                           NUMBER 13-12-00585-CV

                           COURT OF APPEALS

                 THIRTEENTH DISTRICT OF TEXAS

                   CORPUS CHRISTI – EDINBURG

PATRICIA THORNTON, INDIVIDUALLY AND AS                                     Appellant,
NEXT FRIEND OF LOGAN QUINN,

                                          v.

HENKELS & MCCOY, INC. AND
RAY MEDRANO,                                                               Appellees.


                 On appeal from the 148th District Court of
                         Nueces County, Texas.


                        MEMORANDUM OPINION
      Before Chief Justice Valdez and Justices Garza, and Perkes
               Memorandum Opinion by Justice Garza
      By a single issue, appellant, Patricia Thornton, individually and as next friend of

Logan Quinn, a minor child, contends the trial court erred in granting summary judgment

in favor of appellees, Henkels & McCoy, Inc. and Ray Medrano (collectively “H&M”).
We affirm.

                                          I. BACKGROUND

       Thornton and her nine-year-old daughter, Logan, were driving westbound on

U.S. Highway 59 near George West, Texas. An eighteen-wheeler tractor/trailer carrying

a high load was also traveling westbound ahead of Thornton.                       The tractor/trailer

snagged a Verizon overhead communication cable hanging above the highway, causing

the pole to which the cable was attached to break off.                 The pole flew across the

eastbound lanes and struck the driver’s side of Thornton’s vehicle. The vehicle left the

roadway and struck a drainage culvert. Thornton and her daughter allegedly sustained

serious injuries in the accident.

       Thornton sued, among others, the owner and driver of the tractor/trailer, Verizon,

and H&M, a company that provides services to Verizon’s utility cables. Appellant’s live

petition alleged that H&M was “negligent in owning, operating, repairing and/or

maintaining” the subject utility cable. It also alleged that H&M was aware that the cable

was too low before the accident, and was therefore “liable under a negligent

undertaking theory.” H&M filed a traditional motion for summary judgment, 1 asserting

that: (1) appellant’s claim is a premises defect claim; and (2) H&M had no duty as a

matter of law to remedy the alleged dangerous condition of the sagging utility cable

because it did not own, occupy, or control the premises and did not create or agree to

make safe the alleged dangerous condition.              H&M attached the following summary

judgment evidence to its motion: (1) excerpts from a service contract between Verizon

       1
         We note that H&M filed an “Amended Motion for Summary Judgment” on November 14, 2011.
A hearing was held on the motion on March 28, 2012. The trial court signed an order granting the motion
on June 5, 2012 and signed an order granting H&M’s motion to sever on August 10, 2012. On August 13,
2012, H&M re-filed the same “Amended Motion for Summary Judgment” that it filed on November 14,
2011. The motions appear to be identical and the same exhibits are attached to each motion.

                                                  2
and H&M providing that maintenance and service work will be performed by H&M on

Verizon’s lines only pursuant to specific work orders (“Award Letter[s]” or “Letter[s] of

Authorization”) issued by Verizon; (2) Verizon’s interrogatory answer reflecting that it did

not issue a work order requesting that H&M raise the utility cable before the accident;

and (3) an affidavit by John Dorman, H&M’s area supervisor, stating that, prior to the

accident, H&M was not authorized to work on the utility cable at issue, did not perform

any work on the utility cable, and did not agree to make safe the alleged low condition of

the utility cable.

       Appellant filed a response to H&M’s motion for summary judgment in which she

characterized her claims against H&M as (1) “professional negligence,” (2) negligent

undertaking, and (3) in the alternative, a claim for premises liability based on the

allegation that H&M agreed to make safe a dangerous condition and failed to do so or

created the dangerous condition. Appellant attached to her response: (1) an affidavit

by E. P. Hamilton III, an “independent third-party engineer”; (2) Medrano’s answers to

Verizon’s interrogatories; (3) Dorman’s deposition; (4) excerpts from the contract

between H&M and Verizon; and (5) Medrano’s deposition.

       H&M filed a reply to appellant’s response in which it argued that: (1) appellant’s

“professional negligence” claim fails because H&M owed no duty to her; (2) appellant’s

negligent undertaking claim fails because H&M’s alleged failure to remedy the low-

hanging cable is an alleged negligent omission, which cannot support a negligent

undertaking claim; and (3) appellant’s alternate premises liability claim based on H&M’s

alleged creation of a dangerous condition fails because the evidence established that

H&M did not work on the utility cable prior to the accident.



                                             3
      Following a hearing, the trial court granted H&M’s motion and severed

appellant’s claims against H&M from her remaining claims.

                     II. STANDARD OF REVIEW AND APPLICABLE LAW

      In a summary judgment case, the movant must show that there is no genuine

issue of material fact and that the movant is entitled to judgment as a matter of law.

TEX. R. CIV. P. 166a(c); Provident Life & Acc. Ins. Co. v. Knott, 128 S.W.3d 211, 215–16

(Tex. 2003). The movant has the burden of proof. Sw. Elec. Power Co. v. Grant, 73

S.W.3d 211, 215 (Tex. 2002); City of Houston v. Clear Creek Basin Auth., 589 S.W.2d

671, 678 (Tex. 1979). A defendant who conclusively negates at least one essential

element of the plaintiff’s cause of action, or who conclusively establishes all of the

elements of an affirmative defense, is entitled to summary judgment. Frost Nat’l Bank v.

Fernandez, 315 S.W.3d 494, 508 (Tex. 2010). The burden to raise a fact issue shifts to

the non-movant only after the movant has established that it is entitled to summary

judgment as a matter of law. Rhone-Poulenc, Inc. v. Steel, 997 S.W.2d 217, 222 (Tex.

1999); Casso v. Brand, 776 S.W.2d 551, 556 (Tex. 1989).

      We review a traditional motion for summary judgment de novo. Frost Nat’l Bank,

315 S.W.3d at 508. To determine if the non-movant raised a fact issue, we review the

evidence in the light most favorable to the non-movant, crediting favorable evidence if

reasonable jurors could do so and disregarding contrary evidence unless reasonable

jurors could not.   See Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289

S.W.3d 844, 848 (Tex. 2009).




                                           4
                                         III. DISCUSSION

   A. “Professional Negligence”

       To prevail on a claim of negligence, a plaintiff must provide proof of the following

three elements: “(1) a legal duty owed by one person to another; (2) a breach of that

duty; and (3) damages proximately resulting from the breach.”                   Black + Vernooy

Architects v. Smith, 346 S.W.3d 877, 882 (Tex. App.—Austin 2011, pet. denied) (citing

Greater Houston Transp. Co. v. Phillips, 801 S.W.2d 523, 525 (Tex. 1990); Dukes v.

Philip Johnson/Alan Ritchie Architects, P.C., 252 S.W.3d 586, 591 (Tex. App.—Fort

Worth 2008, pet. denied)). “The threshold inquiry in a negligence case is duty.” Dukes,

252 S.W.3d at 591. “Whether a duty exists is a question of law for the court to decide

from the facts surrounding the occurrence in question.” Id. “Accordingly, appellate

courts review de novo a determination regarding whether a legal duty is owed.” Smith,

346 S.W.3d at 882–83.

       Appellant first asserts that H&M owed a duty to her because it was performing

engineering services and was therefore obligated to report the unsafe condition when

Medrano observed the low-hanging cable several years before the accident. In his

deposition, Medrano stated that, when he was working on a different line two to three

years before the accident, he noticed that the utility cable appeared to be low.

Appellant’s argument fails for several reasons.           First, even if H&M was performing

engineering services—which it denied 2—it had no legal duty arising from its profession

as engineers to report a dangerous condition.               See Dukes, 252 S.W.3d at 594

(concluding that a court is not required to consider professional codes of ethics in


       2
          Dorman provided deposition testimony that H&M does not perform any engineering services for
Verizon in Texas.

                                                 5
conducting a duty analysis).     Second, even if H&M was performing engineering

services, the scope of its duty is determined by its contract with Verizon. See id. at

594–95. Here, H&M’s contract with Verizon provided that H&M was only authorized to

perform work for Verizon pursuant to an executed work order (an “Award Letter” or

“Letter of Authorization”), and it is undisputed that Verizon did not issue a work order

authorizing H&M to work on the low-hanging cable prior to the accident. Because H&M

had no obligation under the contract to remedy the low-hanging cable, it had no duty to

do so under a professional negligence theory. See id. The trial court did not err in

granting summary judgment as to appellant’s professional negligence claim.

   B. Negligent Undertaking

      Appellant claimed that H&M is liable for negligent undertaking because it and

Medrano were aware of the low-hanging cable “weeks” before the accident and

reported it to Verizon, but did not otherwise take action. In her response, appellant

alleged that “H&M took perfunctory steps to make the line safe but it failed to exercise

reasonable case [sic] in this regard.” To establish a negligent undertaking claim, a

plaintiff must prove that: (1) a defendant undertook to perform services that it knew or

should have known were necessary for the plaintiff's protection; (2) the defendant failed

to exercise reasonable care in performing those services; and (3) either the plaintiff

relied on the defendant's performance, or the defendant's performance increased the

plaintiff's risk of harm. Willowbrook Foods, Inc. v. Grinnell Corp., 147 S.W.3d 492, 499

(Tex. App.—San Antonio 2004, pet. denied) (citing Torrington Co. v. Stutzman, 46

S.W.3d 829, 837 (Tex. 2000)); Coastal Corp. v. Torres, 133 S.W.3d 776, 780 (Tex.

App.—Corpus Christi 2004, pet. denied); see Peterson v. RES Am. Const., Inc., No. 13-



                                           6
10-238-CV, 2011 WL 2582560, at *7 (Tex. App.—Corpus Christi June 30, 2011, no pet.)

(mem. op.).

         H&M argued, in its reply and on appeal, that a negligent undertaking claim

requires an “affirmative course of action” by the defendant and cannot be predicated, as

here, on an alleged negligent omission or failure to act. We agree. See Coastal, 133

S.W.3d at 780–81 (concluding that complaints about a parent company's refusal to

budget expenditures for a subsidiary was the “antithesis of an affirmative course of

action” that was required to prove the voluntary undertaking of a duty to provide safety

to the subsidiary's employees). As noted, Medrano stated in his deposition that he

noticed the utility cable appeared to be low two to three years before the accident, not

“weeks” before the accident as appellant alleged. Dorman’s affidavit established that

H&M did not work on the utility cable before the accident and was not authorized to do

so.     We conclude that appellant cannot show an “affirmative course of action”

undertaken by H&M for appellant’s benefit. See id. The trial court did not err in granting

summary judgment on appellant’s negligent undertaking claim.

      C. Alternative Premises Liability Claim

         Appellant asserted in the alternative that H&M is liable under an exception to the

general rule of premises liability. 3 “If the general rule of premises liability is inapplicable,

a party may be held liable under a premises liability analysis only if the party has agreed

to make safe a known, dangerous condition on the premises and failed to do so or if the

party has created the dangerous condition.” Dukes, 252 S.W.3d at 596. Specifically,


         3
         Ordinarily, under the general rule of premises liability, a person who does not own the real
property must assume control over and responsibility for the premises before there will be liability for a
dangerous condition existing on the real property. Dukes v. Phillip Johnson/Alan Ritchie Architects, P.C.,
252 S.W.3d 586, 592 (Tex. App.—Fort Worth 2008, pet. denied).

                                                    7
appellant asserted, in her response and on appeal, that there are fact issues: (1) “as to

whether H&M[’s] installation of this line in the first place caused the line to lower below

the legal limit”; and (2) “that H&M installed the line.”     According to appellant, the

evidence “reveals that H&M created this dangerous condition when it installed the line

or when it did maintenance near the line, before the accident.”         In support of her

assertion that “H&M had performed work on the very line at issue in this case,”

appellant cites a portion of Dorman’s deposition testimony. Dorman’s testified that H&M

performed some work at that intersection in 2004, but that he was not aware of any

work that H&M performed on the utility cable.

      We are unpersuaded by appellant’s argument. The evidence shows that H&M

did not work on the utility cable prior to the accident, and pursuant to its contract with

Verizon, was not authorized to perform any work on it prior to the accident. Dorman’s

affidavit established that H&M: (1) did not “at any time prior to the accident” perform

any work on the utility cable, (2) was never authorized by Verizon to work on the utility

cable prior to the accident, and (3) did not agree to make safe the alleged low condition

of the utility cable. This evidence established H&M’s entitlement to judgment as a

matter of law. Because appellant has not raised a fact issue as to H&M’s liability under

the exception to the general rule of premises liability, the trial court did not err in

granting summary judgment on appellant’s claim under the exception.

   D. Premises Liability

      In its motion for summary judgment, H&M asserted that appellant’s claim against

it is a premises defect claim. Duty is a threshold inquiry in a premises liability case.

Dukes, 252 S.W.3d at 592. Ordinarily, a person who does not own the real property



                                            8
must assume control over and responsibility for the premises before there will be liability

for a dangerous condition existing on the real property. Id.

       Here, H&M did not own the premises; Verizon owned the utility cable that

crossed over a public highway. H&M also had no right to control the premises through

its contract with Verizon. The contract provides that any work performed by H&M for

Verizon can only be performed pursuant to a “Letter of Authorization” or “Award Letter.”

Verizon’s interrogatory response established that it did not issue a work order to H&M to

work on the utility cable prior to the accident. Similarly, H&M did not exercise any actual

control over the premises. Dorman’s affidavit established that H&M did not perform any

work on the utility cable and was not authorized to do so under its contract with Verizon.

       We conclude that H&M established its entitlement to judgment on appellant’s

premises liability claim. Appellant did not produce any evidence raising a fact issue as

to the premises liability claim. In her response, appellant alleged that H&M was liable

under a premises liability theory only under the exception that it agreed to make safe

the alleged dangerous condition and failed to do so and/or that it created the dangerous

condition. See id. at 596. We have already rejected appellant’s argument regarding the

exception to the general rule of premises liability. We conclude that the trial court did

not err in granting summary judgment on appellant’s premises liability claim.

       Appellant failed to produce evidence raising a fact issue as to any of her claims.

Summary judgment in favor of H&M was proper. See TEX. R. CIV. P. 166a(c). We

overrule appellant’s sole issue.




                                            9
                                   IV. CONCLUSION

The trial court’s summary judgment is affirmed.


                                                  ________________________
                                                  DORI CONTRERAS GARZA,
                                                  Justice
 Delivered and filed the
17th day of October, 2013.




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