Elmgren v. Ineos USA, LLC
431 S.W.3d 657
Tex. App.2014Background
- Joe Elmgren, a Zachry boilermaker subcontractor, was injured by a superheated gas release/explosion while replacing valves on a de-coke header at Ineos’ Olefins #2 furnace during a permitted maintenance operation.
- Ineos (plant owner/operator) and team leader Jonathan “Bubba” Pavlovsky moved for traditional and no-evidence summary judgment invoking Texas Civil Practice & Remedies Code chapter 95 (premises-owner/independent-contractor protection).
- Trial court granted summary judgment for Ineos and Pavlovsky, finding chapter 95 applied, Ineos/Pavlovsky lacked control over the work, and lacked actual knowledge of the dangerous condition; Elmgrens appealed.
- Key factual disputes included whether the injury arose from the same “improvement” being repaired, whether Ineos/Pavlovsky had actual knowledge of gas in the line, and whether negligent-activity or negligent-undertaking claims were pleaded.
- The court considered whether chapter 95 bars negligent-activity and negligent-undertaking claims distinct from premises-liability claims and whether Pavlovsky individually proved he was a protected entity under chapter 95.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Applicability of §95 to Ineos (same improvement) | Elmgrens: injury arose from broader gas-process separately controlled by Ineos, not the improvement being repaired | Ineos: valve/header work was part of the same improvement; §95 applies | Held: §95 applies to Ineos for claims arising from the improvement Joe was repairing (affirmed) |
| Actual knowledge under §95.003(2) | Elmgrens: circumstantial evidence and prior similar incidents create fact issue of Ineos’ knowledge | Ineos: LOTO, negative sniff test, testimony shows no actual knowledge of gas in line | Held: No genuine fact issue; Elmgrens failed to show Ineos had actual knowledge (affirmed) |
| Applicability of §95 to Pavlovsky (individual defendant) | Elmgrens: Pavlovsky is not a property owner/contractor; §95 does not automatically protect employees | Pavlovsky: as Ineos employee, he is entitled to §95 protection | Held: Pavlovsky did not conclusively prove §95 applies to him as an individual (reversed as to Pavlovsky) |
| Effect of §95 on negligent-activity / negligent-undertaking claims | Elmgrens: their pleadings include negligent-activity and negligent-undertaking theories (e.g., Ineos told Zachry lines were safe) not barred by §95 | Ineos/Pavlovsky: §95 bars all negligence claims arising from work on the improvement | Held: §95 does not as a matter of law bar distinct negligent-activity and negligent-undertaking claims; summary judgment on those theories was erroneous (reversed and remanded) |
Key Cases Cited
- Redinger v. Livingston, 689 S.W.2d 415 (Tex. 1985) (property owner liability where owner retains/control over manner of contractor’s work)
- Dyall v. Simpson Pasadena Paper Co., 152 S.W.3d 688 (Tex.App.-Houston [14th Dist.] 2004) (discusses legislative intent and limits of chapter 95; examples where chapter 95 would not bar recovery)
- Ellwood Tex. Forge Corp. v. Jones, 214 S.W.3d 693 (Tex.App.-Houston [14th Dist.] 2007) (chapter 95 background and effect)
- Vanderbeek v. San Jacinto Methodist Hosp., 246 S.W.3d 346 (Tex.App.-Houston [14th Dist.] 2008) (application of §95 where injury arose from the improvement being repaired)
- Del Lago Partners, Inc. v. Smith, 307 S.W.3d 762 (Tex. 2010) (distinction between negligent-activity and premises-liability theories)
- Nall v. Plunkett, 404 S.W.3d 552 (Tex. 2013) (construing summary-judgment grounds to encompass negligent-undertaking)