DISSENT and Opinion Filed October 17, 2022 

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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, OSCA R INTERIANO ROSALES, AND ACCIDENT FUND INSURANCE COMP ANY OF AMERICA, Appellees On Appeal from the 160th Judicial District Court Dallas County, Texas Trial Court Cause No. DC-17-03500 DISSENTING OPINION

Opinion by Justice Schenck Plaintiffs Victor Quintanilla and Oscar Rosales, while employed by Alvarenga Underground Cons truction, LLC (Alvarenga), removed Oncor’s guy anchor—without anyone notifying Oncor or otherwise complying with the statute regulating the performance of activities near high voltage overhead lines—causing the power line to move with the re sulting injuries to them both. See T EX

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. §§ 752.001–.008. The majority nevertheless concludes that the injuries Victor and Oscar suffered wh en their own actions caused the guy wire to become energized were fo reseeable to Oncor and finds no error in the trial court’s refusal to include the project ’s general contractor, Henkl es & McCoy, Inc. (HMI),–2– in the negligence and apportionment questi ons that were submitted to the jury at trial. I dissent from the majority’s opin ion because the evidence negates foreseeability, an essential element of Vict or and Oscar’s claim against Oncor, and because the majority’s conclusion regard ing the submission of HMI as a potential responsible third party is inconsistent with recent holdings of this Court, including Lopez v. Sunstate Equipment Co. , No. 05-21-00100-CV, 2022 WL 3714496, at *7 (Tex. App.—Dallas Aug. 29, 2 022, no pet.) (mem. op.), and In re Cook , 629 S.W.3d 591, 598 (Tex. App.—Dallas 2021, orig. proceeding).
D ISCUSSION I. Jury Charge—Submission of HMI as Potential Responsible Third Party On the day they were injured, Victor and Oscar, as employees of Alvarenga, were charged with digging a hole for a ro ad bore. Alvarenga was acting as a subcontractor of HMI. The trial court gran ted Oncor’s motions for leave to designate Alvarenga and HMI as responsib le third parties and then refused to include HMI in the negligence and apportionment questions that were submitted to the jury at trial. Texas law allows a tort de fendant to designate a pers on as a “responsible third party.” T EX

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. § 33.004(a). Chapter 33 defines “responsible third party” as “any person who is alleged to have caused or contributed to causing in any way the harm for which recovery of damages is sought, whether by negligent act or omission, . . . by othe r conduct or activity that violates an–3– applicable legal standard, or by any combination of these.” Id. § 33.011(6). The designation’s purpose is to have the respons ible third party’s actions or omissions submitted to the trier of fact to determine whether the party caused or contributed to the cause of the claimant’s harm. Id. § 33.003. This may reduce the percentage of responsibility attributed to the defendant, thus ultimately redu cing the defendant’s liability to the claimant. Id. § 33.013. A designated responsible third party should be submitted to a jury for consideration if the designating party has produced sufficient evid ence, more than a scintilla, for a reasonable jury to find the third party responsible for a portion of the claimed injury. In re Molina , 575 S.W.3d 76, 80 (Tex. App.—Dallas 2019, orig. proceeding). This occurs when the evid ence rises to a level that would enable reasonable and fair-minded peop le to differ in their conclusions concerning a party’s responsibility for any injury. King Ranch, Inc. v. Chapman , 118 S.W.3d 742, 751 (Tex. 2003). A defendant may designate a responsible th ird party even though the third party has defenses to liability or cannot be formally joined as a defendant, or both. See Galbraith Eng’g Consu ltants, Inc. v. Pochucha , 290 S.W.3d 863, 868–69 (Tex. 2009). Our recent caselaw broadly re quires this designation for the jury’s

assessment. Cook , 629 S.W.3d at 598. The broad standard for designation applies regardless of its actual potential reduction of lia bility, and, in this case, there is also at least some evidence of actual liability on the part of the general contractor, especially as our recent caselaw has addressed the duty question.–4– A general contractor, such as HMI, nor mally does not have a duty to see that an independent contractor perfo rms work in a safe manner. Hoechst-Celanese Corp. v. Mendez , 967 S.W.2d 354, 356 (Tex. 1998) (per curiam). But a duty may arise when a general contractor retains “som e control over the ma nner in which the independent contractor’s work is performed.” Id. The general contractor’s duty of care is commensurate with the control it retains over the contractor’s work. Id. at 355. Other of our recent caselaw holds more generally that a power of control over the means of injury in a worksite is suffi cient to support a duty and, hence, potential liability in the eyes of a jury. See Lopez , 2022 WL 3714496, at *7 (owner of equipment left at worksite potentially liabl e for not exercising authority to remove it). A general contractor can re tain control over an inde pendent contractor with actual control or other means, such as a contract, which may impose control upon a party thereby creating a duty of care. Pollard v. Mo. Pac. R.R. , 759 S.W.2d 670, 670 (Tex. 1988) (per curiam). If the right of control over work details has a contractual basis, the circumstance that no actual control was exercised will not absolve the general contractor of liability. Id. The evidence showed HMI, as a genera l contractor, contractually retained some responsibility for the worksite and actually exercised some control over the worksite. In its contract with Alvare nga, HMI was to conduct periodic and final inspections and tests to ensure that Alva renga’s work conformed to the contract–5– requirements. And Alvarenga had the right during progress of the work to make changes in the drawings, plans, specifications or other orders, or the description of the work. See City of Saginaw v. Cruz , No. 05-19-01141-CV, 2020 WL 5054802, at *6 (Tex. App.—Dallas A ug. 27, 2020, no pet.) (mem. op.) (concluding City had constructive knowledge that manhole cover did not conform to contract when City had right to subject contractor’s work to mandatory inspection and to ensure work conformed to contract). In addition, the evidence established HM I does spot inspections to find out if its contractors know what they are doing. HMI did not have anyone at the site doing a spot inspection on the morning that appellees dug up the guy anchor. According to HMI’s safety and health officer, had he been present, “a lot of stuff probably would never had happened because it woul d have been addre ssed beforehand.” HMI’s certified safety and health officer indicated that HMI assumed Alvarenga’s employees had the correct trai ning and that it now knows they did not. After the accident, and af ter OSHA found Alvarenga violated various OSHA rules, HMI suspended Alvarenga and intended to terminate their subcontract agreement, although the evidence suggested that Alva renga continued to work for HMI up until the time of trial. This is more than a scintilla of evidence that HMI retained some control over the work and did not adequate ly supervise the worksite or engage a competent subcontractor. Accordingly, a reasonable jury could find that HMI bore a percentage of responsibility for the clai med injuries. Thus, I believe, under any–6– standard, the evidence supported submission of HMI as a potential responsible third party, and certainly under recent decisions of this Court concerning the scope of designation and the potential fo r liability. Thus, the trial court erred in refusing to do so. I also believe the trial court’s refusa l to submit the issue was harmful. I believe had the jury been asked to answer an issue that appor tioned the responsibility among all responsible parties, the jury might not have awarded the same amount against Oncor. E.g., Lopez , 2022 WL 3714496, at *7; see also T EX

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. § 33.013 (defendant liable for th e percentage of damages found by trier of fact equal to that defendant’s percentage of responsibility, unless the percentage of responsibility attributed to the defendant is greater than 50%, in which case the defendant’s liability is joint and se veral). The jury a pportioned 48% of the responsibility to Oncor. Thus, Oncor is not jointly and severally liable for the damages awarded and any a pportionment of responsibility to HMI could directly impact Oncor’s ultimate liability. The court’s error in refusing to submit the issue of HMI’s potential responsibility prevented Oncor from prope rly presenting its case on appeal by depriving it of the ability to conclusively show that the jury would have answered an apportionment issue that would cast a judgment in an amount that differs from the amount Oncor must pay under the judgment as rendered. T EX

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. P. 44.1(a)(2); Sun Dev., L.P. v. Hughes , No. 09-12-00524-CV, 2014 WL 4755467, at–7– *14 (Tex. App.—Beaumont Sept . 25, 2014, pet. denied) (m em. op.). Accordingly, I would sustain Oncor’s third issue con cerning submission of HMI’s negligence to the jury and conclude that, at the very least, Oncor is entitle d to a new trial. See id.
II. Foreseeability—Antici pation of Injury Victor and Oscar asserted a negligence claim against Oncor. To succeed on a negligence claim, a plaintiff must esta blish a legal duty owed by one person to another, a breach of that duty, and da mages proximately caused by the breach. Nabors Drilling, U.S.A., Inc. v. Escoto , 288 S.W.3d 401, 404 (Tex. 2009); Bastida
v. Aznaran , 444 S.W.3d 98, 106 (Tex. Ap p.—Dallas 2014, no pet.). Both the duty and proximate-cause elements rest on a finding of foreseeability. Elephant Ins. Co., LLC v. Kenyon , 644 S.W.3d 137, 149 (Tex. 2022) (main determinant of duty is foreseeability); Travis v. City of Mesquite , 830 S.W.2d 94, 98 (Tex. 1992) (foreseeability is an element of proximate cause). The foreseeability analysis is the same for both duty and proximate cause. Mellon Mortg. Co. v. Holder , 5 S.W.3d 654, 659 (Tex. 1999). In addition, proxim ate cause has a second component, cause in fact. Bos v. Smith , 556 S.W.3d 293, 303 (Tex. 2018). Foreseeability means that the actor, as a person of ordinary intelligence, should have anticipated the dangers that hi s negligent act or omission created for others. Nixon v. Mr. Prop. Mgt. Co. , 690 S.W.2d 546, 549–50 (Tex. 1985) (plurality op.). “Foreseeability usually is determin ed by whether the defendant is aware of prior, similar conduct by third parties” and, as is also relevant here, by whether–8– Oncor was given notice of the activity near its line and should have foreseen—and guarded against—the risks associated w ith the physical removal of the line’s support. See Bos , 556 S.W.3d at 303 (quoting Taylor v. Louis , 349 S.W.3d 729, 737 (Tex. App.—Houston [14th Dist.] 2011, no pet.)); see also Seaway Prods. Pipeline Co. v. Hanley , 153 S.W.3d 643, 658 (Tex. App. —Fort Worth 2004, no pet.) (concluding record contained no evidence developer could have foreseen contractor would ignore pipeline markers and violat e statutory mandate to call the one-call number to determine pipeline’ s location before digging). In addition to the general nature of the danger, th e trial court must also consider whether the injury to the partic ular plaintiff involved, or one similarly situated, could be anticipated. Bos , 556 S.W.3d at 303

. Unless both requirements are met, there can be no finding of foreseea bility and thus no liability for negligence. See id. “Foreseeability requires more than so meone, viewing the facts in retrospect, theorizing an extraordinar y sequence of events wher eby the defendant’s conduct brings about the injury.” Doe v. Boys Clubs of Greater Dallas, Inc. , 907 S.W.2d 472, 478 (Tex. 1995). “‘Proof of negligence in the air, so to speak, will not do.’ . . . [t]he risk reasonably to be perceived define s the duty to be obeyed, and risk imports relation; it is risk to another or to ot hers within the range of apprehension.” Palsgraf v. Long Island R.R. , 162 N.E. 99, 99 (N.Y. 1928). 1 Although foreseeability is usually

1 Palsgraf teaches that the duty question properly considers the foreseeability of the injured party. Mrs. Palsgraf was standing on a platform at the defendant’s railroad waiting for a train. Some distance away,–9– a question of fact, it becomes a question of law when the evidence is undisputed and only one reasonable inference can be drawn. See Phan Son Van v. Pena , 990 S.W.2d 751, 755 (Tex. 1999). For the reasons set fo rth below, Victor’s and Oscar’s actions were not foreseeable as a matter of law. The evidence is conclusive that the pole was stationary and had in fact been in place for thirty years and attached to the guy-wire system at all relevant times prior to appellees’ digging up and removing the guy anchor. As installed, the guy wire was incapable of becoming energized absent some external force causing a release of tension, such as a weather event or someone driving into the utility pole, which are not at issue here. Thus, absent some other foreseeable event, Oncor had no reason to foresee a risk of harm as sociated with its guy-wire system. See Greenwald v. N. States Power Co. , 32 N.W.2d 320, 322–23 (Minn. 1948) (uninsulated guy wires posed no foreseeable risk of harm where remained in place, without incident, for six years); see also Bryant v. Gulf Oil Corp. , 694 S.W.2d 443, 446 (Tex. App.—Amarillo 1985, writ ref’d n.r.e.) (holding premises owner not liable for injury from electrical-line contact beca use line, as constructed, did not become

porters tried to help a passenger board a train. As th ey assisted him, they dislo dged a package of fireworks he was carrying. The package fell to the rails and exploded, knocking over scales and injuring Mrs. Palsgraf. 248 N.E. at 99. The court held that, rega rdless of whether the railroad might have acted in a generally wrongful manner, it was not neglig ent with regard to Mrs. Palsgraf. See id. The court explained that because Mrs. Palsgraf was not so situated to th e wrongful act that her injury might reasonably have been foreseen, the defendant did not owe a dut y to protect her from the resulting injury. Id.–10– dangerous to those working below until contractor caused gin pole to come into contact with line). No other reasonably foreseeable event ex isted in this case. The hazardous conduct was that of Victor and Oscar. Oncor’s corpor ate representative, who had been employed by Oncor for over twenty nine years, testified that he was not aware of any other incidents like this one and no one gave Oncor notice of the performance of any activity near its overhead line to alert Oncor to take additional precautionary measures. The potential for e xposure to electricity is inherent across the length of the distribution network. The prospect that anyone might alter or disturb the line in such a way as to cause contact at any pa rticular point across the network is not foreseeable as the Texas Supreme Court l ong ago held addressing the same issue. See Houston Lighting & Power Co. v. Reynolds , 765 S.W.2d 784 (Tex. 1988). 2 In this case, the jury found Victor, Os car, and Alvarenga did not “notify Oncor of the work, activity, or function they woul d be performing at l east 48 hours before the work began, and negotiate a satisfact ory mutual arrangement with Oncor to provide temporary de-energization and gr ounding, temporary relocation or raising of its overhead line, or tem porary mechanical barriers to separate and prevent contact between the line and the material or equi pment involved in the work activity, or function” as required by section 752.003(b) of the Health a nd Safety Code. See

2 The comprehension of the dangers of moving or contacting electrical lines is so well known that a distributor of it cannot be held liable, as a matter of la w, for every preventable injury from it, particularly injuries resulting from alteration or removal of safety features.–11– H EALTH & S AFETY § 752.003(b). When, as here, a party fails to notify the utility before beginning work near a power line, it is unforeseeable that an individual will be injured by the utility’s infrastructure. See, e.g. , Seaway Prods. Pipeline , 153 S.W.3d at 658. Accordingly, there is no evidence showing that Oncor could have foreseen Victor and Oscar digging up the guy anchor. Id . This conclusion regarding lack of foreseeability is further supporte d by Oncor’s expert’s testimony that Oncor could not have reasonably foreseen that someone would excavate the guy anchor without authorization or notice to Oncor and appellees’ expert’s admission that he was not suggesting that Oncor should anticipat e this particular event. Under these circumstances, any risk of harm to a ppellees was beyond the realm of reasonable probability and render the occurrence at issue unforeseeable. Accordingly, the evidence is legally insufficient to sup port the jury’s finding Oncor’s negligence proximately caused the occurrence in ques tion. Accordingly, I would sustain Oncor’s first issue.–12– C ONCLUSION Because the evidence negates forese eability and more than a scintilla of evidence exists from which a rational jury could conclude HMI bore responsibility for a portion of the claimed injuries, I respectfully dissent from the majority’s decisions to the contrary.

191331DF.P05 /David J. Schenck / DAVID J. SCHENCK JUSTICE