In a recent Texas appellate decision, a plaintiff appealed a take-nothing judgment in his personal injury and premises liability claim against an electrical company. The case arose when a man was working as a telephone lineman for a subcontractor of AT&T.
The subcontractor’s work was to install a new line of telephone cable on specific utility poles. These poles had been built in the 1940s in the city’s roads, based on a franchise agreement. At the time, the defendant owned the poles, and they were jointly used by the defendant and AT&T as power and telephone lines, based on an agreement made between their predecessors.
The defendant’s primary power line was attached to every other pole. When installing a new telephone line, the plaintiff used a chain hoist attached to a pole to which the power line was attached. As he took hold of the chain hoist, he tugged it, and the power line attached to the pole touched a bolt on the top of another pole to which it was attached. There was an excessive current that blew the fuse and caused a piece of metal to impale the plaintiff’s hand.
The plaintiff claimed the contact happened because the sag in the power line over the second pole was below the vertical clearance height mandated by the National Electric Safety Code, and it should be considered an unreasonably dangerous condition. He sued the defendant, claiming he suffered severe injuries due to the defendant’s breach of duties. He used alternative theories of personal injury and premises liability based on a dangerous condition. With regard to the latter, he claimed to be either an invitee or licensee on the premises occupied by the defendant. He also claimed the defendant was grossly negligent under section 41.001(11) of the Texas Civil Practice and Remedies Code.
The lower court granted the defendant’s motion for a directed verdict regarding the claim of gross negligence. It refused the plaintiff’s requests related to negligence and proximate cause. A final judgment was rendered in the defendant’s favor, and the plaintiff’s request for a new trial was overruled. He appealed.
On appeal, he argued that the defendant owed a duty of ordinary care to him with regard to providing electricity. The defendant, knowing people like him would be close to the power line based on the existence of the agreement, should have anticipated the incident. The appellate court explained that general knowledge that a subcontractor’s employees might work near the power line didn’t mean that it could reasonably anticipate an injury.
The appellate court explained that the issue for the purposes of determining whether there was liability under a premises liability theory was whether the defendant had enough control over the area that presented the danger so that it should have fixed it. It found that the theory of liability used by the plaintiff turned on the defendant’s control over the utility pole and a failure to fix or warn about the dangerous condition of the line. Therefore, the appellate court found that it was appropriate for the trial court to refuse to submit the general negligence issue to the jury.
The appellate court explained that negligent activity and premises liability are independent theories of recovery, and the plaintiff in this case was limited to his premises liability theory, as the trial court determined. The appellate court also explained that a premises owner’s duty is usually determined by the plaintiff’s visitor status as an invitee, licensee, or trespasser.
The plaintiff argued that since he was an employee of a subcontractor to the telephone company, he should be considered the defendant’s invitee. Looking at the agreement, the appellate court found that there was a right to jointly use the poles, but neither company acted as a general contractor of the other party’s subcontractors. Any mutual benefit that existed due to the agreement didn’t attach to the plaintiff. It also found that the plaintiff had failed to conclusively establish gross negligence.
If you are hurt while working on somebody’s property, the experienced San Antonio work accident and premises liability attorneys at Carabin & Shaw may be able to represent you and develop a sound strategy for handling your case. Call our office for more information at 1-800-862-1260.