Abutahoun v. Dow Chemical Co.
463 S.W.3d 42
| Tex. | 2015Background
- Dow Chemical contracted Win-Way Industries to install insulation on Dow's pipeline system at Dow's Freeport facility.
- Robert Henderson, a Win-Way employee, assisted with the insulation work from 1967 to 1968 and was exposed to asbestos.
- Henderson was diagnosed with mesothelioma and sued Dow and other defendants alleging negligence and product liability.
- Dow sought summary judgment arguing Chapter 95 precluded Hendersons' negligence claims against Dow.
- The MDL court granted partial summary judgment to Dow for claims arising from Dow's contemporaneous activities at its premises, but denied others.
- The Court of Appeals held Chapter 95 applies to independent contractor claims arising from the condition or use of an improvement, and the Texas Supreme Court affirmed, adopting the Court of Appeals’ interpretation.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Chapter 95 applies to claims against a property owner based on contemporaneous negligent acts. | Hendersons: Chapter 95 applies only when contractor works on an improvement, not to owner’s contemporaneous negligence. | Dow: Chapter 95 applies to claims arising from the owner's negligence in the use/condition of an improvement, including contemporaneous acts. | Yes; Chapter 95 applies to such claims if §95.002(2) and §95.003 conditions are satisfied. |
| Meaning of 'condition or use' of an improvement in §95.002(2). | Hendersons: context limits to contractor’s own work on the improvement. | Dow: plain meaning includes negligent activity of owner causing injury. | The phrase encompasses both condition and use, with use indicating negligent activity and condition indicating premises-related liability. |
| Whether Chapter 95 abrogates common-law claims against property owners for contemporaneous negligence. | Hendersons argue abrogation of common-law claims not required by statute. | Dow argues statute excludes common-law claims by operation of §95.003. | Court declines broad abrogation; Chapter 95 can apply to limit recovery where §95.003 is satisfied, without eliminating all common-law rights. |
Key Cases Cited
- Redinger v. Living, Inc., 689 S.W.2d 415 (Tex. 1985) (premises liability may arise from defects or activity)
- DeWitt v. Harris County, 904 S.W.2d 650 (Tex. 1995) (use of 'condition or use' includes respondeat superior liability)
- Shumake v. State, 199 S.W.3d 279 (Tex. 2006) (statutory interpretation guiding plain-language approach)
- Spradlin v. Jim Walter Homes, Inc., 34 S.W.3d 578 (Tex.2000) (disjunctive 'or' signals separate concepts in 'condition or use')
- Dugger v. Arredondo, 408 S.W.3d 825 (Tex.2013) (legislative enactment with knowledge of prior law; interpretation of 'condition or use')
- Keetch v. Kroger Co., 845 S.W.2d 262 (Tex.1992) (premises liability and activity-based distinctions)
- Urena v. West Invs., Inc., 162 S.W.3d 547 (Tex.2005) (negligence and premises liability relationship under Chapter 95)