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Womack v. Oncor Electric Delivery Company LLC

Court of Appeals of Texas, Eleventh District

July 11, 2019

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
v.
ONCOR ELECTRIC DELIVERY COMPANY LLC, Appellee

          On Appeal from the 132nd District Court Scurry County, Texas Trial Court Cause No. 23, 602.

          Panel consists of: Bailey, C.J., Stretcher, J., and Wright, S.C.J. [2]

          MEMORANDUM OPINION

          Jim R. Wright Senior Chief Justice.

         This is 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.

         Oncor 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.

         On 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."

         The 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 "fire investigator."

         Crawford 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 east.

         A large 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."

         Cyrus 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.

         Posey 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.

         Posey 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.

         "A 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.

         Appellants sued Oncor and "Utility Company B" (a utility company that was unknown to Appellants at the time of the lawsuit) for negligence.[1] 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 ...


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