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Chavez v. City of San Antonio3/22/2000
Opinion by:Paul W. Green, Justice
AFFIRMED
This is a personal injury case. The appellants sued the appellee, City Public Service Board of San Antonio (CPS), for damages Juan Pablo Chavez (Chavez) sustained when a tree limb he was trimming fell on a high voltage overhead power line. The trial court granted CPS's motion for summary judgment based on the indemnity provision in Tex. Health & Safety Code Ann. §752.008 (Vernon 1992). Specifically, the trial court found the statute required Chavez to indemnify CPS for any damages arising out of his own conduct, and therefore, he was precluded from recovery. We affirm the summary judgment.
Facts
Chavez volunteered to trim a tree, free of charge, for the mother of his friend, Mario Figueroa. Chavez was electrocuted and fell to the ground from a considerable height when the limb he cut fell onto a live high voltage overhead line. Prior to the work, Figueroa and his mother had called CPS several times; however, it is not clear whether they called to have the power cut off or to have CPS trim the tree. Chavez testified he did not know a limb would conduct electricity if it came into contact with the power line. Chavez rigged up a chain to prevent the limb from falling on the house but took no precautions to keep the limb from falling on the power line. Chavez believed CPS had been notified that work would be done sometime, but not specifically on the day he was there. The record is not clear whether Chavez ever told Mario Figueroa or Mrs. Figueroa what day he planned to do the trimming. Chavez brought his own tools and another friend to help him with the work.
Summary Judgment
We review a summary judgment de novo. To prevail on summary judgment, the movant must show there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law. See Tex. R. Civ. P. 166a(c); Nixon v. Mr. Property Management, Co., 690 S.W.2d 546, 548-49 (Tex. 1985). In deciding whether a disputed fact issue precludes summary judgment, we take evidence favorable to the non-movant as true. See Nixon, 690 S.W.2d at 548-49. We indulge every reasonable inference in favor of the non-movant and resolve any doubts in the non-movant's favor. See Montgomery v. Kennedy, 669 S.W.2d 309, 310-11 (Tex. 1984).
When a defendant moves for summary judgment, it must negate at least one element of the plaintiff's cause of action or conclusively establish an affirmative defense. See Science Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex. 1997). When a defendant moves for summary judgment on an affirmative defense, the defendant must conclusively prove each element of the defense as a matter of law. See City of Lancaster v. Chambers, 883 S.W.2d 650, 653 (Tex. 1994); Montgomery v. Kennedy, 669 S.W.2d 309, 310-11 (Tex. 1984). Once the movant establishes its right to summary judgment, the burden shifts to the non-movant to present issues that preclude summary judgment. See City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979); Garcia v. John Hancock Variable Life Ins. Co., 859 S.W.2d 427, 430 (Tex.App.-San Antonio 1993, writ denied). Texas Health & Safety Code Ann. § 752.001, et seq.
Section 752.003 of the Texas Health and Safety Code provides that a party "responsible" for temporary work being performed near a high voltage overhead line must notify the operator of the line at least 48 hours before the work begins and make arrangements with the operator of the power line for its temporary de-energization. See Tex Health & Safety Code Ann. § 752.003(a),(b) (Vernon 1992). Unless the party responsible for the work provides for the power to be cut off as pr
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