Michael Torres and Enedina Torres v. Pasadena Refining System, Inc. and National Plant Services, LLC ( 2022 )

Opinion issued December 15, 2022
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-18-00638-CV
———————————
MICHAEL TORRES AND ENEDINA TORRES, Appellants
V.
PASADENA REFINING SYSTEMS, INC. AND NATIONAL PLANT
SERVICES, LLC, Appellees
On Appeal from the 269th District Court
Harris County, Texas
Trial Court Case No. 2016-27805
OPINION ON EN BANC RECONSIDERATION
Appellee, Pasadena Refining Systems, Inc. (“PRSI”), has filed a motion for
en banc reconsideration of our May 10, 2022 opinion and judgment. See TEX. R.
APP. P. 49.5. A majority of the Court has voted to grant en banc reconsideration.
We withdraw our opinion of May 10, 2022, vacate our judgment of the same date,
and issue this opinion and judgment in their stead.
Appellant, Michael Torres (“Torres”), was injured at a refinery owned by
PRSI when he fell from a scaffold constructed by appellee, National Plant Services,
LLC (“NPS”). Torres and his wife, appellant Enedina Torres, brought premises
liability claims against PRSI and NPS. PRSI and NPS filed motions for summary
judgment, which the trial court granted, ordering that appellants take nothing by their
claims. In six issues, appellants contend that the trial court erred in rendering
summary judgment because they presented evidence raising issues of material fact.
We affirm in part and reverse and remand in part.
Background
On December 22, 2014, PRSI retained an independent contractor, 3-J Ryan,
Inc. (“Ryan”),1 to perform turnaround work at PRSI’s refinery in Pasadena, Texas.
Ryan then hired NPS to construct the scaffolding necessary to perform the work.
In the weeks preceding the incident at issue, heavy rains fell at the PRSI
facility. On the morning of March 18, 2015, Torres, a Ryan employee who had been
working as a welder on the turnaround project for approximately 80 days, waited in
his truck for the rain to stop and for direction regarding whether the day’s work
would proceed.
1
Ryan is not a party to this appeal.
2
At around 11:30 a.m., Torres learned that work at the facility would proceed
after lunch. At 2:00 p.m., a Ryan pipefitter, “Chavez,” asked Torres to climb a
scaffold with him to perform a “hot tap.” The procedure, which involved creating a
connection into a pressurized system, was considered dangerous. Torres noted that
Ryan had “safety men” on site, had safety meetings at the start of each shift, and had
supplied the safety harness that Torres wore. PRSI also had personnel on site.
At some point that Torres did not see, Chavez ascended the scaffold ladder
and entered the “hooch”—an area on the scaffold platform lined with fire blankets
and covered with a tarp to protect the work from wind and contamination. Although
Torres, who stood in mud at the base of the ladder, saw that the tarp was draping
over and partially blocking the entry gate to the scaffold platform, he noted that it
did not look unusually dangerous. Rather, it looked like a “normal hooch.” And,
the scaffold builder, NPS, who inspected the scaffolds each day, had safety-tagged
the scaffold in a manner indicating that it was safe for use. Torres expected to “go
up and move the tarp and go in and latch [his lanyard] and go to work.”
When Torres ascended the ladder and arrived at the entry gate of the scaffold
platform, he “noticed that the [gate] hinge was on the right and not the left,” which
required him to lean over to the left side of the gate to latch his safety lanyard. He
noted that he could not “latch on where the hinge [was] because [he] would have
gotten entangled.” In an effort to locate a space in which to attach his lanyard, he
3
tried to “throw [the tarp] over,” not realizing that it was tightly secured underneath.
The tension on the tarp “pulled” Torres to the left, and his muddy feet slipped off
the ladder. Torres fell 13 feet to the mud and concrete below, fracturing his neck,
an arm, and a rib and dislocating his shoulder.
Torres attributed his fall and injuries to his muddy feet, the placement of the
access gate, the tarp impeding his access to the scaffold platform, and a lack of
proper safety equipment, i.e., a self-retracting lifeline, or “yoyo,”2 or ladder cage on
the scaffold.
Appellants sued PRSI and the scaffold builder and inspector, NPS. Appellants
brought a premises liability claim3 against PRSI, alleging that PRSI owed certain
duties to Torres, which it breached, in:
a. controlling the placement of defective scaffolding equipment on
PRSI’s premises;
b. failing to follow its own policies and procedures requiring that
its employees ensure that a [] self-retracting lifeline be placed on
the scaffold;
2
Ryan safety supervisor, Lance Harp, testified that a “yoyo” is “similar to a seat belt,
whereas you have a body harness on and then the yoyo’s attached to the top side of
the scaffold or onto a structure adjacent to, has a cable inside of it with a spring
mechanism.” And, “[a]s you’re climbing the ladder, if something happens and you
slip, and fall, the yoyo will act like a seat belt and grab you. It won’t let you fall.”
Ryan safety manager, Craig Houghton, testified that a safety “lanyard,” unlike a
yoyo, is simply a “static line with shock absorbing capabilities.”
3
Although appellants also brought negligence claims against PRSI based on the same
allegations, appellants, in their summary-judgment response, “agree[d] that their
case sound[ed] in premises liability and not ordinary negligence.”
4
c. requiring that [Torres] and his employer perform work in an area
of PRSI’s premises that was known to PRSI to be unsafe;
d. failing to remedy or warn of a known, unreasonably dangerous
condition on its premises;
....
f. fail[ing] to provide adequate safety equipment;
....
j. recklessly failing to ensure the safety of equipment for use;
....
l. recklessly disregarding the safety of [Torres]; [and]
m. failing to maintain a reasonably safe premises[.]
Appellants also asserted a premises liability claim4 against NPS, alleging that
NPS owed certain duties to Torres, which it breached, in:
a. erecting unsafe scaffolding;
b. failing to ensure that the scaffolding it erected contained proper
fall protection;
c. failing to ensure that the scaffolding could be used safely;
d. failing to plan and provide for safe ingress and egress to the
scaffold platform;
e. certifying that the scaffolding was safe for use, when it in fact
was not;
f. fail[ing] to properly train its employees;
g. fail[ing] to provide adequate safety equipment;
4
Although appellants, in their petition, titled their claims against NPS as “negligence,
gross negligence, and negligence per se,” appellants, in their summary-judgment
response, “agree[d] that their case sound[ed] in premises liability and not ordinary
negligence.” NPS asserted, however, that appellants failed to actually assert a
premises liability claim in their petition. As discussed below, we conclude that
appellants’ allegations against NPS, in substance, asserted a premises liability claim.
5
h. failing to fix dangerous conditions and/or warn about dangerous
conditions;
....
k. recklessly failing to ensure the safety of its equipment for use;
l. fail[ing] to take adequate precautionary measures; [and]
m. recklessly disregarding the safety of [Torres][.]
Torres sought damages for medical expenses, pain and suffering, physical
impairment, mental anguish, and lost earnings. Enedina sought damages for lost
financial support, affection, companionship, society, and consortium.
PRSI filed a combined no-evidence and traditional motion for summary
judgment. PRSI asserted, as pertinent here, that Torres was an employee of Ryan,
who was an independent contractor under the December 22, 2014 “Standard Terms
and Conditions for General Services Between [PRSI] and [Ryan] for Mechanical
Flare Gas Recovery Unit System” (“Contract”); that Ryan controlled the operative
details of its work; that PRSI did not retain contractual control or exercise actual
control over the details of the work; and that, as a premises owner, PRSI did not owe
Torres a duty to ensure that Ryan safely performed its work.
PRSI asserted that the terms of the Contract, discussed below, expressly
disclaimed any contractual control on the part of PRSI over the operative details of
Ryan’s work. PRSI further asserted that the testimony established that Ryan, and
not PRSI, exercised actual control over the operative details of Torres’s work.
Namely, Torres testified in his deposition that Ryan personnel controlled his work
6
at the PRSI facility, that Ryan directed Torres where to work and when, that Ryan
warned him about the hazards, and that it was a Ryan employee, Chavez, who had
directed Torres to climb the scaffold and assist with the hot tap on the day of the fall.
Further, a Ryan supervisor, Lance Harp, testified that PRSI’s role was limited to start
and stop authority, inspection of progress, and general safety protocols.
In their response to PRSI’s motion, appellants argued, as pertinent here, that
PRSI owed Torres a duty to ensure that Ryan performed its work safely because the
evidence established that PRSI retained contractual control and exercised actual
control over details of the work. Specifically, the Contract, as discussed below,
“establishe[d] PRSI’s retention of contractual control over the safety of the work.”
And, the evidence showed that “PRSI was actively engaged in directing, supervising,
and controlling the details of the work that Torres and [Ryan] were performing.”
NPS also filed a combined no-evidence and traditional motion for summary
judgment. NPS asserted that it was entitled to judgment because appellants’
allegations constituted an assertion of premises liability, but they failed to plead a
premises liability claim. Rather, they asserted negligence claims. NPS also argued
that it had no duty to Torres because there was no evidence that it owned or
controlled the premises or that it controlled the details of Torres’s work. And, there
was no evidence that it breached a duty or that such breach caused Torres’s damages.
NPS asserted that its evidence showed that its scaffolding was compliant with safety
7
requirements and asserted that it had no duty to provide fall protection because Ryan
had declined it.
In their response to NPS’s motion, appellants argued that the evidence
demonstrated that NPS, a premises occupier, exercised actual control over the
scaffold at issue and thus it owed Torres a duty to keep it safe. Only NPS was
authorized to construct, modify, and inspect its scaffolds. And, NPS incorrectly
installed the platform access gate, which required Torres to reach horizontally from
the ladder to transition to the platform. In addition, NPS performed daily safety
inspections of the scaffold at issue and had, on the day of Torres’s fall, tagged the
scaffold in a manner authorizing its use. Appellants asserted that NPS failed to take
into account the access issues, i.e., the gate and tarp, and that the scaffold lacked a
self-retractable lifeline, which PRSI’s and NPS’s policies required. Appellants
asserted that NPS’s breaches of duty were the proximate cause of Torres’s injuries.
The trial court rendered summary judgment for PRSI and NPS, and ordered
that appellants take nothing on their claims. The trial court denied appellants’
motion for new trial.
Summary Judgment
In their first and sixth issues, appellants generally challenge the trial court’s
summary judgments in favor of PRSI and NPS. They assert that the evidence raises
fact issues as to the elements of each of their claims. In their second issue, appellants
8
assert that the evidence raises fact issues as to the duty element of their claim against
PRSI. In their third issue, appellants assert that the evidence raises fact issues as to
the duty element of their claim against NPS. In their fourth issue, appellants assert,
with respect to their claims against both PRSI and NPS, that the trial court erred in
failing to find that the “necessary use” exception applies. In their fifth issue,
appellants assert that PRSI and NPS owed Torres a duty under a theory of negligent
undertaking.
A. Standard of Review
We review a trial court’s summary judgment de novo. Valence Operating Co.
v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). In conducting our review, we take as
true all evidence favorable to the non-movant, and we indulge every reasonable
inference and resolve any doubts in the non-movant’s favor. Id. If a trial court
grants summary judgment without specifying the grounds for granting the motion,
we must uphold the trial court’s judgment if any of the asserted grounds are
meritorious. Beverick v. Koch Power, Inc., 186 S.W.3d 145, 148 (Tex. App.—
Houston [1st Dist.] 2005, pet. denied).
A party may combine in a single motion a request for summary judgment
under the no-evidence and traditional standards. Binur v. Jacobo, 135 S.W.3d 646,
650–51 (Tex. 2004); see also TEX. R. CIV. P. 166a(c), (i). When a party seeks
summary judgment on both grounds and the trial court’s order does not specify its
9
reasons for granting summary judgment, we first review the propriety of the
summary judgment under the no-evidence standard. See Ford Motor Co. v.
Ridgway, 135 S.W.3d 598, 600 (Tex. 2004); see also TEX. R. CIV. P. 166a(i). If we
conclude that the trial court did not err in granting summary judgment under the
no-evidence standard, we need not reach the issue of whether the trial court erred in
granting summary judgment under the traditional standard. See Ridgway, 135
S.W.3d at 600; see also TEX. R. CIV. P. 166a(c).
To prevail on a motion for no-evidence summary judgment, the movant must
establish that there is no evidence to support an essential element of the
non-movant’s claim on which the non-movant would have the burden of proof at
trial. See TEX. R. CIV. P. 166a(i); Hahn v. Love, 321 S.W.3d 517, 523–24 (Tex.
App.—Houston [1st Dist.] 2009, pet. denied). The burden then shifts to the
non-movant to present evidence raising a genuine issue of material fact as to each of
the elements challenged in the motion. Mack Trucks, Inc. v. Tamez, 206 S.W.3d
572, 582 (Tex. 2006). A no-evidence summary judgment may not be granted if the
non-movant brings forth more than a scintilla of evidence to raise a genuine issue of
material fact on the challenged elements. See Ridgway, 135 S.W.3d at 600. More
than a scintilla of evidence exists when the evidence “rises to a level that would
enable reasonable and fair-minded people to differ in their conclusions.” Merrell
Dow Pharm., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997).
10
In a traditional motion for summary judgment, the movant has the burden to
establish that no genuine issue of material fact exists and that it is entitled to
judgment as a matter of law. See TEX. R. CIV. P. 166a(c); KPMG Peat Marwick v.
Harrison Cnty. Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex. 1999). When a
defendant moves for a traditional summary judgment, it must either: (1) conclusively
negate at least one essential element of the plaintiff’s cause of action or
(2) conclusively establish each essential element of an affirmative defense. See
Cathey v. Booth, 900 S.W.2d 339, 341 (Tex. 1995). If the movant meets its burden,
the burden shifts to the non-movant to raise a genuine issue of material fact
precluding summary judgment. Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197
(Tex. 1995). Evidence raises a genuine issue of fact if reasonable jurors could differ
in their conclusions in light of all of the summary-judgment evidence. Goodyear
Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, 755 (Tex. 2007).
B. Applicable Legal Principles
“[A] person injured on another’s property may have either a negligence claim
or a premises-liability claim against the property owner.” Occidental Chem. Corp.
v. Jenkins, 478 S.W.3d 640, 644 (Tex. 2016). “Negligence and premises liability
claims . . . are separate and distinct theories of recovery, requiring plaintiffs to prove
different, albeit similar, elements.” United Scaffolding, Inc. v. Levine, 537 S.W.3d
463, 471 (Tex. 2017). In a negligence claim, a plaintiff must prove the existence of
11
a legal duty, a breach of that duty, and damages proximately caused by the breach.
Gharda USA, Inc. v. Control Sols., Inc., 464 S.W.3d 338, 352 (Tex. 2015). In a
premises liability claim, a plaintiff must prove: (1) that the defendant had actual or
constructive knowledge of some condition on the premises; (2) that the condition
posed an unreasonable risk of harm; (3) that the defendant failed to exercise
reasonable care to reduce or eliminate the risk; and (4) that the defendant’s failure
proximately caused the plaintiff’s injuries. United Scaffolding, 537 S.W.3d at 471.
When a plaintiff alleges injury as a result of a physical condition or defect on the
premises, premises liability principles apply. Id. at 472. “[S]lip/trip-and-fall cases
have consistently been treated as premises defect causes of action.” Id. (holding
alleged injury resulting from fall through scaffolding platform that was not properly
secured constituted premises liability claim).
The threshold inquiry in a premises liability claim is whether the defendant
owed a duty to the injured person. Hillis v. McCall, 602 S.W.3d 436, 440 (Tex.
2020). “The existence of a duty is a question of law for the court to decide.” Id. The
duty owed depends upon the role of the person injured on the premises. Id.Here, the duties owed by PRSI and NPS to Torres, if any, are determined by
the law governing a premises owner’s or general contractor’s duty to an independent
12
contractor’s employee.5 See Dow Chem. Co. v. Bright, 89 S.W.3d 602, 605–06 (Tex.
2002) (citing Koch Ref. Co. v. Chapa, 11 S.W.3d 153, 155 n.1 (Tex. 1999) (“A
general contractor owes the same duty as a premises owner to an independent
contractor’s employee. Thus, cases considering the duties of premises owners and
general contractors are used interchangeably.”)).
In this context, the duty owed depends upon the type of premises defect
alleged. “There are two types of premises defects for which an independent
contractor’s employee may seek to hold the general contractor liable.” Clayton W.
Williams, Jr., Inc. v. Olivo, 952 S.W.2d 523, 527 (Tex. 1997). The first category,
pre-existing defects, includes those defects or conditions that exist on a premises
when a business invitee enters for business purposes. Id. “Only concealed
hazards—dangerous in their own right and independent of action by another—that
are in existence when the independent contractor enters the premises fall into this
first []category.” Coastal Marine Serv. of Tex., Inc. v. Lawrence, 988 S.W.2d 223,
5
It is undisputed that PRSI is a premises owner. With respect to NPS, an independent
contractor or subcontractor on a construction site, who is in control of the premises,
is charged with the same duty as an owner or possessor. Rendleman v. Clarke, 909
S.W.2d 56, 60 (Tex. App.—Houston [14th Dist.] 1995, writ dism’d) (citing
RESTATEMENT (SECOND) OF TORTS § 384 cmt. d (1965) (subcontractor subject to
liability for harm done by work entrusted to him)).
13
225 (Tex. 1999); see, e.g., Smith v. Henger, 226 S.W.2d 425, 430–31 (Tex. 1950)
(open shaft on jobsite).6
The second category includes defects or conditions that are created by or arise
from the independent contractor’s (or its injured employee’s) work activity. Olivo,
952 S.W.2d at 527; see Dow Chem., 89 S.W.3d at 606.
Here, appellants alleged that Torres, a Ryan employee, was injured on PRSI’s
premises when he fell from defective scaffolding constructed by Ryan subcontractor,
NPS. It is undisputed that the scaffold at issue was not on the PRSI premises when
Ryan entered. Rather, PRSI hired Ryan to perform the work, and then Ryan retained
NPS to build the scaffolding for the work. Thus, appellants’ claims fall under the
second category. See Olivo, 952 S.W.2d at 527; see Dow Chem., 89 S.W.3d at 606.
6
With respect to pre-existing defects, a premises owner “has a duty to inspect the
premises and warn the independent contractor/invitee of dangerous conditions that
are not open and obvious and that the owner knows or should have known exist.”
Coastal Marine Serv. of Tex., Inc. v. Lawrence, 988 S.W.2d 223, 225 (Tex. 1999).
The rationale is that the owner is in a “superior position to know of or discover
hidden dangerous conditions on his premises.” Griffin v. Shell Oil Co., 401 S.W.3d
150, 159 (Tex. App.—Houston [1st Dist.] 2011, pet. denied) (quoting Shell Chem.
Co. v. Lamb, 493 S.W.2d 742, 746 (Tex. 1973)). With respect to pre-existing
conditions that are open and obvious or known to the invitee, however, the general
rule is that an owner has no duty to warn because the law presumes that the invitee
will take reasonable measures to protect himself. Austin v. Kroger Tex., L.P., 465
S.W.3d 193, 203 (Tex. 2015). But, a “necessary-use” exception may apply if (1) it
was necessary for the invitee to use the portion of the premises with the condition
and (2) the owner should have anticipated that the invitee was unable to avoid the
risks despite his awareness. Id. at 207.
14
Under the second category, when a dangerous condition arises from an
independent contractor’s work, the premises owner or general contractor “ordinarily
has no duty to warn the independent contractor’s employees” of the condition.
Olivo, 952 S.W.2d at 527. “The rationale for this rule is that a general contractor
normally has no duty to ensure that an independent contractor performs its work in
a safe manner.” Id.
In 1985, the supreme court recognized a limited exception. In Redinger v.
Living, Inc., the court held that if a general contractor exercises “some control” over
an independent contractor’s work, a duty arises to exercise reasonable care in
supervising the activity. 689 S.W.2d 415, 418 (Tex. 1985). The court adopted
Restatement (Second) of Torts, section 414, which states:
One who entrusts work to an independent contractor, but who retains
the control of any part of the work, is subject to liability for physical
harm to others for whose safety the [premises owner] owes a duty to
exercise reasonable care, which is caused by his failure to exercise his
control with reasonable care.
Id. (quoting RESTATEMENT (SECOND) OF TORTS § 414 (1977)). Since Redinger,
however, the supreme court has expressly limited the duty that arises on the part of
a premises owner or general contractor.
In Koch Refining, the supreme court noted: “Every premises owner must have
some latitude to tell its independent contractors what to do, in general terms, and
may do so without becoming subject to liability.” 11 S.W.3d at 156. The court noted
15
that, in Redinger, it adopted only a “limited-duty rule” and that the comments to
section 414 state that:
[i]n order for the rule stated in this Section to apply, the [premises
owner] must have retained at least some degree of control over the
manner in which the work is done. It is not enough that he has merely
a general right to order the work stopped or resumed, to inspect its
progress or to receive reports. . . .
Id. at 155 (quoting RESTATEMENT (SECOND) OF TORTS § 414 cmt. c).
In Dow Chemical, the supreme court held that, for a duty to arise, a premises
owner must have retained the right to control the “operative details,” that is, the
“means, methods, or details,” of the independent contractor’s work. 89 S.W.3d at
606, 608; see, e.g., Redinger, 689 S.W.2d at 418 (imposing duty on general
contractor who was on worksite and exercised control over work by issuing on-site
orders directing means and method that caused plaintiff’s injury). In addition, the
control “must relate to the injury.” Dow Chem., 89 S.W.3d at 606.
When the injury arises from an alleged failure by the premises owner to
maintain a safe workplace, the inquiry focuses on whether the premises owner
retained control over the condition or activity that caused the injury. See United
Scaffolding, 537 S.W.3d at 479 (holding that “relevant inquiry” was defendant’s
right of control over work site’s scaffold and subsequent responsibility to warn about
or remedy dangerous condition thereon and that court of appeals erred in expanding
scope of inquiry to consider control over general refinery operations); Lee Lewis
16
Constr., Inc. v. Harrison, 70 S.W.3d 778, 783 (Tex. 2001) (considering defendant’s
control over fall-protection systems used by independent contractor’s employees).
A premises owner or general contractor who requires that an independent
contractor observe workplace safety guidelines does not incur an unqualified duty
to ensure the safety of the independent contractor’s employees. Hoechst-Celanese
Corp. v. Mendez, 967 S.W.2d 354, 357–58 (Tex. 1998). Notably, “safety
requirements give rise to a narrow duty of care.” Id. at 356. That is, a premises
owner or general contractor who “promulgates mandatory safety requirements and
procedures owes only a narrow duty to ensure that those requirements and
procedures do not ‘unreasonably increase, rather than decrease, the probability and
severity of injury.’” JLB Builders, L.L.C. v. Hernandez, 622 S.W.3d 860, 867 (Tex.
2021) (quoting Mendez, 967 S.W.3d at 358). Further, “requiring compliance with
safety procedures does not give rise to a duty to an independent contractor’s
employees so long as those procedures do not unreasonably increase, rather than
decrease, the probability and severity of injury.” Id. at 869 (emphasis added, internal
quotations omitted).
C. Summary Judgment for PRSI
In their second issue, appellants argue that the evidence raised fact issues as
to the duty element of their premises liability claim against PRSI because it showed
that PRSI retained or exercised control over the operative details of Ryan’s work.
17
We consider whether appellants presented evidence that PRSI retained or
exercised control over the scaffold at issue and over Ryan’s employees’ use of fall-
protection systems. See United Scaffolding, 537 S.W.3d at 479 (holding that
“relevant inquiry for determining what, if any, duties [were] owed” was defendant’s
“control over the scaffold itself”); Lee Lewis Const., 70 S.W.3d at 783 (holding that
issue presented was control over fall-protection systems used by independent
contractor’s employees). Such control may be established through: (a) evidence of
a contractual agreement in which PRSI expressly retained control over the “means,
methods, or details” of Ryan’s work, that is, over the scaffold itself or Ryan’s
employees’ use of fall-protection systems or (b) evidence that PRSI actually
exercised such control. See Dow Chem., 89 S.W.3d at 606.
In its no-evidence motion for summary judgment, PRSI argued that it was
entitled to judgment because there was no evidence that it (1) retained such
contractual control or (2) exercised such actual control. See TEX. R. CIV. P. 166a(i).
1. Contractual Control
Appellants assert that the terms of the Contract between PRSI and Ryan
establish PRSI’s retention of contractual control over the work. In support of their
assertion, they presented a copy of the Contract.
Our primary objective in construing a contract is to give effect to the parties’
intent. Pathfinder Oil & Gas, Inc. v. Great W. Drilling, Ltd., 574 S.W.3d 882, 888
18
(Tex. 2019). We interpret contract language according to its plain, ordinary, and
generally accepted meaning unless the contract directs otherwise. Id. We consider
the writing as a whole in an effort to harmonize and give effect to all the provisions
of the contract so that none will be rendered meaningless. Id. at 889. “Contract
terms cannot be viewed in isolation . . . because doing so distorts meaning.” Id.
“Consistent with our long-established precedent,” “[n]o one phrase, sentence, or
section [of a contract] should be isolated from its setting and considered apart from
the other provisions.” Id. (internal quotations omitted). Whether a contract grants a
right of control is a question of law for the court. Dow Chem. Co., 89 S.W.3d at
606.
Appellants assert that the provision in bold emphasis below, which we
consider in its context at Exhibit C to the Contract, “PRSI General HSE [Health,
Safety, and Environmental] Requirements,” establishes PRSI’s retention of
contractual control over the work:
[Ryan] shall be fully and completely responsible for managing all HSE
considerations associated with its performance of the work unless
specific direction is otherwise provided in writing by PRSI.
....
[Ryan] shall not allow an unsafe . . . condition or behavior over which
it has control to be conducted during performance of the work. When
such a condition or behavior is identified by [Ryan], the related activity
shall be discontinued until the condition or behavior has been
eliminated or mitigated. If [Ryan] does not have the ability to eliminate
or mitigate the condition or behavior, it shall immediately notify PRSI
in writing.
19
....
PRSI shall have the right, but not the obligation, to inspect the worksite
and associated work records and to interview personnel to ascertain that
[Ryan] is complying with the expectations and requirements of this
attachment.
Should [Ryan] fail to observe the requirements of this attachment, PRSI
shall have the right to stop the work performed by [Ryan] at the
worksite and to take the action necessary to resolve the condition with
all related costs of such action for [Ryan’s] account.
....
Stop Work or Suspension. The PRSI has the right to stop or suspend
the work of [Ryan] for any reason, including, but not limited to,
[Ryan’s] failure to comply with any of the safety and health
requirements either set forth in this Contract or incorporated by
reference.
Correction of Deficiencies. When the PRSI notifies [Ryan], either
verbally or in writing, that [Ryan] is not complying with a safety and
health requirement either set forth in this Contract or incorporated
by reference, [Ryan] shall correct the deficiency immediately.
....
B. Worksite Safety.
....
[Ryan] shall be responsible for initiating, maintaining and supervising
all safety precautions and programs in connection with performance of
the work. . . .
....
Personal Protective Equipment
....
[Ryan] shall provide and require all personnel to wear specialty
personal protective equipment as required by the task or specified on
the work permit (e.g., fall protection systems . . . ) . . . .
20
(Emphasis added.) Appellants assert that the bold emphasized language granting
PRSI a right to require Ryan to correct an unsafe work practice constituted retained
control over the operative details of Ryan’s work and therefore created a duty on the
part of PRSI to either warn Torres of the unsafe scaffolding or to make it safe.
Read as a whole, however, Exhibit C, which governs Health and Safety
requirements and “Worksite Safety,” expressly states that Ryan “shall be fully and
completely responsible for managing all HSE considerations associated with its
performance of the work” and “shall be responsible for initiating, maintaining and
supervising all safety precautions and programs in connection with performance of
the work.” (Emphasis added.) With respect to fall-protection systems, the Contract
expressly requires Ryan, not PRSI, to “provide and require all personnel to wear
specialty personal protective equipment as required by the task or specified on the
work permit (e.g., fall protection systems . . .).” (Emphasis added.)
Exhibit C provides that PRSI reserved a “right, but not the obligation,” to
inspect the worksite to ascertain whether Ryan was complying with the HSE
requirements, and PRSI reserved a “right” to stop the work. It is well established
that reserving a “general right to order the work stopped” or to inspect its progress
is not evidence of retained control. Dow Chem., 89 S.W.3d at 606–08 (“[I]t is not
enough that the premises owner has merely a general right to order the work
stopped.”); Koch Ref., 11 S.W.3d at 155; see also Gonzales v. Ramirez, 463 S.W.3d
21499, 506–07 (Tex. 2015) (“[A] possibility of control is not evidence of a ‘right to
control’ actually retained. . . .”); Ellwood Tex. Forge Corp. v. Jones, 214 S.W.3d
693, 702 (Tex. App.—Houston [14th Dist.] 2007, pet. denied) (holding right to
forbid independent contractor from working without fall protection did not impose
duty to ensure that independent contractor’s employees used fall protection);
Victoria Elec. Co-op, Inc. v. Williams, 100 S.W.3d 323, 330 (Tex. App.—San
Antonio 2002, pet. denied) (retaining “latitude to ‘inspect, test, and approve’ . . .
work to make sure it was complying with . . . safety requirements” did “not implicate
a right to control the details of the independent contractor’s work”). Imposing
liability on premises owners who retain a right to order the work stopped “would
deter [them] from setting even minimal safety standards.” Dow Chem., 89 S.W.3d
at 608.
Further, reading the Contract as a whole reflects that section 1.2 designates
Ryan as an “independent contractor” and makes it solely responsible for the
supervision, direction, and control of its employees and subcontractors. In addition,
section 1.2 expressly disclaims that PRSI retained any right to control the “manner
or method” of Ryan’s work, as follows:
1.2 INDEPENDENT CONTRACTOR. The Parties agree that
Contractor is and always shall be an independent contractor in the
performance of every part of this Contract. . . . PRSI shall not have the
right to control or direct the manner or method of the performance or
providing of the Services/Goods by [Ryan]. PRSI is interested only in
the results obtained and has only the general right of inspection and
22
supervision in order to secure the satisfactory completion of
Services/Goods.
(Emphasis added.)
In Dow Chemical, the Texas Supreme Court held that a contract with similar
terms did not, as a matter of law, impose a duty on the premises owner. 89 S.W.3d
at 607. There, the premises owner and general contractor, Dow, retained Gulf States
as an independent contractor, and Gulf States employed Bright as a carpenter. Id. at
605. While Bright was working on Dow’s premises, he was injured by falling pipe
put in place by another Gulf States employee. Id. After Bright sued Dow for
premises liability, the parties filed cross-motions for summary judgment on the duty
element of Bright’s claim. Id. Dow asserted that it had no duty to ensure the safety
of an independent contractor’s employee. Id. Bright asserted that Dow retained
contractual control over the work based on the following terms in their contract:
22.01. Safety—CONTRACTOR shall take all necessary precautions
for the safety of the employees on the work and shall comply with all
safety rules and regulations of DOW as set forth in the Safety and Loss
Prevention Manual for CONTRACTORS . . . .
....
30.01. Responsibilities—CONTRACTOR shall be an independent
contractor under this Contract and shall assume all of the rights,
obligations and liabilities, applicable to it as such independent
contractor hereunder and any provisions in this Contract which may
appear to give DOW the right to direct CONTRACTOR as to details of
doing the work herein covered or to exercise a measure of control over
the work shall be deemed to mean that CONTRACTOR shall follow
the desires of DOW in the results of the work only.
23
Id. at 606–07. Thus, the contract terms provided that Gulf States was an independent
contractor, required it to comply with safety regulations set by Dow, and expressly
disclaimed that Dow retained any right to control the details of the independent
contractor’s work. Id. The supreme court held that, as a matter of law, the contract
did not impose a duty on Dow because “Dow did not retain the right to control the
means, methods, or details of Bright’s work.” Id. at 607.
In JLB Builders, the supreme court considered a similar contract stating that
the independent contractor there was to perform as such and was solely responsible
for the supervision, direction, and control of its employees, “for the manner and
means of accomplishing the Work,” and “for initiating, maintaining and supervising
all safety precautions and programs in its Work.” 622 S.W.3d at 869. The contract
also similarly stated that the general contractor had “no authority to direct, supervise
or control the means, manner or method of construction of the Work.” Id. The
supreme court held that such provisions “clearly do not confer a right to control” and
that it saw “no indication that [the general contractor’s] supervisory control extended
to the means and methods of [the] work.” Id. at 869–70. The contract there also
required the independent contractor to comply with numerous safety procedures,
including a detailed “Fall Protection Plan” mandating safety harnesses. Id. at 869.
The court noted that “requiring compliance with safety procedures does not give rise
to a duty to an independent contractor’s employees so long as those procedures do
24
not unreasonably increase, rather than decrease, the probability and severity of
injury.” Id. (internal quotations omitted). And, the plaintiff did not explain how the
procedures unreasonably increased the probability and severity of injury. Id. The
supreme court held as a matter of law that the contract did not provide a basis for
imposing liability on the general contractor. Id. at 870.
Here, the Contract between PRSI and Ryan, like the contracts in Dow and
JLB, expressly disclaimed any right on the part of PRSI to control the “manner or
method” of Ryan’s work. See id. at 869; Dow Chem., 89 S.W.3d at 606–07. Also
similarly, the Contract expressly designated Ryan as an independent contractor and
made it solely responsible for the supervision, direction, and control of its employees
and subcontractors. See JLB, 622 S.W.3d at 869; Dow Chem., 89 S.W.3d at 606–
07. And, the Contract made Ryan “fully and completely responsible for managing
all HSE considerations associated with its performance of the work” and “for
initiating, maintaining and supervising all safety precautions.” (Emphasis added).
In addition, Ryan, not PRSI, was required to “provide and require all personnel to
wear specialty personal protective equipment . . . (e.g., fall protection systems . . .).”
(Emphasis added.) Because there is no evidence that PRSI retained control over the
“the means, methods, or details” of Ryan’s work, PRSI established as a matter of
law that it owed no duty to Torres to ensure the safe performance of the work. See
JLB Builders, 622 S.W.3d at 869–70; Dow Chem., 89 S.W.3d at 606–07.
25
Further, PRSI’s reservation of a “right, but not the obligation,” to inspect the
worksite and a “right” to stop the work are not evidence of retained control. See
Dow Chem., 89 S.W.3d at 607–08. The supreme court has expressly held that a
premises owner’s implementation of mandatory safety procedures in creating a safer
construction site “does not serve as evidence” that its independent contractors are
“not free to do the work in their own way and is not evidence that [the owner]
controlled the method of work or its operative details.” Id. at 608. “[R]equiring
compliance with safety procedures does not give rise to a duty to an independent
contractor’s employees so long as those procedures do not unreasonably increase,
rather than decrease, the probability and severity of injury.” JLB Builders, 622
S.W.3d at 869 (internal quotations omitted). There is no allegation in this case that
PRSI promulgated safety rules or requirements that increased the probability or
severity of Torres’s injury. See id.
We hold as a matter of law that the Contract did not provide a basis for
imposing a duty of care on PRSI to ensure the safe performance of Ryan’s or
Torres’s work. See id. at 870.
2. Actual Control
Appellants also argue that PRSI exercised actual control over the work
because PRSI was “actively engaged in directing, supervising, and controlling the
details of the work that Torres and [Ryan] were performing.”
26
In the absence of a contractual agreement, control may be established by
evidence that the premises owner actually exercised control over the manner in
which the independent contractor’s work was performed. Dow Chem., 89 S.W.3d
at 606–07. This inquiry focuses on whether appellants presented evidence that PRSI
exercised actual control over the safety of the scaffold at issue or Ryan’s employees’
use of fall-protection systems. See United Scaffolding, 537 S.W.3d at 479 (holding
relevant inquiry was defendant’s right to control scaffold and responsibility to warn
about or remedy dangerous condition thereon and that court of appeals erred in
expanding scope of inquiry to factors such as control over refinery operations); Lee
Lewis Constr., 70 S.W.3d at 783 (“[W]e must determine if [plaintiffs] presented
more than a scintilla of evidence that [the general contractor] exercised actual control
over safety, in particular, the fall-protection systems used by [the independent
contractor’s] employees.”) (emphasis added)).
In Ellwood Texas Forge, the court concluded that there was no evidence of
actual control. 214 S.W.3d at 704. There, Ellwood, a steel-foraging plant, hired PI,
an independent contractor, to replace an air conditioner. Id. at 695–96. Jones, an
employee of PI, was injured when he fell from a ladder during the work. Id. at 696.
Jones, who was not wearing fall-protection equipment at the time of his fall, sued
Ellwood. Id. Ellwood’s safety policies required independent contractors’ employees
working over six feet above ground to use fall-protection equipment, and provided
27
that Ellwood had a right to enforce its safety rules and stop the work. Id. at 701.
Before the work began, an Ellwood maintenance coordinator, Wegner, signed a safe
work permit intended to identify the specific jobs that PI was to perform and the
required safety equipment, but no fall-protection devices were listed. Id. at 696.
Wegner testified that he did not know that PI employees were working without fall
protection; Jones testified that Wegner was at the jobsite and was aware. Id.On appeal, Ellwood argued that there was no evidence that it exercised actual
control over the safety of the jobsite. See id. at 698, 701. Jones argued that Ellwood
had such control because it “had a right to forbid [PI] from working without fall
protection and to dictate what fall protection [PI] used.” Id. at 697–98. The court
held that “Ellwood’s right to forbid PI employees from doing their work in a
dangerous manner [was] insufficient to impose a duty on Ellwood to ensure that PI
and its employees followed Ellwood’s safety rules and regulations.” Id. at 698.
Instead, a premises owner assumes only a narrow duty to ensure that its rules or
requirements do not unreasonably increase the probability and severity of injury. Id.
at 702. Actual control is not demonstrated by having a “right to preclude work from
beginning in the first instance or stopping it after it has commenced” or by placing
a safety representative on site to observe the independent contractor’s work. Id.In support of their argument, appellants rely on Lee Lewis Construction, 70
S.W.3d 778. There, a hospital hired a general contractor, LLC, to remodel a building
28
tower. Id. at 782. LLC hired an independent contractor, KK Glass, to provide glass
work on the project. Id. While Harrison, a KK employee, was working on the
tower’s tenth floor, he fell and suffered fatal injuries. Id. It was undisputed that
Harrison was not using an independent lifeline that would have stopped his fall. Id.Harrison’s wife sued LLC. Id. The supreme court considered whether Harrison
presented evidence that LLC exercised actual control over safety, i.e., the fall-
protection systems used by KK employees. Id. at 783. The record showed that LLC’s
president assigned its job superintendent “the responsibility to routinely inspect the
ninth and tenth floor addition to the south tower to see to it that the subcontractors
and their employees properly utilized fall protection equipment.” Id. at 784. LLC’s
superintendent “personally witnessed and approved of the specific fall-protections
systems [KK] used” and “knew of and did not object to [KK] employees using a
bosun’s chair without an independent lifeline.”7 Id. The supreme court concluded
that this testimony constituted more than a scintilla of evidence of actual control over
the fall-protection systems on the jobsite. Id.In Dow Chemical, the supreme court examined Lee Lewis. As discussed
above, Dow retained Gulf States, an independent contractor, who employed Bright.
89 S.W.3d at 605. After Bright, while working on Dow’s premises, was injured by
7
A “bosun’s chair” is a “wooden board suspended from the roof by a rope.” Lee
Lewis Const., Inc. v. Harrison, 70 S.W.3d 778, 790 (Tex. 2001) (Hecht, C.J.,
concurring).
29
a falling pipe put in place by another Gulf States employee, Bright sued Dow. Id.With respect to actual control imposing a duty on Dow, Bright presented evidence
that Dow had conferences with Gulf States’ employees, performed on-site
inspections, maintained personnel on the work site, and retained a right to stop the
work. Id. at 607–09. The supreme court concluded that because there was no
evidence that Dow had approved how the pipe was secured or, knowing of its
dangerous condition, had instructed Bright to perform the work, Dow did not, as a
matter of law, exercise actual control. Id. at 609. The supreme court noted that it
had “never concluded that a [premises owner] actually exercised control of a
premises where . . . there was no prior knowledge of a dangerous condition and no
specific approval of any dangerous act.” Id. (emphasis added).
Here, appellants did not, in their summary-judgment response, point to
evidence that PRSI had prior knowledge of a dangerous condition with respect to
the safety of the scaffold or that it specifically approved a dangerous act. See id.
Even were we to consider evidence that appellants presented in support of other
arguments in their summary-judgment response, i.e., the testimony of PRSI safety
supervisor Elliott Johnson that PRSI knew that there was not a self-retracting lifeline
on the scaffold at issue, appellants did not direct the trial court to any evidence that
PRSI specifically approved a dangerous act, such as ordering Torres to utilize the
scaffold despite the lack of safe ingress or self-retracting lifeline. See id.
30
Thus, like the supreme court concluded in Dow, because appellants did not
present evidence that PRSI knew of a dangerous condition and yet specifically
approved a dangerous act, the instant case is distinguishable from Lee Lewis. See
id. at 609 (“Had the Dow safety representative actually approved how the pipe in
question was secured or instructed Bright to perform his work knowing of the
dangerous condition, we could have a fact scenario mirroring Lee Lewis.”).
Accordingly, we conclude that appellants did not present evidence raising a genuine
issue of material fact as to actual control exercised by PRSI. See id.
In sum, because we conclude that appellants did not present evidence raising
a genuine issue of fact as to the duty element of their premises liability claim against
PRSI, we hold that the trial court did not err in granting summary judgment in favor
of PRSI. See Van Horn v. Chambers, 970 S.W.2d 542, 544 (Tex. 1998) (“The
nonexistence of a duty ends the inquiry . . . .”).
We overrule appellants’ second issue.8
8
In addition, we overrule the portions of appellants’ first and sixth issues in which
they generally assert that the trial court erred in failing to find fact issues with
respect to their claim against PRSI. Further, as discussed above, because it is
undisputed that the scaffold at issue was not in existence on the PRSI premises when
Ryan entered, this is not a pre-existing defects case and the “necessary-use
exception” does not apply. See supra note 6; see also Austin, 465 S.W.3d at 207.
Thus, we do not reach the portion of appellants’ fourth issue, in which they argue
that the trial court erred in concluding that they failed to present evidence raising a
fact issue on the applicability of the exception with respect to PRSI.
31
D. Negligent Undertaking
In a portion of their fifth issue, appellants argue that the trial court erred in
granting summary judgment in favor of PRSI because, “[a]part from its premises
liability, PRSI is also liable to Torres for its negligent undertaking, which is a
‘separate and distinct’ theory from negligent activity or premises liability.” PRSI
asserts that this issue is waived because appellants did not plead a claim for negligent
undertaking. Appellants argue that, although they did not expressly plead a claim
for “negligent undertaking,” a fair reading of their petition includes this theory
because they alleged that PRSI “control[ed] the placement of defective scaffolding
equipment on PRSI’s premises” and “fail[ed] to follow its own policies and
procedures requiring that its employees ensure that [a] self-retracting lifeline be
placed on the scaffold.”
One who voluntarily undertakes an affirmative course of action for the benefit
of another has a duty to exercise reasonable care that the other’s person or property
will not be injured by the undertaking. Colonial Sav. Ass’n v. Taylor, 544 S.W.2d
116, 119–20 (Tex. 1976). To establish a “negligent undertaking,” the plaintiff must
show that: (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 (a) the plaintiff
suffered harm because of his reliance on the defendant’s performance or (b) the
32
defendant’s failure to exercise such care increased the plaintiff’s risk of harm. Nall
v. Plunkett, 404 S.W.3d 552, 555–56 (Tex. 2013) (citing RESTATEMENT (SECOND)
OF TORTS § 324A (liability to third person for negligent undertaking)).
The critical inquiry concerning the duty element in a negligent undertaking is
whether the defendant acted in a way that requires the imposition of a duty where
one otherwise would not exist. Id. at 555. Such a duty may arise if a person
affirmatively undertakes to provide services to another upon which reliance can be
based. See Osuna v. S. Pac. R.R., 641 S.W.2d 229, 230 (Tex. 1982) (“Having
undertaken to place a flashing light at the crossing for the purpose of warning
travelers, the railroad was under a duty to keep the signal in good repair, even though
the signal was not legally required.”). Appellants’ allegations that PRSI failed to
“control the placement” of scaffolding on its premises and “fail[ed] to” follow its
policies and procedures do not allege affirmative undertakings. See Fort Bend Cty.
Drainage Dist. v. Sbrusch, 818 S.W.2d 392, 397–98 (Tex. 1991).
We overrule this portion of appellants’ fifth issue.
E. Summary Judgment for NPS
In their third issue, appellants argue that the evidence raises fact issues on the
duty element of their premises liability claim against NPS because it shows that NPS
exercised actual control over the scaffold at issue. In a portion of their first and sixth
issues, appellants generally challenge the trial court’s summary judgment in favor
33
of NPS and assert that the evidence raises genuine issues of fact as to the elements
of their claim.
1. Nature of the Claim
NPS asserted that it was entitled to summary judgment because appellants’
claim is based solely in premises liability, and appellants, in their petition, did not
plead a premises liability claim. Rather, they asserted only a general negligence
claim against NPS. In their summary-judgment response, appellants stated that they
“agree[d] that their case sounds in premises liability and not ordinary negligence.”
The parties dispute whether appellants alleged a premises liability claim.
Again, “[n]egligence and premises liability claims . . . are separate and
distinct theories of recovery, requiring plaintiffs to prove different, albeit similar,
elements to secure judgment in their favor.” United Scaffolding, 537 S.W.3d at 471.
When the injury is the result of a contemporaneous, negligent activity on the
property, ordinary negligence principles apply. Id. When the injury is the result of
the property’s condition, premises liability principles apply. Id. Because negligence
and premises liability claims are based on independent theories of recovery, they are
not interchangeable. Id.
In United Scaffolding, a refinery owner, Valero Energy, hired a contractor,
United Scaffolding Inc. (“USI”), to construct scaffolding at its refinery. Id. at 467.
According to Valero’s and USI’s scaffold policies, USI was required to inspect its
34
scaffolds before each work shift and before each scaffold’s use. Id. Subsequently, a
Valero employee, James Levine, while performing work 15 feet above ground on a
USI scaffold, slipped and fell up to his arms through a hole in the scaffold platform.
Id. Levine sued USI, alleging that USI created a dangerous condition by “improperly
assembling, erecting, and/or securing the scaffolding.” Id. at 472. Levine further
alleged that USI failed to “adequately determine dangerous conditions [it] created,”
“correct the dangerous condition which existed with the scaffolding,” “secure the
scaffolding in a proper and safe work condition,” and warn “that a dangerous
condition existed.” Id. The supreme court concluded that, because Levine claimed
that his injury resulted from a physical condition that USI created and then left on
the premises, Levine’s alleged injury arose from a premises defect. Id. at 473.
Here, appellants stated in their petition: “Plaintiffs bring negligence, gross
negligence, and negligence per se claims against NPS.” They alleged, in pertinent
part, that Torres was injured because NPS:
a. erect[ed] unsafe scaffolding;
b. fail[ed] to ensure that the scaffolding it erected contained proper
fall protection;
c. fail[ed] to ensure that the scaffolding could be used safely;
d. fail[ed] to plan and provide for safe ingress and egress to the
scaffold platform;
e. certif[ied] that the scaffolding was safe for use, when it in fact
was not;
...
g. fail[ed] to provide adequate safety equipment; [and]
35
h. fail[ed] to fix dangerous conditions and/or warn about dangerous
conditions[.]
Thus, like in United Scaffolding, appellants’ allegations are that Torres was
injured by a condition that NPS created and then left on the premises. See id.
Namely, NPS created a “dangerous condition” by erecting unsafe scaffolding, failing
to provide for safe ingress to the scaffold platform, and failing to provide adequate
safety equipment. And, NPS failed to rectify or warn of the dangerous condition on
the scaffold and certified that the scaffold was safe for use, when in fact it was not.
We conclude that appellants, in their petition, presented a claim based on an
allegedly dangerous condition of the premises. See id. at 471. Thus, appellants
asserted a premises liability claim. See id. at 471, 473 (“The only fair reading of
Levine’s pleadings requires the determination that Levine did in fact allege that USI
assumed and retained the right to control the scaffolding it constructed, giving rise
to a duty to make and keep the premises safe for business invitees . . . .”).
2. No-Evidence Summary Judgment
NPS argued that there is no evidence that it owed a duty to Torres because
there is no evidence that it “controlled the details of [Torres’s] work.”
The “relevant inquiry for determining what, if any, duties [NPS] owed to
[Torres] is [NPS’s] control over the scaffold itself.” See id. at 479 (emphasis added).
The inquiry is not whether NPS was present at the work site, but whether NPS
retained a sufficient right of control over the scaffold work site, such that it had the
36
responsibility to remedy the condition that Torres alleges caused his injury. Id. at
475 (distinguishing between occupancy and control). “The duty question must focus
on [NPS’s] right to control the scaffold and subsequent responsibility to warn about
or remedy a dangerous condition on the scaffold.” See id. at 479.
Appellants’ summary-judgment evidence reflects that Ryan hired NPS to
erect, maintain, and inspect scaffolding at PRSI’s refinery for Ryan’s employees to
use in performing turnaround work. Because any contract between Ryan and NPS
is not before us, we consider appellants’ evidence of NPS’s exercise of actual
control. See Dow Chem. Co., 89 S.W.3d at 606.
Appellants presented evidence that Elliott Johnson, a PRSI safety supervisor,
testified in his deposition that NPS was obligated to inspect each scaffold and ensure
that it was safe before Ryan employees used it. Lance Harp, a Ryan field safety
supervisor, testified that “the scaffold company,” i.e., NPS, built the scaffold at
issue, was responsible for it, and that Ryan was “not supposed to alter” the scaffold
at all. Harp testified that only NPS was authorized to inspect the scaffold, that NPS
inspected its scaffolds “every day,” and that NPS was responsible for determining
whether a scaffold was safe to use and for assigning the appropriate safety tag.
Similarly, Johnson, a PRSI safety supervisor, and Richard Funesti, a PRSI safety
manager, each testified that NPS was in control of the scaffold at issue.
37
In his deposition, Jesse Rodriguez, president of NPS, testified that NPS was
responsible for inspecting the scaffold at issue, which included taking into account
access to the platform, and allowing people to work on the scaffold:
Q. Your employees are the ones who are filling out these yellow
tags, correct?
A. Yes.
Q. And your employees are the ones who are assigning them to say
that the scaffold can be used; is that fair?
A. Well, yes.
Q. Would you expect your employees to be taking into account
things like access and egress when they are signing these yellow
tags allowing people to work on the scaffold?
A. Yes.
In United Scaffolding, the Texas Supreme Court concluded that the evidence
reflected USI’s right to control the scaffolding it constructed. 537 S.W.3d at 478. It
was undisputed that Valero hired USI to install, inspect, modify, and dismantle
scaffolding at the refinery. Id. at 474. The evidence showed that Valero employees
were authorized to construct, use, or dismantle a scaffold without first securing
USI’s permission. Id. And, USI was responsible for performing inspections to
ensure the scaffold’s safety before its use. Id. at 477. The court concluded that, once
Valero placed USI in the sole position to authorize the use of the scaffolds it
constructed, “USI attained the sufficient right to control those scaffolds.” Id. And,
because USI was obligated to inspect the scaffolds before Valero’s workers used
them, USI maintained the right to control the scaffolds until they were dismantled.
38
Id. at 479. The court concluded that the evidence established that USI retained a
right to control the scaffold, and thus it owed Levine a duty of care as to the
dangerous conditions on the scaffold. Id. at 480.
Here, similarly, because appellants presented evidence that NPS was in the
sole position of inspecting, and authorizing the use of, its scaffolds, we conclude that
appellants presented some evidence that NPS retained control over the scaffold at
issue. See id. at 477, 479. Thus, appellants presented more than a scintilla of
evidence that NPS owed Torres a duty of reasonable care. See id.
Accordingly, to the extent that the trial court granted summary judgment in
favor of NPS based on its no-evidence motion, we hold that the trial court erred. See
also Griffin, 401 S.W.3d at 160–62 (holding that trial court erred in granting
summary judgment on premises-defect claim because evidence of actual control was
presented). Because we conclude that the trial court erred in granting summary
judgment under the no-evidence standard, we next consider whether the trial court
erred in granting summary judgment under the traditional standard. See Ridgway,
135 S.W.3d at 600; see also TEX. R. CIV. P. 166a(c).
3. Traditional Summary Judgment
In its motion for traditional summary judgment, NPS argued that it was
entitled to judgment because the summary-judgment evidence conclusively
established that: (1) NPS did not own or have control over the premises; (2) NPS
39
“did not owe [Torres] a legal duty on the day of the incident”; (3) “even if there was
a duty, NPS did not breach a legal duty to [Torres]”; and (4) NPS was not the
proximate cause of Torres’s injuries.
With respect to the duty element, NPS asserted that appellants’ “cause of
action against it is limited as a matter of law to the Texas definition of premises
liability as set forth in Austin v. Kroger Tex[as], L.P.,” as follows: “Applying the
general rule, the Court has repeatedly described a landowner’s duty as a duty to make
safe or warn against any concealed, unreasonably dangerous conditions of which the
landowner is, or reasonably should be, aware but the invitee is not.” 465 S.W.3d at
203. And, “because the weather, rainwater, wet surfaces and the tarp [were] all open
and obvious, not concealed and were all known to [Torres] before he elected to put
himself in position to fall, NPS had absolutely no duty to warn, no duty to make the
conditions safe and has no liability as a matter of law.” As discussed above,
however, this is not a pre-existing defects case. See Coastal Marine., 988 S.W.2d
at 225.
With respect to conditions arising from an independent contractor’s work, as
here, the “relevant inquiry is whether the [contractor] assumed sufficient control
over the part of the premises that presented the alleged danger so that the [contractor]
had the responsibility to remedy it.” See United Scaffolding, 537 S.W.3d at 473–74
(applying control test in suit by injured refinery employee against scaffold builder).
40
Thus, whether NPS owed Torres a premises duty must be determined by examining
whether NPS “maintained a right to control the scaffold that allegedly caused
[Torres’s] injury.” See id. at 475. Again, control “may be expressed by contract or
implied by conduct.” Id. at 473.
Because NPS’s summary-judgment evidence does not contain its contract, if
any, with Ryan, we consider whether NPS presented summary-judgment evidence
conclusively negating its duty, that is, its actual control over the scaffold at issue.
See id. at 474, 476; see also Siegler, 899 S.W.2d at 197 (defendant moving for
traditional summary judgment must disprove at least one essential element of
plaintiff’s cause of action).
Under its premises-liability point in its traditional summary-judgment motion,
NPS, without citing evidence, simply states: “Here, NPS did not own or have control
of the premises. Most importantly, NPS did not owe any duty to [Torres].”
Elsewhere in its summary-judgment motion, NPS relies on the PRSI Incident
Investigation report, email correspondence regarding Torres’s accident report,
Torres’s medical records, a photograph of the scaffold at issue, and excerpts of the
depositions of Torres, Harp, Funesti, Reynolds, and Johnson.
In the medical records and excerpts of Torres’s testimony that NPS cites,
Torres stated after his fall that he was injured because he lost his footing on the
ladder, and he testified that his feet were muddy, that he saw the tarp blocking the
41
entry into the scaffold before he climbed the ladder, and that he fell when he lifted
the tarp over his head.
In the excerpts of deposition testimony that NPS appended as its summary-
judgment evidence, Harp, a Ryan safety supervisor, testified that only NPS inspected
and safety-tagged the scaffolds it built. NPS inspected the scaffold at issue and
tagged it as safe for use by Ryan employees, including Torres. Harp testified that
an NPS “scaffold crew” “would come by and update [the safety tags] every day.”
Funesti, a PRSI safety manager, testified that NPS was responsible for
inspecting its scaffolds on the premises and assigning safety tags. He noted that a
“green tag” means “you can just use it, you don’t need any fall protection.” A yellow
tag” means that “you can use it,” subject to certain criteria marked off on the tag. A
“red tag” means “you don’t use it.” Funesti testified that the tarp on the scaffold
from which Torres fell constituted a dangerous condition. He noted: “NPS—
because it was a scaffold, I would expect the scaffold builder to look at it because of
it being [a] scaffold. From my assessment something with a tarp, fire blankets or so,
they would look at that to make sure it’s safe . . . .” And, Reynolds, a PRSI
construction supervisor, testified that NPS had a duty to identify means for safe
access and egress to the scaffolds it built.
Johnson, a PRSI safety supervisor, testified that having to reach three or four
feet at the gate to the scaffold platform created a safety hazard. And, on March 18,
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2015, the day of Torres’s fall, NPS inspected the scaffold at issue, noted it as “in
compliance,” and assigned it a “yellow tag,” which indicated that the scaffold could
be used, but “[f]all protection ha[d] to be utilized.” However, Johnson testified,
Torres’s tie-off points were limited and, as such, NPS’s policies required the use of
a retractable lifeline or ladder cage, neither of which were there.
As discussed above, the supreme court held in Lee Lewis Construction that
evidence that the general contractor performed inspections, was aware of the
dangerous condition, and approved the dangerous act constituted more than a
scintilla of evidence that the contractor retained an actual right of control. 70 S.W.3d
at 784. Thus, the contractor owed the subcontractor’s employee a duty of care. Id.Similarly, here, NPS’s own summary-judgment evidence shows that it had the
sole authority to inspect its scaffolding on the premises, that it inspected its
scaffolding every day, that it inspected the scaffold at issue on the same day that
Torres fell, that the gate and tarp were in place at the time of the inspection and
constituted dangerous conditions, and that NPS specifically approved the scaffold
for use. And, although a yellow safety tag indicated that fall-protection was
required, none was present.
Taking as true all evidence favorable to appellants, as non-movants, and
indulging every reasonable inference and resolving any doubts in their favor, as we
must, we conclude that NPS’s own summary-judgment evidence constitutes more
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than a scintilla of evidence that NPS retained actual control over the scaffold. See
Valence Operating Co., 164 S.W.3d at 661. Thus, NPS has not conclusively negated
the duty element of appellants’ claim. See Lee Lewis Constr., 70 S.W.3d at 784.
Because NPS’s summary-judgment evidence does not establish its right to judgment,
the burden never shifted to appellants to present evidence to raise a genuine issue of
material fact precluding summary judgment. See Siegler, 899 S.W.2d at 197; see
also City of Hous. v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979)
(holding non-movant not required to respond if deficiencies in movant’s own proof
or legal theories defeat movant’s right to judgment as matter of law). Accordingly,
we hold that the trial court erred in granting summary judgment in favor of NPS.
We sustain appellants’ third issue and the remainder of their first and sixth
issues, in which they generally assert that the trial court erred in granting summary
judgment in favor of NPS and failed to find fact issues.9
9
Having sustained appellants’ third issue, we do not reach the remainder of their
fourth issue, in which they assert that the necessary-use exception applies to their
claim against NPS. See TEX. R. APP. P. 47.1. Similarly, we do not reach the
remainder of appellants’ fifth issue, in which they assert that NPS “owed a
negligent-undertaking duty of care.” See id.44
Conclusion
We reverse the portion of the trial court’s judgment in which it grants
summary judgment in favor of NPS on appellants’ claim and remand for further
proceedings. We affirm the remainder of the trial court’s judgment.
Sherry Radack
Chief Justice
En Banc reconsideration was requested. TEX. R. APP. P. 49.5. A majority of the
justices of the Court voted in favor of reconsidering the case en banc.
The en banc court consists of Chief Justice Radack and Justices Kelly, Goodman,
Landau, Hightower, Countiss, Rivas-Molloy, Guerra, and Farris.
Chief Justice Radack, writing for the majority of the en banc court, joined by Justices
Landau, Hightower, Countiss, Rivas-Molloy, Guerra, and Farris.
Justice Kelly, dissenting, with opinion to follow.
Justice Goodman, dissenting, without opinion, for the reasons expressed in the panel
opinion issued on May 10, 2022.
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