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Jordan v. Centerpoint Energy Houston Electric, LLC

Court of Appeals of Texas, Fourteenth District

October 29, 2019

ROY JORDAN, JR., Appellant

          On Appeal from the 190th District Court Harris County, Texas Trial Court Cause No. 2015-53281

          Panel consists of Justices Jewell, Bourliot, and Zimmerer.


          Kevin Jewell Justice.

         Appellant Roy Jordan, Jr. sued CenterPoint Energy Houston Electric, LLC, alleging negligence for personal injuries he sustained from being electrocuted while trimming a tree located on his property. CenterPoint counterclaimed for indemnity under Texas Health and Safety Code Chapter 752, which prohibits a person from engaging in activities within a certain proximity of high voltage overhead power lines unless that person has given the operator prior notice and taken safety precautions. CenterPoint moved for summary judgment on its indemnity counterclaim and Jordan's negligence claim. The trial court granted summary judgment in favor of CenterPoint and awarded CenterPoint attorney's fees, costs, and expenses.

         On appeal, Jordan argues that the summary judgment is erroneous because it is based on improper summary-judgment evidence as well as an incorrect reading of Chapter 752, and because he raised material fact issues. Jordan also challenges the attorney fee award in CenterPoint's favor. We conclude that Jordan's issues lack merit and affirm the trial court's judgment.


         Two crepe myrtle trees grow adjacent to Jordan's driveway and sit directly beneath overhead high voltage power lines, which CenterPoint owns and maintains. Jordan decided to trim the trees because certain lower-hanging limbs over his driveway scratched his truck. The highest limbs of one or both trees reached to within six feet of the overhead power lines. Jordan did not request CenterPoint to trim the trees, nor did he notify CenterPoint beforehand that he planned to trim them.

         Jordan positioned himself in and at the "lower bottom" of one crepe myrtle, standing where the "tree starts to divide." Using bolt-cutters, Jordan successfully cut a few branches. He encountered difficulty cutting one particular limb, however, and set down the bolt-cutters to grab the limb with both hands. When he did, he felt a current through his body and received severe electrical burns to his hands, legs, and left foot.

         Jordan sued CenterPoint for negligence, claiming that CenterPoint breached a duty to exercise ordinary care by failing to properly maintain the area around the power lines, which caused the tree to contact the power lines and become energized. CenterPoint answered with an affirmative defense and counterclaim for indemnification under Texas Health and Safety Code Chapter 752, "High Voltage Overhead Lines." See Tex. Health & Safety Code §§ 752.001-.008. Among other things, Chapter 752 prohibits any person from performing an activity on land if it is possible that the person may bring any material within six feet of a high voltage overhead line while performing the activity. See id. § 752.004(a). Additionally, if a violation of Chapter 752 results in physical or electrical contact with a high voltage overhead line, the person committing the violation is responsible for any liability the owner or operator incurs as a result of the contact. See id. § 752.008.

         CenterPoint moved for summary judgment on its Chapter 752 affirmative defense and indemnity counterclaim. CenterPoint attached relevant excerpts from Jordan's deposition, which established the factual circumstances surrounding the injury, including facts relevant to CenterPoint's Chapter 752 defense. CenterPoint established that: (1) Jordan alone was responsible for his tree-trimming work; (2) the overhead power lines were high voltage lines; (3) Jordan gave CenterPoint no advance notice that he would trim trees beneath the power lines; and (4) Jordan's activity involved at least the possibility of bringing material within six feet of the overhead line. CenterPoint's expert, F.M. Brooks, P.E., stated in an affidavit:

Jordan stated that he was using the bolt cutters to cut the tree limbs. He stated further that on one of the limbs he could not get the bolt cutters through the limb so he grabbed the limb to break it. That is when he felt the current. Assuming that to be true, Jordan brought material, the tree limb, into direct or effective contact with the CenterPoint electrical distribution line.
For electrical current to flow through a tree limb and for Jordan to feel the current and sustained [sic] electrical burn injuries, the tree limb must have been brought to within one inch of the electric line. This is a basic law of physics. Electricity does not "jump" several feet, or even one foot, across the air to a tree limb or any conductive material. So, Jordan made direct contact, or effective contact with the electric line while when he was handling the tree limb. Because of that, Jordan necessarily must have brought a tree limb physically with six feet of the line in order for electricity to conduct from the power line to his body. Otherwise, it was not possible for the incident and the injuries he sustained as a result to have occurred.
The electrical distribution line that was involved in the accident in question is a 19, 900 volt overhead primary power line, as measured between a conductor and the ground. The crest for this power line is 28, 139 volts. The 'crest' is the maximum possible voltage that may be sustained by the power line.
At standard air density-a barometric pressure of 76 cm of mercury and temperature of 25 degrees Celsius-air has a dielectric strength of approximately 31 kilovolts per centimeter (31 kv/cm) In other words, a 31, 000-volt source of electricity can conduct across air for approximately one centimeter. This physical law is documented in scientific treatises, manuals, and other books routinely relied upon by engineers to ensure the safe and proper performance of their work. The relevant passages from two of these books are attached hereto. . . .
Although changes in atmospheric factors such as temperature and relative humidity can alter the dielectric strength of air, any effect such factors might have is negligible.
Based on the maximum voltage sustainable by the overhead primary power line involved in this case-28, 139 volts-the maximum distance electricity from the line could have conducted across air is approximately 0.94 centimeters, or 0.37 inches. Stated another way, in order for electricity from the power line in question to have arced a distance of six feet in the air, the maximum voltage of the lien would have to have been over 5, 600, 000 volts. Therefore I can state with absolute scientific certainty that it is physically impossible for electricity from the 19, 900 volt power line involved in this case to have arced over six feet in the air to contact Jordan.

         Jordan responded and moved to strike almost all of CenterPoint's summary-judgment evidence. He urged that CenterPoint failed to show that he brought himself or any material within six feet of a high voltage overhead line. Jordan asserted by affidavit that he did not come within six feet, nor did he cause any tree branch to come within six feet, of the overhead lines. He stated that CenterPoint's contrary conclusion "is wrong because they were not there when it happened." Finally, he contended that Chapter 752 should not apply to the circumstances of his case because it would essentially provide a "blank check to a company that makes billions to never have to maintain any of their lines. . . ."

         After a hearing, the trial court concluded that Jordan violated "multiple provisions of Chapter 752" and that his violations "resulted in electrical or physical contact with CenterPoint Energy's high voltage overhead power line." The court concluded that Jordan violated Chapter 752 as a matter of law. Consequently, Jordan owed indemnity to CenterPoint and was precluded from recovering on his negligence claim as a matter of law. The trial court signed an interlocutory order granting CenterPoint summary judgment on its counterclaim for section 752.008 indemnity and dismissing Jordan's negligence claim with prejudice. The court also overruled Jordan's objections to Brooks's affidavit and most of his other objections to CenterPoint's summary-judgment evidence.

         CenterPoint subsequently filed a motion for attorney's fees and costs and for entry of final judgment, and the trial court signed a final judgment incorporating its earlier order on CenterPoint's summary-judgment motion and awarding CenterPoint $124, 236.44 in attorney's fees, $30, 813.25 in costs and expenses, and conditional appellate attorney's fees. After Jordan's motion for new trial was overruled by operation of law, this appeal timely followed.

         Objections to Summary-Judgment Evidence

         As part of his first issue, Jordan argues that the trial court erred in overruling many of his objections to CenterPoint's summary-judgment evidence. We begin with this issue because it will determine the scope of summary-judgment evidence we may consider.

         A. Standard of Review

         The rules of evidence control the admissibility of evidence in summary-judgment proceedings, and we review a trial court's decision to admit or exclude summary-judgment evidence for abuse of discretion. Seim v. Allstate Tex. Lloyds, 551 S.W.3d 161, 163-64 (Tex. 2018). An abuse of discretion occurs when the trial court acts arbitrarily or without reference to any guiding rules and principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985). We must uphold the trial court's evidentiary ruling if there is any legitimate basis for the ruling. See Enbridge Pipelines (E. Tex.) L.P. v. Avinger Timber, LLC, 386 S.W.3d 256, 264 (Tex. 2012) (quoting Owens-Corning Fiberglas Corp. v. Malone, 972 S.W.2d 35, 43 (Tex. 1998)). We will set aside the trial court's judgment only if the "erroneous evidentiary ruling probably caused the rendition of an improper judgment." Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887, 906 (Tex. 2000); see Tex. R. App. P. 44.1(a)(1).

         B. Expert Affidavit

         Jordan first challenges the affidavit of F.M. Brooks, CenterPoint's expert. "A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue." Tex. R. Evid. 702; see Transcontinental Ins. Co. v. Crump, 330 S.W.3d 211, 215 (Tex. 2010). Brooks opined that, based on Jordan's injuries and the laws of physics, "Jordan necessarily must have brought a tree limb physically with[in] six feet of the line in order for electricity to conduct from the power line to his body. Otherwise, it was not possible for the incident and the injuries he sustained as a result to have occurred." Brooks summarized various scientific principles and facts that led him to this conclusion.

         Jordan argues Brooks's affidavit is not admissible because it:

• contains hearsay, although Jordan does not identify specifically any ...

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