Shannon Newman v. Centerpoint Energy Houston Elec., LLC

SHANNON NEWMAN, Appellant v. CENTERPOINT ENERGY HOUSTON ELECTRIC, LLC, Appellee

NO. 14-16-00007-CV

State of Texas in the Fourteenth Court of Appeals

May 25, 2017

On Appeal from the 165th District Court Harris County, Texas

Trial Court Cause No. 2012-44618

MEMORANDUM OPINION

The trial court submitted Shannon Newman's personal-injury claim against CenterPoint Energy Houston Electric, LLC, to the jury based on the duty of care a premises owner owes to a licensee. The jury found in favor of CenterPoint, and the trial court rendered a take-nothing judgment. Newman challenges the judgment in three issues. He argues that the trial court erred by refusing to submit his proposed jury questions regarding: (1) CenterPoint's general negligence and negligent activity as a premises owner and (2) even if the case properly was submitted as a premises- defect case, Newman's status as an invitee instead of a licensee. On the premises claim, Newman challenges the sufficiency of the evidence to support the jury's finding on the lack of gross negligence by CenterPoint. Finding no merit in Newman's issues, we affirm the trial court's judgment.

I. BACKGROUND

On August 8, 2011, Shannon Newman was working as a telephone lineman for Max-Tel Communications, a subcontractor for AT&T. Max-Tel's job was to install a new line of telephone cable for AT&T on certain utility poles. The poles at issue originally were staked and built sometime in the late 1940s in the City of Houston's "road right-of-way" pursuant to a franchise agreement. CenterPoint owned these poles at the time. AT&T and CenterPoint jointly utilized these poles for their telephone and power lines, respectively, subject to a 1978 General Agreement for Joint Use of Wood Poles entered into between CenterPoint's predecessor Houston Lighting & Power Co. (HL&P) and AT&T's predecessor Southwestern Bell Telephone Co.

CenterPoint's primary power line was attached to the poles at issue using skip-span construction, which means the line is attached to every other pole. The power line was attached to Pole #2 and skipped Pole #4 adjacent to the east. While installing the new telephone line, Newman was using a chain hoist attached to Pole #2. As Newman grabbed the chain hoist to let it loose, he "tugged it one good time." Just then, the primary power line attached to the top of Pole #2 came in contact with a grounded bolt on the top of Pole #4. This contact caused "excessive current to flow," which blew the fuse on Pole #2. When the fuse blew, a piece of metal flew off and impaled Newman's right hand.

According to Newman, this contact occurred because the sag in the power line above Pole #4 was below the minimum vertical clearance height of two and a half feet as provided in the National Electric Safety Code, which presented an unreasonably dangerous condition. Newman filed suit against CenterPoint. In his live petition, he alleged that he suffered severe personal injuries as a result of CenterPoint's breach of its duties sounding in general negligence and "additionally or in the alternative" premises liability. With regard to premises liability based on a dangerous condition, Newman alleged that he was an invitee or alternatively a licensee on the premises occupied by CenterPoint. Newman also alleged that CenterPoint's acts and omissions amounted to gross negligence pursuant to section 41.001(11) of the Texas Civil Practice and Remedies Code.

The trial court granted CenterPoint's motion for directed verdict with regard to Newman's claim of gross negligence under section 41.001.¹ With regard to Newman's negligence claim, Newman requested a jury question based on general negligence as to CenterPoint.² Newman also requested a jury question based on the negligent activity of CenterPoint as the premises owner.³ If there was no negligent activity by CenterPoint as the premises owner, Newman requested a jury question asking whether, on the occasion in question, Newman was an invitee or alicensee on the premises as to CenterPoint.⁴ Newman further requested a jury question based on the duty of care a premises owner owes to an invitee.⁵ The trial court refused all of these requests.

Question 1 of the jury charge asked: "Did the negligence, if any, of the persons or entities named below proximately cause the occurrence in question?" Question 1 named CenterPoint, Newman, and designated responsible third parties Max-Tel and AT&T. In pertinent part, question 1 provided:

With respect to the condition of the premises, CenterPoint[] was negligent if:

1. The condition posed an unreasonable risk of harm, and

2. CenterPoint[] had actual knowledge of the danger, and;

3. Shannon Newman did not have actual knowledge of the danger; and4. CenterPoint[] failed to exercise ordinary care to protect Shannon Newman from the danger, by both failing to adequately warn Shannon Newman of the condition and failing to make that condition reasonably safe.

. . .

"Ordinary care" when used with respect to the conduct of CenterPoint[] as an owner of a premises, means that degree of care that would be used by an owner of ordinary prudence under the same or similar circumstances.

. . .

"Proximate cause," means a cause that was a substantial factor in bringing about an occurrence, and without which cause such occurrence would not have occurred. In order to be a proximate cause, the act or omission complained of must be such that a person or entity using ordinary care would have foreseen that the occurrence, or some similar occurrence, might reasonably result therefrom. There may be more than one proximate cause of an occurrence.

The jury answered "No" as to all the named parties. Question 2 asked: "Was CenterPoint[]'s gross negligence, if any, a proximate cause of the occurrence in question?" Question 2 provided:

CenterPoint[] was grossly negligent, as that term is used in this Question, with respect to the condition of its premises if—

1. the condition of its premises posed an unreasonable risk of harm, and

2. CenterPoint[] both failed to adequately warn Shannon Newman of the danger and failed to make its condition reasonably safe, and

3. CenterPoint[]'s conduct was more than momentary thoughtlessness, inadvertence, or error of judgment. In other words, CenterPoint[] must have either known or been substantially certain that the result or a similar result would occur, or it must have displayed such an entire want of care as to establish that the act or omission was the result of actual conscious indifference to the rights, safety, or welfare of the persons affected by it.

The jury answered "No." The jury did not reach the charged questions on percentage of responsibility and damages.

The trial court rendered final judgment on the jury's verdict in CenterPoint's favor. Newman filed a motion for new trial, which was overruled by operation of law. Newman timely appealed.

II. ANALYSIS

A. Jury-charge issues

1. Standard of review

Texas Rule of Civil Procedure 278, entitled "Submission of Questions, Definitions, and Instructions," requires a trial court to submit questions, instructions, and definitions raised by the written pleadings and the evidence. Tex. R. Civ. P. 278; 4901 Main, Inc. v. TAS Auto., Inc., 187 S.W.3d 627, 631 (Tex. App.—Houston [14th Dist.] 2006, no pet.). We review a trial court's jury-charge rulings for an abuse of discretion. Sw. Energy Prod. Co. v. Berry-Helfand, 491 S.W.3d 699, 727 (Tex. 2016); TAS Auto., Inc., 187 S.W.3d at 630; see In re V.L.K., 24 S.W.3d 338, 341 (Tex. 2000) ("The trial court has considerable discretion to determine necessary and proper jury instructions."); Hatfield v. Solomon, 316 S.W.3d 50, 57 (Tex. App.—Houston [14th Dist.] 2010, no pet.) ("[T]he trial court enjoys broad discretion so long as the charge is legally correct."). A trial court abuses its discretion if it acts without reference to any guiding rules or principles. Tex. Dep't of Human Servs. v. E.B., 802 S.W.2d 647, 649 (Tex. 1990).

If the trial court abused its discretion, we will reverse only if the error was harmful. Sw. Energy Prod., 491 S.W.3d at 728. A charge error harms the appellant only if it "probably caused the rendition of an improper judgment" or "probably prevented the appellant from properly presenting the case" on appeal.See Tex. R. App. P. 44.1(a); Thota v. Young, 366 S.W.3d 678, 687 (Tex. 2012).

2. Newman's requested negligence questions

The trial court refused to submit Newman's requested questions on general negligence and negligent activity by a premises owner. In his first issue, Newman contends that he was entitled to these "controlling" jury questions because CenterPoint owed him a duty sounding in general negligence and, failing that, a duty of care owed by a premises owner engaging in contemporaneous activity. We consider the facts surrounding the occurrence in question to determine the question of law of whether a particular duty exists. See Greater Houston Transp. Co. v. Phillips, 801 S.W.2d 523, 525 (Tex. 1990); Jackson v. NAACP Houston Branch, No. 14-15-00507-CV, 2016 WL 4922453, at *10 (Tex. App.—Houston [14th Dist.] Sept. 15, 2016, pet. denied) (mem. op.).

a. General negligence

First, Newman argues that CenterPoint as an electricity provider owed a duty of ordinary care to him with regard to its electrical system, including poles and wires, and the provision of electricity. For this proposition, Newman primarily relies on the intermediate appellate court case Houston Lighting & Power Co. v. Brooks, 319 S.W.2d 427, 431 (Tex. Civ. App.—Houston 1958), rev'd, 336 S.W.2d 603 (Tex. 1960). Brooks involved a suit for damages for personal injuries stemming from electrical contact between the aluminum handle of the mop the plaintiff was using to finish a cement floor and a high-voltage transmission line owned and maintained by electrical provider HL&P. At the time of the incident, the plaintiff was employed by a company working on a hospital construction project. The appeals court affirmed the trial court's judgment based on...