                                NO. 07-10-0498-CV

                           IN THE COURT OF APPEALS

                    FOR THE SEVENTH DISTRICT OF TEXAS

                                  AT AMARILLO

                                     PANEL C

                                   APRIL 9, 2012

                        ______________________________


                     JAMES BRETT CUMMINGS, APPELLANT

                                        V.

                       CONNER MACHINE, INC., APPELLEE

                      _________________________________

            FROM THE 108TH DISTRICT COURT OF POTTER COUNTY;

          NO. 99128-E; HONORABLE DOUGLAS R. WOODBURN, JUDGE

                       _______________________________

Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.


                             MEMORANDUM OPINION


      Appellant, James Brett Cummings, appeals from entry of summary judgment in

favor of Appellee, Conner Machine, Inc., in a personal injury action seeking damages

for injuries sustained by Cummings while he was repairing an electrical fuse holder.

Cummings asserts the trial court erred in granting summary judgment in Conner

Machine’s favor because (1) Conner Machine failed to disprove that its negligence

proximately caused Cummings’s injuries and (2) Cummings raised a genuine issue of
material fact whether Conner Machine’s negligence proximately caused Cummings’s

injuries. We affirm.


                                      Background


       On November 9, 2006, the boom of a crane operated by Conner Machine struck

an overhead electric power transmission line near a Continental Carbon plant located in

Sunray, Texas. The crane operator was traveling down a country road with his boom

extended too high when he struck the plant’s transmission line causing an electrical

power outage at the plant. In addition to causing a short in the center phase electric

line, the accident also damaged a fuse holder located inside the plant seventy-five yards

away. Power was restored to the plant in approximately thirty to forty-five minutes.


       At the time of the accident, Cummings was employed by Continental Carbon in

the capacity of plant electrician and was directed to repair the plant’s electrical system.

Approximately an hour after the crane struck the electrical transmission line, Cummings

was injured by an electric shock while repairing the fuse holder. After Cummings was

injured, Continental Carbon concluded that his accident occurred after he came into

contact with energized power lines in the plant while attempting to repair the fuse

holder.


       In October 2008, Cummings filed his Petition for Intervention in an action brought

by Zurich American Insurance Company, as his subrogee, against a number of

defendants including Conner Machine. In his Petition, he alleged, among other things,

that his injuries were caused by the negligence of Conner Machine. In May 2010,

Conner Machine filed its motion for summary judgment contending that any negligent

                                            2
act or omission allegedly committed by Conner Machine in knocking down the power

line to the plant did not proximately cause Cummings’s injuries. On October 4, 2010,

the trial court entered its Order Granting Defendant Conner Machine Inc.’s Motion for

Summary Judgment and this appeal followed.


                                       Discussion


       Cummings contends the trial court erred in granting summary judgment in

Conner Machine’s favor on the issue of causation because the evidence shows that

Conner Machine negligently struck the plant’s power line causing the plant to lose

power, thereby damaging the fuse holder inside the plant.                 Cummings was

subsequently dispatched by his employer to repair the damaged fuse holder. While

repairing the fuse holder, he suffered injuries due to an electric shock. At the very least,

he asserts this evidence creates a genuine issue of material fact whether Conner

Machine’s negligent act of striking the plant’s power line caused his injuries.         We

disagree.


       Standard of Review


       A party may prevail on a traditional summary judgment motion by conclusively

establishing the absence of any genuine issue of a material fact and that the party is

entitled to a judgment as a matter of law. Tex. R. Civ. P. 166a(c). We review the trial

court’s summary judgment de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d

656, 661 (Tex. 2005); Provident Life and Accident Ins. Co. v. Knott, 128 S.W.3d 211,

215 (Tex. 2003). A defendant is entitled to summary judgment if it negates at least one

essential element of the plaintiff’s cause of action as a matter of law. Randall's Food

                                             3
Mkts, Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex. 1995); Doe v. Boys Clubs of Greater

Dallas, Inc., 907 S.W.2d 472, 476-77 (Tex. 1995); Lear Siegler, Inc. v. Perez, 819

S.W.2d 470, 471 (Tex. 1991). Once the movant has established a right to summary

judgment, the non-movant has the burden to respond to the motion for summary

judgment and present to the trial court any issues that would preclude summary

judgment. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex.

1979).


         In reviewing a trial court’s summary judgment, we resolve all doubts against the

movant, and view the evidence in the light most favorable to the non-movant. Shah v.

Moss, 67 S.W.3d 836, 842 (Tex. 2001); Doe, 907 S.W.2d at 477. If a trial court’s order

granting summary judgment does not specify the basis for the trial court’s ruling, as

here, the summary judgment will be affirmed if any of the theories advanced by the

movant are meritorious. Joe v. Two Thirty Nine JV, 145 S.W.3d 150, 157 (Tex. 2004).


         Negligence


         The elements of a negligence cause of action are the existence of a legal duty, a

breach of that duty, and damages proximately caused by the breach.           IHS Cedars

Treatment Ctr. v. Mason, 143 S.W.3d 794, 798 (Tex. 2004). The two elements of

proximate cause are cause-in-fact or “substantial factor” and foreseeability. Id. (citing

D. Houston, Inc. v. Love, 92 S.W.3d 450, 454 (Tex. 2002)). Both elements of proximate

cause are required. Grider v. O’Brien, 260 S.W.3d 49, 57 (Tex.App.—Houston [1st Dist.]

2008, no pet.).




                                             4
      Foreseeability requires that “the injury be of such a general character as might

reasonably have been anticipated; and, that the injured party should be so situated with

relation to the wrongful act that injury to him or to one similarly situated might

reasonably have been foreseen.” Scurlock Oil Co. v. Birchfield, 630 S.W.2d 674, 677

(Tex.App.—Houston [14th Dist.] 1981, no writ) (citing Texas Cities Gas Co. v. Dickens,

140 Tex. 433, 168 S.W.2d 208 (Tex. 1943)). Further, even if an injury would not have

occurred “but for” the defendant’s conduct, some events caused by the defendant’s

conduct are too far attenuated from the plaintiff’s harm to constitute a legal cause. Wal-

Mart Stores, Inc. v. Cooper, 997 S.W.2d 823, 825 (Tex.App.—Eastland 1999, pet.

denied) (citing Siegler, 819 S.W.2d at 472.


      Regarding causation, the Birchfield court stated the following:

      If the appellant’s employee could reasonably have foreseen the natural
      and probable consequences of his negligent act, his employer would be
      responsible for any injury proximately caused thereby, even though he
      could not anticipate just how the injury would arise from his misconduct.
      Sullivan v. Flores, 134 Tex. 55, 132 S.W.2d 110 (1939). However, the
      appellant would not be held responsible for an injury resulting from a
      negligent act if the act was so early and remote that it did nothing more
      than give rise to the occasion by which the injury was made possible and if
      the injury resulted from some other cause which reasonably would not
      have been anticipated. Bell v. Fore, 419 S.W.2d 686 (Tex.Civ.App.—
      Texarkana 1967), aff’d, 434 S.W.2d 117 (Tex. 1968).

Birchfield, 630 S.W.2d at 677.


      In Birchfield, the evidence established that the defendant had negligently caused

an oil spill on a public road, and the plaintiff, a public employee, wrenched his back

while shoveling sand on the oil spill. Birchfield, 630 S.W.2d at 677. The Birchfield court

noted that, while the defendant could have reasonably foreseen that other drivers upon



                                              5
the roadway, who had no knowledge of the oil spill, might receive injuries, “it cannot be

said that [the defendant], as a person of ordinary intelligence and prudence, should

have anticipated that [the plaintiff] would sustain an injury by wrenching his back while

performing the very job he was employed to do, i.e., the placement of sand on the oil

spill.” Id. The Birchfield court held that “[t]he evidence in the case at bar establishes, as

a matter of law, the absence of foreseeability, one of the two elements necessary to

constitute proximate cause.” 630 S.W.2d at 677.


         We find Birchfield instructive. It was relevant in Birchfield that the forces involved

in or generated by the oil spill had come to rest, and no one was in any real or apparent

danger from them. Oncoming traffic was flagged down and diverted to the portion of the

highway that was free from the oil spill when plaintiff’s injury was suffered during the

routine clean-up of the spill. 630 S.W.2d at 676. Similarly, here, approximately an hour

after the transmission line was struck, electric power to the plant had been restored and

no one was in any real or apparent danger from the power outage or the damaged fuse

holder. And, Cummings was subsequently injured in the course of repairing the fuse

holder, i.e., performing the very job he was employed to do, he suffered an electric

shock.     The question is whether Conner Machine’s employees, as persons of ordinary

intelligence and prudence, should have anticipated that their negligent act would create

a danger to others, i.e., to the plant electrician tasked with repairing the fuse holder.

Birchfield, 630 S.W.2d at 677.         As did the Birchfield court, we find that Conner

Machine’s act of striking the transmission line had run its course prior to Cummings’s




                                               6
injuries and his injuries were not foreseeable to Conner Machine because he was

injured while he was doing his job, i.e, repairing the plant’s electrical system.1 Id.


       Union Pump Co. v. Albritton, 898 S.W.2d 773 (Tex. 1995) is also instructive. In

Union Pump, a pump caught fire at a Texaco facility. 898 S.W.2d at 774. Sue Albritton,

a Texaco employee, assisted in extinguishing the fire. Id. Two hours after the fire had

started, Albritton and a fellow employee went to block a nitrogen purge valve at the

request of their employer. Id. Upon reaching the valve, they were informed that it was

no longer necessary to block the valve. Id. As the two of them returned from the purge

valve, they walked across a pipe rack which was still wet from the efforts to extinguish

the fire, and Albritton was injured in a fall. Id. She alleged that Union Pump caused her

injuries by manufacturing a defective pump which caused the fire, which in turn led to

the pipe rack being wet and slippery, which ultimately caused her injuries. Id. at 775.

The Union Pump court determined causation did not exist between the pump fire and

Albritton’s injuries because the pump, by causing a fire, did no more than create the

condition which made the plaintiff’s injuries possible. Id. at 776.               See IHS Cedars

Treatment Ctr., 143 S.W.3d at 800 (“Our precedents establish that merely creating a

condition that makes harm possible falls short as a matter of law of satisfying the

substantial factor test.”)       Similarly, here, the evidence establishes that Conner

Machine’s conduct merely created the condition that made Cummings’s injuries

possible. There is no evidence of record that the damaged fuse holder, itself, created a

1
 Because we have found an absence of evidence that Conner Machine’s negligent act continued until
Cummings was injured, Cummings has also failed to create a genuine issue of material fact whether
Conner Machine’s negligence was a concurrent cause of his injuries. See Noblin v. EE Ranches, Inc.,
296 S.W.3d 773, 777 (Tex.App.—El Paso 2009, no pet.). “An intervening cause, even if unforeseeable,
may be a concurring cause if the chain of causation flowing from the defendant’s original negligence is
continuous and unbroken.” Id. (citing Teer v. J. Weingarten, Inc., 426 S.W.2d 610, 614 (Tex.Civ.App.—
           th
Houston [14 Dist.] 1968, writ ref’d n.r.e.)).

                                                  7
dangerous condition for anyone. Instead, the evidence establishes that Cummings was

injured after he undertook to perform a repair in the normal course of his responsibilities

as the plant’s electrician. Thus, Cummings has failed to come forward with evidence

establishing Connor Machine’s conduct was a substantial factor in causing his

subsequent injuries or that his injuries were foreseeable.


       Cummings’s reliance on Henry v. Houston Lighting & Power Co., 934 S.W.2d

748 (Tex.App.—Houston [1st Dist.] 1996, writ denied) and J. Wigglesworth Co. v.

Peeples, 985 S.W.2d 659 (Tex.App.—Fort Worth 1999, pet. denied) is misplaced. In

both cases, the defendants’ negligent acts were ongoing when the plaintiffs were

injured.   See 934 S.W.2d at 752; 985 S.W.2d at 664.            In Henry, the defendant

negligently drilled a hole for a utility pole and severed an underground gas line. 934

S.W.2d at 749. Plaintiff was dispatched by his employer to repair the gas leak. Id.

When a fellow employee shouted “fire” and the plaintiff was injured trying to escape

from the hole in which he was working, the dangerous gas leak had yet to be repaired

and the dangerous condition of the severed gas line abated. Id. at 752. In Peeples, the

defendant negligently caused his oversized load to block traffic on a road that was too

narrow to permit his truck to pass.     985 S.W.2d at 663.      Although some cars and

eighteen-wheel trucks were able to stop behind the defendant, while the road was still

blocked, one eighteen-wheeler was unable to stop in time and struck the plaintiff’s truck

from behind. Id. In our case, Conner Machine’s negligent act was not ongoing when

Cummings was injured. Rather, Cummings was injured an hour after Conner Machine’s

alleged negligent act and following restoration of the power to the plant. Moreover,

there is no evidence of record that there was any apparent danger from the power


                                            8
outage or the damaged fuse holder prior to Cummings initiating repair of the fuse

holder.


       Merely showing that Cummings’s injuries would not have occurred but for Conner

Machine’s conduct is not sufficient to create an issue of material fact. There must be

some evidence that Conner Machine’s alleged negligence was a substantial factor in

bringing about Cummings’s claimed harm and that his injuries were foreseeable. See

IHS Cedars Treatment Ctr., 143 S.W.3d at 799 (“Cause-in-fact is not established where

the defendant’s negligence does no more than furnish a condition which makes the

injuries possible.”) Doe, 907 S.W.2d at 477 (explaining that defendant’s conduct may

be too attenuated to constitute legal cause of alleged injury “even if the injury would not

have happened but for the defendant’s conduct”). Evidence that shows only that the

defendant’s negligence did no more than furnish a condition that made the alleged

injuries possible will not suffice as a matter of law to establish the cause-in-fact

(substantial factor) or foreseeability components of proximate cause. See IHS Cedar

Treatment Ctr., 143 S.W.3d at 799; Doe, 907 S.W.2d at 477; Union Pump, 898 S.W.2d

at 776; Lear Siegler, 819 S.W.2d at 472. Because we conclude that Conner Machine

proved as a matter of law that its conduct was not the cause-in-fact of Cummings’s

injuries, we hold that summary judgment on Cummings’s negligence claim was proper

for want of evidence on the element of actual causation. Doe, 907 S.W.2d at 477 (citing

Prudential Ins. Co. v. Jefferson Assocs., Ltd., 896 S.W.2d 156, 164 (Tex. 1995)).




                                            9
                                Conclusion


The trial court’s judgment is affirmed.



                                           Patrick A. Pirtle
                                               Justice




                                      10
