Texas Utilities Electric Co. v. Timmons

947 S.W.2d 191, 40 Tex. Sup. Ct. J. 721, 1997 Tex. LEXIS 54, 1997 WL 336306
CourtTexas Supreme Court
DecidedJune 20, 1997
Docket96-0247
StatusPublished
Cited by94 cases

This text of 947 S.W.2d 191 (Texas Utilities Electric Co. v. Timmons) is published on Counsel Stack Legal Research, covering Texas Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Texas Utilities Electric Co. v. Timmons, 947 S.W.2d 191, 40 Tex. Sup. Ct. J. 721, 1997 Tex. LEXIS 54, 1997 WL 336306 (Tex. 1997).

Opinions

[192]*192HECHT, Justice,

delivered the opinion of the Court,

joined by PHILLIPS, Chief Justice, CORNYN, ENOCH, OWEN, BAKER and ABBOTT, Justices.

The sole question in this ease is whether, as a matter of law, a 90-foot electric transmission tower is an attractive nuisance to a 14-year-old boy. The district court answered no, granting summary judgment for the defendant. The court of appeals answered yes. 917 S.W.2d 84. We agree with the district court.

After spending the evening drinking beer and malt liquor at a friend’s house, Billy Edwin Byrum, age 14, walked • outside and down the street about half a block to a utility tower and began to climb it. The tower is owned by Texas Utilities Electric Company. It was built in 1913 and is over 90 feet tall. The tower has four vertical sides, each crisscrossed by metal braces forming large “X” patterns from the ground to the top. At the top is a 69 kv electric transmission line. There is no ladder up the tower, but it can be climbed by means of the diagonal braces on each side. Years ago Texas Utilities erected a barricade around the tower 12 — 16 feet above the ground, consisting of steel braces protruding 17-19 inches from each of the four corners of the tower at a ninety degree angle, holding four strands of barbed wire, two to five inches apart, encircling the tower. Seven other strands of barbed wire are stretched across the interior of the tower. This barbed wire wall extending from the interior of the tower to about one and one-half feet beyond its sides is designed to prevent unauthorized persons from sealing the tower and coming near the power lines. Posted on one corner of the tower about five feet from the ground is a ten-inch-by-three-inch sign. Although portions were faded or illegible, and its gray background was the same color as the tower, the sign contained this warning in large, bold letters:

KEEP AWAY

DANGER

WIRES HEAVILY ELECTRIFIED

The sign did not specifically warn of the danger of arcing. Despite this warning and the barricade, children sometimes climbed on the tower without Texas Utilities’ knowledge and certainly without its permission. Billy was one of them. Texas Utilities never received a report of children climbing on the tower, although it was apparent from the condition of the barbed-wire barricade that children could get past it, and people in the neighborhood sometimes saw them playing on the tower. But no one who had seen children climbing on the tower had ever seen anyone near the top.

On the night in question, when Billy’s friends realized he was gone, they went outside to look for him and heard him yelling from near the top of the tower. He appeared drunk. Billy’s uncle and friends had repeatedly warned him not to climb the tower, that it carried high voltage electric lines, and that he could be electrocuted. On this particular evening Billy’s cousin and another boy repeatedly shouted to Billy for several minutes to come down because he might be electrocuted. Specifically, they said: “Come down before you get fried ... You’re stupid going up there, you don’t belong up there, and you know better.” Billy acknowledged their warnings but remained at the top of the tower. At 1:18 a.m., Billy started to descend when there was a bright flash and all the lights in the area went out. Billy’s body fell to the ground. Texas Utilities officials determined that Billy was killed not as a result of actually touching the electric lines but from approaching closely enough for electricity to arc into him. At the time of his death Billy’s blood alcohol concentration was 0.10 gm/dl, [193]*193the legal standard for intoxication. Tex. Penal Code §§ 49.01(1)(B), (2)(B).

Billy’s mother, Jackie Byrum Timmons, sued Texas Utilities for wrongful death, alleging that Texas Utilities was negligent in failing to prevent children like Billy from climbing on its tower. The trial court granted Texas Utilities’ motion for summary judgment. The court of appeals reversed, holding that fact questions subsisted regarding whether Texas Utilities should have known that children climbed on its tower, even though it had no actual knowledge, and whether Billy appreciated the danger of electrical arcing, as distinguished from electrocution from touching electrical lines. 917 S.W.2d 84.

The only duty a premises owner or occupier owes a trespasser is not to injure him willfully, wantonly, or through gross negligence. Burton Constr. & Shipbuilding Co. v. Broussard, 154 Tex. 50, 273 S.W.2d 598, 603 (1954). See also Restatement (Second) of ToRts § 333 (1965). But as to invitees, a premises owner or occupier must “use ordinary care to reduce or eliminate an unreasonable risk of harm created by a premises condition of which the owner is or reasonably should be aware.” State Dept. of Highways & Public Transp. v. Payne, 838 S.W.2d 235, 237 (Tex.1992). fiad Billy been an adult, he would have been a trespasser on Texas Utilities’ tower, and since Texas Utilities did not injure him willfully, it could not be liable for his accident.

However, “when children of tender years [come] upon the premises by virtue of them unusual attractiveness, the legal effect [is] that of an implied invitation to do so. Such child [is] regarded, not as a trespasser, but as being rightfully on the premises.” Banker v. McLaughlin, 146 Tex. 434, 208 S.W.2d 843, 847 (1948). This is the doctrine of attractive nuisance. It originally developed in so-called “turntable cases” where young children were injured playing on railroad turntables which seemed especially attractive playgrounds, the dangers of which children did not appreciate. See, e.g., (Sioux City & Pac.) Railroad Co. v. Stout, 84 U.S. (17 Wall.) 657, 21 L.Ed. 745 (1873); Evansich v. Gulf, C. & S.F. R’y, 57 Tex. 123 (1882). The doctrine has since been extended to other situations, as we explained in Banker:

“The theory of liability under the attractive nuisance doctrine is that, where the owner maintains a device or machinery on his premises of such an unusually attractive nature as to be especially alluring to children of tender years, he thereby impliedly invites such children to come upon his premises, and, by reason of such invitation, they are relieved from being classed as trespassers, but are in the attitude of being rightfully on the premises. Under such circumstances, the law places upon the owner of such machinery or de-rice the duty of exercising ordinary care to keep such machinery in reasonably safe condition for their protection, if the facts are such as to raise the issue that the owner knew, or in the exercise of ordinary care ought to have known, that such children were likely or would probably be attracted by the machinery, and thus be drawn to the premises by such attraction.” (Emphasis ours.)

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947 S.W.2d 191, 40 Tex. Sup. Ct. J. 721, 1997 Tex. LEXIS 54, 1997 WL 336306, Counsel Stack Legal Research, https://law.counselstack.com/opinion/texas-utilities-electric-co-v-timmons-tex-1997.