JACKIE WOMACK, INDIVIDUALLY, AND JACKIE WOMACK DRILLING COMPANY; WILLARD COGDELL AND LA NELL COGDELL; AND JAMES R. CAVENDER, INDIVIDUALLY AND D/B/A JAMES R. CAVENDER INVESTMENT COMPANY, LTD., Appellants
ONCOR ELECTRIC DELIVERY COMPANY LLC, Appellee
Appeal from the 132nd District Court Scurry County, Texas
Trial Court Cause No. 23, 602.
consists of: Bailey, C.J., Stretcher, J., and Wright, S.C.J.
Wright Senior Chief Justice.
an appeal in a suit to recover for damage to property from a
grass fire. Jackie Womack, individually, and Jackie Womack
Drilling Company; Willard Cogdell and La Nell Cogdell; and
James R. Cavender, individually and d/b/a James R. Cavender
Investment Company, Ltd., sued Oncor Electric Delivery
Company LLC, alleging that sparks from Oncor's electrical
lines started the fire. The trial court granted summary
judgment in favor of Oncor and ordered that Appellants take
nothing on their claims. We affirm.
owns electrical distribution lines and meter poles in Snyder,
Scurry County, Texas. Some of these electrical lines run
parallel to Block Line Road and are located between the road
and the fence line of the Cavender Ranch. A portion of
Oncor's electrical lines also run near a
"caliche-surface entrance" to the Cavender Ranch.
February 23, 2008, Lill Gerald Crawford was driving on Block
Line Road, pulling an empty trailer to the cotton gin.
Crawford was traveling at only thirty miles per hour because
a very high wind was blowing from the west and hitting the
trailer broadside. Crawford saw the electrical lines on Block
Line Road moving like "jump ropes" and, at several
locations, saw sparks when the lines touched. At one such
location, he saw a small, table-sized fire underneath the
electrical lines. Crawford could not specify the exact
location on Block Line Road where he saw the fire, but he
knew that it was "pasture land."
fire was already burning when Crawford drove by it, and he
did not actually see what caused the fire. However, in
Crawford's opinion, "[i]t was obvious" that the
sparks from the electrical lines caused the fire because
"the fire was there right underneath the line" and
"[n]o other cause of the fire was apparent."
Crawford admitted that he had no training or experience as a
unsuccessfully attempted to call the fire department to
report the fire and then drove to the cotton gin. The manager
of the cotton gin called the fire department and learned that
"several fires" had already been reported that day.
Approximately twenty minutes later, Crawford left the cotton
gin and retraced his route on Block Line Road. When Crawford
reached the location where he originally saw the fire under
the electrical lines, he saw "a lot of fire; more
fire." According to Crawford, the fire had moved to the
grass fire burned over 5, 700 acres of land in Scurry County
on February 23, 2008 (the Snyder Fire). The next day, Garry
Parton, a certified wildland fire origin and cause
investigator for the Texas Forest Service (TFS), and Bobby
Jones, a criminal investigator for the TFS, investigated the
cause of the Snyder Fire. During the investigation, Parton
and Jones discovered a blown transformer located on a utility
pole approximately 300 yards east of Block Line Road. Parton
noted the following: (1) that the transformer was a
"brownish-red color, which would indicate an enormous
heat build-up inside the transformer"; (2) that a
"'hot lead' wire connecting the transformer to
one of the upper utility lines" had "blown loose or
had broken" and, because of the wind, "appeared to
have come in contact with the ground or neutral line, causing
the transformer to malfunction (blow out)"; (3) that
"one of the two ceramic insulators atop the transformer
had been 'blown off' due to high intensity heat and
electricity" and that broken pieces of the insulator
were located "approximately 10 feet northwest of the
utility pole"; (4) that a portion of the base of the
utility pole had either been "blown off or burnt
off" and pieces of charred and burnt wood were found
near the utility pole; (5) that a copper ground wire extended
the length of the utility pole and, based on the charring
pattern on the utility pole, "had come in contact with
high, intense heat"; and (6) that "[i]ndicators of
an advancing fire as well as flanking fire and backing fire
were located at and around the utility pole, indicating the
point of origin with the fire advancing in a westernly [sic]
direction." Parton concluded that the Snyder Fire
"was ignited by intense heat and flying sparks emitted
by the transformer."
A. Posey, the Snyder Fire Marshal, also investigated the
cause of the fire. Posey has been a fireman since 1995 and
the Snyder Fire Marshal since 2000. Before he began his
career as a fireman, Posey was employed by Southwestern Bell
as a lineman.
examined the area between Block Line Road and the fence line
of the Cavender Ranch, the electrical lines that were located
between Block Line Road and the fence line of the Cavender
Ranch, and a meter pole connected to those electrical lines
located just north of the caliche-surface entrance to the
Cavender Ranch. Posey did not see "fire burn" on
the ground underneath the electrical lines that he examined,
nor did he find "fire burn" on the ground nearby.
He also saw no evidence that the "electrical wires
within two spans to the north of the caliche-surface
entrance" to the Cavender Ranch had "arc or burn
marks on the wires." Posey noted that the electrical
lines that he examined were "attached to the cross arms
in a proper manner" and "had sufficient tension so
that one wire could not contact another wire in a high wind
and cause a spark." Posey ultimately excluded those
electrical lines as a potential cause of the fire.
also examined the area where the transformer was located on
the Cavender Ranch and saw that the pole had "burned at
its base." Posey "observed nothing that would
contradict the opinion" of the TFS that sparks from the
transformer caused the Snyder Fire.
short time after the fire," Jackie Womack "traveled
down Blockline [sic] Road and observed the terrain and places
of fire damage." Womack saw that "there was clear
and obvious evidence that the fire was located beneath the
electrical transmission lines which run parallel to, and just
east of, Blockline [sic] Road." Womack concluded that
the fire started underneath the electrical lines, moved east
with the wind, "went over and around the electrical pole
and transformer" on the Cavender Ranch, and then
eventually moved to his property. Womack provided no
information to indicate that he had any experience in the
investigation of the origins or causes of fires.
sued Oncor and "Utility Company B" (a utility
company that was unknown to Appellants at the time of the
lawsuit) for negligence. Appellants alleged that the lines that
Crawford observed on the day of the fire were owned by Oncor;
that Oncor failed to properly install, maintain, and inspect
those lines; and that, as a result, a loose and/or defective
electrical wire caused sparks to fall from the lines and
ignite a fire in the grass below. In the alternative,
Appellants, relying on the doctrine of res ipsa loquitur,
asserted that Oncor was liable for their damages because
"the character of the accident [was] such that it would
not have ...