the Dow Chemical Company v. Magdalena Adrienna Abutahoun
05-11-01277-CV
| Tex. App. | May 8, 2015Background
- Dow contracted Win-Way to install asbestos-containing insulation on a large pipeline system at its Freeport facility; Robert Henderson worked for Win-Way and was exposed to asbestos both by his own work and by nearby Dow employees' work.
- Henderson developed mesothelioma; his estate and family (the Hendersons) sued Dow and others for negligence and product-liability theories; claims were consolidated in MDL proceedings.
- The MDL court granted partial summary judgment to Dow: claims premised on Henderson’s own conduct were dismissed under Chapter 95, but claims based on negligent acts of Dow employees were allowed to proceed to jury.
- A jury found Dow liable (30%) and the trial court entered judgment for the Hendersons; Dow appealed arguing Chapter 95 barred the remaining negligence claims because the statute applies to claims arising from the condition or use of an improvement.
- The court of appeals held Chapter 95 applied and rendered a take-nothing judgment for Dow; the Texas Supreme Court granted review and affirmed the court of appeals.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Chapter 95 applies when claim is based on property owner’s contemporaneous negligent acts (not contractor’s work) | Hendersons: Chapter 95 applies only to claims arising out of the contractor’s own work; does not cover a contractor who is a passive victim of owner’s negligent activity | Dow: Chapter 95 applies to negligence claims against a property owner so long as the claim "arises from the condition or use of an improvement" on which the contractor worked, regardless of which actor caused the negligence | Held: Chapter 95 applies to independent-contractor negligence claims against property owners, including claims based on the owner’s contemporaneous negligent activity, when §95.002(2) is satisfied |
| If Chapter 95 applies, does it bar recovery absent proof of §95.003 elements (control and actual knowledge)? | Hendersons: (did not contest applicability here) | Dow: Chapter 95 limits owner liability; plaintiff must prove both control (beyond ordering/inspecting) and owner’s actual knowledge of danger | Held: When Chapter 95 applies, plaintiff’s recovery against a property owner is governed exclusively by §95.003’s requirements; Hendersons failed to meet those elements on this record (unchallenged) |
| Whether Chapter 95 abrogates common-law negligence remedies for contractors | Hendersons: Chapter 95 should not be read to abrogate common-law contemporaneous-negligence claims absent clear legislative intent | Dow: Chapter 95 replaces common-law recovery in covered circumstances | Held: Chapter 95 does not wholesale abrogate common-law claims; it governs only claims that fall within its applicability (claims outside §95.002 remain governed by common law) |
| How to read "condition or use of an improvement" and "arises from" in §95.002(2) | Hendersons: Phrase limits Chapter 95 to contractor-caused injury | Dow: Phrase covers injuries caused by condition or by owner/employee activity on the improvement | Held: "Arises from" entails causation; "condition or use" covers both premises defects and negligent activities (including respondeat superior liability), so §95.002(2) reaches owner-employee negligent acts that cause contractor injury |
Key Cases Cited
- State v. Shumake, 199 S.W.3d 279 (statutory interpretation begins with plain text)
- Crosstex Energy Servs., L.P. v. Pro Plus, Inc., 430 S.W.3d 384 (de novo review of statutory construction)
- City of Rockwall v. Hughes, 246 S.W.3d 621 (do not resort to extrinsic aids when statute is unambiguous)
- Redinger v. Living, Inc., 689 S.W.2d 415 (distinguishes premises-defect liability from negligent-activity liability)
- DeWitt v. Harris County, 904 S.W.2d 650 ("use" language can encompass respondeat superior liability)
- Robinson v. Central Tex. MHMR Ctr., 780 S.W.2d 169 ("condition or use" is difficult but interpretable; courts must apply statute)
- Del Lago Partners, Inc. v. Smith, 307 S.W.3d 762 (negligent activity vs. premises defect distinction)
- Ryder Integrated Logistics, Inc. v. Fayette County, 453 S.W.3d 922 ("arising from" means at least proximate causation)
- Felton v. Lovett, 388 S.W.3d 656 (statute does not affect common law beyond its stated coverage)