Opinion
No. 04-05-00132-CV
Delivered and Filed: February 8, 2006.
Appeal from the 285th Judicial District Court, Bexar County, Texas, Trial Court No. 2000-CI-13209, Honorable David Berchelmann, Judge Presiding.
Affirmed.
Sitting: Sarah B. DUNCAN, Justice, Karen ANGELINI, Justice, Sandee Bryan MARION, Justice.
MEMORANDUM OPINION
On September 8, 2000, Michael Rodriguez brought a negligence cause of action against the City of San Antonio by and through the City Public Service Board of San Antonio ("CPS"). Rodriguez alleged that he was injured because CPS did not properly or safely provide electrical services. Rodriguez later filed for bankruptcy, and Helen Schwartz, the chapter 7 trustee, joined the suit. On March 27, 2002, CPS moved for a no-evidence summary judgment, which the trial court granted. Rodriguez appeals, alleging that (1) expert testimony is not required to prove CPS's negligence because the alleged negligent act is within the common experience of the ordinary layperson, and (2) expert testimony is not necessary because the doctrine of res ipsa loquitur applies.
Background
According to Rodriguez, on August 23, 1999, he was visiting Manuel Arocha at Arocha's residence. When the two men heard noise coming from outside, they went to Arocha's backyard to investigate. Once outside, they discovered that the wooden cross arm, which held the electrical supply line running down the alley, had burned through. The electrical line had dislodged from the pole, had fallen on the ground, and had come into contact with a chain link fence in Arocha's backyard.
Rodriguez alleges that CPS allowed dust, dirt, and debris to accumulate on its electrical pole and wires, which generated heat and ultimately caused a cross-arm on the utility pole to ignite, burn, and fall.
Allegedly, when the electrical wires fell, a circuit breaker within CPS's electrical distribution system tripped and stopped the flow of electricity running through the wires. After the breaker unsuccessfully tried to re-close itself automatically, one of CPS's employees twice reset the breaker manually from his control panel miles away from the incident site, closing, and re-energizing the damaged circuit, which caused the electricity to flow again through the wires. Allegedly, the CPS employee reset the breaker without first determining why the circuit would not reclose automatically or where the source of the short was located.
Once the electricity began running through the wires, the chain-link fence surrounding Arocha's backyard was energized by the downed electrical wires. Neither Rodriguez nor Arocha, however, was aware that the fence had been energized. When Rodriguez was leaving Arocha's backyard through a gate in the fence, Arocha's dog attempted to squeeze by, simultaneously touching the fence and Rodriguez's leg. Both were shocked. The dog was killed; Rodriguez suffered personal injuries.
Rodriguez alleges that the system operator received an alarm indicating that a circuit had opened at 3:08 p.m. and that at the same time, the San Antonio Fire Department ("SAFD") received a telephone call indicating that an electric line was down. At 3:11 p.m. and 3:13 p.m., the system operator attempted to close the circuit manually. At 3:14 p.m., SAFD arrived at Arocha's residence. According to Rodriguez, the City "had information in hand as much as five minutes before the system operator tried to re-energize the system that a line was down and emergency personnel had been dispatched." Rodriguez further argues that "at the very time the system operator was intervening to manually re-energize the line in question, CPS already knew that it was confronted with a downed wire at the subject location because it conveyed that fact to the lineman/trouble man when it dispatched him to the incident site at 3:13 p.m." CPS, on the other hand, argues that "since SAFD did not arrive at the residence until 3:14 p.m., there is no evidence that the system operator received any information from the SAFD prior to attempting to close the circuit."
Subsequently, Rodriguez sued CPS for negligence.
Standard of Review
Under Rule 166a(i), a party may move for a no-evidence summary judgment on the ground that there is no evidence of one or more essential elements of a claim or defense on which an adverse party would have the burden of proof at trial. Tex. R. Civ. P. 166a(i). We review a no-evidence summary judgment de novo by construing the record in the light most favorable to the nonmovant and disregarding all contrary evidence and inferences. Merrill Dow Pharm., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997); Reynosa v. Huff, 21 S.W.3d 510, 512 (Tex.App.-San Antonio 2000, no pet.). A no-evidence summary judgment is improperly granted when the respondent brings forth more than a scintilla of probative evidence that raises a genuine issue of material fact on the challenged element. Tex. R. Civ. P. 166a(i); Huff, 21 S.W.3d at 512. More than a scintilla of evidence exists when the evidence "rises to a level that would enable reasonable and fair-minded people to differ in their conclusions." Havner, 953 S.W.2d at 711. Less than a scintilla of evidence exists when the evidence is "so weak as to do no more than create a mere surmise or suspicion." Hurf, 21 S.W.3d at 512. When the trial court does not state the specific grounds on which it granted summary judgment, we will affirm if any of the theories advanced is meritorious. State Farm Fire Cas. Co. v. S.S., 858 S.W.2d 374, 380 (Tex. 1993).
Discussion
A. Necessity of an Expert Witness
Rodriguez argues that the trial court erred in granting CPS's motion for no-evidence summary judgment because expert testimony was not required to prove his negligence claim. We disagree.
In its motion for no-evidence summary judgment, CPS argued that expert testimony was necessary to show that it had breached the applicable standard of care, and Rodriguez had failed to timely designate an expert witness. As such, Rodriguez could not present expert testimony with respect to the applicable standard of care. In response, Rodriguez argued that because the facts pertaining to the alleged negligence were within the purview of any layperson, expert testimony was unnecessary.
To establish negligence, a plaintiff must show (1) the defendant owed a legal duty to the plaintiff, (2) he breached that duty, and (3) damages proximately resulted from the breach. Doe v. Boys Clubs of Greater Dallas, Inc., 907 S.W.2d 472, 477 (Tex. 1995). Expert testimony is necessary to establish the applicable standard of care "when the alleged negligence is of such a nature as not to be within the experience of the layman." FFE Transp. Serv., Inc. v. Fulgham, 154 S.W.3d 84, 90 (Tex. 2004). In determining whether expert testimony is necessary to establish negligence, Texas courts have considered whether the conduct at issue involves the use of specialized equipment and techniques unfamiliar to the ordinary person. Id. at 91.
Here, Rodriguez argues that his allegations of CPS's negligence are within the common experience of a layperson. According to Rodriguez, expert testimony is not required because even a layperson understands that "one should not manually override a breaker twice that has already automatically attempted and failed to reset itself, without first ascertaining the source of the short and making certain that ALL persons are `clear' of the area." In support of his argument, Rodriguez relies on two cases: J.D. Abrams, Inc. v. McIver, 966 S.W.2d 87 (Tex.App.-Houston [1st Dist.] 1998, pet. denied), and Scurlock Oil Co. v. Harrell, 443 S.W.2d 334 (Tex.Civ.App.-Austin 1969, writ. ref'd n.r.e.).
In J.D. Abrams, a motorist sued a construction company to recover for injuries suffered when she was rear-ended in the portion of a highway construction site controlled by the defendant. Id. at 90. The court held that "[d]riving an automobile in areas of road construction and automobile accidents certainly are not outside of the understanding of the average layman." Id. at 93. "Further, the appropriate placement of construction warning signs and the differences between traffic barrels and CTBs [concrete traffic barriers] are not so complex as to require the explanation of an expert to fully develop the appropriate standard of care." Id. And, although specialized equipment or construction techniques were in use at the time of the accident, "these elements were not at issue in the accident itself." Id. The court, therefore, concluded that the plaintiff was not required to present expert testimony to establish the appropriate standard of care or breach of that standard of care. Id. Rodriguez contends that "[j]ust as driving through a construction site is a matter of a common sense and common experience, so too are the dangers of energizing a downed power line that has come in contact with a chain-link fence without first clearing the area of ALL persons, not just CPS employees."
Additionally, Rodriguez relies on Scurlock Oil Co. v. Harrell, 443 S.W.2d 334 (Tex.Civ.App.-Austin 1969, writ. ref'd n.r.e.). In Scurlock, the court determined that "[a] pipe that has deteriorated to a point where it will no longer contain the liquid that it was meant to contain is not a fact so peculiar to a specialized industry that the defect can only be established through expert testimony." Id. at 337. Thus, according to Rodriguez, "the need to ensure that a downed power line is not re-energized without first ascertaining that there is no danger to people or property in the vicinity of the line is not a fact so peculiar to a specialized industry that the defect can only be established through expert testimony."
After reviewing the record and the facts of the incident, it appears that Rodriguez's reliance on the above cited authorities is misplaced. In his petition, Rodriguez alleges the following:
The defendant was negligent in not properly/safely providing electrical services on August 23, 1999 at the location of the occurrence. The defendant did not properly maintain/inspect its electrical pole and appurtenances (wires, transformers, insulator, cross-arm, etc.). The defendant did not properly remove dust/debris from its electrical pole and appurtenances. The defendant's cross-arm on the utility pole and appurtenances in question was [sic] not made of a noncombustible material. The system, whereby the defendant provided electrical services to the location, was not provided in a safe manner, if a wire became dislodged. The defendant did not provide the appropriate safety equipment to prevent a dislodged wire from making contact with other wire(s) and persons. The defendant did not properly warn the plaintiffs and its customers of its policy to reenergize downed wire(s) without any warning to the public.
The defendant employees/system operator improperly reenergized CPS's downed wire(s). The defendant failed to provide a safe system/policy in the event of fallen wires. The defendant's employee were [sic] not properly trained and/or supervised. The defendant was negligent by failing to properly maintain and inspect its equipment in question. The defendant was also negligent by allowing its system operator to override the circuit breaker. The defendant's system to deal with a failure in its system to deliver electricity was unreasonable and negligent. (CR 2, 0783-84).
We agree that generally, an ordinary person "has experienced a tripped breaker or burned fuse, or has been shocked by a shorted wire." However, determining whether electrical services were negligently provided, particularly whether the downed wires were improperly re-energized, requires specialized knowledge. Compare FFE Transp. Serv., 154 S.W.3d at 91 (noting that "the inspection and detection of loose and rusty bolts connecting parts of a trailer is not a `fact so peculiar to a specialized industry' and is within the experience of a layperson, like a leaking pipe"), with Turbines, Inc. v. Dardis, 1 S.W.3d 726, 738 (Tex.App.-Amarillo 1999, pet. denied) (holding that inspection and repair of an aircraft engine are not within the experience of the layman), and Hager v. Romines, 913 S.W.2d 733, 734-35 (Tex.App.-Fort Worth 1995, no writ) (holding that operation of an aircraft and aerial application of herbicide are not within the experience of the layman). Providing energy to the general public involves specialized equipment, and its techniques and concepts are unfamiliar to the ordinary person. Few people not involved in the energy-provider industry are familiar with electrical poles and appurtenances such as wires, transformers, insulators, cross-arms, and with the type of inspection, maintenance, and training they require. What a power company's practices and procedures should be, or what industry standards are, when a circuit breaker within an electrical distribution is tripped are not within a person's general knowledge. Thus, Rodriguez was obligated to present expert testimony discussing the appropriate standard of care and whether CPS's conduct met that standard. Because Rodriguez did not provide such expert testimony, we hold that there was no evidence of the standard of care or breach of that standard.
B. Res Ipsa Loquitur
In the alternative, Rodriguez argues that CPS's negligence could be inferred under the doctrine of res ipsa loquitur. Res ipsa loquitur, meaning "the thing speaks for itself," is used "in certain limited types of cases when the circumstances surrounding the accident constitute sufficient evidence of the defendant's negligence to support such a finding." Haddock v. Arnspiger, 793 S.W.2d 948, 950 (Tex. 1990) (emphasis added). "Only in extraordinary circumstances does the mere occurrence of the accident so strongly compel a conclusion that the defendant was negligent that the jury could not reasonably find otherwise." Mobil Chem. Co. v. Bell, 517 S.W.2d 245, 252 (Tex. 1974).
The doctrine of res ipsa loquitur is applicable only when the following two factors are present: (1) the character of the accident is such that it would not ordinarily occur in the absence of negligence; and (2) the instrumentality causing the injury was under the exclusive management and control of the defendant. Haddock, 793 S.W.2d at 950; Mobil Chem., 517 S.W.2d at 251. To rely on the doctrine, the plaintiff must produce evidence from which the jury can conclude, by a preponderance of the evidence, that both the "type of accident" and "control" factors are present. Mobil Chem., 517 S.W.2d at 252; Lucas v. Titus County Hosp. Dist., 964 S.W.2d 144, 155 (Tex.App.-Texarkana 1998, pet. denied). The doctrine is not a cause of action separate and apart from negligence; instead, it is an evidentiary rule by which negligence may be inferred by a jury. Haddock, 703 S.W.2d at 950.
Rodriguez claims that he properly invoked the doctrine of res ipsa loquitur because "CPS's sole control of the electric transmission system, together with the fact that, in the absence of negligence, chain link fences are not ordinarily electrified with people in the area, gives rise to a permissible inference which provides enough evidence to avoid a no-evidence summary judgment." As such, Rodriguez argues that no expert testimony was necessary in this case for the same reason that expert testimony is not necessary to show that one who resets a breaker supplying electricity to a kitchen counter without first ensuring that the toaster that caused the short is unplugged is negligent. We disagree.
In order to rely on the doctrine of res ipsa loquitor, a plaintiff must produce evidence from which the jury can conclude, by a preponderance of the evidence, that both the "type of accident" and "control" factors are present. Mobil Chem., 517 S.W.2d at 252; Soto v. Tex. Indus., Inc., 820 S.W.2d 217, 219 (Tex.App.-Fort Worth 1991, no writ). Here, Rodriguez did not present any evidence that if a fence is electrified, the power company must necessarily be negligent. We recognize that in certain cases, a plaintiff can rely upon general knowledge to prove that the accident in question is the type of accident that does not ordinarily happen in the absence of negligence. See Mobil Chem., 517 S.W.2d at 252; Soto, 820 S.W.2d at 219. This, however, is not one of those cases. As discussed previously, what a power company's practices and procedures should be, or what industry standards are, when a circuit breaker within an electrical distribution is tripped is not within a person's general knowledge. Therefore, we cannot say that because the fence was electrified, CPS must have necessarily acted negligently. See Aguilar v. Trujillo, 162 S.W.3d 839, 850 (Tex.App.-El Paso 2005, pet. denied) (holding that the doctrine of res ipsa was inapplicable because the plaintiff did not present evidence that groundwater contamination ordinarily does not occur in the absence of negligence); Soto, 820 S.W.2d at 220 (holding the trial court did not abuse its discretion in denying a res ipsa loquitur instruction when the plaintiffs "presented no expert knowledge that concrete walls do not ordinarily fall in the absence of negligence" and general knowledge could not support that contention). Because the doctrine of res ipsa loquitur does not apply, the trial court did not err in granting the no-evidence motion for summary judgment. Conclusion
Because Rodriguez's issues lack merit, we affirm the trial court's final summary judgment.