Oiltanking Houston, L.P., Oiltanking Holdings Americas, Inc., Oiltanking Partners, L.P., and Oiltanking North America, L.L.C. v. Alberto Delgado, Individually and as Representative of the Estate of Javier Delgado, Victoria Delgado, Individually and as Next Friend of Maria Delgado, a Minor Child, Jimmy Gutierrez, Jesus Delgado, Samuel Delgado, Edgar Delgado
14-14-00158-CV
| Tex. App. | May 28, 2015Background
- Worker Robert Henderson (independent contractor) was exposed to asbestos while insulating pipelines at Dow's facility; he sued Dow for negligence and related claims, and later his estate continued the suit after his death.
- Trial jury found Dow negligent; trial court entered judgment for plaintiffs; Dow appealed asserting Chapter 95 of the Texas Civil Practice & Remedies Code bars or limits recovery.
- Chapter 95 limits property-owner liability for injuries to contractors/contractor employees "arising from the condition or use of an improvement to real property" and requires proof that the owner (1) exercised or retained control over the work and (2) had actual knowledge of the danger and failed to warn (section 95.003).
- The court of appeals held Chapter 95 applied to the Hendersons’ claims and rendered a take-nothing judgment for Dow; Supreme Court granted review on whether Chapter 95 covers owner negligent-activity claims (not only premises-defect claims).
- The Supreme Court affirmed the court of appeals: Chapter 95 applies to all independent-contractor negligence claims (including negligent-activity) when the statute’s prerequisites are met; on the record the Hendersons failed to satisfy section 95.003 burdens, so Dow prevailed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Chapter 95 applies only to claims arising from a condition or use of an improvement or also to negligent-activity claims | Hendersons: Chapter 95 does not preclude claims based on a property owner's contemporaneous negligent activity; statute should be read to preserve common-law negligence against owners | Dow: Chapter 95 applies to all negligence claims against property owners when the claim "arises from the condition or use of an improvement" and section 95.003 elements are met | Court: Chapter 95 applies to all negligence claims (including negligent activity) that meet section 95.002(2) textual requirements |
| Who bears burden when Chapter 95 applies | Hendersons: Chapter 95 should not shift or constrain common-law recovery against property owners for owner negligence | Dow: When Chapter 95 applies, plaintiffs must meet its two-pronged evidentiary burden (control + actual knowledge) under section 95.003 | Court: Plaintiffs must satisfy both prongs of section 95.003 to impose owner liability |
| Scope of "condition or use of an improvement" and whether exposure as bystander fits | Hendersons: Exposure from Dow employees working on the same pipe system is not a claim "arising from" condition/use of an improvement that would invoke Chapter 95 | Dow: The asbestos exposure occurred on the improvement (pipe system) where contractor worked, so the clause is satisfied | Court: Whether Chapter 95 applies depends on whether the claim arises from the condition/use of the improvement as pleaded; here appellate conclusion that record did not establish liability under Chapter 95 was not challenged and controls |
| Whether Chapter 95 abrogates common-law negligence entirely | Hendersons: Chapter 95 should not be construed to abrogate preexisting common-law negligence claims absent clear legislative intent | Dow: Chapter 95 imposes statutory standards but does not leave contractors without recovery if statutory elements are met | Court: No clear repugnance found; Chapter 95 did not impermissibly abrogate common-law rights but provides the statutory framework and evidentiary burdens when applicable |
Key Cases Cited
- Elmgren v. Ineos USA, LLC, 431 S.W.3d 657 (Tex. App.—Houston [14th Dist.] 2014) (discussed prior appellate view limiting Chapter 95's reach to premises defects)
- Johnston v. Oiltanking Houston, L.P., 367 S.W.3d 412 (Tex. App.—Houston [14th Dist.] 2012) (control required for Chapter 95 liability must be more than scheduling/inspection rights)
- Redinger v. Living, Inc., 689 S.W.2d 415 (Tex. 1985) (distinction between premises-defect liability and liability for negligent activity)
- DeWitt v. Harris County, 904 S.W.2d 650 (Tex. 1995) (construing "use" language to include liability based on respondeat superior)
- Waffle House, Inc. v. Williams, 313 S.W.3d 796 (Tex. 2010) (statutory titles/headings carry no weight when statute is clear)
- Urena v. W. Inv'rs, Inc., 162 S.W.3d 547 (Tex. 2005) (premises liability is a form of negligence; distinctions analyzed)