Oncor Electric Delivery Company LLC v. Victor Quintanilla, Oscar Interiano Rosales and Accident Fund Insurance Company of America

• Court: Court of Appeals of Texas
• Decided: October 17, 2022
• Docket: 05-19-01331-CV
• Status: Published

Opinion

AFFIRMED and Opinion Filed October 17, 2022

In The Court of Appeals Fifth District of Texas at Dallas No. 05-19-01331-CV

ONCOR ELECTRIC DELIVERY COMPANY LLC, Appellant V. VICTOR QUINTANILLA, OSCAR INTERIANO ROSALES, AND ACCIDENT FUND INSURANCE COMPANY OF AMERICA, Appellees

On Appeal from the 160th Judicial District Court Dallas County, Texas Trial Court Cause No. DC-17-03500

MEMORANDUM OPINION Before Justices Schenck, Osborne, and Partida-Kipness Opinion by Justice Osborne A jury found appellant Oncor Electric Delivery Company LLC (Oncor)

negligent in connection with an incident where two excavation workers were

electrocuted when a guy wire anchored in the location of a hole that the workers

were excavating suddenly became energized. The workers sued Oncor, contending

that Oncor was negligent by installing an insulator on the guy wire that was too short

to prevent the guy wire from becoming energized when it sagged onto an electrified

jumper. Oncor asserted, among other things, that the workers’ claims were barred

by Chapter 752 of the Texas Health and Safety Code because the workers were responsible for the work and failed to provide notice to and make mutual safety

arrangements with Oncor before beginning the work. At trial, however, the jury

made findings adverse to Oncor on its alleged Chapter 752 defense.

In five issues, Oncor challenges (1) the sufficiency of the evidence that Oncor

was negligent; (2) whether the evidence conclusively established Oncor’s alleged

Chapter 752 defense, or whether the evidence is insufficient to support the jury’s

adverse findings on the defense; (3) whether the trial court erred by refusing to

submit a general contractor’s negligence and proportionate responsibility to the jury;

(4) whether the trial court erred by refusing to include a certain instruction in the

jury charge relating to Oncor’s alleged Chapter 752 defense; and (5) whether the

workers’ counsel engaged in incurable improper jury argument. We affirm.

BACKGROUND

We draw the following facts from the record, viewed in the light most

favorable to the verdict.

In July 2016, appellees Victor Quintanilla (Victor) and Oscar Interiano

Rosales (Oscar) were working as excavation workers for Alvarenga Underground

Construction, LLC (Alvarenga) when they sustained severe personal injuries from

an electric shock. Alvarenga installs underground utilities such as fiber-optic and

telephone cable. At the time of the incident, Victor and Oscar were digging a hole

for a road bore for utility services to cross under a road in a road-widening project.

–2– Alvarenga was working as a subcontractor for Henkels & McCoy, Inc. (HMI). HMI

had been hired as the general contractor by Frontier.1

The pit the men were digging was near a utility pole containing high voltage

overhead lines. The pole was stabilized by a system of guy anchors in the ground

that pulled tension on the guy wires attached to the top of the utility pole. The guy

wire at issue was secured by a guy anchor that was located within the location of the

pit that Victor and Oscar were digging. As Victor and Oscar dug the hole, they

slowly removed dirt around the guy anchor, and the guy wire sagged down onto an

electrified jumper coming around the utility pole. While Victor and Oscar were in

the hole, the guy wire became energized, resulting in severe injuries to both men.

Oncor claimed ownership of the guy wire and guy anchor but not the utility

pole. Oncor had constructed the guy-wire system in approximately 1986 to 1987.

The two-foot insulator that Oncor installed on the guy wire, however, was too short

to prevent the guy wire from becoming energized if the guy wire sagged and came

into contact with the electrified jumper coming around the pole.

Victor and Oscar sued Oncor for negligence and gross negligence, alleging,

inter alia, that Oncor owed the public, including Victor and Oscar, a duty to properly

design and erect its equipment and that the insulator for the guy wire did not meet

1 The record reflects that Verizon had hired HMI and that Verizon subsequently became Frontier. For ease of reference, we will refer to Verizon and Frontier as simply “Frontier.”

–3– relevant design standards because it did not adequately protect against the guy wire’s

becoming energized.2

Oncor answered, asserting, inter alia, that it was entitled to statutory

indemnification for all liability under § 752.008 of the Texas Health and Safety

Code. It also alleged that Victor’s and Oscar’s damages were caused by their own

negligence or the negligence of other third parties. Oncor moved to designate HMI

and Alvarenga as responsible third parties, and the trial court granted both motions.

The case was tried to a jury. At the close of Victor and Oscar’s case, Oncor

moved for a directed verdict on appellees’ gross-negligence and negligence claims

and on certain elements of Oncor’s alleged indemnity affirmative defense under

Chapter 752. The trial court granted a directed verdict on appellees’ gross-

negligence claims but denied the remainder of the motion. After the close of all

evidence, Oncor again moved for a directed verdict, which the trial court denied.3

At the charge conference, the trial court overruled Oncor’s objections to

(1) the charge’s omission of HMI from the negligence and proportionate-

responsibility questions and (2) the omission of certain instructions from a question

purportedly pertaining to Oncor’s indemnity defense under Chapter 752.

2 Victor and Oscar asserted additional claims but nonsuited them during trial. 3 At trial, Oncor took the position that Victor and Oscar caused the guy anchor to suddenly jerk out of the ground and the guy wire to spring into the air where it contacted the electrified line. Oncor does not urge this theory on appeal. Thus, we do not address it. –4– The jury returned a verdict finding Victor, Oscar, Alvarenga, and Oncor each

negligent and apportioned responsibility as follows: Victor 2%; Oscar 1%;

Alvarenga 49%; and Oncor 48%. The jury also made findings adverse to Oncor on

its alleged indemnity defense under Chapter 752.

The trial court denied Oncor’s motion for judgment notwithstanding the

verdict (JNOV motion). The trial court signed a final judgment against Oncor

awarding Victor and Oscar damages and prejudgment interest totaling $532,072.72

and $870,861.08, respectively, plus postjudgment interest and court costs. 4 Oncor

timely filed a motion for new trial, which the trial court denied. This appeal followed.

ISSUES ON APPEAL

On appeal, Oncor asserts the following five issues, some of which include

subparts:

(1) There was factually and legally insufficient evidence of Oncor’s negligence.

(2) Oncor proved as a matter of law that Victor’s and Oscar’s claims were barred by the doctrine of circular indemnity under Chapter 752 of the Texas Health and Safety Code in that Oncor proved Victor and Oscar (a) were responsible for the work and (b) were performing a function or activity that caused any part of a tool, equipment, machine, or material to be brought within six feet of a high voltage overhead line. Alternatively, the jury’s answers to these two issues were so against the great weight and preponderance of the evidence that they were clearly wrong and unjust.

4 The final judgment incorporates by reference a written stipulation filed by appellees and intervenor Accident Fund Insurance Company of America (AFICA) regarding AFICA’s rights of reimbursement for workers’ compensation benefits paid to Victor and Oscar. –5– (3) The trial court erred by failing to include HMI, a responsible third party and the project’s contractor, on the verdict form for determinations of negligence and proportionate responsibility.

(4) The trial court erred by failing to instruct the jury that a person brings material within six feet of a high voltage overhead line for purposes of Chapter 752 if the person causes a material already within six feet of a high voltage overhead line to make physical contact with the high voltage overhead line or to come closer to the line.

(5) Appellees’ counsel engaged in incurable jury argument by (a) misstating the law regarding a material already within six feet of an overhead line under Chapter 752 and (b) providing an invalid basis, not supported by the evidence, upon which the jury could have held Oncor liable for negligence.

For the reasons discussed below, we resolve all issues against Oncor.

STANDARDS OF REVIEW

When a party attacks the legal sufficiency of the evidence to support an

adverse finding on which it did not have the burden of proof at trial, it must

demonstrate there is no evidence to support the adverse finding. Exxon Corp. v.

Emerald Oil & Gas Co., L.C., 348 S.W.3d 194, 215 (Tex. 2011). In determining

whether the evidence is legally sufficient to support a finding, we consider the

evidence in the light most favorable to the judgment and indulge every reasonable

inference that would support it. City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex.

2005). We must credit favorable evidence if a reasonable factfinder could and

disregard contrary evidence unless a reasonable factfinder could not. Id. at 827. “The

final test for legal sufficiency must always be whether the evidence at trial would

enable reasonable and fair-minded people to reach the verdict under review.” Id.

–6– A complaint that the evidence is legally insufficient will be sustained when

(1) there is a complete absence of evidence of a vital fact, (2) the court is barred by

rules of law or evidence from giving weight to the only evidence offered to prove a

vital fact, (3) the evidence offered to prove a vital fact is no more than a mere

scintilla, or (4) the evidence establishes conclusively the opposite of the vital fact.

Id. at 810. “Anything more than a scintilla of evidence is legally sufficient to support

the finding.” Formosa Plastics Corp. USA v. Presidio Eng’rs & Contractors, Inc.,

960 S.W.2d 41, 48 (Tex. 1998). There is more than a scintilla of evidence “when the

evidence as a whole rises to a level enabling reasonable and fair-minded people to

have different conclusions.” Waste Mgmt. of Tex., Inc. v. Tex. Disposal Sys. Landfill,

Inc., 434 S.W.3d 142, 156 (Tex. 2014).

When a party attacks the legal sufficiency of an adverse finding on an issue

on which it had the burden of proof, it must demonstrate on appeal that the evidence

establishes, as a matter of law, all vital facts in support of the issue. Dow Chem. Co.

v. Francis, 46 S.W.3d 237, 241 (Tex. 2001) (per curiam). When reviewing a “matter

of law” challenge, we must first examine the record for evidence that supports the

finding, while ignoring all evidence to the contrary. Id. Anything more than a

scintilla of evidence is legally sufficient to support the finding. Formosa Plastics

Corp., 960 S.W.2d at 48. If there is no evidence to support the finding, we will then

examine the entire record to determine if the contrary position is established as a

–7– matter of law. Dow Chem. Co., 46 S.W.3d at 241. The point of error is sustained

only if the contrary proposition is conclusively established. Id.

A party attacking the factual sufficiency of the evidence to support an adverse

finding on which the party did not have the burden of proof must demonstrate on

appeal that there is insufficient evidence to support the adverse finding. Hoss v.

Alardin, 338 S.W.3d 635, 651 (Tex. App.—Dallas 2011, no pet.). In reviewing the

challenge, we consider all the evidence and set the verdict aside only if the evidence

supporting the finding is so weak or so against the overwhelming weight of the

evidence that the finding is clearly wrong and unjust. Id.

A party attacking the factual sufficiency of the evidence of an adverse finding

on which the party had the burden of proof must demonstrate on appeal that “the

adverse finding is against the great weight and preponderance of the evidence.” Dow

Chem. Co., 46 S.W.3d at 242. We consider and weigh all the evidence, and we set

aside a verdict only if the evidence is so weak or if the finding is so against the great

weight and preponderance of the evidence that it is clearly wrong and unjust. Id.

The factfinder is the sole judge of the credibility of the witnesses and the

weight to be given their testimony. City of Keller, 168 S.W.3d at 819 (legal-

sufficiency review); Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 761

(Tex. 2003) (factual-sufficiency review). We may not substitute our own judgment

for that of the factfinder merely because we might reach a different result. See City

of Keller, 168 S.W.3d at 819.

–8– We review a trial court’s rulings on motions for directed verdict and for

judgment notwithstanding the verdict under a legal-sufficiency standard. See id. at

827.

We review a trial court’s submission of jury instructions and questions for an

abuse of discretion. Dallas Area Rapid Transit v. Morris, 434 S.W.3d 752, 757 (Tex.

App.—Dallas 2014, pet. denied); Janga v. Colombrito, 358 S.W.3d 403, 408 (Tex.

App.—Dallas 2011, no pet.). The trial court must submit a question that is raised by

the written pleadings and the evidence, and it may refuse to submit a properly

worded question only if there is no evidence in the record to warrant its submission.

See Janga, 358 S.W.3d at 408.

A trial court is given wide latitude to determine the propriety of explanatory

instructions and definitions. Morris, 434 S.W.3d at 757. Rule 277 affords the trial

court considerable discretion in deciding what jury instructions are necessary and

proper. Id. (citing TEX. R. CIV. P. 277). For an instruction to be proper, it must

(1) assist the jury, (2) accurately state the law, and (3) find support in the pleadings

and evidence. Id.

Finally, we review a trial court’s denial of a motion for new trial for abuse of

discretion. Dugan v. Compass Bank, 129 S.W.3d 579, 582 (Tex. App.—Dallas 2003,

no pet.). A trial court abuses its discretion when it acts in an arbitrary or unreasonable

manner or acts without reference to any guiding rules or principles. Id.

–9– A judgment will not be reversed on grounds that the trial court made an error

of law unless the error probably caused the rendition of an improper judgment or

probably prevented the appellant from properly presenting the case to the court of

appeals. TEX. R. APP. P. 44.1(a).

OVERVIEW OF CHAPTER 752 OF THE TEXAS HEALTH AND SAFETY CODE

Because Oncor raises Chapter 752 of the Texas Health and Safety Code in

multiple issues, we briefly summarize its relevant sections and how Oncor invokes

them to assert an affirmative defense to Victor’s and Oscar’s negligence claims.

A. Statutory Framework of Chapter 752

Chapter 752 restricts certain activities near high voltage overhead lines. See

TEX. HEALTH & SAFETY CODE ANN. §§ 752.001–.008. Oncor relies upon

§§ 752.001, .003, .004, and .008 to establish its alleged affirmative defense.

Section 752.001 defines “high voltage” and “overhead lines.” Id. § 752.001.

Section 752.003 requires forty-eight hours’ notice and other safety

precautions to be followed when certain functions or activities are performed within

certain prescribed distances of a high voltage overhead line. See id. § 752.003.

Specifically, subsection (a) states: “A person, firm, corporation, or association

responsible for temporary work or a temporary activity or function closer to a high

voltage overhead line than the distances prescribed by this chapter must notify the

operator of the line at least 48 hours before the work begins.” Id. § 752.003(a)

–10– (emphasis added). Subsection (b) then prohibits a person, firm, corporation, or

association from beginning the work, activity, or function until the person, firm,

corporation, or association responsible for the work, activity, or function and the

owner or operator, or both, have negotiated certain mutual safety arrangements. See

id. § 752.003(b). The person, firm, corporation, or association responsible for the

work, activity, or function is then required to pay the operator of the line the actual

expenses the line operator incurs in providing the clearances prescribed by their

agreement. See id. § 752.003(c). The line operator is not required to provide

clearance until such payment is made. See id.

The distances prescribed by Chapter 752 are found in §§ 752.004 and .005.

Oncor does not rely upon § 752.005, so we do not address it. Section 752.004 states:

(a) Unless a person, firm, corporation, or association effectively guards against danger by contact with the line as prescribed by Section 752.003, the person, firm, corporation, or association, either individually or through an agent or employee, may not perform a function or activity on land, a building, a highway, or other premises if at any time it is possible that the person performing the function or activity may:

(1) move or be placed within six feet of a high voltage overhead line while performing the function or activity; or

(2) bring any part of a tool, equipment, machine, or material within six feet of a high voltage overhead line while performing the function or activity.

(b) A person, firm, corporation, or association may not require an employee to perform a function or activity prohibited by Subsection (a).

–11– Id. § 752.004 (emphases added). Oncor does not rely upon § 752.004(a)(1), so we

do not address it. Oncor contends the work at issue fell within § 752.004(a)(2), as

discussed below.

Finally, § 752.008 imposes liability upon a person, firm, corporation, or

association who violates Chapter 752 when the violation results in physical or

electrical contact with a high voltage overhead line. That section states:

If a violation of this chapter results in physical or electrical contact with a high voltage overhead line, the person, firm, corporation, or association that committed the violation is liable to the owner or operator of the line for all damages to the facilities and for all liability that the owner or operator incurs as a result of the contact.

Id. § 752.008.

B. The Four Elements that Oncor Contends Establish an Affirmative Defense Based on Chapter 752 in this Case. Oncor’s position, as we understand it, is that the excavation work Victor and

Oscar were performing required compliance with the notice and safety precautions

of § 752.003 because the excavation work supposedly fell within § 752.004(a)(2).

As shown above, that section concerns a situation where it is possible that the person

performing the work may “bring any part of a tool, equipment, machine, or material

within six feet of a high voltage overhead line.” Id. § 752.004(a)(2) (emphases

added). The evidence at trial indicated that before the work began, the guy wire at

issue was attached to the utility pole and already within six feet of the electrified

jumper located high up on that utility pole. Below are four photographs taken at the

location of, and after, the incident at issue: –12– Nonetheless, Oncor contends the work fell within § 752.004(a)(2) because Victor

and Oscar caused the guy wire to move closer to and make contact with the

electrified line.5

5 It is not necessary for the disposition of this appeal for us to determine whether “it is possible that the person performing the function or activity may . . . bring any part of a tool, equipment, machine, or material

–13– Oncor’s position is that Victor and Oscar each violated Chapter 752 because

they were both persons responsible for the work and failed to provide Oncor with

the required notice and to make mutual safety arrangements with Oncor before

beginning the work as required by § 752.003. Oncor then relies upon the

indemnification in § 752.008 and the doctrine of “circular indemnity” to assert that

Victor’s and Oscar’s purported Chapter 752 violations constitute an affirmative

defense that bars their claims. The “circular indemnity” doctrine, assuming it applies

in this context, would preclude a plaintiff who violates Chapter 752 (and whose

violation results in physical or electrical contact with a high voltage overhead line)

from any recovery because, under § 752.008, the plaintiff would be required to pay

his own damages. Wolfenberger v. Houston Lighting & Power Co., 73 S.W.3d 444,

447–48 (Tex. App.—Houston [1st Dist.] 2002, pet. denied). Relying on this doctrine,

Oncor argues that “a plaintiff who is injured as a result of contact with a high voltage

power line may not recover against the owner or operator of the power line where

the evidence conclusively establishes the plaintiff failed to comply with the

requirements of [Chapter 752].”

within six feet of a high voltage overhead line while performing the function or activity” when, as in this case, the material at issue is already within six feet of a high voltage overhead line before the work begins. TEX. HEALTH & SAFETY CODE ANN. § 752.004(a)(2) (emphasis added); see TEX. R. APP. P. 47.4. –14– According to Oncor, its circular indemnity defense based on §§ 752.001, .003,

.004, and .008 in this case required proof of the following four elements:

(1) the lines in question constituted “high voltage” “overhead lines” as defined by § 752.001;

(2) Victor and Oscar did not provide Oncor with notice pursuant to Chapter 752;

(3) Victor and Oscar were responsible for the work, activity, or function at issue; and

(4) Victor and Oscar brought a tool, equipment, machine, or material within six feet of Oncor’s high-voltage overhead line.6

For simplicity, we refer to these purported elements as (1) the Voltage element,

(2) the Notice element, (3) the Responsibility element, and (4) the Six-Feet element.

C. We Assume Without Deciding that Oncor Has Identified the Elements to Establish an Affirmative Defense, if any, Based on Chapter 752. Oncor’s argument raises a preliminary question about whether a line owner or

operator may assert the indemnity provision in § 752.008 as an affirmative defense

to bar an injured plaintiff’s negligence claims. It also raises a question about how, if

at all, such an affirmative defense applies when, as in this case, there is more than

one plaintiff, particularly if only one is found to have violated Chapter 752.

Some of our sister courts have held that under the doctrine of circular

indemnity, a plaintiff who violates Chapter 752 and is injured by contact with a high

6 Victor and Oscar contend that Oncor had the burden to (1) submit a predicate question on the applicability of an exemption found in § 752.002 and (2) prove that Victor and Oscar were within the reach of the statute. Oncor contends that § 752.002 is inapplicable here. We need not address these arguments to dispose of this appeal. See TEX. R. APP. P. 47.4. –15– voltage overhead line is barred from recovering damages from the line owner or

operator. See, e.g., Presley v. Gulf States Utils. Co., No. 09-10-00039-CV, 2010 WL

4264097, at *2–6 (Tex. App.—Beaumont Oct. 28, 2010, pet. denied) (mem. op.);

Trail v. Friedrich, 77 S.W.3d 508, 513–14 (Tex. App.—Houston [1st Dist.] 2002,

pet. denied); Chavez v. City of San Antonio ex rel. City Public Serv. Bd. of San

Antonio, 21 S.W.3d 435, 438–440 (Tex. App.—San Antonio 2000, pet. denied). Cf.

Wolfenberger, 73 S.W.3d at 447–48 (plaintiff at least raised fact issue on application

of circular indemnity doctrine). Neither this Court nor the Supreme Court of Texas,

however, has addressed the issue or outlined the elements necessary to establish any

such affirmative defense.

We assume without deciding that §§ 752.001, .003, .004, and .008 of the

Texas Health and Safety Code establish an affirmative defense and that Oncor has

identified the essential elements necessary to establish such an affirmative defense,

if any, based on those sections. See TEX. R. APP. P. 47.4. We express no opinion on

whether any such affirmative defense exists under Texas law or on the elements

necessary to establish an affirmative defense, if any, under Chapter 752. See id. We

also express no opinion on how, if at all, the affirmative defense would apply in a

case such as this where there is more than one injured plaintiff. See id.

–16– EVIDENCE ON ONCOR’S CHAPTER 752 AFFIRMATIVE DEFENSE (ISSUE TWO)

A. Overview of Oncor’s Arguments on Appeal We will address Oncor’s second issue first. Oncor contends that it

conclusively established its right to judgment under Chapter 752 because it

“conclusively established each necessary element of Oncor’s circular indemnity

defense as a matter of law.” Alternatively, it argues that “the evidence was too weak

to support the jury’s findings relating to the elements of Chapter 752.”

Oncor contends that the trial court submitted Question Nos. 2 and 3 to obtain

jury findings on the Responsibility and Six-Feet elements, respectively, of Oncor’s

Chapter 752 defense. Oncor acknowledges that the jury’s “NO” answers to these

questions constituted findings adverse to Oncor.7 Oncor challenges those findings

on appeal.

Our analysis below turns on the Responsibility element, addressed in jury

Question No. 2. Oncor argues that the evidence presented at trial conclusively

established that Victor and Oscar were “responsible for the work, activity, or

function” or, alternatively, that the evidence at trial was too weak to support the

jury’s adverse findings.

7 We discuss Question No. 2 below. In Question No. 3, the jury was asked: “On July 12, 2016 at the time of the occurrence in question, were [Victor and Oscar] performing a function or activity that caused any part of a tool, equipment, machine, or material to be brought within six feet of a high voltage overhead line?” The jury answered “NO.” –17– With respect to the Six-Feet element (addressed in Question No. 3), Oncor

argues that the evidence conclusively established that Victor and Oscar brought part

of a tool, equipment, machine, or material within six feet of Oncor’s high voltage

overhead line or, alternatively, that the evidence was too weak to support the jury’s

adverse finding.

With respect to the Voltage element, Oncor contends that appellees’ counsel

stipulated as to the facts establishing the element and that the jury was instructed

accordingly.

With respect to the Notice element, Oncor contends that the trial court

submitted Question No. 4 to obtain a jury finding on that element. The jury answered

“NO” in response to Question No. 4, and Oncor contends that this constituted a

favorable finding establishing the Notice element of its affirmative defense.8

As we discuss below, after reviewing the record, we conclude that the

evidence supporting the jury’s answers to Question No. 2—relating to the

Responsibility element—is legally and factually sufficient, negating that element.

8 In Question No. 4, the jury was asked to answer “yes” or “no” as to each Victor, Oscar, and Alvarenga with respect to the following: Before the temporary work, activity, or function that [Victor and Oscar] were performing at the time of the occurrence in question began, did any of those named below notify Oncor of the work, activity, or function they would be performing at least 48 hours before the work began, and negotiate a satisfactory mutual arrangement with Oncor to provide temporary de-energization and grounding, temporary relocation or raising of its overhead line, or temporary mechanical barriers to separate and prevent contact between the line and the material or equipment involved in the work, activity, or function? The jury was instructed that a “yes” answer must be based on a preponderance of the evidence and that if it did not find that a preponderance of the evidence supported a “yes” answer, then it must answer “no.” The jury answered “NO” as to Victor, Oscar, and Alvarenga in Question No. 4. –18– Thus, we need not address Oncor’s arguments regarding the other three elements of

its alleged Chapter 752 defense. See TEX. R. APP. P. 47.4.

B. The Evidence Supporting the Jury’s Adverse Findings in Question No. 2 Is Legally and Factually Sufficient. Question No. 2, which related to the Responsibility element of Oncor’s

Chapter 752 affirmative defense, asked the jury the following:

Were any of the persons named below responsible for the work, activity, or function Victor Quintanilla and Oscar Rosales were performing on July 12, 2016[,] at the time of the occurrence in question? “Responsible for the work, activity, or function” means one who desires to temporarily carry on the work and who therefore exercises some degree of control over the worksite. Factors to be considered to determine whether someone is responsible for the work, activity, or function include:

(1) knowledge of the specific proposed location of the work; (2) participation in deciding where the work will be performed;

(3) presence at the worksite;

(4) involvement after hiring a contractor to perform services; and (5) ownership interest in the property where the work was conducted.

The charge asked the jury to answer “Yes” or “No” as to Victor and Oscar,

separately. The jury answered “NO” as to both.

Chapter 752 does not define “person, firm, corporation, or association

responsible” for the work, activity, or function. See TEX. HEALTH & SAFETY CODE

–19– ANN. §§ 752.001, .003. Here, the jury was provided with a definition and five non-

exclusive factors to consider when determining whether Victor and Oscar were

persons responsible for the work, activity, or function at issue. The definition and its

factors do not come from the plain-language of Chapter 752, nor do they seem to

take into account the provisions of § 752.003 that require a person responsible for

the work to pay for the line operator’s actual expenses in providing any agreed-upon

clearance of the lines. See id. §§ 752.003(c), (d). But there was no objection to the

form of Question No. 2, so we measure the legal and factual sufficiency of the

evidence against the charge as given. See Seger v. Yorkshire Ins. Co., Ltd., 503

S.W.3d 388, 407 (Tex. 2016) (legal sufficiency); Westview Drive Invs., LLC v.

Landmark Am. Ins. Co., 522 S.W.3d 583, 602 (Tex. App.—Houston [14th Dist.]

2017, pet. denied) (factual sufficiency). We express no opinion on whether the form

of Question No. 2, including the definition and factors listed therein, accurately

states Texas law. See TEX. R. APP. P. 47.4.

Oncor organizes its argument according to the five factors listed in

Question No. 2 and discusses Victor and Oscar together. So we will do the same.

1. Knowledge of the specific proposed location of the work

Oncor’s argument regarding the first factor consists of two sentences:

As to the first factor, the evidence presented at trial conclusively established that [Victor and Oscar] were familiar with and had knowledge of the location of the work to be performed. [RR 3:80-81, 135-138]. Moreover, they both testified that they could easily see

–20– Oncor’s guy anchor and attached guy wires before they began digging the bore pit in the exact same location. [RR 3:85, 120]

This argument and the cited portions of the record are inapposite. They do not

address or evidence Victor’s or Oscar’s having knowledge of a “proposed” location

of the work. The cited portions of the record, and other portions that Oncor ignores,

show that Victor and Oscar dug in the location staked by Frontier. Oncor does not

cite, and we have not found, evidence showing that the location Frontier had staked

was a “proposal” or that Victor and Oscar could have proposed a different location.

For example, Daryl McElroy, a regional supervisor for HMI, testified that

Frontier had told Alvarenga where to dig. Angel Alvarenga, an Alvarenga

supervisor, also testified that Frontier had told them where to dig and that Victor and

Oscar were told to dig the hole in the exact location they were because that is where

Frontier had staked it. He explained that the hole they were digging was in

preparation for a road bore; they were going to cross the road in that location because

there was a cross-connect box where they had to bring service from one side of the

road to that box, and they needed the hole in that location. Angel testified that

Frontier had placed stakes exactly where it wanted the new line.

Victor testified that his job was to dig a hole to put down telephone cable. He

testified that the location is marked by the telephone company. Victor explained that

he typically makes sure about where the hole is marked, waits for the order from his

supervisor to start digging, and then starts digging. Oscar, who had been working

–21– for Alvarenga only for a matter of months, agreed with Victor’s description of a

typical day and that it was accurate as to what happened on the day of the incident.

After reviewing the entire record, we conclude that the record does not

conclusively establish the first factor in jury Question No. 2 in Oncor’s favor. A

reasonable jury could conclude on this record that the first factor weighed against a

finding that either Victor or Oscar was responsible for the work, activity, or function

at issue.

2. Participation in deciding where the work will be performed

Oncor argues that the evidence at trial conclusively established the second

factor in Question No. 2 “because [Victor and Oscar] had some discretion in

determining the exact location of the bore pit and the manner in which the bore pit

would be dug.” According to Oncor, “it was undisputed at trial that both [Victor and

Oscar] exercised control over the location and nature of the work being performed

and were in a position to notify Oncor that they planned to excavate the guy anchor,

but simply chose not to do so.” Oncor contends that no one from Alvarenga or HMI

was supervising Victor and Oscar or providing them with guidance about how deep

or wide to dig the pit, that Victor and Oscar saw the guy anchor and guy wires and

chose to excavate the guy anchor anyway, and that Victor and Oscar had input and

responsibility amongst the two of them for determining how to perform the work.

–22– To support its argument, Oncor cites the same evidence it cited in support of the first

factor, plus additional portions of Victor’s, Oscar’s, and Angel’s testimony.

Oncor’s argument again strays from the factor given to the jury: Participation

in deciding where the work will be performed. As discussed above with the first

factor, there is more than a scintilla of evidence that Victor and Oscar dug in the

location staked by Frontier and could not choose a different location for the pit. The

additional portions of the record Oncor cites do not demonstrate Victor’s or Oscar’s

participating in deciding “where” the work will be performed.

Even if a decision about “where” the work would be performed implicated a

decision about how deep to dig the hole or, specifically, a decision to excavate the

guy anchor, the evidence is not conclusive in Oncor’s favor. For example, McElroy,

the HMI regional supervisor, was asked: “And at that location why did they have to

dig as deep as they had to?” He answered, “If I recall, this was a road expansion.

And they were actually dropping the depths of the road, the whole area, so they had

to go deeper and move all the utilities over so it would be out of the roadway.”

Further, Victor testified that a supervisor ordered him to dig no more than four

feet and that it was not his judgment call, or his sole decision, as to how deep to dig.

He also testified that on the day of the incident, he did what he was told to do by his

employer and that he did the same task that he had done numerous times before.

Victor denied touching the guy wire or guy anchor, denied causing the guy

anchor to move, and denied digging the anchor completely out of the ground. Victor

–23– also testified that he comes across guy wires “[a]lmost every day,” that he has

worked and dug around guy wires “[m]any times,” and that, in his experience, guy

wires are not hot. At one point, Victor was asked: “If [the job] calls for you to dig

around the guy wire, do you need to do anything different than what you would do

in the past?” He answered: “No. The same thing.”

Similarly, Oscar testified that on the day of the incident, he did what he was

told to do by his employer, that he dug up to the depth he was told to dig, that this

was the same task he had done numerous times before, and that he did not have any

reason to believe the guy wire was going to be hot. He further testified that he dug

around the anchor wire thinking it was safe; he had done so numerous times in the

past without issue. Oscar also denied moving the anchor or causing it to move.

Additionally, Angel denied that they removed the anchor and testified that

they worked around the anchor. And Johnny Dagenhart, appellees’ expert, testified

that he was not “so sure that [Victor and Oscar] intended to dig up the anchor itself.”

He testified, “They were digging a hole and the anchor happened to be there.”

Even if the evidence on some of these points was conflicting, the trier of fact

assesses the credibility of the witnesses and the weight to be given their testimony

and can accept all, part, or none of the testimony or make its own deductions from

the evidence. Cain v. Pruett, 938 S.W.2d 152, 159 (Tex. App.—Dallas 1996, no

writ). The jury as the trier of fact has the responsibility to judge the credibility of the

witnesses, to assign the weight to the witnesses’ testimony, and to resolve any

–24– inconsistencies in the testimony. Id. The jury may accept or reject all or part of the

witnesses’ testimony. Id.

Moreover, even if the presence of a supervisor is relevant, the evidence on

this point is also not conclusive in Oncor’s favor. Victor testified that a supervisor

was there when they arrived at the site. Angel, an Alvarenga supervisor, did testify

that no one from HMI or Frontier had come to watch and that Victor and Oscar were

left in the hole unsupervised. But he also testified about his coming to the site and

inspecting the scene before Victor and Oscar began digging and about how he saw

the markings on the ground and the guy wire before they started digging. Angel also

testified that he had been standing there when Victor and Oscar started digging and

stopped watching after they had dug out the first few feet. He further explained that

when he left Victor and Oscar, he was “across the street” taking a trailer off a truck.

Based on our review of the entire record, the evidence regarding the second

factor in Question No. 2 is not conclusive in Oncor’s favor. A reasonable jury could

conclude, on this record, that the second factor weighed against a finding that either

Victor or Oscar was responsible for the work, activity, or function at issue.

3. Presence at the worksite

There is no dispute that Victor and Oscar were present at the worksite. This is

where they were injured while performing their excavation work as Alvarenga

employees. This factor favors Oncor.

–25– 4. Involvement after hiring a contractor to perform services

Oncor argues that the fourth factor in Question No. 2 was conclusively

established by testimony showing that Victor and Oscar were the only two persons

physically present at or in the bore pit at the time the work was performed. According

to Oncor, the evidence it cites shows that (1) the next nearest person was Angel, who

was approximately 300 feet away and did not observe Victor and Oscar as they

excavated the guy anchor, and (2) Angel testified that he had no idea that Victor and

Oscar were excavating, manipulating, or otherwise altering the position of the guy

anchor.9

Oncor’s argument is inapposite to the fourth factor in Question No. 2. Oncor

makes no argument and cites no evidence showing that Victor or Oscar hired a

contractor or that they were involved after another contractor was hired to perform

any services. And we have found no such evidence. Rather, the record reflects that

HMI was Frontier’s general contractor, that Alvarenga was HMI’s subcontractor,

and that Victor and Oscar were Alvarenga’s employees; nothing in the record

indicates that anyone else was hired for this excavation work.

Based on our review of the entire record, the evidence regarding the fourth

factor in Question No. 2 is not conclusive in Oncor’s favor. A reasonable jury could

9 As shown above, the record does not support Oncor’s contentions about what Angel’s testimony was concerning his supervision of Victor and Oscar and their having moved the guy anchor. And the cited portions of the record do not reflect that Angel was “approximately 300 feet away”; we have found no such evidence. –26– conclude that this fourth factor weighed against a finding that either Victor or Oscar

was responsible for the work, activity, or function at issue.

5. Ownership interest in the property where the work was conducted

Oncor acknowledges in its brief that Victor and Oscar “did not have an

ownership interest in the property where the work was being performed.” But Oncor

takes the position that we should “minimally consider that factor” and instead focus

on whether an employee had “some degree of control” over the worksite and the

actual work being performed. We reject Oncor’s argument.

The jury was instructed that it could consider whether Victor and Oscar had

an ownership interest in the property where the work was conducted when

determining whether Victor or Oscar was responsible for the work, activity, or

function at issue. It was not instructed to “minimally consider” this fifth factor.

When a case is tried to a jury and the party complaining on appeal did not

object to the charge (as in this case), the sufficiency of the evidence is measured

against the court’s charge, not some other law not identified in the charge. See

Osterberg v. Peca, 12 S.W.3d 31, 55 (Tex. 2000). The jury was free to decide the

weight to assign to each of the five nonexclusive factors listed in the jury charge.

See Big Dog Logistics, Inc. v. Strategic Impact Corp., 312 S.W.3d 122, 136–37 (Tex.

App.—Houston [14th Dist.] 2010, pet. denied).

Based on our review of the record, the fifth factor in Question No. 2 is not

conclusive in Oncor’s favor and a reasonable jury could conclude that this factor

–27– weighed against a finding that either Victor or Oscar was responsible for the work,

activity, or function at issue.

6. One who desires to temporarily carry on the work and who therefore exercises some degree of control over the worksite Oncor concludes its discussion of the sufficiency of the evidence to support

the jury’s adverse findings on Question No. 2 by stating that the evidence

“conclusively established” that Victor and Oscar were both “the sole persons with

knowledge of and discretionary control over the specific work being performed and

the only two individuals who remained present at the worksite and remained

involved in the work at issue for the entirety of its duration.” It further argues:

“Alternatively, the evidence at trial was too weak to support the jury’s finding[s]

that [Victor and Oscar] were not responsible for the work.”

Oncor’s arguments concerning control over the worksite seem to derive from

the general definition set forth in Question No. 2. Specifically, the question defined

“[r]esponsible for the work, activity, or function” as “one who desires to temporarily

carry on the work and who therefore exercises some degree of control over the

worksite.” (Emphasis added.)10 Oncor cites three cases from our sister courts

(Chavez, 21 S.W.3d at 437–38, Presley, 2010 WL 4264097, at *6, and Trail, 77

S.W.3d at 509–13) and suggests that following those cases compels a conclusion

10 Oncor provides no argument and cites no evidence showing how either Victor or Oscar “desire[d] to temporarily carry on the work.” A determination of the effect, if any, of Oncor’s failure to address the first portion of the definition in Question No. 2 is not necessary to dispose of this appeal. See TEX. R. APP. P. 47.4. –28– that the evidence conclusively establishes that Victor and Oscar were responsible for

the work. Oncor’s argument is not persuasive for three reasons.

First, to the extent Oncor’s discussion of the factors in Question No. 2

addressed Victor’s and Oscar’s control over the worksite, Oncor’s arguments are

either not supported by the record or require this Court to ignore the evidence that

supports the challenged findings and to consider only the evidence that, in Oncor’s

view, is contrary to the adverse findings, as discussed above. Thus, Oncor’s legal-

and factual-sufficiency challenges to the jury’s answers to Question No. 2 are

contrary to our standards of review. See Dow Chem. Co., 46 S.W.3d at 241–42.

Second, Oncor’s reliance upon the cited cases is misplaced. The sufficiency

of the evidence in this case is measured against the court’s charge, not some other

law not identified in the charge. See Osterberg, 12 S.W.3d at 55. The charge defined

a person who is “[r]esponsible for the work, activity, or function,” and the jury was

then free to consider and weigh the five listed factors to determine if Victor or Oscar

fell within that definition. We defer to the jury’s role to weigh the factors listed in

Question No. 2. See Rangel v. Rivera, No. 14-14-00623-CV, 2015 WL 4930894, at

*3 (Tex. App.—Houston [14th Dist.] Aug. 18, 2015, no pet.) (mem. op.).

Third, the cases cited by Oncor are distinguishable. Each is a summary-

judgment case. And in each case, the evidence was uncontroverted that the person

injured (1) was working as a volunteer or independent contractor and not as an

employee or (2) was an employee who was not doing the job he had been instructed

–29– to do by his employer or at the employer’s worksite. See Chavez, 21 S.W.3d at 437–

38 (person injured had volunteered to trim a tree for a friend’s mother); Trail, 77

S.W.3d at 509–13 (person injured was working on the roof of a building as an

independent painting contractor and the premises owner did not retain any right to

direct the details of the painter’s work); Presley, 2010 WL 4264097, at *1–2 (person

was injured when he raised the bed of his employer’s truck at an auto-parts store,

but the injured person had taken the truck to the store without telling his employer

rather than going to employer’s dig site as his employer had instructed).

By contrast, this is a jury-trial case. And the evidence about Victor’s and

Oscar’s control over the worksite was not uncontroverted. There was also no

contention that Victor or Oscar were volunteers (like in Chavez) or independent

contractors (like in Trail). Although Victor and Oscar were employees like the

plaintiff in Presley, there is more than a scintilla of evidence in this case that Victor

and Oscar were doing the job that their employer had instructed them to do: they dug

in the location where they had been told to dig, they were at the worksite where their

employer had instructed them to go, and they did their work while a supervisor was

either standing there watching them or was across the street.11

11 In its reply brief, Oncor cites Jordan v. Centerpoint Energy Houston Elec., LLC, No. 14-18-00663- CV, 2019 WL 5565978, at *6 (Tex. App.—Houston [14th Dist.] Oct. 29, 2019, pet. denied) (mem. op.), for the general definition of a person responsible for the work. But Jordan is another summary-judgment case, and the person injured did not dispute on appeal that he alone controlled the work and was a person responsible under § 752.003. Id. Oncor also cites AEP Tex. N. Co. v. SPA Pipe, Inc., No. 03-06-00122-CV, 2008 WL 5210919, at *6 (Tex. App.—Austin Dec. 12, 2008, pet. dism’d) (mem. op.), in its discussion of Question No. 2 in its reply. But in that case, the court assumed without deciding that courts should consider

–30– After reviewing the entire record, the evidence relating to control over the

worksite is not conclusive in Oncor’s favor and a reasonable jury could conclude

that Victor and Oscar did not exercise some degree of control over the worksite.

7. Conclusion

Viewing the evidence in the light most favorable to the challenged findings,

we conclude that more than a scintilla of evidence supports the jury’s answers on

Question No. 2. Further, considering and weighing all of the evidence, we cannot

say that the evidence supporting the jury’s answers on Question No. 2 is so weak or

that the findings are so against the overwhelming weight of the evidence that the

findings are clearly wrong and unjust. Thus, the evidence is legally and factually

sufficient to support the jury’s adverse answers on Question No. 2.

Oncor did not conclusively establish the Responsibility element of its Chapter

752 defense or successfully challenge the jury’s adverse answers to Question No. 2.

Thus, we need not address the remaining elements addressed in jury Question Nos.

3 and 4. We overrule Oncor’s second issue.

EVIDENCE OF ONCOR’S NEGLIGENCE (ISSUE ONE) In its first issue, Oncor argues that there was factually and/or legally

insufficient evidence of Oncor’s negligence. In Question No. 1, the jury was asked,

whether a person had some degree of control over a worksite when determining who is a person responsible for the work and then concluded that a fact issue existed on whether the movant had such control. See id. at *6 n.10.

–31– “Did the negligence, if any, of those named below proximately cause the occurrence

in question?” The jury was asked to answer “Yes” or “No” as to Victor, Oscar,

Alvarenga, and Oncor, separately. The jury answered “Yes” as to each.

Oncor argues that the jury’s negligence finding against Oncor is supported by

insufficient evidence because there is legally and/or factually insufficient evidence

of (1) foreseeability; (2) proximate cause; (3) negligence, duty, foreseeability, and

causation due to Chapter 752; and (4) negligence due to appellees’ trespass upon

Oncor’s chattel. We resolve this issue against Oncor.

A. Foreseeability Oncor contends that there is legally and/or factually insufficient evidence that

its “use of a two-foot guy insulator posed a foreseeable risk of harm to [Victor and

Oscar].” It argues that “this occurrence, or some similar event” was unforeseeable

as a matter of law because it could have not foreseen that Victor and Oscar would

“excavate” the guy anchor without notice to or authorization from Oncor.

To support its position, Oncor contends that the undisputed evidence at trial

was that the guy wire, as installed, was incapable of becoming energized unless

tension on it was released. It then points to evidence that it contends shows that

utility poles commonly last seventy years or more and that the guy-wire system at

issue had existed for approximately thirty years without sagging or becoming

energized before Victor and Oscar purportedly “excavated the guy anchor.”

According to Oncor, guy-wire sagging is rare, the circumstances under which guy-

–32– wire sagging is expected were not present here, and the mere possibility of the

occurrence did not make it foreseeable.

In short, Oncor’s argument, as we understand it, is that as a matter of law,

Oncor’s guy-wire system as installed posed no foreseeable danger to Victor or

Oscar, or someone similarly situated who digs in proximity to a guy anchor. This is

because, in Oncor’s view, Victor’s and Oscar’s actions of purportedly digging up

the guy anchor without notice to Oncor was unforeseeable as a matter of law.

Oncor’s position ignores the evidence regarding the reasons why it installed

an insulator on the guy wire in the first instance (to protect people on the ground

from electrocution if the guy wire sags). Its argument is also contrary to Texas law

because it focuses on the foreseeability of the specific reason why this guy wire

sagged and not on the foreseeable danger that Oncor’s negligent act or omission

created for others. It is also construing the evidence in a light most favorable to

Oncor and ignoring the evidence favorable to the verdict, contrary to our standards

of review. See Dow Chem. Co., 46 S.W.3d at 241–42; Hoss, 338 S.W.3d at 651.

1. A reasonable jury could conclude that Oncor’s installing an insulator that was too short to extend past the hot line created a reasonably foreseeable danger of electrocution to Victor and Oscar, or someone similarly situated. Foreseeability means that an actor, as a person of ordinary intelligence, should

have anticipated the dangers that his negligent act or omission created for others.

Alcoa, Inc. v. Behringer, 235 S.W.3d 456, 460 (Tex. App.—Dallas 2007, pet.

denied). As we explained in Alcoa, Inc., the Texas Supreme Court uses the following –33– two-prong test for foreseeability: (1) that the injury be of such a general character as

might reasonably have been anticipated, and (2) that the injured party should be so

situated with relation to the wrongful act that injury to him or one similarly situated

might reasonably have been foreseen. Id. (citing Mellon Mtge. Co. v. Holder, 5

S.W.3d 654, 655 (Tex. 1999)). “Foreseeability requires only that the general danger

of a harmful event occurring be foreseeable.” Sanmina-SCI Corp. v. Ogburn, 153

S.W.3d 639, 642 (Tex. App.—Dallas 2004, pet. denied). “The question of

foreseeability . . . involves a practical inquiry based on common experience applied

to human conduct.” Doe v. Boys Club of Greater Dallas, Inc., 907 S.W.2d 472, 478

(Tex. 1995) (internal quotation marks and citation omitted).

Following Texas law, the proper inquiry regarding the foreseeability element

of appellees’ negligence claims was whether a person of ordinary intelligence should

have anticipated that Oncor’s negligent act or omission—here, installing an

insulator that was too short to extend past the hot line if the guy wire sagged onto an

electrified jumper—created a reasonably foreseeable danger of electrocution to

Victor and Oscar, or someone similarly situated. See Alcoa, Inc., 235 S.W.3d at 460.

More than a scintilla of evidence demonstrated that the answer to that question was

yes. For example:

 Terry Mayo, Oncor’s distribution-standards manager and representative at trial, testified that power companies must effectively insulate their guy wires to prevent them from becoming electrified and to protect us all from electrocution. He agreed that “[g]uy wires do sag” and that this occurs

–34– “because the anchor moves,” “[i]f someone digs [the anchor] up,” and because of “soil erosion.”

Mayo’s testimony evidenced that at least one reason why Oncor installs insulators on guy wires is to prevent electricity from traveling to the ground when the guy wire sags and contacts energized equipment; the insulator would not allow enough current to flow through it.

Mayo also testified that the pole and guy wire at issue were subject to the 1984 National Electric Safety Code (NESC). The record reflects that as to guy insulators, the NESC states: “Insulators shall be so placed that in case any guy sags down upon another, the insulators will not become ineffective.” Mayo testified that the pole was also governed by a design standard that Oncor created and originally published in 1969 and that the intent behind that standard was for the insulator to extend past the hot wire. Mayo further testified that Oncor installs insulators to protect everyone on the ground, including utility workers like Victor and Oscar, from electrocution. He testified about how certain utility workers on the ground are particularly at risk of being electrocuted: “[T]here’s a couple of different groups of people that aren’t as educated about the hazards of electricity [as Oncor’s utility workers] and that’s primarily children, and then other workers who are working near utility lines.” Mayo explained that “[j]ust because you’re working and a contractor and you’re working around energized equipment, you’ve not necessarily been trained on the dangers.”

Mayo acknowledged that the insulator at issue did not extend past the hot wire and that this included when the pole was built in 1986.

 Ian Neff, an HMI safety manager, testified about excavation workers like Victor and Oscar as being among the types of utility workers who work near energized equipment without appreciating the danger. He testified that Alvarenga is an excavation-digging outfit and that excavation workers are trained on below-ground dangers; they are not typically trained on aerial dangers or on identifying inadequately insulated guy wires. Neff testified that some crews like Alvarenga dig in proximity to anchors and guy wires every day, all day, and that it is common practice to move underground utilities.

 Angel Alvarenga testified that Alvarenga “work[s] around saggy guy wires all the time,” that he encounters sagging guy wires “[o]n a daily” basis, and

–35– that he saw sagging guy wires as he drove to court that day. He also testified that the guy wire at issue was sagging before they started digging.

 Johnny Dagenhart, P.E., appellees’ electrical-engineering expert, testified that the insulator is placed on the pole so electricity does not transmit to the ground if the guy sags down “for whatever reason.” Dagenhart testified that the insulator is there to protect everyone, even people digging up the anchor. According to Dagenhart, these insulators have been used since at least 1977. The record reflects that this guy-wire system was installed in 1986 to 1987.

According to Dagenhart, an inadequate safeguard or an ineffective fail-safe was like a ticking time bomb and an “accident waiting to happen eventually.” He also testified: “People are going to do expected activities. Digging a hole in the ground is an expected activity. And, generally speaking, that’s taking into account with the 811 dial-before-you-dig-type situation under most circumstances now.” He further testified: “[T]he electric industry tries to take into account the expected activities. And, hopefully, even people doing foolish things sometimes and still not getting hurt.”

 Forest J. Smith, P.E., Oncor’s electrical-engineering expert, provided testimony showing that the electrical-power industry has known since at least the 1920s that guy wires sag and lose tension and that these things are foreseeable to power companies. He also testified about an insulator’s role in protecting people working on the ground near a utility pole. He testified that a guy wire that contacts hot wires is an electrical hazard and that an insulator is a safeguard that protects people when guy wires contact hot wires.

Smith also testified that the “whole reason for the insulator is to interrupt any path to ground the current might take,” explaining that “an insulator . . . blocks electric current from flowing.” He admitted that the “insulator was there to protect Oscar and Victor.” Smith also agreed that the insulator at issue did not extend past the hot wire when Victor and Oscar arrived at the worksite.

On this evidence, a reasonable jury could conclude that power companies like

Oncor have been aware for nearly a century that guy wires sag and lose tension. It

could also conclude that even if guy-wire sagging is not common (though there was

testimony evidencing it happens more regularly), Oncor understands that the

potential danger of a sagging guy wire is significant enough—particularly to

–36– untrained utility workers—that Oncor has been installing insulators on its guy wires

for decades. Thus, a jury could reasonably conclude that Oncor’s installing an

insulator that was too short to extend past the hot line if the guy wire sagged created

a reasonably foreseeable danger of electrocution to Victor and Oscar, or someone

similarly situated.

2. Oncor’s foreseeability argument erroneously focuses on the foreseeability of the precise manner by which Victor and Oscar were injured. In its challenge to the foreseeability element of appellees’ negligence claims,

Oncor focuses on how, in Oncor’s view of the evidence, the guy-wire system stood

before Victor and Oscar began digging. As we understand its argument, Oncor

contends that the guy-wire system could pose a danger only as it stood if someone

dug up the anchor and that such an occurrence is unforeseeable as a matter of law.

Oncor cites three cases from other jurisdictions to support its position: Hercules

Powder, Co. v. Disabatino, 188 A.2d 529 (Del. 1963), Rank v. Metro. Edison Co.,

87 A.2d 198 (Pa. 1952), and Greenwald v. N. States Power Co., 32 N.W.2d 320

(Minn. 1948). We reject Oncor’s argument for four reasons.

First, Oncor’s foreseeability argument is premised on a contention that it was

entitled to notice of the work and had to authorize the work before it began; this

implicitly assumes that Chapter 752 applied to the excavation work at issue. As

discussed above, Oncor did not conclusively establish its Chapter 752 defense.

–37– Second, Oncor’s focus on the foreseeability of the specific reason why this

guy wire sagged is contrary to Texas law. Foreseeability “does not require that a

person anticipate the precise manner in which injury will occur once he has created

a dangerous situation through his negligence.” Univ. of Tex. M.D. Anderson Cancer

Ctr. v. McKenzie, 578 S.W.3d 506, 519 (Tex. 2019). “It requires only that the general

danger, not the exact sequence of events that produced the harm, be foreseeable.”

Id. (internal quotation marks and citation omitted). “The test is not what the

[defendant] believed would occur,” and it does not “require that he anticipate just

how injuries will grow out of that dangerous situation.” Id. at 520 n.12 (citation

omitted, brackets in original). Rather, the issue is “whether he ought reasonably to

have foreseen that the event in question, or some similar event, would occur.” Trinity

River Auth. v. Williams, 689 S.W.2d 883, 886 (Tex. 1985).

Third, even if it were relevant, Oncor’s arguments that the guy-wire system

as it stood posed no foreseeable danger and that someone’s digging up the guy

anchor is unforeseeable as a matter of law are based on a view of the evidence that

is favorable to its position and that ignores the evidence favorable to the verdict. This

is contrary to our standards of review. See Dow Chem. Co., 46 S.W.3d at 241–42;

Hoss, 338 S.W.3d at 651. As shown above, multiple witnesses (including Dagenhart,

Mayo, Neff, Angel, Victor, and Oscar) provided testimony from which a reasonable

jury could conclude that the guy-wire system, as it stood, created a foreseeable

danger to others; that someone’s digging up a guy anchor is foreseeable; that guy

–38– wires can sag due to things like soil erosion; that this guy wire was sagging before

the work began; and that guy-wire sagging occurs often.

Although Oncor solicited testimony that Victor’s and Oscar’s actions, as

Oncor views them, were not foreseeable and that Oncor has reason to expect that

members of the working public will comply with Chapter 752 (assuming it applies),

the jury was free to reject it. See City of Keller, 168 S.W.3d at 819–20; Golden Eagle

Archery, Inc., 116 S.W.3d at 761; Cain, 938 S.W.2d at 159. Moreover, the trial court

admitted into evidence Oncor’s “Safety Smart–Know the Law” brochure discussing

Chapter 752. That brochure stated that responsible parties who violate Chapter 752

are subject to criminal penalties. See TEX. HEALTH & SAFETY CODE ANN. § 752.007

(imposing a criminal penalty for violations of Chapter 752). Evidence of the

existence of a criminal penalty for a Chapter 752 violation was some evidence that

work performed in violation of the statute was reasonably foreseeable.

Fourth, the three decades’ old cases cited by Oncor from other jurisdictions

are distinguishable and not persuasive. In Hercules Powder, a man was killed after

he grasped a hanging guy wire that had been cut loose from its anchor by an

unknown third person. 188 A.2d at 531. At the trial of that case in the early 1960s,

all experts agreed that as installed and attached to their anchors, the guy wires in

question were in no way dangerous, could not possibly have become energized, and

would not readily become loosened. Id. at 531–33. Here, there was no such

–39– agreement. Indeed, Dagenhart’s testimony was essentially that Oncor’s installing an

insulator that was too short to extend past the hot line was a ticking time bomb.

In Greenwald, a man located in a rural area was electrocuted and killed when

he disconnected an uninsulated guy wire at the anchor. 32 N.W.2d at 320–21. But in

that case from the 1940s, the evidence was that insulators were not used in rural

regions. Id. at 321. On the record before it, the court concluded that “[t]he guy wires

were so installed as to involve no danger at all to persons on the ground” and that

“was the full measure of defendant’s duty to decedent.” Id. at 322. In the instant

case, however, the record contains evidence showing that Oncor acknowledges it

owes a duty to insulate its guy wires to protect the public, including workers like

Victor and Oscar, from electrocution. Unlike Greenwald, there was evidence in this

case, based on events taking place decades later, that the guy wire at issue was

supposed to be insulated and the insulator was supposed to extend past the hot wire.

In Rank, the court expressly declined to address whether a plaintiff’s

detachment of a guy wire from an anchor fell within a foreseeable orbit of danger

and instead assumed negligence on the part of the defendant. 87 A.2d at 199–200.

The court did not hold, as Oncor contends, that “inadequately insulated guy wires

pose no foreseeable risk of harm where guy wire had remained in original condition

and had never become energized in 16 years since installation.”

Oncor attempts to liken the facts of this case to those in the above three cases

by referring to Mayo’s testimony that he has “not known anyone at Oncor to have

–40– been injured or killed by sagging guy wires.” Oncor fails to acknowledge that in the

next question, Mayo was asked: “But that’s the reason they started putting insulators

on guy wires 50 years ago.” And he answered: “It is part of the code.” Oncor’s

argument also ignores testimony from Mayo, Dagenhart, and Smith evidencing that

the code and/or design standards applicable here required the insulator to extend past

the hot line at issue.

All three cases cited by Oncor were issued years, if not decades, before the

1984 NESC and 1969 Oncor design standards applicable to the pole at issue. Even

if Oncor solicited different opinions on the proper interpretations of those standards

at trial, the jury was free to reject that testimony. See City of Keller, 168 S.W.3d at

819–20; Golden Eagle Archery, Inc., 116 S.W.3d at 761; Cain, 938 S.W.2d at 159.

Oncor also cites Dyess v. Harris, 321 S.W.3d 9, 13–15 (Tex. App.—Houston

[1st Dist.] 2009, pet. denied), and Stumph v. Dallas Fire Insurance Co., 34 S.W.3d

722, 730 (Tex. App.—Austin 2000, no pet.), to argue that the mere existence of a

result that was within the realm of possibilities does not make a risk of harm

reasonably foreseeable. But Oncor’s reliance upon these cases is misplaced. Dyess

concerns whether the defendants could have reasonably foreseen the criminal acts

of a third party; this is not an issue raised in this case. See 321 S.W.3d at 13–17

(involving foster parents and foster-care agency being sued for negligence after a

foster child who was placed in the foster parents’ home sexually assaulted another

child in the home). Stumph is an insurance-policy-interpretation case that does not

–41– address or even use the word “negligence.” See 34 S.W.3d at 724–34. Both cases are

inapposite to the foreseeability analysis of appellees’ negligence claims.

Accordingly, we reject Oncor’s arguments challenging the foreseeability

element of Victor’s and Oscar’s negligence claims.

B. Proximate Cause

Oncor next argues that Victor and Oscar “presented legally and/or factually

insufficient evidence of proximate causation.” According to Oncor, this is because,

in its view, “[Victor’s and Oscar’s] decision to excavate the guy anchor without

authorization or notice to Oncor, causing the guy wire to become energized, was

entirely unforeseeable as a matter of law and severed the chain of proximate

causation.” Oncor’s argument, as we understand it, is that the evidence conclusively

demonstrates that Victor’s and Oscar’s actions, as Oncor views them, constituted a

new and independent cause.

This argument again assumes that Chapter 752 applied to the work at issue

and that Victor and Oscar violated that chapter. As shown above, Oncor did not

conclusively establish its Chapter 752 defense.

Regardless, Oncor’s argument misconstrues Texas law governing new and

independent cause. A new and independent cause of an occurrence is the act or

omission of a separate and independent agent, not reasonably foreseeable, that

destroys the causal connection, if any, between the act or omission inquired about

and the occurrence in question. Columbia Rio Grande Healthcare, L.P. v. Hawley,

–42– 284 S.W.3d 851, 856 (Tex. 2009). The theory of new and independent cause is a

component of the proximate-cause issue that a jury may consider in determining the

existence or non-existence of proximate cause. Id.

“[U]nder Texas law, a new and independent cause that extinguishes the

liability of a party cannot arise out of an affirmative act of negligence by either the

plaintiff or the defendant.” Biaggi v. Patrizio Rest. Inc., 149 S.W.3d 300, 305 (Tex.

App.—Dallas 2004, pet. denied). “The defensive issue of new and independent

cause can be raised and attributed only to some outside agency operating to cause

the complained-of injury.” Id. As a result, any negligence by Victor or Oscar, even

if it contributed to each of their own injuries, did not act to extinguish Oncor’s

liability for injuries caused by its own negligence. See id. at 305–06.

In fact, none of the authorities cited by Oncor in support of its proximate-

cause argument are on point. For example, Oncor cites Timberwalk Apartments,

Partners, Inc. v. Cain, 972 S.W.2d 749, 753, 758 (Tex. 1998), and Bos v. Smith, 556

S.W.3d 293, 304–05 (Tex. 2018). But both cases concerned whether the defendant

owed a duty to protect someone from the criminal acts of a third party. Here, Oncor

is complaining about Victor’s and Oscar’s acts, not the criminal acts of a third party.

Oncor also cites Seaway Products Pipeline Co. v. Hanley, 153 S.W.3d 643,

658 (Tex. App.—Fort Worth 2004, no pet.). In that case, a third-party excavator had

ruptured a pipeline company’s pipeline. Id. at 647–48. The pipeline company then

sued the developers of the land based on the theory that the developers were

–43– negligent by platting the lot so that the pipeline would run under the front of the lot

rather than on the back or sides of the lot. Id. In the portion of the case cited by

Oncor, the court was addressing whether the developers could have foreseen that

their platting of a lot so that the pipeline ran under the front of the lot could have led

to the third-party excavator’s rupture of the pipeline. Id. at 658. The court did not

hold that the pipeline company’s own actions (who are in the same posture as Victor

and Oscar here) constituted a new and independent cause that severed the chain of

proximate cause. See id.

Oncor also cites Alabama Power Co. v. Moore, 899 So. 2d 975, 977 (Ala.

2004). According to Oncor, the Moore court held that a “directed verdict was proper

in favor of an electric utility where the plaintiff [had] used tools to remove a guy

wire from a guy anchor, causing the guy wire to lose tension and become energized

after touching an energized ‘stinger’ wire.” But the utility company in Moore did

not dispute that it was negligent in maintaining the utility pole and guy wire. Rather,

the Moore court held that the plaintiff’s intentional actions “superseded any alleged

negligence or wantonness” of the utility company. Id. at 980. Oncor fails to

recognize, however, that Moore was decided under Alabama law—and Alabama

(unlike Texas) is a contributory-negligence state.12 Thus, the analysis in Moore does

not comport with the law in Texas. See Biaggi, 149 S.W.3d at 305–06.

12 In Alabama, “[c]ontributory negligence on the part of a plaintiff [that] proximately contributes to the plaintiff’s injuries will bar recovery.” Creel v. Brown, 508 So. 2d 684, 687–88 (Ala. 1987); see also Hawkins v. Simmons, 295 So. 3d 683, 688 (Ala. Civ. App. 2019). –44– Accordingly, we reject Oncor’s contention that Victor’s and Oscar’s actions,

even as Oncor views them, constituted a new and independent cause that severed the

chain of proximate causation.

C. Negligence, Duty, Foreseeability, and Causation Due to Chapter 752 Oncor’s third argument is that there is legally and/or factually insufficient

evidence of “negligence, duty, foreseeability, and causation due to [Victor’s and

Oscar’s] failure to comply with the notice requirements of Chapter 752 of the Texas

Health and Safety Code.” According to Oncor, “Where a statutory scheme exists for

making utilities aware of work that may interfere with the utility’s infrastructure, it

is unforeseeable that individuals will be injured by a utility’s infrastructure where

the party failed to notify the utility before beginning the work.” Oncor then argues:

Here, [Victor and Oscar] presented legally and/or factually insufficient evidence of negligence, duty, foreseeability[,] and causation[] because they presented legally and/or factually insufficient evidence that anyone provided Oncor with any type of notice required by Chapter 752. In fact, the evidence presented at trial conclusively established that no one provided Oncor with any type of notice required by Chapter 752.

Oncor further contends that it had “no duty to foresee that someone would be

conducting work that would cause them to excavate the guy anchor and reposition

the guy wire to come into contact with Oncor’s high voltage overhead lines because

Oncor had received no notice under Chapter 752.” And, it argues, “Oncor could not

have foreseen that [Victor and Oscar] would perform their work in such a reckless

manner as to cause the type of occurrence at issue in this case.” Oncor’s arguments

are unpersuasive. –45– Oncor’s position appears to be that when a statutory scheme exists for making

utilities aware of work that may interfere with the utility’s infrastructure, it is

unforeseeable as a matter of law that individuals will be injured by a utility’s

infrastructure when the party failed to notify the utility before beginning the work.13

Oncor cites two cases to support its argument, but neither case stands for such a

broad proposition. See Seaway Prods. Pipeline Co., 153 S.W.3d at 658 (holding

pipeline company offered no summary-judgment evidence demonstrating that the

rupture of its pipeline by a third-party excavator was foreseeable to the developers

when they platted the lot so that pipeline ran in the front of the lot); Hanus v. Tex.

Utils. Co., 71 S.W.3d 874, 877, 882–84 (Tex. App.—Fort Worth 2002, no pet.)

(holding that a plaintiff did not present summary-judgment evidence showing that

power company’s decision to bury power lines created a duty to warn the

homeowners of the dangers associated with buried power line).

Further, Oncor is merely repeating its contentions that (1) it could not have

foreseen the specific manner in which this incident occurred and (2) Victor’s and

Oscar’s actions, as Oncor views them, constitute a new and independent cause. As

discussed above, these positions are contrary to Texas law, based on a view of the

13 Oncor’s argument is again premised on an unstated assumption that Oncor conclusively proved that it was entitled to notice of the work under Chapter 752 and that the required notice was not provided. As shown above in our discussion of Oncor’s second issue, Oncor did not conclusively prove at least one element necessary to establish its alleged affirmative defense under Chapter 752. We express no opinion on whether, on this record, Oncor proved or obtained findings from the jury that Oncor was entitled to but did not receive notice under Chapter 752 in this case. See TEX. R. APP. P. 47.4. –46– evidence that is contrary to our standards of review, or both. See McKenzie, 578

S.W.3d at 519 (discussing foreseeability of manner in which incident occurred);

Biaggi, 149 S.W.3d at 305–06 (discussing new and independent cause).

Oncor contends that in Mountain States Telephone & Telegraph Co. v. Vowell

Construction Co., 341 S.W.2d 148, 150 (Tex. 1960), the Supreme Court of Texas

held that a “telephone company could not have foreseen that city would excavate its

telephone cable where city never informed company that it would be conducting

work near underground cable.” We disagree. In that case, a telephone company

asserted a trespass claim against a contractor, and the court analyzed whether the

evidence at trial conclusively established that the construction company had

committed a trespass by severing a cable that was lawfully located in the street. See

341 S.W.2d at 149–51. Chapter 752 was not at issue in that case, nor was any other

statutory scheme for making utilities aware of work that may interfere with the

utility’s infrastructure. The court did not analyze whether the contractor’s actions

were reasonably foreseeable to the telephone company; the words “foresee” and

“inform” do not appear, in any variation, in the opinion at all. See id. at 148–51.

Finally, Oncor cites Bryant v. Gulf Oil Corporation, 694 S.W.2d 443, 446

(Tex. App.—Amarillo 1985, writ ref’d n.r.e.), regarding the duties owed by an

occupier of premises to the employees of an independent contractor. But Bryant is

distinguishable because it was a premises liability case, the defendant had “no

control over the installation or the maintenance of the highline,” and the case did not

–47– concern the foreseeability of whether the employee of a subcontractor may engage

in work without providing a utility with notice required by any particular statute. See

id. at 446–47. The instant case was submitted to the jury as an ordinary negligence

case, and the evidence supporting the jury’s ordinary-negligence finding against

Oncor is what Oncor is challenging on appeal.

Accordingly, and after reviewing the entire record, we reject Oncor’s

contention that Victor’s and Oscar’s actions, even as Oncor views them, rendered

the evidence of “negligence, duty, foreseeability, and causation” legally or factually

insufficient.

D. Trespass Upon Oncor’s Chattels

Oncor’s fourth challenge to the evidence supporting the negligence finding is

premised on the notion that Victor and Oscar were trespassers to Oncor’s chattels.

Oncor argues: “Because [Victor and Oscar] were trespassers, the evidence of

negligence at trial was legally and/or factually insufficient.” Oncor contends that

Victor and Oscar “excavated” the guy anchor and caused the guy wires to change

position and that by doing so, they became trespassers as to Oncor’s chattels. Thus,

it argues, “Oncor did not owe them a duty of ordinary care in negligence in installing

and maintaining the guy anchor or guy wires.” Instead, Oncor contends that it is not

liable “absent a showing of gross negligence.”

“A detention of personalty lawfully obtained, after demand, is a wrongful act

constituting a trespass.” Zapata v. Ford Motor Credit Co., 615 S.W.2d 198, 201

–48– (Tex. 1981). And as this Court has explained, “A trespass to chattels is a wrongful

interference with or injury to property that causes actual damage to the property or

deprives the owner of its use for a substantial period of time.” Armstrong v.

Benavides, 180 S.W.3d 359, 363 (Tex. App.—Dallas 2005, no pet.). Oncor did not

make any argument about trespass to chattels until after the jury’s verdict. No

question or instruction was requested by Oncor about appellees’ “detention of

personalty” or “injury to property.” See Zapata, 615 S.W.2d at 201; Armstrong, 180

S.W.3d at 363. Instead, based on instructions requested by Oncor, the jury

considered whether Oncor’s negligence was a proximate cause of appellees’ injuries.

The same question and instruction also inquired about appellees’ negligence, and the

jury made findings accordingly. As we have discussed, there was legally and

factually sufficient evidence to support the jury’s findings. Consequently, we reject

Oncor’s contention that “the evidence was legally and/or factually insufficient to

establish negligence as to a trespasser.”

E. Conclusion

Viewing the evidence in the light most favorable to the challenged finding,

we conclude that more than a scintilla of evidence supports the jury’s negligence

finding against Oncor in Question No. 1. Further, considering and weighing all of

the evidence, we cannot say that the evidence supporting the jury’s negligence

finding as to Oncor on Question No. 1 is so weak or that the finding is so against the

overwhelming weight of the evidence that the finding is clearly wrong and unjust.

–49– Thus, the evidence is legally and factually sufficient to support the jury’s finding

against Oncor in Question No. 1, and we reject all of Oncor’s arguments to the

contrary. We overrule Oncor’s first issue.

JURY CHARGE ERROR (ISSUES THREE AND FOUR)

A. Submission of HMI’s Negligence to the Jury (Issue Three)

In its third issue, Oncor contends that the trial court erred by failing to include

HMI, the general contractor, on the verdict form for determinations of negligence

(Question No. 1) and proportionate responsibility (Question No. 5). As discussed

above, Question No. 1 asked, “Did the negligence, if any, of those named below

proximately cause the occurrence in question?” In Question No. 5, the jury was

asked to assign percentages of responsibility only to those the jury found had caused

or contributed to the occurrence in Question No. 1.

HMI was not a party to this case. But prior to trial, the trial court granted

Oncor’s motion to designate HMI as a responsible third party. HMI’s status as a

designated responsible third party, however, did not guarantee HMI’s inclusion on

the verdict form. “A trial court may not submit a question to the jury regarding the

conduct of any person without sufficient evidence to support the submission.”

Gregory v. Chohan, 615 S.W.3d 277, 298 (Tex. App.—Dallas 2020, pet. granted)

(en banc) (citing TEX. CIV. PRAC. & REM. CODE ANN. § 33.003(b)).

–50– 1. Governing law A party has produced sufficient evidence to support submission of a question

to the jury when it provides more than a scintilla of evidence of potential

responsibility for the claimed injury. Id. “To support a finding that a third party was

responsible based on negligence, a defendant must produce evidence of a legal duty

owed to the claimant by the third party, a breach of that duty, and damages to the

claimant proximately caused by the breach of the duty.” In re Kilmer,

No. 05-20-00814-CV, 2021 WL 1290734, at *3 (Tex. App.—Dallas Apr. 7, 2021,

orig. proceeding) (mem. op.) (citation omitted).

Thus, the trial court erred by failing to include HMI on the verdict form on

Question Nos. 1 and 5 only if there was legally sufficient evidence that (1) HMI, the

general contractor, owed Victor and Oscar, the employees of a subcontractor, a duty

of ordinary care; (2) HMI breached that standard of care; and (3) such breach was a

proximate cause of the occurrence. See TEX. CIV. PRAC. & REM. CODE ANN.

§ 33.003(b); Gardner Oil, Inc. v. Chavez, No. 12-10-00274-CV, 2012 WL 1623420,

at *6 (Tex. App.—Tyler May 9, 2012, no pet.) (mem. op.) (“The trial court should

not allow the submission of a question to the jury regarding conduct of a responsible

third party where there is not sufficient evidence to support the submission.”).

As a general rule, one who employs an independent contractor has no duty to

ensure that the contractor performs its work in a safe manner. AEP Tex. Cent. Co. v.

Arredondo, 612 S.W.3d 289, 295 (Tex. 2020). An exception exists when “the

–51– employer retains some control over the manner in which the contractor performs the

work that causes the damage.” Id. (internal quotation omitted). If the right to control

an independent contractor’s work exists, then a duty arises regardless of whether

actual control is exercised. Id.

In evaluating whether a duty is owed, we consider that an employer must have

some latitude to tell its independent contractors what to do, in general terms, without

becoming subject to liability. Id. The duty arises where the right to control extends

to “the means, methods, or details of the independent contractor’s work” such that

the contractor “is not entirely free to do the work in his own way.” Id. (internal

quotation omitted). Further, the control must relate to the condition or activity that

caused the injury. Id. No duty of care arises with respect to an independent

contractor’s work by virtue of the employer’s general right to order work started and

stopped, to direct when and where the work is done, to require that work be done by

a certain time, or to control activities that have “nothing to do with the resulting

injury.” Id.; see also JLB Builders, L.L.C. v. Hernandez, 622 S.W.3d 860, 865 (Tex.

2021) (“[C]ontrol must relate to the condition or activity that caused the injury.”

[internal quotation omitted]).

2. Oncor’s arguments regarding the existence of a legal duty owed by HMI to Victor and Oscar We can ascertain three reasons from Oncor’s briefing as to why it contends

HMI, the general contractor, owed a legal duty to Victor and Oscar. But none of

those reasons establishes error in the trial court’s refusal to submit HMI on the –52– verdict form. Oncor’s arguments either are not supported by the record or do not

demonstrate that there was sufficient evidence that HMI retained a right to control

any activities that had anything to do with Victor’s and Oscar’s being electrocuted.

a. Staking the digging area Oncor contends there was a fact question on whether HMI “incorrectly staked

the dig area.” It claims that Angel “attested that [HMI] staked the digging area of the

project.” But the cited portions of the record contain no such testimony, and we have

found none. The record reflects that Frontier staked the digging area.

b. Training of Alvarenga’s employees Oncor contends there was a fact question as to whether HMI “failed to ensure

[that] Alvarenga [had] properly trained its employees.” According to Oncor,

Dagenhart testified that HMI “had a responsibility to ensure [that] Alvarenga

provided proper training to its employees” and that “he would expect any

experienced person from [HMI] with any knowledge of OSHA regulations . . . to

recognize that [Victor and Oscar] were not doing the job correctly.” It also contends

that McElroy, the HMI regional supervisor, “testified [that] if he had been at the site

during the dig[, then] he would have addressed the situation.”

In making these arguments, Oncor suggests that Dagenhart’s and McElroy’s

testimony evidenced that HMI owed Victor and Oscar a legal duty to ensure that

Alvarenga’s employees received OSHA training on aerial dangers. Oncor is taking

the cited testimony out of context. In the cited portions of the record, Dagenhart and

–53– McElroy were testifying about Victor’s and Oscar’s placing the spoil pile on the

edge of the trench and about the absence of any shoring in the bore pit. This

concerned an issue about whether Victor and Oscar had obtained OSHA training.

They were not testifying about any training that related to digging near a guy anchor.

Oncor cites nothing in the record demonstrating that the location of the spoil

pile or Alvarenga’s not providing Victor and Oscar with OSHA training relating to

same proximately caused their being electrocuted. See JLB Builders, L.L.C., 622

S.W.3d at 865; AEP Tex. Cent. Co., 612 S.W.3d at 295; see also Townley v. Lanier,

No. 14-19-00447-CV, 2021 WL 2325082, at *4 (Tex. App.—Houston [14th Dist.]

June 8, 2021, pet. denied) (mem. op.) (overruling complaint trial court erred by

omitting designated responsible third party from jury charge because appellant did

not cite any portion of the record regarding the contributory conduct of the

responsible third party). There was evidence, however, to the contrary. For example,

McElroy, the HMI regional supervisor, was asked: “[Did t]he spoil piles and the

shoring have anything to do [with] why Victor and Oscar got electrocuted?” He

answered: “No, sir.” He further testified:

Q. . . . . You’re a workplace safety guy. If Oscar and Victor had went through the OSHA 10 training, would you have anticipated that they would understand the dangers of an uninsulated guy wire?

A. No, sir.

Q. That’s not something you all go over in OSHA training, is it?

A. No, sir. –54– Neff, an HMI safety manager, also provided testimony showing that OSHA training

for excavation workers would typically not include training on above-ground

electrical hazards. Thus, even if there were evidence that HMI owed a duty to ensure

that Alvarenga had provided Victor and Oscar with OSHA training and that HMI

had breached that duty, Oncor points to no evidence showing that such failure had

anything to do with Victor’s and Oscar’s injuries.

c. Supervision of the worksite Oncor argues there was a fact question regarding HMI’s failure “to adequately

supervise the worksite.” According to Oncor, HMI “retained some responsibility for

the worksite” as the general contractor and that, under its contract with Alvarenga,

HMI retained rights to the worksite related to inspections, safety, and plan changes.

To support this position, Oncor cites, without explanation, paragraphs 14, 15, and

22(e) of the contract between HMI and Alvarenga. It then references testimony that

it contends shows HMI “was not on site to supervise the digging project,” suggesting

that HMI breached a duty to supervise Victor and Oscar.

Oncor provides no argument, cites no legal authority, and cites nothing in the

record to explain how paragraph 14, 15, or 22 of the HMI–Alvarenga contract

provided HMI with a right to retain control over the means, methods, or details of

the work that related to a condition or activity that caused Victor’s and Oscar’s being

–55– electrocuted; and we can ascertain no such explanation.14 See TEX. R. APP. P. 38.1(i);

Townley, 2021 WL 2325082, at *4. Oncor’s position is not that HMI had a duty to

provide Chapter 752 notice. Oncor made this clear in its reply brief, stating: “[T]here

was insufficient evidence to submit Chapter 752 responsibility for [HMI] . . . because

[it] did not authorize or know about the guy anchor excavation.”

In its reply brief, Oncor raises two new arguments as to why it contends HMI

owed Victor and Oscar a legal duty—namely, that HMI failed to exercise reasonable

care in selecting Alvarenga as an independent contractor and that HMI has liability

if it authorized a trespass to Oncor’s chattels. But we cannot consider matters raised

for the first time in a reply brief. See Sanchez v. Martin, 378 S.W.3d 581, 590 (Tex.

App.—Dallas 2012, no pet.).

Accordingly, Oncor failed to demonstrate that there was sufficient evidence

to support the submission of HMI’s negligence and proportionate responsibility to

the jury. Thus, we conclude that the trial court did not err by refusing to grant

14 Paragraph 14 provides that HMI shall have access to the work; that materials furnished and workmanship performed by Alvarenga are subject to HMI’s inspection; and that if material or work is found defective or not in conformity with drawings, plans, or specifications, then Alvarenga is required to correct and replace the material or work.

In paragraph 15, HMI reserved the right to make changes to the drawings, plans, specifications, and other work before and during the work.

In Paragraph 22, Alvarenga promised to comply with all applicable safety rules, laws, and regulations, including OSHA, during the performance of its work under the contract. In subparagraph (e), Alvarenga promised to cooperate with any safety inspections or audits.

–56– Oncor’s request to submit HMI in the verdict form on Question Nos. 1 and 5. We

overrule Oncor’s third issue.

B. Omission of Instruction from Question No. 3 (Issue Four)

In its fourth issue, Oncor contends the trial court erred by failing to include an

instruction in Question No. 3. That question asked: “On July 12, 2016[,] at the time

of the occurrence in question, were [Victor and Oscar] performing a function or

activity that caused any part of a tool, equipment, machine, or material to be brought

within six feet of a high voltage overhead line?” The jury answered: “NO.”

Oncor had requested the following instruction to be included with

Question No. 3:

You are instructed that a person brings a tool, equipment, machine, or material within six feet of a high voltage overhead line if the person causes any part of the tool, equipment, machine, or material that is already within six feet of a high voltage overhead line to make physical contact with the high voltage overhead line or to come closer to the line than it existed before the person acted. Appellees objected to Oncor’s tendered instruction as constituting an improper

comment on the weight of the evidence. The trial court sustained appellees’

objection, signed a tender sheet striking the instruction from Oncor’s proposed

Question No. 3, and submitted Oncor’s proposed Question No. 3 as modified. Oncor

subsequently objected to the omission of its proposed instruction on grounds that its

instruction was consistent with Texas law and would assist the jury. The trial court

implicitly overruled Oncor’s objection by stating: “[T]he Court’s previous rulings

stand.” See TEX. R. APP. P. 33.1(a)(2)(A). –57– On appeal, Oncor argues that the trial court erred by omitting Oncor’s

proposed instruction in Question No. 3 and that such error was harmful because it

related to a contested, critical element of Oncor’s Chapter 752 defense and probably

caused the rendition of an improper verdict.

Oncor, however, fails to challenge the trial court’s ruling sustaining appellees’

objection that the proposed instruction constituted an improper comment on the

weight of the evidence. A proposed jury instruction that is otherwise in accordance

with Texas law may nonetheless be objectionable if it constitutes an improper

comment on the weight of the evidence. See Briones v. Sharkey,

No. 04-11-00584-CV, 2012 WL 3776488, at *2 (Tex. App.—San Antonio Aug. 31,

2012, no pet.) (mem. op.). Because Oncor does not challenge all independent

grounds for the trial court’s ruling, we overrule Oncor’s fourth issue. See Herczeg v.

City of Dallas, No. 05-19-01023-CV, 2021 WL 1169396, at *2 (Tex. App.—Dallas

Mar. 29, 2021, pet. denied) (mem. op.), cert. denied, No. 22-128, 2022 WL 4654650

(U.S. Oct. 3, 2022).

Error, if any, in refusing Oncor’s requested instruction in Question No. 3 is

also harmless. TEX. R. APP. P. 44.1(a). Like Question No. 2, Question No. 3 asked

the jury to make a finding that Oncor contends was essential to establishing its

alleged Chapter 752 defense. Because we conclude above that the evidence is legally

and factually sufficient to support the jury’s adverse findings on Question No. 2, any

–58– error in Question No. 3 is immaterial and harmless.15 See TEX. R. APP. P. 44.1(a).

Thus, we overrule Oncor’s fourth issue for this additional, alternative reason.

IMPROPER JURY ARGUMENT (ISSUE FIVE)

In its fifth issue, Oncor argues that appellees’ counsel engaged in incurable

jury argument during closing argument by (1) misstating the law regarding a material

already within six feet of an overhead line under Chapter 752 and (2) providing an

invalid basis, not supported by the evidence, upon which the jury could have held

Oncor liable for negligence. We resolve this issue against Oncor.

A. Preservation of Error

Appellate complaints of improper jury argument must ordinarily be preserved

by timely objection and request for an instruction that the jury disregard the improper

remark. Phillips v. Bramlett, 288 S.W.3d 876, 883 (Tex. 2009). Oncor made no such

objection or request during appellees’ counsel’s closing argument. Nonetheless, a

complaint of incurable jury argument may be asserted and preserved in a motion for

new trial, even without a complaint and ruling during the trial. See TEX. R. CIV. P.

324(b)(5). Because Oncor raised its incurable-argument contentions in its motion for

new trial, which the trial court denied, Oncor preserved this issue for our review.

15 We express no opinion on whether Question No. 3 accurately stated Texas law or requested a finding on an essential element of an affirmative defense, if any, established by §§ 752.001, .003, .004, and .008 of Chapter 752. Nor do we express any opinion on whether the instruction that Oncor requested in Question No. 3 accurately stated the law. –59– B. Law Governing Incurable Jury Argument

Incurable jury argument is rare. Arthur J. Gallagher & Co. v. Dieterich, 270

S.W.3d 695, 707 (Tex. App.—Dallas 2008, no pet.). Typically, retraction of the

argument or instruction from the court can cure any probable harm. Phillips, 288

S.W.3d at 883. Incurable jury argument “is that which strikes at the very core of the

judicial process.” Id. Examples of incurable improper jury arguments can include

appeals to racial prejudice; unsupported accusations of witness tampering by the

opposing party; and unsupported, extreme, and personal attacks on opposing parties

and witnesses. In re BCH Dev., LLC, 525 S.W.3d 920, 928 (Tex. App.—Dallas

2017, orig. proceeding).

“The party claiming incurable harm must persuade the court that, based on the

record as a whole, the offensive argument was so extreme that a ‘juror of ordinary

intelligence could have been persuaded by that argument to agree to a verdict

contrary to that to which he would have agreed but for such argument.’” Phillips,

288 S.W.3d at 883 (quoting Goforth v. Alvey, 271 S.W.2d 404, 404 (Tex. 1954)). In

other words, “[t]he complaining party must explain on appeal why opposing

counsel’s argument was incurable based on an evaluation of the whole case, from

voir dire to closing argument.” Arthur J. Gallagher & Co., 270 S.W.3d at 708; see

also Pope v. Gaffney, No. 04-03-00456-CV, 2004 WL 1732325, at *4 (Tex. App.—

San Antonio Aug. 4, 2004, no pet.) (mem. op.).

–60– C. Purported Misstatement of the Law Regarding Chapter 752

Oncor first argues that appellees’ counsel misstated the law that governs the

applicability of Chapter 752 when a “material” (here, a guy wire) is already within

six feet of an overhead line and a plaintiff causes that material to make contact with

a high voltage overhead line. This is based on the following portion of appellees’

counsel’s closing argument:

[W]hen Victor and Oscar arrived on July 12th, 2016, the guy wire was already within 6 feet of the energized equipment, and they said “yes.” Victor and Oscar didn’t move anything within 6 feet of the energized source. It was built there. And the reason that you have an insulator is because it’s so close to that guy wire. And that’s why you need it to extend all the way past the hot wires. That guy wire is always within 6 feet of that energized equipment.

So when you answer [Question No. 3], performing a function or activity that caused any part to be brought within 6 feet of a high voltage overhead line, you’ll answer “no” because they didn’t cause anything. When they got there, Oncor told you it was within 6 feet of the energized source. Oncor contends a reasonable juror could have been persuaded by this argument to

answer “No” to Question No. 3 when the juror would otherwise have answered

“Yes,” and, therefore, the argument probably resulted in the rendition of an improper

verdict. We resolve this portion of Oncor’s fifth issue against Oncor.

The only effect of appellees’ counsel’s closing argument, according to Oncor,

was to cause the jury to answer “No” to Question No. 3 rather than “Yes.” Question

No. 3, however, like Question No. 2, is a question that Oncor contends was necessary

–61– to establish the essential elements of its alleged Chapter 752 defense. As discussed

above, the jury’s adverse answers to Question No. 2 are supported by legally and

factually sufficient evidence, which makes a finding on Question No. 3 immaterial.

Thus, even if appellees’ counsel’s closing argument caused the jury to answer “No”

to Question No. 3 when it would have answered “Yes,” it was harmless. See TEX. R.

APP. P. 44.1(a). Accordingly, we overrule the first part of Oncor’s fifth issue.

D. Additional Theory of Liability

Oncor next contends that appellees’ counsel engaged in improper jury

argument in the following excerpt of his closing argument:

Now, I want to talk to you about some very important testimony and why a verdict against Oncor is just. Oncor wants to mince his words about this, but the testimony is clear. There are two scenarios in which Oncor will discover hazards on utility poles. One, an employee happens to pass by the hazard. Two, someone is seriously injured or killed.

That is not acceptable in our community. That is not acceptable that a public utility, a corporation like Oncor, has no program to go find hazards like insulators being too short, and they can sit there for 30 years until they electrocute someone. That is unacceptable.

Oncor contends this argument is improper for three reasons: (1) appellees’ counsel

asserted issues not supported by the evidence because negligence based on an

improper maintenance-and-inspection program must be established through expert

testimony, (2) appellees’ counsel misstated the law, and (3) appellees’ counsel

provided the jury with an improper basis upon which to impose liability against

Oncor.

–62– According to Oncor, the harm and prejudice caused by appellees’ counsel’s

comments were incurable because a reasonable juror could have been persuaded to

answer “Yes” to a broad-form negligence question based on an invalid theory of

liability when the juror otherwise would have answered “No.” Oncor contends that

it is impossible for Oncor or this Court to determine whether the jury found Oncor

liable based on the invalid theory that Oncor failed to properly maintain or inspect

its equipment. We resolve this portion of Oncor’s fifth issue against Oncor.

Assuming without deciding that appellees’ counsel’s argument was improper,

Oncor fails to explain how, based on an evaluation of the whole case, a jury

instruction to disregard the argument or withdrawal of the statement would not have

cured the alleged harm, if any. See TEX. R. APP. P. 38.1(i). Based on our review of

the record, we cannot conclude that appellees’ counsel’s argument is one of the rare

instances of improper argument that an instruction from the court or retraction of the

argument could not have removed its effect or prevented the members of the jury

from following their oaths with proper instructions from the trial court. See Arthur

J. Gallagher & Co., 270 S.W.3d at 708; Pope, 2004 WL 1732325, at *4. We overrule

the second part of Oncor’s fifth issue.

–63– CONCLUSION

Having overruled all five of Oncor’s issues, including all subparts, we affirm

the judgment of the trial court.

191331f.p05 /Leslie Osborne// LESLIE OSBORNE JUSTICE

Schenck, J., Dissenting

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

ONCOR ELECTRIC DELIVERY On Appeal from the 160th Judicial COMPANY LLC, Appellant District Court, Dallas County, Texas Trial Court Cause No. DC-17-03500. No. 05-19-01331-CV V. Opinion delivered by Justice Osborne. Justices Schenck and VICTOR QUINTANILLA, OSCAR Partida-Kipness participating. INTERIANO ROSALES, AND ACCIDENT FUND INSURANCE COMPANY OF AMERICA, Appellees

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

It is ORDERED that appellees Victor Quintanilla, Oscar Interiano Rosales and Accident Fund Insurance Company of America recover their costs of this appeal and the full amount of the trial court’s judgment from appellant Oncor Electric Delivery Company LLC and from Aspen American Insurance Company as surety on appellant’s supersedeas bond.

Judgment entered this 17th day of October, 2022.

–65–