The only duty a premises owner or occupier owes a trespasser is not to injure him willfully, wantonly, or through gross negligence (Burton Constr. & Shipbuilding Co. V. Broussard, 154 Texas. 50, 273 S.W.2d 598, 602 (Tex. 1954)). As to invitees, a premises owner or occupier must use ordinary care to reduce or eliminate an unreasonable risk of harm created by a condition of which the owners is or reasonably should be aware (State Dept. of Highways & Public Transp. v.
Payne, 838 S.W.2d 235, 237 (Tex. 1992).
The research team also reviewed a series of cases since 1920 utilizing the key-words duty of care and electricity to discern how case law had treated or changed the duty-of-care owed to
33
Table 2.1 Sample cases involving electricity and duty of care
Case Name, Year & Citation Case Name, Year & Citation
Denison Light & Power Company v. B. B. Patton. 105 Tex. 621; 154 S.W. 540; (1913, Tex. App)
Texas Utilities Electric Company v. Gold Kist, Inc. 817 S.W.2d 749 (1991 Tex. App)
McCoy v. Texas Power & Light Co. 229 S.W. 623; (1920 Tex. App)
Central Power & Light Company v. Oscar R. Romero. 948 S.W.2d 764 (1996 Tex. App.) West Texas Utilities co. V. Renner, 53 S.W2d
451 (Tex. Comm’n App. 1932)
Hoechst-Celanese Corp. v. Mendez, 967 S.W.2d 354, (41 Tex. Sup. Ct. J. 458 (Tex 1998)
American General Ins. Co. et al. v.
Southwestern Gas & Electric Co. 115 F.2d 706; 1940 U.S. App
Clayton W. Williams, Jr., Inc. v. Olivo, 952 S.W.2d 523, 528, 40 Tex. Sup. Ct. J. 887, 41 Tex. Sup. Ct. J. 19 (Tex. 1997).
Houston Lighting & Power Co. V. Henry Alton Brooks et al. 161 Tex. 32; 336 S.W.2d 603 (1960 Tex)
Victor Andres, v. DT Construction. 205 S.W. 3d 3; (2006 Tex. App)
Wendell v. Central Power and Light Company, 677 S.W.2d 610 (Tex. App. – 1984)
Carl Johannes v. Ace Transportation Inc and El Paso Electric Company. 2009 Tex. App. LEXIS 2956
Neal Sisson & Daryl & Rosan Sisson v. Texas New Mexico Power Company. 722 S.W. 2d 260 (Tex. App. 1986)
Most of these cases were regarding appellants who were injured while accessing or working close to, or physically upon, telephone and electric poles. The courts through the 80+ years of jurisprudence have taken an extremely strong ‘public-policy’ perspective in assessing liability and the duty of care owed, and in many cases refused to stretch that duty any further than is absolutely necessary. In McCoy v Texas Power & Light Co. Justice Buck quoted Justice Gains in Railroad Co. V. Edwards (Tex. Sup.) 36 S.W. 430, 32 L.R. A. 825 “we believe that the
doctrine upon which the Turntable Cases1 have been sustained goes to the limit of the law, and sound public policy forbids that it be further extended”. The Texas Commission of Appeals in
Wendell v. Central Power & Light Co in 1984 stated “…the duty is imposed, in a case like this,
not only to warn, but to use at least ordinary care to have the premises in a reasonably safe condition; the degree of care required must be commensurate with the danger.”
In Texas Utilities Electric Company v. Gold Kist Inc. the court noted “A company maintaining
electrical wires over which a high voltage of electricity is conveyed, rendering them highly dangerous to others, is under the duty of using the necessary care and prudence at places where others may have the right to go, either for work, business, or pleasure to prevent injury.”
1
A series of cases that arose in the late 19th century and early 20th century regarding the turntables that railroads used to move engines onto different tracks. These were extremely attractive to children to climb upon and turn- around as they looked and behaved like a merry-go-round that would be found in a children’s playground.
34 The court in West Texas Utilities co. V. Renner, 53 S.W2d 451 (Tex. Comm’n App. 1932) found that the meaning of the common-law rule of ordinary care is considered by the courts to be ‘elastic enough’ to meet all emergencies; the amount of care must be such as a person or ordinary prudence would exercise under like circumstances.
As regards to sub-contractors, the Texas Supreme Court has stated that safety requirements imposed on subcontractors give rise to at most a narrow duty of care, Hoechst-Celanese Corp v Mendez (Tex. 1998). The Texas Supreme Court has also emphasized that, for the general contractor to be liable for negligence, its supervisory control must relate to the condition or activity that caused the injury. Hoechst v. Mendez, 967 S.W.2d at 357; and Clayton W.
Williams, Jr., Inc. v. Olivo, 952 S.W.2d 523, 528, 40 Tex. Sup. Ct. J. 887, 41 Tex. Sup. Ct. J. 19 (Tex. 1997).
As regards contributory negligence and components of proximate cause, the components of proximate cause are cause in fact and foreseeability. Neither element can be satisfied by mere conjecture, guess, or speculation. Cause in fact is established when the act or omission was a substantial factor in bringing about the injuries, and without it, the harm would not have occurred. Cause in fact is not shown if the defendant's negligence did no more than furnish a condition which made the injury possible. The evidence must show that the negligence was the proximate, as opposed to a remote, cause of the resulting injuries. It must justify the conclusion that the injury was the natural and probable result. Even if the injury would not have happened but for the defendant's conduct, the connection between the negligent act and the injury may be too attenuated to constitute legal cause. Carl A Johannes v. Ace Transportation Inc, and El Paso Electric Company, 2009 Tex. App. (court of appeals, eight district El Paso).
If TxDOT chooses to pursue a more aggressive policy, vis-à-vis development of transmission lines upon ROW that it owns, it will obviously have to ensure that agreements with transmission line developers are structured to ensure that TxDOT will not be liable if a trespasser is injured. Where feasible, TxDOT may need to develop an operational policy to ensure that warning signs and other barricades to stop trespass are adequately inspected and maintained.