johannes-joe-elmgren-and-valarie-elmgren-individually-and-as-next ( 2014 )

Motion for Rehearing Denied; Affirmed in part; and Reversed and Remanded
in part; Opinion filed March 20, 2014 Withdrawn; and Substitute Opinion
filed April 17, 2014.
In the
Fourteenth Court of Appeals
NO. 14-13-00044-CV
JOHANNES “JOE” ELMGREN AND VALARIE ELMGREN,
INDIVIDUALLY AND AS NEXT FRIENDS OF THEIR MINOR
CHILDREN, Appellants
V.
INEOS USA, LLC F/K/A INNOVENE USA, LLC, INEOS POLYMERS,
INC., A/K/A INEOS OLEFINS, INEOS OLEFINS & POLYMERS USA, A
DIVISION OF INEOS USA, LLC, AND JONATHAN “BUBBA”
PAVLOVSKY, Appellees
On Appeal from the 412th District Court
Brazoria County, Texas
Trial Court Cause No. 61,590
SUBSTITUTE OPINION
Appellants Johannes “Joe” Elmgren and Valarie Elmgren, both individually
and as next friends for their minor children (collectively, the “Elmgrens”), appeal
the trial court’s summary judgment in favor of appellees, Ineos USA, LLC f/k/a
Innovene USA, LLC, Ineos Polymers, Inc., a/k/a Ineos Olefins, Ineos Olefins &
Polymers USA, a division of Ineos USA, LLC (collectively, “Ineos”), and
Jonathan “Bubba” Pavlovsky, on all its claims. Joe was working for Ineos’
subcontractor pursuant to a maintenance services contract. While replacing valves
on a de-coke header system at Ineos’ plant, Joe suffered burns from an explosion
and release of super-heated gas. The Elmgrens present five issues, four of which
relate to chapter 95 of the Texas Civil Practice and Remedies Code: (1) whether
chapter 95 applies at all; (2) whether Ineos and Pavlovsky conclusively proved
chapter 95 applies; (3) whether there is a fact issue on Ineos’ and Pavlovsky’s
control over the work being performed; and (4) whether there is a fact issue on
Ineos’ and Pavlovsky’s actual knowledge of the danger or condition resulting in
Joe’s injuries. The Elmgrens also argue that the trial court erred in denying their
motion to compel responses to a production request for the names of Ineos’ process
engineers. Although we deny Ineos’ and Pavlovsky’s motion for rehearing, we
withdraw the opinion issued in this case on March 20, 2014, and issue this
substitute opinion. We affirm in part, and reverse and remand in part.
I. FACTUAL AND PROCEDURAL BACKGROUND
Appellant Johannes “Joe” Elmgren was employed as a boilermaker by
Zachry Industrial, Inc. Zachry had contracted with Ineos Olefins & Polymers
USA, a division of Ineos USA, LLC, to perform maintenance services at Ineos’
plant. Joe reported to work at the plant at approximately 7:00 p.m. on June 22,
2010. Joe’s task was to replace valves on a de-coke header on the Olefins #2 DDB
101B furnace. Joe’s Zachry supervisor, David Robin, and Ineos’ operator, Clint
Pierce, conducted a lock out tag out (LOTO) procedure to ensure there was no gas
present in the line. A sniff test for gas was performed at approximately 8:30 p.m.
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with a zero result. Ineos issued the work permit for the valve replacement. At
approximately 3:00 a.m., during the process of removing the second valve, super-
heated gas was released in an explosion that resulted in burns to Joe’s torso, neck,
and jaw line.
The Elmgrens brought claims against Ineos and Pavlovsky for negligence
and wrongful termination. The Elmgrens also sought exemplary damages.
Pavlovsky is the working team leader over furnace maintenance at Ineos. Ineos
and Pavlovsky filed traditional and no-evidence motions for summary judgment.
Under their traditional motions, they argued that they qualified for protection from
liability under chapter 95; they were not liable as a matter of law because they did
not exercise or retain control, either contractually or actually, over the manner in
which Joe’s work was performed; and they were not liable as a matter of law
because they had no actual knowledge of the danger or condition resulting in Joe’s
injuries. Under their no-evidence motions, Ineos and Pavlovsky argued that the
Elmgrens produced no evidence of control over the work performed by Joe and no
evidence of actual knowledge as required by chapter 95. The Elmgrens responded
that chapter 95 did not apply to Pavlovsky because he is not a property owner,
Ineos retained contractual and actual control over Joe’s work, and Ineos had actual
knowledge of the danger or condition resulting in Joe’s injuries. The Elmgrens
also argued that chapter 95 does not apply to their claims in this situation because
they “arise from Ineos’ direct role in informing Zachry’s crew that the system was
safe to proceed.”1
1
Ineos and Pavlovsky also moved for traditional summary judgment as to the Elmgrens’
wrongful termination claim and for no-evidence summary judgment as to the Elmgrens’ claims
for wrongful termination and exemplary damages. The Elmgrens responded to these grounds in
the trial court but have not raised, much less presented any argument or authority on, the granting
of summary judgment on these claims on appeal. Therefore, they have abandoned these claims
and we do not address summary judgment as to these claims. See Duerr v. Brown, 262 S.W.3d
3
 The parties filed various other motions, including the Elmgrens’ motion to
compel the identity of Ineos’ process engineers. The Elmgrens took additional
depositions. Ultimately, after an oral hearing, the trial court granted Ineos’ and
Pavlovsky’s motions for summary judgment. The trial court expressly found that
chapter 95 applied to the Elmgrens’ claims for personal injury; there was no
genuine issue as to any material fact, and Ineos and Pavlovsky were entitled to
judgment as a matter of law on all of the Elmgrens’ claims; and Ineos and
Pavlovsky did not exercise or retain control over Joe’s work, and did not have
actual knowledge of the danger or condition resulting in his injuries and fail to
adequately warn. The judgment stated that it finally disposed of all of the
Elmgrens’ claims. The Elmgrens timely appealed.
II. SUMMARY JUDGMENT STANDARDS
We review the trial court’s granting of summary judgment de novo.
Ferguson v. Bldg. Materials Corp. of Am., 295 S.W.3d 642, 644 (Tex. 2009) (per
curiam) (citation omitted). Ineos’ and Pavlovsky’s motions for summary judgment
are hybrid traditional and no-evidence motions. See Tex. R. Civ. P. 166a(c), (i).
To the extent necessary, we therefore apply the established standards of review for
each. Brockert v. Wyeth Pharm., Inc., 287 S.W.3d 760, 764 (Tex. App.—Houston
[14th Dist.] 2009, no pet.). To be entitled to summary judgment under rule
166a(c), a movant must establish that there is no genuine issue of material fact so
that the movant is entitled to judgment as a matter of law. Mann Frankfort Stein &
Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). If the movant’s
motion and summary judgment evidence facially establish its right to judgment as
a matter of law, the burden shifts to the nonmovant to raise a genuine, material fact
issue sufficient to defeat summary judgment. See M.D. Anderson Hosp. & Tumor
63, 69 (Tex. App.—Houston [14th Dist.] 2008, no pet.).
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Inst. v. Willrich, 28 S.W.3d 22, 23 (Tex. 2000) (per curiam). A genuine issue of
material fact exists if more than a scintilla of evidence establishing the existence of
the challenged element is produced. Ford Motor Co. v. Ridgway, 135 S.W.3d 598,
600 (Tex. 2004) (citation omitted).
A no-evidence motion for summary judgment must be granted if: (1) the
moving party asserts that there is no evidence of one or more specified elements of
a claim or defense on which the adverse party would have the burden of proof at
trial and (2) the respondent produces no summary judgment evidence raising a
genuine issue of material fact on those elements. See Tex. R. Civ. P. 166a(i);
Mayer v. Willowbrook Plaza Ltd. P’ship, 278 S.W.3d 901, 908 (Tex. App.—
Houston [14th Dist.] 2009, no pet.). We sustain a no-evidence summary judgment
where: (1) there is a complete absence of evidence of a vital fact, (2) the court is
barred by rules of law or of evidence from giving weight to the only evidence
offered to prove a vital fact, (3) the evidence offered to prove a vital fact is no
more than a mere scintilla, or (4) the evidence conclusively establishes the opposite
of the vital fact. Lowe’s Home Ctrs., Inc. v. GSW Mktg, Inc., 293 S.W.3d 283,
287–88 (Tex. App.—Houston [14th Dist.] 2009, pet. denied) (citing Merrell Dow
Pharm., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997)). “Evidence does not
exceed a scintilla if it is ‘so weak as to do no more than create a mere surmise or
suspicion’” that the challenged fact exists. Akin, Gump, Strauss, Hauer & Feld,
L.L.P. v. Nat’l Dev. & Research Corp., 299 S.W.3d 106, 115 (Tex. 2009) (quoting
Kroger Tex. Ltd. P’ship v. Suberu, 216 S.W.3d 788, 793 (Tex. 2006)).
In reviewing the granting of either type of summary judgment motion, we
indulge every reasonable inference in favor of the nonmovant, resolve any doubts
arising in its favor, and take as true all evidence favorable to it. Echartea v.
Calpine Corp., No. 14-10-00019-CV, 2011 WL 2684889, at *2 (Tex. App.—
5
Houston [14th Dist.] July 12, 2011, no pet.) (mem. op.) (citation omitted).
Ordinarily, we first review the no-evidence summary judgment, then, if necessary,
the traditional summary judgment as to the Elmgrens’ claims. See Ford Motor
Co., 135 S.W.3d at 600. Here, we review the traditional summary judgment
because the burden does not shift to the Elmgrens on the elements of control and
actual knowledge unless and until Ineos and Pavlovsky conclusively establish that
chapter 95 applies. See Vanderbeek v. San Jacinto Methodist Hosp., 246 S.W.3d
346, 352 (Tex. App.—Houston [14th Dist.] 2008, no pet.).
III. ANALYSIS
A. Applicability of chapter 95
Chapter 95 of the Texas Civil Practice and Remedies Code was enacted in
1996 as part of a sweeping tort-reform package. Ellwood Tex. Forge Corp. v.
Jones, 214 S.W.3d 693, 699 (Tex. App.—Houston [14th Dist.] 2007, pet. denied)
(citing Dyall v. Simpson Pasadena Paper Co., 152 S.W.3d 688, 699 (Tex. App.—
Houston [14th Dist.] 2006, pet. denied) (en banc)). “It was enacted because the
legislature recognized that property owners often want to hire someone with
expertise to repair or renovate some improvement on their property.” Dyall, 152
S.W.3d at 699. Chapter 95 applies only to a claim:
(1) against a property owner, contractor, or subcontractor for
personal injury, death, or property damage to an owner, a contractor,
or a subcontractor or an employee of a contractor or subcontractor;
and
(2) that arises from the condition or use of an improvement to
real property where the contractor or subcontractor constructs, repairs,
renovates or modifies the improvement.
Tex. Civ. Prac. & Rem. Code § 95.002 (West 2011) (titled “Applicability”).
“Claim” is defined in chapter 95 as “a claim for damages caused by negligence.”
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Id. § 95.001(1). “Property owner” is defined as “a person or entity that owns real
property primarily used for commercial or business purposes.” Id. § 95.001(3).
Under chapter 95:
A property owner is not liable for personal injury, death, or
property damage to a contractor, subcontractor, or an employee of a
contractor or subcontractor who constructs, repairs, renovates, or
modifies an improvement to real property, including personal injury,
death, or property damage arising from the failure to provide a safe
workplace unless:
(1) the property owner exercises or retains some control
over the manner in which the work is performed, other than the
right to order the work to start or stop or to inspect progress or
receive reports; and
(2) the property owner had actual knowledge of the
danger or condition resulting in the personal injury, death, or
property damage and failed to adequately warn.
Id. § 95.003 (titled “Liability for Acts of Independent Contractors”). Section
95.003(1) served to codify the Texas Supreme Court’s holding in Redinger v.
Living, Inc., 689 S.W.2d 415 (Tex. 1985), which adopted section 414 and the
accompanying comments of the Restatement (Second) of Torts. 2 See Ellwood, 214
S.W.3d at 700; Dyall, 152 S.W.3d at 699. Section 95.003(2) further limited a
premises owner’s liability by requiring a plaintiff to prove that the owner had
actual, not merely constructive, knowledge of a dangerous condition on the
premises. See Ellwood, 214 S.W.3d at 700; Dyall, 152 S.W.3d at 699.
2
The Redinger court held that, while in general a premises owner does not have a duty to
see that an independent contractor performs its work in a safe manner, the owner may be liable if
it retains some control over the manner in which the contractor’s work is performed. 689
S.W.2d at 418.
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B. The trial court did not err in granting summary judgment pursuant to
chapter 95 as to negligence claims against Ineos arising from the condition
of the improvement Zachry was repairing.
1. Zachry and Joe were repairing the “gas process” improvement.
In their related first and second issues, the Elmgrens do not dispute that the
facts at issue fall within subsection (1) of section 95.002 with respect to Ineos. The
Elmgrens brought a claim for damages caused by negligence against a property
owner or contractor (Ineos) for personal injury to an employee (Joe) of a
subcontractor (Zachry). See id. § 95.002(1).3 The Elmgrens instead assert that
chapter 95 is inapplicable to their claims because Joe’s injuries arose from the
defective condition of the operation of the plant’s gas process, which Ineos
separately and solely controlled, rather than from any work being done by Joe to
replace the de-coke header valves. See id. § 95.002(2). In other words, they
contend Ineos did not prove Joe was working on the same improvement that
resulted in his injuries.
The Elmgrens primarily rely on this court’s plurality opinion in Hernandez
v. Brinker International, Inc., 285 S.W.3d 152 (Tex. App.—Houston [14th Dist.]
2009, no pet.) (plurality op.). There, the plaintiff, a subcontractor employee, was
hired to maintain and make repairs to a restaurant’s air-conditioning system, which
was located on the roof of the restaurant. That particular day, the plaintiff was
supposed to replace a compressor motor. As he was walking to or from the air
conditioner with the old or new motor, he fell through the roof. The Hernandez
3
The Elmgrens’ live pleadings, attached to Ineos’ and Pavlovsky’s summary judgment
motions, alleged that Joe was an employee of Zachry and that “all Corporate Defendants were
the owners of the premises” at issue in Alvin, Texas. Ineos and Pavlovsky also attached to their
summary judgment motions the maintenance services contract between Ineos and Zachry, and an
affidavit from Ineos’ corporate deputy secretary Paul Capuzzi wherein he avers that the
corporate Ineos defendants own the Alvin chemical plant.
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plurality concluded that section 95.002(2) did not apply in such a situation:
The roof and the air-conditioning system are separate improvements
to real property. Section 95.002(2) states that Chapter 95 applies only
to a claim “that arises from the condition or use of an improvement to
real property where the contractor or subcontractor [repairs or
modifies] the improvement.” Therefore, pursuant to the plain
language of section 95.002(2), Chapter 95 does not apply to a
contractor’s employee’s claim against a property owner when the
improvement the condition or use of which gives rise to the injury
claim is not the same improvement the contractor was at the premise
to address at the time of injury.
285 S.W.3d at 157–58 (alterations in orig.). The plurality concluded:
“Hernandez’s claim arises from the condition of the roof, but Hernandez did not
repair or modify the roof. Hernandez repaired the air-conditioning system. Thus,
under the plain language of section 95.002(2), Chapter 95 does not apply to
Hernandez's claims.” Id. at 161.
Ineos relies on cases where this court has concluded that the plaintiff’s
injuries did arise from the condition or use of the improvement the plaintiff was
repairing or modifying. For example, in Vanderbeek, a hospital engaged a
contractor for plumbing work necessary to remodel the emergency room. The
plaintiff, a plumber who worked for the contractor, suffered chemical burns when a
caustic liquid came out of a drainage pipe that he had previously capped. We
concluded that section 95.002(2) applied and affirmed a take-nothing summary
judgment for the hospital. 246 S.W.3d at 350–51, 353 (“Vanderbeek’s negligence
claim arises from the condition or use of the Hospital building, which is an
improvement to real property. . . . The contractor (Humphrey Plumbing) repaired,
renovated, or modified the Hospital building.”).
Likewise, in Dyall, without specifically discussing the applicability of
section 95.002(2), this court sitting en banc affirmed a take-nothing summary
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judgment in favor of a paper mill owner in an action by an independent
contractor’s employees for respiratory injuries relating to the inhalation of toxic
gases released from a pipe while they were repairing a leaking flange. 152 S.W.3d
at 693–96, 710.
The plurality in Hernandez, however, did not take issue with Vanderbeek
and Dyall because in those cases the facts supported that “the employee’s injury
was caused by a condition or the use of the improvement he was repairing or
modifying.” 285 S.W.3d at 161 (discussing Vanderbeek, 246 S.W.3d at 348–49;
Dyall, 152 S.W.3d at 695–96).
Under the plain language of section 95.002(2), to meet their burden on
summary judgment to show that chapter 95 applies to the Elmgrens’ claims, Ineos
and Pavlovsky must facially establish that the claims “arise[] from the condition or
use of an improvement to real property where [Zachry] constructs, repairs,
renovates, or modifies the improvement.” See Tex. Civ. Prac. & Rem. Code
§ 95.002(2). As alleged, Zachry and Joe were working on repairing valves on the
“common header system and specifically on a de-coke header” on the Olefins #2
DDB 101B furnace at Ineos’ plant. The Elmgrens also alleged that Joe was
severely injured by a “sonic boom type super heated explosion of gases” and that
his injuries resulted from a “super heated gas leak” “into the line upon which he
was working.” The Elmgrens described this leak as “an unreasonably dangerous
condition.” They do not argue that the common header system and the de-coke
header are not an improvement to real property, but rather that the particular
LOTO line and valves Joe was working on do not qualify as the same
improvement as the rest of the “gas process.” Essentially, what the Elmgrens
would have us do is to attempt to divide the plant’s “gas process” system of
furnaces and headers valve-by-valve or line-by-line into separate, discreet
10
improvements. However, neither section 95.002(2) nor our case law, including the
plurality in Hernandez, precludes us from determining these particular alleged
facts indicate that the Elmgrens’ claims arise from the condition of the “gas
process” system improvement and that Zachry and Joe were repairing or modifying
such improvement. Rather, such a result is consistent with the plain language of
section 95.002(2). See Tex. Civ. Prac. & Rem. Code § 95.002(2). In addition, this
result is consistent with the outcomes in Vanderbeek and Dyall, and
distinguishable from the Hernandez plurality.
We therefore conclude Ineos has conclusively proven that chapter 95
applies, and we overrule the Elmgrens’ first and second issues as to Ineos—to the
extent the Elmgrens alleged negligence claims arising from the condition of the
improvement Zachry and Joe were repairing. See Vanderbeek, 246 S.W.3d at 351.
2. There is no genuine fact issue on Ineos’ actual knowledge.
In their third issue, the Elmgrens argue that, to the extent chapter 95 applies,
they raised a genuine fact issue that Ineos exercised or retained control over
Zachry’s and Joe’s work. See Tex. Civ. Prac. & Rem. Code § 95.003(1).
Likewise, in their fourth issue, the Elmgrens argue that they raised a fact issue that
Ineos had actual knowledge of the danger or condition resulting in Joe’s burns and
failed to adequately warn. See id. § 95.003(2).
Both of these independent and necessary conditions of section 95.003 must
be met before liability will be imposed upon the property owner. See id. § 95.003;
Vanderbeek, 246 S.W.3d at 352; Ellwood, 214 S.W.3d at 700; Dyall, 152 S.W.3d
at 699. Ineos moved for both traditional and no-evidence summary judgment on
both prongs of section 95.003. We already have determined that Ineos
conclusively established that chapter 95 applies to claims against them to the
extent they arise from the condition of the improvement Zachry and Joe were
11
repairing, so the trial court properly shifted the burden on summary judgment to
the Elmgrens. See Vanderbeek, 246 S.W.3d at 352. Thus, under chapter 95, they
had the burden to raise a fact issue on both the control and actual knowledge
prongs in order to withstand summary judgment. See Tex. Civ. Prac. & Rem.
Code § 95.003; Ellwood, 214 S.W.3d at 700 (“An owner may be aware of the
danger, but exercise no control, or he may exercise control and have no actual
knowledge of the danger; in either instance, the owner is statutorily shielded from
liability.”); Dyall, 152 S.W.3d at 699 (“The burden now rests upon the plaintiff to
show both (1) control and (2) actual knowledge of the danger.” (emphasis in
orig.)).
Where the summary judgment evidence fails to raise a fact issue on one
prong of section 95.003, we need not address the other prong. See Bartee v. Baylor
Coll. of Med., No. 14-06-00324-CV, 2007 WL 2989614, at *4 & n.3 (Tex. App.—
Houston [14th Dist.] Oct. 16, 2007, no pet.) (mem. op.) (concluding trial court
correctly granted summary judgment based upon section 95.003 where no fact
issue raised as to control without addressing actual knowledge). Section 95.003(2)
requires the Elmgrens to prove that Ineos had actual knowledge—as opposed to
constructive knowledge—of the alleged dangerous condition. See Ellwood, 214
S.W.3d at 700. Actual knowledge of a dangerous condition is what a person
actually knows, as distinguished from constructive knowledge, or what a person
should have known. See City of Corsicana v. Stewart, 249 S.W.3d 412, 414–15
(Tex. 2008) (per curiam) (“Actual knowledge requires knowledge that the
dangerous condition existed at the time of the accident, as opposed to constructive
knowledge which can be established by facts or inferences that a dangerous
condition could develop over time.”).
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In its summary judgment motion, Ineos specifically argued there was no
evidence Ineos had actual knowledge that gas existed in the pipe on which Joe was
working at the time of the accident. In addition to the line being LOTO and the
sniff test performed prior to the work resulting in zero, Ineos pointed to testimony
from Joe that he did not have any information from anyone indicating Ineos knew
of any valves leaking gas before his accident. Robin testified that no one from
Ineos knew there was gas in the line before Joe starting working on the valves, and
that if anyone from Ineos knew gas was present, Joe would not have been allowed
to work on the line. Pavlovsky testified that Ineos was not aware and did not have
knowledge of any leaking valves at the time of the accident. Rex Hill, day furnace
operator for Ineos, testified that he was not aware of anyone from Ineos knowing
of any gas in the line before the accident. Rodney Girlinghouse, senior site safety
support manager for Zachry at Ineos’ plant, led the investigation of Joe’s accident
and was not aware of anyone at Ineos who had actual knowledge of any gas in the
line on which Joe was working that night.
The Elmgrens point to Pavlovsky’s testimony that he has heard that
sometimes de-coke gate valves leak even when they are new. Pavlovsky further
clarified, however, that he has never personally witnessed a new valve leaking.
The Elmgrens further suggest that Ineos knew of the hazardous condition of gas in
the line because a similar explosion occurred a few months earlier while Zachry
employees were repairing a flange on a pipe about one hundred feet from the
Olefins #2 DDB 101B furnace. The Elmgrens note that a fire watch was required
pursuant to the work permit. They point to testimony from Pierce that, after Joe’s
accident, Ineos requires a full nitrogen purge before changing valves. David
Dworaczyk, unit engineer for Ineos, testified that the better practice is to perform
the sniff test closer in time to when the work begins.
13
However, even viewing the summary judgment record in the light most
favorable to the Elmgrens, none of this evidence indicates Ineos had actual
knowledge of any valve allegedly leaking gas into the line that resulted in Joe’s
injuries at the time of the accident. The evidence does not show Pavlovsky was
aware that any new gate valve at Ineos’ plant was leaking. The evidence shows
that there had previously been flammable gas in a line during a prior repair and that
there are arguably better methods for clearing and checking a line for gas. See
Echartea, 2011 WL 2684889, at *5 (finding no evidence of actual knowledge of
roadway hole or rut causing plaintiff’s injury despite evidence that location had
been previously cleared of ruts). At most, Ineos may have had knowledge of a
possibility that gas could exist in the line, but knowledge of a potential danger or
condition is not enough. See Bishop v. Nabisco, Inc., No. 14-03-00639-CV, 2004
WL 832916, at *3 (Tex. App.—Houston [14th Dist.] Apr. 20, 2004, no pet.) (mem.
op.) (“Actual knowledge that the cover was dangerous is different than knowing
that the cover was potentially dangerous.”).
We conclude that the Elmgrens failed to meet their burden to raise a genuine
fact issue on Ineos’ actual knowledge pursuant to section 95.003(2). We overrule
the Elmgrens’ fourth issue. Because the Elmgrens failed in their burden regarding
the second prong of section 95.003, we need not and do not address the first prong
on control or their third issue, which addresses that prong. See Bartee, 2007 WL
2989614, at *4 & n.3. Therefore, the trial court did not err in granting Ineos’
motion for summary judgment as to the Elmgrens’ claims arising from the
condition of the improvement Zachry and Joe were repairing. See Echartea, 2011
WL 2684889, at *5.
C. The trial court erred in granting summary judgment pursuant to chapter
95 as to Pavlovsky because he did not conclusively prove that chapter 95
applies to him.
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With respect to Pavlovsky, the Elmgrens argue that Pavlovsky did not
conclusively prove that chapter 95 applies to claims against him. Pavlovsky did
not submit any evidence that he was a property owner or contractor for purposes of
chapter 95. Instead, Pavlovsky contends that he qualifies as such because he is an
employee of Ineos, the property owner and contractor. We cannot agree. The
plain language of section 95.002(1) states that chapter 95 applies to claims “against
a property owner, contractor, or subcontractor”—not to claims against an
“employee” of a property owner, contractor, or subcontractor. See Tex. Civ. Prac.
& Rem. Code § 95.002(1). Indeed, the legislature could have included employees
as a category of protected defendant but did not. See id. (listing claims for
“personal injury, death, or property damage to . . . an employee of a contractor or
subcontractor”). Pavlovsky relies on Fisher v. Lee & Chang Partnership, 16
S.W.3d 198 (Tex. App.—Houston [1st Dist.] 2000, pet. denied), for the proposition
that “[a]gents, representatives, or employees of the property owner and/or
contractor enjoy the benefits of Chapter 95.” However, the precise holding of our
sister court in Fisher does not reach so broadly as to cover all employees of
property owners or contractors. In the specific situation where there was evidence
that a particular individual was an agent and property manager for the property
owner and “looked after the property,” the Fisher court held the liability protection
in “sec. 95.003 applies to property owners and also to their agents who oversee
their properties.” Id. at 202–03; see Echartea, 2011 WL 284889, at *3 n.1. In any
event, Pavlovsky did not argue, much less conclusively prove, that he was Ineos’
agent who oversees their property. We sustain the Elmgrens’ first and second
issues as to Pavlovsky. 4
4
We of course take no position at this time with regard to whether premises-liability
claims against Pavlovsky otherwise could withstand summary disposition.
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D. The trial court erred in granting summary judgment on the Elmgrens’
negligent-activity and negligent-undertaking claims.
Both Ineos and Pavlovsky moved for traditional summary judgment on the
ground that they were “not liable for the alleged personal injury sustained by [Joe]
under . . . section 95.003; thus, summary judgment is appropriate as a matter of
law.” We construe this as a global summary judgment ground that encompasses
all claims for personal injury pleaded by the Elmgrens. See Nall v. Plunkett, 404
S.W.3d 552, 556 (Tex. 2013) (reversing appellate court and construing summary
judgment ground that did not expressly mention negligent undertaking as
addressing such claim). Indeed, in their summary-judgment response, the
Elmgrens argued that chapter 95 did not apply in this situation—i.e., their claims
arising from Ineos’ direct role in informing Zachry and Joe that “the system was
safe to proceed.” The trial court granted Ineos and Pavlovsky summary judgment,
specifically finding that chapter 95 applies to the Elmgrens’ personal injury claims.
On appeal, in addition to the argument that chapter 95 does not apply
because Joe’s injuries did not arise from the condition of the specific improvement
that he was repairing, discussed and rejected above, the Elmgrens also assert that
chapter 95 does not bar their negligence claims based on the alternative theories of
negligent activity and negligent undertaking. 5
We first consider what claims had been sufficiently pleaded by the Elmgrens
at the time of summary judgment. The Elmgrens pleaded premises liability. They
alleged that premises-owner Ineos failed with regard to its duty to provide “a safe
place and conditions for [Joe] and others to work.” As discussed, Chapter 95
appropriately governs these claims as to Ineos. See Tex. Civ. Prac. & Rem. Code
5
At argument, counsel for the Elmgrens presented this court with proposed jury
questions that particularly contemplated as to Ineos theories of negligent undertaking, general
negligence, and premises liability pursuant to chapter 95.
16
§ 95.003; Bishop, 2004 WL 832916, at *3. In addition, the Elmgrens alleged
negligence by Ineos and Pavlovsky in various respects, including failures to timely
inspect and to purge the line for gas. The Elmgrens further alleged Ineos’
particular responsibility with regard to clearing the line for Joe’s protection. At
this stage, based on our review of the pleadings, which we construe liberally in the
absence of special exceptions, see Roark v. Allen, 633 S.W.2d 804, 809 (Tex.
1982), and resolving any doubts against the motions for summary judgment, see
Echartea, 2011 WL 2684889, at *2, we agree with the Elmgrens that their
pleadings fairly encompass negligence claims potentially sounding in negligent
activity and negligent undertaking. See Horizon/CMS Healthcare Corp. v. Auld,
34 S.W.3d 887, 896–97 (Tex. 2000) (describing “fair notice” standard for pleading
as whether opposing party can ascertain from the pleading basic nature of the
controversy, even if improperly named); Dodd v. Savino, —S.W.3d—, No. 14-12-
00555-CV, 2014 WL 242881, at *11 (Tex. App.—Houston [14th Dist.] Jan. 16,
2014, no. pet. h.) (substitute op.) (“The case law is clear that a petition is sufficient
if a cause of action may reasonably be inferred from what is specifically stated in
the petition, even if an element of the cause of action is not specifically alleged.”)
(internal quotation marks omitted).
Premises liability is a special form of negligence where the duty owed to the
plaintiff depends on the plaintiff’s status at the time of the incident. W. Invs., Inc.
v. Urena, 162 S.W.3d 547, 550 (Tex. 2005). A premises owner has a duty to use
reasonable care to keep the premises under his control in a safe condition for
business invitees, such as independent contractors. See Redinger, 689 S.W.2d at
417. Premises-liability claims are divided into two categories: (1) defects existing
when an independent contractor enters the premises and (2) defects created by the
independent contractor’s work activity. Dow Chem. Co. v. Bright, 89 S.W.3d 602,
17
606 (Tex. 2002) (citing Coastal Marine Serv. of Tex., Inc. v. Lawrence, 988
S.W.2d 223, 225 (Tex. 1999)). With respect to pre-existing defects, a premises
owner has a duty to inspect the premises and warn of defects the owner knows or
should have known about. Clayton W. Williams, Jr., Inc. v. Olivo, 952 S.W.2d
523, 527 (Tex. 1997). With respect to defects arising later, an owner generally has
no duty unless it retains a right to or exercises some control over the manner in
which the contractor’s work is performed. See Bright, 89 S.W.3d at 606;
Redinger, 689 S.W.2d at 418. As indicated, the effect of section 95.003 was to
codify Redinger’s right-to-control requirement and to raise the knowledge
requirement to actual knowledge of the dangerous condition. See Ellwood, 214
S.W.3d at 700; Dyall, 152 S.W.3d at 699.
Whereas a premises-defect claim is based on the property itself being
unsafe, a negligent-activity claim requires that the plaintiff’s injury result from a
contemporaneous activity itself rather than from a condition created on the
premises by the activity. State v. Shumake, 199 S.W.3d 279, 284 (Tex. 2006);
Timberwalk Apartments, Partners, Inc., v. Cain, 972 S.W.2d 749, 753 (Tex. 1998);
Keetch v. Kroger Co., 845 S.W.2d 262, 264 (Tex. 1992); Mayer, 278 S.W.3d at
909. Negligent activity is a general negligence cause of action and encompasses
theories of malfeasance based on affirmative, contemporaneous conduct by the
property owner that caused the injury, while premises liability encompasses
theories of nonfeasance based on the owner’s failure to take measures to make the
property safe. Del Lago Partners, Inc. v. Smith, 307 S.W.3d 762, 776 (Tex. 2010).
The duty inquiry in a negligent-activity claim does not turn on whether a duty
arose to take protective action based on special circumstances or the parties’
relationship. See Custom Transit, L.P. v. Flatrolled Steel, Inc., 375 S.W.3d 337,
364 (Tex. App.—Houston [14th Dist.] 2012, pet. denied). “Instead, the duty
18
inquiry focuses on injuries caused by contemporaneous actions or omissions in [the
owner’s] conduct.” Id.
For purposes of a negligent-undertaking claim, the “critical inquiry
concerning the duty element” is “whether a defendant acted in a way that requires
the imposition of a duty where one otherwise would not exist.” Nall, 404 S.W.3d
at 555. Such a duty may arise when a person particularly undertakes to provide
services to another, either gratuitously or for compensation, including undertaking
to make the premises safe for others. See Custom Transit, 375 S.W.3d at 361
(citing Torrington Co. v. Stutzman, 46 S.W.3d 829, 837 (Tex. 2000)). A jury
presented with a negligent-undertaking claim should be instructed that the
defendant was negligent if: (1) the defendant undertook to perform services that it
knew or should have known were necessary for the plaintiff’s protection; (2) the
defendant failed to exercise reasonable care in performing those services; and (3)
either the plaintiff relied on the defendant’s performance, or the defendant’s
performance increased the plaintiff’s risk of harm. Id.
The Texas Supreme Court recognizes a distinction between the separate
theories of premises liability and negligent activity. Del Lago, 307 S.W.3d at 775
(“As to landowners, we have recognized negligent-activity and premises-liability
theories of liability.”); Shumake, 199 S.W.3d at 284 (“We have rejected attempts to
blur the distinction between these two claims.”); Keetch, 845 S.W.2d at 264 (“We
decline to eliminate all distinction between premises conditions and negligent
activities.”); see Custom Transit, 375 S.W.3d at 361. Although the terms
“negligent activity” and “negligent undertaking” are sometimes used
interchangeably, a negligent-undertaking theory is separate and distinct from a
negligent activity theory. See Custom Transit, 375 S.W.3d at 363. Moreover, as
with negligent activity, the Texas Supreme Court recognizes that negligent
19
undertaking and premises liability, although similar in that the plaintiff seeks to
impose a duty to take protective action based on special circumstances or the
parties’ relationship, involve two different theories of recovery. See Nall, 404
S.W.3d at 555; Wilson v. Tex. Parks & Wildlife Dep’t, 8 S.W.3d 634, 635 (Tex.
1999) (per curiam); Custom Transit, 375 S.W.3d at 361 (citing Torrington, 46
S.W.3d at 838).
Next, we must determine whether chapter 95 applies to automatically bar all
such negligence claims. In other words, whether chapter 95 as a matter of law
provides the Elmgrens’ exclusive remedy against Ineos here. We conclude that it
does not. In Dyall, albeit in dicta, our en banc court indicated that the intent of
chapter 95 was not to bar all negligence claims against property owners. See 152
S.W.3d at 708. There, we considered chapter 95’s statement of legislative intent,6
found it to be entirely consistent with the statute’s plain meaning, and specifically
indicated that chapter 95 would not preclude recovery in the following situations:
6
Representative Robert Junell, sponsor of the bill, stated that it was the authors’ intent
that chapter 95 “does not apply nor raise the burden of proof in situations where a property
owner is negligent, separate and apart from exercising or retaining control over the manner in
which the work is performed in a contract to construct, repair, renovate, or modify an
improvement to real property.” Dyall, 152 S.W.3d at 708 (citing H.J. of Tex., 74th Leg., R.S.
2611–12 (1995)). Representative Junell offered two examples:
Example: Let’s say there is a concrete company supplying concrete to a plant and
because of premise owner’s negligence (such as failing to properly maintain their
pipelines, vessels or pressures), there is an explosion destroying the concrete truck
and injuring the driver. Nothing in this Chapter would raise the burden of proof
on the property owners negligence for recovery of the damages related to the
truck or person.
Example: Likewise, if we have a maintenance contractor who gets a contract to
perform work at the plant, and the property owner informs the contractor that the
lines are clear and ready for welding, when in fact they are not, due to the
property owner’s negligence, and an employee of the maintenance contractor is
injured by the release of chemicals. Nothing in this chapter would change the
burden of proof or the damages recoverable.
Id. (citing same).
20
“if [independent contractor employee] had been injured by an unrelated explosion
of the pine bleaching plant due to [mill owner’s] negligence” and “if [mill owner]
had negligently told [independent contractor employee] that the pipe was empty,
and [employee] had been injured due to his reliance on that statement,” then “the
statute would not preclude recovery.” Id. (concluding, however, that neither
scenario was at issue where mill owner specifically told independent contractor
employees pipe was not empty). Until now, this court has not been directly
presented with a case where the plaintiff alleged negligence claims against a
property owner arguably falling within a situation as described in Dyall. Cf.
Vanderbeek, 246 S.W.3d at 348–49, 351 (negligence claims covered by chapter 95
where plaintiff had alleged dangerous condition due to hospital’s negligence prior
to plaintiff’s work, but where no allegation of contemporaneous action or omission
by hospital or additional undertaking to protect plaintiff by hospital). 7
Recently, in Oncor Electric Delivery Co., LLC v. Murillo, —S.W.3d—,
2014 WL 1056471 (Tex. App.—Houston [1st Dist.] Mar. 18, 2014, no pet. h.) (op.
on reh’g), our sister court recognized that claims of negligent activity survive
chapter 95. There, an employee of a demolition contractor was electrocuted at a
demolition site. Oncor was the easement holder and electricity provider to the site
that failed to de-energize the transformer at issue. The jury found Oncor liable for
general negligence and assessed damages. The court rejected Oncor’s jury-charge
challenge that the only viable claim against it and the plaintiff’s exclusive remedy
was for premises liability under chapter 95 arising from the failure to provide a
safe workplace. Id. at *8, *19.
7
The Dallas court of appeals declined to follow our dicta from Dyall in Dow Chemical
Co. v. Abutahoun, 395 S.W.3d 335, 347 n.5 (Tex. App.—Dallas 2013, pet. filed).
21
In doing so, the Oncor court noted the Texas Supreme Court’s consistent
recognition “that negligent-activity claims and premises-defect claims involve two
independent theories of recovery . . . . although ‘[t]he lines between negligent
activity and premises liability are sometimes unclear,’ there is a recognized
distinction between the two theories.” Id. at *8 (quoting Del Lago, 307 S.W.3d at
776). “Premises defect and negligent activity are two separate theories.” Id. at
*13. As the Oncor court explained, just because Oncor also may have owed “the
duty of a property owner to use ordinary care to reduce or eliminate an
unreasonable risk of harm created by some condition on the premises,” where
Oncor performed its own activity on the property, “it had a duty to use ordinary
care in the performance of that activity so that its activity would not proximately
cause a foreseeable injury to workers on the site.” Id. at *13 (where Oncor
performed activity in disconnecting electricity or otherwise controlling flow of
electricity to property to permit safe demolition, it owed duty to “workers on the
site quite apart from the general duty it owed as the owner of the electricity
easement on the property”). The Oncor court also explained that a plaintiff may
proceed on negligent activity, as opposed to premises liability:
[W]here [the plaintiff] was not injured because a condition occurred
as a result of equipment failure, act of God, third party interference, or
the non-contemporaneous act of the easement owner—but by the
negligent acts of several defendants, including [the easement owner] .
...
Id. at *10 (discussing Tex. Dep’t of Transp. v. Ramming, 861 S.W.2d 460 (Tex.
App.—Houston [14th Dist.] 1993, writ denied)). Ultimately, the Oncor court
concluded that the negligent activity was “Oncor’s failing to disconnect one of the
cables it had been charged with disconnecting and, instead, leaving live electricity
flowing through that cable to the demolition site during the on-going demolition,
22
salvage, and utility removal process” and the plaintiff’s injuries were “attributable
to an ongoing activity [of] the premises owner.” Id. at *10–11.
In light of the Texas Supreme Court’s continued recognition of the distinct
nature of premises-liability, negligent-activity, and negligent-undertaking theories
of liability, and in light of Dyall and Oncor, we conclude that chapter 95 defeats a
premises-liability claim if the statutory requisites are satisfied but does not as a
matter of law reach distinct claims for negligent activity and negligent undertaking.
Therefore, in these circumstances where the Elmgrens’ petition fairly
included negligent-activity and negligent-undertaking theories of liability, the trial
court erred in granting summary judgment insofar as its order operated to grant
summary judgment pursuant to chapter 95 on the Elmgrens’ claims for negligent
activity and negligent undertaking. We of course express no opinion as to whether
the Elmgrens ultimately could establish any negligence claims (aside from
premises-liability claims) and whether Ineos and Pavlovsky ultimately could be
liable for any breaches of duty, if owed.
E. The trial court did not abuse its discretion in denying the Elmgrens’
motion to compel.
In their fifth issue, the Elmgrens argue that the trial court erred in denying
their motion to compel responses to their 8th request for production, where they
requested the names and contact information for all process engineers on duty at
Ineos’ plant within three days of Joe’s accident. Ineos and Pavlovsky had objected
on grounds that the request was overly broad, unduly burdensome, vague, and
ambiguous “as to what is meant by process engineers.” In their motion, the
Elmgrens pointed to Girlinghouse’s testimony that, during Zachry’s investigation,
“an Ineos engineer” who worked during the day gave Girlinghouse information
regarding leaking valves as the cause of the accident. Girlinghouse did not write
23
any names down and could not describe or remember who told him that.
Girlinghouse used the term “process engineer” when he responds he is not a
process engineer after being asked to explain “how this gas could have gotten in
the system.” The trial court denied the motion to compel.
Thereafter, the Elmgrens took the deposition of Ineos’ corporate
representative Randy Kay. The Elmgrens again moved to compel the identity of
the process engineers, 8 pointing to Kay’s testimony regarding the term “process
engineers” and his identification of Dworaczyk as one of two process engineers
who may have been assigned to Olefins #2. Kay could not recall the name of the
other process engineer; his testimony indicated that one process engineer was
assigned to Olefins #1 and one process engineer was assigned to Olefins #2. The
Elmgrens then took Dworaczyk’s deposition one day before the summary
judgment hearing. Dworaczyk testified that “process engineer” is a “general term”
and that at the time he served as the “unit engineer” for Olefins #2. The Elmgrens
included excerpts from Dworaczyk’s deposition in their motion to reconsider and
to allow new summary judgment evidence. The record indicates that the trial court
considered the Dworaczyk excerpts when denying the Elmgrens’ motion to
reconsider summary judgment.
We review a trial court’s ruling on a motion to compel discovery under an
abuse-of-discretion standard. See Johnson v. Davis, 178 S.W.3d 230, 242 (Tex.
App.—Houston [14th Dist.] 2005, pet. denied). Trial courts have broad discretion
in matters of discovery. See id. We should reverse a trial court’s ruling on a
motion to compel only when the court acts in an arbitrary and unreasonable
manner, without reference to any guiding principles. Shanley v. First Horizon
Home Loan Corp., No. 14-07-01023-CV, 2009 WL 4573582, at *3 (Tex. App.—
8
The record does not disclose a ruling on the Elmgrens’ second motion to compel.
24
Houston [14th Dist.] Dec. 8, 2009, no pet.) (mem. op.).
The Elmgrens fail to show how the trial court abused its discretion by
denying their first motion to compel or by failing to rule on, or implicitly denying,9
their second motion. The Elmgrens discovered who served as the Olefins #2
“process engineer” at the time of Joe’s accident, deposed Dworaczyk, and utilized
his testimony to defend against summary judgment. We conclude that the trial
court did not abuse its discretion. See id. at *4.
We overrule the Elmgrens’ fifth issue.
IV. CONCLUSION
Based on the foregoing, we affirm in part and reverse and remand in part the
trial court’s summary judgment. With regard to the Elmgrens’ negligence claims
based on a premises-liability theory, we (1) affirm the trial court’s granting of
summary judgment pursuant to chapter 95 as to Ineos and (2) reverse the court’s
granting of summary judgment pursuant to chapter 95 as to Pavlovsky. With
regard to the Elmgrens’ negligence claims based on negligent-activity and
negligent-undertaking theories, we reverse the trial court’s granting of summary
judgment. In all other respects, we affirm the summary judgment. We remand the
case for proceedings consistent with this opinion.
/s/ Marc W. Brown
Justice
Panel consists of Justices Boyce, Christopher, and Brown.
9
See Shanley, 2009 WL 4573582, at *3 n.4 (finding it arguable that rendition of
summary judgment in favor of defendants implicitly overruled plaintiffs’ motion to compel
discovery and thus preserved error).
25