Troy Cox v. Air Liquide America, LP
498 S.W.3d 686
Tex. App.2016Background
- Troy Cox, an employee of a contractor, was repairing an Air Liquide boilermaker when an adjacent unsecured grate shifted; he jumped to avoid falling and was injured.
- Cox sued Air Liquide for premises liability, alleging the owner knew or should have known about the unsecured grate, failed to warn, and violated building-code standards.
- Air Liquide moved for summary judgment asserting Chapter 95 of the Civil Practice & Remedies Code governed the claim and that Cox could not show (1) owner control over the work or (2) actual knowledge of the dangerous condition.
- Air Liquide argued Cox was performing contract construction on Air Liquide’s real estate, so Chapter 95 applied; Cox argued Chapter 95 did not apply because his injury arose from a preexisting unsecured grate he was not hired to repair.
- The trial court granted summary judgment for Air Liquide; on appeal the Fourteenth Court reviewed whether Air Liquide met the burden to show Chapter 95 applied.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Chapter 95 governs Cox’s claim | Cox: Chapter 95 does not apply because injury arose from a preexisting unsecured grate he was not hired to repair | Air Liquide: Chapter 95 applies because Cox was performing contract work on the property where the injury occurred | Reversed summary judgment — Air Liquide failed to show Chapter 95 applied because it did not prove the injury arose from the same improvement Cox was hired to repair |
| Whether owner carried burden to prove applicability of Chapter 95 on summary judgment | Cox: owner must prove applicability by traditional summary-judgment evidence; Air Liquide did not do so | Air Liquide: attempted to rely on authority and general assertions that Cox was improving Air Liquide’s real estate | Court: Owner bears the burden; Air Liquide did not present evidence that Cox was hired to repair the grate or that the grate was the same improvement being worked on |
| Whether roof/fixture distinctions matter for Chapter 95 analysis | Cox: different improvements (fixture vs. surrounding structure) mean Chapter 95 doesn’t apply | Air Liquide: injury occurring while working on premises is enough | Court: Follows Elmgren and Hernandez — Chapter 95 applies only when injury results from condition/use of the same improvement being worked on |
| Whether appellate court must reach other summary-judgment grounds after Chapter 95 determination | Cox: N/A | Air Liquide: N/A | Court: Because Air Liquide failed to show Chapter 95 applied, court did not address Air Liquide’s remaining summary-judgment arguments |
Key Cases Cited
- CMH Homes, Inc. v. Daenen, 15 S.W.3d 97 (Tex. 2000) (describes common-law premises-liability standard)
- Keetch v. Kroger Co., 845 S.W.2d 262 (Tex. 1992) (premises-liability duty principles)
- Abutahoun v. Dow Chem. Co., 463 S.W.3d 42 (Tex. 2015) (Chapter 95 is the claimant’s sole means of recovery when applicable)
- Hernandez v. Brinker Int’l, Inc., 285 S.W.3d 152 (Tex. App.—Houston [14th Dist.] 2009) (distinguishing repairs to a fixture from defects in a different improvement)
- Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844 (Tex. 2009) (traditional summary-judgment burden rules)