Appeal from the 190th District Court Harris County, Texas
Trial Court Cause No. 2015-53281
consists of Justices Jewell, Bourliot, and Zimmerer.
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.
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
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
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.
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.
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.
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.
. . ."
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.
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
to Summary-Judgment Evidence
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
Standard of Review
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).
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.
argues Brooks's affidavit is not admissible because it:
• contains hearsay, although Jordan does not identify
specifically any ...