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Chavez v. City of San Antonio3/22/2000
escribed in § 752.003, the party, individually or acting through an agent or employee, may not perform any function or activity, if at any time it is possible the party may:
(2) bring any part of a tool, equipment, machine, or material within six feet of a high voltage overhead line while performing the function or activity.
Tex. Health & Safety Code Ann. § 752.004(a)(2) (Vernon 1992).
If a violation of the statute results in physical or electrical contact with a high voltage overhead line, the party that committed the violation "is liable to the owner or operator of the line for all damages to the facilities and for all liability that the owner or operator incurs as a result of the contact." See Tex. Health & Safety Code Ann. § 752.008 (Vernon 1992). Thus, if Chavez is a person "responsible" for the work and he violated the provisions of Tex. Health & Safety Code Ann. § 752.001, et seq., he cannot recover from CPS. See Tull v. San Patricio Elec. Co-op, Inc., 564 S.W.2d 192, 195 (Tex. Civ. App.-Corpus Christi 1978, writ ref'd n.r.e.).
The policy behind Tex. Health & Safety Code Ann. § 752.001, et seq., is to insure the safety of persons engaged in activities near high voltage lines. See Ringo v. Gulf States Util. Co., 569 S.W.2d 31, 35 (Tex. Civ. App.-Beaumont 1978, writ ref'd n.r.e.). The purpose of the indemnification provision, § 752.008, is to place liability for losses resulting from noncompliance with the notification and safety provisions on the "person . . . responsible" for having workers near a power line. See Martinez v. Gulf States Util. Co., 864 S.W.2d 802, 805 (Tex. App.-Houston [14th Dist.] 1993, writ denied).
Person "Responsible"
In his first issue, Chavez argues he was not a person responsible for the work under Tex. Health & Safety Code Ann. § 752.003. We disagree.
The Fifth Circuit Court of Appeals determined the statutory reference to the person or persons "responsible" focuses on the parties who "desire to temporarily carry on the work and who therefore exercise some degree of control over the work site." See Hullum v. Skyhook Corp., 753 F.2d 1334, 1337 (5th Cir.1985) (interpreting Tex. Rev. Civ. Stat. art. 1436c (codified at Tex. Health & Safety Code Ann. § 752.001, et seq.)). The court looked at five factors: (1) knowledge of the specific proposed location of the work; (2) participation in deciding where the work needed to be performed; (3) presence at the worksite; (4) involvement after hiring a contractor to perform services; and (5) ownership interest in the property where the work was conducted. See Hullum, 753 F.2d at 1337. Liability under the statute is focused on parties who exercise "some degree of control" over the work site because those parties have knowledge of where the work is to be done and, therefore, will most likely know whether or not the work will be performed near a power line. See id. This interpretation of the statute advances the Texas legislature's policy of worker safety and bolsters the deterrent impact of the statute on those parties who do exercise control over the work site. See id.
In the instant case, Chavez had knowledge of the specific proposed location of the work. He assumed responsibility for deciding how and when the work would be performed. He was present at the worksite and there is no evidence he was acting as an employee of Figueroa or was otherwise acting under Figueroa's direction. In light of this evidence, we hold Chavez was a person "responsible" for the work as contemplated by Tex Health & Safety Code Ann. § 752.003. Tex. Health & Safety Code Ann. § 752.004
In his second issue, Chavez argues the
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