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Victoria Electric Cooperative11/27/2002
Dissenting Opinion by: Alma L. López, Justice, joined by Phil Hardberger, Chief Justice, and Catherine Stone, Justice
REVERSED AND RENDERED
We grant the Motion for En Banc Reconsideration filed by Barbara O. Williams, Individually and as Representative of the Estate of Elvin Ray Williams, Brian Williams, and Brandon R. Williams. We withdraw our opinion of April 3, 2002 and substitute this opinion in its place:
Victoria Electric Cooperative, Inc. appeals a judgment finding it liable for negligence in the transportation of utility poles by its independent contractor. Because we hold there is no evidence demonstrating Victoria Electric retained a right to control the activity leading to the injury and because the trial court erred in holding Victoria Electric vicariously liable for the negligence of its independent contractor, we reverse the trial court's ruling and render judgment in favor of Victoria Electric.
Background
Victoria Electric is a rural electric cooperative operating under a statutorily authorized franchise granted by the City of Victoria "to construct, maintain, and operate electric light and power lines, with all necessary or desirable appurtenances (including underground conduits, poles, towers, wires, and transmission lines, and telegraph and telephone wires for its own use) for the purpose of supplying electricity within the City limits of the City of Victoria, Texas." In carrying out its franchise obligations, Victoria Electric entered into a contract with Urban Electrical Services, Inc. to construct and maintain electrical distribution lines in the franchise area.
The evening before the accident, Urban employees loaded six utility poles onto a truck and trailer. The next morning, before sunrise, one of Urban's employees, Troy Allen Baze, drove the truck and trailer onto a public highway for the trip to the installation location. The utility poles extended beyond the end of the trailer and, although the trailer was equipped with proper marker lights, some warning devices required to be affixed to extended loads were not attached. As Baze attempted to cross a highway at an intersection, a vehicle driven by Elvin Ray Williams struck one of the poles extending past the end of the trailer. Williams was killed.
Williams's survivors ("Williams") brought this wrongful death action against Victoria Electric, Urban, and Baze. Before trial, Williams settled her claims against Urban and Baze for $2 million. At trial, the jury found actual damages in the amount of $5.016 million and assigned responsibility fifty percent to Victoria Electric, twenty-five percent to Urban, and twenty-five percent to Baze. After applying the settlement credit, the trial court awarded judgment against Victoria Electric for the remaining balance by imputing Urban's and Baze's negligence to Victoria Electric. The trial court found: (1) Victoria Electric retained the right to control Urban's activities; (2) Victoria Electric had a non-delegable duty of care under the "peculiar risk" and "inherently dangerous activity" exceptions; and (3) Victoria Electric had a non-delegable duty of care under the franchise exception.
Right to Control
The trial court found Victoria Electric negligently failed to exercise its right to control the activities of Urban and Baze as required by section 414 of the Restatement of Torts. On appeal, Victoria Electric claims the evidence is insufficient to support Williams's section 414 negligence claim. We must determine whether Victoria Electric retained a right to control Urban's activities such that a duty of care arose. If a duty of care arose, we must determine whether a breach
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