Rivera, Mary Ann, Individually and as Administratix of and for the Estate of Eva Gaytan v. Central Power and Light Company ( 2000 )

NUMBER 13-98-519-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI

____________________________________________________________________

MARY ANN RIVERA,

ET AL. Appellants,

v.

CENTRAL POWER AND LIGHT

COMPANY, ET AL. Appellees.

____________________________________________________________________

On appeal from the 377th District Court of Victoria County, Texas.

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O P I N I O N

Before Chief Justice Seerden and Justices Hinojosa and Yañez

Opinion by Justice Yañez

Mary Ann Rivera appeals a judgment rendered in favor of Central Power and Light Company ("CP&L"). We affirm.

This case arises from the death of Eva Gaytan, which occurred while she was receiving dialysis treatment at the Victoria Dialysis Center ("the Center"), in Victoria, Texas. On October 26, 1995, as Gaytan was being treated, a waste disposal truck traveling down the alley behind the Center caught a utility line leading from a utility pole to the Center. The utility line connected to the Center via a riser, which is a mast attached to the building, to which overhead wiring is connected. The riser pulled loose from the Center and fell, pulling down all of the wiring connected to the Center. The wiring which was pulled down in the accident included the sole electrical line to the Center. The Center lacked a secondary source of electricity, so the power outage left the room with the dialysis equipment in darkness, and rendered the equipment inoperative. The staff of the Center attempted to continue Gaytan's treatment by manually operating the dialysis equipment, however, in the course of their attempt, air was pumped into Gaytan's bloodstream, ultimately causing a fatal heart attack. Gaytan's daughter, Mary Ann Rivera, brought suit against several defendants, including CP&L. Rivera alleged that CP&L was negligent and sought recovery for wrongful death. Rivera also alleged that CP&L had committed the tort of intentional infliction of emotional distress upon Gaytan. CP&L filed a motion for summary judgment and, following a hearing, the trial court granted CP&L's motion. By five points of error, Rivera challenges the trial court's granting of summary judgment in CP&L's favor.

Rivera argues in her first three points of error that the trial court erred in: (1) not finding CP&L had a duty upon inspecting its power line to eliminate a dangerous condition; (2) not finding that CP&L breached a duty, and that such breach was the proximate cause of Gaytan's death; and (3) not finding that Rivera provided sufficient evidence of all of the elements of negligence to defeat a summary judgment motion.

To find a party liable for negligence, it must be shown that the party had a duty, breached that duty, the breach was the proximate cause of the plaintiff's injuries, and damages resulted from that breach. Bird v. W.C.W. 868 S.W.2d 767, 769 (Tex. 1994). Rivera failed to demonstrate that CP&L breached a duty which caused Gaytan's demise. The parties agree that CP&L inspected the power line leading to the Center only a few weeks prior to the accident. Several lines ran from the utility pole to the riser. Although there is some dispute over the exact height of CP&L's line, the evidence presented at the hearing demonstrated that the lowest line into the Center was a telephone line, which belonged to Southwestern Bell Telephone ("SWB"), not CP&L. No evidence was ever produced that the disposal truck actually struck CP&L's line, but rather that one of the lower lines was snagged, and this resulted in the riser being pulled down, taking with it CP&L's line. At the time of its inspection, CP&L notified the Center that the power line was at a safe height, but that the telephone line was possibly too low. The CP&L inspector suggested that the Center contact SWB about the telephone line. Rivera argues that CP&L had a duty to notify SWB that the telephone line might be too low. However, Rivera fails to explain how CP&L incurred a duty, upon inspecting its own lines, to contact other utilities about other lines. Even if CP&L had some duty to make others aware of the potential for problems with another utility's line, CP&L would have discharged that duty when it notified the personnel at the Center that the SWB line was the lowest line, and suggested that the Center contact SWB.

CP&L made certain that their line was high enough to be safe. CP&L introduced affidavits from the CP&L employee who inspected the line prior to the accident. He stated that the line was connected at a safe height, and further noted that it was attached to the highest point on the Center's riser. The inspection preceded the accident by approximately three weeks. During that time, the alley was traversed several times by the same waste disposal truck which ultimately pulled down the wiring. CP&L introduced a photograph as summary judgment evidence which showed that the CP&L line was, in fact, attached at the highest possible point. CP&L also introduced an affidavit from a CP&L employee who responded to the accident. He stated that the CP&L line was still attached to the Center's riser, which had been pulled down and was lying on the ground. Rivera produced no evidence to counter CP&L's evidence that its line was the highest one over the alley, and was a safe height.

Even if there was evidence to suggest that the CP&L line was too low, it is undisputed that it was the highest one attached to the Center's riser. The Center had the duty to provide a riser that would keep the CP&L line high enough to meet any applicable safety regulations, as is stated in CP&L's tariff. A tariff is a document which lists the services provided by a utility and governs the relationship of the utility and its customers. Henderson v. Central Power & Light Co., 977 S.W.2d 439, 447 (Tex. App.--Corpus Christi 1998, pet. denied); Southwestern Bell Tel. Co. v. Metro-Link Telecom, Inc., 919 S.W.2d 687, 691 (Tex. App.--Houston [14th Dist.] 1996, writ denied). Unless found to be unreasonable, a filed tariff has the force and effect of law. Id. The tariff in this case clearly states that:

If Customer is served by an overhead distribution system, he will provide a suitable point of connection adequate to properly support [CP&L's] service conductors and high enough above ground for [CP&L] to maintain ground clearance for its service conductors in accordance with local codes and the National Electric Safety Code requirements.

The Center carried the duty of providing a mast which would lift the electric line high enough to avoid being snagged.⁽¹⁾ Rivera never argued that the tariff was unreasonable.

CP&L inspected their line, ascertained that it was attached at the highest point available, and notified the Center that if there was any potential for an accident, it was with the telephone line, not the CP&L line. Rivera has failed to show that CP&L breached any duty in this incident. Points of error one, two, and three are overruled.

Rivera contends in her fourth point of error that fact questions exist which preclude summary judgment. The question of whether a legal duty exists under a set of facts is a question of law. Bird, 868 S.W.2d at 769. Taken as true, Rivera's allegations fail to demonstrate any duty owed by CP&L which was breached in this incident. Rivera, as a matter of law, has failed to meet the first element of a claim of negligence, thus there are no fact questions which would preclude summary judgment for CP&L. Point of error number four is overruled.

Rivera's fifth point of error is that the trial court erred in granting summary judgment on her claim of intentional infliction of emotional distress. The elements of the tort of intentional infliction of emotional distress are: 1) the defendant acted intentionally or recklessly; 2) the conduct was extreme and outrageous; 3) the actions of the defendant caused the plaintiff emotional distress; and 4) the emotional distress suffered by the plaintiff was severe. Twyman v. Twyman, 855 S.W.2d 619, 621 (Tex. 1993). We do not find that CP&L engaged in any extreme or outrageous conduct in the instant case. CP&L inspected its lines, determined they were safe, and reported to the Center that it needed to contact the entity responsible for the lowest line leading into the Center. CP&L's conduct was reasonable, and does not support a claim of intentional infliction of emotional distress. Point of error number five is overruled.

The judgment of the trial court is AFFIRMED.

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LINDA REYNA YAÑEZ

Justice

Do not publish. Tex. R. App. P. 47.3.

Opinion delivered and filed this

the 10th day of August, 2000.

1. Rivera introduced evidence that regulations in effect in the city of Victoria, Texas, required the power lines to be at least eighteen feet above the ground. The disposal truck which snagged the line and pulled the riser down was shown to be less than fourteen feet high at its highest point.