Adam Wells v. Southwestern Bell Telephone Company, D/B/A AT&T Texas

• Court: Court of Appeals of Texas
• Decided: March 11, 2024
• Docket: 05-23-00004-CV
• Status: Published

Opinion

Affirmed and Opinion Filed March 11, 2024

In The Court of Appeals Fifth District of Texas at Dallas No. 05-23-00004-CV

ADAM WELLS, Appellant V. SOUTHWESTERN BELL TELEPHONE COMPANY, D/B/A AT&T TEXAS, Appellee

On Appeal from the 162nd Judicial District Court Dallas County, Texas Trial Court Cause No. DC-21-04131

MEMORANDUM OPINION Before Justices Molberg, Pedersen, III, and Nowell Opinion by Justice Nowell Adam Wells filed a negligence claim against Southwestern Bell Telephone

Company d/b/a AT&T Texas. Wells alleged he was injured because AT&T failed

to exercise reasonable and ordinary care while working with insulated wire on or

near a utility pole and powers lines. AT&T filed a no-evidence motion for summary

judgment, which the trial court granted. Wells alleges the trial court erred in granting

AT&T’s motion for summary judgment because (1) expert testimony is not required

to prove AT&T’s negligence and (2) Wells was not given adequate time for

discovery. We affirm the trial court’s judgment. Background

On April 1, 2019, an AT&T employee was working at 5104 South Drive in

Fort Worth, Texas when he threw a Johnny ball attached to a 20-gauge copper

insulated wire over a tree, attempting to pull the cable over it. The throw overshot

the tree, and as indicated in the Oncor “Primary Contact Information Sheet,” the

Johnny ball “actually went over top hot leg of open wire” section and contacted a

chain link fence “energizing [the] fence.” At the same time, Wells was leaning on a

chain-link fence at 5116 South Drive. He heard a “loud pop” in the power lines

above him and felt a shock run through his body.

Wells originally filed a negligence suit against Oncor Electric Delivery

Company, LLC and DirectTV, LLC. He subsequently filed a first amended original

petition naming AT&T as the proper party and nonsuited DirectTV from the case.

Oncor filed a no-evidence motion for summary judgment alleging, in part, that Wells

failed to provide expert testimony establishing a duty of care, the alleged breach of

any such duty, or that any breach proximately caused Wells’s injury. AT&T joined,

adopted, and incorporated by reference Oncor’s no-evidence motion for summary

judgment. Wells responded, in part, that expert testimony was unnecessary under

these facts because a layperson could understand AT&T’s actions were negligent.

He also nonsuited Oncor from the case.

After a hearing, the trial court granted AT&T’s no-evidence motion. Wells’s

motion for new trial was denied by operation of law, and this appeal followed.

–2– Discussion

Wells challenges the no-evidence summary judgment dismissing his

negligence claim against AT&T. His arguments raise several sub-issues, which we

will address in turn.

A party may obtain a no-evidence summary judgment when “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. 166(a)(i). A properly

filed no-evidence motion shifts the burden to the nonmovant to present evidence

raising a genuine issue of material fact supporting each element contested in the

motion. Id.; Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex. 2006). A “no-

evidence summary judgment is improperly granted if the respondent brings forth

more than a scintilla of probative evidence to raise a genuine issue of material fact.”

King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003) (citing TEX. R. CIV.

P. 166(a)(i)). When a trial court does not state the specific grounds on which it

granted summary judgment, we will affirm if any of the theories advanced are

meritorious. W. Invs., Inc. v. Urena, 162 S.W.3d 547, 550 (Tex. 2005).

To establish negligence, a plaintiff must show (1) the defendant owed a legal

duty to the plaintiff, (2) they breached that duty, and (3) damages proximately

resulted from the breach. Schwartz v. City of San Antonio ex rel. City Pub. Serv. Bd.

of San Antonio, No. 04-05-00132-CV, 2006 WL 285989, at *3 (Tex. App.—San

Antonio Feb. 8, 2006, pet. denied) (mem. op.). Whether expert testimony is required

–3– to establish an element of a claim is a question of law we review de novo. Tamez,

206 S.W.3d at 583.

Expert testimony is required when “the alleged negligence is of such a nature

as not to be within the experience of the layman.” FFE Transp. Servs., Inc. v.

Fulgham, 154 S.W.3d 84, 90 (Tex. 2004). In determining whether expert testimony

is required, Texas courts consider whether the conduct at issue involves the use of

specialized equipment and techniques or knowledge of specialized industry practices

and procedures. Id. at 91. Where expert testimony is required, the plaintiff must

present evidence on both the standard of care and the violation of that standard.

Rodriguez v. CenterPoint Energy Houston Elec., LLC, No. 14-16-00867-CV, 2018

WL 5261246, at *5 (Tex. App.—Houston [14th Dist.] Oct. 23, 2018, no pet.) (mem.

op.).

According to Wells, expert testimony is unnecessary “to aid the factfinder in

understanding that throwing wire over electrical lines while the wire is touching a

chain link fence is dangerous—this is not outside a layperson’s common sense,

knowledge, or understanding.”

Wells alleged AT&T acted negligently by:

a. failing to properly service the communication lines while working at or near the utility pole and/or power lines at or near the Property in question; b. creating a hazardous and dangerous condition;

c. failing to warn of a hazardous and dangerous condition it created;

–4– d. failing to take reasonable steps and precautions to prevent the risk of harm to Adam Wells;

e. failing to adhere to its own line management policies and procedures;

f. failing to use ordinary care to reduce or eliminate an unreasonable risk of harm created by the condition Defendants knew about, or in the exercise of ordinary care should have known about; g. failing to adhere to applicable industry standards and practices in working with or around the utility pole and/or electric power lines or electrical wiring at or near the Property;

h. failing to follow and adhere to applicable local and national electrical codes in working with or around the utility pole and/or electric power lines or electrical wiring at or near the Property; and/or i. failing to properly train, hire, supervise, or retain its employees, agents, and/or representatives; and j. failing to act as an ordinary prudent communication provider would act under the same or similar circumstances. “Expert testimony is required to establish the standard of care that a utility

owes and any breach of that duty.” City of Austin v. Lopez, 632 S.W.3d 200, 218

(Tex. App.—Austin 2021, pet. denied) (citing Schwartz, 2006 WL 285989, at *4).

The appropriate practices and procedures of a utility company, including applicable

industry standards, proper service of communication lines while working at or near

a utility pole and/or power lines, and proper training and supervision of utility

employees, specifically while installing or working on cable lines, are not within a

layperson’s general knowledge.

–5– Here, proving the standard of care required consideration of how a utility

functions, some knowledge of electricity, and how AT&T’s equipment operates.

See, e.g., Rodriguez, 2018 WL 5261246, at *5. Such techniques and concepts are

unfamiliar and not within the common knowledge of the ordinary person. See

Schwartz, 2006 WL 285989, at *4. Thus, Wells was obligated to present expert

testimony discussing the appropriate standard of care and whether AT&T’s conduct

met that standard. Because Wells did not provide expert testimony, there was no

evidence of an essential element of his negligence claim.

In reaching this conclusion, we reject Wells’s reliance on the doctrine of res

ipsa loquitur to overcome the need for expert testimony. We first question whether

Wells timely raised the res ipsa loquitur issue. Wells did not assert the applicability

of the doctrine in his pleadings or in response to AT&T’s no-evidence motion for

summary judgment. Instead, he raised it for the first time in his motion for new trial.

However, assuming the issue was properly before the trial court, we conclude it is

not applicable to this case. See Ahuta v. Little, No. 05-06-01430-CV, 2007 WL

2325524, at *1 (Tex. App.—Dallas Aug. 14, 2007, no pet.) (mem. op.) (questioning

whether res ipsa loquitur issue preserved when raised for the first time in motion for

new trial but concluding it did not apply after addressing argument).

Res ipsa loquitur, or “the thing speaks for itself,” is an evidentiary rule which

allows negligence to be inferred from the circumstances surrounding an injury. Id.

at *2. The doctrine applies in certain limited types of cases when the circumstances

–6– surrounding the accident constitute sufficient evidence of the defendant’s negligence

to support such a finding. Id. “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.” Schwartz, 2006 WL

285989, at *4 (quoting Mobil Chem. Co. v. Bell, 517 S.W.2d 245, 252 (Tex. 1974)).

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. Id. at *5. To rely on the

doctrine, the plaintiff must produce evidence that both the “type of accident” and

“control” factors are present. Id.

Wells claims the doctrine of res ipsa loquitur applies because, “[s]imply put,

people don’t just get electrocuted while standing in their backyard near a chain link

fence.” As such, Wells argues that no expert testimony was necessary to show that

AT&T was negligent. We disagree.

Wells did not present any evidence that if a fence is electrified, the utility

company must necessarily be negligent. See id. As discussed previously, the

appropriate practice and procedures of a utility company and the applicable

standards of care when working at or near utility poles or power lines, are not within

a person’s general knowledge. Therefore, we cannot say, without expert testimony,

that simply because the fence was electrified, AT&T must have been negligent. Id.

–7– (concluding res ipsa loquitur did not apply because no evidence that because fence

was electrified, City Public Service must have necessarily acted negligently); Soto

v. Tex. Indus., Inc., 820 S.W.2d 217, 219 (Tex. App.—Fort Worth 1991, no writ)

(holding trial court did not abuse its discretion in denying a res ipsa loquitur

instruction when plaintiff “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 properly granted AT&T’s no-evidence motion for summary judgment

on AT&T’s negligence claim.

Wells also argues the trial court erred by granting the no-evidence motion for

summary judgment on his gross negligence claim. However, “[a] finding of

negligence is a prerequisite to a finding of gross negligence.” See Arana v. Figueroa,

559 S.W.3d 623, 634 (Tex. App.—Dallas 2018, no pet.); see also McClure v.

Denham, 162 S.W.3d 346, 353–54 (Tex. App.—Fort Worth 2005, no pet.)

(affirming summary judgment on negligence, negligence per se, and gross

negligence claims because appellant provided no evidence appellee owed appellant

any duty). Because Wells provided no evidence of an essential element of his

negligence claim, the trial court properly granted AT&T’s no-evidence motion for

summary judgment on his gross negligence claim.

Finally, Wells argues the trial court abused its discretion by granting summary

judgment before an adequate time for discovery had passed. Appellee responds

–8– Wells did not diligently pursue discovery and, alternatively, Wells waived his issue

because he did not file a verified motion for continuance.

Rule 166a(i) does not require the discovery period end before the trial court

may grant a no-evidence summary judgment. Rest. Teams Int’l, Inc. v. MG Secs.

Corp., 95 S.W.3d 336, 339 (Tex. App.—Dallas 2002, no pet.). Instead, the rule

merely requires “adequate time” for discovery. Id. (citing rule 166a(i)). When a

party contends it has not had an adequate opportunity for discovery before a

summary judgment hearing, it must file either an affidavit explaining the need for

further discovery or a verified motion for continuance. Tenneco, Inc. v. Enter.

Prods. Co., 925 S.W.2d 640, 647 (Tex.1996); Brown v. Brown, 145 S.W.3d 745,

749 (Tex. App.—Dallas 2004, pet. denied). We review a trial court’s ruling that

there has been adequate time for discovery for an abuse of discretion. Gilford v. Tex.

First Bank., No. 01-13-00384-CV, 2014 WL 3408698, at *7 (Tex. App.—Houston

[1st Dist.] July 10, 2014, pet. denied) (mem. op.).

Here, Wells requested a continuance to complete additional discovery, as

alternative relief, in his summary judgment response. He neither filed an affidavit

explaining the need for further discovery, nor a verified motion for continuance. See

Tenneco, Inc., 925 S.W.2d at 647. Therefore, Wells waived his argument regarding

an adequate time for discovery and cannot show the trial court abused its discretion

by ruling on the motion. Flores v. Flores, 225 S.W.3d 651, 654–55 (Tex. App.—El

Paso 2006, no pet.); see also Terry v. Mercedes-Benz, USA, LLC, No. 05-06-00118-

–9– CV, 2007 WL 2045231, at *5 (Tex. App.—Dallas July 18, 2007, no pet.) (mem.

Having considered and overruled Wells’s arguments, we affirm the trial

court’s no-evidence summary judgment.

/Erin A. Nowell// 230004f.p05 ERIN A. NOWELL JUSTICE

–10– Court of Appeals Fifth District of Texas at Dallas JUDGMENT

ADAM WELLS, Appellant On Appeal from the 162nd Judicial District Court, Dallas County, Texas No. 05-23-00004-CV V. Trial Court Cause No. DC-21-04131. Opinion delivered by Justice Nowell. SOUTHWESTERN BELL Justices Molberg and Pedersen, III TELEPHONE COMPANY, D/B/A participating. AT&T TEXAS, Appellee

In accordance with this Court’s opinion of this date, the judgment of the trial court is AFFIRMED.

It is ORDERED that appellee SOUTHWESTERN BELL TELEPHONE COMPANY, D/B/A AT&T TEXAS recover its costs of this appeal from appellant ADAM WELLS.

Judgment entered this 11th day of March, 2024.

–11–