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[WITHDRAWN]





IN THE
TENTH COURT OF APPEALS
 

No. 10-95-066-CV

     JACKIE BYRUM TIMMONS, INDIVIDUALLY
     AND AS REPRESENTATIVE OF THE ESTATE 
     OF BILLY EDWIN BYRUM, DECEASED,
                                                                                              Appellant
     v.

     TEXAS UTILITIES ELECTRIC COMPANY,
                                                                                              Appellee
 

From the 66th District Court
Hill County, Texas
Trial Court # 32955
                                                                                                    

O P I N I O N
                                                                                                    

      Jackie Byrum Timmons appeals from a summary judgment in favor of Texas Utilities Electric
Company (TU) in the wrongful death and survivor suit she instituted following the electrocution
and death of her fourteen-year-old son, Billy Byrum.
  TU moved for a summary judgment on the
grounds that it did not owe Billy a duty, or if it did, then it did not breach that duty.  It also argued
that Billy's negligence was the sole cause of his death.  Timmons asserts that fact questions exist
which preclude summary judgment.  In reviewing the propriety of the judgment, we will apply
the well-established summary-judgment rules.
  Because we agree with Timmons, we will reverse
and remand.
FACTS AND BACKGROUND CONTENTIONS
      On July 8, 1992, at approximately 1:15 a.m., fourteen-year-old Billy Byrum was fatally
injured as he climbed a TU electrical tower in Hillsboro.  At the time he climbed around and over
a barbed-wire barricade
 and proceeded up the tower, he was legally intoxicated.  
      Timmons concedes that Billy did not have express permission to be on the property.
Therefore, he would generally be considered a trespasser, and TU would only owe a duty not to
injure him willfully, wantonly, or through gross negligence.  Burton Construction & Shipbuilding
Co. v. Broussard, 154 Tex. 50, 273 S.W.2d 598, 603 (1954).  Timmons did not plead that TU
acted wilfully, wantonly, or with gross negligence.  
      However, she did plead facts raising the doctrine of attractive nuisance and alleged a number
of acts of negligence which she contends proximately caused Billy's death.
  When a land owner
or occupier maintains an attractive nuisance on his property, there is an implied invitation for
children to come on the premises, and a special duty to exercise reasonable care arises.  Banker
v. McLaughlin, 146 Tex. 434, 208 S.W.2d 843, 848 (1948).  Therefore, if the attractive-nuisance
doctrine is applicable, TU would be liable for any negligent acts or omissions that proximately
caused Billy's death.
      TU moved for a summary judgment on the grounds that it conclusively negated the
applicability of the attractive-nuisance doctrine.  It also asserted that, even if the attractive-nuisance doctrine is applicable, then it has conclusively negated two elements of Timmons' cause
of action:  breach of duty and causation.  The court granted TU's motion without specifying the
ground or grounds for judgment in its order; therefore, if either of the foregoing elements are
conclusively negated in the summary-judgment evidence, we must affirm the judgment.  Rogers
v. Ricane Enterprises, Inc., 772 S.W.2d 76, 79 (Tex. 1989). 
ATTRACTIVE NUISANCE
      In Timmons' first point of error, she claims that TU did not conclusively negate the
applicability of the attractive-nuisance doctrine.  There are four elements to the attractive-nuisance
doctrine in Texas:

      (a)  the place where the condition is maintained is one upon which the possessor knows, or
should know, that young children are likely to trespass; 
      (b)  the condition is one of which the possessor knows, or should know, and which he
realized or should realize as involving unreasonable risk of death or serious bodily harm
to such children;  
      (c)  the children, because of their youth, do not discover the condition or realize the risk
involved in intermeddling in it or in coming within the area made dangerous by it; and 
      (d)  the utility to the possessor of maintaining the condition is slight as compared to the risk
to young children involved therein.  
Restatement of Torts § 339 (1934); Massie v. Copeland, 149 Tex. 319, 233 S.W.2d 449, 451
(1950).
TU's Knowledge of Children Trespassing
      Citing a comment to section 339(a) of the Restatement (Second) of Torts, TU asserted that,
unless and until it received notice that children had been climbing on the tower above the
barricade, or received other information that would indicate that children were climbing above the
barricade, it had no independent duty to perform inspections of the tower or barricade to determine
such fact.  See Restatement (Second) of Torts § 339 cmt. a (1966).  TU attached summary-judgment evidence establishing that it had not received any reports of unauthorized persons
climbing above the barbed wire on this tower or any other tower in a Hillsboro residential area. 
TU's summary-judgment evidence also contained statements that it had no reason to know that
children were likely to climb above the barbed-wire barricade on the tower.  
      However, in an attractive-nuisance case, a duty to act reasonably—i.e., to conduct inspections
if they would be reasonable—would stem from TU's actual or constructive knowledge that children
are likely to go there.  Restatement of Torts § 339.  "If one by exercise of reasonable care
would have known a fact, he is deemed to have had constructive knowledge of such fact." 
Black's Law Dictionary, 314 (6th ed. 1990).  Moreover, although TU argues that it had no
knowledge of children climbing above the barricade on the tower, the inquiry should be whether
or not TU knew or should have known that children were likely to trespass at all.  Restatement
of Torts § 339.      
      Timmons attached a photograph of the tower to her affidavit.  She stated in her affidavit, and
the photograph depicts, that the tower is located on a residential lot in close proximity to the home
on the lot.  She contended below that children have a natural proclivity to climb and the fact that
a "makeshift" barricade was constructed in the first place demonstrates TU anticipated that
children may attempt to climb the tower.  She presented other summary-judgment evidence that
children "hung around" and played on the tower and frequently climbed over the barricade.  In
fact, TU's summary-judgment evidence established that the barricade was added to the tower in
1981 or 1982 "to prevent unauthorized persons from climbing within close proximity to the
electric wires connected to [the] utility towers."       TU's articulated reason for adding the
barricade was to prevent people from climbing too high on the tower.  The tower was in a
neighborhood with many children.  Electricity towers, situated where young children are likely
to be, have been the subject of a number of attractive-nuisance cases in Texas.  See McCoy v.
Texas Power & Light Co., 239 S.W. 1105, 1110 (Tex. Comm'n. App. 1922, judgm't adopted);
Johns v. Fort Worth Power & Light Co., 30 S.W.2d 549, 557 (Tex. Civ. App.—Fort Worth 1930,
writ ref'd).  The summary-judgment evidence raises a fact question about whether TU knew, or
should have known, that children would be likely to trespass. 
Child's Youth Prevented Him from Realizing Risk
      TU argues that Billy was too old for the attractive-nuisance doctrine to apply and that he was
aware of the risks associated with climbing the tower.  Generally, the protection of the attractive-nuisance doctrine does not apply to a normal boy fourteen years of age.  Massie, 233 S.W.2d at
453.  However, there may be exceptions depending upon the character of the danger to be
appreciated and the age or maturity of the child.  Id.  In Massie, the Supreme Court held that the
attractive-nuisance doctrine did not apply to protect a normal fourteen-year-old boy from the risks
of swimming in a muddy pond, noting that "the dangers of swimming in the pond or pit of water
. . . were open and patent to a normal, healthy and robust boy of fourteen years of age, and that
in the very nature of things he was capable of understanding and appreciating the dangers."  Id.
at 452.  
      Timmons alleged that Billy was electrocuted when the electricity arced from the wires, not
from direct contact with the wires.  Adam Irwinsky, one of the Hillsboro police officers who
investigated the incident, completed and filed an Incident Report.  The report indicated that Billy's
burns were not caused by direct contact but rather from "flash burns from the sparks when
electricity arced because of no entrance or exit wounds caused from a direct current."  The Massie
court recognized that electrical arcing presented an exceptional case with a highly deceptive
instrumentality—as opposed to the issue in that case:  the risk involved in swimming a muddy
pond.  Id. at 454.  "The public knows that it is dangerous to touch a live wire, but very few know
that there exists danger of death from this powerful current by near approach to the wire so
charged, without actually coming in contact with the wire."  McCoy, 239 S.W. at 1110.  
      The summary-judgment evidence indicates that Billy had been warned not to climb the tower. 
If Billy had been injured by falling from the tower, or by coming into direct contact with the
power lines, then perhaps one might argue that he would not be able to rely upon the attractive-nuisance doctrine, as those would be risks he should appreciate.
  However, there is evidence
Billy's death was caused by electrical arcing, and there is no evidence that he knew of or was
warned about the dangers of arcing.  The "danger" sign attached to the tower by TU made no
mention of arcing.  Billy's failure to appreciate the risk of arcing involved in climbing the tower
is precisely the reason for the development of the attractive-nuisance doctrine—to protect young
children from dangers they cannot appreciate.  Restatement of Torts § 339(c).       
      Moreover, the question of whether a child is of such tender years and immaturity that the
court should extend the protection of the attractive-nuisance doctrine in a particular case has been
held to be a question of law for the court.  Massie, 233 S.W.2d at 454); Kopplin v. City of
Garland, 869 S.W.2d 433, 438 (Tex. App.—Dallas 1993, writ denied); Jannette v. Deprez, 701
S.W.2d 56, 60 (Tex. App.—Dallas 1985, writ ref'd n.r.e.).  Therefore, whether the attractive-nuisance doctrine applies to protect a fourteen-year-old boy from the dangers of electrical arcing
has already been decided in the affirmative as a matter of law.  Id.; McCoy, 239 S.W. at 1110;
Johns, 30 S.W.2d at 557.  TU provided no evidence that the common knowledge of a normal
fourteen-year-old boy, with respect to electrical arcing, has changed since 1950 so as to justify
deviation from prior holdings on this issue.  Following the decisions in Massie, McCoy, and
Johns, we hold as a matter of law that the concept of electrical arcing is not within the common
knowledge of a normal fourteen-year-old boy.  Id.
      The summary-judgment evidence raised a fact question regarding electrical arcing as the
instrumentality of Billy's electrocution; Texas courts have long recognized, as a matter of law, that
a fourteen-year-old boy does not possess knowledge of the arcing propensities of electricity.  Id. 
Therefore, TU has not conclusively negated the third element of the attractive-nuisance doctrine. 
Point one is sustained.  
NEGLIGENCE
      Because TU failed to conclusively negate the applicability of the attractive-nuisance doctrine,
for its summary judgment to stand, it must have conclusively negated one of the two "negligence"
elements upon which it had moved for a summary judgment:  (1) that TU did not breach its duty
to Billy, or (2) that Billy's negligence was the sole cause of his death.  Wornick Co. v. Casas, 856
S.W.2d 732, 733 (Tex. 1993).
Breach of Duty 
      First, TU asserts that Timmons "failed to present any competent summary judgment evidence
to show that there was a material fact issue on whether [TU] breached this alleged duty."  This
contention improperly shifts the burden of proof in a summary-judgment case to the non-movant
and is not the correct standard for granting a summary judgment.  City of Houston v. Clear Creek
Basin Authority, 589 S.W.2d 671, 678 (Tex. 1979).
      Second, TU claims that the preventative steps it took were reasonable to warn and make safe
any dangers associated with the tower.  The degree of care required, or steps that would be
reasonable, depends upon the danger involved.  West Texas Utilities Co. v. Renner, 53 S.W.2d
451, 453-54 (Tex. Comm'n. App. 1932, holding approved).  Assuming an electrical tower is
found to be an attractive nuisance, a company maintaining highly dangerous electrical wires is
under a duty to use the care and prudence reasonably necessary to protect the children who are
likely to trespass.  Id. at 454; Restatement of Torts § 339.  TU's summary-judgment evidence
demonstrates the following:
      (1)  A sign was posted on the tower which read:  "Keep away DANGER Wires Heavily
Electrified Private Property";
      (2)  The barricade previously discussed was in place;
      (3)  TU had not received any reports of children trespassing; and
      (4)  One person testified that Billy was going to climb up that tower and nothing TU could
have done would have stopped him.
The determination of negligence is typically a fact question for the jury.  Ray v. Farmers State
Bank of Hart, 576 S.W.2d 607, 609 (Tex. 1979).  The question only becomes one of law when
reasonable minds can draw but one conclusion.  See id.  Because reasonable minds could differ
as to whether TU was negligent or whether it exercised reasonable care to protect children from
the dangers of electrical arcing in light of the risk involved, a fact question remains and summary
judgment is improper.  Kassen v. Hatley, 887 S.W.2d 4, 9 (Tex. 1994); Ray, 576 S.W.2d at 609. 
Point two is sustained.
Causation
      Finally, Timmons argues that TU did not conclusively negate causation in Billy's death by
establishing that his negligence was the sole cause of his death.  As previously discussed,
Timmons raised questions of fact regarding TU's negligence.  Causation is a fact question, and
reasonable minds could differ as to the cause or causes of Billy's death.  El Chico Corp. v. Poole,
732 S.W.2d 306, 314 (Tex. 1987).  Point three is sustained.
      The summary judgment is reversed, and the cause is remanded for a trial.



                                                                                 BOB L. THOMAS
                                                                                 Chief Justice

Before Chief Justice Thomas,
          Justice Cummings, and
          Justice Vance
Reversed and remanded
Opinion delivered and filed January 10, 1996
Publish
[Withdrawn by order 1-31-96]













