Oncor Elec. Delivery Co. v. Murillo

Justice BLAND

Reversed and rendered.

Keyes, J., filed dissenting opinion in which Sharp, J., joined.

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

JANE BLAND, Justice.

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.

DANGER KEEP AWAY

IMMEDIATELY CALL

DALLAS POWER & LIGHT CO.

Contact with certain parts

within this box can cause

electric shock and death

KEEP AWAY
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. Demolition at the Windfall Apartments

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: “Thank you for your fax. Per your request, CSA [for the Windfall Apartments] ha[s] been cancelled for you effective 6/11/07. If you need any of these properties turned off, please provide a list of those addresses or account numbers.” 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 testified that he had noticed Oncor trucks in the neighborhood, parked on a side street outside the construction fence about 500 feet away. But it is undisputed that no Oncor employees were present at the work site that day, and had not been for several weeks. Only AAA employees were present.

After the accident, an Oncor representative arrived at the scene. The representative discovered four Oncor company locks cut open, lying on the ground, in front of Pad B where Murillo's injury occurred. Shipp never saw an open or unlocked transformer door during the course of the project. Although Murillo testified that he once had seen a box door ajar on Pad A, no evidence suggests that the transformer doors on Pad B ever stood open or unlocked before the day of the accident. Murillo denied having seen the locks on the ground next to Pad B, and testified that the exterior and interior cabinet doors on Pad B were unlocked and open. Neither Murillo nor Oncor presented evidence as to who cut off the locks that had secured the transformer boxes.

Murillo testified that, several weeks before the accident and before demolition had begun at Windfall Apartments, he saw police officers near a stolen vehicle that had been stripped and left beside a transformer box on Pad A. At that time, according to Murillo, he saw that the door on the box was unlocked and a few inches ajar.

Course of proceedings in the trial court

Murillo sued Oncor, together with his employer, AAA, the developer, and the contractors at the site. Particular to Oncor, Murillo alleged that it negligently failed to de-energize the transformer on Pad B on June 11, when it disconnected the temporary service to the Windfall Apartments—about a month and a half before the accident. Oncor conceded at trial that it had not de-energized the Pad B transformers.

During the charge conference, the defendants, including Oncor, joined in objecting to the submission of the case as a negligent activity case rather than a premises liability case, contending that “the negligence question needs to be predicated on a finding of control.” The defendants further objected

to the failure to submit a question as to the plaintiff's status, whether he is an invitee, a licensee, or a trespasser.... [T]o the extent that there's any fact question about that, the jury under the Olivo case, for a premises liability case, the jury has to be ... asked about the status of the plaintiff, and then also has to be given the elements for a premises liability claim.
In addition, the defendants tendered a question asking the jury to find whether Murillo was an invitee, a licensee, or a trespasser. Murillo responded that the defendants' proposed question was relevant “only when it's alleged and recovery is sought that a negligent activity of an independent contractor ... or [based on] a premises defect.” Murillo stressed that his case fell under neither scenario. The trial court overruled the objections and denied the tendered submission.

The jury found that Oncor, Hunt and Basic “exercise[d] or retain[ed] some control over the manner in which Murillo's work in the transformer was performed, other than the right to order the work to start or stop or to inspect progress or receive reports.” It further concluded that Murillo was injured “by or as a contemporaneous result of some negligent activity” of Oncor, Hunt, Basic, and AAA, and that these defendants—other than Oncor—had been engaged in a joint enterprise. The jury placed 60% of the responsibility for Murillo's injuries on Oncor, 20% on AAA, 10% on Basic, and 10% on Hunt. It awarded Murillo $3 million in past and future physical pain and mental anguish, $3 million in past and future disfigurement, $1.5 million in physical impairment, $0 for past medical care, $200,000 for future medical care, $70,000 in loss of past earning capacity, and $0 in lost future earning capacity. Proceedings on appeal

Basic and Hunt settled Murillo's claim against them after submission of this appeal to the panel, but before the panel issued its opinion. AAA did not appeal the trial court's judgment. Thus, the only party appealing the judgment is Oncor.

Initially, a majority of a panel of our court affirmed the trial court's judgment, with one justice dissenting. The panel majority concluded that the claim against Oncor could sound in general negligence and was not one for a premises defect; it further held that legally sufficient evidence supported all of the jury's findings against Oncor. Oncor moved for rehearing and reconsideration en banc. The panel majority then granted the motion for rehearing and revised its opinion, mooting the en banc request; its disposition remained the same. Oncor again moved again for en banc reconsideration. A majority of our court, with two justices dissenting, voted to reconsider this case and withdrew the panel's March 18, 2014 opinion and judgment. We issue this opinion and judgment in their stead.

Discussion

Oncor's position in this case is unlike any of the other defendants found liable by the jury—AAA (Murillo's employer), Basic (the property manager), or even Hunt (the property developer). Oncor did not control Murillo's salvage work, nor was Oncor's negligence, found by the jury, based on Oncor's contemporaneous negligent acts. Rather, the case against Oncor was that it failed to adequately warn about a dangerous condition (energized transformers in an electrical easement) and failed to exercise reasonable care to make its premises safe (by reasonably protecting others from contact with energized transformers in its electrical easement).

At the trial court charge conference, Oncor objected that there was no evidence to support a finding that it controlled Murillo's work. In the trial court, Oncor expressly adopted Basic's request that the trial court instruct the jury on a premises-liability theory of negligence rather than a negligent activity. Because we conclude that Oncor's challenge to the general negligence verdict is dispositive of the appeal, we do not reach Oncor's contention that Murillo was a trespasser in its electrical boxes, warranting an even more limited duty instruction to the jury; we also need not address its remaining appellate challenges. Our resolution of the case turns on Oncor's role at the premises and its corresponding legal duty.

I. Defining a premises owner or occupant for claims in negligence

Oncor adduced evidence that the transformers stood on its electrical utility easement, an easement filed in the real property records of Dallas County in 1971 and initially granted to Dallas Power & Light Company. The easement grants Oncor use of the property within its bounds “for the construction, maintenance, and operation of an electrical transmission.” Oncor exercised this right in constructing the cement transformer pads and in placing and operating electrical transformers on them.

Murillo responds that Oncor, as an easement holder, did not own the property on which the transformers stood, and thus could not be held liable under a premises-liability theory. See Marcus Cable Assocs. v. Krohn, 90 S.W.3d 697, 700 (Tex.2002) (explaining that easement is “non-possessory interest that authorizes its holder to use the property for only particular purposes”) (citing Restatement (Third) of Property (Servitudes) § 1.2 cmt. d). Thus, Murillo argues, Oncor cannot rely on the more limited scope of duty applicable to a premises owner not actively engaged in any activity.

An easement holder who controls or occupies the easement, however, may be liable in tort as an occupier of the property. The question of legal title for real property purposes does not define whether a possessor of property has a legal duty to answer in tort for premises defects it creates. For tort claims like this one, a “possessor of land” is different than in the property rights context. A “possessor of land” for the purposes of defining a legal duty in tort is:

(a) a person who is in occupation of the land with intent to control it, or

(b) a person who has been in occupation of land with intent to control it, if no other person has subsequently occupied it with intent to control it, or

(c) a person who is entitled to immediate occupation of the land, if no other person is in possession under Clauses (a) and (b).
Restatement (Second) Torts § 328E (1965). “The important thing in the law of torts is the possession, and not whether it is or is not rightful as between the possessor and some third person.” Id. cmt. a.

Accordingly, “[a] premises-liability defendant may be held liable for a dangerous condition on the property if it ‘assum[ed] control over and responsibility for the premises,’ even if it did not own or physically occupy the property.” Cnty. of Cameron v. Brown, 80 S.W.3d 549, 556 (Tex.2002) (concluding that, for purposes of premises-liability claim, county assumed sufficient control over state-owned causeway because it had maintenance contract with state that included responsibilities over causeway's streetlight system) (quoting City of Denton v. Van Page, 701 S.W.2d 831, 835 (Tex.1986)). “The relevant inquiry is whether the defendant assumed sufficient control over the part of the premises that presented the alleged danger so that the defendant had the responsibility to remedy it.” Id.; see Entergy Gulf States, Inc. v. Isom, 143 S.W.3d 486, 489–90 (Tex.App.-Beaumont 2004, pet. denied) (analyzing case in which injury occurred from unmarked guy wire on utility company's right-of-way as premises-liability claim); Roberts v. Friendswood Dev. Co., 886 S.W.2d 363, 367 (Tex.App.-Houston [1st Dist.] 1994, writ denied) (observing that easement holder has duty to use ordinary care regarding use and maintenance of easement); see also Kibbons v. Union Elec. Co., 823 S.W.2d 485, 489 (Mo.1992) (property owner owed no duty to construction worker who was injured when truck ran into uninsulated 7200–volt power line over property; electricity provider held easement in which it placed utility pole, had exclusive control and thus corresponding duty to inspect and maintain lines); Reyna v. Ayco Dev. Corp., 788 S.W.2d 722, 724 (Tex.App.-Austin 1990, writ denied) (where city, as holder of easement, had exclusive use and control of easement property, apartment complex property owner had no control over and thus no duty to repair open and energized electrical switching cabinet that caused injury to child tenant).

Oncor adduced evidence that the transformers stood on its electrical utility easement filed in the real property records of Dallas County. The easement granted Oncor the right to construct and operate an electric transmission and distribution system within its bounds. Oncor undisputedly controlled the transformers on the easement as of the date of Murillo's injury, and it introduced evidence that it was the easement holder; it follows that Oncor had some control over the premises on that date. As the easement holder and the party that controlled the transformers, we hold that Oncor qualified as an occupier of the premises for the purposes of creating a duty in tort. We therefore consider whether the record supports the jury's finding that Oncor negligently engaged in an activity that caused Murillo's injuries, or whether its duty to Murillo was limited to that of an occupier of the premises at the time of the incident.

II. Defining a premises occupant's scope of liability: negligent activity vs. negligently furnishing a dangerous condition

Texas courts have consistently recognized that negligent-activity claims and premises-defect claims are independent theories of recovery, and a finding of one will not suffice to create liability for the other. See Gen. Elec. Co. v. Moritz, 257 S.W.3d 211, 214–15 (Tex.2008) (distinguishing between negligent-activity theory and premises-condition theory); Clayton W. Williams, Jr., Inc. v. Olivo, 952 S.W.2d 523, 527 (Tex.1997) (noting “two types of negligence in failing to keep the premises safe: that arising from an activity on the premises, and that arising from a premises defect”); see also Mayer v. Willowbrook Plaza Ltd. P'ship, 278 S.W.3d 901, 909 (Tex.App.-Houston [14th Dist.] 2009, no pet.) (“Negligent activity and premises defect are independent theories of recovery.”).

Although “[t]he lines between negligent activity and premises liability are sometimes unclear,” “negligent activity encompasses a malfeasance theory based on affirmative, contemporaneous conduct by the owner that caused the injury, while premises liability encompasses a nonfeasance theory, based on the owner's failure to take measures to make the property safe.” Del Lago Partners, Inc. v. Smith, 307 S.W.3d 762, 776 (Tex.2010). A finding of liability for a negligent-activity theory “requires that the person have been injured by or as a contemporaneous result of the activity itself rather than by a condition created by the activity.” Keetch v. Kroger Co., 845 S.W.2d 262, 264 (Tex.1992); see Olivo, 952 S.W.2d at 527. In contrast, to assess liability in negligence for a premises defect, an injury must occur as a result of a dangerous condition that the defendant knows or should have known to exist yet fails to reasonably warn of the condition or take reasonable measures to remedy it. Mayer, 278 S.W.3d at 909.

Both kinds of negligence claims require proof of the existence of a legal duty owed by the defendant to the plaintiff, a breach of that duty, and damages proximately resulting from the breach. See W. Invs., Inc. v. Urena, 162 S.W.3d 547, 550 (Tex.2005); West v. SMG, 318 S.W.3d 430, 438 (Tex.App.-Houston [1st Dist.] 2010, no pet.). Under a premises-defect theory, however, the scope of the duty is more singularly defined: the plaintiff must establish that (1) the premises owner or operator had actual or constructive knowledge of the complained-of condition; and (2) the complained-of condition posed an unreasonable risk of harm. Olivo, 952 S.W.2d at 529 (citing Corbin v. Safeway Stores, Inc., 648 S.W.2d 292, 296 (Tex.1983)). A claim for an injury that resulted from a premises defect cannot stand without jury findings and proof to support these specific elements. See id. To determine whether Murillo's case against Oncor is a negligent-activity case or a premises-defect case, we examine the allegations and proof adduced at trial.

It is undisputed that Oncor's last activity with respect to the transformers was on June 11 or 12. At that time—more than a month before Murillo's injury—Oncor read the nearby temporary meters, removed them, and closed the temporary electrical account. On June 7, Scott 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: “Thank you for your fax. Per your request, CSA [for the Windfall Apartments] ha[s] been cancelled for you effective 6/11/07. If you need any of these properties turned off, please provide a list of those addresses or account numbers.” Work records dated June 12 indicate that this work was done.

Murillo argues that Oncor caused his injuries when it disconnected the temporary service to the Windfall Apartments, and left the corresponding transformer energized when Scott Shipp closed the temporary electricity account. Murillo does not claim that Oncor supervised or controlled Murillo's work at the jobsite—or that Oncor was present at the site on the day of the accident. Rather, Murillo contends that Oncor's negligence was in leaving the transformer energized when Oncor should have turned it off.

But Murillo points to no evidence that Oncor was obligated to de-energize its transformer, that it had been instructed to do so, or that it verified to anyone associated with the project that the Pad B transformer was either energized or de-energized. On the day of the accident, although Murillo had noticed Oncor trucks parked on the street outside the construction fence about 500 feet away, no Oncor employees were present at the work site.

No evidence supports the jury's finding that Oncor exercised or retained any control over Murillo's work; according to Murillo, the Oncor employees never even spoke to anyone on the AAA crew. Absent “a relationship between the parties giving rise to the right of control, one person is under no legal duty to control the conduct of another, even if there exists the practical ability to do so.” Graff v. Beard, 858 S.W.2d 918, 920 (Tex.1993). Control over distribution of electrical power is not control over demolition and salvage work.

Shipp told all contractors at the site that Oncor had transformers located on the property and that these transformers “were to be left alone and treated as energized.” The transformers were not within the scope of any demolition work. Shipp specifically informed Leo Gomez, AAA's owner and Murillo's worksite supervisor, to consider the transformers to be energized. The signage on the transformer box doors declared “DANGER, KEEP AWAY.” It warned that energized electrical equipment was inside and of the dire consequences that contact could cause.

Oncor did not contemporaneously energize the transformer while Murillo worked, or tell anyone at the worksite that it had been switched off when in fact it was not. Without evidence of such acts, Oncor, as an electricity provider, had no general duty to recognize and prevent electrical contact during a construction project. See Houston Lighting & Power Co. v. Brooks, 161 Tex. 32, 336 S.W.2d 603, 606 (1960) (holding that, where electricity supplier had its employees on construction site from time to time in connection with supplying temporary electricity, any knowledge supplier's employees had of building construction was incidental to supplying electricity; thus, construction worker who was injured when he contacted live high-voltage electrical transmission lines “wholly failed to establish any reason” why electricity supplier should have foreseen injury, and “no duty arises to act to prevent such unanticipated injury”).

Because Oncor's failure to turn off an existing energized electrical transformer was not contemporaneous with Murillo's injury, it is insufficient to create liability for general negligence. Without evidence of contemporaneous conduct, Murillo's claim against Oncor is “a nonfeasance theory, based on [Oncor's] failure to take measures to make the property safe,” and not an activity “based on affirmative, contemporaneous conduct by [Oncor] that caused the injury.” See Del Lago Partners, 307 S.W.3d at 776. Texas courts have consistently considered similar circumstances under a premises-liability theory. See, e.g., Shell Chem. Co. v. Lamb, 493 S.W.2d 742, 748 (Tex.1973) (holding that premises owner had no duty to warn electrical subcontractor of potential for electric shock from condition which subcontractor was hired to repair); Shell Oil Co. v. Songer, 710 S.W.2d 615, 620–21 (Tex.App.-Houston [1st Dist.] 1986, writ ref'd n.r.e.) (concluding that Shell did not have legal duty to protect electrician-contractor by de-energizing electrical system while under repair); Corpus v. K–J Oil Co., 720 S.W.2d 672, 674 (Tex.App.-Austin 1986, writ ref'd n.r.e.) (concluding that premises occupier was not liable for crewmember's injury when rig boom made contact with overhead electric power line; power line was reasonably apparent condition and did not give rise to duty to warn); Allen v. Tex. Elec. Serv. Co., 350 S.W.2d 866, 868–69 (Tex.Civ.App.-Fort Worth 1961, writ ref'd n.r.e) (affirming take-nothing judgment on grounds that electric service company had no right of control and owed no duty to warn electrical worker hired to repair power lines injured when he came into contact with energized line); see also Le Vonas v. Acme Paper Bd. Co., 184 Md. 16, 40 A.2d 43, 47 (1944) (holding that company that retained independent contractor to hoist steel beams to roof had no duty to warn contractor's employees who sustained injuries when beam made contact with live wires hanging near cable used to hoist beams), cited with approval in Allen, 350 S.W.2d at 869.

We disagree with the dissent's position that Texas Department of Transportation v. Ramming supports a general negligence submission in this case. 861 S.W.2d 460 (Tex.App.-Houston [14th Dist.] 1993, writ denied). In Ramming, a car accident occurred at an intersection where the Department's signal maintenance technician had turned off a traffic signal during testing and repair “[i]mmediately prior to the accident.” Id. at 463. Our sister court stressed that “[t]he injuries suffered by [the accident victim] did not arise from the ‘absence, condition, or malfunction’ of a traffic signal,” but rather, the technician's botched attempt to take an amperage reading, which “simultaneously created the accident-causing condition or malfunction.” See id. at 464–65. The accident in this case did not result from any contemporaneous conduct of Oncor.

Murillo identifies no other negligent act with respect to Oncor. Neither Murillo nor anyone else testified that Oncor authorized Gomez or the AAA demolition crew to enter its transformer boxes. Murillo stated that he saw Oncor trucks parked on Rambler street—the street that the Windfall Apartments faced—in the two days before the incident, about 500 feet away, but he never interacted with an Oncor employee. The evidence raises no reasonable inference that Oncor engaged in a contemporaneous negligent activity that caused Murillo's injury. See Brooks, 336 S.W.2d at 606 (power company employees in the vicinity of construction project created no duty in general negligence to project's construction workers).

The record lacks evidence that Oncor engaged in any negligent activity contemporaneous with Murillo's injury at the jobsite, or controlled the details of Murillo's work, or had a hand in salvaging cable, or authorized entry into the transformers it operated within its electrical easement, or represented to anyone the status of its transformer as de-energized. Without such evidence, Oncor's duty was, at most, that of an occupier of the premises. As a premises defendant, Oncor was entitled to standard jury instructions that would have defined the scope of Oncor's duty to Murillo in light of the warnings to those who came near its energized transformers and the efforts Oncor made to keep its premises safe. See Brooks, 336 S.W.2d at 603 (holding that electrical supplier owed no duty in general negligence to construction worker injured by contact with live high-voltage electrical transmission lines on construction site); compare Tex. Dep't of Transp. v. Ramming, 861 S.W.2d 460, 465–66 (Tex.App.-Houston [14th Dist.] 1993, writ denied) (concluding that car accident that occurred at intersection where employee had turned off traffic signal during ongoing repair resulted from negligent activity) with Kroger Co. v. Persley, 261 S.W.3d 316, 320–21 (Tex.App.-Houston [1st Dist.] 2008, no pet.) (pleadings did not present negligent-activity claim where plaintiff slipped on water near freezer display, evidence showed that freezer's stocker had left the area at least fifteen minutes before, and plaintiff admitted she did not see stocker near display when she slipped).

The jury's findings in general negligence, rather than premises liability, will not support a judgment against Oncor. See Olivo, 952 S.W.2d at 529–30 (submission under negligent-activity theory did not address essential premises-defect elements about knowledge and risk of harm and thus could not support deemed findings under Tex.R. Civ. P. 279). The trial court therefore erred in entering judgment against Oncor. See id.

III. Disposition

In its prayer for relief, Oncor asks for reversal and either rendition of judgment or remand for a new trial. We consider which disposition is appropriate.

In Olivo, the Texas Supreme Court rendered judgment when a broad-form negligence question was submitted that failed to instruct the jury on the premises liability factors. See id. Since then, the Court has provided further guidance concerning when remand, rather than rendition, is appropriate by distinguishing between whether the omitted instructions made the question immaterial or merely defective. See Torrington Co. v. Stutzman, 46 S.W.3d 829, 839 (Tex.2000). The Court explained:

The cases in which we have concluded that a question was merely defective, as opposed to immaterial, the question at issue attempted to submit a theory to the jury that did not require the determination of predicate facts to establish a legal duty, and thus attempted to submit a controlling issue, albeit defectively. But in Olivo, the defendant owed no duty toward the plaintiff unless specific factual predicates were established. Without any determination that the specific factual predicates were met, the question did not submit a controlling issue. In other words, absent any determination that the factual predicates giving rise to a legal duty were satisfied, the defendants' failure to use reasonable care was of no legal consequence.
Id. at 840 (citations and footnote omitted).

The Court observed that, because Torrington owed no legal duty toward the plaintiffs absent a predicate finding of duty, “Torrington's failure to use ordinary care is immaterial and rendition would normally be proper.” Id. But it nevertheless remanded the case in the interest of justice because the Court had not previously considered how a negligent undertaking claim should be submitted to the jury, and no prior appellate decision in Texas had directly addressed whether the factual predicates giving rise to a negligent undertaking claim should be submitted to a jury or decided by the court as a question of law. Id. (citing Tex.R.App. P. 60.3). In contrast, the Court observed that it did not find a remand in the interest of justice warranted in Olivo “because the distinction between premises liability claims and negligent activity cases, and the requirement that the Corbin elements be submitted in premises liability cases, were well established by the time the case was decided.” Id. at 841.

Olivo controls the disposition in this case. Murillo specifically opposed the defendants' proposed questions asking the jury to make the predicate finding—a required element in premises-liability cases—as to whether he was a licensee, an invitee, or a trespasser. The defendants also sought submission of the claim as one for premises liability: framed with respect to the condition of the premises and whether that condition posed an unreasonable risk of harm. Murillo expressly refused to submit the case to the jury under a premises-liability theory, and the distinction between premises-liability claims and negligent-activity cases is well-established. The evidence in this case does not demonstrate the latter: a negligence question, without more, cannot support a judgment against a possessor of land. See Torrington, 46 S.W.3d at 838. Because the premises-liability theory required the determination of predicate facts to establish the appropriate legal duty, and the charge did not submit these predicate facts to the jury, we must render judgment. See id.; see also Olivo, 952 S.W.2d at 529–30.

Conclusion

Because an existing energized transformer within an electrical easement is a condition of the premises, and not a contemporaneous negligent activity, the trial court erred in rendering judgment against an electricity provider based on a general negligence claim. We reverse the trial court's judgment against Oncor and render judgment that Murillo take nothing on that claim. The judgment against the other defendants remains undisturbed. Justice BLAND, joined by Chief Justice RADACK, and by Justices JENNINGS, HIGLEY, MASSENGALE, and HUDDLE, for the en banc court.
Justice KEYES, joined by Justice SHARP, dissenting.
Justice BROWN, not participating.

EVELYN V. KEYES, Justice, dissenting.

This is an important case. It goes to the distinction between the liability of a premises owner for injury caused by its own negligent activity in controlling an aspect of the manner of work on a worksite and the liability of a premises owner for injury caused by a premises defect. The en banc majority determines, as a threshold matter, that the trial court erred in submitting this case to the jury on the negligence theory of liability pleaded by the plaintiff, Marco Murillo, rather than on the appellant premises owner's premises-defect defense. It then substitutes premises defect definitions and instructions for those in the charge, determines the sufficiency of the evidence to support the jury's findings under the charge it believes should have been submitted to the jury rather than the charge that actually was submitted, and renders judgment in favor of appellant Oncor Electric Delivery Company, LLC on that unsubmitted charge. It fails even to state the issues presented by Oncor on appeal or to address the charge actually submitted to the jury and the evidence in support of the jury's findings. It thus eliminates the distinction between the liability of a premises owner for its own negligent activity and its liability for a premises defect and denies a plaintiff the right to sue a premises owner whose ongoing negligent activity creates a dangerous workplace.

I believe this is error that goes to the heart of the litigation process and the plaintiff's right to have his case succeed or fail on his own theory of liability—not on a defendant's preferred theory. The en banc majority opinion also contravenes controlling supreme court law. I, therefore, respectfully dissent. And I urge the supreme court to take this case (1) to clarify the law distinguishing the liability of a premises owner/occupier for its own negligent activity from an owner/occupier's liability for a premises defect of which it was aware and (2) to clarify the law governing jury charge error when a case is submitted to the jury on broad-form questions on the plaintiff's general negligence theory of liability over a defendant's objection that the case should have been submitted to the jury on questions and instructions on its own premises-defect defense and not on the plaintiff's pleaded theory.

This case arose out of the near electrocution of Murillo, an employee of AAA, a salvage company subcontractor working on a demolition and electrical utility removal worksite. Oncor contractually assumed control over the distribution of electricity to the site until all of its electrical utilities were removed. However, it failed to disconnect one of the live electricity cables running to one of the transformers when it sent a crew to the site for that purpose so that the disconnection, material salvage, and utility removal operations could proceed safely. Oncor thus continued to distribute live electricity through that cable to the transformer on Pad B. Murillo reached into the open transformer box in the course of his work on the site to disconnect the electricity cable so that its copper could be salvaged and the transformer removed and was severely injured by the live electric current Oncor was continuing to distribute through the cable.

Oncor argues, first, that Murillo's case against it was incorrectly submitted to the jury as a claim that “Oncor was negligent for failing to warn that the transformer was energized or not de-energizing the transformer.” However, that was not Murillo's claim. Murillo claimed that Oncor was negligent for failing to de-energize the transformer when it sent a crew to the site for that purpose and for continuing to distribute electricity to the transformer on Pad B scheduled for removal, causing him to be injured when he attempted to disconnect the live cable from the transformer.

Oncor also argues in its first issue that “Murillo's only potentially viable claim” was for a premises defect, which Murillo waived by failing to plead it. And it argues that Murillo's claim against it should have been submitted to the jury by questions and instructions on its own premises defect theory rather than on the broad-form negligence question and accompanying instructions sought by Murillo and actually submitted by the trial court. However, it does not state that it never sought to have its defensive theory submitted to the jury on inferential rebuttal instructions; it sought only to substitute its theory for Murillo's in the questions to the jury.

Oncor argues in its second issue that the evidence was not legally or factually sufficient to support the jury's affirmative answers to questions requiring Murillo to prove: “(1) that Oncor exercised or retained control over the manner in which Murillo's work in the transformer was performed; (2) that Murillo was injured by or as a contemporaneous result of some activity of Oncor; and (3) that Oncor's negligence, if any, proximately caused the injury.” In other words, it argues that the evidence, viewed in the light most favorable to it, does not support its own theory of premises defect liability—with its different legal definitions of control and duty from those actually submitted. It does not argue that the evidence does not support the jury's findings on the plaintiff's theory as actually submitted, viewed in the light most favorable to Murillo, as required by the standard of review of sufficiency of the evidence.

Oncor argues, third, that Murillo's exclusive remedy against it was a claim for premises defect liability under Civil Practice and Remedies Code Chapter 95, which it pled as a defense. And it argues that Murillo waived this claim by not securing findings on the essential elements of premises defect liability set out in Chapter 95. Oncor does not argue that it waived its right to inferential rebuttal instructions on its own defensive theory by failing to seek them. Rather, it urges that judgment be rendered in its favor because the case was submitted to the jury on Murillo's general negligence theory, over its objection.

The en banc majority accepts Oncor's arguments. Rather than judging the sufficiency of the evidence to support the verdict under the charge actually given, it frames the sole issue before this Court as whether “the trial court erred in submitting a general negligence charge to the jury with respect to an electricity-carrier defendant,” and it immediately concludes that “[b]ecause the trial court erred in rendering judgment against Oncor on a general negligence claim, we reverse.” Op. at 596. Thus, as a threshold matter, it rejects the negligent activity case that was presented to the jury at trial and views the case solely on Oncor's theory as a premises defect case.

Accordingly, the en banc majority does not set out the elements of proof of negligent activity by a premises owner/occupier or determine whether the record supported the submission of Murillo's claims to the jury on a broad-form general negligence theory. It does not state the elements of general negligence set out in the jury charge, on which the jury was asked to make findings. Nor does it examine, in the light most favorable to Murillo, the sufficiency of the evidence to support the jury's findings. It also fails to distinguish the proper jury charge in a negligent activity case from the proper charge in a premises defect case. And it fails to address whether Oncor properly presented its objections to Murillo's theory of the case and properly preserved error in the charge. I believe these inquiries are critical to the proper disposition of the issues in this case.

Because the en banc majority does not analyze the case as a negligent activity case, it also does not address evidence material to the establishment of Oncor's duty and breach on such a theory. This evidence includes the service agreement between Oncor and the premises owner, Next Block 1–Dallas LP (“Next Block”), likewise a defendant, under which Oncor agreed to control electricity distribution services to the worksite until the “complete removal” of all of its utilities from the site and its actual control of the electricity distribution as the work progressed on the site. Nor does it address as acts of negligence that proximately caused Murillo's injuries Oncor's sending a crew to the site on June 12 to disconnect the power to the transformer that injured Murillo, Oncor's leaving the transformer pad partially energized even after it discontinued the customer account and removed its meters, and its ongoing negligent distribution of electricity through the live cable to the site during the utility removal process after closing the customer account.

The en banc majority simply determines that Oncor's “last activity with respect to the transformers was on June 11 or 12.” Op. at 602. And it mistakenly claims that “[c]ontrol over distribution of electrical power is not control over demolition and salvage work” on a worksite. See id. at 603. It is, however, material evidence of Oncor's exercise of control over a critical aspect of the manner in which the workmen were to perform their work, namely, whether they were to disconnect Oncor's electricity cables from the transformers scheduled for removal safely or unsafely because they were still energized.

The en banc majority disregards the evidence that Oncor specifically undertook to control the distribution of electricity to the worksite until the removal of all of its utilities. It fails to cite testimony from Oncor and others that the customary practice on the worksite was for Oncor to leave the open transformer boxes until it could get to them and for both Oncor and AAA to participate in removing the electricity cables and salvaging the wiring prior to Oncor's removal of the transformers from the worksite. And it disregards Murillo's uncontradicted testimony that, on multiple occasions throughout the project, Oncor crews observed both Murillo and other AAA workmen removing cables from Oncor's transformers as part of the utility disconnection, material salvage, and transformer removal operations.

The majority references only Oncor's representation to its customer, Next Block, that it had cancelled service effective June 11; Oncor's representation in its work records that the last electricity to the property had been turned off on June 12, which Oncor characterizes as evidence that “this work was done”; and Oncor's evidence that its workmen never spoke to the AAA workmen. Op. at 603–04. It then takes this evidence as conclusive evidence that Oncor had no ongoing duty of ordinary care in controlling the distribution of electricity to the worksite for the safety of the workmen.

Consequently, the en banc majority holds, as a matter of law, that Oncor could not be liable to Murillo for its negligence on the worksite because its activity with respect to the worksite ceased more than a month before Murillo's injury. Id. at 604. And it concludes that “[w]ithout evidence of contemporaneous conduct, Murillo's claim against Oncor is a premises liability theory,” that “Oncor's duty was, at most, that of an occupier of the premises,” and that, therefore, “Oncor was entitled to standard jury instructions” applicable to a utilities easement owner/occupier and could not be sued by Murillo for its negligence. Id. at 604–05. Finding no breach of duty by Oncor, it renders judgment in Oncor's favor.

But the duty upon which the en banc majority decides the case—the duty of a premises owner to members of the general public who are not trespassing in a utilities easement—is not the duty submitted to the jury and it is not a concept on which the defendants sought a legal ruling prior to submission. And the en banc majority's legal conclusion that Oncor's negligence was not contemporaneous with Murillo's injury is exactly the opposite of the jury's finding after being given the instruction to find negligence only if a defendant's act was contemporaneous with Murillo's injury—an instruction sought by the defendants over Murillo's objection that it was not part of the pattern jury charge on negligence. Likewise, the en banc majority's legal finding that Oncor had no duty of ordinary care arising out of Oncor's control over an aspect of the manner in which Murillo did his work contradicts the defendants' insistence that this definition of control be included in the charge to the jury to describe the duty owed by the defendants to Murillo. And the en banc majority's legal conclusion that there is no evidence to support the jury's findings on the questions of control and duty depends entirely upon its substituting these rejected instructions and definitions into the charge in place of those actually submitted and ruling on that charge—not on the one submitted, as required by the standard of review of jury charge error.

I would measure the sufficiency of the evidence to support Murillo's claims by the charge that was actually given, not by the charge the defendants sought to substitute for it. And I would hold that the evidence, viewed in the light most favorable to Murillo, as required by the appellate standard of review, is both legally and factually sufficient to support the jury's findings that Oncor controlled the distribution of electricity to the transformer where Murillo was injured during the utility removal process; that it owed both a contractual and a common-law duty to use ordinary care in distributing electricity to that transformer to prevent electrical injury to persons, like Murillo, engaged in utility removal activities; and that it negligently breached that duty, directly and foreseeably causing the injuries suffered by Murillo. Thus, I would hold that the jury properly found Oncor liable to Murillo for its ongoing negligent activity and properly awarded Murillo damages against Oncor for his injuries. Finding no error in the charge, I would therefore affirm the trial court's judgment.

One who entrusts work to an independent contractor, but who retains the control of any part of the work, is subject to liability for physical harm to others for whose safety the employer owes a duty to exercise reasonable care, which is caused by his failure to exercise his control with reasonable care.
Harrison, 70 S.W.3d at 783 (quoting Restatement (Second) of Torts § 414 (1965)); see also Redinger v. Living, Inc., 689 S.W.2d 415, 417 (Tex.1985).

The right to control may be shown either by explicit contractual assignment, which is generally a question of law for the court, or by the actual exercise of control, which is generally a question of fact for the jury. Shell Oil Co. v. Khan, 138 S.W.3d 288, 292 (Tex.2004); see also Harrison, 70 S.W.3d at 783 (holding that duty to ensure that independent contractor performs its work in safe manner arises “if the general contractor retains some control over the manner in which the independent contractor performs its work”).

The Moritz court distinguished the duty of a premises owner/occupier in a premises defect case from the duty of a premises owner who retains control over any part of the work on a worksite for the safety of those working there, stating:

Generally, a landowner is liable to employees of an independent contractor only for claims arising from a pre-existing defect rather than from the contractor's work, and then only if the pre-existing defect was concealed: “With respect to existing defects, an owner or occupier has a duty to inspect the premises and warn of concealed hazards the owner knows or should have known about.” ... [T]he landowner's duty is limited [to concealed hazards] because control is being turned over to someone else....
257 S.W.3d at 215 (quoting Khan, 138 S.W.3d at 295) (emphasis added); see Cnty. of Cameron v. Brown, 80 S.W.3d 549, 556 (Tex.2002) (concluding, for purposes of premises defect liability claim, that county assumed sufficient control over state-owned causeway because it had maintenance contract with state that included responsibilities over causeway's streetlight system and holding that “[t]he relevant inquiry is whether the defendant assumed sufficient control over the part of the premises that presented the alleged danger so that the defendant had the responsibility to remedy it”).

Here, Question No. 3 in the jury charge asked whether the listed defendants, including Oncor, “exercised[d] control over the manner in which Marco Murillo's work in the transformer was performed.” Question No. 4 asked whether any of the listed defendants were negligent. “Negligence” was defined as “failure to use ordinary care”; “proximate cause” was defined as “a substantial factor that brings about an event and without which the event would not have occurred”; and an occurrence was described as “foreseeable” if “a person using ordinary care would have reasonably anticipated that his acts or failure to act would have caused the event or some similar event.”

The trial court thus submitted the case to the jury on Murillo's negligent activity theory of liability and not on the defendants' premises defect theory, and the charge reflects the pattern jury charge for submission of a general negligence case to the jury on a broad-form liability question. Therefore, in my view, this Court should have reviewed the sufficiency of the evidence to support the jury's findings that Oncor had a duty to use ordinary care in exercising control over the distribution of electricity to the transformer where Murillo was injured while doing his work and that it breached that duty by its contemporaneous negligent activity, directly and foreseeably causing Murillo's injuries. But it did not. If it had done so, it would necessarily have concluded that the evidence was both legally and factually sufficient to support the jury's findings regarding Oncor based on the negligence theory of liability submitted to it.

B. Legal and Factual Sufficiency of the Evidence to Support the Jury's Verdict 1. Standard of Review

In reviewing the legal sufficiency of the evidence, we must view the evidence in the light most favorable to the verdict, crediting favorable evidence if reasonable jurors could and disregarding contrary evidence unless reasonable jurors could not. See City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex.2005); Tiller v. McLure, 121 S.W.3d 709, 713 (Tex.2003) (holding that, in reviewing “no evidence” point, court views evidence in light that tends to support finding of disputed fact and disregards all evidence and inferences to contrary). To sustain a challenge to the legal sufficiency of the evidence to support a jury finding, we must find that: (1) there is a complete lack of evidence of a vital fact; (2) the court is barred by rules of evidence or law from giving weight to the only evidence offered to prove a vital fact; (3) there is no more than a mere scintilla of evidence to prove a vital fact; or (4) the evidence conclusively established the opposite of a vital fact. Volkswagen of Am., Inc. v. Ramirez, 159 S.W.3d 897, 903 (Tex.2004). “The final test for legal sufficiency must always be whether the evidence at trial would enable reasonable and fair-minded people to reach the verdict under review.” Del Lago, 307 S.W.3d at 770 (quoting Wilson, 168 S.W.3d at 827).

In reviewing a challenge to the factual sufficiency of the evidence, we “must consider and weigh all the evidence and should set aside the judgment only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust.” Arias v. Brookstone, L.P., 265 S.W.3d 459, 468 (Tex.App.-Houston [1st Dist.] 2007, pet. denied) (citing Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986)). The fact finder is the sole judge of witnesses' credibility; it may choose to believe one witness over another, and a reviewing court cannot impose its own opinion to the contrary. Wilson, 168 S.W.3d at 819; Arias, 265 S.W.3d at 468. Because it is the fact finder's province to resolve conflicting evidence, we must assume that it resolved all conflicts in accordance with the verdict if reasonable persons could do so. Wilson, 168 S.W.3d at 819; Arias, 265 S.W.3d at 468. When an appellant attacks the factual sufficiency of an adverse finding on an issue on which it did not have the burden of proof, the appellant must demonstrate that the finding is so contrary to the overwhelming weight of the evidence as to be clearly wrong and manifestly unjust. See Cain, 709 S.W.2d at 176.

2. Sufficiency of the Evidence to Support the Jury's Findings

The evidence shows that Oncor's involvement with the demolition and utility removal project went far beyond its merely distributing electricity through its electric cables and transformers to its customer, Next Block, under an electricity provider's contract. It shows that Oncor both contractually and actually retained control of the safe distribution of electricity to its transformers on the worksite until “the completion of removal” of all utilities from the site. Oncor not only generally controlled the safe distribution of electricity to Next Block; it retained control over the safety conditions of Murillo's and others' work in the demolition and utility removal process in general and in the transformer on Pad B in particular. It therefore had a duty, commensurate with that retention of control, to use ordinary care to ensure that electricity would not be running through a live cable when Murillo, or anyone else, entered the transformer box on Pad B to disconnect the cable as part of the salvage and removal process.

It is undisputed that the Oncor work crew did not disconnect the electricity to one of the transformers on Pad B on June 12 when it went to the site to disconnect the electricity to that area, including neighboring Pad A, so that removal of the electrical utilities from the demolished Windfall Apartments could proceed safely. And it is undisputed that Oncor continued to distribute electricity to that cable to the transformer on Pad B over the next six weeks, creating a dangerous risk of electrocution for any worker who entered the transformer box to disconnect the cable so that the transformer could be removed from the site.

There was also sufficient evidence from which the jury could reasonably have concluded that the customary practice on the site was for AAA and Murillo—not Oncor's own workers—to disconnect the deactivated electricity cables from the transformers inside the unlocked and open transformer boxes whenever they got to them so that they could salvage the copper wiring in the cables and Oncor could then remove its cables and transformers from the site. Although some Oncor employees testified that Oncor's customary practice was to disconnect its own electricity cables, salvage their materials, and remove the transformers themselves all on the same day, this testimony was contradicted by that of Hagmeier, Davis, and other Oncor employees who testified that Oncor's standard procedure for de-energizing and removing the transformers from the worksite was not followed on this project. Shipp and Oncor employees testified that Oncor did not commit to a particular time frame for completing the removal of the transformers, but that the work was usually done within six to seven weeks, depending on the existence of other, more urgent maintenance, weather, and other factors. This evidence must be viewed in the light most favorable to Murillo and the contrary evidence disregarded. See Wilson, 168 S.W.3d at 822.

Likewise, although some Oncor employees testified that the transformer boxes were always kept locked, Oncor employee Albanese testified to cutting off locks on the transformers with bolt cutters when he “had to,” and Murillo testified that when he reached each transformer box, the locks were already removed and he did not remove the locks himself. Murillo also testified that, on numerous previous occasions during the utility removal process, Oncor employees waited for Murillo and the AAA crew to unbolt the cables from the transformers before they lifted and hauled away Oncor's transformer boxes. This evidence too must be viewed in the light most favorable to Murillo, not Oncor, and all contrary evidence disregarded. See id.

Viewing the evidence in the light most favorable to the verdict, as the standard of appellate review requires, I would conclude, on the basis of this record, that the evidence was legally and factually sufficient to support the jury's finding, in response to Question No. 3, that Oncor “retain[ed] some control over the manner in which Marco Murillo's work in the transformer was performed” as the party that controlled the flow of electricity to the transformer on Pad B during the cable disconnection, material salvage, and utility removal process, in the course of which Murillo was injured.

I would also conclude that the evidence is sufficient to support the jury's finding, in response to Question No. 4, that Oncor had a duty of ordinary care that it breached by negligently failing to de-energize both cables running from the utility pole servicing the transformer on Pad B when it sent a crew to the site for that purpose and by negligently continuing to distribute electricity to the transformer on Pad B through that cable during the utility removal process after it closed Next Block's account, directly and foreseeably causing Murillo to be severely injured when he entered the transformer box on Pad B to disconnect it. See Del Lago, 307 S.W.3d at 777 (premises owner had duty to use degree of care in performing activities that would be used by owner or occupier of ordinary prudence under same or similar circumstances).

The jury was the sole judge of the witnesses' credibility and alone was charged with resolving conflicting evidence; it was entitled to believe one witness over another; and this Court cannot impose its own opinion to the contrary. See Wilson, 168 S.W.3d at 819. Because it was the jury's province to resolve conflicting evidence, we must assume that it resolved all conflicts in accordance with the verdict if reasonable persons could do so. See id. Viewing the evidence in the light most favorable to Murillo, I would conclude that the evidence of Oncor's negligence was such that reasonable and fair-minded people could have reached the verdict under review and that the evidence was, therefore, legally sufficient. See Del Lago, 307 S.W.3d at 770; Wilson, 168 S.W.3d at 827. Likewise, I would conclude that the jury's findings on Oncor's liability were not so contrary to the weight of the evidence as to make them clearly wrong and unjust, and therefore the evidence was also factually sufficient to support the verdict. See Arias, 265 S.W.3d at 468.

The en banc majority, however, construes Oncor's duty to be the duty of a premises owner in a premises defect case to inspect the premises and warn of or remedy hidden dangers. Thus it does not address the sufficiency of the evidence to support the charge the jury was given. Without considering the duty of a premises owner/occupier to use ordinary care in exercising control it has retained over an aspect of the manner in which a workman's work is safely performed, the en banc majority denies that there is any evidence that Oncor had any duty to Murillo other than the duty of a premises owner to the general public. It opines, “Murillo points to no evidence that Oncor was obligated to de-energize its transformer, that it had been instructed to do so, or that it verified to anyone associated with the project the Pad B transformer was either energized or de-energized.” Op. at 603. But this is not a correct representation of the record, as Murillo does point to such evidence, as discussed above.

The en banc majority also opines, “No evidence supports the jury's finding that Oncor exercised or retained any control over Murillo's work,” supporting this claim with the statement that “Oncor employees never even spoke to anyone on the AAA crew.” Id. But testimony by an Oncor employee that Oncor employees never spoke to anyone on the AAA crew is irrelevant to the question of whether Oncor had and breached a duty of ordinary care in controlling the distribution of electricity to the transformer on Pad B where Murillo was electrically injured while performing his material salvage tasks. And it ignores the evidence cited above of Oncor's contractual assumption of ongoing control over the distribution of electricity to the site until “the completion of removal” of utilities—including its meters, electricity cables, transformers, and transformer boxes—from the property and its actual control of the distribution of electricity to maintain safe working conditions during the utility removal operations on the worksite, in the course of which Murillo was injured.

Finally, the en banc majority claims that “Oncor did not contemporaneously energize the transformer while Murillo worked, or tell anyone at the worksite that it had been switched off when in fact it was not.” And it concludes, “Without evidence of such acts, Oncor, as an electricity provider, had no general duty to recognize and prevent electrical contact during a construction project.” Op. at 603. But Murillo never claimed that Oncor energized the transformer while he was working. He claimed, and the evidence clearly showed, that Oncor failed to de-energize the transformer on Pad B on June 12 and continued to distribute electricity to it over the next six weeks during the utility removal project for which it had agreed to control the electricity. Nor was the negligence question submitted to the jury on a theory of Oncor's duty as an electricity provider to recognize and prevent electrical contact. Questions 3 and 4 asked whether Oncor (like the other defendants) had “exercise[d] ... some control over the manner in which Marco Murillo's work in the transformer was performed” and whether its negligence “proximately cause[d] the injury in question” as “a contemporaneous result of some activity that of that ... entity.”

I find the evidence more than sufficient to support the jury's findings of Oncor's liability on a general negligence theory when the evidence is viewed in the light most favorable to Murillo, as it must be. The en banc majority's determination that the evidence is insufficient to support Oncor's theory of the case when the evidence is viewed in the light most favorable to Oncor on an unsubmitted charge is immaterial to the charge as given. Therefore, I turn to the en banc majority's argument that the charge was improperly submitted on broad-form negligence and that the judgment of the trial court on the jury's verdict must be overturned as a matter of law and judgment rendered in favor of Oncor.

Jury Charge Error

In its third issue, Oncor contends that Murillo's exclusive remedy against it was to bring a premises defect liability claim under the Civil Practice and Remedies Code Chapter 95. It also contends that Murillo waived that claim by not securing findings on the essential elements of a premises defect claim against a property owner set out in Chapter 95, including Oncor's control of the premises and its actual knowledge and failure to warn of the dangerous condition that caused the plaintiff's injury. Oncor argues that, as a defendant on a premises defect liability theory, it was entitled to the standard premises defect jury instructions defining its duty to Murillo in a way that would have allowed the jury to consider its warnings to those who came near its energized transformers and the reasonable efforts it made to keep its premises safe. It therefore contends that judgment must be rendered in its favor. The en banc majority agrees and renders judgment in favor of Oncor.

The en banc majority, accepting Oncor's argument, holds that the case as to Oncor could only have been submitted to the jury as a case against an occupier of land for failure to warn of or remedy an existing hidden defect of which it knew and not as a negligent activity case. Thus, it holds that the trial court committed harmful error by failing to submit to the jury instructions defining Oncor's duty to Murillo in a way that would have allowed the jury to consider Oncor's warnings to those who came near its energized transformers and the reasonable efforts it made to keep its premises safe. That is, it holds that the trial court erred in failing to substitute the defendants' theory of liability for Murillo's and, therefore, the judgment must be reversed and rendered in favor of Oncor. In my view, in so doing, the en banc majority accepts the defendants' invitation to “blur the distinction” between negligent activity and premises defect liability, and, indeed, to eliminate the latter as a theory of liability for a premises owner/occupier in direct contravention of the Texas Supreme Court's directives in Del Lago, Shumake, and Keetch; and it implicitly invites the supreme court to overrule those cases. See Del Lago, 307 S.W.3d at 776; Shumake, 199 S.W.3d at 284; Keetch, 845 S.W.2d at 264.

I therefore turn to whether there was reversible error in the charge and what it means to both premises liability law and the law governing jury charge error to conclude that there was.

A. The Jury Charge in Negligence and Premises Defect Cases

Texas Rule of Civil Procedure 277 mandates broad-form submission of jury questions “whenever feasible.” Tex.R. Civ. P. 277. The trial court has considerable discretion in determining proper jury instructions. Thota v. Young, 366 S.W.3d 678, 687 (Tex.2012). “An instruction is proper if it (1) assists the jury, (2) accurately states the law, and (3) finds support in the pleadings and evidence.” Id. (quoting La.– Pac. Corp. v. Knighten, 976 S.W.2d 674, 676 (Tex.1998)).

When a trial court submits a defective issue to the jury without objection, the appellate court reviews the sufficiency of the evidence against the questions and instructions that were actually given; not against questions and instructions never requested. Osterberg v. Peca, 12 S.W.3d 31, 55 (Tex.2000). An appellate court does not reverse a judgment for charge error unless the error was harmful “because it ‘probably caused the rendition of an improper judgment’ or ‘probably prevented the petitioner from properly presenting the case to the appellate courts.’ ” Thota, 366 S.W.3d at 687 (quoting Tex.R.App. P. 44.1(a), 61.1).

1. Submission of the Charge in Negligent Activity and Premises Defect Cases

As in other cases, a trial court has great discretion in submitting the jury charge in negligent activity and premises defect cases. Tex. Dep't of Transp. v. Ramming, 861 S.W.2d 460, 463 (Tex.App.-Houston [14th Dist.] 1993, no writ); see Thota, 366 S.W.3d at 687. This discretion is subject to Rule 277's mandate of broad-form submission “whenever feasible.” Keetch, 845 S.W.2d at 266; see Tex.R. Civ. P. 277. It is also “subject to the requirement that the questions submitted must control the disposition of the case, be raised by the pleadings and evidence, and properly submit the disputed issues for the jury's deliberation.” Ramming, 861 S.W.2d at 463; see Tex. R Civ. P. 278.

“Where ... the alleged facts support ... an on-going activity [or] contemporaneous injury theory, then the case need not be presented to the jury in premises liability terms. Rather, a general negligence question is appropriate and sufficient.” Ramming, 861 S.W.2d at 465.

In a premises defect case, as in a negligent activity case, “[t]he plaintiff may submit [the] cause of action to the jury through a question about the [defendant]'s right to control the defect-producing work, to establish a duty, and a broad-form negligence question.” Clayton W. Williams, Jr., Inc. v. Olivo, 952 S.W.2d 523, 529 (Tex.1997). However, in a premises defect case, unlike a negligent activity case, instructions incorporating the premises defect elements set out in Corbin v. Safeway Stores, Inc., 648 S.W.2d 292 (Tex.1983), must accompany the questions. Id.

The supreme court explained the additional requirement of instructions in a premises defect case in Corbin by reference to the Restatement (Second) of Torts section 343, which, it stated, summarized “the duty of reasonable care that an occupier of premises owes to invitees.” 648 S.W.2d at 295 (citing Restatement (Second) of Torts § 343 (1965)). This duty requires an occupier with “actual or constructive knowledge of any condition on the premises that poses an unreasonable risk of harm to invitees ... to take whatever action is reasonably prudent under the circumstances to reduce or to eliminate the unreasonable risk from that condition.” Id. The duty of an owner/occupier under a premises-defect theory of liability thus stands in clear contrast to the duty of an owner/occupier under a negligence theory, which derives from a different section of the same Restatement (Second) of Torts, section 414. See Harrison, 70 S.W.3d at 783 (“One who entrusts work to an independent contractor, but who retains the control of any part of the work, is subject to liability for physical harm to others for whose safety the employer owes a duty to exercise reasonable care which is caused by his failure to exercise this control with reasonable care.”) (quoting Restatement (Second) of TortsSS § 414 (1965)).

The Corbin court distinguished the duty of a premises occupier from “a simple negligence action,” stating that “Section 343 simply tailors the traditional test of the conduct of a reasonably prudent person to a specific category of defendants, namely, premises occupiers.” 648 S.W.2d at 295. Thus, “an occupier's liability to an invitee depends on whether he acted reasonably in light of what he knew or should have known about the risks accompanying a premises condition, not on whether a specific set of facts or a specific breach of duty is established.” Id. Accordingly, the Corbin court set out the premises defect elements that distinguish a premises defect case against an owner/occupier from a general negligence case in which a specific set of facts and a specific breach of duty are established, namely, (1) “[a]ctual or constructive knowledge of some condition on the premises by the owner/operator” that (2) “posed an unreasonable risk of harm”; (3) the owner/operator's failure to “exercise reasonable care to reduce or eliminate the risk”; and (4) proximate cause of the plaintiff's injuries. Keetch, 845 S.W.2d at 264 (quoting Corbin, 648 S.W.2d at 296).

Subsequently, in Olivo, after distinguishing the duty of a premises owner/occupier on a negligent activity theory from that of an owner/occupier on a premises defect theory, the supreme court held that “[b]ecause premises defect cases and negligent activity cases are based on independent theories of recovery, a simple negligence question, unaccompanied by the Corbin elements as instructions or definitions, cannot support a recovery in a premises defect case.” 952 S.W.2d at 529.

Given these distinctions, I turn to whether the trial court erred by refusing to submit the case as to Oncor on a premises defect theory, as requested by the defendants, rather than on a general negligence theory, as requested by Murillo.

2. Propriety of the Negligent Activity Charge Submitted in This Case

In my view, this case falls squarely under the law governing the negligent activity of a premises owner/occupier as set out in Moritz, Khan, Harrison, and, most pertinently on the facts, Ramming—cases the majority fails to consider or addresses only to dismiss.

In Ramming, a car accident occurred at an intersection where the defendant's employee had turned off a traffic signal for maintenance and testing activities. See 861 S.W.2d at 463. The defendant, the Texas Department of Transportation (“TexDot”), was found negligent for its act of turning off the traffic signals at an intersection where its “test/maintenance activity was ongoing at the time of the accident,” proximately causing the plaintiff to be injured. Id. at 465.

Just as here, the trial court in Ramming refused to submit requested premises-defect instructions to the jury along with its broad-form negligence question. It reasoned that a premises defect theory applies “when a traffic signal is functioning properly but then fails due to component failure, act of God, third party interference, or the non-contemporaneous act of [the property owner in control].” Id. In other words, a premises defect occurs when the defendant's negligent activity, or negligent exercise of its control over an aspect of the activities on the site, is not the cause in fact of the plaintiff's injury because it has turned over control to someone else. See Del Lago, 307 S.W.3d at 776 (premises defect claim is not based on defendant's malfeasance, but on its nonfeasance); Moritz, 257 S.W.3d at 215 (“[T]he landowner's duty is limited [to concealed hazards] because control is being turned over to someone else....”); Shumake, 199 S.W.3d at 284 (stating that “a premises defect claim is based on the property itself being unsafe,” not on defendant's activity); Urena, 162 S.W.3d at 551 (discussing causation and stating, “If the defendant's negligence merely furnished a condition that made the injuries possible, there can be no cause in fact”).

In both Ramming and this case, the premises occupier's negligent activity was a direct and foreseeable cause of the plaintiff's injury. Like in Ramming, Murillo was not injured because a hidden dangerous condition occurred as a result of equipment failure, act of God, third party interference, or the non-contemporaneous act of the easement owner. Just as Ramming was injured when he entered the intersection because the defendant, TexDot, had shut off the light at that intersection while it performed maintenance and testing activities, so, here, Murillo was injured while working to disconnect a transformer to which Oncor had agreed to control the distribution of electricity during the utility removal process and to which it continued to control the electricity as Murillo and others disconnected the electricity cables, salvaged their wiring, and removed the transformers from the site.

Notably, the Ramming court specifically distinguished the seminal premises defect case of Keetch v. Kroger Co., relied upon here by Oncor and the majority to show that this is a premises defect case and cannot be a negligent activity case. In Keetch, the Texas Supreme Court held that because there was no contemporaneous activity the case should have been submitted to the jury on a premises defect theory. 845 S.W.2d at 264. The Ramming court noted that Keetch slipped and fell in a store from water on the floor thirty minutes after the store sprayed water on the plants. 861 S.W.2d at 465 (citing Keetch, 845 S.W.2d at 264). It observed that, in contradistinction to its own case, “[t]here was no ongoing activity when Keetch was injured,” and, therefore, “[t]he trial court properly did not submit a negligent activity theory of liability on these facts,” i.e., where the negligent activity had ended well before the slip. Id. (quoting Keetch, 845 S.W.2d at 264) (emphasis added). The court pointed out, “In contrast, [the] test/maintenance activity [on the traffic light] was ongoing at the time of the accident. There was no time gap, much less a 30–minute gap, between the alleged negligent activity and the accident.” Id. (emphasis added).

Here, as in Ramming, there was no time gap between Oncor's negligent distribution of electricity to the transformer, Murillo's reaching into the transformer box to disconnect the cable, and Murillo's electrical injury. Murillo was not injured by the hidden danger of properly protected electrical wires in a utility easement about which Oncor had previously warned, as required for this to be a premises defect case. See Moritz, 257 S.W.3d at 214–15; Khan, 138 S.W.3d at 295. It is, in my view, Ramming—and not Keetch—that is the relevant authority in this case, along with Moritz, Khan, and Harrison.

The en banc majority, however, because it discounts the possibility ab initio that Murillo's injuries were caused by Oncor's malfeasance, relies on the premises defect cases of Clayton W. Williams, Jr., Inc. v. Olivo and Houston Lighting & Power v. Brooks to support its conclusion that this is a premises defect case in which Oncor fully discharged the only duty it could have had to Murillo as a utilities easement owner by warning of the danger of electricity in the transformer boxes. However, the facts in those cases too, as in Keetch, are wholly different from the facts in this case. Neither Olivo nor Brooks involved a premises owner's failure to exercise ordinary care over an aspect of the activities on the premises that it controlled. Both involved a one-time, non-ongoing event that created a dangerous condition on the property not attributable to the negligent activity of the premises owner/occupier. Therefore, neither is applicable.

In Olivo, an independent contractor, Olivo, suffered an injury after falling from a drill pipe rack onto drill thread protectors left on the ground, and he sued the general contractor, Williams, on a general negligence theory. 952 S.W.2d at 526–27. The supreme court expressly stated that a general contractor, such as the defendant Williams, who is in control of premises “is charged with the same duty as an owner or occupier.” Id. at 527. And it stated that such a person or entity “may be liable for two types of negligence in failing to keep the premises safe: that arising from an activity on the premises, and that arising from a premises defect.” Id. (citing Redinger, 689 S.W.2d at 417). The court observed that the case was “not a negligent activity case because Olivo alleges that he was injured by thread protectors previously left on the ground, not as a contemporaneous result of someone's negligence.” Id. at 527. The court held that the presence of the drill thread protectors that injured Olivo implicated “a premises defect that the independent contractor [Olivo's employer] allegedly created rather than a negligent activity [of the defendant general contractor, Williams].” Id. at 528.

The supreme court opined that Williams, the general contractor, could have been found liable to Olivo on a negligent activity theory if it had retained the right to control an aspect of Olivo's work or had actually exercised control and was negligent “in exercising or failing to exercise control over the part of the independent contractor's work that created the dangerous condition.” Id. However, contrary to this case, there was no evidence of Williams' negligent exercise of control over the part of Olivo's work that created the dangerous condition.

Here, there was ample evidence of Oncor's negligent exercise of control over its distribution of electricity to the worksite that resulted in its provision of electricity to a transformer on Pad B during the cable disconnection, copper salvage, and transformer removal process on the worksite. Oncor had a contractual and a common-law duty to disconnect the electricity to the site as work proceeded, using the ordinary care of a prudent utility easement owner in control of electricity to the site so that workmen could safely enter the easement where its utilities were located, disconnect the boxes from the de-energized electric cables, salvage their wiring, and leave the transformers ready for Oncor's ongoing removal of its utilities from the site. Instead of performing this work with ordinary care, Oncor negligently failed to disconnect one of the live cables and negligently continued to distribute electricity to the transformer on Pad B, directly and foreseeably causing Murillo's injury when he attempted to disconnect the cable.

The circumstances, allegations, and evidence in Olivo are thus entirely unlike those in this case. Olivo's claim was clearly a claim that he was injured by a dangerous condition of the premises: drill thread protectors previously left on the ground by his own employer, an independent contractor, not by the general contractor he sued, and Olivo made no showing that Williams, the general contractor, negligently exercised control over any aspect of his work on the premises. Thus, the only duty imputable to Williams was the duty to warn of a hidden dangerous condition of which it was aware, not the duty to exercise its control of an aspect of the manner of work on the workplace in a safe manner. See Olivo, 952 S.W.2d at 527–28. But Olivo neither pled nor showed that Williams in its capacity as general contractor in control of the premises was aware of the drill protectors on the ground and should have either remedied or warned about the danger. Id. at 526–27.

Brooks, likewise, was clearly a premises defect case, not a negligent activity case. The plaintiff made no showing that the defendant power company had assumed a duty of control over any aspect of the construction work taking place on the worksite where the plaintiff's injuries occurred or that it continued to distribute electricity to the site in disregard of the danger to the workmen. Houston Lighting & Power Co. v. Brooks, 161 Tex. 32, 336 S.W.2d 603, 605–06 (1960). In that case, the defendant power company's high-voltage power lines complied with city ordinances and had a clearance of more than eight feet from the top and side of the hospital building where Brooks, a construction workman smoothing wet concrete on the unfinished third floor of an annex, touched the power lines with the aluminum handle of his broom and was injured. Id. at 604–05. Although there was some evidence that the power company knew construction was occurring on the site, no request had been made to the company to de-energize or otherwise protect its power lines prior to the accident, and the company did not know that concrete was going to be poured and smoothed on the day in question or that a fifteen or sixteen foot aluminum-handled mop would be used. Id.

The supreme court held that there was no evidence that the power company could have reasonably foreseen that a workman on the building would make contact with its lines and be injured; therefore, its negligence was not established. Id. at 605–06. Nor was there any evidence that the power company had actual knowledge of probable danger to the injured workman. Id. Moreover, the court specifically clarified that whatever duty the power company owed Brooks was “as a member of the public and not as an employee or as an invitee” of the power company. Id. at 605. It expressly distinguished its holding from other cases “where the injured party was either an employee of the defendant or was doing some work at the invitation of and beneficial to the defendant....” Id. at 607.

The circumstances here are the opposite. Oncor had exclusive control of the supply of electricity to the worksite. It had been asked and had agreed to remove the last remaining electricity distribution services to the site, including Pad B, so that the type of work Murillo and others were doing—disconnecting the de-energized cables from the transformers so that the wiring could be salvaged and Oncor could subsequently remove the transformer boxes—could be safely performed. It had sent a crew to the site for that purpose. However, that crew disconnected only one of the two cables to the area where Murillo was injured, and Oncor negligently continued to distribute electricity through one of the two cables to the transformer on Pad B during the utility removal process being conducted by its own employees and AAA's, proximately causing Murillo's severe electrical injuries when he touched the live electric cable while attempting to disconnect it.

The material circumstances of this case are thus the opposite of those in Brooks, and do not support Oncor's claims that, like the electric utilities easement owner in Brooks, it had no duty to Murillo beyond the duty of nonfeasance of a utilities easement owner to the general public and that it committed no negligent acts through its own malfeasance that foreseeably and directly caused Murillo's injury.

None of the cases cited by Oncor and the en banc majority support the claim—essential to the en banc majority's holding that this is a premises defect case that was improperly submitted as a negligent activity case—that Oncor's malfeasance in failing to disconnect a live electric cable running to the transformer on Pad B was not a cause in fact of Murillo's injury and is irrelevant to the proper disposition of this case. See Urena, 162 S.W.3d at 551 (stating that if defendant's negligence merely furnished condition that made injury possible, there can be no cause in fact). None of them refute the claim that this case is properly characterized as a negligent activity case in which Oncor's own ongoing negligent exercise of its control over the electricity to the transformer proximately caused Murillo's electrical injury. See Ramming, 861 S.W.2d at 465–66; cf. Olivo, 952 S.W.2d at 527–28.

Nevertheless, Oncor argues that the charge was erroneous and probably caused rendition of an improper judgment against it, and the en banc majority agrees. I turn, therefore, to Oncor's allegations of jury charge error.

B. Oncor's Claims of Jury Charge Error

Texas Rule of Civil Procedure 278 provides that the trial court must “submit the questions, instructions and definitions in the form provided by Rule 277, which are raised by the written pleadings and the evidence.” Tex.R. Civ. P. 278; Harris Cnty. v. Smith, 96 S.W.3d 230, 236 (Tex.2002). It continues, “A judgment shall not be reversed because of the failure to submit other and various phases or different shades of the same question.” Tex.R. Civ. P. 278. “[I]f the trial court has ‘to resolve a legal issue before the jury could properly perform its fact-finding role [,] ... a party must lodge an objection in time for the trial court to make an appropriate ruling without having to order a new trial.’ ” Osterberg, 12 S.W.3d at 55 (quoting Holland v. Wal–Mart Stores, Inc., 1 S.W.3d 91, 94 (Tex.1999)).

Additionally, Rule 274 provides that an objecting party “must point out distinctly the objectionable matter and the grounds of the objection”; “[a]ny complaint as to a question, definition, or instruction, on account of any defect, omission, or fault in pleading, is waived unless specifically included in the objections.” Tex.R. Civ. P. 274. Correspondingly, Texas Rule of Appellate Procedure 33.1 requires that a complaining party (1) make a timely objection to the trial court that “state[s] the grounds for the ruling that the complaining party [seeks] from the trial court with sufficient specificity to make the trial court aware of the complaint, unless the specific grounds were apparent from the context” and (2) obtain a ruling on his objection. See Tex.R.App. P. 33.1.

I, therefore, address Oncor's complaints about the charge to determine whether the complaints properly allege jury charge error and preserve it for appeal.

1. Error in the Failure to Include Premises Defect Questions, Definitions, and Instructions

Oncor argues that the trial court erred by failing to include in the jury charge the premises defect definitions and instructions that Oncor and the other defendants requested be included in the broad-form question on control, Question 3, and the broad-form liability question on negligence, Question 4, which together asked the jury to determine whether the listed defendants controlled an aspect of the manner in which Murillo's work was performed in the transformer where he was injured and whether they failed to use ordinary care in exercising that control, proximately causing Murillo's injury.

Oncor argues that, as a utility easement owner/occupier, it had no duty to recognize and prevent electrical contact during a construction project. It had only the duty to warn of the danger of electricity inside a transformer box, which was a dangerous condition of the premises. It also argues that its failure to disconnect the electricity running to the transformer on Pad B merely furnished a condition that made Murillo's injury possible; it did not cause it. Murillo's injury was caused by his own actions in attempting to disconnect the live cable to the transformer. Thus, its negligence was not the cause in fact of Murillo's injuries. See Urena, 162 S.W.3d at 551 (discussing causation in negligence context and stating, “If the defendant's negligence merely furnished a condition that made the injuries possible, there can be no cause in fact”). But the argument that Murillo's injury was caused by an independent and intervening cause— not by Oncor's negligence or as a result of any foreseeable consequence of Oncor's negligence—is exactly what the jury would have been asked to decide had Oncor sought the proper inferential rebuttal instruction set out in chapter 3 of the PJCs on general negligence.

Likewise, at the charge conference, the defendants, including Oncor, sought to submit their defensive theory of premises defect liability to disprove the essential duty element and the causation element of Murillo's theory. That is, they sought to replace the definition of the duty owed by the defendants under a negligent activity theory with the duty owed by a property owner on a premises defect theory and to give the jury instructions that would permit it to find that Murillo's injury was caused not by Oncor's negligent distribution of electricity to the transformer on Pad B but by Murillo's own trespass into an electrified transformer about which he had been properly warned by Oncor's standard warnings of the danger of live electricity posted on the transformer box and the transformer inside it. Thus, the changes and additions the defendants sought to make to the broad-form control question and negligence question, Questions Nos. 3 and 4, were inferential rebuttal issues—issues that require the plaintiff to prove the nonexistence of an affirmative defense or that “seek[ ] to disprove the existence of an essential element submitted in another issue.” See Bed, Bath & Beyond, Inc. v. Urista, 211 S.W.3d 753, 756 (Tex.2006) (quoting Select Ins. Co. v. Boucher, 561 S.W.2d 474, 477 (Tex.1978)).

Unlike alternate theories of liability and damage elements, however, Rule 277 not only mandates broad-form submission “whenever feasible,” it also prohibits the submission of inferential rebuttal questions. Tex.R. Civ. P. 277. “[I]nferential rebuttal issues cannot be submitted in the jury charge as separate questions and instead must be presented through jury instructions.” Urista, at 757 (citing Tex.R. Civ. P. 277) (emphasis added).

Yet Oncor never sought to define its duty to Murillo in the charge as the duty of a premises owner to warn of concealed hazards of which it was aware, other than as the primary definition of the duty of control in Question 3, which the defendants asked be submitted to the jury instead of the duty of ordinary care in controlling an aspect of the manner in which Murillo did his work in the transformer. Nor did it seek inferential rebuttal instructions that would have permitted the jury to find that its negligence was not the cause in fact of Murillo's injury, but that his injury was caused by his own trespass into the transformer box. And it failed to make this request for inferential rebuttal instructions even though Murillo repeatedly pointed out at the charge conference, correctly, that defensive theories, such as Oncor's, can only be submitted by inferential rebuttal instructions, and not by questions. See Tex. R. Civ. P. 277; Urista, 211 S.W.3d at 756; Comm. on Pattern Jury Charges, State Bar of Tex., Tex. Pattern Jury Charges: General Negligence & Intentional Personal Torts ch. 3 (2012) (containing inferential rebuttal instructions). It is instructive to consider why Oncor did not seek these instructions.

Had Oncor sought inferential rebuttal instructions on its defensive theory of premises defect liability, and had the trial court granted this request and modified the instructions in Question 4 to permit the jury to find that a new and independent cause of Murillo's injury—Murillo's trespass into Oncor's easement to attempt to disconnect the live cable— broke the causal connection between Oncor's negligence and Murillo's injury, it would also have had to instruct the jury that Murillo's injury had to be an unforeseeable consequence of Oncor's own negligent activity.

The problem was that no such instruction could be reasonably supported by the facts of the case. Therefore, all of the warnings set out in the PJCs on general negligence for improper submission of a case to the jury would have come into play. These include the warning that “giving multiple instructions on every possible rebuttal inference has the potential to skew the jury's analysis.” Comm. on Pattern Jury Charges, State Bar of Tex., Tex. Pattern Jury Charges: General Negligence & Intentional Personal Torts ch. 3 note (2012) (quoting Dillard v. Tex. Elec. Coop., 157 S.W.3d 429, 433 (Tex.2005)); see id. PJC 3.1 cmt. “Caveat.” And they include the warning in the comment to PJC 3.1 that where there is no evidence that the occurrence was caused by a new and independent cause—a cause that in a non-foreseeable way destroys the causal connection between the negligent act and the plaintiff's injury—submission of an inferential rebuttal instruction on the new and independent cause “is improper and may be reversible error.” Id. PJC 3.1 cmt. (citing Galvan v. Fedder, 678 S.W.2d 596, 598–99 (Tex.App.-Houston [14th Dist.] 1984, no writ), and James v. Kloos, 75 S.W.3d 153, 162–63 (Tex.App.-Fort Worth 2002, no pet.)).

I would hold that Oncor waived its objection that the case should have been submitted to the jury on a premises defect theory by failing to seek proper inferential rebuttal instructions. But, even if it did not, the trial court did not err in refusing to submit the defendants' request for premises defect instructions.

2. Error in the Jury's Finding that Oncor's Negligent Activity Was Contemporaneous with Murillo's Injury

Oncor also contends in this appeal that it cannot be held liable to Murillo on a negligence theory of liability because its failure to turn off an existing energized electrical transformer on June 12 was not contemporaneous with Murillo's injury on July 25; thus, the evidence is legally insufficient to support the jury's verdict finding it liable to Murillo for negligence. Without evidence of contemporaneous conduct, it argues, Murillo's claim against it is “a nonfeasance theory, based on [its] failure to take measures to make the property safe,” and not an activity “based on affirmative, contemporaneous conduct by [Oncor] that caused the injury.” See Del Lago, 307 S.W.3d at 776. Therefore, Murillo's only claim against it is a premises-defect claim.

Oncor thus seeks a legal ruling on contemporaneity from this Court that it failed to seek from to the trial court prior to the submission of the charge. See Osterberg, 12 S.W.3d at 55 (if trial court has to resolve legal issue before jury could properly perform its fact-finding role, party must lodge objection in time for trial court to make appropriate ruling without having to order new trial). Instead, in the trial court, Oncor joined the defendants' request that the jury decide whether the negligence of the listed defendants was contemporaneous with Murillo's injury, and the trial court gave the instruction that the jury was to answer “Yes” to the question whether a listed defendant's negligence “proximately cause[d] the injury in question ... only if [it found] that Marco Murillo was injured by or as a contemporaneous result of some activity of that person or entity.”

Thus, I would hold that Oncor waived any objection to the charge based on its claim that its negligent activity was not contemporaneous with Murillo's injury. See Tex.R. Civ. P. 278 (providing that trial court must submit questions, instructions, and definitions raised by pleadings and evidence in form provided by Rule 277); Tex.R. Civ. P. 274 (providing that objecting party “must point out distinctly the objectionable matter and the grounds of the objection” and that “[a]ny complaint as to a question, definition, or instruction, on account of any defect, omission, or fault in pleading, is waived unless specifically included in the objections.”).

I would hold that the case was properly submitted on broad-form negligent activity questions as to the liability of all defendants and that Oncor does not identify any reversible error in the charge. See Tex.R. Civ. P. 277 (requiring that “the court shall, whenever feasible, submit the cause upon broad-form questions”); see also Tex. Dep't of Human Servs. v. E.B., 802 S.W.2d 647, 649 (Tex.1990) (interpreting “whenever feasible” as mandating broad-form submission “in any or every instance in which it is capable of being accomplished”); Comm. on Pattern Jury Charges, State Bar of Tex., Tex. Pattern Jury Charges: General Negligence & Intentional Personal Torts PJC 4.1 cmt. (2012).

C. The En Banc Majority's Reliance on Premises Defect Cases to Support its Holding Rendering Judgment in Favor of Oncor

Murillo sought submission only of his negligent activity theory of liability to the jury, and his claim succeeds or fails on that theory, not on an alternative theory of how his claim might have been submitted on a hypothetical charge that was neither properly sought nor given. Neither Oncor nor the en banc majority has identified any error in the actual charge, and the evidence is, in my view, plainly sufficient to support the jury's findings. Therefore, I can find no basis to reverse the trial court's judgment for jury charge error, much less to render judgment in favor of Oncor.

The en banc majority, however, concludes as a threshold matter that the trial court committed harmful error by failing to submit the case to the jury—at least as to Oncor—on the defendants' premises defect defense rather than on Murillo's general negligence theory of liability. Thus, it does not consider whether Oncor had the duty set out in the charge—namely a duty to Murillo to use ordinary care in controlling the distribution of electricity to the transformer on Pad B where Murillo was injured while attempting to disconnect the transformer from a live cable—or whether Oncor could have breached its duty by its negligent exercise of such a duty. See Moritz, 257 S.W.3d at 214; Corbin, 648 S.W.2d at 295 (distinguishing negligent activity theory of liability of premises occupier from premises defect theory of liability). Nor does it consider Murillo's nearly being electrocuted when, in the course of his work, he attempted to disconnect the live cable running to the transformer on Pad B as evidence that Oncor's negligent activity in controlling the distribution of electricity to the transformer was contemporaneous with Murillo's injury and proximately caused it. A fortiori, viewing the case solely as a premises defect case in which Oncor had no duty to Murillo other than the duty to warn of a hidden danger on the premises, the en banc majority does not find any evidence to support the jury's finding that Oncor had and breached a duty of care in safely controlling the distribution of electricity to the transformer.

Because the en banc majority never reviews the sufficiency of the evidence to support the jury's findings under the actual charge on the plaintiff's negligent activity theory of liability, and because it finds the evidence it deems relevant to be insufficient to support the jury's findings under its hypothetically correct charge on a premises defect theory, it holds that the judgment in Murillo's favor must be reversed and judgment rendered in Oncor's favor. This holding follows because, in the majority's view, Murillo failed to plead the only claim he could have made against Oncor—a claim for breach of the duty owed by a utilities easement owner to the general public to warn of a hidden danger of which it knows. And, the en banc majority points out, Oncor fulfilled this duty by posting signs on its transformer boxes that they contained dangerous electricity. Op. at 605–06. It follows that Murillo had no claim of any kind against Oncor.

The en banc majority again relies on Olivo, and also on Torrington Co. v. Stutzman, 46 S.W.3d 829 (Tex.2000)—cases in which the supreme court found the jury charge defective for failing to include questions and instructions on the genuinely only available theory—as support for its ruling on jury charge error and for its rendition of judgment in favor of Oncor. These cases are, however, wholly unlike this case and inapplicable to it.

In Olivo, as stated above, the supreme court clearly distinguished between the “two types of negligence in failing to keep the premises safe: that arising from an activity on the premises, and that arising from a premises defect.” 952 S.W.2d at 527. And it held that the general contractor could be held liable to Olivo, the employee of an independent contractor, only if it had retained “the right of control over the injury-causing activity or condition.” Id. But the plaintiff, Olivo, had made no showing that Williams had negligently exercised control over any aspect of his work on the premises; and he had also neither pled nor showed that Williams was aware of the presence of the drill protectors that injured Olivo and should have warned about them. Id. Because “the case fits in the second category ... and involves a premises defect that the independent contractor [and not the defendant general contractor] created,” the trial court erred by failing to require that the premises defect instructions be given. Id. at 528–29.

Here, by contrast, Murillo specifically pled that Oncor itself—the utilities easement owner—controlled the distribution of electricity to the transformer on Pad B and, by its own negligent activity in failing to disconnect the electricity running through the cable and continuing to distribute electricity through it to the transformer, proximately caused his injuries when he attempted to disconnect the cable from the transformer. Therefore, the trial court did not err in submitting the case to the jury on broad-form questions as to control and negligence. This case is, therefore, entirely unlike Olivo on the jury charge issue.

Torrington, also relied on by the en banc majority, is neither a premises defect nor a negligent activity liability case. It is a products liability case brought in connection with a helicopter crash in which two marines died. See Torrington Co., 46 S.W.3d at 832. The issue was whether the defendant ball-bearing manufacturer had undertaken a duty to investigate and identify defective bearings. Id. at 837–38. The case was submitted to the jury on a broad-form negligence liability question as to the defendant's breach of that duty, without a predicate question as to whether it had undertaken such a duty. See id.

Analogizing to Olivo, in which the plaintiff's premises defect liability claim had been submitted to the jury without the necessary predicate questions to establish Williams' duty to Olivo, the supreme court observed in Torrington that “[p]remises liability cases are similar to undertaking cases in that the plaintiff seeks to impose a duty on another to take protective action based upon special circumstances or the relationship between the parties.” Id. at 838. The court stated that, in the negligent undertaking case at issue, “the broad-form negligence question allowed the jury to hold Torrington liable regardless of whether Torrington knew or should have known that its services were necessary to protect others” and “allowed an affirmative answer regardless of whether anyone relied upon Torrington's undertaking, or whether Torrington's performance of its undertaking increased the plaintiffs' risk of harm.” Id. The court held that the jury should have been instructed that Torrington was negligent only if it undertook to perform services that it knew or should have known were necessary for the plaintiffs' protection and failed to exercise reasonable care in performing those services, the services were relied on, and the plaintiffs' risk of harm was increased. Id. at 838–39.

Here, unlike in Torrington, the jury was instructed on what was required to find each of the defendants liable, including Oncor. The jury questions as to whether the defendants each controlled an aspect of the manner in which Murillo's work was performed in the transformer on Pad B and whether they breached the duty of ordinary care in exercising such control, proximately causing Murillo's injuries, were all before the jury and were appropriate and sufficient to establish both duty and breach on the part of Oncor and the other defendants.

Rather than supporting the en banc majority's conclusion that this case should be reversed and judgment rendered against Murillo because the jury was not given predicate instructions necessary to establish the defendant's duty on a premises defect theory of liability, Torrington supports the conclusion that in a negligent activity case where the acts that constitute duty, breach, and causation are well established by the pleadings and stated in the instructions and questions no additional instructions are required.

I thus find Torrington, like Olivo, to be inapplicable to this case. And I cannot agree with the en banc majority that either supports a finding of jury error or rendition of judgment in favor of Oncor.

I note that, in Torrington, the supreme court remanded the case to the trial court because it had clarified the law in its opinion; it did not reverse and render judgment as the en banc majority does here. See Torrington Co. v. Stutzman, 46 S.W.3d 829, 839–41 (Tex.2000).

Conclusion

The Texas Supreme Court has consistently “rejected attempts to blur the distinction” between the liability of a premises owner or occupier for its own negligence and its liability for a premises defect. Shumake, 199 S.W.3d at 284. And it has declined “to eliminate all distinction between premises conditions and negligent activities.” Keetch, 845 S.W.2d at 264. The holding of the en banc majority in this case not only blurs the distinction between these causes of action but eliminates altogether the concept of a premises owner's liability for its own ongoing negligent activity and immunizes property owners in general and utility easement owners in particular to liability for any such claims.

In my view, the submission of this case to the jury on a negligent activity theory of liability was proper, there was no error in the charge, and the evidence was legally and factually sufficient to support the jury's verdict in favor of Murillo. Therefore, I would affirm the trial court's judgment on the verdict holding Oncor liable to Murillo for its negligence, and I would leave the judgment against the other defendants undisturbed. -------- Notes: