In a recent decision, the court of appeals in Dallas ruled that a widow and her children had no legal remedy after her husband was killed while servicing a convenience store.
In the case of Gorman v. Ngo, ___ S.W.3d ___ (Tex.App.-Dallas 2011, no pet.), Ngo owned a convenience store. After he had a walk-in cooler installed, customers and the lessee of the store complained that they were being shocked. Gorman was called to investigate. He determined that the cooler door was energized, so he cut the power and then began checking the condenser outside of the store. When opening the condenser cover, he was fatally electrocuted. It turned out that the installation of the walk-in cooler violated the electrical code because it was not grounded. Testimony indicated that it was impossible to know by looking at the condenser that the cover was energized, and that it is common to leave the power on when attempting to trouble-shoot a problem. Nevertheless, applying the controversial Ch. 95 of the Civil Practice and Remedies Code (which Ngo had not raised with the trial judge), the court of appeals ruled that Gorman was killed by “the condition or use of an improvement to real property” even though he did not “construct, repair, renovate, or modif[y] the improvement,” as the statute requires.