                              Fourth Court of Appeals
                                       San Antonio, Texas
                                            OPINION

                                         No. 04-17-00609-CV

                                        Marta ARREDONDO,
                                              Appellant

                                                 v.

TECHSERV CONSULTING AND TRAINING, LTD., T&D Solutions, LLC, and AEP Texas
                         Central Company,
                            Appellees

                    From the 79th Judicial District Court, Brooks County, Texas
                                 Trial Court No. 15-08-16922-CV
                          Honorable Richard C. Terrell, Judge Presiding

Opinion by:      Irene Rios, Justice

Sitting:         Sandee Bryan Marion, Chief Justice
                 Karen Angelini, Justice
                 Irene Rios, Justice

Delivered and Filed: September 26, 2018

AFFIRMED IN PART, REVERSED AND REMANDED IN PART

           Marta Arredondo appeals the trial court’s orders granting Techserv Consulting and

Training Ltd. (“Techserv”), T&D Solutions, LLC (“T&D”), and AEP Texas Central Company’s

(“AEP”) traditional and no-evidence motions for summary judgment. As to T&D, we affirm the

trial court’s order as to Arredondo’s claims for negligence per se and gross negligence, reverse the

trial court’s order as to Arredondo’s negligence claim, and remand the cause for further

proceedings. As to AEP, we reverse the trial court’s order granting AEP’s motions for traditional

and no-evidence summary judgment with regard to Arredondo’s claims for negligence, negligence
                                                                                                      04-17-00609-CV


per se, and gross negligence and remand the cause for further proceedings. As to Techserv, we

affirm the trial court’s order.

                                                  BACKGROUND

         AEP, an electric utility company, entered into a contract with T&D whereby T&D agreed

to provide “all supervision, labor, equipment and specified materials necessary to perform

underground distribution line construction and/or maintenance services (“Construction Services”),

underground distribution line construction and/or maintenance bid projects (“Project Services”)

and storm restoration services (“Storm Services”) to [AEP] on an as needed basis in AEP Texas

service areas.” These services included “deteriorated pole replacements” and “overhead system

maintenance and switching.” AEP also entered into a contract with Techserv whereby Techserv

agreed to provide “all supervision, labor, and specified equipment and materials necessary to

perform joint use engineering services to assess pole attachment construction proposal requests to

attach equipment, wires, or other materials to [AEP’s] poles submitted to [AEP] by third parties.”

Techserv’s role was to inspect work performed by T&D to ensure the work was completed

according to AEP’s specifications.

         In 2013, AEP prepared and issued a work order to T&D that included the removal of a

utility pole 1 located on a municipal right of way easement 2 on Arredondo’s property, just outside

Arredondo’s fence. T&D removed the pole, and T&D marked the work order as completed on




1
 The utility pole at issue in this case was a “stub pole.” A stub pole is a utility pole from which the top portion has
been cut off after the electric wires have been removed and transferred to a new pole but to which other wires, such
as telephone or cable, remain attached on the lower portion. A stub pole is not removed until all wires attached to it
have been relocated to another pole.
2
 A right of way is a type of easement. See Grimes v. Corpus Christi Transmission Co., 829 S.W.2d 335, 337 (Tex.
App.—Corpus Christi 1992, writ denied) (“Right-of-way easements may be used generally for travel, transportation
of persons and property, and communication.”); see also Marcus Cable Assocs., L.P. v. Krohn, 90 S.W.3d 697, 700
(Tex. 2002) (“an easement is a nonpossessory interest that authorizes its holder to use the property for only particular
purposes”).

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                                                                                     04-17-00609-CV


December 2, 2013. After T&D employees removed the pole, they laid it on the ground alongside

the fence. On July 30, 2014, approximately two weeks after the utility pole that had been removed

by T&D was picked up from the edge of Arredondo’s property, Arredondo stepped into a hole

where the utility pole had been located while mowing her lawn, causing her to fall and injure her

knee and back.

        After she fell into the hole, Arredondo called AEP and informed it of the hole on her

property where the utility pole had been located. AEP responded to the call by sending a service

technician to investigate and take pictures of the hole, which was the size and diameter of a hole

caused by the removal of a utility pole. Shortly after arriving at the property, the AEP service

technician filled the hole with dirt.

        Arredondo sued AEP, T&D, and Techserv, alleging they possessed the easement and

created a defect on the easement when they removed the pole and failed to fill the hole or otherwise

warn of its existence. Arredondo alleged AEP, T&D, and Techserv were negligent, negligent per

se, and grossly negligent. AEP, T&D, and Techserv each filed motions for traditional and no-

evidence summary judgment, which the trial court granted in separate orders.

        This appeal followed.

                                        STANDARD OF REVIEW

        We review a summary judgment de novo. Travelers Ins. Co. v. Joachim, 315 S.W.3d 860,

862 (Tex. 2010). “When reviewing a summary judgment, we take as true all evidence favorable to

the nonmovant and we indulge every reasonable inference and resolve any doubts in the

nonmovant’s favor.” Exxon Mobil Corp. v. Rincones, 520 S.W.3d 572, 579 (Tex. 2017).

        “After adequate time for discovery, a party without presenting summary judgment

evidence may move for summary judgment on the ground that there is no evidence of one or more

essential elements of a claim or defense on which an adverse party would have the burden of proof

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                                                                                       04-17-00609-CV


at trial.” TEX. R. CIV. P. 166a(i). If the nonmovant brings forward more than a scintilla of probative

evidence raising a genuine issue of material fact, then a no-evidence summary judgment is not

proper. Smith v. O’Donnell, 288 S.W.3d 417, 424 (Tex. 2009); see TEX. R. CIV. P. 166a(i). “A

genuine issue of material fact exists if more than a scintilla of evidence establishing the existence

of the challenged element is produced.” Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex.

2004). “[M]ore than a scintilla of evidence exists if the evidence ‘rises to a level that would enable

reasonable and fair-minded people to differ in their conclusions.’” Id. at 601 (quoting Merrell Dow

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

       “A party moving for traditional summary judgment has the burden to prove that there is no

genuine issue of material fact and that it is entitled to judgment as a matter of law.” Cantey Hanger,

LLP v. Byrd, 467 S.W.3d 477, 481 (Tex. 2015); see also TEX. R. CIV. P. 166a(c). A movant who

conclusively negates at least one of the essential elements of a cause of action is entitled to

summary judgment. Frost Nat. Bank v. Fernandez, 315 S.W.3d 494, 508 (Tex. 2010). “Once the

movant establishes its right to summary judgment as a matter of law, the burden shifts to the

nonmovant to present evidence raising a fact issue to defeat the motion for summary judgment.”

Briggs v. Toyota Mfg. of Texas, 337 S.W.3d 275, 282 (Tex. App.—San Antonio 2010, no pet.).

       “When a trial court’s order granting summary judgment does not specify the grounds relied

upon, the reviewing court must affirm summary judgment if any of the summary judgment grounds

are meritorious.” FM Properties Operating Co. v. City of Austin, 22 S.W.3d 868, 872 (Tex. 2000).

“[I]f a no-evidence motion for summary judgment and a traditional motion for summary judgment

are filed which respectively asserts the plaintiff has no evidence of an element of its claim and

alternatively asserts that the movant has conclusively negated that same element of the claim, we

address the no-evidence motion for summary judgment first.” Williams v. Parker, 472 S.W.3d 467,

469–70 (Tex. App.—Waco 2015, no pet.). If, however, the traditional motion for summary

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                                                                                                 04-17-00609-CV


judgment challenges a cause of action for a reason independent of and unrelated to an element

challenged in the no-evidence motion, we first review the independent argument raised in the

traditional motion for summary judgment because it would be unnecessary to address whether a

plaintiff met his burden as to the no-evidence challenge if the cause of action is barred as a matter

of law. See Lotito v. Knife River Corp.-S., 391 S.W.3d 226, 227 n.2 (Tex. App.—Waco 2012, no

pet.) (concluding “if the traditional motion is based on the legal question of whether the plaintiff

is asserting a recognized legal claim, we must first address that issue before proceeding to review

a judgment based on a no-evidence motion for summary judgment which purports to attack

elements of the alleged claim”). 3

                                    SUMMARY JUDGMENT AS TO T&D

    A. T&D’s Motions for Summary Judgment and Arredondo’s Contentions

        In its traditional motion for summary judgment, T&D asserted that despite Arredondo’s

claims for negligence and negligence per se, Arredondo’s allegations sound in premises liability,

and the evidence conclusively shows T&D did not have any actual or constructive knowledge of

the hole on the property. T&D also asserted that even if negligence is a viable cause of action in

this case, the evidence conclusively shows T&D did not have any legal duty to Arredondo. In its

no-evidence motion for summary judgment, T&D asserted Arredondo’s claims all fail because

Arredondo could not produce more than a scintilla of evidence raising a genuine issue of material

fact as to essential elements of her claims. Specifically, T&D asserted Arredondo had no evidence


3
  See also Avery v. Guadalupe Cty. Appraisal Dist., No. 04-16-00572-CV, 2017 WL 1337640, at *3 (Tex. App.—San
Antonio Apr. 12, 2017, pet. denied) (mem. op.) (addressing first arguments raised in the traditional motion for
summary judgment because the traditional motion asserted grounds different from the grounds asserted in the no-
evidence motion); TC & C Real Estate Holdings, Inc. v. Sherrod, No. 10-13-00385-CV, 2014 WL 4161763, at *2
(Tex. App.—Waco Aug. 21, 2014, pet. denied) (mem. op.) (noting the general rule that a no-evidence motion should
be addressed first “does not apply when the no-evidence motion for summary judgment and the traditional motion for
summary judgment are not on the same grounds”); United Genesis Corp. v. Brown, No. 04-06-00355-CV, 2007 WL
1341358, at *3 (Tex. App.—San Antonio May 9, 2007, no pet.) (mem. op.) (addressing first an argument raised in the
traditional summary judgment motion that a claim was barred as a matter of law).

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                                                                                    04-17-00609-CV


that T&D knew or should have known of the hole on the property, that T&D owed Arredondo a

duty, that T&D violated a statute, that T&D’s acts or omissions constituted an extreme risk of

harm, or that T&D had any actual, subjective awareness of the risk involved.

       On appeal, as in the trial court, Arredondo contends the existence of genuine issues of

material fact as to each challenged element of her claims preclude summary judgment. Arredondo

argues she brought a viable negligence claim against T&D, and that even if she did not, she

nonetheless presented evidence raising a fact issue as to a premises liability claim. T&D argues

that Arredondo misunderstands the distinction between ordinary negligence and premises liability,

and that Arredondo’s claim sounds in premises liability, not ordinary negligence.

   B. Nature of Arredondo’s Claim: Ordinary Negligence vs. Premises Liability

       We first address the parties’ disagreement as to the nature of Arredondo’s claim because it

would be fruitless to address whether Arredondo defeated a no-evidence challenge to a nonviable

cause of action.

       T&D argued in its traditional motion for summary judgment and argues on appeal that

“[t]he claim of a person injured by the condition on property is a premises-liability claim.”

However, as the supreme court has explained, the application of premises liability to an injury

arising from a property condition depends not on the nature of the condition, but on the party

against whom liability is sought. See Occidental Chem. Corp. v. Jenkins, 478 S.W.3d 640, 644-45

(Tex. 2016). In Occidental, the supreme court discussed the two negligence-based claims one

could have against a property owner or possessor when injured on another’s property:

       Depending on the circumstances, a person injured on another’s property may have
       either a negligence claim or a premises-liability claim against the property owner.
       When the injury is the result of a contemporaneous, negligent activity on the
       property, ordinary negligence principles apply. When the injury is the result of the
       property’s condition rather than an activity, premises-liability principles apply.
       Although premises liability is itself a branch of negligence law, it is a “special
       form” with different elements that define a property owner or occupant’s duty with

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                                                                                     04-17-00609-CV


        respect to those who enter the property. Under premises-liability principles, a
        property owner generally owes those invited onto the property a duty to make the
        premises safe or to warn of dangerous conditions as reasonably prudent under the
        circumstances. That duty generally runs with the ownership or control of the
        property.

Id. (citations omitted).

        However, liability for a premises condition may arise not only from ownership or control

of the property, but also from one’s role in creating the dangerous condition in the first instance.

Id. at 645. The supreme court explained in Occidental that “the creator of a dangerous [property]

condition can remain liable for the condition even after relinquishing control of the property.” Id.

“When the property’s dangerous condition is caused or created by another, an independent claim

against the other may lie in negligence.” Id. at 642. This principle is found in Section 385 of the

Second Restatement of Torts, which states:

        One who on behalf of the possessor of land erects a structure or creates any other
        condition thereon is subject to liability to others upon or outside of the land for
        physical harm caused to them by the dangerous character of the structure or
        condition after his work has been accepted by the possessor, under the same rules
        as those determining the liability of one who as manufacturer or independent
        contractor makes a chattel for the use of others.

RESTATEMENT (SECOND) TORTS § 385 (1965); see also Occidental, 478 S.W.3d at 646. Thus, an

actor such as an independent contractor or servant acting on behalf of the property owner or

possessor may be held liable under ordinary negligence for creating a dangerous premises

condition even after he is no longer in control of the property. Occidental, 478 S.W.3d at 646-47.

It has long been recognized that ordinary negligence principles apply to an allegation that a party

not in possession or control of the premises acted negligently in creating a dangerous property

condition. See id. at 642, 645-47; Allen Keller Co. v. Foreman, 343 S.W.3d 420, 424 (Tex. 2011)

(noting that “general negligence principles apply” to a contractor’s negligent creation of a

dangerous premises condition); City of Denton v. Page, 701 S.W.2d 831, 835 (Tex. 1986) (“[A]


                                                -7-
                                                                                       04-17-00609-CV


private person who has created the dangerous condition may be liable even though not in control

of the premises at the time of injury.”); Strakos v. Gehring, 360 S.W.2d 787, 790-94, 803 (Tex.

1962) (holding contractor who no longer controlled the premises was liable for an injury arising

out of a premises condition he created based on “the basic questions of negligence and proximate

cause” and his “failure to use ordinary care” in performing the work).

       In Strakos, the plaintiff severely injured his leg when he stepped into a hole that had been

created by the removal of a fence post during the relocation of a fence next to a roadway. Strakos,

360 S.W.2d at 788. The county had contracted Gehring to relocate the fences on both sides of the

roadway due to a planned widening of the road. Id. Gehring did not fill the hole or erect a sign or

other device to warn of its existence after he moved the fence, and the hole was virtually hidden

by vegetation. Id. at 789. After the jury found Gehring liable, the court of civil appeals reversed

the trial court’s judgment as to Gehring on the grounds that Gehring had no duty regarding the

hole he created once the work was accepted as completed. Id. The supreme court reinstated the

trial court’s judgment and held Gehring was liable under negligence principles for the dangerous

property condition he created, stating “[t]he fact that one who assumes control over a dangerous

condition left by a contractor may be liable for injuries resulting therefrom does not necessarily

mean that he who creates the danger should escape liability.” Id. at 788, 790.

       In this case, Arredondo stepped into a hole that allegedly was caused by T&D’s removal

of a utility pole. In response to T&D’s motion for summary judgment, Arredondo presented

evidence that T&D, as a contractor working for AEP, was directed by AEP to remove a utility pole

on the property, and that T&D had a duty to the public to either fill in a hole created by its removal

of a utility pole or warn of its existence. T&D’s alleged failure to fill the hole occurred while T&D

was performing work on the property on behalf of AEP, an electric utility with a statutory right of

control over the property with regard to the electric utility poles. See TEX. UTIL. CODE ANN.

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                                                                                       04-17-00609-CV


§ 181.042 (West 2007) (“An electric utility has the right to construct, maintain, and operate lines

over, under, across, on, or along a state highway, a county road, a municipal street or alley, or other

public property in a municipality.”). Thus, Arredondo’s allegations and the evidence in the record

show T&D removed the pole on behalf of a possessor of land, i.e., AEP, and the injury occurred

after T&D completed its work and left the property. See United Scaffolding, Inc. v. Levine, 537

S.W.3d 463, 473 (Tex. 2017); RESTATEMENT (SECOND) OF TORTS § 328E(c) (1965) (noting that a

possessor of land is not merely one who occupies it, but also one with a right to occupy it).

       As would be required under premises liability, T&D did not produce any evidence showing

it continued to exercise control or maintain a right of control over the property after its employees

completed the work order and left the job site, or that it possessed or owned the property at the

time of Arredondo’s injury. Cf. United Scaffolding, 537 S.W.3d at 477-79 (Tex. 2017) (holding

personal injury suit against scaffolding contractor sounded in premises liability, not ordinary

negligence, where contractor maintained the right to control the scaffold where the plaintiff fell

through a hole). Because the record shows T&D did not have control over the property when

Arredondo was injured and T&D removed the pole as a contractor for AEP, thereby creating a

dangerous condition, we conclude Arredondo’s claim against T&D for creating the hole and failing

to fill it or warn of its existence sounds in ordinary negligence, not premises liability. See

Occidental, 478 S.W.3d at 646-47; Strakos, 360 S.W.2d at 790.

   C. Remaining Summary Judgment Grounds

       Having concluded that Arredondo’s allegations against T&D sound in ordinary negligence,

not premises liability, we turn to the remaining arguments asserted in T&D’s traditional and no-

evidence motions for summary judgment, all of which challenge elements of Arredondo’s

negligence, negligence per se, and gross negligence claims.



                                                 -9-
                                                                                   04-17-00609-CV


       1. Negligence

       To establish negligence, a party must show (1) the existence of a legal duty, (2) breach of

that duty, and (3) damages proximately resulting from the breach. UMLIC VP LLC v. T & M Sales

& Envtl. Sys., Inc., 176 S.W.3d 595, 611 (Tex. App.—Corpus Christi 2005, pet. denied). Regarding

Arredondo’s negligence claim, T&D asserted in its no-evidence motion for summary judgment

that Arredondo could produce no evidence T&D owed a duty to Arredondo regarding the hole,

and asserted in its traditional motion for summary judgment that T&D had no duty as a matter of

law.

       Contrary to T&D’s assertions, as explained above, a contractor such as T&D has a duty to

warn of or make safe dangerous premises conditions it creates while performing work for one with

a right to control the property, and may remain liable for injuries arising out of a dangerous

condition it creates even after finishing the work and leaving the premises. See Occidental, 478

S.W.3d at 646-47; Strakos, 360 S.W.2d at 790-94. Arredondo produced evidence showing T&D

received a work order from AEP to remove a utility pole from the easement on Arredondo’s

property and that T&D removed the utility pole and marked the work order as completed on

December 2, 2013. The evidence further shows the hole Arredondo stepped in was at the same

location where the utility pole had been and was the same size and diameter as a hole produced by

the removal of a utility pole.

       Moreover, T&D had a contractual obligation to exercise care in the performance of its

work. AEP’s General Terms and Conditions for Labor and Services, incorporated into the contract

between AEP and T&D, provided: “Contractor shall perform the Work in a safe and careful

manner, . . . and use such safety devices and methods as are necessary to protect . . . the public

from bodily injury and property damage.” Additionally, the Supplementary Terms and Conditions

for Distribution Construction and Maintenance Contracts, also incorporated into the contract

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                                                                                                   04-17-00609-CV


between AEP and T&D, provided: “When Work is performed on private property, Contractor shall

notify owner and/or tenants thereof. Contractor shall use its best efforts to arrange for the

completion of Work to be with the least inconvenience practicable to such owner/tenants. Work

performance on private property shall be done as expeditiously as possible and the premises

restored immediately.”

         Accordingly, we conclude as a matter of law that T&D owed a duty to either warn of or

make safe the hole it created by removing the utility pole, which Arredondo allegedly stepped in

on July 30, 2014. 4 “[T]he existence of duty is a question of law for the court to decide from the

facts surrounding the occurrence in question.” Greater Houston Transp. Co. v. Phillips, 801

S.W.2d 523, 525 (Tex. 1990). Accordingly, we conclude the trial court erred by granting summary

judgment as to Arredondo’s negligence claim against T&D. 5

         2. Negligence Per Se

         “Negligence per se is a tort concept where a plaintiff establishes a breach of a legal duty

based on the violation of a statute that was designed to prevent an injury to that class of persons to

which the plaintiff belongs.” Carrera v. Yañez, 491 S.W.3d 90, 94 (Tex. App.—San Antonio 2016,

no pet.). Under negligence per se, courts “adopt a legislatively imposed standard of conduct as

defining the conduct of a reasonably prudent person.” Moughon v. Wolf, 576 S.W.2d 603, 604



4
  Whether T&D breached its duty by failing to fill or warn of the hole and whether the hole Arredondo stepped in was
the same hole created by T&D are separate issues from the issue of whether T&D owed a legal duty to warn of or
make safe the hole it created when it removed the utility pole.
5
  Both Arredondo and T&D’s briefs contain arguments regarding whether Arredondo presented evidence showing
T&D breached its duty of reasonable care. However, T&D’s motion for summary judgment does not contain any
assertion that Arredondo could produce no evidence of breach; T&D made this assertion for the first time in its reply
to Arredondo’s response to the motion for summary judgment. Because a trial court cannot grant summary judgment
on grounds raised in a reply in support of a motion for summary judgment and not included in any supplemental or
amended motion for summary judgment, we do not discuss whether Arredondo presented evidence raising a fact issue
as to the element of breach. See Mei-Chiao Chen Wu v. City of San Antonio, No. 04-10-00836-CV, 2013 WL 4084721,
at *5-*6 (Tex. App.—San Antonio Aug. 14, 2013, pet. denied) (mem. op.); Staller v. Serv. Corp. Int’l, No. 04-06-
00212-CV, 2006 WL 3018039, at *4 (Tex. App.—San Antonio Oct. 25, 2006, no pet.) (mem. op.).

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                                                                                      04-17-00609-CV


(Tex. 1978). “The threshold questions in every negligence per se case are whether the plaintiff

belongs to the class that the statute was intended to protect and whether the plaintiff’s injury is of

a type that the statute was designed to prevent.” Perry v. S.N., 973 S.W.2d 301, 305 (Tex. 1998).

       Regarding Arredondo’s negligence per se claim, T&D in its no-evidence motion for

summary judgment asserted Arredondo had neither alleged T&D violated a specific statute nor

produced evidence it had violated a statute. In her response to T&D’s motion for summary

judgment, Arredondo asserted T&D has a nationally recognized duty to provide a safe workplace

that is free from hazards and cited a provision of the federal labor code that states, “Each employer

. . . shall furnish to each of his employees employment and a place of employment which are free

from recognized hazards that are causing or are likely to cause death or serious physical harm to

his employees.” 29 U.S.C. § 654(a)(1). This provision of the labor code is explicitly designed to

protect employees, and Arredondo is not an employee of T&D. See Wal-Mart Stores, Inc. v. Seale,

904 S.W.2d 718, 720 (Tex. App.—San Antonio 1995, no writ) (noting that violations of federal

safety rules designed to protect employees do not establish negligence per se where the injured

party was not an employee).

       Accordingly, we conclude Arredondo failed to present any evidence T&D violated a statute

that was designed to prevent an injury to the class of persons to which Arredondo belongs.

Therefore, the trial court did not err by granting summary judgment as to Arredondo’s negligence

per se claim against T&D.

       3. Gross Negligence

       Gross negligence consists of both objective and subjective elements: “extreme risk” and

“actual awareness.” Lee Lewis Constr., Inc. v. Harrison, 70 S.W.3d 778, 785 (Tex. 2001). A

plaintiff must show by clear and convincing evidence that (1) “when viewed objectively from the

defendant’s standpoint at the time of the event, the act or omission involved an extreme degree of

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                                                                                      04-17-00609-CV


risk, considering the probability and magnitude of the potential harm to others” and (2) “the

defendant had actual, subjective awareness of the risk involved, but nevertheless proceeded with

conscious indifference to the rights, safety, or welfare of others.” U-Haul Int’l, Inc. v. Waldrip,

380 S.W.3d 118, 137 (Tex. 2012). “Under the objective component, ‘extreme risk’ is not a remote

possibility or even a high probability of minor harm, but rather the likelihood of the plaintiff’s

serious injury.” Id. We examine this risk “prospectively from the perspective of the actor, not in

hindsight.” Columbia Med. Ctr. of Las Colinas, Inc. v. Hogue, 271 S.W.3d 238, 248 (Tex. 2008).

To satisfy the subjective prong, a plaintiff “must show that the defendant knew about the peril, but

his acts or omissions demonstrate that he did not care.” La.-Pac. Corp. v. Andrade, 19 S.W.3d 245,

246–47 (Tex. 1999).

       T&D in its no-evidence motion for summary judgment asserted Arredondo could produce

no evidence that T&D’s acts or omissions constituted an extreme risk of harm or that T&D had

any actual, subjective awareness of the risk involved.

       The objective element requires the plaintiff to prove that “when viewed objectively from

the defendant’s standpoint at the time of the event, the act or omission involved an extreme degree

of risk, considering the probability and magnitude of the potential harm to others.” U-Haul Int’l,

380 S.W.3d at 137 (emphasis added). In support of the objective element, Arredondo points to the

deposition testimony of AEP employees Jose Ramirez, Daniel Garcia, and Roel Lopez. Ramirez,

the service technician who responded to Arredondo’s call reporting that she stepped into a hole on

her property, testified utility workers and contractors have a duty to perform their jobs in a safe

and reasonable manner because if they do not, there is an extreme risk of harm not only to the crew

but to the general public. Ramirez testified he would never leave exposed a hole like the one

Arredondo stepped in because it would be unsafe, and further affirmed that a person stepping into

the hole is exactly the risk that an exposed hole poses. Ramirez further testified that, based on his

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                                                                                        04-17-00609-CV


years of experience, he had no explanation and could not think of any reason as to why the hole

created by the removal of a utility pole was not filled in, and, based on his training and experience,

considered it unacceptable for a utility worker to leave a hole like the one Arredondo stepped in

without either filling it in or marking it before leaving the work site. Garcia testified that a

professional utility contractor would know to fill a hole caused by the removal of a utility pole or

otherwise make it safe, and that such a hole would be a fall hazard. Garcia further testified that

due to the nature of utility work, there is a strong emphasis on safety to the general public because

improperly performed work can be lethal. Garcia agreed that a utility contractor that performs its

work in an unsafe manner creates an extreme risk to others. Lopez testified the expectation for a

utility contractor when removing a utility pole is to either cover the hole caused by the pole’s

removal or warn of it—regardless of whether the contractor leaves the pole at the site. Lopez

further testified that unsafe utility operations is very dangerous and can result in serious injuries,

and that failing to provide for the safety of others on a job site is very dangerous.

       We acknowledge that the above testimony supports the notion that improperly performed

utility work, as a general matter, can be very dangerous, can result in serious injuries or death, and

can pose an extreme risk to others. This is because utility work involves a wide range of activities,

including installing and maintaining electrical lines and, as here, performing underground

distribution line construction. However, the testimony Arredondo points to does not state,

specifically, that failing to fill in or warn of a hole caused by the removal of a utility pole from a

residential yard poses an extreme risk of harm to others or can be lethal. Rather, the most that can

be adduced from the above testimony is that failing to fill in or warn of a hole caused by the

removal of a utility pole from a residential yard amounts to a fall hazard. However, the fact that

conduct is unsafe, or even constitutes a “serious safety hazard,” does not necessarily establish that

the conduct constitutes an extreme risk, i.e., a risk so great as to make it highly probable that harm

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                                                                                      04-17-00609-CV


would follow. See City of Dalhart v. Lathem, 476 S.W.3d 103, 109 (Tex. App.—Amarillo 2015,

pet. denied) (citing Wal–Mart Stores v. Alexander, 868 S.W.2d 322, 326 (Tex. 1993)).

       Accordingly, even when taking as true all evidence favorable to Arredondo and indulging

every reasonable inference and resolving any doubts in Arredondo’s favor, we conclude

Arredondo failed to present evidence raising a genuine issue of material fact that T&D’s alleged

failure to fill the hole caused by the removal of the utility pole involved an extreme degree of risk,

considering the probability and magnitude of the potential harm to others. Because Arredondo

failed to produce evidence raising a fact issue as to the objective element of gross negligence, we

need not address the subjective element of gross negligence.

                                SUMMARY JUDGMENT AS TO AEP

   A. AEP’s Motions for Summary Judgment and Arredondo’s Contentions on Appeal

       AEP filed a traditional motion for summary judgment and a no-evidence motion for

summary judgment. In its traditional motion for summary judgement, AEP asserted the evidence

conclusively established it did not retain or exercise control over T&D’s work methods, and

therefore AEP owed no legal duty to Arredondo. In its no-evidence motion for summary judgment,

AEP asserted Arredondo could produce no evidence that (1) AEP owed a legal duty to Arredondo,

(2) AEP breached any duty to Arredondo, or (3) Arredondo’s injuries were proximately caused by

any act or omission of AEP. In her response to AEP’s motions for summary judgment, Arredondo

argued AEP owed her a legal duty under three separate theories: (1) AEP owed a duty as an

easement holder, (2) AEP had a contractual right to control T&D’s work, and (3) the utility work

performed by T&D was inherently dangerous. Arredondo further argued AEP breached its duty

by allowing the hole to remain on the property and that the hole foreseeably caused her injuries.

       On appeal, Arredondo repeats the arguments made in her response to AEP’s motions for

summary judgment, contending AEP owed a legal duty as an easement holder, AEP owed a duty

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because it had a contractual right to control T&D, and AEP owed a duty because the work T&D

performed was inherently dangerous. In response, AEP argues it did not have contractual control

over T&D and that removing a utility stub pole is not an inherently dangerous activity.

   B. Duty Arising from a Contractual Right to Control the Actions of T&D

       Arredondo argues AEP is liable for her injury because AEP retained a contractual right to

control T&D’s actions.

       1. Applicable Law Regarding Duty for Independent Contractor’s Actions Arising
          from Control

       Generally, “the employer of an independent contractor is not liable for physical harm

caused to another by an act or omission of the [independent] contractor or his servants.” Bell v.

VPSI, Inc., 205 S.W.3d 706, 718 (Tex. App.—Fort Worth 2006, no pet.) (quoting RESTATEMENT

(SECOND) OF TORTS § 409). However, an exception to the general rule “applies when the employer

retains some control over the manner in which the independent contractor’s work is performed,

but does not retain the degree of control which would subject him to liability as a master” under

traditional master-servant law. Redinger v. Living, Inc., 689 S.W.2d 415, 418 (Tex. 1985). Stated

differently, “[o]ne who entrusts work to an independent contractor, but who retains the control of

any part of the work, is subject to liability for physical harm to others for whose safety the

employer owes a duty to exercise reasonable care, which is caused by his failure to exercise his

control with reasonable care.” Clayton W. Williams, Jr., Inc. v. Olivo, 952 S.W.2d 523, 528 (Tex.

1997) (quoting RESTATEMENT (SECOND) OF TORTS § 414). Under this exception, an employer “is

subject to liability if he knows or should know that the [independent contractor] ha[s] carelessly

done [its] work in such a way as to create a dangerous condition, and [the employer] fails to

exercise reasonable care either to remedy it himself or by the exercise of his control cause the

[independent contractor] to do so.” RESTATEMENT (SECOND) OF TORTS § 414 cmt. b; accord Fifth


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                                                                                     04-17-00609-CV


Club, Inc. v. Ramirez, 196 S.W.3d 788, 791 (Tex. 2006) (stating that under § 414, “an employer

can be held vicariously liable for the actions of an independent contractor if the employer retains

some control over the manner in which the contractor performs the work that causes the damage”).

       Therefore, the employer of an independent contractor is required “to exercise any retained

supervisory control with reasonable care so as to prevent the work which he has ordered to be done

from causing injury to others.” Olivo, 952 S.W.2d at 528 (internal quotation marks omitted). “[T]o

be liable for negligence, [the employer’s] supervisory control must relate to the condition or

activity that caused the injury.” Id. Furthermore, for the exception to apply,

       the employer must have retained at least some degree of control over the manner in
       which the work is done. It is not enough that he has merely a general right to order
       the work stopped or resumed, to inspect its progress or to receive reports, to make
       suggestions or recommendations which need not necessarily be followed, or to
       prescribe alterations and deviations. . . . There must be such a retention of a right
       of supervision that the contractor is not entirely free to do the work in his own way.

Koch Ref. Co. v. Chapa, 11 S.W.3d 153, 155 (Tex. 1999) (per curiam) (quoting RESTATEMENT

(SECOND)   OF   TORTS § 414 cmt. c.). In other words, “an employer may become liable for the

independent contractor’s tortious acts only if the employer controls the details or methods of the

independent contractor’s work to such an extent that the contractor cannot perform the work as it

chooses.” Fifth Club, 196 S.W.3d at 792.

       “If the right of control over work details has a contractual basis, the circumstance that no

actual control was exercised will not absolve the general contractor of liability.” Dow Chem. Co.

v. Bright, 89 S.W.3d 602, 606 (Tex. 2002) (quoting Elliott–Williams Co. v. Diaz, 9 S.W.3d 801,

804 (Tex. 1999)). “It is the [contractual] right of control, and not the actual exercise of control,

which gives rise to a duty to see that an independent contractor performs work in a safe manner.”

Id. (quoting Diaz, 9 S.W.3d at 804). Whether an employer has a contractual right to control an




                                                - 17 -
                                                                                                     04-17-00609-CV


independent contractor’s work is generally a question of law for the court. Shell Oil Co. v. Khan,

138 S.W.3d 288, 292 (Tex. 2004).

         2. Application

         In support of her contention that AEP retained the right to control the work performed by

T&D, Arredondo points to the following pertinent contractual provisions in the contract between

AEP and T&D:

         •   Contractor [T&D] shall have an authorized representative at the Site to whom
             Owner [AEP] may give instructions at all times when Work is being performed.

         •   When work is performed on private property . . . Contractor shall use its best
             efforts to arrange for the completion of Work to be with the least inconvenience
             practicable to such owner/tenants. Work performance on private property shall
             be done as expeditiously as possible and the premises restored immediately.

         Although many of the contractual provisions cited by Arredondo do not relate to the

specific condition or activity from which her injuries arose, 6 the provision requiring T&D to “have

an authorized representative at the Site to whom [AEP] may give instructions at all times when

Work is being performed” essentially gave AEP the right and discretion to control the means,

methods, and details of T&D’s work to the extent that T&D was not entirely free to do its work in

its own way. Moreover, the contractual provision that requires T&D to restore the premises

immediately after performing work on private property directly relates to the source of

Arredondo’s injuries: T&D’s alleged failure to fill in the hole caused by its removal of a utility


6
  In addition to the foregoing provisions, Arredondo points to contractual provisions that show: (1) AEP controls the
type and category of material that T&D may use; (2) AEP may take possession or use any part of T&D’s work at any
time; (3) AEP requires T&D to implement AEP’s inspection system on a specified timetable by specified T&D
employees, requiring a T&D employee to manage, coordinate and enforce AEP’s safety program; (4) AEP requires
T&D to conduct a safety briefing before commencing work, requires that it be put in writing, that all crew must sign
in for attendance, outlines that topics that must be covered, and provides an AEP form that can be used to execute this
requirement; (5) AEP outlines the required uniforms that T&D’s employees must wear while working; (6) AEP
controls the language spoken by T&D employees and subcontractors, requiring that all T&D employees speak English;
and (7) AEP has complete control over the selection of T&D employees, specifying who can or cannot work as an
T&D employee, the specific training that is required for T&D employees, requiring that certain types of employees
be used under different circumstances, and all T&D employees are subject to inspection by AEP at any time.

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                                                                                      04-17-00609-CV


pole. See Victoria Elec. Co-op., Inc v. Williams, 100 S.W.3d 323, 327 (Tex. App.—San Antonio

2002, pet. denied) (noting “an employer is not liable for the negligence of an independent

contractor unless the employer retains the right of control . . . over the condition or activity that

causes the injury”). According to Arredondo’s allegations, T&D left the hole unfilled and therefore

did not restore the premises immediately. Thus, AEP retained control over the method and means

of T&D’s work as it related to removing the utility pole on Arredondo’s property by specifically

requiring that, when performing work on private property, the “premises [be] restored

immediately,” and by requiring T&D to have an authorized representative at the site to whom AEP

could give instructions at all times while work was being performed. Accordingly, we conclude

that as a matter of law, AEP had a duty arising from a contractual right to control the aspect of

T&D’s work that allegedly caused Arredondo’s injury.

       Because a fact issue exists as to whether the hole Arredondo stepped in was caused by

T&D’s removal of a utility pole, a fact issue also exists as to whether the duty AEP owed pursuant

to its contractual right of control gives rise to liability in this case. Because we conclude AEP owed

a duty pursuant a contractual right of control, it is unnecessary for us to discuss Arredondo’s

arguments that AEP owed a duty as one with a right to control the premises or because the work

performed by T&D was inherently dangerous.

       3. Breach and Proximate Causation

       In addition to asserting it owed no legal duty in its no-evidence motion for summary

judgment, AEP also asserted Arredondo could produce no evidence AEP breached any duty to

Arredondo or that AEP’s acts or omissions proximately caused Arredondo’s injuries.

       Arredondo attached to her response her own deposition testimony wherein she testified that

utility workers removed the utility pole and laid it on the ground between her fence and the street,

and that she later stepped in the hole where the pole had been while she was mowing the grass.

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                                                                                                    04-17-00609-CV


Arredondo further testified she received several injuries from falling into the hole, including to her

back and her left leg. Arredondo also presented the deposition testimony of Ramirez and Carrera.

Ramirez testified the hole in Arredondo’s yard looked like it was a hole caused by the removal of

a utility pole and was located in the same location as the utility pole removed by T&D. Ramirez

also testified a hole caused by the removal of a utility pole should not be left exposed because it is

unsafe. Carrera testified that to leave a hole caused by the removal of a utility pole without filling

it in or warning of it would be a risk and hazard to anyone walking next to the street. Taking as

true all evidence favorable to Arredondo and indulging every reasonable inference and resolving

any doubts in Arredondo’s favor, we conclude genuine issues of material fact exist as to whether

AEP breached the duty it owed as T&D’s employer with a contractual right to control T&P’s work

and whether this breach proximately caused her injuries. 7

         Accordingly, because Arredondo produced evidence raising a genuine issue of material

fact as to each of the challenged elements in AEP’s no-evidence motion for summary judgment,

we conclude the trial court erred by granting Arredondo’s no-evidence motion for summary

judgment as to her claims for negligence and gross negligence. 8 AEP in its traditional motion for

summary judgment argued the evidence established AEP did not retain a right to control T&D’s

work and presented testimony from AEP and T&D employees that no AEP employee was at the

site when T&D was doing work on the property, T&D knew how to remove a utility pole and no

one had to tell them how to do it, and it was the responsibility of the crew working the job to warn

of a hole left on the property. However, as previously discussed, Arredondo presented evidence


7
 AEP argues on appeal that Arredondo never responded to AEP’s assertion in its no-evidence motion challenging the
element of proximate cause. However, Arredondo asserted in her response that it was foreseeable that leaving a hole
on Arredondo’s property could cause injuries and that the hole did in fact cause her injuries and produced evidence in
support thereof.
8
  Unlike T&D, AEP in its motions for summary judgment did not challenge any element of gross negligence apart
from the core elements of ordinary negligence.

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                                                                                     04-17-00609-CV


showing AEP retained a contractual right to control T&D’s work. Thus, we conclude the trial court

erred by granting AEP’s traditional motion for summary judgment. Moreover, because AEP in its

motions for summary judgment did not challenge Arredondo’s negligence per se claim and the

summary judgment evidence does not conclusively defeat the claim or otherwise render it invalid,

we conclude the trial court erred by granting summary judgment as to Arredondo’s claim for

negligence per se. See G & H Towing Co. v. Magee, 347 S.W.3d 293, 297-98 (Tex. 2011) (holding

that granting summary judgment on a claim not addressed in the summary judgment motion is

generally reversible error, but that error may be harmless if the omitted claim is precluded as a

matter of law by other grounds raised in the case).

                            SUMMARY JUDGMENT AS TO TECHSERV

   A. Techserv’s Motions for Summary Judgment and Arredondo’s Contentions on Appeal

       In its traditional motion for summary judgment, Techserv asserted the evidence

conclusively established it did not owe Arredondo a legal duty, and even if it did owe a legal duty,

it did not breach any duty to Arredondo. In its no-evidence motion for summary judgment,

Techserv asserted Arredondo could produce no evidence that Techserv owed a legal duty to

Arredondo or that Techserv breached any duty to Arredondo. With regard to Arredondo’s

negligence per se claim, Techserv asserted there was no evidence it had violated a statute. With

regard to Arredondo’s gross negligence claim, Techserv asserted there was no evidence its acts or

omissions constituted an extreme risk likely to lead to serious injury to others or that Techserv

knew of any peril but demonstrated that it did not care. Techserv further asserted there was no

evidence to support Arredondo’s claim for exemplary damages because, in addition to there being

no evidence to support gross negligence, there was no evidence Techserv’s acts or omissions

amounted to either fraud or malice. Arredondo filed a response to Techserv’s motions for summary

judgment. However, Arredondo did not request that her response be included in the clerk’s record

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                                                                                     04-17-00609-CV


for this appeal. Included in the clerk’s record is Arredondo’s supplemental response to Techserv’s

motions for summary judgment. In the supplemental response, Arredondo presented the testimony

of T&D employee Robert Ramos and Techserv employee Richard Luna and asserted a genuine

issue of material fact precluded summary judgment.

       On appeal, Arredondo contends Techserv owed a legal and contractual duty to her, that

Techserv breached its duty by failing to properly inspect the property where the pole was removed,

and that a genuine issue of material fact exists as to her gross negligence claim.

   B. Arredondo Failed to Include Her Response in the Clerk’s Record and Her
      Supplemental Response was Insufficient to Defeat Summary Judgment

       Techserv argues we should affirm the trial court’s judgment because Arredondo failed to

present the full summary judgment record considered by the trial court.

       To obtain a reversal of a trial court’s order granting summary judgment, an appellant must

provide the appellate court with the relevant summary judgment evidence considered by the trial

court. Enter. Leasing Co. of Houston v. Barrios, 156 S.W.3d 547, 549 (Tex. 2004) (per curiam).

“Although [the summary judgment movant] bears the burden to prove its summary judgment as a

matter of law, on appeal [the nonmovant] bears the burden to bring forward the record of the

summary judgment evidence to provide appellate courts with a basis to review his claim of harmful

error.” Id. “If the pertinent summary judgment evidence considered by the trial court is not

included in the appellate record, an appellate court must presume that the omitted evidence

supports the trial court's judgment.” Id. at 550.

       Thus, when a party appeals from an order granting a no-evidence motion for summary

judgment, she must include within the clerk’s record not only the summary judgment motion and

the exhibits attached thereto, but also her own response to the summary judgment motion and

attached exhibits. See Sung Sik Choi v. Juggernaut Transportation, Inc., No. 05-16-01386-CV,


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                                                                                     04-17-00609-CV


2017 WL 2729907, at *2 (Tex. App.—Dallas June 26, 2017, no pet.) (mem. op.) (presuming

omitted response to no-evidence motion for summary judgment supported trial court’s judgment

where appellants appealed from the trial court’s order granting a no-evidence motion for summary

judgment but did not include their response to the motion for summary judgment in the clerk’s

record); Habanero, Inc. v. Schweitzer, No. 14-11-00339-CV, 2012 WL 19671, at *1 (Tex.—App.

Houston [14th Dist.] Jan. 5, 2012, no pet.) (mem. op.) (presuming summary judgment motions

supported the trial court’s judgment where appellant failed to include his response to the summary

judgment motions in the clerk’s record).

         Although Arredondo included in the clerk’s record her supplemental response to

Techserv’s motions for summary judgment, the supplemental response addressed only the element

of breach, i.e., whether Techserv properly inspected the property to ensure the hole was filled. As

discussed above, however, Techserv sought summary judgment as to Arredondo’s negligence

claim by asserting there was no evidence of either legal duty or breach. When an appellant’s

response to a no-evidence motion for summary judgment does not address an element of a claim

challenged in the motion, she may not raise for the first time on appeal arguments in support of

the unaddressed elements. Benson v. Indymac Mortg. Servs., No. 02-13-00197-CV, 2014 WL

787851, at *2 (Tex. App.—Fort Worth Feb. 27, 2014, no pet.) (mem. op.). Moreover, although

Arredondo in her brief cites to her response to AEP’s motions for summary judgment and the

evidence attached thereto, “[t]he evidence raised by [an] [a]ppellant in response to another party’s

motion for summary judgment is not proper evidence to be considered when reviewing a separate

and independent motion for summary judgment.” Cuidado Casero Home Health of El Paso, Inc.

v. Ayuda Home Health Care Servs., LLC, 404 S.W.3d 737, 745 (Tex. App.—El Paso 2013, no

pet.).



                                               - 23 -
                                                                                  04-17-00609-CV


       Techserv in its no-evidence motion for summary judgment challenged one or more

essential elements of each claim brought by Arredondo. Because Arredondo failed to include in

the appellate record her response to Techserv’s no-evidence motion for summary judgment and

her supplemental response was inadequate to preclude summary judgment on any of her claims,

we must conclude the omitted response supports the trial court’s judgment.

                                         CONCLUSION

       For the foregoing reasons, we affirm the trial court’s order granting summary judgment as

to Arredondo’s negligence per se claim and gross negligence claim against T&D, reverse the trial

court’s order granting summary judgment as to Arredondo’s negligence claim against T&D, and

remand that claim for further proceedings. As to AEP, we reverse the trial court’s order granting

AEP’s motions for traditional and no-evidence summary judgment and remand Arredondo’s

negligence, negligence per se, and gross negligence claims against AEP for further proceedings.

As to Techserv, we affirm the trial court’s order granting Techserv’s traditional and no-evidence

motions for summary judgment.

                                                 Irene Rios, Justice




                                              - 24 -
