Luis Alfredo Rosa and Myrna Lizzet Rosa v. Mestena Operating, LLC
04-14-00097-CV
| Tex. App. | Mar 19, 2015Background
- On Sept. 14, 2009 Luis Rosa, an employee of Quality Pole, was electrocuted while performing maintenance on AEP-owned utility poles located in a utility easement on land owned by Esteban Garcia.
- Mestena Operating, LLC held mineral and surface rights on Garcia’s property and owned a separate utility pole and electrical equipment (including an inoperable lightning arrester) roughly 1,400 feet away that the Rosas allege caused the energized condition.
- Rosa sued Mestena for negligence / premises liability, alleging Mestena knew or should have known its equipment created the dangerous condition.
- Mestena moved for summary judgment invoking Texas Civil Practice & Remedies Code chapter 95 (limits property-owner liability for contractor injuries); trial court granted summary judgment.
- The Fourth Court of Appeals affirmed, holding chapter 95 applies even absent a contract between the property owner and the contractor, and the Rosas produced no evidence of the control element required by §95.003(1).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Applicability of Chap. 95 | Rosa: chapter 95 applies only when owner hires contractor to work on owner’s property (implies contractual relationship) | Mestena: chapter 95 applies broadly to claims by contractors or their employees arising from improvements regardless of a contract with the owner | Court: chapter 95 applies without requiring an owner–contractor contract |
| Burden of proof on applicability | Rosa: owner must show a contract or privity to qualify as a defendant under §95.002/95.003 | Mestena: owner need only show statutory categories (property owner, contractor/subcontractor/employee and improvement-related claim) to shift burden | Court: owner met burden as property owner; burden shifted to plaintiff to show exception |
| Exception — Control requirement (§95.003(1)) | Rosa: §95.003 presupposes a contractual relationship; absent a contract, actual control is implausible so statute should not apply | Mestena: control can be proven by either contractual right or actual exercise of control; actual control need not arise from a contract | Court: plaintiff bore burden to raise fact issue on control; no evidence of control, so exception not met |
| Exception — Actual knowledge (§95.003(2)) | Rosa: Mestena had (or should be imputed) knowledge of dangerous condition caused by its equipment | Mestena: no competent summary-evidence of actual knowledge | Held: plaintiff failed to produce evidence creating a fact issue on actual knowledge (court did not reach detailed weighing because control element lacking) |
Key Cases Cited
- In re Lee, 411 S.W.3d 445 (Tex. 2013) (statutory construction: plain language is primary guide to legislative intent)
- City of Marshall v. City of Uncertain, 206 S.W.3d 97 (Tex. 2006) (every word of statute presumed included for a reason; give effect to all parts)
- Monsanto Co. v. Cornerstones Mun. Util. Dist., 865 S.W.2d 937 (Tex. 1993) (use ordinary meaning of undefined statutory terms)
- Redinger v. Living, Inc., 689 S.W.2d 415 (Tex. 1985) (adoption of Restatement §414: employer who retains control over independent contractor’s work may be liable)
- Dyall v. Simpson Pasadena Paper Co., 152 S.W.3d 688 (Tex. App.—Houston [14th Dist.] 2004, pet. denied) (chapter 95 enacted to address owners hiring experts to repair/renovate improvements; discusses common-law underpinnings)
- Science Spectrum, Inc. v. Martinez, 941 S.W.2d 910 (Tex. 1997) (lessee liability to persons injured on adjacent premises if lessee created dangerous condition)
- Alamo Nat’l Bank v. Kraus, 616 S.W.2d 908 (Tex. 1981) (building owner’s duty to avoid causing injury to persons on adjoining property)
- Kelly v. LIN Television of Texas, L.P., 27 S.W.3d 564 (Tex. App.—Eastland 2000, pet. denied) (discusses chapter 95 context and policy)