Luis Alfredo Rosa and Myrna Lizzet Rosa v. Mestena Operating, LLC
04-14-00097-CV
| Tex. App. | Jan 16, 2015Background
- Luis Rosa (employee of Quality Pole) was electrocuted while repairing an AEP-owned utility pole under a contract between Quality Pole and AEP.
- Mestena Operating, LLC held mineral and surface rights to nearby Garcia property and owned a separate utility pole and electrical equipment (including a lightning arrester) used to power a pump jack about 1,400 feet from the AEP pole.
- Plaintiffs allege Mestena’s failure to replace a blown lightning arrester on its pole caused a subsequent surge that energized the AEP pole where Rosa was working.
- Mestena moved for summary judgment invoking Texas Civil Practice & Remedies Code chapter 95 (property-owner liability for acts of independent contractors); the trial court granted judgment for Mestena.
- The Fourth Court of Appeals affirmed, holding chapter 95 applied and plaintiffs failed to raise evidence of control under §95.003(1).
- Appellants filed a motion for rehearing arguing chapter 95 requires a contractual relationship between the property owner and the contractor whose work (or workplace) caused the injury, that the Restatement §414 common-law basis presupposes such a contract, and that legislative history and additional statutory-construction arguments should be considered.
Issues
| Issue | Rosa's Argument | Mestena's Argument | Held |
|---|---|---|---|
| Whether chapter 95 applies when the injured worker was performing work on another party's property and the defendant property owner had no contract related to that work | Chapter 95 does not apply because the statute presupposes a contract between the property owner and a contractor for work on the property owner’s property | Chapter 95 applies to property owners regardless of whether they contracted for the particular work that caused the injury | Court held chapter 95 applied despite Mestena having no contract with the contractor for the site where the injury occurred (affirming summary judgment) |
| Whether §95.003(1) requires a contractual relationship as a precondition to liability (control inquiry) | §95.003(1) presupposes a contract because the statute exempts certain contractual rights (start/stop, inspect, receive reports), and actual control typically arises only from a contractual relationship | Liability may be based on actual exercise of control (not only contractual rights); plaintiffs must prove control to avoid the statute’s bar | Court held plaintiffs failed to raise summary-judgment evidence of control under §95.003(1); actual control is sufficient to trigger liability if proved |
| Whether the Restatement (Second) of Torts §414 (adopted in Redinger) requires a contractual relationship between the employer of an independent contractor and the contractor | Restatement §414 (and comments) contemplates an employer who entrusts work to an independent contractor, which presupposes a contractual relationship | The common-law rule (Redinger) does not limit applicability to situations where the property owner had a contract with the contractor whose employee was injured | Court concluded the common law did not require a contract in this context and that chapter 95 codified Redinger with modification (actual knowledge required) |
| Whether the court may consider legislative history and additional statutory-construction arguments raised on appeal | Legislative history supports the plain-language interpretation that chapter 95 requires a contract and should be considered in support of that interpretation; appellate court should consider additional statutory-construction arguments even if first articulated on appeal | Chapter 95 is unambiguous so legislative history is unnecessary; the argument was not raised below and therefore waived | Court declined to rely on legislative history (finding statute unambiguous) and declined to consider an argument it said was not preserved; appellants sought rehearing to have these considered |
Key Cases Cited
- City of Marshall v. City of Uncertain, 206 S.W.3d 97 (Tex. 2006) (every word of a statute presumed included for a reason; effect given to all parts in statutory construction)
- Monsanto Co. v. Cornerstones Mun. Util. Dist., 865 S.W.2d 937 (Tex. 1993) (use ordinary meaning for undefined statutory terms)
- Redinger v. Living, Inc., 689 S.W.2d 415 (Tex. 1985) (Texas adoption of Restatement (Second) of Torts §414 principles governing employer liability for independent contractors)
- Fisher v. Lee & Chang P'ship, 16 S.W.3d 198 (Tex. App.—Houston [1st Dist.] 2000) (courts may consult legislative history in statutory interpretation to support plain-language analysis)
- PCTV Gold, Inc. v. SpeedNet, LLC, 508 F.3d 1137 (8th Cir. 2007) (appellate courts may address issues first raised on appeal if encompassed in a party’s general argument and no new evidence is required)
- Evanstad v. State, 178 Ariz. 578 (App. 1993) (appellate courts should consider arguments that assist proper statutory interpretation)