Opinion
No. 05-10-01357-CV
08-02-2012
TISHA BILLELO AND DANIELLE BILLELO, Appellants v. GRAYSON-COLLIN ELECTRIC COOPERATIVE, INC., Appellee
AFFIRM; Opinion Filed August 2, 2012.
On Appeal from the 429th Judicial District Court
Collin County, Texas
Trial Court Cause No. 429-00831-2008
MEMORANDUM OPINION
Before Justices Moseley, FitzGerald, and Richter
Opinion By Justice Moseley
This is an appeal from a summary judgement in favor of appellee Grayson-Collin Electric Cooperative, Inc. (GCEC). We must determine whether appellants Tisha and Danielle Billelo, plaintiffs below, presented summary judgment evidence raising an issue of fact as to whether GCEC retained such control over the work of its independent contractor, Techline Services, L.P. (Techline), as to subject it to vicarious liability based on Techline's acts or omissions. Because we conclude the Billelos failed to present such evidence, we affirm the trial court's summary judgment. The background and facts of the case are well-known to the parties; thus, we do not recite them here in detail. Because all dispositive issues are settled in law, we issue this memorandum opinion. Tex. R. App. P. 47.2(a), 47.4. It is undisputed that GCEC, an electric utility company, contracted with Techline, a utility subcontractor, to install electric utility lines. The specific utility pole at issue was located along Highway 380 in Collin County, Texas, directly at a cut in the fence line separating the roadway from the property of SLC McKinney Partners, L.P. Danielle Billelo and her mother Tisha alleged that a vehicle Danielle Billelo was riding in struck a cow in the roadway near the utility pole. Danielle Billelo sustained injuries.
The Billelos alleged Techline cut SLC McKinney's fence while installing the utility pole for GCEC, a cow escaped through the cut and on to Highway 380, and the car in which Danielle Billelo was riding struck the cow, causing her injuries. The Billelos alleged both GCEC and Techline were negligent and breached a duty of care by not repairing the cut-which resulted in the cow escaping on to the roadway and the Billelos' injury. GCEC filed a combined traditional and no-evidence summary judgment motion in the trial court, challenging each element of the Billelos' claim against it. The trial court granted the motion and entered final judgment.
The Billelos also sued Techline Services, L.P., SLC McKinney Partners, L.P., and the City of McKinney. The trial court granted summary judgment in favor of each of these defendants and severed each case for the purposes of appeal. See Billelo v. Techline Servs., L.P., -S.W.3d-, No. 05-10-1113-CV, 2012 WL 2049539 (Tex. App.-Dallas June 7, 2012, no pet.); Billelo v. SLC McKinney Partners, L.P., 336 S.W.3d 852 (Tex. App.-Dallas 2011, no pet.); see generally Billelo v. City of McKinney, No. 05-11-1696-CV, 2012 WL 759062 (Tex. App.-Dallas Mar. 7, 2012, no pet.) (mem. op., not designated for publication) (granting parties' motion to dismiss appeal).
On appeal, the Billelos raise two issues, contending summary judgment was improper because their evidence raised a genuine issue of fact as to whether: (1) GCEC owed a duty of care to Danielle Billelo, and (2) GCEC breached its duty to Danielle Billelo and her injuries proximately resulted from the breach.
We review the trial court's summary judgment de novo. Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 156 (Tex. 2004). When the motion for summary judgment presents both no-evidence and traditional grounds, we first review the propriety of the summary judgment under no-evidence standards. See Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004). When a party moves for no-evidence summary judgment under rule 166a(i), asserting that no evidence exists as to one or more elements of a claim on which the nonmovant would have the burden of proof at trial, the burden is on the nonmovant to present enough evidence to raise a genuine issue of material fact on each of the challenged elements. See Tex. R. Civ. P. 166a(i); Gen. Mills Rest., Inc. v. Tex. Wings, Inc., 12 S.W.3d 827, 832 (Tex. App.-Dallas 2000, no pet.). If the nonmovant fails to raise such an issue on every element, the trial judge must grant the motion. See Tex. Wings, 12 S.W.3d at 832.
A cause of action for negligence in Texas requires three elements: a legal duty owed by one person to another, a breach of that duty, and damages proximately caused by the breach. D Hous., Inc. v. Love, 92 S.W.3d 450, 454 (Tex. 2002). Thus, the Billelos must have presented enough evidence to raise a genuine issue of material fact for each of these elements. We first address whether the Billelos raised a genuine issue of material fact as to whether GCEC owed a duty to them.
Generally, an employer has no duty to ensure an independent contractor performs its work in a safe manner. Fifth Club, Inc. v. Ramirez, 196 S.W.3d 788, 791 (Tex. 2006); Randall Noe Chrysler Dodge, L.L.P. v Oakley Tire Co., 308 S.W.3d 542, 545 (Tex. App.-Dallas 2010, pet. denied) (citing Ramirez). However, an employer can be held vicariously liable for the acts or omissions of an independent contractor if the employer retains some control over the manner in which the contractor performs the work that causes the injury. See Ramirez, 196 S.W.3d at 791(citing Restatement (Second) of Torts § 414, cmt. A (1965)). Such a right of control, however,
requires more than a general right to order the work stopped or resumed, to inspect its progress or to receive reports, to make suggestions or recommendations which need not necessarily be followed, or to prescribe alterations and deviations. [Ramirez, 196 S.W.3d] at 791-92; Koch Refining Co. v. Chapa, 11 S.W.3d 153, 155 (Tex.1999). Such a general right is usually reserved to employers, but it does not mean that the contractor is controlled as to his methods of work or as to operative detail. Ramirez, 196 S.W.3d at 792; Chapa, 11 S.W.3d at 155. There must be such a retention of a right of supervision that the contractor is not entirely free to do the work in his own way. Ramirez, 196 S.W.3d at 792; Chapa, 11 S.W.3d at 155. Employers can direct when and where an independent contractor does the work and can request information and reports about the work, but an employer may become liable for the independent contractor's tortious acts only if the employer controls the details or methods of the independent contractor's work to such an extent that the contractor cannot perform the work as it chooses. Ramirez, 196 S.W.3d at 792; Chapa, 11 S.W.3d at 155.Randall Noe, 308 S.W.3d at 546.
For the Billelos to survive the summary judgment motion, they had to provide evidence raising an genuine issue of fact as to whether GCEC actually exercised or contractually retained a right of control over Techline's installation of the electric utility pole at the cut fence, and therefore had a duty to exercise reasonable care in connection with Techline's work.
The Billelos contend their summary judgment evidence was sufficient. They presented deposition testimony that GCEC mapped out where the new electric utility poles should be installed and what modifications should be made to the electric components on existing poles. They also presented testimony showing communication on various aspects of the job, such as how to "feed the lines," and how the "switching" would be accomplished.
All of these actions, however, are not evidence exhibiting the level of control or supervision required to establish actual control sufficient for liability. See Ramirez, 196 S.W.3d at 792; Randall Noe, 308 S.W.3d at 546. Electric utility lines are technical in nature and each installation is designed to accommodate the unique needs of a particular area and how the individual units will fit into the greater grid system. A utility company cannot merely instruct a contractor to go build a line. The evidence indicates GCEC instructed Techline where to place the line and how it should perform in conjunction with the other electric lines. There is no evidence Techline was not free to perform the work in whichever method, manner, and safety levels it desired. See Ramirez, 196 S.W.3d at 792; Randall Noe, 308 S.W.3d at 546. To communicate about how the lines would "feed" does not exercise any supervision or control over how safely or negligently the work of installing those lines would be done. Moreover, the Billelos offered no evidence that any GCEC representative was on- site to exercise supervision during the work. There must be some level of control over the manner of work to impose general contractor liability, and the Billelos have failed to adduce evidence showing this. See Ramirez, 196 S.W.3d at 792; Randall Noe, 308 S.W.3d at 546.
The Billelos additionally argue GCEC exercised direct control over the safety hazards on the job site by inspecting any hazards after the work was completed. In Chapa, a safety inspector was present on-site to tell the independent contractor's employees if they were doing "something wrong" and to remind them to do the job in a safe manner. Chapa, 11 S.W.3d at 156. The Texas Supreme Court held these actions were not sufficient to establish the independent contractor and its employees were not free to do the work in their own way or that Koch controlled the method of work or its operative details. Id. An inspection by GCEC following the conclusion of work similarly does not show it exercised any control over Techline's work. Techline performed its job independently, and the Billelos have not adduced any evidence to show that GCEC would be responsible for fixing any problems found. As in Koch, the possibility of GCEC inspecting and correcting Techline's work after it finished the job does not demonstrate control. Moreover, the Billelos have not provided evidence that such instruction occurred.
We conclude the Billelos failed to raise a genuine issue of fact as to whether GCEC exercised or retained the level of control over Techline required to create liability for Techline's acts or omissions. See Ramirez, 196 S.W.3d at 791-92; Chapa, 11 S.W.3d at 153, 155; Randall Noe, 308 S.W.3d at 546. Accordingly, the Billelos did not carry their burden to avoid a no evidence summary judgment on this basis.
We overrule the Billelos' first issue. We need not address any remaining grounds for the summary judgment. See Tate v. Goins, Underkofler, Crawford & Langdon, 24 S.W.3d 627, 632 (Tex. App.-Dallas 2000, pet. denied) ("We uphold a summary judgment on any ground that is supported by the evidence and pleadings."). We affirm the trial court's judgment.
JIM MOSELEY
JUSTICE
101357F.P05
Court of Appeals Fifth District of Texas at Dallas JUDGMENT
TISHA BILLELO AND DANIELLE BILLELO, Appellants
V.
GRAYSON-COLLIN ELECTRIC COOPERATIVE, INC., Appellee
No. 05-10-01357-CV
Appeal from the 429th Judicial District Court of Collin County, Texas. (Tr.Ct.No. Cause No. 429-00831-2008).
Opinion delivered by Justice Moseley, Justices Morris and Myers participating.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered August 2, 2012.
JIM MOSELEY
JUSTICE