335 S.W.3d 797
Tex. App.2011Background
- Appellants sued Ngo and Hayden seeking damages for the death of Sterling Scott Gorman due to alleged negligence in wiring and installation of a walk-in cooler/condenser.
- Ngo and Hayden installed a walk-in cooler and modified a condenser; the condenser was not grounded and no proper electrical disconnect was provided.
- Customers reported shocks from the cooler; Hayden inspected thrice without finding the cause and later instructed power to be left off pending electrician investigation.
- Gorman, hired by Ngo, diagnosed the electrical problem and was electrocuted while inspecting the condenser; Perryman opined the installation violated the National Electrical Code and caused energization by lack of grounding.
- Trial court entered a take-nothing judgment; the court made findings that Chapter 95 applicability required proof of owner control and actual knowledge, and concluded no common-law duty extended to Hayden; appellants appealed the judgment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Chapter 95 is an affirmative defense that Ngo waived by not pleading | Gorman argues Chapter 95 is a plaintiff-burdened issue, not an affirmative defense | Ngo contends Chapter 95 is an affirmative defense/waived for failure to plead | Chapter 95 applies; plaintiff bears burden to prove control and knowledge; Ngo not required to plead; no waiver |
| Whether Chapter 95 applies to Ngo’s liability for Gorman’s death | Chapter 95 applies because the condo is an improvement and Gorman was on site for repair/inspection | Chapter 95 does not apply because the condenser/improvement analysis is unfavorable | Chapter 95 applies; condenser was an improvement; Gorman’s activity fell within repair/inspection linked to the improvement |
| Whether Chapter 95 preempts common-law claims against Ngo | Common-law negligence claims should apply if Chapter 95 does not control | Chapter 95 preempts common-law liability for owners of real property | Chapter 95 provides exclusive remedy; common-law claims precluded |
| Whether Hayden breached a duty to make the premises safe and proximately caused Gorman’s death | Hayden failed to ensure a safe work environment for inspection | Hayden took steps to de-energize and warn; fault not shown | Evidence supports Hayden exercised due care; trial court’s factual findings are supported; Hayden not liable |
Key Cases Cited
- Rueda v. Paschal, 178 S.W.3d 107 (Tex.App.-Houston [1st Dist.] 2005) (clarifies Chapter 95 burden on applicability)
- Arsement v. Spinnaker Exploration Co., LLC, 400 F.3d 238 (5th Cir.2005) (supports that Chapter 95 can supersede common law)
- Norris v. Thomas, 215 S.W.3d 851 (Tex.2007) (discusses improvement for purposes of Chapter 95)
- Sonnier v. Chisholm-Ryder Co., 909 S.W.2d 479 (Tex.1995) (definition of improvement and attachment to realty; owner’s intent critical)
- Francis v. Coastal Oil & Gas Corp., 130 S.W.3d 76 (Tex.App.-Houston [1st Dist.] 2003) (analyzes scope of Chapter 95 and its preemption of common-law claims)
- Phillips v. Dow Chem. Co., 186 S.W.3d 121 (Tex.App.-Houston [1st Dist.] 2005) (explains 'failure to provide a safe workplace' does not require the defect to be the object of the work)