Opinion issued August 2, 2018




                                    In The

                             Court of Appeals
                                    For The

                         First District of Texas
                           ————————————
                             NO. 01-16-00963-CV
                           ———————————
   ELAINE HALE AND KENNETH DORSEY PARKER, JR., Appellant
                                       V.
    CENTERPOINT ENERGY HOUSTON ELECTRIC, LLC, Appellee


                   On Appeal from the 55th District Court
                           Harris County, Texas
                     Trial Court Case No. 2015-35049


                         MEMORANDUM OPINION

      Appellants, Elaine Hale and Kenneth Dorsey Parker, Jr., challenge the trial

court’s rendition of summary judgment in favor of appellee, CenterPoint Energy

Houston Electric, LLC (“CenterPoint”), in their suit against it for negligence
related to a transformer fire.1 In their sole issue, appellants contend that the trial

court erred in granting CenterPoint summary judgment.

      We affirm.

                                    Background

      In their petition, appellants alleged that on June 20, 2013, a transformer

“owned, operated, controlled, and/or maintained by” CenterPoint “started a fire,”

which “caused damage that spread to [appellants’] property.” As a result of the

fire, in addition to the damage to appellants’ property, Hale sustained “pulmonary

complications,” “severe pain, physical impairment, discomfort, mental anguish,

and distress.”

      The record reflects that appellants’ property is located at 1120 Texas Street,

Unit 4D, and the transformer fire occurred in an underground vault at 1121 Capitol

Street.    Hale, who occupied the property, had been out of the country for

approximately “nine months” when the fire occurred. She returned to the property

on July 1, 2013, but did not learn of the fire until May of 2014, nearly eleven

months after it had occurred.

          CenterPoint filed a no-evidence summary-judgment motion, challenging

each element of appellants’ negligence claim. In their response, appellants argued

that there is evidence raising a genuine issue of material fact on each challenged

1
      Although appellants also sued CenterPoint for gross negligence, they do not raise
      any issues with respect to this claim on appeal.
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element. And they attached to their response an affidavit and deposition testimony

from a medical doctor, Arch Carson, and an “Inspection Report” from the

Occupational Safety and Health Administration (“OSHA”).                In its reply,

CenterPoint asserted that none of the evidence provided by appellants raised a

genuine issue of material fact as to any element of their negligence claim.

      The trial court, without specifying the grounds, granted CenterPoint

summary judgment. Appellants then filed a motion for new trial, asserting that the

trial court had erred in granting summary judgment. This motion was overruled by

operation of law.

                                Standard of Review

      To prevail on a no-evidence summary-judgment motion, a movant must

allege that there is no evidence of an essential element of the adverse party’s cause

of action or affirmative defense. TEX. R. CIV. P. 166a(i); Fort Worth Osteopathic

Hosp., Inc. v. Reese, 148 S.W.3d 94, 99 (Tex. 2004). We review a no-evidence

summary judgment under the same legal-sufficiency standard used to review a

directed verdict. Gen. Mills Rests., Inc. v. Tex. Wings, Inc., 12 S.W.3d 827, 832–

33 (Tex. App.—Dallas 2000, no pet.). Although the non-moving party is not

required to marshal its proof, it must present evidence that raises a genuine issue of

material fact on each of the challenged elements. TEX. R. CIV. P. 166a(i); Ford

Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004).                A no-evidence


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summary-judgment motion may not be granted if the non-movant brings forth

more than a scintilla of evidence to raise a genuine issue of material fact on the

challenged elements. Ridgway, 135 S.W.3d at 600. More than a scintilla of

evidence exists when the evidence “rises to a level that would enable reasonable

and fair-minded people to differ in their conclusions.” Merrell Dow Pharm., Inc.

v. Havner, 953 S.W.2d 706, 711 (Tex. 1997).

      When reviewing a no-evidence summary-judgment motion, we assume that

all evidence favorable to the non-movant is true and indulge every reasonable

inference and resolve all doubts in favor of the non-movant. Spradlin v. State, 100

S.W.3d 372, 377 (Tex. App.—Houston [1st Dist.] 2002, no pet.). Because the trial

court’s order granting CenterPoint’s no-evidence summary-judgment motion does

not specify the grounds upon which the trial court relied, we must affirm the

summary judgment if any of the grounds in the summary-judgment motion are

meritorious. FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 872–73

(Tex. 2000).   Moreover, we note that if summary judgment may have been

rendered, properly or improperly, on a ground not challenged on appeal, the

judgment must be affirmed. Ellis v. Precision Engine Rebuilders, Inc., 68 S.W.3d

894, 898 (Tex. App.—Houston [1st Dist.] 2002, no pet.).




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                                      Negligence

         In their sole issue, appellants argue that the trial court erred in granting

CenterPoint’s no-evidence summary-judgment motion on their negligence claim

because “[t]here exists sufficient evidence to raise a fact question with respect to

proximate cause of the [appellants’] injuries” and there can be “no doubt” that

more than a scintilla of evidence exists with respect to the remaining elements of

their claim.

         The elements of a negligence cause of action consist of the “existence of a

legal duty, a breach of that duty, and damages proximately caused by the breach.”

Gharda USA, Inc. v. Control Sols., Inc., 464 S.W.3d 338, 352 (Tex. 2015);

LeBlanc v. Palmer, No. 01-15-00034-CV, 2015 WL 7261532, at *2 (Tex. App.—

Houston [1st Dist.] Nov. 17, 2015, pet. denied) (mem. op.). Because the trial court

did not provide a basis for its ruling, we may affirm if appellants failed to present

evidence raising a genuine issue of material fact on any element of their negligence

claim.

Breach

         Appellants first assert that CenterPoint’s employees acted negligently when

they made a “second attempt” to place a cover on the transformer inside the

electrical vault “knowing it did not fit properly.” In response, CenterPoint argues

that appellants have not produced more than a scintilla of evidence as to the


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element of breach because they have not produced any evidence of a “witness who

was actually there when the [fire] occurred” or an “expert in the cause or origin of

the . . . fire.”

        “Generally, a public utility has a duty to exercise ordinary and reasonable

care, but the degree of care is commensurate with the danger.” Cura-Cruz v.

CenterPoint Energy Houston Elec., LLC, 522 S.W.3d 565, 570 (Tex. App.—

Houston [14th Dist.] 2017, pet. filed); see also First Assembly of God, Inc. v. Tex.

Utils. Elec. Co., 52 S.W.3d 482, 491–92 (Tex. App.—Dallas 2001, no. pet). “This

‘commensurate with the danger’ standard does not impose a higher duty of care;

rather, it more fully defines what ordinary care is under the facts presented.”

Cura-Cruz, 522 S.W.3d at 570. “Expert testimony is necessary to establish the

applicable standard of care ‘when the alleged negligence is of such a nature as not

to be within the experience of the layman.’” Schwartz v. City of San Antonio ex

rel. City Pub. Serv. Bd. of San Antonio, No. 04-05-00132-CV, 2006 WL 285989, at

*2 (Tex. App.—San Antonio Feb. 8, 2006, pet. denied) (mem. op.) (quoting FFE

Transp. Serv., Inc. v. Fulgham, 154 S.W.3d 84, 90 (Tex. 2004)). “In such a case,

the expert testimony must establish both the standard of care and the violation of

that standard.” Simmons v. Briggs Equip. Tr., 221 S.W.3d 109, 114 (Tex. App.—

Houston [1st Dist.] 2006, no pet.).




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      Appellants did not provide testimony from any witness that was present

when the fire occurred or any expert testimony to establish that CenterPoint’s

employees acted negligently. The only expert testimony in the record is from a

medical doctor, Arch Carson, who admitted that he is not an expert in the cause or

origin of the type of fire that occurred in this case. The remaining testimony in the

record is from the depositions of the appellants, who both conceded that they did

not witness the fire and do not have any understanding as to its cause.

      In support of their argument that “[t]here can . . . be no doubt that

CenterPoint’s employees were negligent,” appellants cite to an OSHA “Inspection

Report” that they attached in response to CenterPoint’s no-evidence summary-

judgment motion.     This report, however, does not explain the cause of the

transformer fire, much less purport to establish how CenterPoint violated an

applicable standard of care.    See Cura-Cruz, 522 S.W.3d at 570 (explaining

“degree of care is commensurate with the danger”).          It simply explains that

CenterPoint employees performed work on the transformer and the fire “occurred

when the employees reattempted to place the cover over” the “terminals of the

transformer.”

      Accordingly, we hold that appellants did not present more than a scintilla of

evidence to support the breach element of their negligence claim. Therefore, we

need not address the remaining elements of appellants’ negligence claim


                                         7
challenged in the trial court. See FM Props., 22 S.W.3d at 872 (explaining “the

reviewing court must affirm summary judgment if any of the summary judgment

grounds are meritorious”); see also TEX. R. APP. P. 47.1.

Res Ipsa Loquitur

      Appellants next invoke the doctrine of res ipsa loquitur to establish that

more than a scintilla of evidence exists to prove CenterPoint’s negligence. In

response, CenterPoint argues that the doctrine is inapplicable here.

      The doctrine of res ipsa loquitur is a “rule of evidence by which negligence

may be inferred by the jury; it is not a separate cause of action from negligence.”

Haddock v. Arnspiger, 793 S.W.2d 948, 950 (Tex. 1990). It “is used in certain

limited types of cases when the circumstances surrounding [an] accident constitute

sufficient evidence of [a] defendant’s negligence to support such a finding.” Id.

Plaintiffs can prevail on a no-evidence challenge to their claim of negligence if

they successfully invoke res ipsa loquitur. Mobil Chem. Co. v. Bell, 517 S.W.2d

245, 251 (Tex. 1974).

      “The [r]es ipsa doctrine is applicable when two factors are present: (1) the

character of the accident is such that it would not ordinarily occur in the absence of

negligence; and (2) the instrumentality causing the injury is shown to have been

under the management and control of the defendant.” Id. (emphasis added). “The

first factor is necessary to support the inference of negligence and the second factor


                                          8
is necessary to support the inference that the defendant was the negligent party.”

Id. “Courts have generally found res ipsa inapplicable where (1) the plaintiff

cannot rely on general knowledge to show that the accident would not occur

without negligence, and (2) the plaintiff has not produced expert testimony that the

injury ordinarily does not occur without negligence.” Trans Am. Holding, Inc. v.

Market-Antiques & Home Furnishings, Inc., 39 S.W.3d 640, 649 (Tex. App.—

Houston [1st Dist.] 2000, pet. denied) (res ipsa jury instruction improper where

plaintiff did not satisfy first factor); see also Rebel Drilling Co., L.P. v. Nabors

Drilling USA, Inc., No. 14-02-00841-CV, 2004 WL 2058260, at *13 (Tex. App.—

Houston [14th Dist.] Sept. 16, 2004, no pet.) (mem. op.) (res ipsa jury instruction

properly denied where no proof of general knowledge or expert testimony offered

to demonstrate “that blowouts do not occur in the absence of negligence”).

      In support of the first factor, appellants merely assert that “[t]here can . . . be

no dispute that transformers [do not] normally explode and cause fires in the

absence of negligence.” However, they have not “shown that there is general

knowledge that such a fire cannot occur without negligence.” Trans Am., 39

S.W.3d at 649; see also Schwartz, 2006 WL 285989, at *5 (“[W]hat a power

company’s practices and procedures should be, or what industry standards are,

when a circuit breaker within an electrical distribution is tripped is not within a

person’s general knowledge.”). And appellants cite to no expert testimony that


                                           9
supports their assertion that a transformer fire, like the one at issue here, could not

occur in the absence of negligence. The only expert testimony in the record is

from a medical doctor, Arch Carson, who—during his deposition—admitted that

he had “no expertise in the cause and origins of fires.” Accordingly, we hold that

appellants did not satisfy the first requirement necessary to invoke the doctrine of

res ipsa loquitur.

      Because appellants did not satisfy the first requirement of res ipsa loquitur,

we need not address the second factor. See Trans Am., 39 S.W.3d at 649 (both

factors are necessary to invoke res ipsa loquitur); see also TEX. R. APP. P. 47.1.

                                     Conclusion

      Having held that appellants did not produce more than a scintilla of evidence

to support the breach element of their negligence claim and did not properly invoke

the doctrine of res ipsa loquitur, we further hold that the trial court did not err in

granting CenterPoint’s no-evidence summary-judgment motion.

      We affirm the judgment of the trial court.




                                               Terry Jennings
                                               Justice

Panel consists of Justices Jennings, Bland, and Brown.



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