359 S.W.3d 298
Tex. App.2012Background
- Covarrubias, an A&B employee, inspected welds on a carbon steel line at Diamond Shamrock's refinery using a scissor lift; a nipple/pipe fitting struck the lift and released hydrocarbons, causing second-degree burns.
- Matrix Engineering contracted with Diamond Shamrock to install a GDU; Matrix subcontracted A&B to install the carbon steel line Covarrubias inspected.
- Incident reports described the nipple as dangerous and unguarded, with suggestions to back-weld or remove the nipple; engineering report indicated the nipple had been a hazard for over thirty years.
- Covarrubias sued Diamond Shamrock for premises liability and negligence; Diamond Shamrock moved for summary judgment on traditional and no-evidence grounds asserting Chapter 95 applicability and lack of control.
- The trial court granted both Diamond Shamrock’s traditional and no-evidence motions for summary judgment; Covarrubias appealed challenging Chapter 95 applicability and Diamond Shamrock’s control/knowledge arguments.
- Court holds Chapter 95 applies to Covarrubias’s claim and Diamond Shamrock did not present more than a scintilla of evidence of control or knowledge; thus, the trial court’s judgment granting summary judgment is affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does Chapter 95 apply to Covarrubias’s claims? | Covarrubias argues the injury from a different improvement; Chapter 95 does not apply. | Diamond Shamrock contends Chapter 95 applies to the claim. | Yes; Chapter 95 applies. |
| Did Diamond Shamrock exercise control or have actual knowledge to impose liability under Chapter 95? | Covarrubias produced evidence of control/knowledge. | Diamond Shamrock showed no contractual or actual control and no proof of knowledge. | Covarrubias failed to show more than a scintilla of control or knowledge; judgment affirmed. |
Key Cases Cited
- Hernandez v. Brinker Int'l, Inc., 285 S.W.3d 152 (Tex.App.-Hou. [14th Dist.] 2009) (chapter 95 applicability debated (pl. plurality))
- Fisher v. Lee & Chang P'ship, 16 S.W.3d 198 (Tex.App.-Hou. [1st Dist.] 2000) (applies Chapter 95 to ladder/workspace hazard)
- Phillips v. Dow Chem. Co., 186 S.W.3d 121 (Tex.App.-Hou. [1st Dist.] 2005) (scaffold/workspace relation to Chapter 95)
- Ellwood Tex. Forge Corp. v. Jones, 214 S.W.3d 693 (Tex.App.-Hou. [14th Dist.] 2007) (control standard for premises liability under Chapter 95)
- Dow Chemical Co. v. Bright, 89 S.W.3d 602 (Tex. 2002) (control evidence under Chapter 95 analysis)
- Wal-Mart Stores, Inc. v. Rodriguez, 92 S.W.3d 502 (Tex. 2002) (no-evidence standard for summary judgment)
- King Ranch, Inc. v. Chapman, 118 S.W.3d 742 (Tex. 2003) (summary judgment standard and evidence thresholds)
- Rueda v. Paschal, 178 S.W.3d 107 (Tex.App.-Hou. [1st Dist.] 2005) (Chapter 95 applicability and prongs)
- Gorman v. Meng, 335 S.W.3d 797 (Tex.App.-Dall. 2011) (comment on Hernandez approach to Chapter 95)