Opinion
05-22-00709-CV
01-23-2024
MONTICELLO ASSET MANAGEMENT, INC., Appellant v. JACKSON WELLS, DEVIN SCHARES, AND ELIZABETH RUSSELL, INDIVIDUALLY AND AS REPRESENTATIVE OF THE ESTATE OF KILEY RUSSELL, DECEASED, AND ON BEHALF OF K.R. AND Z.R., MINOR CHILDREN, Appellees
On Appeal from the 59th Judicial District Court Grayson County, Texas Trial Court Cause No. CV-18-0027
Before Justices Partida-Kipness, Reichek, and Miskel
MEMORANDUM OPINION
Monticello Asset Management, Inc. appeals a judgment following a jury trial awarding personal injury damages to Jackson Wells, Devin Schares, and Elizabeth Russell, individually and as representative of the estate of Kiley Russell, deceased, and on behalf of her minor children, K.R. and Z.R. Because we conclude Monticello owed no duty as a matter of law to Jackson, Devin, and Kiley with respect to the incident at issue, we reverse the trial court's judgment and render judgment that appellees take nothing by their claims.
Background
The facts giving rise to the tragic injuries and death in this case are largely undisputed. Monticello manages approximately thirty apartment complexes, including River Ranch Apartments in Sherman, Texas. In late 2016, Monticello began renovations to the entrance of River Ranch. Ricardo Villalobos, a project manager for Monticello, was involved in the construction process. During the course of the renovations, Villalobos realized that a pre-existing flagpole would block the new entrance to the complex and he decided to move the pole.
The flagpole at issue was thirty-five feet tall and made of metal. Because of the size of the pole and its proximity to overhead power lines, Villalobos enlisted the help of six other men to remove the flagpole and reinstall it in a different place. The men used a skid steer and multiple ropes to hold the pole steady. Villalobos said these precautions were necessary because once the pole was lifted out of the ground, it would be difficult to balance, and they wanted to make sure it did not touch the power lines.
The flagpole was eventually moved to a new location somewhat farther from the power lines, but still close enough that, if it fell, it could come into contact with the lines. The men inserted the pole into a metal sleeve in the ground. Villalobos stated he intended the installation to be permanent even though there was nothing locking the pole into place. After the flagpole was inserted in the ground, Villalobos stated they had no problems with the pole shifting in the sleeve. Eddy Higgins, a maintenance worker at River Ranch, stated they had no issues with the flagpole.
Several months later, a water valve leak was discovered on River Ranch's property. Higgins testified two different plumbing companies bid on performing the repair work. The first company stated it would require River Ranch to move the flagpole before it began repairing the water valve. The company did not give a reason why it wanted the pole moved.
The second company to submit a bid was Red River Plumbing. Cody Russell, one of the owners of Red River, went to the apartment complex to inspect the site and determine if there were any obstacles to performing the work. Cody stated he saw the flagpole and the power lines and did not think they posed a problem. He also stated he did not believe the flagpole needed to be moved because it was not located where the workers would be digging to fix the valve. No one informed Cody that another company wanted the flagpole moved. Red River was ultimately hired to perform the work.
On May 3, 2017, Jackson, Devin, and Cody's brother, Kiley, arrived at the apartment complex to begin the valve repair work. Red River did not ask for the power lines to be de-energized. Cody stated he was not aware of any possibility that Jackson, Devin, and Kiley would try to move the flagpole because it was not necessary for the work they were hired to do. In addition, Cody stated the pole was "long [and] heavy" and he "couldn't imagine anyone pick[ing] the pole up and try[ing] to manhandle it." He agreed that trying to move the flag pole would be both unreasonable and unsafe.
At some point that morning, the men became worried they were going to "mess up" the flagpole while they were working, and they did not want to "get in trouble." To prevent this, Kiley made the decision to move the flagpole away from the work site. The men did not contact River Ranch or Monticello before endeavoring to move the pole by themselves. As they lifted the pole out of the ground, it tipped over and came into contact with the power lines. All three men were electrocuted. Jackson and Devin sustained severe injuries. Kiley was killed.
Appellees brought this suit generally alleging that Monticello was negligent in (1) placing the flagpole too close to the power lines, (2) failing to permanently secure the flagpole, (3) failing to make safe a condition on the premises that it knew or should have known created an unreasonable risk of harm, and (4) failing to warn Red River's employees of the dangerous condition on the property. Monticello moved for summary judgment contending it owed no duty as a matter of law because the proximity of the power lines to the flag pole was open and obvious. The trial court denied the motion.
At trial, Jackson and Devin acknowledged that pictures of the accident site showed nothing that would have obscured their view of the power lines or the proximity of the lines to the flagpole. They also acknowledged it was clear the pole was taller than the height of the lines. Both men stated they understood that working around power lines could be hazardous and, although they knew it was dangerous for something to come into contact with energized power lines, they made no attempt to have the lines de-energized before trying to move the flagpole. Jackson, Devin, and Cody all testified the repair work was controlled solely by Red River, and Monticello gave no instructions regarding how the work was to be done.
Monticello moved for a directed verdict arguing, again, that the alleged dangerous condition on the property was open and obvious. Additionally, it argued appellees failed to provide any evidence that the placement of the flagpole near the power lines was, by itself, an unreasonably dangerous condition. Monticello contended the danger was created by the workers' attempt to move the pole rather than its location or the manner in which it was installed. The trial court denied the motion.
The jury returned a verdict finding Monticello 50% responsible for the incident, Devin and Jackson each 2% responsible, Kiley 25% responsible, and Red River 21% responsible. Damages in varying amounts were awarded to appellees. Monticello brought this appeal.
Although Monticello brings six issues, the arguments in support of each issue are largely intertwined. Because of this, we address all the issues as a whole.
When a plaintiff alleges injury resulting from a physical condition or defect on the defendant's premises, premises liability principles apply. United Scaffolding, Inc. v. Levine, 537 S.W.3d 463, 472 (Tex. 2017). The threshold question in a premises liability case is whether a duty is owed to the injured person. Hillis v. McCall, 602 S.W.3d 436, 440 (Tex. 2020). "The existence of a duty is a question of law for the court to decide from the facts surrounding the occurrence in question." Walker v. Harris, 924 S.W.2d 375, 377 (Tex. 1996).
The duty a premises owner or occupier owes to the plaintiff depends on the plaintiff's status at the time of the incident. W. Invs., Inc. v. Urena, 162 S.W.3d 547, 550 (Tex. 2005). An employee of an independent contractor is an invitee. Coastal Marine Serv. of Tex., Inc. v. Lawrence, 988 S.W.2d 223, 224-25 (Tex. 1999) (per curiam). When the invitee is an independent contractor's employee, there are two types of premises defects that may give rise to liability: (1) defects existing on the premises when the employee entered, and (2) defects created by the independent contractor's work activity. Id. at 225. The first type of defect includes "[o]nly concealed hazards-dangerous in their own right and independent of action by another." Id. With respect to the second type of defect-a condition arising as a result of the independent contractor's work activity-the premises occupier normally owes no duty to the independent contractor's employees because it generally has no duty to ensure that an independent contractor performs its work in a safe manner. Id. A limited exception has been recognized where the premises occupier retains control over the "operative details" of the independent contractor's work. Torres v. Pasadena Refin. Sys., Inc., No. 01-18-00638-CV, 2022 WL 17684333, at *7 (Tex. App.-Houston [1st Dist.] Dec. 15, 2022, no pet.).
The evidence in this case shows, and appellees concede in their brief on appeal, that "[a]s long as the flagpole remained in its sleeve in the ground, [a]ppellees were in no danger from the power lines." Accordingly, the proximity of the flagpole to the power lines, by itself, did not constitute a premises defect. See McCaughtry v. Barwood Homes Ass'n, 981 S.W.2d 325, 333 (Tex. App.-Houston [14th Dist.] 1998, pet. denied) (proximity of high voltage power lines to light standard not premises defect); Bryant v. Gulf Oil Corp., 694 S.W.2d 443, 446 (Tex. App.-Amarillo 1985, writ ref'd n.r.e.) (power line not dangerous until invitee caused pole to come into contact with it). It was only when the Red River employees decided to move the pole that it became a hazard.
There is no dispute the power lines were clearly visible, and Jackson testified no one attempted to have the lines de-energized before they tried to move the pole. See Shell Oil Co. v. Songer, 710 S.W.2d 615, 620 (Tex. App.-Houston [1st Dist.] 1986, writ ref'd n.r.e.) (premises owner not required to anticipate methods of contractor's work and de-activate power lines). Both Jackson and Devin stated they understood the danger associated with coming into contact with energized power lines. Although Jackson testified they had no real awareness of the proximity of the power lines as they were trying to move the flagpole, "the fact that [they] were not paying attention did not change the presence of the highline from a reasonably apparent condition into a dangerous condition about which the occupier of the premises had a duty to warn." Corpus v. K-J Oil Co., 720 S.W.2d 672, 675 (Tex. App.-Austin 1986, writ ref'd n.r.e.); see also Martin v. Gehan Homes Ltd., No. 03-06-00584-CV, 2008 WL 2309265, at *2 (Tex. App.-Austin June 4, 2008, no pet.) (mem. op.) (whether condition is open and obvious not controlled by whether invitee had personal, subjective knowledge or awareness of it).
Relying on Los Compadres Pescadores, L.L.C. v. Valdez, 622 S.W.3d 771 (Tex. 2021) and Sun Oil Co. v. Massey, 594 S.W.2d 125 (Tex. App.-Houston [1st Dist.] 1979, writ ref'd n.r.e.), the dissent concludes the "danger of moving the flagpole was not open and obvious as a matter of law." In both Los Compadres and Sun Oil, the plaintiffs believed the power lines had been de-energized, a critical circumstance lacking in this case.
Because there was no dangerous condition on the property existing independent of the actions of the Red River employees, Monticello did not owe a duty to the men unless it retained some right of control over the work they performed. See Coastal Marine, 988 S.W.2d at 225-26; see also Martin v. ECO Servs. Operations, LLC, No. 01-17-00293-CV, 2018 WL 1003384, at *3 (Tex. App.-Houston [1st Dist.] Feb. 22, 2018, no pet.) (mem. op.) (where work activity was indispensable to injury claim, no duty absent evidence of control). Appellees did not allege, and presented no evidence to show, that Monticello exercised any level of control over the repair work. It was undisputed that Red River retained full control over how the work was to be performed.
Appellees argue Monticello owed a duty to either move the flagpole or warn the Red River employees that the flagpole "needed to be moved to access the water main." First, there are no facts in evidence to support the assertion that the flagpole needed to be moved to access the water main. Appellees point only to Higgins's testimony that the first plumbing company to bid on the repair job stated it would require Monticello to move the flagpole before work began. Higgins further testified, however, that the first company gave no reason why it wanted the pole moved.
Cody Russell testified "the flagpole was never to be moved," and moving the pole was not necessary for Red River to do the job it was hired to do. For this reason, moving the pole was not a factor in Red River's bid to do the repair work. Jackson testified Kiley decided to move the pole because it was close to where they were digging and they were concerned the pole would be damaged. No one testified the pole was an obstruction. In short, there is nothing in the record to indicate that moving the pole was necessary for the plumbing repair work to be accomplished.
This evidence disproves the dissent's premise that Monticello "knew the plumbing work could require the flagpole to be moved."
Even if we were to conclude the evidence showed Monticello was aware of the possibility that the flagpole might need to be moved at some point in the repair process, there is no evidence to suggest Monticello should have anticipated that Red River's employees would attempt to perform this task themselves, or that it knew or should have known the pole could not be moved safely. The record, in fact, shows the opposite. Only a few months before the accident occurred, the pole was moved without incident by River Ranch's employees. This shows the pole could be moved safely with the proper precautions. Where the evidence shows that a task can be performed safely, and the invitee could have taken measures to avoid the risk that caused the injury, a premises owner owes no duty. See Martin, 2018 WL 1003384, at *3. This is because an owner or occupier of a premises may assume that an independent contractor will take proper care and precautions to have his employees perform in a safe and workmanlike manner. Corpus, 720 S.W.2d at 674.
Appellees also suggest the fact that the flag pole was unsecured in the sleeve in the ground gave the impression it could be moved safely by "three strong adults." Again, there is no evidence in the record to support this argument. The only testimony concerning the actual or apparent difficulty in moving the flagpole came from Monticello's project manager, Villalobos, and Cody Russell. Villalobos testified that, due to the size of the pole, he knew it would not be possible to balance it once it was pulled out of the ground without the use of ropes and a skid steer. Cody testified he believed it was unreasonable and unsafe for Red River's employees to try to lift the pole out of the ground. He further testified it was obvious to him that it would be dangerous for the men to try to move the flagpole by themselves because the pole was too long and heavy. The fact that Red River's employees misjudged their ability to handle a thirty-five foot tall metal pole does not transform the flagpole into an inherently dangerous hazard about which Monticello had a duty to warn. See id. at 675; see also Greene v. Watkins, No. 12-21-00119-CV, 2022 WL 2182228, at *4 (Tex. App.-Tyler June 16, 2022, no pet.) (mem. op.) (no duty to warn invitee of obvious risk of lifting fence post with concrete attached); Durbin v. Culberson Cnty., 132 S.W.3d 650, 660-61 (Tex. App.-El Paso 2004, no pet.) (light pole not inherently dangerous independent of work activity).
The dissent claims, "Monticello knew the flagpole was not a standard flagpole that could be easily moved." Nothing in the record suggests the flagpole at issue was not "standard" or that movement of the pole presented challenges beyond those inherent in moving a thirty-five foot tall metal pole. Cody Russell testified he independently recognized, as Villalobos did, the danger of moving the flagpole without proper precautions. There is no evidence that Monticello possessed any specialized knowledge regarding the nature of the pole.
The record affirmatively shows that Red River's employees did not inform anyone at River Ranch or Monticello that they were going to move the flagpole before they attempted to do so. Appellees' theory of liability would require premises owners and occupiers to anticipate the methods and procedures by which an independent contractor will perform work and to furnish the contractor's employees with appropriate safety equipment to guard against hazards arising from that work. Jenkins v. Fritzler Dev. Corp., 580 S.W.2d 63, 65 (Tex. App.-Houston [1st Dist.] 1979, writ ref'd n.r.e.). Appellees would further impose a duty on premises owners and occupiers to supervise and police the contractor's employees to ensure that safety precautions were taken. See id. Absent evidence of control over the work being done, the imposition of such duties has been repeatedly rejected. Id.; see also McCaughtry, 981 S.W.2d at 333-34.
The families in this case suffered horrible losses. But Texas law strictly proscribes the liability of premises owners and occupiers for hazards created by the work activity of an independent contractor's employees over which they had no control. Coastal Marine, 988 S.W.2d at 225-26. Based on the foregoing, we reverse the trial court's judgment and render judgment that appellees take nothing by their claims.
JUDGMENT
Reichek. Justices Partida-Kipness and Miskel participating.
In accordance with this Court's opinion of this date, the judgment of the trial court is REVERSED and judgment is RENDERED that:
JACKSON WELLS, DEVIN SCHARES, AND ELIZABETH RUSSELL INDIVIDUALLY AND AS REPRESENTATIVE OF THE ESTATE OF KILEY RUSSELL, DECEASED, AND ON BEHALF OF K.R. AND Z.R., MINOR CHILDREN, take nothing by their claims against MONTICELLO ASSET MANAGEMENT, INC.
It is ORDERED that appellant MONTICELLO ASSET MANAGEMENT, INC. recover its costs of this appeal from appellees JACKSON WELLS, DEVIN SCHARES, AND ELIZABETH RUSSELL, INDIVIDUALLY AND AS REPRESENTATIVE OF THE ESTATE OF KILEY RUSSELL, DECEASED, AND ON BEHALF OF K.R. AND Z.R., MINOR CHILDREN.
DISSENTING OPINION
ROBBIE PARTIDA-KIPNESS, JUSTICE
The jury charge instructed the jury to find Monticello Asset Management, Inc. (Monticello) negligent with respect to the condition of the premises if (1) the condition posed an unreasonable risk of harm, (2) Monticello knew or reasonably should have known of the danger, and (3) Monticello failed to exercise ordinary care to protect Kiley Russell, Jackson Wells, and Devin Schares by both failing to adequately warn them of the condition and failing to make that condition reasonably safe. The jury found Monticello negligent and fifty percent responsible for the incident. The jury attributed the remaining responsibility to Schares, Wells, Russell, and Red River Plumbing. My colleagues in the majority, however, disregard the jury's findings and conclude Monticello's responsibility should be zero because it had no control over the work activities of Schares, Wells, and Russell, those activities alone created the hazard that caused the injuries, and, as a result, Monticello owed the men no duty to protect them from the hazards. Because the majority mischaracterizes the dangerous condition and, as a result, overturns a jury verdict supported by legally and factually sufficient evidence, I respectfully dissent.
The crux of my disagreement with the majority opinion is how it characterizes the dangerous condition. Monticello maintains the alleged premises defects were the presence of power lines and their proximity to the flagpole, both of which were purportedly open and obvious. Monticello further argues appellees' decision to allow three men to move the flagpole was the only negligent conduct displayed and "[t]he flagpole became unreasonably dangerous only when the crew decided to move it without any safety precautions." According to Monticello, it owed no duty to foresee the crew's negligence and "can hardly be blamed for not predicting the workers would decide to move the pole [or . . .] for the workers' failure to appreciate an open and obvious danger and failure to use safety measures once they decided to move the pole." The majority agreed, adopted Monticello's narrow characterization of the premises defect, and concluded appellees' decision to move the flagpole alone created a dangerous condition on the property. Because Monticello retained no right of control over appellees' work, the majority holds Monticello cannot be held liable for the hazards created by appellees.
I believe Monticello's description of the premises defect is too narrow and led the majority to an incorrect analysis and result. Appellees characterize the dangerous condition as "the weight and instability of the flagpole," and more particularly Monticello's knowledge "that the flagpole would need to be moved, that the flagpole was deceptively heavy and difficult to move, and that it required extensive manpower and heavy machinery, which Red River did not have and was not told to provide." I would adopt appellees' characterization of the dangerous condition on the property and conclude the danger of moving the flagpole was not open and obvious as a matter of law.
As the Texas Supreme Court explained in Los Compadres Pescadores, L.L.C. v. Valdez, although the presence of a power line is an open and obvious condition, that presence does not mean a dangerous condition created by the power lines was an open and obvious condition. 622 S.W.3d 771, 790 (Tex. 2021) (holding the fact the line was energized and, therefore, created a dangerous condition was not open and obvious). Rather, the location of the power lines is only one component in the open and obvious test. See id.; see also Sun Oil Co. v. Masset, 594 S.W.2d 125, 128 (Tex. App.-Houston [1st Dist.] 1979, writ ref'd n.r.e.) ("Under the circumstances, the hazard posed by the live power lines was not obvious despite their visibility, since the location of the lines was only one component of the danger, the other being that they were charged with electricity."). The second component courts must consider is whether the power line poses a risk for the activity being conducted such that the danger is "so open and obvious that as a matter of law [the plaintiff] will be charged with knowledge and appreciation thereof." Los Compadres Pescadores, 622 S.W.3d at 788 (quoting Parker v. Highland Park, Inc., 565 S.W.2d 512, 516 (Tex. 1978)); see also Sun Oil, 594 S.W.2d at 128.
Here, I would conclude although the power lines were visible, the danger posed by the power lines and their proximity to the flagpole was not obvious because appellees were not working on the power lines and could not anticipate the danger in moving the flagpole. Further, I would conclude appellees' decision to move the flagpole did not create the dangerous condition. The danger lay with the flagpole itself; more particularly, the location, weight, and unwieldy nature of the flagpole. Monticello knew the flagpole was not a standard flagpole that could be easily moved. On the contrary, Monticello knew from experience it took six people, three ropes, and a skid steer to move the flagpole because the flagpole was heavy, unwieldy, and unsecured. Further, based on a prior bid for the job from Pruitt Plumbing, Monticello knew the plumbing work could require the flagpole to be moved. In the prior bid, Pruitt told Monticello they would not do the job unless Monticello removed the flagpole. Red River Plumbing, appellees' employer, provided Monticello a less expensive bid and did not mention the flagpole or require Monticello to move it. Yet, Monticello did not warn appellees of either the potential need to move the pole or the safety precautions necessary to move the pole safely. Instead, Monticello accepted the cheaper bid and stayed silent regarding the hidden danger posed by the flagpole.
Appellees maintain the danger was created by Monticello's placement of the flagpole and silence concerning the safety procedures necessary to move the flagpole. The jury accepted appellees' characterization of the dangerous condition and proportioned responsibility accordingly. The majority reverses that finding and the judgment by concluding no premises defect existed at all and places 100% responsibility on appellees for moving the flagpole. I would conclude the jury's findings were supported by legally and factually sufficient evidence, Monticello owed appellees a duty to warn as a matter of law, and I would affirm the judgment. Because the majority does not, I respectfully dissent.