Texas Utilities Elec. Co. v. Timmons, 96-0247

• Citation: 947 S.W.2d 191
• Decision Date: 20 June 1997
• Docket Number: No. 96-0247,96-0247
• Parties: 40 Tex. Sup. Ct. J. 721 TEXAS UTILITIES ELECTRIC COMPANY, Petitioner, v. Jackie Byrum TIMMONS, individually and as representative of the Estate of Billy Edwin Byrum, deceased, Respondent.
• Court: Supreme Court of Texas

Page 191

947 S.W.2d 191

40 Tex. Sup. Ct. J. 721

TEXAS UTILITIES ELECTRIC COMPANY, Petitioner, v. Jackie Byrum TIMMONS, individually and as representative of the Estate of Billy Edwin Byrum, deceased, Respondent.

No. 96-0247.

Supreme Court of Texas.

Argued Oct. 3, 1996.

Decided June 20, 1997.

Joann N. Wilkins, Kevin John Croy, Dallas, for Petitioner.

Brenda Jeffers, R. Travis Miller, Dallas, for Respondent.

HECHT, Justice, delivered the opinion of the Court, joined by PHILLIPS, Chief Justice, CORNYN, ENOCH, OWEN, BAKER and ABBOTT, Justices.

The sole question in this case is whether, as a matter of law, a 90-foot electric transmission tower is an attractive nuisance to a 14-year-old boy. The district court answered no, granting summary judgment for the defendant. The court of appeals answered yes. 917 S.W.2d 84. We agree with the district court.

After spending the evening drinking beer and malt liquor at a friend's house, Billy Edwin Byrum, age 14, walked outside and down the street about half a block to a utility tower and began to climb it. The tower is owned by Texas Utilities Electric Company. It was built in 1913 and is over 90 feet tall. The tower has four vertical sides, each criss-crossed by metal braces forming large "X" patterns from the ground to the top. At the top is a 69 kv electric transmission line. There is no ladder up the tower, but it can be climbed by means of the diagonal braces on each side. Years ago Texas Utilities erected a barricade around the tower 12- 1/2 feet above the ground, consisting of steel braces protruding 17-19 inches from each of the four corners of the tower at a ninety degree angle, holding four strands of barbed wire, two to five inches apart, encircling the tower. Seven other strands of barbed wire are stretched across the interior of the tower. This barbed wire wall extending from the interior of the tower to about one and one-half feet beyond its sides is designed to prevent unauthorized persons from scaling the tower and coming near the power lines. Posted on one corner of the tower about five feet from the ground is a ten-inch-by-three-inch sign. Although portions were faded or illegible, and its gray background was the same color as the tower, the sign contained this warning in large, bold letters:

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

The sign did not specifically warn of the danger of arcing. Despite this warning and the barricade, children sometimes climbed on the tower without Texas Utilities' knowledge and certainly without its permission. Billy was one of them. Texas Utilities never received a report of children climbing on the tower, although it was apparent from the condition of the barbed-wire barricade that children could get past it, and people in the neighborhood sometimes saw them playing on the tower. But no one who had seen children climbing on the tower had ever seen anyone near the top.

On the night in question, when Billy's friends realized he was gone, they went outside to look for him and heard him yelling from near the top of the tower. He appeared drunk. Billy's uncle and friends had repeatedly warned him not to climb the tower, that it carried high voltage electric lines, and that he could be electrocuted. On this particular evening Billy's cousin and another boy repeatedly shouted to Billy for several minutes to come down because he might be electrocuted. Specifically, they said: "Come down before you get fried ... You're stupid going up there, you don't belong up there, and you know better." Billy acknowledged their warnings but remained at the top of the tower. At 1:18 a.m., Billy started to descend when there was a bright flash and all the lights in the area went out. Billy's body fell to the ground. Texas Utilities officials determined that Billy was killed not as a result of actually touching the electric lines but from approaching closely enough for electricity to arc into him. At the time of his death Billy's blood alcohol concentration was 0.10 gm/dl the legal standard for intoxication. TEX. PENAL CODE §§ 49.01(1)(B), (2)(B).

Billy's mother, Jackie Byrum Timmons, sued Texas Utilities for wrongful death, alleging that Texas Utilities was negligent in failing to prevent children like Billy from climbing on its tower. The trial court granted Texas Utilities' motion for summary judgment. The court of appeals reversed, holding that fact questions subsisted regarding whether Texas Utilities should have known that children climbed on its tower, even though it had no actual knowledge, and whether Billy appreciated the danger of electrical arcing, as distinguished from electrocution from touching electrical lines. 917 S.W.2d 84.

The only duty a premises owner or occupier owes a trespasser is not to injure him willfully, wantonly, or through gross negligence. Burton Constr. & Shipbuilding Co. v. Broussard, 154 Tex. 50, 273 S.W.2d 598, 603 (1954). See also RESTATEMENT (SECOND) OF TORTS § 333 (1965). But as to invitees, a premises owner or occupier must "use ordinary care to reduce or eliminate an unreasonable risk of harm created by a premises condition of which the owner is or reasonably should be aware." State Dept. of Highways & Public Transp. v. Payne, 838 S.W.2d 235, 237 (Tex.1992). Had Billy been an adult, he would have been a trespasser on Texas Utilities' tower, and since Texas Utilities did not injure him willfully, it could not be liable for his accident.

However, "when children of tender years [come] upon the premises by virtue of their unusual attractiveness, the legal effect [is] that of an implied invitation to do so. Such child [is] regarded, not as a trespasser, but as being rightfully on the premises." Banker v. McLaughlin, 146 Tex. 434, 208 S.W.2d 843, 847 (1948). This is the doctrine of attractive nuisance. It originally developed in so-called "turntable cases" where young children were injured playing on railroad turntables which seemed especially attractive playgrounds, the dangers of which children did not appreciate. See, e.g., (Sioux City & Pac.) Railroad Co. v. Stout, 84 U.S. (17 Wall.) 657, 21 L.Ed. 745 (1873); Evansich v. Gulf, C. & S.F. R'y, 57 Tex. 123 (1882). The doctrine has since been extended to other situations, as we explained in Banker:

"The theory of liability under the attractive nuisance doctrine is that, where the owner maintains a device or machinery on his premises of such an unusually attractive nature as to be especially alluring to children of tender years, he thereby impliedly invites such children to come upon his premises, and, by reason of such invitation, they are relieved from being classed as trespassers, but are in the attitude of being rightfully on the premises. Under such circumstances, the law places upon the owner of such machinery or device the duty of exercising ordinary care to keep such machinery in reasonably safe condition for their protection, if the facts are such as to raise the issue that the owner knew, or in the exercise of ordinary care ought to have known, that such children were likely or would probably be attracted by the machinery, and thus be drawn to the premises by such attraction." (Emphasis ours.)

The "attractive-nuisance", or so-called turntable doctrine, is applicable to cases involving different dangerous instrumentalities and conditions on the premises.

208 S.W.2d at 847-848. When the attractive nuisance doctrine applies, the owner or occupier of premises owes a trespassing child the same duty as an invitee.

Nearly fifty years ago, in Banker, we adopted the statement of the attractive nuisance doctrine found in section 339 of the Restatement of Torts. Id. at 847. See Eaton v. R.B. George Inv., Inc., 152 Tex. 523, 260 S.W.2d 587, 589-91 (1953); Massie v. Copeland, 149 Tex. 319, 233 S.W.2d 449, 451-52 (1950). Section 339 of the Restatement (Second) of Torts is changed slightly from its predecessor, but we believe it still correctly states the doctrine as follows:

A possessor of land is subject to liability for physical harm to children trespassing thereon caused by an artificial condition upon the land if

(a) the place where the condition exists is one upon which the possessor knows or has reason to know that children are likely to trespass, and

(b) the condition is one of which the possessor knows or has reason to know and which he realizes or should realize will involve an unreasonable risk of death or serious bodily harm to such children, and

(c) the children because of their youth do not discover the condition or realize the risk involved in intermeddling with it or in coming within the area made dangerous by it, and

(d) the utility to the possessor of maintaining the condition and the burden of eliminating the danger are slight as compared with the risk to children involved, and

(e) the possessor fails to exercise reasonable care to eliminate the danger or otherwise to protect the children.

RESTATEMENT (SECOND) OF TORTS § 339 (1965). We focus on the requirement of paragraph (c).

In the present case, Timmons concedes, as she must, that Billy realized that climbing the tower was dangerous. His friends repeatedly warned him not to climb it, and Texas Utilities erected a barricade to prevent him from climbing it. Billy knew the electrical lines were dangerous. Texas Utilities' sign posted at the foot of the tower warned him to keep away. His friends admonished him the evening of the accident, as they had numerous times before, that he could be electrocuted. Even without such express warnings, anyone as old as Billy is charged "with the knowledge that electric wires are ordinarily dangerous; that they should be avoided wherever possible ... and that it is dangerous to come in close proximity to them." Cloud v. Houston Lighting & Power Co., 199 S.W.2d 260, 262 (Tex.Civ.App.--Galveston 1947, writ ref'd n.r.e).

Timmons herself warned Billy of the danger of touching electric lines, but she contends that...