531 S.W.3d 375
Tex. App.2017Background
- Decedent Angel Cuevas Jr., an employee of Big Dog Drilling, was fatally injured on a drilling rig while repairing a cellar jet line; no Endeavor employees were present at the accident.
- Plaintiffs sued Endeavor (owner/operator of the lease) and Big Dog for negligence and premises liability; claim alleged dangerous condition and failure to warn.
- Endeavor moved for summary judgment arguing Chapter 95 of the Texas Civil Practices & Remedies Code applied and plaintiffs had no evidence under §95.003; later plaintiffs added negligent hiring, retention, and supervision claims against Endeavor after the motion was filed.
- Trial court granted Endeavor’s motion in full; plaintiffs appealed, raising two main issues (challenge to no-evidence ruling under §95.003 for original claims; challenge to granting SJ on subsequently pled negligent-hiring/retention/supervision claims when defendant did not amend its motion).
- The appellate court reviewed no-evidence SJ de novo and analyzed whether plaintiffs produced evidence of (1) the owner’s exercise/retention of control over the work and (2) the owner’s actual knowledge of the dangerous condition under §95.003.
- Court concluded plaintiffs failed to show Endeavor had actual knowledge of the specific dangerous use of the cathead/catline that caused Cuevas’s death; ruled Chapter 95 applied to most supplemental claims but not the negligent-hiring claim.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether plaintiffs produced evidence of owner’s actual knowledge of the dangerous condition (§95.003(2)) for original premises/negligence claims | Endeavor (via common ownership theory) knew cathead/catline use was dangerous (others had replaced spools with air hoists), so had actual knowledge | General knowledge of cathead use is insufficient; no evidence Endeavor knew the cellar jet line needed repair or that catline/cathead would be used that way | Held for Endeavor — plaintiffs failed to raise genuine fact issue on actual knowledge; SJ affirmed on original claims |
| Whether trial court erred by granting SJ on supplemental negligent hiring, retention, and supervision claims without amendment of SJ motion | Later-pleaded negligent hiring/retention/supervision claims should survive because defendant didn’t amend motion to address them | Original SJ grounds (Chapter 95 and lack of evidence under §95.003) broadly cover supplemental negligent-retention/supervision (contemporaneous acts) but not negligent-hiring (pre-injury act) | Held partly for defendant and partly for plaintiffs — SJ affirmed as to negligent retention/supervision (subject to Chapter 95 and lack of actual-knowledge evidence); SJ reversed and remanded for negligent-hiring claim |
Key Cases Cited
- Ineos USA, LLC v. Elmgren, 505 S.W.3d 555 (Tex. 2016) (defines actual-knowledge requirement under Chapter 95 and limits general knowledge of hazardous conditions)
- Abutahoun v. Dow Chem. Co., 463 S.W.3d 42 (Tex. 2015) (Chapter 95 applies to negligent activity and premises claims arising from improvements to real property)
- G & H Towing Co. v. Magee, 347 S.W.3d 293 (Tex. 2011) (trial court may not grant SJ on grounds not asserted in motion; discusses harmless-error context)
- Timpte Indus., Inc. v. Gish, 286 S.W.3d 306 (Tex. 2009) (standards for reviewing no-evidence summary judgment)
- Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572 (Tex. 2006) (no-evidence SJ requires nonmovant to present evidence raising genuine fact issues)
- City of Keller v. Wilson, 168 S.W.3d 802 (Tex. 2005) (evidence-review standards for factual sufficiency on summary judgment)