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Citation: There is no case citation to a case reporter. This was a Memorandum Opinion that was not published. Alternatively cite as: Cummings v. Connor-Machine,
7th CCA Texas (2012).
Facts:
On November 9, 2006, a Conner Machine crane struck an overhead electric power transmission line near the Continental Carbon Plant in Sunray, Texas. This
incident caused an electrical outage at the plant. The accident damaged a fuse holder in the carbon plant located 75 yards away. Power was restored to the plant
approximately 30 to 45 minutes after the accident. Cummings, a carbon plant electrician, was directed to repair the fuse holder. Approximately one hour after the
accident, Mr. Cummings was injured by an electric shock while he was repairing the fuse holder.
Procedural History:
In October 2008 Cummings intervened in a lawsuit that had been filed by Zurich American Insurance Company against Conner Machine. He alleged that his
injuries were caused by the negligence of Conner Machine. In May 2010 Connor filed a Motion for Summary Judgment contending that any negligent act or omission
allegedly committed by Connor Machine in knocking down the power line to the plant did not proximately cause Cumming’s injuries. The trial court granted Connor
Machine’s summary judgment motion. Cummings appealed that ruling to the 7th Court of Appeals at Amarillo.
Issue:
1. Was the negligence, if any, of Connor Machine in knocking down the power line to the Continental Carbon Plant a proximate cause of the injuries suffered by
James Cummings?
Holding/Decision:
1. No. The alleged negligence of Connor Machine in knocking down the power line to Continental Carbon was not the proximate cause of the injuries sustained by
James Cummings.
Rationale:
The elements of negligence are the existence of a legal duty, a breach of that duty, and damages proximately caused by the breach. IHS Cedars Treatment Ctr.
V. Mason, 143 S.W.3d 794, 798 (Tex. 2004). The two elements of proximate cause are cause-in-fact or “substantial factor” and foreseeability. Both elements of
proximate cause are required. Foreseeability requires that the injury be of such general character as might reasonably have been anticipated; and, that the injured
party should be so situated with relation to the wrongful act that injury to him or to one similarly situated might reasonably have been foreseen. Scurlock Oil Co.
v. Birchfield, 630 S.W. 2d 674, 677 (Tex. App.-Houston 14th (1981). The question before the Court is whether Conner Machine employees, as persons of ordinary
intelligence and prudence, should have anticipated that their negligent act would create a danger to others, i.e., the plant electrician tasked with repairing the
fuse holder. The Court found that Connor Machine’s act of striking the transmission line had run its course prior to Cummings’s injuries and that his injuries were
not foreseeable to Connor Machine because he was injured while doing his job, repairing the plant’s electrical system. The Court also relied on Union Pump v.
Albritton, 898 S.W.2d 773 (Tex. 1995) for the proposition that merely creating a condition that makes harm possible falls short of establishing the substantial
factor test for proximate cause. Connor Machine’s conduct merely created a condition that made Cummings’s injuries possible. The evidence establishes that Cummings
was injured after he began to perform a repair in the normal course of his responsibilities as the plant’s electrician. No evidence was presented that the damaged
fuse holder itself created a dangerous condition to anyone.
Cummings relies on Henry v. Houston Lighting & Power Co., 934 S.W.2d 748 (Tex. App.-Houston 1st (1996) and J. Wigglesworth Co. v. Peeples, 985 S.W.2d659
(Tex.App.-Fort Worth (1999) to support is theory that Connor Machines actions were the proximate cause of his injuries. Cummings is incorrect because in both of
these cases the defendant’s negligent acts were ongoing when the plaintiffs were injured. In this case, Connor Machine’s negligent act was not ongoing when Cummings
was injured. Because of these facts we conclude that the conduct of Connor Machine was not the proximate cause of Cummings injuries.
Disposition:
The 7th Court of Appeals at Amarillo affirmed the trial court’s granting of Connor Machine’s Motion for Summary Judgment.
Concurring/Dissenting Opinions:
There were none.
Analysis:
The Court’s decision affirmed the doctrine of Stare Decisis by following previous decisions that had addressed the primary issue before the court, the
elements of proximate cause. Had the Court ruled otherwise it would have either needed to justify its decision based on a change in circumstances or made a
statement to the effect that this Court disagreed with prior decisions, inviting an appeal to the Supreme Court of Texas. I agree with the Court’s decision because
they correctly followed Stare Decisis as no change in conditions was before the Court that would have justified a different outcome. Had I represented Mr. Cummings
I would have argued that the chain of events put in place by Connor Machine in striking the power line were continuing at the time of Mr. Cummings’s injury. I would
have attempted to introduce evidence that the problem with the fuse box was directly related to the power outage caused by the downed power lines and that “but for”
the striking of the power line there would not have been a problem with the fuse box. I would have attempted to introduce the extent of Mr. Cummings’s inferred
expertise as the plant electrician by showing that in the ordinary course of his performance of his job he did not encounter the type of electrical problem caused by
the events commenced by Connor Machine.
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