George N. Ashabranner, Jr v. Hydrochem Industrial Services, Inc. and Phillips Petroleum Company ( 2004 )

Affirmed and Memorandum Opinion filed March 30, 2004

Affirmed and Memorandum Opinion filed March 30, 2004.

In The

Fourteenth Court of Appeals

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NO. 14-03-00762-CV

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GEORGE N. ASHABRANNER, JR., Appellant

V.

HYDROCHEM INDUSTRIAL SERVICES, INC. and PHILLIPS PETROLEUM COMPANY, Appellees

On Appeal from the 164^th District Court

Harris County, Texas

Trial Court Cause No. 00-14691

M E M O R A N D U M   O P I N I O N

George N. Ashabranner, Jr. (AAshabranner@) appeals from the trial court=s granting of a no-evidence summary judgment motion in favor of appellee, Phillips Petroleum Company (APhillips@).  Ashabranner brought suit against HydroChem Industrial Services, Inc. (AHydroChem@) and Phillips after tripping over a submerged gasket at a Phillips-owned refinerry.  Phillips filed a no-evidence summary judgment motion based on section 95.003 of the Civil Practice and Remedies Code.  Summary judgment was granted in favor of Phillips, and Ashabranner settled his suit with HydroChem.  HydroChem has not perfected an appeal.  We affirm.

Ashabranner was an employee of Serv-Tech, Inc. (AServ-Tech@).  Phillips employed Serv-Tech to perform work at its refinery.  The parties executed a contract that governed their relationship. Under the terms of the contract, Serv-Tech performed all work as an independent contractor and was Asolely responsible for the work safety and industrial hygiene of its agents and employees.@  Likewise, the contract required that Serv-Tech and its employees comply with safety regulations and report accidents or Anear misses@ to Phillips.  Phillips reserved the right to inspect Serv-Tech=s work product.   

On the day of the accident, Ashabranner was working with another Serv-Tech employee on a heat exchanger to replace a gasket.  Gasket replacement is part of a larger turnaround process at the refinery where worn equipment is replaced.  Also part of the turnaround process is Ahydroblasting,@ which is a high pressure wash of refinery equipment. HydroChem, another independent contractor, was hydroblasting in the area where Ashabranner was working. Presumably, it was the hydroblasting that created a layer of sludge in the area where Ashabranner was working. Ashabranner subsequently tripped over an old gasket hidden in the sludge.    

A party may move for a Ano‑evidence@ summary judgment.  See Tex. R. Civ. P.  166a(I). Such a motion asserts there is no evidence of one or more essential elements of claims upon which the opposing party would have the burden of proof at trial.  See id.;  McCombs v. Children's Med. Ctr., 1 S.W.3d 256, 258 (Tex. App.CTexarkana 1999, no pet.).  Unlike a movant for traditional summary judgment, a movant for a no‑evidence summary judgment does not bear the burden of establishing a right to judgment by proving each claim or defense.  See Holmstrom v. Lee, 26 S.W.3d 526, 530 (Tex. App.CAustin 2000, no pet.).   A no‑evidence summary judgment is essentially a pretrial directed verdict, to which we apply the same legal sufficiency standard of review.  See id.;  Moore v. K Mart Corp., 981 S.W.2d 266, 269 (Tex. App.CSan Antonio 1998, pet. denied).  A no‑evidence summary judgment is properly granted if the nonmovant fails to produce more than a scintilla of probative evidence raising a genuine issue of fact as to an essential element of a claim on which the nonmovant would have the burden of proof at trial.  See Tex. R. Civ. P. 166a(I);  Holmstrom, 26 S.W.3d at 530.

Generally, a landowner is not liable for injuries arising out of an independent contractor=s actions.  See Redinger v. Living, 689 S.W.2d 415, 418 (Tex. 1985).  However, a landowner is susceptible to liability if he exercises some control over the manner in which the independent contractor=s work is performed.   See id. (adopting Restatement (Second) of Torts ' 414 (1965)).  Two requirements under section 95.003 of the Civil Practice and Remedies Code must be met before a landowner can be held liable for injuries sustained by an independent contractor=s employee.  First, the landowner must have more than a general right to order workers to stop or start, a right to inspect, or right to receive reports.  Tex. Civ. Prac. & Rem. Code Ann. ' 95.003(1) (Vernon 1997); see also Koch Refining Co. v. Chapa, 11 S.W.3d 153, 155 (Tex. 1999) (per curiam) (citing Restatement (Second) of Torts ' 414 (1965)).  Second, the land owner must have Aactual knowledge of the danger or condition resulting in the personal injury . . . and failed to adequately warn.@  Tex. Civ. Prac. & Rem. Code Ann. ' 95.003 (Vernon 1997); see also Fisher v. Lee & Chang P=ship, 16 S.W.3d 198, 202 (Tex. App.CHouston [1st Dist.] 2000, pet. denied). 

After reviewing the summary judgment record, we agree there is no evidence to show control or actual knowledge as required by section 95.003.  We address the issue of control first.  Control may be proven in two ways: (1) a contractual right of control or (2) an exercise of actual control.  Dow Chem. Co. v. Bright, 89 S.W.3d 602, 606 (Tex. 2002). A right of control is contingent upon the ability to control the means, methods, or details of Ashabranner=s work.  Id. The question as to whether or not there is a contractual right of control is generally a question of law for the court.  Id.

The contract between Phillips and Serv-Tech does not afford Phillips a right of control sufficient to make Phillips liable for Ashabranner=s injuries under section 95.003.  The contract provides:

INDEPENDENT CONTRACTOR RELATIONSHIP

[Serv-Tech] shall perform all work as an independent contractor.  Neither [Serv-Tech] nor its agents or employees shall be the agents or employees of [Phillips]. [Serv-Tech] shall be fully responsible for and shall have exclusive direction and control of its agents, employees, and subcontractors and shall control the manner and method of carrying out operations.

Clearly, no right of control is created through the contract.  However, Ashabranner argues that Phillips=s work-permit system afforded actual control.   

The Texas Supreme Court addressed the effect of safety regulations in Hoechst-Celanese Corp. v. Mendez, 967 S.W.2d 354 (Tex. 1998).  There the court explained that a landowner will not be susceptible to liability for promulgating safety regulations and requiring compliance with such regulations.  Id. at 357-58.  Promoting safety guidelines does Anot impose an unqualified duty of care@ on Phillips to ensure that Serv-Tech employees act safely.  Id.  A landowner has a narrow duty to ensure that its safety requirements and procedures do not Aunreasonably increase, rather than decrease, the probability and severity of injury.@  Id. at 358.  

The supreme court revisited the issue of safety regulations in Dow Chemical Co. v. Bright by addressing the effect of safe-work permits.  89 S.W.3d at 607-09.  The defendant=s policies required its safety representative to conduct an on-site inspection and pre-job safety conference with the independent contractor=s employees.  Id. at 608.   In his suit for personal injuries, the plaintiff argued that the defendant landowner should have refused to issue a safe-work permit.  Id.  In refusing to assign liability on the basis of the safe-work permit system, the supreme court stated, AThe fact that [defendant] implemented a safe work permit system as an attempt at creating a safer construction site did not unreasonably increase the probability and severity of [plaintiff=s injury].@  Id. Moreover, the work-permit system was not evidence that the defendant controlled the manner and means of plaintiff=s work. Id.  The right afforded to the defendant under the work-permit system was the right to allow work to begin.  Id. at 609.

We follow the supreme court=s analysis in rejecting Ashabranner=s claims implicating Phillips=s work-permit system.  The crux of Ashabranner=s argument is that Phillips should never have issued safe work permits in areas containing sludge because of the danger that debris might be concealed.^[1]  However, this is no evidence that Phillips was controlling the manner and means of the work of Serv-Tech employees.  See id. at 608.  Following Dow Chemical, the work-permit authorization merely provides for the right to order the commencement of work.  Id. at 609.  Even if we were to indulge Ashabranner in his argument that the work-permit system afforded Phillips a right of control, there is no evidence that the permit system increased the risk of harm to Serv-Tech employees.  For example, this is not an instance where the defendant approved or prescribed a particular type of safety device that was the cause of plaintiff=s injuries.  See Lee Lewis Constr., Inc. v. Harrison, 70 S.W.3d 778, 784 (Tex. 2001) (describing a situation where the defendant had approved the fall-protection system that ultimately failed). 

Likewise, we agree with Phillips that there was no evidence that Phillips had actual knowledge of the gasket that Ashabranner tripped over.  See Fisher, 16 S.W.3d at 202.  Ashabranner testified via affidavit that neither he nor his partner removed the old gasket.  The evidence in the record establishes that the gasket would not have been removed by a Phillips=s employeeCthe gasket would have been removed by either HydroChem or Serv-Tech employees.  Before the new gasket was fitted, the work site was inspected by a Phillips=s employee.  Case Duggan, the equipment reliability inspector, could not recall whether there was sludge at the heat exchanger at issue, could not recall actually seeing the removed gasket, and did not trip over the old gasket.  Duggan testified that under the refinery=s housekeeping rules it was the responsibility of whoever removed the gasket to eliminate the tripping hazard. 

Because there is no evidence that Phillips exercised control over Serv-Tech employees or had actual knowledge of the gasket as required under section 95.003, the appellant=s sole issue is overruled.  Accordingly, the trial court=s judgment is affirmed. 

/s/      J. Harvey Hudson

Justice

Judgment rendered and Memorandum Opinion filed March 30, 2004.

Panel consists of Justices Yates, Anderson, and Hudson.

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^[1]  Before workers can gain access to a particular area of the refinery, the lead worker goes to a Astillman@ to request a safe work checklist.  The Phillips=s operator goes through a  safe checklist assigning a Ayes,@ Ano,@ or Anot applicable@ to each element on the list.  If there is a Ano,@ special permission must be granted before workers will be allowed access. Once approved,  a member of Phillips=s operational department does a Awalk-through@ to the area to identify the equipment to be worked on.  Sometimes, the contractor would be allowed to go to the site to see what work needed to be done.  However, no work could begin until Phillips gave final approval.