Wallace and Deanna Dyall v. Simpson Pasadena Paper Company

Affirmed; En Banc Rehearing Granted; Majority and Dissenting Opinions on Rehearing filed July 17, 2003, are Withdrawn; Majority and Dissenting Opinions on En Banc Rehearing filed November 24, 2004

  

Affirmed; En Banc Rehearing Granted; Majority and Dissenting Opinions on Rehearing filed July 17, 2003, are Withdrawn;  Majority and Dissenting Opinions on En Banc Rehearing filed November 24, 2004.

In The

Fourteenth Court of Appeals

____________

NO. 14-01-00432-CV

____________

WALLACE and DEANNA DYALL, Appellants

V.

SIMPSON PASADENA PAPER COMPANY, Appellee

On Appeal from the 61^st District Court

Harris County, Texas

Trial Court Cause No. 99-09337

MAJORITY OPINION  ON  EN BANC  REHEARING

This appeal arises from a claim of damages for injuries allegedly sustained by the inhalation of chlorine dioxide vapors by an employee of an independent contractor hired to make repairs on a leaking flange at a paper mill.  Wallace Dyall, an employee of Industrial Pipe and Plastic, Inc. (AIPP@), and his wife, Deanna Dyall (collectively, ADyall@), sued the owner of the mill, Simpson Pasadena Paper Company (ASimpson@), asserting claims for negligence, gross negligence, and negligence per se. Simpson filed for summary judgment, arguing that it exercised no control over the repairs being done on its property, and thus, under Chapter 95 of the Texas Civil Practice and Remedies Code, could not be held liable.  The trial court granted a take-nothing summary judgment in favor of Simpson.  On original submission, a divided panel of this court affirmed the trial court=s judgment.  On rehearing, a divided panel again affirmed the trial court=s judgment.  On rehearing en banc, we withdraw our panel opinion on rehearing of July 17, 2003, and substitute the following majority and dissenting opinions.

In five points of error, Dyall contends the trial court erred in granting summary judgment because (1) genuine issues of material fact exist as to the level of control exercised by Simpson over the repair operations for which Wallace Dyall was hired, and (2) he asserted a claim that was not precluded by the operation of Chapter 95. We affirm.

The summary judgment record reflects that on April 19, 1998, Bruce Stiles, a shift supervisor employed by Simpson, was engaged in a routine inspection of the facilities when he noticed a pinhole leak in a pipe near the pine bleaching plant.^[1]  Stiles knew the pipe supplied the plant with chlorine dioxide, a bleaching agent.  He observed the chemical spraying onto a concrete pad where it was vaporizing and forming a green gas cloud symptomatic of a chlorine dioxide leak.  Stiles called the bleach plant operator and ordered him to shut down the facility. The pipe was then purged with water to remove the chlorine dioxide, and the affected area was washed down. However, due to a leaking valve, the flow could not be entirely stopped, but the leak apparently diminished from a Aspray@ to a Adribble.@ Stiles also observed the liquid dripping from the pipe was now both clear and odorless.  Except in very low concentrations, chlorine dioxide is yellow and pungent.  Thus, Stiles assumed the liquid was primarily water and that any trace of chlorine dioxide in the water was at such low levels it presented no significant respiratory hazard.^[2]

The following day, at approximately 10:45 a.m., Joey Carter, a fiberglass technician, and his helper, Wallace Dyall, employed by Industrial Pipe and Plastic (IPP), were dispatched to the Simpson Pasadena Paper Company to repair the leak.  Upon arriving at the gate, at approximately 11:00 a.m., an unidentified gentleman directed Carter and Dyall to a small office building on the plant complex where they met Jerry Elleven who said he was having a problem with a leaking flange.  He also said replacement of the flange would require shutting down the plant, so he asked Carter and Dyall if they could stop the leak without replacing the flange. According to Dyall, no safety warnings were administered, no safety data sheets were given to him, and he Awas given the impression . . . that there was no danger to us concerning the substance that was leaking.@^[3]

Dyall admitted, however, that he could not recall whether Simpson personnel told him the pipe might contain traces of chlorine dioxide.^[4]  Carter, also, could not recall whether Simpson employees ever identified the substance leaking from the flange.  Both men acknowledged, however, that someone at the plant may have told them the substance leaking from the pipe contained chlorine dioxide.  Moreover, it is undisputed that within 25 feet of the leaking flange a warning sign attached to a support beam said, AChlorine Dioxide.@ The sign also recommended chemical goggles, a face shield, ventilation, no smoking, and a scuba gas respirator. Carter also admitted that, as Dyall=s supervisor, it was his responsibility to evaluate the situation and determine the toxic hazards present at each job site.

Before proceeding to the site of the leaking flange, Elleven asked Carter and Dyall if they had full air packs.  A Afull air pack@ has a  clear face shield and an air tank which supplies the wearer with air much like an underwater diver.  Carter informed Elleven that they had full air packs Aback at the shop.@ According to Dyall, Elleven said, AWell, that=s all right.  I don=t think you=ll need them.@ Elleven then directed Carter and Dyall to Athe safety guy@ to pick up two throw-down packs.  A Athrow-down pack@ is also known as an emergency escape respirator.  It is not designed for sustained use, but is to be clipped to the wearer=s belt.  In the event of a toxic gas leak, the wearer is advised to insert the breathing tube in his mouth, use the nose clip to seal his nose, and immediately leave the area. While the user escapes to a safe area, all his air is filtered through a charcoal filter.

Carter and Dyall reported to the Simpson safety director who gave them two emergency escape respirators. Carter mentioned to the safety director that he and Dyall had  half-face respirators in their truck.  A half-face respirator covers the mouth and nose and is usually used in conjunction with goggles.  The user=s air is filtered through specially designed canisters attached to the respirator, much like a gas mask.  As a safety precaution, however, the Simpson employee insisted that Carter and Dyall also have escape respirators with them before entering the area of the pine bleaching plant.  Further, he advised Carter and Dyall that if they should smell any unknown odor, they should immediately don their escape respirators and leave the area.

Thereafter, Carter and Dyall drove their truck to the site of the leaking flange where they observed a Simpson employee with a water hose washing what appeared to be a thick white soap foam down a nearby drain.  Before proceeding into the area, Carter asked, AIs it safe for us to go in [the foam] or do we need rubber boots?@  The employee told Carter he did not need boots and told him he could enter the area.  He also identified the substance he was washing down the drain, but Carter could not remember the name of the substance at the time of his deposition.^[5]

Upon inspecting the leak, Carter noticed a half-inch pipe running from the pine bleaching plant.  A greenish-yellow liquid (consistent with the appearance of chlorine dioxide) was dripping from a crack between the threads and a flange.^[6]  The pipe and flange were located no more than three inches above a concrete pad.  As the liquid dripped on the pad, it was immediately diluted by water from a : inch hose and washed into a drain.  Although Simpson employees were working only a few feet from the leak, they wore no protective paraphernalia.  Perceiving no hazard, Carter and Dyall left their respirators in the truck.  They then tried to contain the leak with a substance known as Hydro-plug.  Other than gloves and goggles, they wore no protective gear while they worked.  Although his testimony was strongly controverted, Dyall alleges he got the liquid on his hands, arms, legs, and knees.^[7]

At some point during their repair efforts, Carter noticed a pinhole leak about four feet from the broken flange.  Every ten or fifteen seconds, a drop of liquid would fall to the ground and instantly vaporize making a small white cloud.  Carter alerted Simpson employees working in the area to the new leak and asked, AIs it the same thing or is it something else?@  A Simpson employee inspected the leak and said, AOh, it=s all inCit=s the same pipe.@ Reassured that the new leak was nothing more than the same liquid leaking from the flange, Carter and Dyall returned to working on the flange.  In his deposition Carter acknowledged that the liquid dribbling from the broken flange and the liquid dripping from the nearby pinhole leak had no discernible odor.  The Hydro-plug mixture, however, releases an Aammonia-chlorine type smell,@ that burns the nose.  Carter admitted that the only smell of chlorine that day came from the Hydro-plug mixture.  In fact, Dyall began coughing and choking on the fumes of the Hydro-plug mixture, and Carter further admitted that he and Dyall should have worn their half-face respirators to protect them from the gases of their own Hydro-plug mixture.^[8]

After working an hour and a half, it became apparent the leak could not be stopped using Hydro-plug. Records indicate that at approximately 12:30 p.m., the entire pine bleaching plant was shut down.  Once the pine bleaching plant was shut down and the flow of the liquid was stopped, Simpson advised Carter and Dyall that it would have its own plumbers replace the broken flange.

As Carter and Dyall prepared to leave the area, both men became nauseous, and they each vomited. Carter and Dyall then returned to their shop to pick up some flange plugs which the Simpson employees needed to replace the flange.  Before returning to the Simpson facility, Dyall vomited again.^[9]

After obtaining the necessary flange plugs, Carter and Dyall returned to the Simpson facility. However, before entering the work area, they donned their half-face respirators for the first time.  They delivered the flange plugs to the Simpson employees who were already engaged in replacing the flange.  Carter noticed the Simpson employees were still working without the benefit of respirators or air packs.  Apparently, they suffered no ill effects.  Carter and Dyall returned the throw-down packs to Simpson and went back to the IPP office.

The following day, Dyall reported to work, but was not feeling well.  IPP sent him to a company physician.  Dyall alleges he has had severe respiratory problems since his exposure to the leaking flange.

Standard of Review

The standard we follow in reviewing a summary judgment is well-established. The movant for summary judgment has the burden to show that no genuine issue of material fact exists and that he is entitled to judgment as a matter of law.  Tex. R. Civ. P. 166a(c); Lear Siegler, Inc. v. Perez, 819 S.W.2d 470, 471 (Tex. 1991); Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548B49 (Tex. 1985).  When deciding whether there is a disputed material fact issue precluding summary judgment, we treat proof favorable to the non-movant as true, and we resolve any doubts in his favor. Nixon, 690 S.W.2d at 548B49; Montgomery v. Kennedy, 669 S.W.2d 309, 311 (Tex. 1984).  A defendant, as movant, is entitled to summary judgment if he either disproves at least one essential element of each of the plaintiff=s causes of action or establishes all the elements of an affirmative defense.  Am. Tobacco Co. v. Grinnell, 951 S.W.2d 420, 425 (Tex. 1997).

Chapter 95 of the Texas Civil Practice and Remedies Code

Even before the adoption of Chapter 95, a Texas property owner was not generally subject to liability for injuries sustained by an independent contractor because the owner had no duty to see that an independent contractor performed his work in a safe manner.  Redinger v. Living, Inc., 689 S.W.2d 415, 418 (Tex. 1985).  Simply stated, it was well established that the owner or occupier of property was not an insurer.  Thus, where activity leading to injury was conducted by, and was under the control of, an independent contractor, and where the danger arose out of the activity of the independent contractor=s staff, the responsibility fell upon the independent contractor, and not the owner or occupier of the property.  Abalos v. Oil Dev. Co. of Texas, 544 S.W.2d 627, 631 (Tex. 1976).

However, two exceptions to this general rule also evolved in Texas jurisprudence. Both exceptions arose from an owner=s failure to keep the premises safe, namely: (1) dangers arising from an activity on the premises,^[10] and (2) those arising from a premises defect.^[11]  Williams, 952 at 527.  The evolution of our jurisprudence has produced conflicting opinions sometimes detrimental to the public policy of minimizing work-related injuries.

For example, in Tovar v. Amarillo Oil Co., the owner of an oil lease hired an independent contractor to drill a well.  692 S.W.2d 469 (Tex. 1985).  By contract, the owner required the contractor to have a blowout preventer and specified that the kill line should not be used for a fill line on the blowout preventer.  The contractor disregarded this safety precaution.  The owner was aware of the deviation and did not order the contractor to leave the premises.  Thus, when the well blew out and injured one of the contractor=s employees, the owner was liable for negligently failing to exercise reasonable care in supervising the contractor=s activity.  Id. at 470.

Likewise, in Lee Lewis Const., Inc. v. Harrison, 70 S.W.3d 778 (Tex. 2001), a general contractor was held to have retained the right to control safety on the job site when it required its subcontractors to adhere to its safety rules or face expulsion from the job site.  The safety regulation included the mandatory use of a lanyard or lifeline when working in high places to prevent injuries from falls.  One of the subcontractor=s employees violated the safety rules, did not attach his lanyard to a beam, and subsequently fell to his death while attempting to insulate a tenth floor window on a construction project.  Again, the Supreme Court held there was more than a scintilla of evidence that the general contractor had Aretained the right to control fall-protection systems on the jobsite.@  Id. at 784.  Thus, the general contractor was liable for the death of its subcontractor=s employee.

In both of the aforementioned cases, the owner or general contractor would have been in a more legally advantageous position if it had not promulgated safety rules and procedures.  The effect of these decisions is arguably antithetical to public policy.  A[T]he employer of an independent contractor should not be forced to choose between the risk of injury from not intervening in the contractor=s work [and] the risk of liability from such intervention.@  Id. at 793 (Hecht, J., concurring).

Other opinions, however, have favored the public policy of protecting workers.  For example, in Koch Refining Co. v. Chapa, 11 S.W.3d 154 (Tex. 1999), the Supreme Court rejected the argument that the premises owner had retained control over the safety requirements of its independent contractor by having its on-site safety employee observe the work of its contractor.  The court concluded Athat a premises owner, merely by placing a safety employee on the work site, does not incur a duty to an independent contractor=s employees to intervene and ensure that they safely perform their work.@  Id. at 157.

Likewise, in Dow Chemical Co. v. Bright, 89 S.W.3d 602 (Tex. 2002), an employee of Gulf States, Inc., an independent contractor, sought damages from Dow Chemical Company, the premises owner, for injuries sustained in a work related accident caused by the actions of another Gulf States employee.  The plaintiff argued Athat Dow had a contractual right to control the premises because Dow required its independent contractors to comply with the safety rules and regulations promulgated by Dow in its Safety and Loss Prevention Manual.@  Id. at 607.  The Texas Supreme Court rejected the contention stating, Ait is not enough that the premises owner has merely a general right to order the work stopped . . . [t]o hold otherwise would deter general contractors from setting even minimal safety standards.@  Id. at 607B08.

In addition to public policy considerations, there are other reasons to question the wisdom of imposing liability upon the property owner for injuries sustained by independent contractors.  First, Athe contractor has often been hired for its expertise in the work to be done and its superior ability to see that the work is done safely.@  Lee Lewis Const., 70 S.W.3d at 796 (Hecht, J., concurring).  Second, A[a]n employer=s liability for accidents should not increase the harder he tries to ensure that his independent contractors work safely and decrease the less he cares what happens.@  Id.

The rationale of subjecting employer=s to liability for injuries sustained by independent contractors is also inconsistent with our modern system of worker=s compensation.  First, the employment of Aa subscribing independent contractor presumably includes the cost of providing worker=s compensation coverage related to the work, and the contractor=s employer who pays it should have the same protection from extra liability for job-related injuries to the contractor=s employees that the contractor has.@  Id. at 795.  Second, an Aemployer should not be exposed to greater risk of liability for wisely entrusting peculiarly dangerous work to a better-skilled independent contractor than if he had undertaken the job with his own less capable employees.  Id. at 796.  Finally, a Aworker should not have greater rights as an employee of an independent contractor than he would have as an employee of the contractor=s employee.@  Id.

These incongruities were largely rectified by Chapter 95 of the Texas Civil Practice and Remedies Code which was part of a sweeping tort-reform package.^[12]  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.  Kelly v. LIN Television of Texas, L.P., 27 S.W.3d 564, 570 (Tex. App.CEastland 2000, pet. denied).  Sometimes the contractor is hired to remedy a dangerous condition on the property and the work, therefore, is potentially hazardous. Chapter 95 provides that a property owner is not liable for the personal injury, death, or property damage to a contractor or his employees who construct, repair, renovate, or modify an improvement to real property, including injuries 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, and

(2) the property owner had actual knowledge of the danger or condition resulting in the injury and failed to adequately warn.

Tex. Civ. Prac. & Rem. Code Ann. ' 95.003 (Vernon 1997).

The first prong of the statutory exception is a codification of the holding in Redinger v. Living, Inc. which adopted the Restatement (Second) of Torts, Sec. 414 and comments.^[13]  The second prong forecloses the plaintiff=s reliance on  Aconstructive knowledge@ of the property owner regarding a dangerous condition.^[14]  In other words, the burden now rests upon the plaintiff to show both (1) control and (2) actual knowledge of the danger.  These are two independent and necessary conditions to the imposition of liability.^[15]  The 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.^[16]

Simpson=s Motion for Summary Judgment

In its Amended Second Motion for Summary Judgment, Simpson argued it was immune from liability under Chapter 95.003 of the Texas Civil Practice and Remedies Code because Carter and Dyall Ahad complete control over the repairs that they were hired to perform, and . . . Simpson did not exercise or retain any control over the repair operation.@

In his reply, Dyall argued that Simpson had, in fact, exercised control because ADyall was not told that he may be exposed to chlorine dioxide at [its] plant, apparently because [Simpson=s] shift supervisor, Bruce Stiles, did not think there was enough chlorine dioxide in the leak to hurt Mr. Dyall, since he did not smell it.@  Dyall also argued that Simpson Afailed to inform [him] of what chemical he would be exposed to when [Simpson] called for work to be done@ and A[Simpson] lured [Dyall] into a false sense of security in regard to working with [Simpson=s] mystery chemical . . . [in that Simpson=s] employees were not wearing their air packs when they pointed out the leaking flange for [Dyall] to work on.@

Control

On appeal, Dyall concedes that Simpson exercised no control over the repair work, but he contends that Simpson had responsibility for Asafety matters@ in the area to be repaired, and, thus, he Awas not entirely free to do the work his own way.@ This raises an issue as to whether control over Asafety matters@ is within the scope of the statute=s requirement of Acontrol over the manner in which the work is performed.@  Tex. Civ. Prac. & Rem. Code Ann. ' 95.003 (Vernon 1997).  As discussed above, it would be harmful to worker safety and, thus, to public policy, to hold that control over Asafety matters@ subjects an owner to liability because such a holding would encourage owners to divorce themselves from all safety concerns.  Unless, the owner imposes a safety regulation or procedure that actually causes or contributes to the contractor=s injury, we do not deem such regulations as Acontrol over the manner in which the work is performed.@ Tex. Civ. Prac. & Rem. Code Ann. ' 95.003 (Vernon 1997).  In other words, unless the owner=s Asafety@ regulation unwisely imperils the contractor, its imposition and observance must be encouraged, not discouraged, and cannot  reasonably be considered the type of control the legislature envisioned as coming within the ambit of the statute.

Here, the only Asafety regulation@ imposed by Simpson was that Carter and Dyall carry emergency escape respirators on their belts before entering the area of the pine bleaching plant.  This Asafety regulation@ did not imperil either man, and it was not the cause of Dyall=s alleged injuries.  In his appellate brief, Dyall lists sixteen alleged examples of Acontrol@ by SimpsonCnone raise a fact issue as to whether Simpson retained or exercised control over the manner in which Dyall=s work was to be performed.

Dyall first contends Simpson exercised control by failing to clear the line of chlorine dioxide.  While it is certainly true that, as the property owner, Simpson had Acontrol@ of its facilities, this is not the type of Acontrol@ of which the statute speaks.  Simpson undoubtedly had the power to sell or lease its property, control access to its property, to shut down the facilities, etc.  However, the statute speaks of Acontrol over the manner in which the work is performed.@  Tex. Civ. Prac. & Rem. Code Ann. ' 95.003 (Vernon 1997).  While the summary judgment evidence shows Simpson purged the line with water in an attempt to eliminate any hazard to Carter and Dyall, the success or failure of this procedure does not demonstrate Acontrol over the manner in which the work is performed.@  Id. Dyall plainly acknowledged in his deposition that Simpson did not exercise any control over his work.^[17]  Likewise, Carter testified, ASimpson never advised us on how to perform our job, as far as how to lay it up, how to glass it or how to Hydro-plug it.@

Simpson personnel were fully capable of repairing the leak by shutting down the pine bleaching plant and replacing the cracked flange on an empty pipe.  They were not competent, however, to repair the crack without replacing the entire flange while the pipe was dribbling liquid, and that is precisely why Simpson sought the expertise of an independent contractor.  Carter apparently thought he could seal the crack without replacing the flange.  He further testified that it was solely his responsibility to assess the hazards before commencing a project, and the record reflects the only inquiry Carter made regarding protective equipment was whether he and Dyall needed to wear boots.  Moreover, Carter testified that he and Dyall had all the personal protection equipment they needed for this task on the truckCthey simply chose not to use their respirators until they began feeling ill. Accordingly, we find no evidence of control over the manner in which the work was performed.

Dyall next claims that Simpson exercised Acontrol@ by providing safety equipment, i.e., emergency escape respirators.  It is undisputed that a Simpson safety officer insisted that Carter and Dyall carry escape respirators on their belts before entering the pine bleaching plant area.  Admittedly, this is some Acontrol@ over safety procedures, and where an employer imposes a safety regulation that causes or leads to injury, the employer=s control over the manner of work may lead to its liability for the injury.  In short, safety regulations imposed by the employer must not increase the probability of injury.  Hoechst-Celanese Corp. v. Mendez, 967 S.W.2d 354, 358 (Tex. 1998).  Here, however, Dyall does not allege that he was injured by Simpson=s insistence that he carry an escape respirator on his belt, and the mere existence of safety regulations does not establish actual control over an independent contractor.  Dow Chem. Co., 89 S.W.3d at 611.  In other words, employers can set minimal safety standards without incurring liability.  Hoechst-Celanese Corp. v. Mendez, 967 S.W.2d at 358.  Those who employ independent contractors are not Arequired to stand idly by while another is injured or killed in order to avoid liability.@ Welch v. McDougal, 876 S.W.2d 218, 224 (Tex. App.CAmarillo 1994, writ denied).  Moreover, a premises owner does not incur a duty to an independent contractor to intervene and ensure he safely performs his work merely by placing a safety employee at the work site.  Koch Ref. Co., 11 S.W.3d at 157.

Dyall also alleges Simpson exercised Acontrol@ Aby instructing [him] the safety equipment provided was unnecessary.@ The record, however, does not support Dyall=s allegation.  Dyall cites to two places in the summary judgment record he contends support his assertion.  In the first instance, Carter testified:

Q.  You knew that everybody that entered over there had to have an escape respirator?  Did you know that?

A.  Yes.

Q.  And so whoever it was, Elleven or whoever, issued escape respirators?

A.  Yes.  And at that point I let him know C I informed him we had our own half-face that we used.

Q.  And whoever it was, what did they say?

A.  AJust go ahead and keep it until you finish and turn it back in before you leave.@

Q.  And that=s an escape respirator that you put on your belt?

A.  On your belt.

Q.  And, for example, if you=re driving out there and a pipe pops and starts spraying, you put the escape respirator on your mouth and you run, right?

A.  Right.

Q.  That=s what it=s for?

A.  Correct.  For escapes only.

Nothing in Carter=s testimony suggests that Simpson implied, suggested, or hinted that Carter and Dyall should not use their half-face respirators while conducting repairs on the leaking flange.

Dyall next cites his own testimony where he said:

Q.  What else do you recall about that conversation with this male inside the building?

A.  He asked us if we had full air packs.  Joey [Carter] said, ABack at the shop.@  He said, AWell, that=s all right.  I don=t think you=ll need them.@  He said, AGo to the safety guy here and he=ll give you these throw-down packs,@ and we went over there and they issued us two throw-down packs.  We hooked them on our belts and proceeded over to where the leak was.

*  *  *

Q.  And y=all had full air packs C

A.  I don=t know that we had them.  Joey said we had them back at the shop locked up.

Q.  And the man at C that was inside the building said what?

A.  He said, AI don=t think you=ll need them anyway.  We=ll C I=ll just give you some of our packs here,@ and he took us to the safety guy which issued us two.

Q.  Who was the safety C

A.  I don=t know his name either.  He just was C he said, AThis is our safety.@

Q.  So he gave C strike that. The man that you met gave you two what?

A.  Air packs is all I know them called by, the little thing you put in your mouth, put a clip on your nose.

Q.  So you put a clip on your nose and you had this other C

A.  If you need it.  We didn=t do that.  We had them clipped to our belts.

*  *  *

Q.  . . . Would it be fair to say that when you received these two air packs it was your understanding that they were to protect you and Joey from chemical exposure?

A.  I didn=t know they had any chemicals out there so I couldn=t say that either. He said, you know C I mean, we had respirators, but he gave us these.

Q.  You had respirators?

A.  Yes.

Q.  Where?

A.  In the truck with us.

Q.  Okay.  So when you and Joey arrived at the Simpson plant, you had your respirator and he had his respirator?

A.  In our safety bag in the truck, yes.

*  *  *

Q.  And you had those in the truck?

A.  Yes, we did.

Q.  Any you guys left them in the truck?

A.  Left in the truck.

Dyall=s theory seems to be that but for Simpson=s insistence that he and Carter clip emergency escape respirators to their belts, they might have worn their half-face respirators while attempting to repair the leaking flange.

The record, however, does not logically support Dyall=s contention.  The summary judgment evidence shows there were three possible means of protecting Carter and Dyall.  The first, and best method, was an air pack with a full face shield.  Carter and Dyall had access to this equipment, but did not bring it with them to the job site.  Contrary to appellant=s position, Elleven=s question, by its nature, suggests it might have been advisable to have such equipment.  When he learned that Carter and Dyall did not have the equipment with them, he allegedly said, AWell, that=s all right.  I don=t think you=ll need them.@ (emphasis added).  This statement is ambivalent on its face and cannot reasonably be construed as a command or instruction not to use such equipment. In fact, it suggests the possibility that full air packs might potentially be needed depending upon the circumstances.  Moreover, the summary judgment record shows that at one point, Carter and Dyall left the Simpson job site, returned to their shop to pick up parts, but still did not pick up the full air packs.

The second level of protection was a respirator covering the lower half of the face.  Carter and Dyall were in possession of respirators and goggles, but chose not to use the respirators until after they both became ill. At no time did any Simpson employee order, command, instruct, or suggest that Carter and Dyall should not use their respirators.

The third level of protection available to Carter and Dyall was an emergency Athrow-down@ pack or escape respirator. As the record makes clear, the requirement of an escape respirator was a minimal safety precaution.  Nothing about the requirement of an escape respirator precludes the use of other safety equipment.  On many construction sites, for example, hard hats are required of all visitors as a safety precaution, but few would argue that such a requirement prevents contractors from utilizing other protective equipment such as gloves, safety harnesses, steel-toed boots, safety glasses, etc. that they in their judgment deem advisable or necessary to safely complete their task.

Dyall argues that because Simpson insisted he carry an emergency escape respirator, he assumed he was in no danger of exposure to toxic fumes.  However, notwithstanding Dyall=s testimony that he did not know why he was required to carry an escape respirator, the very fact that Simpson insisted that he carry such a device indicates the site was potentially hazardous.  Using the analogy of a hard hat, if Simpson had insisted that Dyall wear a hard hat, he could not reasonably assume there  was no danger of falling objects or that he could walk under ladders with impunity.  To the contrary, the requirement of a hard hat indicates that falling objects are a potential hazard.  In a similar manner, the requirement that all visitors carry a back-up or emergency respirator puts every reasonable person on notice that toxic vapors constitute a potential hazard.

Dyall next argues that Simpson exercised Acontrol@ by refusing Ato allow Dyall to return to the IPP office and retrieve the proper safety equipment,@ i.e., full air packs.  This allegation, however, is a gross distortion of the record.  To support his contention, Dyall cites the testimony of his expert witness who, when asked if it would have cost Simpson money to have a delay in repairing the leak said, AWell, I can=t answer >yes= or >no= absolutely, but obviously if they have to shut down the process they=ve cost some money.@ From this conjecture Dyall asks us to imply that Simpson discouraged Carter and Dyall from returning to the IPP office to get full air packs.  However, there is absolutely no evidence in the summary judgment record that Carter or Dyall were ever discouraged from returning to their shop to get full air packs. In fact, Carter testified that he was told by Simpson employees to Abe careful and don=t rush . . . [t]ake your time, get it fixed.  Get it done right.@

Dyall next contends that Simpson exercised control by directing him Ato use a >throw-down= pack and providing the same.@ As we have already observed, Simpson never directed Dyall to Ause@ a throw-down pack in lieu of his half-face respirator.  All persons entering the area of the pine bleaching plant were required to carry an emergency escape respirator as a minimal safety precaution.  The device is not designed to work in, and it is uncontroverted that Simpson did not supply the throw-down packs for Carter and Dyall to use while performing repairs to the leaking flange.  Carter and Dyall testified that before leaving Simpson=s facility, they returned the unused emergency respirators.  This is consistent with the uncontroverted testimony of Stiles, Carter, and Dyall that the throw-packs were a safety precaution, not an element of control in how Carter and Dyall should perform their work or what type of protection they should use.

Dyall next asserts Simpson exercised control by twice assuring him Ait was safe to continue working without [a] full face mask air respirator.@ Although he contends he was Atwice reassured,@ Dyall cites only the one statement by Elleven that he did not think Carter and Dyall would need full air packs to repair the flange.  Carter frankly admitted that Simpson never said the area around the leaking flange was Asafe.@ Thus, Dyall could only say Simpson implied the area was safe by the fact that Simpson employees were working in the same area who were not using respirators or air packs. Moreover, Elleven=s comment did not suggest that Carter and Dyall should not use their half-face respirators and goggles, but, at most, indicated they would probably not need full air packs.

Dyall next claims Simpson exercised control by authorizing him to enter the pine bleaching plant to repair the leaking flange.  We fail to see how this constitutes any type of control over the manner in which the work was to be performed.

Dyall next maintains Simpson exercised control by Afailing to provide a safe work place and environment.@  Section 95.003, however, expressly states that Athe failure to provide a safe workplace@ is not actionable unless Athe property owner exercises or retains some control over the manner in which the work is performed@ and Ahad actual 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).  Dyall would have us interpret the statute to say that Acontrol@ is established, ipso facto, by the property owner=s failure to provide a safe workplace.  We are not inclined to accept Dyall=s interpretation because it would render the statute meaningless.

Dyall next alleges that Simpson exercised control by not warning him that he would be exposed to chlorine dioxide.  Again, however, the statute provides immunity from suit unless the property owner (1) controlled the work and (2) knew of the danger and failed to adequately warn. Tex. Civ. Prac. & Rem. Code Ann. ' 95.003 (Vernon 1997).  Thus, the statute, on its face, suggests that the failure to warn is not synonymous with Acontrol.@ Moreover, Carter and Dyall both testified that Simpson might have told them chlorine dioxide was in the pipe.

Dyall next contends Simpson exercised control Aby failing to shut the facility down at the request of the shift supervisor for the bleach plant facility.@ First, this allegation misconstrues the record.  The record shows that Bruce Stiles, the shift supervisor, ordered the pine bleaching plant to shut down when the leak was first discovered.  The bleaching facility was shut down and the line was then purged with water and the area around the leak was scrubbed down.  When, on the following day, Carter and Dyall arrived to repair the flange, the pine bleaching plant was back in operation. The record does not explain how the plant resumed operation without chlorine dioxide or whether the supply of chlorine dioxide had been rerouted.  In any event, it is undisputed that Simpson believed the pipe which Carter and Dyall were hired to repair was dribbling water that potentially contained only trace amounts of chlorine dioxide that did not present a respiratory hazard to those working in the area.  Carter and Dyall were specifically asked if they could repair the leaking flange while it was still dribbling.  When it became apparent they could not repair the flange, the pine bleaching plant was again shut down to allow Simpson personnel to replace the cracked flange.  Thus, there is nothing in the record to suggest that Simpson disregarded the orders of its own shift supervisor.

Second, even if Dyall=s allegation was true, we fail to see how Simpson=s internal decision to operate or shut down the pine bleaching plant can be characterized as Acontrol over the manner in which the work is performed.@  Tex. Civ. Prac. & Rem. Code Ann. ' 95.003 (Vernon 1997).  Carter and Dyall were asked if they could repair the pipe while the pine bleaching plant was in operation and the pipe was dribbling.  Carter and Dyall thought they could, but as it turned out, they could not.  It was Carter=s and Dyall=s decision whether or not to attempt a repair of the pipe while it was leaking.  This decision cannot be characterized as Acontrol@ by Simpson.

Dyall next asserts Simpson exercised control Aby failing to adhere to its own safety policies and provide [him] full face safety equipment or (at least advise it was necessary).@  Dyall cites to numerous places in the record reflecting that Simpson employees worked within five feet of Carter and Dyall without the benefit of respirators or full air packs.  Nothing in the record before us indicates the Simpson employees violated their own safety policies by working in the area.  However, even if Simpson employees had violated their own safety policies, Dyall does not explain how this act could reasonably be construed as control over the manner in which Carter and Dyall performed their work.

Dyall next contends Simpson exercised control Aby supervising the manner in which Dyall attempted to repair the leaking flange.@  First, the record indicates Dyall never attempted to repair the leaking flange. Carter testified that as his helper, Dyall merely fetched tools and  mixed-up the Hydro-plug compound for him.  Carter, alone, attempted to repair the flange by applying the Hydro-plug mixture to the site of the leak.  Second, while Bruce Stiles dropped by from time-to-time to check on their progress, Carter and Dyall both testified that Stiles did not control their work or activities in any manner.  Accordingly, Dyall=s contention has no support in the record.

Dyall next proposes that Simpson exercised control Aby giving clearance to [him], after a second leak, to continue working in an area leaking toxic chemicals.@ Again, this characterization of the facts is a distortion of the record.  During the course of his work on the flange, Carter noticed a drop of odorless liquid fall to the ground every ten or fifteen seconds a short distance from where he was working.  Carter asked Simpson employees working in the area, AIs it the same thing or is it something else?@  A Simpson employee determined the leak was from the same pipe Carter was already working on and said, AOh, it=s all inCit=s the same pipe.@  Carter testified that he was never told by Simpson employees that the area had been cleared as or declared to be Asafe.@  In fact, both Carter and Dyall admitted that Simpson employees may have told them the liquid dripping from the pipe could contain chlorine dioxide.  In fact, it is hard to conceive how Carter and Dyall could be ignorant of the potential danger: (1) they were specifically asked whether they had full air packs; (2) they were required to carry emergency escape respirators on their belts; (3) they were warned to leave the area immediately if they noticed any odors; and (4) they were within twenty-five feet of a sign warning of the respiratory danger presented by chlorine dioxide. Dyall could, of course, make an argument that these warnings were not adequate to apprise him of the danger. However, the adequacy of a warning relates not to the element of control, but to the second prong of Section 95.003 relating to whether the property owner had actual knowledge of the danger and failed to warn.  Tex. Civ. Prac. & Rem. Code Ann. ' 95.003 (Vernon 1997).

Dyall next argues that Simpson exercised control Aby allowing [him] to continue work on leaking chlorine dioxide without a face shield, goggles and without respirators.@ This is simply another way of saying Simpson exercised control by not exercising control.   The record reflects Carter and Dyall wore goggles and gloves during the attempted repairs.  They had respirators in their truck, but chose not to use them.  Carter admitted they should have worn their respirators if only to protect them from the fumes of their own Hydro-plug mixture, but did not do so.

Dyall next claims Simpson exercised control Aby failing to shut-down and clear the area of the facility leaking toxic chemicals, as required by Simpson=s safety procedures.@  Dyall cites the testimony of Paul Licata, an environmental and safety manager for Simpson. Licata testified that a person working in the vicinity of a chlorine dioxide leak should have respiratory protection.  However, he also testified that it is virtually impossible for a person to remain in the vicinity of a chlorine dioxide leak due to its pungent odor and irritability.  Licata did not testify, as Dyall seems to suggest, that Simpson had an internal policy requiring the shut-down and evacuation of the facility where an odorless solution containing only traces of chlorine dioxide is discovered to be leaking.

Finally, Dyall contends Simpson exercised control Aby breaching its responsibility to discuss general hazards with contractors.@  Dyall again cites the testimony of Paul Licata who stated it was Simpson=s responsibility to discuss general hazards with contractors including exposure to chlorine dioxide water.  As noted earlier, Carter and Dyall could not recall whether they were advised by Simpson that the substance leaking from the broken flange possibly contained trace amounts of chlorine dioxide.  However, even if Simpson did not properly apprise Carter and Dyall of the danger and, thus, breached a duty to them, we fail to see how such breach constitutes Acontrol.@  The breach of a duty leading to a cause of action for negligence is the subject of Chapter 95 of the Texas Civil Practice and Remedies Code.  This provision states that claims Afor damages caused by negligence@ are not viable against a property owner unless he exercised or retained control and had actual knowledge of the danger without adequately warning the injured party.  Tex. Civ. Prac. & Rem. Code Ann. '' 95.001(1) & 95.003 (Vernon 1997).  Thus, breach of a duty is not equivalent to Acontrol.@

After considering all of Dyall=s proposed examples of evidence of Acontrol,@ we find none can reasonably be characterized as Acontrol over the manner in which the work is performed.@  Tex. Civ. Prac. & Rem. Code Ann. ' 95.003 (Vernon 1997).

Legislative Intent

Even if the summary judgment proof fails to satisfy the plain wording of Section 95.003, Dyall contends the legislature never intended the statute to apply to a scenario like the one presented here.  Dyall relies on a statement of legislative intent made by the bill=s sponsor, Representative Robert Junell:

It is the legislative intent of the authors that Chapter 95, Property Owner=s Liability for Acts of Independent Contractors and Amount of Recovery, 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.

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.

H.J. of Tex., 74^th Leg., R.S. 2611B12 (1995).

The statement of legislative intent, however, does not support Dyall=s contention. First, when a statute is clear and unambiguous, we need not resort to extrinsic aids to construe it.  St. Luke=s Episcopal Hosp. v. Agbor, 952 S.W.2d 503, 505 (Tex. 1997); Bridgestone/Firestone, Inc. v. Glyn-Jones, 878 S.W.2d 132, 133 (Tex 1994).  Dyall has made no argument that Section 95.003 is ambiguous.  Accordingly, in determining the legislative intent behind Chapter 95 of the Texas Civil Practice and Remedies Code, we look solely at the plain and common meaning of the words of the statute.  Monsanto Co. v. Cornerstones Mun. Util. Dist., 865 S.W.2d 937, 939 (Tex. 1993);  Moreno v. Sterling Drug, Inc., 787 S.W.2d 348, 352 (Tex. 1990).

Second, even if we were to rely on the author=s stated intent, we fail to see how Representative Junell=s explanation of the statute differs from the plain meaning of the words used therein.  If Dyall had been injured by an unrelated explosion of the pine bleaching plant due to Simpson=s negligence, the statute would not preclude recovery.  Likewise, if Simpson had negligently told Carter and Dyall that the pipe was empty, and Dyall had been injured due to his reliance on that statement, again the statute would not preclude recovery.  However, neither scenario is presented here.  In fact, the summary judgment evidence shows just the opposite.

Carter and Dyall were specifically told the pipe was not empty.  Even before starting their repair work, Carter and Dyall could plainly see a liquid dripping from the flange.  Likewise, Carter admitted that a Simpson employee may have told them the liquid contained chlorine dioxide.  Moreover, the leak was within 25 feet of a sign warning of the presence of chlorine dioxide and recommending the use of chemical goggles, face shield, and respirator. Finally, we do not interpret a statement by a Simpson employee that the men might not need full air packs as an instruction or directive that they should proceed without the benefit of such packs.  To the contrary, the only specific instruction Simpson gave to Dyall and Carter regarding their manner of work was to be careful and take the time necessary to get the job done right.

Knowledge of the Danger

Finally, Dyall suggests that because Simpson was aware of the danger and failed to adequately warn of the same, it necessarily exercised Acontrol@ over the manner in which the work was performed.  Dyall states in his appellate brief, for example, that Simpson exercised control because it Aowed [him] a duty to provide a safe work place, but did not warn [him] of the known danger of exposure.@ In support of his position, Dyall relies heavily on the testimony of Dr. Frank Stevens, his expert witness.  Dr. Stevens testified that in his opinion Simpson exercised control of the Asituation.@ But when asked for the basis of his opinion, Dr. Stevens was quite vague:

Well, first of all, they=re the ones that call IPP out to say, AHere=s a project that we need to be performed,@ and all C and, you know, here=s where C here=s where it is, and C and it=s implied that, you know, they took responsibility to make sure that the lines are purged and, you know, that=s C that=s part of their control.

Thus, it seems Dr. Stevens was of the opinion that Acontrol@ is established merely by soliciting the services of an independent contractor and directing him to the problem he is to fix or repair.  Interestingly, when shown Chapter 95 of the Texas Civil Practice and Remedies Code, Dr. Stevens said it was the first time he had ever read the statute and that he had never heard of Chapter 95 until it was mentioned by Dyall=s attorney a few hours before the deposition.

Nevertheless, Dyall argues that because Simpson knew the chemical leaking from the broken flange might contain trace amounts of chlorine dioxide, it necessarily exercised Acontrol@ over the work by not advising him of the hazards of working on the flange without respiratory protection.  We disagree.

The first problem with Dyall=s position is that it effectively repeals Chapter 95.  Dyall would have us hold that the element of Acontrol@ can be supplied by proof of Aknowledge.@  This, of course, would eliminate the first prong of the statute.

The second problem with Dyall=s position is that he presented no evidence of Aknowledge.@  Thus, even if his interpretation of the statute could be harmonized with the plain wording of Chapter 95, there is no evidence in the summary judgment record to show Simpson had actual knowledge of the danger from which control could be inferred.^[18]

Simpson moved for summary judgment only on the ground that it exercised no control, not that it lacked knowledge of the danger.  Thus, we would ordinarily restrict our analysis solely to evidence of control. However, Dyall=s contention is that Simpson exercised Acontrol@ by failing to warn him of the danger posed by chlorine dioxide.  When, as here, the contention is made that proof of Aknowledge@ satisfies the requirement of Acontrol,@ the plaintiff is logically obliged to offer some evidence of Aknowledge.@^[19] Dyall, however, produced no summary judgment evidence to show either Simpson=s Acontrol@ over the work or its Aknowledge@ of the danger.

The summary judgment evidence shows Simpson was aware that pure chlorine dioxide was being pumped through the pipe when the leak was first discovered.  The line was then shut down for a day and purged with water. Thereafter, the liquid dribbling from the line had no chlorine odor, and Simpson employees believed it to be virtually pure water that presented no respiratory hazard.^[20]  In fact, Simpson employees worked within five to ten feet of Carter and Dyall without protective equipment.  Moreover, when Carter and Dyall were unable to repair the leaking flange, Simpson employees ultimately replaced it without the benefit of protective equipment. Nothing, therefore, in the record before us suggests Simpson was aware of the danger and knowingly exposed Carter and Dyall to chlorine dioxide.

Accordingly, we find no merit in appellants= contentions;  thus, summary judgment was properly granted for Simpson based upon section 95.003(1).

Common-Law Negligence

In the alternative, Dyall contends the trial court erred in granting summary judgment because Chapter 95 is not applicable to his claim for damages arising out of common-law negligence.

Such an argument belies the clear language of the statute.  A property owner is entitled to the defense provided by Chapter 95 for claims Afor damages caused by negligence.@ Tex. Civ. Prac. & Rem. Code Ann. ' 95.001(1) (Vernon 1997); see also Kelly, 27 S.W.3d at 569 (applying Chapter 95 to assertions of negligence, negligence per se, res ipsa loquitur, and negligent misrepresentation).  No distinction is made for negligence claims arising under common law.  Accordingly, Dyall was required to surmount the defense provided by Chapter 95 as to all of his claims that sounded in negligence.

The judgment of the trial court is affirmed.

/s/        J. Harvey Hudson

Justice

Judgment rendered and Majority and Dissenting Opinions on En Banc Rehearing filed November 24, 2004.  (Chief Justice Hedges, Justices Anderson, Edelman, Frost, and Guzman join this opinion; Justice Fowler authored a dissenting opinion in which JusticesYates and Seymore join).

---

^[1]  Although the parties agree on most of the underlying facts, the summary judgment record contains conflicting statements regarding some of the events relating to the accident.  Accordingly, we view the summary judgment evidence in the light most favorable to Dyall.  Blackburn v. Columbia Med. Ctr. of Arlington Subsidiary, L.P., 58 S.W.3d 263, 269 (Tex. App.CFort Worth 2001, pet. denied).

^[2]  Stiles said he would not ordinarily alert an independent contractor to the presence of chlorine dioxide or suggest protective equipment if the exposure level was so low that no odor of the chemical could be detected.

^[3]  Paul Licata, an environmental and safety manager for Simpson, testified that if the liquid had contained anything more than a trace of chlorine dioxide it would have been immediately apparent to anyone in the area due to its pungent odor and irritability.  In fact, Licata testified that if the flange had been leaking chlorine dioxide, there would have been no need to advise Carter and Dyall of the danger because the pungent odor and irritation would have made it impossible for anyone to work in the area without protective equipment.  Licata also said that while it would have been physically impossible for anyone to remain in the vicinity of a chlorine dioxide leak, he would never knowingly allow an independent contractor to work in the vicinity of chlorine dioxide without goggles and a respirator.  James Bueker, the bleach plant superintendent also testified that he would not knowingly allow an independent contractor to work on a chlorine dioxide leak without a respirator.

^[4]  Dyall testified as follows:

Q.  And he asked you guys to repair a flange that was leaking?

A.  Correct.

Q.  Did he tell you what was leaking?

A.  No.  I don=t recall him saying what was leaking, just the flange was leaking.

Q.  Can you tell me, as you sit here right now, whether or not it was ever discussed as to what was leaking?

A.  Not that I recall at that time, no.

Q.  Would it be fair to say that he may have told B or discussed what was leaking, you just don=t remember?

A.  I don=t recall discussing that, no.

Q.  May have, may not have, just can=t remember?

A.  I just can=t remember.

Carter testified similarly:

Q.  And I think you testified earlier B and I could be wrong B but I thought you testified earlier that you can=t remember if someone told you about working on ClO₂.

A.  Correct.

Q.  So they may have, they may not have, you just don=t remember.

A.  Right.

^[5]  Dyall does not contend (nor is there any evidence in the record) that the foam was toxic or that it was the cause of Dyall=s alleged injuries.

^[6]  The testimony of Carter and Dyall was contradicted in this respect by Stiles who said he was within five feet of the men while they worked on the flange and the liquid was at all times clear.  Stiles, who had previously been exposed to chlorine dioxide on numerous occasions, testified that if the liquid had contained any color, it would also have had the pungent odor of chlorine.  Carter and Stiles agreed that there was no odor of chlorine emanating from the leaking fluid.

^[7]  Because the leaking flange was located only one to three inches above the ground, it is difficult to conceive how the liquid could have dripped on Dyall=s hands, arms, legs, and knees.  Moreover, as Carter=s helper, Dyall did not work directly on the leaking flange.  Carter testified:

Q.  Okay.  You are at the site of the pipe, decide that you=re going to use Hydro-plug, you have Wallace [Dyall] mix it.  And what?  Does he pass it to you and you take it and start packing it [on the flange]?

A.  Yes.

Q.  And I guess you=re down on your knees because the pipe is so close to the ground?

A.  Correct.

* * *

Q.  To your knowledge, did Mr. Dyall do anything other than get things for you and mix Hydro-plug?

A.  To my knowledge, that=s it.

Q.  If he said that he was working on the pipe and flange with you, do you disagree?

A.  Yes.

Q.  If he said that the pipe and flange he was working on was dripping all over his shirt sleeves and down his pant legs, does that make any sense to you?

A.  No, it doesn=t.

Q.  You disagree with that?

A.  Yes, I do.

Q.  Were you the only one that was trying to fix this pipe?

A.  Yes.

^[8]  Carter testified:

Q.  Did Mr. Dyall indicate that he wasn=t feeling well after y=all started working on that liquid?

A.  Yes.  I would say about an hour.

Q.  What did he say?  What kind of symptoms was he complaining about?

A.  It was the smell from the Hydro-plug is what B You know, what I smelled is possibly what he smelled.  He said he was choking, you know, coughing.

Q.  When you were working around the leak, did you also have any problems with your breathing?

A.  Only when I used the Hydro-plug, the ammonia smell just like (indicating) B it=s a smell you don=t B

Q.  So Mr. Dyall was complaining about choking and he was choking and coughing? You heard him choking and coughing?

A.  Yes, I heard him cough, yes.

^[9]  Dyall=s testimony on this matter was contradicted by Carter.  Carter testified that he was nauseous and not feeling well before he ever entered the Simpson facility.  After leaving the Simpson plant, Carter and Dyall were thirsty, and they dropped by a convenience store to purchase some beverages.  Carter purchased chocolate milk.  However, the milk had a sour taste, and Carter did not finish it.  Later, as Carter was returning to the Simpson plant, he vomited.

Carter recalls Dyall mentioned he also was not feeling well, but he had no recollection of Dyall ever vomiting.  As the two men were preparing to leave the Simpson plant for the second and final time, Carter noticed that Dyall was pale, and he asked Dyall if he was feeling alright.  Dyall replied that he was fine.

^[10]    In Redinger v. Living, Inc., for example, the occupier of property, i.e., a general contractor, was liable for injuries sustained by one subcontractor when he was struck by the tractor of another contractor after the general contractor had ordered both subcontractors to perform their work within a few feet of each other.  689 S.W.2d 415, 417B18 (Tex. 1985).

^[11]  This category was for those defects that existed on the premises when the independent contractor entered upon the property or that were created through some means unrelated to the activity of the independent contractor.  In this situation, the owner or occupier of the property had a duty to inspect the premises and warn the independent contractor of those dangerous conditions of which the owner knew or should have known.  Clayton W. Williams, Jr., Inc. v. Olivo, 952 S.W.2d 523, 527 (Tex. 1997).

^[12]  Richard O. Faulk, Dispelling the Myths of Asbestos Litigation: Solutions for Common Law Courts, 44 S. Tex. L. Rev. 945, 972 (2003).

^[13]  George C. Hanks, Jr., When Sticks and Stones May Break Your Bones: An Overview of Texas Premises Liability Law for Business Owners, 60 Tex. B.J. 1010, 1021 (1997).

^[14]  Id.

^[15]  Both Aconditions must be met before liability will be imposed upon the property owner.@  Kelly, 27 S.W.3d at 567.

^[16]  Chapter 95 represents an affirmative change in Texas tort law.  Prior to the adoption of Chapter 95, an owner was potentially liable for injuries sustained by an independent contractor  even when the danger was readily apparent to the contractor and the owner exercised no control.  For example, in Chilton v. Southwestern Bell Mobile Systems, Inc., No. 05-94-01825-CV, 1996 WL 253334, (Tex. App.CDallas May 1, 1996, writ denied) (not designated for publication), the plaintiff was hired to perform maintenance and repair work on a one-hundred-foot tall cellular transmission tower.  Id. at *1.  It was readily apparent that the service line (a mechanized pulley system for climbing the tower) was not working properly and the sleeve on the safety climb cable was not located at the bottom of the cable where he could attach a carabiner. Id. at *3.  The plaintiff decided to work around these problems by physically climbing the tower without benefit of basic safety equipment.  He subsequently fell from a height of sixty to eighty feet.  The court of appeals held the owner was potentially liable for plaintiff=s injuries under a premises liability theory. Id. at *3.

Likewise, in Samco Properties, Inc. v. Cheatham, 977 S.W.2d 469 (Tex. App.CHouston [14th Dist.] 1998, pet. denied), the owner was liable for injuries to an independent contractor who, unbeknownst to the owner, climbed into the interior of an outdoor sign that was never designed or intended for human entry.  The injured party was an electrician employed by an independent contractor who fell while performing maintenance on a large commercial sign mounted on a pole 45 feet above the ground.  Although the sign was not designed or constructed for human entry, two holes, approximately 10 inches by 18 inches were located on the top of the sign to permit access to the fluorescent lighting ballast.  In an effort to chase pigeons out of the interior of the sign, the decedent was raised to the top of the sign in a lift bucket.  He then climbed through one of the aforementioned holes without a safety belt, and fell out of the bottom side of the sign a few moments later when he either slipped or stepped upon the thin aluminum Afloor@ of the structure. Under these facts, this court held that even though the owner did not supervise the work or observe the contractor=s activities, the owner had a duty, nevertheless, to provide suitable warnings to the contractor.  Id. at 476.

Moreover, prior to the passage of Chapter 95, the owner or occupier of property who retained a right of control could be liable for injuries related to premises defects about which he had no knowledge.  In Clayton W. Williams, Jr., Inc. v. Olivo, for example, the Texas Supreme Court held the occupier of property, retaining a right of control, may be subject to liability when the employee of an independent contractor is injured by a dangerous condition created by the independent contractor if the occupier of the property knew or should have known that the independent contractor had carelessly done his work in such a way as to create a dangerous condition, and the occupier of the property failed to exercise reasonable care either to remedy it himself or by the exercise of his control cause the independent contractor to do so.  952 S.W.2d at 529.

It is doubtful that any of the foregoing decisions would survive analysis under the standards promulgated by Chapter 95.

^[17]  Dyall testified:

Q.  Would it be fair to say that the gentleman that showed you where the area [of the leak] was didn=t tell you how to do the repair work?

A.  No.

Q.  That=s not fair?

A.  He didn=t tell us how to do the repair work.

Q.  That=s why you guys were out there?

A.  Right.

Q.  Because y=all are, I guess, the experts in fixing this type of work?

A.  Yes.

Q.  You=re supposed to be?

A.  I guess.

Q.  That=s why you=re there?

A.  Right.

Q.  And that=s what you and Joey [Carter] were out there for?

A.  Right.

Q.  And would it be fair to say that the entire time that you were at the Simpson plant that no Simpson people told you or Joey how to fix that flange?

A.  To my recollection, no.

^[18]  As this Court observed in Bishop v. Nabisco, Inc., No. 14-03-00639-CV, 2004 WL 832916, at *3 (Tex. App.CHouston [14th Dist.] Apr. 20, 2004, no pet. h.), knowledge that an activity is potentially dangerous is not sufficient to satisfy the second prong of Section 95.003 C  actual knowledge of the danger is required.

^[19]  While Dyall=s assertion that the element of Acontrol@ can be satisfied by proof of Aknowledge@ is erroneous, we simply observe that his own theory of  prosecution requires him to produce evidence of Aknowledge.@

^[20]  It is common knowledge that chlorine is highly toxic. City of Jackson v. Ball, 562 So. 2d 1267, 1269 (Miss. 1990). In fact, it has been used as a chemical warfare agent.  Valentine v. Pioneer Chlor Alkali Co., Inc., 921 F. Supp. 666, 673 (D. Nev. 1996). However, the odor of chlorine is identifiable by most persons because chlorine is used so commonly as a disinfecting agent in drinking water and swimming pools, and it is the active ingredient in many household bleaches, general germicides, and deodorants.  See Erbrich United States v. FMC Corp., 306 F. Supp. 1106, 1111 (D. Pa. 1969); Products Co., Inc. v. Wills, 509 N.E.2d 850, 856 (Ind. App. 1st Dist. 1987).  Where, as here, the odor of chlorine was not present in the liquid leaking from the flange, Simpson employees assumed that any chlorine dioxide residue in the liquid was so minuscule as to present no toxic hazard.