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City of Houston v. Southwestern Bell Telephone Co.

Court of Appeals of Texas, First District

August 1, 2017


         On Appeal from County Civil Court at Law No. 2 Harris County, Texas Trial Court Case No. 1057740

          Panel consists of Justices Higley, Bland, and Brown.



         Southwestern Bell Telephone Company sued the City of Houston for negligence based on damage caused to their duct run and cable while the City of Houston repaired a water main. The jury found the City of Houston negligent and awarded damages. On appeal, the City of Houston argues (1) the trial court lacked subject-matter jurisdiction over Southwestern Bell's negligence claim based on governmental immunity and (2) the trial court abused its discretion by including instructions that allowed the jury to determine liability on grounds for which immunity had not been waived.

         We affirm, in part, and reverse and remand for a new trial, in part.


         The City of Houston learned about a water main break in the city on March 1, 2013. Jennifer Ramirez, a city employee, posted notice of its intent to repair the water main, indicating that repairs would begin the next day. The next day, another city employee, Prince Mackey, went to the location with two other workers, Sidney Christian and Quaan Motley, to repair the water main. At the time of trial, Mackey had been a City employee for 23 years, a foreman for nine years, and had been working in the City's water operations division for 13 years. Christian had been working in the City's water operations division for four years, and Motley had been working in the water operations division for six years.

         Approximately 10 to 20 feet from the excavation site, a sign posted on a utility pole warned of the presence of underground cables and displayed the AT&T logo, [1]along with the universal sign for "do not dig." Christian testified that the utility pole was between the City's work truck and the excavation site and that the city employees walked past the utility pole several times. Mackey, Christian, and Motley all testified that they did not look at the pole or read the posted warning sign.

         Mackey operated a concrete breaker to break up the street in the area where the repairs would be made. He then operated a backhoe to excavate the area around the water main. Each time Mackey excavated one to two feet of dirt, he would stop so that Christian could test the ground for utility lines with a "probing rod." As Mackey dug, Christian and Motley watched to ensure that Mackey was not hitting anything with the backhoe. It took an hour and a half to complete the excavation.

         During this time, Southwestern Bell suffered damage to a hard-clay duct run and a cable located within the run. The damage was in the same area as the water main break.

         After repairing the damage, Southwestern Bell filed suit against the City, asserting a claim of negligence. Southwestern Bell asserted that the City had failed to wait 48 hours from providing notice to making the repairs and that such notice was necessary under the Texas Utilities Code. Southwestern Bell also alleged that the City's operation of the backhoe was negligent because the City's employees failed to ascertain what underground utilities were in the area before digging. Specifically, Southwestern Bell argued that: (1) the City failed to provide 48 hours' notice to Southwestern Bell before excavating; (2) the City's employees had a duty to look for signs of and locate underground utilities at the excavation site before and during the excavation process; (3) Southwestern Bell's aerial cable was attached to the nearby utility pole, and therefore the City's employees should have been aware that the same cable ran underground near the excavation site; and (4) the City's employees were aware of and walked past, but did not "look at, " the utility pole on which the warning sign was posted.

         Southwestern Bell presented evidence at trial indicating that, because the duct run surrounding the damaged cable was "almost as hard as concrete, " only a "powerful machine, " and not a hand shovel, could have damaged the cable. Jeremy Cutbirth, a Southwestern Bell employee who has been installing and repairing similar cables for 16 years, testified at trial that, "As hard as that duct run is and as tough as that cable is, you're not going to do that with a shovel . . . . There is no way you're going to be digging with a shovel and accidentally go all the way through it and rip a cable apart . . . . It's impossible." He testified further that the duct run, which was made of baked clay tile, is "very hard" and "almost like cement." An air-pressure warning system located within the duct run notified Southwestern Bell of damage to the cable in the same location where the City excavated the water main. Thus, Cutbirth testified, the cable must have been damaged by the City's backhoe.

         At trial, Mackey and Christian acknowledged that other underground utilities, such as natural gas lines and electric cables, are typically located in the same general area as water mains. They testified that the workers are supposed to look for all indications of underground utilities before excavating because utilities are sometimes unmarked. Christian and Motley testified further that they never noticed the duct run containing Southwestern Bell's cable.

         For the charge, Southwestern Bell requested instructions be included that quoted two statutes regarding the notice requirements under the Utilities Code.[2] The City objected to these instructions. The trial court overruled the objections and included the statutes in the charge.

         Governmental Immunity

         In its first two issues, the City challenges the trial court's subject-matter jurisdiction over Southwestern Bell's claim for negligence. The City argues the trial court lacked ...

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