Reagan W. Simpson, Yetter Coleman LLP, Houston, TX, for Appellant.
Rick Molina, Molina Law Firm, Houston, TX, for Appellee.
Before the court en banc.
EN BANC OPINION
This lawsuit arises from an electrical contact workplace accident that occurred on a tract of property in Dallas. After subcontractor work crews demolished and removed existing apartment complexes located on the property, it was slated for redevelopment. Marco Murillo, an AAA Demolition Company employee, sustained severe injuries when he attempted to disconnect a cable from within an energized electrical transformer. Murillo sued the property's owner, the developer, the project manager, and the area electrical provider, Oncor Electric Delivery Company, L.L.C. At Murillo's request, the trial court submitted a general negligence question to the jury. The jury found liability against Oncor and three others—AAA (Murillo's employer), Basic Industries, Inc. (the project manager) and Hunt Realty Investments, Inc. (the property developer). It apportioned 60% of the responsibility for Murillo's injuries to Oncor.
Oncor appeals the judgment against it, rendered on the jury's verdict. Oncor contends, among other complaints, that the trial court erred in submitting a general negligence charge to the jury with respect to Oncor, an electricity—carrier defendant. Because the trial court erred in rendering judgment against Oncor on a general negligence claim, we reverse.
Next Block 1—Dallas, LP acquired an eighty-three-acre tract of property, covering several blocks in Dallas County. At the time, the tract housed nine dilapidated apartment complexes, including the Windfall Apartments. Next Block retained HRC–MJR Development, LLC, an affiliate of Hunt Realty Investments, to provide development management services for the property. HRC–MJR assigned its employee, Scott Shipp, to be the manager for the project.
Oncor's presence on the property
Oncor (also referred to as TXU Electric Delivery Company in the testimony and trial exhibits) held an electrical utility easement on the property, filed in the real property records of Dallas County in 1971, and initially granted to Dallas Power & Light Company. The easement granted use of the property within its bounds “for the construction, maintenance, and operation of an electrical transmission.” Oncor had provided electric service to the apartments via sets of electrical transformers, housed in metal boxes that stood on concrete pads outside each apartment complex. These transformers converted the higher-voltage transmission line electricity to lower-voltage residential line electricity. Underground cables connected the transformers outside each apartment complex to a series of meters, one for each residence.
Two of these concrete transformer pads were located in front of the former Windfall Apartments. The pads, designated as Pads A and B, housed a set of transformers. On each pad, three opaque metal enclosures, or “boxes,” stood in a row: the first and third enclosures housed and entirely enclosed a transformer, and the middle enclosure, known as the secondary enclosure, housed and entirely enclosed equipment that routed the lower-voltage electricity from the transformers into an underground line that connected to the individual apartment electric meters.
Each of the three transformer boxes had an exterior door and an interior door, secured with locks. The transformer boxes conspicuously posted safety warnings. On the exterior door of each box, a sign read:
MAY SHOCK, BURN, OR CAUSE DEATH
If Unlocked or Open
Immediately Call
Your TXU Office at
[toll free number]
On the interior doors, a sign read:
DANGER KEEP AWAY
IMMEDIATELY CALL
DALLAS POWER & LIGHT CO.
The signs included typical illustrations used to warn of danger from electrical shock.
The redevelopment of the property
The re-development plans contemplated that Oncor would remove its electrical transformers from the site. Oncor handled transformer removals with an onsite crew that de-energized and removed the electrical equipment and metal boxes.
In March 2007, Next Block and Oncor entered into a series of service agreements, in which Oncor charged Next Block a “facilities relocation/removal charge” for the “partial removal of dist[ribution] Services to apt. properties.” The agreements terminated upon “completion of removal”; they did not specify a time frame. The agreement identified Shipp as the Next Block company customer representative and required that customer notification be sent to him in care of Hunt Realty Corporation.
Shipp was the development project's sole contact point with Oncor.
Demolition begins
At the property, the old apartment buildings required asbestos abatement before further demolition could occur; the asbestos abatement workers required electric power for their equipment. Because the dust generated during asbestos abatement is explosive, the power had to be turned off in the building while they worked, so they powered their equipment either from an adjacent building or from a temporary utility pole.
Jason Hagmeier, an Oncor employee, worked with Shipp on transformer removals from the work site. Periodically, Shipp would contact him and tell him an area that was ready for transformer removal. Hagmeier would then check Oncor's records regarding the transformers involved and forward a removal plan to an Oncor work crew.
Oncor would schedule the removal when it had an available crew, usually within six to seven weeks of the request and in consideration of the priorities attendant to other jobs, such as those made necessary by weather-related service issues. Oncor work records show that its crews performed electrical relocation and transformer removal work throughout the property from April through July 2007.
With respect to the Windfall Apartments, on April 19, Shipp e-mailed Oncor and asked that it close the metered electricity accounts at the Windfall Apartments “due to demolition of these apartments” and “remove all meters and service from the property.” The request listed multiple individual apartment units. The next day, Shipp further requested that Oncor supply power to a “temporary pole set” for the Windfall Apartments—necessary to provide electricity for the asbestos abatement workers. On April 24, an Oncor work crew connected two temporary utility poles installed near the Windfall Apartments.
On May 8, one of the Windfall transformers, on Pad A, caught fire due to a blown electric meter. Oncor sent a crew to the scene to de-energize that transformer. The other transformers remained energized.
On June 7, Shipp requested that Oncor “please cancel the Continuing Service Agreements (CSA's) for the following apartments as soon as possible due to their scheduled demolition: Windfall Apartments.” Oncor responded on June 11: Company records dated June 12 indicate that the temporary service meters were disconnected on June 11, but Oncor neither de-energized nor removed any transformer sets at that time.
Murillo's employment at the job site
Basic subcontracted with AAA, Murillo's employer, to demolish one part of the overall project—the part associated with the Windfall Apartments. AAA had salvage rights to any materials it found within the scope of the demolition work, which the contract documents defined as including “buildings, pavement, and private utilities.” Because the apartments were very old, they contained valuable copper
in the plumbing and wiring within them. Shipp told the subcontractors at the worksite that the transformers and electrical facilities located on the property were the property of Oncor Electric, and were to be left alone and always treated as energized. The transformers and Oncor cables were not within the scope of AAA's demolition work. Shipp testified that he specifically had that conversation with Leo Gomez, AAA's owner and Murillo's worksite supervisor.
Despite Shipp's instructions, Leo Gomez instructed his crew to salvage copper
from Oncor's electrical cables and transformer boxes as AAA demolished the apartment buildings. Murillo had noticed Oncor employees present in the area around the apartment complexes, but he acknowledged that the Oncor employees never spoke with the AAA crew. On occasion, according to Murillo, he saw Oncor work crews remove disconnected transformers after a crew had pulled cables from transformer boxes.
The accident
On July 24, Leo Gomez ordered Murillo and the AAA crew to disconnect cables from inside the Oncor transformer boxes near the Windfall Apartments. The AAA crew removed the cables at the Pad A transformer connections, without incident. The next morning, on July 25, the AAA crew removed cables attached inside two boxes on Pad B, also without incident. After lunch, the crew returned to remove the cables from the last transformer box on Pad B. No one on the AAA crew checked to ascertain that the boxes were de-energized, or used a voltage tester, or wore rubber gloves when working inside the transformer boxes.
Wearing work gloves, Murillo reached inside the third transformer box on Pad B, holding a wrench. He intended to disconnect a copper
cable attached to the transformer. The transformer was energized. Murillo suffered a severe electrical injury.
Oncor was not at the scene
On the day of the accident, Murillo...
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