* Char les L. Reynolds, Chief Justice (Ret. ), Seventh Court of Appeals, sitting by

assignment. Tex. Gov' t Code Ann. § 75. 002(a)(1) (Vernon Supp. 1996). NO. 07- 96- 006 2-CV IN THE CO URT O F APPEA LS FOR T HE SEVE NTH DISTRICT OF TEXAS

AT AMAR

ILLO PANEL D JULY 3, 1996

______________________ ARTHU R MARTINE Z, ALICE MARTINE Z, AND AL ICE MART INEZ AS NEXT FRIEND O F MAR

TY MA RTI NEZ AND MAR

IS S A MA

RTI NEZ, APPELLA

NTS V. CITY OF LUB B OCK

, APPELLEE

______________________ FROM T HE 137T H JUD ICIAL D ISTRICT COURT OF L UBB OCK COUNT Y; NO. 92-538, 121-C; HONORABLE CE CIL G. PURYE AR, JUDGE

______________________ B efore BOYD and QUINN, JJ. and REYNOLDS, SJ. *
Inthree points, appellants Arthur Mar tinez, Alice Marti nez, Ind ividually and as Next Fr iend of Marty M artinez and Mar issa Mar tinez contend that the trial cour t err ed in render ing
a ta ke

- no th in g s um m aryju dg m e nt in th e ir suit again st appellee the City of Lubbock (the City). For reasons her eafter expr essed, we rever se and remand. Thi s appeal arises fr om a suit filed by appellants against the City seeking recover y fo r electrical shock inju

ries to Arthur Martinez suffered in Lubbock
. Appellan ts conten d the City was2

negligent in failing to proper ly inspect the electrical wir ing whichcaused the shock and/or failing to fin ish-out construction of the Science Spectrum space, and by failing to determine that such wiring or constr uction wa s neglige ntly done a

nd was in violation of

City construction cod

es. Arthur Mar tinez was working as a labor er, remodeling a por tion of a building leased by Sm ith& Fitzp atrick (S&F) for the pur pose of establishing a restaur ant. The S&F ar ea was thoughtto be withoutelectricity; however, on June 7, 1990, Arthur Mar tinez suffered an electr ical shock when he c

ut an ele ctrical conduit w

hile working on the premises of the 50th Street Caboose.
It was later discover ed

that although the electrical power to the premises had been turned off, the hot wire was the power source for an air conditioning compr essor ser vicing the adjacent Science Spectrum space. The wire providing electricity to the compressor , which was mounted
onthe roof of the building, was routed thr ough the wall dividing the Science Spectrum space from the premises, and was serviced by a separate electr ical power sour ce which had not been turned off. Appellants, in this appeal, raise thr ee points of e rro r. Firs t, the y c on

te nd th e tri a l c ou

rt
err ed in granting the C ity' s motion for summar y judgment, because the evidence raises fact issues that concern the City' s negligence in failing to proper ly inspect the wiring in question and failing to determine that such wiring violated r elevant codes. Next, theyargue any r eliance by the trial
c ou rt on the City' s allege d immun itywould be in err or, because immunity was neither advanced
as a ground for summary judgment nor was there any summary j udgment evidence relating to an immuni tydefense. Finally, they urge, the trial cour t err ed in overr uling appe llants' objections to the deposition excerpts of Mike T emple and David King.3

The standar ds for appellate r eview of a summa ry judg ment are now axiomatic. As explicated by our Supreme Cour t they are: 1. The movant for summar y judgment has the bu

rden of showing th at there is no genuine issue of material fact and that it is entitledto judgment as a matter of law. 2. Indeciding

whether there is a

di sp ut e d m a te ria l f a c t i ss ue pr e c lu di ng su mm ary judgment, evidence favorable to the non-movant will be taken as true. 3. Ev e ryreasonable infer ence must be indulged in favor of the non-movant and any do ub ts re so lv e d i

n i ts f a vor. Nixon v. Mr. Property Management Co. , 690 S. W. 2d 546, 548-49 (Tex. 19 85 ) . Inor de r f or a defendant to be enti

tled to sum

mary judgment , he must disprove, as a matter of law, at least one of the esse ntial ele ments of each of the plaintiff' s causes of action, Lear Siegler, Inc. v. Perez , 819 S. W. 2d 470, 471 (Tex. 1991), or must establish one or more defenses as a matter of law. Bryant
v. Gulf Oil Corp. , 694 S. W. 2d 443, 445 (Tex. App. --Amarillo 1985, writ r ef' d n. r. e. ).
In see king its summary judgment, the City alleged it owed and breached no duty t o appella nts bec aus e th e wi

ring wa s "withi

n Co de" and lega

l, and Arthur Mar tinez (a nd those directing him) was negligent in having an unlicensed individual perfor m demolition of electrical fixtures.
Inconsidering appe llants' first point of error , we note that the first pr erequisite of estab lishing tort l iability is to show existence and violation of a legal duty owed to the plaintiff by the defendant. The existence of a lega l duty is a q uestion of

law for the court, although i n some in st

anc e s i t m ay r e qu ire the reso lu

ti on of di sp ut e d f a c ts or in f e re nc e s w

hi c h a re inappropriate for legal r esolution. Fort Be nd County Drainage Dist. v. Sbrusch , 818 S. W. 2d 392, 395 (Tex. 1991). Thus, our fir st determination is whether the summary judgment evidence was4

sufficient to establish thatthe City did no t owe a le gal duty to appellants to inspect the wiring for Code violati ons. In Comm unity Public Service Co. v. Dugger , 430 S. W. 2d 713, 717 (Tex. Civ. App.

- - Texar kana

1968, no writ), the court r ecognized a general "duty from those who h andle el ectricity to protect th o se who come into proximity ther ewith, and this duty is pr oportionate to and commensurate with the dangers invol ved. " Id. at 717.
Inaddition, § 6-122(11) of the Lubbock E lect rical C ode establishes that the inspector/ bu ilding official "o r his de signated repr esentative, qualified in electrical code inspections

. . . shall have the duty of inspectin g any and all electrical work for code complianc e. " Thus, the City has the self-imposed duty of inspecting all electrical wor k. Having established

the City owed a legal duty to appellants, and passing for the moment the question w he

th e r the Ci ty

pr op e rly c la im e d g ov e rn m e nt

a l i mm un it y i n t he su mm aryjudgment proceeding, we next consider whether the summary judgment evidence was sufficie nt to estab lish as a matter of law that the City did not violate that duty.
Indefending its summary judgment, the City p re sents three primary arguments. Fir st, citing Taylor v. Holland Electric Co. , 386 S. W. 2d 598 (Tex. Civ. App. --B eaumont 1965, writ dism' d), the City ar gues that Arthur Mar tinez' s " alleged negligence establishes as a matter of law that the plaintiffs are entitled to no money. " Second, the City maintains that the National Electric Saf ety Code (NESC) is the yardstick indetermining whether or not electr ical wiring meets the
common law standard of car e in a particular case (a breach of duty ques t ion). Third, the City contends it had no ba sis to reasonably for esee that the plaintiff would violate the electrical code (a question of proximate cause).5

This first argument may be disposed of by refer ence to the date of the Taylor case -- 1965. Inthat year, the jury' s finding of contributor y negligence on the part of Holland depr ived him of
re c ov e ry ; however, in 1973, the legislature substitut ed comparative negligence which had th e effect of removing the for mer absolute bar to recover y by a plaintiff if the fac tfin der found
c on tri bu torynegligen

ce. Tex. Rev. Civ. Sta

t. Ann. art. 221 2a (Vernon 1973), now Tex. Civ. Pr ac. & Rem. Code, § 33. 001 (Vernon Supp. 1996). This is tr ue because to eff ectuate the concept of comparative negligence, if a factfin der finds a plaint

iff was c ontributorily negligen t, it must ba

lance that neglig ence compared to any ne gligence on the part of the

defenda nt. Inresponse to the City' s second argument, the courts have been divided over the question whether the NESC is the yardstick for determining whether an individual has met the common law st and ard of c are or w he th e r it is m e re ly one of th e f a c tors indetermining negligence. We think the courts wh ich have deci ded it is merely one of the factor s to be considered in deter mining negligen ce have arr ived at th e correct r esult. The City cites Mosby

v. Southwest Electric Power Co. , 659 F. 2d 680 (5th Cir. 1981), in
su pp ortof using the NESC as the yardstick for determining negl igence, but Mosby actually states, "w e are not saying that compliance with the National Electr ic Safety Code, standing alone, frees a power company fr om liability .
. . . " Id. at 683. Code comp liance is one of many facts. Id.
T his sa me concept was also stated by the court in City of Brady, Texas v. Fink lea , 400 F .2 d 352 (5th Cir
. 1968). In that case, the court noted that evidence of compliance or noncomplianc e with the NESC may be considered in deter mining if electrical systems meet the
common law standard of

care but went on to say, "
. . . compliance with the Code, a ss um in g t he re6

was compliance, does not ipso fa cto free t he City o f ne glig enc e. The p rovisi ons of t he [ NESC] provide broad minimum requir ements for electr ic companies to follow. " Id. a t 356 (em phasis added). We recognize that these de cisions by

the fede ral intermediate court ar e not binding upon us, bu t t he re a soni ng e m pl oye d by t

he c ou rt is sound. In the absence of applicable state authority, we follow that reasoning. Ther efore, there ar e two distinct f act issue s which m

ust be det ermined in this c ase be f

or e the breach of duty is sue can b e resolved. Fir st, the summ ary judgment ev

idence reveal s a difference between the opinions of Jorge Loza no, David King, and Mike Temple r egarding the question of whethe r the wir ing configuration was a violation of the N ESC. Second, if the configuration is found to b e incomplia nce, there is also a fa

ct question whethe

r, under these circumstance s, the existe nce of the wir in g constit uted a danger to indivi duals such a s the S&F workers. Finally, there is a fact issue concerning the q uestion of proximate cau se. Proximate cause consistsof cause in fact and foreseeability. Union Pump Co. v. Albritton , 898 S. W. 2d 773, 775 (Tex. 1995). Cause in fa ct mea ns that the

defenda nt' s act or omission was a substantial factor in bringing about the

injury that would

not otherwise have occurr ed. Prudential Ins. Co. v. Jefferson Assocs. Ltd. , 896 S. W. 2d 156, 161 (Tex. 1995).
It is the City' s position that even if it failed to pr operly inspect the electrical wor k, appella nts cannot e stablish that that o mission was a cause in fact of Arthur Mar tinez' s injur y. In that connection, we note that in the Fort Be nd case, the S upreme Court r ecogniz ed that: O ne who undertakes, gratuitously or for consideration, to render ser vices to another which he should recognize as necessary for the protection of a thir d person7

or his things, is subjec t to liabilit y to the third per son for physical har m resulting from his failure to exe

rcise reasonable care to protect his un dertaking, if (a) his failure to exer cise reasonable car e increases the r isk of such harm, or (b) he ha s u nd e rta ke n t o p e rf or m a duty owed by

the other to the thir d person, or (c) the harm is suff

ered because

of reliance of the other or the thir d person upon the undertaking.
Fort Be nd, 818 S. W. 2d at 396, quoting Restatem ent (Second) of T orts § 324A (1965). We also n

ote, that in his a

ffidavit , Jorge Lozano says: Base d on my education, training and e xperience , the City of Lubbock violated Sections 230-2, 230-3 and 230-24 of the National Electr ic Code and, therefor e, the Lubbock Electrical Code. If the Code had not be en viola

ted, Arthur Mar tinez would not have been shocked. In other wor ds, the City of Lubbock' s Code violation caused the electrical shock to Ar thur M artinez. Thus, the summ

ary judgment ev

idence i s sufficient, at the very least, to show the existence of a fact question of whether the Cit y' s omission was a substantial factor in b ringing about Ar thur Martinez' s injuries. The second

aspect of proximate cause is foreseeability. Union Pump, 898 S. W. 2d at 775. For eseeab ility

means the actor, as an ordinar y reasonable per son, should have anticipated the da ng e rs his negligent act created for others. Travis v

. City of M

esquite , 830 S. W. 2d 94, 98 (Tex. 1992). If the reason to anticipate injury is not established, then no duty to act to prevent such an unanticipated

injury arises. Mosby, 659 F. 2d. at 682; Houston Lighting & Power Co. v. Brooks , 161 Tex. 32, 336 S. W. 2d 603, 606 (1960). Ther e is " neither a l e ga l n orm oral obligation to gu ard against that which cannot be foreseen. " Id
. However , the defendant need not have foreseen the exact in

jury to any particular person but mer ely needs to reasonably for esee that "s ome like1 Whether the per mit was an electrical per mit in addition to a structur al permit was not

established with certainty. 8 in ju rymight an

d probably would result. " Texas Power & Light Co. v. Holder , 385 S. W. 2d 873, 882 (Tex. Civ. App. --Tyler 1964, writ r ef' d n. r. e. ). The summary judgment evidence indicates the City was aware, through the issuance of a structur al permit, 1 that

remodeling constr uctionwas contemplated in the S &F ar ea. The evidence also demo nstrates th at the wire pr oviding electricity to the Science Spectrum' s air conditioning compressor was mounted on the roof of the building, routed thr ough a partition di viding the Science S pectrum space fr om the S&F space, through which no electr icity was thought to run.
In Erwin v. G uadalupe V

alley Elec. Co-Op. , 505 S
. W. 2d 353 (Tex. Civ. App. --S an Antoni o 1974, writ r ef' d n. r. e), the court commentedthat "a tr ansmiss ion line us ed as aconduit for highvoltage electrical cur rent at a place where it is reasonably foreseeable that peop le may c ome into contact with the line and suf

fer injury will support a finding of t he creation of a

n unreasonably dangerous condition. " Id. at 355. The cour t concluded that a risk der ives from the placement of the wiring, and thus imposes liability based on negligence. Id. A jury could find that the City, in allowing a high voltage wire to be electr ified in an area
w he re remodeling is contemplated, is dangerous and for eseeable as suggested b y th e Lo zano affida vit. Section 230-2 of th e NESC, quoted by Lozano, prohibit s conditions where a wir ing configuration serves one area but is located in an area not be ing served. In his affidavit, Lozano avers, " [t]his section is essential to protect per sonnel should one service be d i sconnected and people led to believe that all electrical ser vice to the building or str ucture had been disconnected. " Thus, there was summar y judgment evidence not only that the d anger ous condition was2 Tex. Civ. Pr ac. & Rem. Code Ann. § 101. 021 et seq. 9 foreseeable, but also th at the dangerous condition was the cause in fact of Arthur Mar tinez' s injuries.
Inaddition, the Texas Supreme Cou rt has found that a

duty to wa

rn ar ises when

there is
a failure to comply with applicable codes or ordinances gover ning placement of the lines or

the re is reason to anticip ate that t he li nes would be d angerous to the plaintiff. Houston Lighting & Power Co. v. Reynolds , 765 S. W. 2d 784, 786 (Tex. 1988). The summa ry judgment evid

ence is notsufficie

nt to show there could be no f act issue s to be dec ided by a j ury. In such in sta nc es, su mm aryjudgment is generally inappr opriate. Smith v. Bolin , 153 Tex. 486, 271 S. W. 2d 93, 97 (1954). Having made that decision, we must next decide if, under the summar y judgment recor d, the C i ty showed

it was ent

itled to the

benefit of governmenta

l immun ity. Predictably, the City answers that question affirmatively, while appellants contend the City not only failed to include immunity as a basis but that the summary judgment evidence fails to support that defense. The functions of a gov ernmental entity fall into one of two categor ies. Those functions
w hich the muni cip ality carr ies out as an arm of the state for the purpose of ser ving the general public are ter med

" governmental f

unctions." In this capacity, a municipality is afforded the state' s sovereign immunity, except to the extent the state ha s wa iv e d i

ts im m un it y u nd e r the Te xa s T ort Claims Act (the Act). 2 Houston v. Southwest Concrete Construction, Inc. , 835 S. W. 2d 728, 730 (Tex. App. --Houston [14th Dist. ] 1992, writ de nied ). In its sec ond capa city, a munic ipality undertakes functions which are not integr al to its function as an arm of the state. See, e. g. , City of Fort Worth v

. George , 10 8 S. W. 2d 929, 931 (Tex. Civ. App. --For t Worth 1937, writ r ef' d).10

The sovereign imm

unity of th e state d

oes not protect a

municipality from liability for actions taken ina propr ietary capacity because those actions are under taken for the bene fit of privateenterprise or the r esidents of the municipality rather than for the benefit of the gener al public. Id
. Inspections and enforcementof buildin g codes a re considered governmental f uncti ons. Tex
. Civ. Pr ac. & Rem. Code Ann
. § 101. 0215(a)(28) (Vernon Supp. 1996). Ordinar ily, then, the City would owe no duty to appellant s ind ividually with r espect to inspection of wiring or enforcement of the ap

plicable building c odes, except t

o the extent

allowed by the Act. Tex. Civ. Pr ac. & R em. Code Ann. § 101. 025 (Vernon 1986); see State Dept. of Highways and P ub

. Transp. v. Dopyera , 834 S. W. 2d 50, 54 (Tex. 1992), cert. denied, 506 U. S. 1014, 113 S. Ct. 636, 121 L. Ed. 2d 567 (1992).
It is establi shed that

governmental u

nits litigat

e as any other party in Texas courts and m ust observe the same rules that bind all other litigants, which include t he laws an d rules gover ning pleadings and burden of pr oof. Davisv. City of Sa n Antonio , 752 S. W. 2d 518, 519 (Tex. 1988). A summary judgment motion must define the issues and put the non-mov

ing party on notice

with adequa te information to oppose the motion. Eckler v. Gen. Council of Assemblies of God, 784 S. W. 2d 935, 937 (Tex. App. --San Antonio 1990, writ denied). Thus, a munic ipality must plead immuni tyin its moti on for summary judgme nt or that defense

is waived. Id .; Bullock v. Regular Veterans Ass' n. Post 76 , 806 S. W. 2d 311, 315 (Tex. App. --Austin 1991, no writ). The City ar gues that its stated grounds of " no duty" is sufficient notice to appellants that suchgrounds necessar ily include ananalysis of the City' s liability a nd immu nity under the Act
. Ho w e ve r, Rule 166 a( c) of

the Te xas Rule s of Civil Pr ocedure r equires that " the motion for summary judgment shall state the specific gr ou nd s t he re f or ." (emphasis added). In McConn ell11

v. Southside

Indep. School Di

st. , 858 S. W. 2d 337, 339 (Tex. 1993), the Supreme Cour t requir ed that grounds for the summary judgment be in the motion and any ground not in the motion not be considered even if

raised in a supporting brief. Here, in neithe r the motion nor in its supporti ng br ie f do e s i mm un it y a pp e ar. B ecause the immunity defense was not presented to the trial court as gr ounds for su mm ary judgmen t, it is not necessary that we discuss it her e. See Harkinson v. Trammell Crow Co. , 915 S. W. 2d 28, 34 (Tex. App. --Dallas 199 5, no writ). This is true beca use in the words of the McConn ell

court, " an appellate court cannot ` read between the lines, infer or glean from the pleadings or the proof' any grounds for granting the summar y judgment other than those gr ounds expressly set f orth be f or e th e tri a l c ou

rt [ in th e m ot ion f or su mm aryjudgment]. " 858 S. W. 2d at 343; See also Clark v. First N ational Bank of the Highlands , 794 S. W. 2d 953, 956 (Tex. App.

-- Houston [1st Dist. ] 1990, no writ) (quoting Great-N ess Profe ssional Se

rv. , Inc. v. F

irst Nat' l Bank of Louisv ille , 704 S. W. 2d 916, 918 (Tex. App. --Houston [14th Dist. ] 1986, no writ)). Appellants' second point is sustained.
B ecause we have sustained appellants' first two point s, which requir es rever sal and remand of this ca se, that acti on obviate s the nec essity for discuss ion of app ellants' third point.
Insum, appellants' first and s econd p oints are sustaine d, the trial court judgment i s reversed and the cause

remanded to the

trial court.

John T. Boyd

Justice Do not publish.