SUBSTITUTE OPINION
Aрpellants Johannes “Joe” Elmgren and Valarie Elmgren, both individually as next friends for their minor children (collectively, the “Elmgrens”), appeal the trial court’s summary judgment in favor of ap-pellees, Ineos USA, LLC f/k/a Innovene USA, LLC, Ineos Polymers, Inc., a/k/a Ineos Olefins, Ineos Olefins & Polymers USA, a division of Ineos USA, LLC (collectively, “Ineos”), and Jonathan “Bubba” Pavlovsky, on all its claims. Joe was working for Ineos’ subcontractor pursuant to a maintenance services contract. White replacing valves on a de-coke header system at Ineos’ plant, Joe suffered burns
I. Factual and PROCEDURAL Background
Appellant Johannes “Joe” Elmgren was employed as a boilermaker by Zachry Industrial, Inc. Zachry had contracted with Ineos Olefins & Polymers USA, a division of Ineos USA, LLC, to perform maintenance services at Ineos’ plant. Joe reported to work at the plant at approximately 7:00 p.m. on June 22, 2010. Joe’s task was to replace valves on a de-coke header on the Olefins # 2 DDB 101B furnace. Joe’s Zachry supervisor, David Robin, and In-eos’ operator, Clint Pierce, conducted a lock out tag out (LOTO) procedure to ensure there was no gas present in the line. A sniff test for gas was performed at approximately 8:30 p.m. with a zero result. Ineos issued the work permit for the valve replacement. At approximately 3:00 a.m., during the process of removing the second valve, superheated gas was released in an explosion that resulted in burns to Joe’s torso, neck, and jaw line.
The Elmgrens brought claims against Ineos and Pavlovsky for negligence and wrongful termination. The Elmgrens also sought exemplary damages. Pavlovsky is the working team leader over furnace maintenance at Ineos. Ineos and Pavlov-sky filed traditional and no-evidence motions for summary judgment. Under their traditional motions, they argued that they qualified for protection from liability under chapter 95; they were not liable as a matter of law because they did not exercise or retain control, either contractually or actually, over the manner in which Joe’s work was performed; and they were not liable as a matter of law because they had no actual knowledge of the danger or condition resulting in Joe’s injuries. Under their no-evidence motions, Ineos and Pav-lovsky argued that the Elmgrens produced no evidence of control over the work performed by Joe and no evidence of actual knowledge as required by chapter 95. The Elmgrens responded that chapter 95 did not apply to Pavlovsky because he is not a property owner, Ineos retained contractual and actual control over Joe’s work, and Ineos had actual knowledge of the danger or condition resulting in Joe’s injuries. The Elmgrens also argued that chapter 95 does not apply to their claims in this situation because they “arise from Ineos’ direct role in informing Zachry’s crew that the system was safe to proceed.”
II. Summary Judgment Standards
We review the trial court’s granting of summary judgment de novo. Ferguson v. Bldg. Materials Corp. of Am.,
A no-evidence motion for summary judgment must be granted if: (1) the moving party asserts that there is no evidence of one or more specified elements of a claim or defense on which the adverse party would have the burden of proof at trial and (2) the respondent produces no summary judgment evidence raising a genuine issue of material fact on those elements. See Tex.R. Civ. P. 166a(i); Mayer v. Willow-brook Plaza Ltd. P’ship,
In reviewing the granting of either type of summary judgment motion, we indulge every reasonable inference in favor of the nonmovant, resolve any doubts arising in its favor, and take as true all evidence favorable to it. Echartea v. Calpine Corp., No. 14-10-00019-CV,
III. Analysis
A. Applicability of chapter 95
Chapter 95 of the Texas Civil Practice and Remedies Code was enacted in 1996 as part of a sweeping tort-reform package. Ellwood Tex. Forge Corp. v. Jones,
(1) against a property owner, contractor, or subcontractor for personal injury, death, or property damage to an owner, a contractor, or a subcontractor or an employee of a contractor or subcontractor; and
(2) that arises from the condition or use of an improvement to real property where the contractor or subcontractor constructs, repairs, renovates or modifies the improvement.
Tex. Civ. Prac. & Rem.Code § 95.002 (West 2011) (titled “Applicability”). “Claim” is defined in chapter 95 as “a claim for damages caused by negligence.” Id. § 95.001(1). “Property owner” is defined as “a person or entity that owns real property primarily used for commercial or business purposes.” Id. § 95.001(3). Under chapter 95:
A property owner is not liable for personal injury, death, or property damage to a contractor, subcontractor, or an employee of a contractor or subcontractor who constructs, repairs, renovates, or modifies an improvement to real property, including personal injury, death, or property damage arising from the failure to provide a safe workplace unless:
(1) the property owner exercises or retains some control over the manner in which the work is performed, other than the right to order the work to start or stop or to inspect progress or receive reports; and
(2) the property owner had actual knowledge of the danger or condition resulting in the personal injury, death, or property damage and failed to adequately warn.
Id. § 95.003 (titled “Liability for Acts of Independent Contractors”). Section 95.003(1) served to codify the Texas Supreme Court’s holding in Redinger v. Living, Inc.,
B. The trial court did not err in granting summary judgment pursuant to chapter 95 as to negligence claims against Ineos arising from the condition of the improvement Zaсhry was repairing.
1. Zachry and Joe were repairing the “gas process” improvement.
In their related first and second issues, the Elmgrens do not dispute that the facts at issue fall within subsection (1) of section 95.002 with respect to Ineos. The Elmgrens brought a claim for damages caused by negligence against a property owner or contractor (Ineos) for personal injury to an employee (Joe) of a subcontractor (Zachry). See id. § 95.002(1).
The Elmgrens primarily rely on this court’s plurality opinion in Hernandez v. Brinker International, Inc.,
The roof and the air-conditioning system are separate improvements to real property. Section 95.002(2) states that Chapter 95 applies only to a claim “that arises from the condition or use of an improvement to real property where the contractor or subcontractor [repairs or modifies] the improvement.” Therefore, pursuant to the plain language of section 95.002(2), Chapter 95 does not apply to a contractor’s employee’s claim against a property owner when the improvement the condition or use of which gives rise to the injury claim is not the same improvement the contractor was at the premise to address at the time of injury.
Ineos relies on cases where this court has concluded that the plaintiffs injuries did arise from the condition or use of the improvement the plaintiff was repairing or modifying. For example, in Vanderbeek, a hospital engaged a contractor for plumbing work necessary to remodel the emergency room. The plaintiff, a plumber who worked for the contractor, suffered chemical burns when a caustic liquid came out of a drainage pipe that he had previously capped. We concluded that section 95.002(2) applied and affirmed a take-nothing summary judgment for the hospital.
Likewise, in Dyall, without specifically discussing the applicability of section 95.002(2), this court sitting en banc affirmed a take-nothing summary judgment in favor of a paper mill owner in an action by an independent contractor’s employees for respiratory injuries relating to the inhalation of toxic gases released from a pipe while they were repairing a leaking flange.
The plurality in Hernandez, however, did not take issue with Vanderbeek and Dyall because in those cases the facts supported that “the employee’s injury was caused by a condition or the use of the improvement he was repairing or modifying.”
Under the plain language of section 95.002(2), to meet their burden on summary judgment to show that chapter 95 applies to the Elmgrens’ claims, Ineos and Pavlovsky must facially establish that the claims “arise[ ] from the condition or use of an improvement to real property where [Zachry] constructs, repairs, renovates, or modifies the improvement.” See Tex. Civ. Prac. & Rem.Code § 95.002(2). As alleged, Zachry and Joe were working on repairing valves on the “common header system and specifically on a de-coke header” on the Olefins # 2 DDB 101B furnace at Ineos’ plant. The Elmgrens also allegеd that Joe was severely injured by a “sonic boom type super heated explosion of gases” and that his injuries resulted from a “super heated gas leak” “into the line upon which he was working.” The Elm-grens described this leak as “an unreasonably dangerous condition.” They do not argue that the common header system and the de-coke header are not an improvement to real property, but rather that the particular LOTO line and valves Joe was working on do not qualify as the same improvement as the rest of the “gas process.” Essentially, what the Elmgrens would have us do is to attempt to divide the plant’s “gas process” system of furnaces and headers valve-by-valve or line-by-line into separate, discreet improvements. However, neither section 95.002(2) nor our case law, including the plurality in Hernandez, precludes us from determining these particular alleged facts indicate that the Elmgrens’ claims arise from the condition of the “gas process” system improvement and that Zachry and Joe were repairing or modifying such improvement. Rather, such a result is consistent with the plain language of section 95.002(2). See Tex. Civ. Prac. & Rem.Code § 95.002(2). In addition, this result is consistent with the outcomes in Vanderbeek and Dyall,
We therefore conclude Ineos has conclusively proven that chapter 95 applies, and we overrule the Elmgrens’ first and second issues as to Ineos—to the extent the Elm-grens alleged negligence claims arising from the condition of the improvement Za-chry and Joe were repairing. See Vanderbeek,
2. There is no genuine fact issue on Ineos’ actual knowledge.
In their third issue, the Elmgrens argue that, to the extent chapter 95 applies, they raised a genuine fact issue that Ineos exercised or retained control over Zachry’s and Joe’s work. See Tex. Civ. Prac. & Rem.Code § 95.003(1). Likewise, in their fourth issue, the Elmgrens arguе that they raised a fact issue that Ineos had actual knowledge of the danger or condition resulting in Joe’s burns and failed to adequately warn. See id. § 95.003(2).
Both of these independent and necessary conditions of section 95.003 must be met before liability will be imposed upon the property owner. See id. § 95.003; Vanderbeek,
Where the summary judgment evidence fails to raise a fact issue on one prong of section 95.003, we need not address the other prong. See Bartee v. Baylor Coll. of Med., No. 14-06-00324-CV,
In its summary judgment motion, Ineos specifically argued there was no evidence Ineos had actual knowledge that gas existed in the pipe on which Joe was working at the time of the accident. In addition to the line being LOTO and the sniff test performed prior to the work resulting in zero, Ineos pointed to testimony from Joe that he did not have any information from
The Elmgrens point to Pavlovsky’s testimony that he has heard that sometimes de-coke gate valves leak even when they are new. Pavlovsky further clarified, however, that he has never personally witnessed a new valve leaking. The Elm-grens further suggest that Ineos knew of the hazardоus condition of gas in the line because a similar explosion occurred a few months earlier while Zachry employees were repairing a flange on a pipe about one hundred feet from the Olefins #2 DDB 101B furnace. The Elmgrens note that a fire watch was required pursuant to the work permit. They point to testimony from Pierce that, after Joe’s accident, In-eos requires a full nitrogen purge before changing valves. David Dworaczyk, unit engineer for Ineos, testified that the better practice is to perform the sniff test closer in time to when the work begins.
However, even viewing the summary judgment record in the light most favorable to the Elmgrens, none of this evidence indicates Ineos had actual knowledge of any valve allegedly leaking gas into the line that resulted in Joe’s injuries at the time of the accident. The evidence does not show Pavlovsky was aware that any new gate valve at Ineos’ plant was leaking. The evidence shows that there had previously been flammable gas in a line during a prior repair and that there are arguably better methods for clearing and checking a line for gas. See Echartea,
We conclude that the Elmgrens failed to meet their burden to raise a genuine fact issue on Ineos’ actual knowledge pursuant to section 95.003(2). We overrule the Elmgrens’ fourth issue. Because the Elm-grens failed in their burden regarding the second prong of section 95.003, we need not and do not address the first prong on control or their third issue, which addresses that prong. See Bartee,
C. The trial court erred in granting summary judgment pursuant to chapter 95 as to Pavlovsky because he did not conclusively prove that chapter 95 applies to him.
With respect to Pavlovsky, the Elmgrens argue that Pavlovsky did not
D. The trial court erred in granting summary judgment on the Elm-grens’ negligent-activity and negligent-undertaking claims.
Both Ineos and Pavlovsky moved for traditional summary judgment on the ground that they were “not hable for the alleged personal injury sustained by [Joe] under ... section 95.003; thus, summary judgment is appropriate as a matter of law.” We construe this as a global summary judgment ground that encompasses all claims for personal injury pleaded by the Elmgrens. See Nall v. Plunkett,
On appeal, in addition to the argument that chapter 95 does not apply because Joe’s injuries did not arise from the condition of the specific improvement that he was rеpairing, discussed and rejected above, the Elmgrens also assert that chapter 95 does not bar their negligence claims based on the alternative theories of negligent activity and negligent undertaking.
Premises liability is a special form of negligence where the duty owed to the plaintiff depеnds on the plaintiffs status at the time of the incident. W. Invs., Inc. v. Urena,
Whereas a premises-defect claim is based on the property itself being unsafe, a negligent-activity claim requires that the plaintiffs injury result from a contemporaneous activity itself rather than from a condition created on the premises by the activity. State v. Shumake,
For purposes of a negligent-undertaking claim, the “critical inquiry concerning the duty element” is “whether a defendant acted in a way that requires the imposition of a duty where one otherwise would not exist.” Nall,
The Texas Supreme Court recognizes a distinction between the separate theories of premises liability and negligent activity. Del Lago,
Next, we must determine whether chapter 95 applies to automatically bar all such negligence claims. In other words, whether chapter 95 as a matter of law provides the Elmgrens’ exclusive remedy against Ineos here. We conclude that it does not. In Dyall, albeit in dicta, our en banc court indicated that the intent of chapter 95 was not to bar all negligence claims against property owners. See
Recently, in Oncor Electric Delivery Co., LLC v. Murillo,
In doing so, the Oncor court noted the Texas Supreme Court’s consistent recognition “that negligent-activity claims and premises-defect claims involve two independent theories of recoveiy .... although ‘[t]he lines between negligent activity and premises liability are sometimes unclear,’ there is a recognized distinction between the two theories.” Id. at *8 (quoting Del Lago,
[Wjhere [the plaintiff] was not injured because a condition occurred as a result of equipment failure, act of God, third party interference, or the non-contemporaneous act of the easement owner—but by the negligent acts of several defendants, including [the easement owner].
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Id. at *10 (discussing Tex. Dep’t of Transp. v. Ramming,
In light of the Texas Supreme Court’s continued recognition of the distinct nature of premises-liability, negligent-activity, and negligent-undertaking theories of liability, and in light of Dyall and Oncor, we conclude that chapter 95 defeats a premises-liability claim if the statutory requisites are satisfied but does not as a matter of law reach distinct claims for negligent activity and negligent undertaking.
Therefore, in these circumstances where the Elmgrens’ petition fairly included negligent-activity and negligent-undertaking theories of liability, the trial court erred in granting summary judgment insofar as its order operated to grant summary judgment pursuant to chapter 95 on the Elm-grens’ claims for negligent activity and negligent undertaking. We of course express no opinion as to whether the Elm-grens ultimately could establish any negligence claims (aside from premises-liability claims) and whether Ineos and Pavlovsky ultimately could be liable for any breaches of duty, if owed.
E. The trial court did not abuse its discretion in denying the Elmgrens’ motion to compel.
In their fifth issue, the Elmgrens argue that the trial court erred in denying their motion to compel responses to their 8th request for production, where they requested the names and contact information for all process engineers on duty at Ineos’ plant within three days of Joe’s accident. Ineos and Pavlovsky had objected on grounds that the request was overly broad, unduly burdensome, vague, and ambiguous “as to what is meant by process engineers.” In their motion, the Elm-grens pointed to Girlinghouse’s testimony that, during Zachry’s investigation, “an In-eos engineer” who worked during the dаy gave Girlinghouse information regarding leaking valves as the cause of the accident. Girlinghouse did not write any names down and could not describe or remember who told him that. Girlinghouse used the
Thereafter, the Elmgrens took the deposition of Ineos’ corporate representative Randy Kay. The Elmgrens again moved to compel the identity of the process engineers,
We review a trial court’s ruling on a motion to compel discovery under an abuse-of-discretion standard. See Johnson v. Davis,
The Elmgrens fail to show how the trial court abused its discretion by denying their first motion to compel or by failing to rule on, or implicitly denying,
We overrule the Elmgrens’ fifth issue.
IV. Conclusion
Based on the foregoing, we affirm in part and reverse and remand in part the trial court’s summary judgment. With regard to the Elmgrens’ negligence claims based on a premises-liability theory, we (1) affirm the trial court’s granting of summary judgment pursuant to chapter 95 as to Ineos and (2) reverse the court’s granting of summary judgment pursuant to chapter 95 as to Pavlovsky. With regard to the Elmgrens’ negligence сlaims based on negligent-activity and negligent-undertaking theories, we reverse the trial court’s granting of summary judgment. In all other respects, we affirm the summary judgment. We remand the case for proceedings consistent with this opinion.
Notes
. Ineos and Pavlovsky also moved for traditional summary judgment as to the Elmgrens' wrongful termination claim and for no-evidence summary judgment as to the Elmgrens' claims for wrongful termination and exemplary damages. The Elmgrens responded to these grounds in the trial court but have not raised, much less presented any argument or authority on, the granting of summary judgment on these claims on appeal. Therefore, they have abandoned these claims and we do not address summary judgment as to these claims. See Duerr v. Brown,
. The Redinger court held that, while in general a premises owner does not have a duty to see that an independent contractor performs its work in a safe manner, the owner may be liable if it retains some control over the manner in which the contractor's work is performed.
. The Elmgrens’ live pleadings, attached to Ineos’ and Pavlovsky’s summary judgment motions, alleged that Joe was an employee of Zachry and that "all Corporate Defendants were the owners of the premises” at issue in Alvin, Texas. Ineos and Pavlovsky also attached to their summary judgment motions the maintenance services contract between Ineos and Zachry, and an affidavit from In-eos’ corporate deputy secretary Paul Capuzzi wherein he avers that the corporate Ineos defendants own the Alvin chemical plant.
. We of course take no position at this time with regard to whether premises-liability claims against Pavlovsky otherwise could withstand summary disposition.
. At argument, counsel for the Elmgrens presented this court with proposed jury questions that particularly contemplated as to Ineos theories of negligent undertaking, general
. Representative Robert Junell, sponsor of the bill, stated that it was the authors' intent that chapter 95 "does not apply nor raise the burden of proof in situations where a property owner is negligent, separate and apart from exercising or retaining control over the manner in which the work is performed in a contract to construct, repair, renovate, or modify an improvement to real property.” Dyall,
Example: Let’s say there is a concrete company supplying concrete to a plant and because of premise owner's negligence (such as failing to properly maintain their pipelines, vessels or pressures), there is an explosion destroying the concrete truck and injuring the driver. Nothing in this Chapter would raise the burden of proof on the property owners negligence for recovery of the damages related to the truck or person. Example: Likewise, if we have a maintenance contractor who gets a contract to perform work at the plant, and the property owner informs the contractor that the lines are clear and ready for welding, when in fact they are not, due to the property owner’s negligence, and an employee of the maintenance contractor is injured by the release of chemicals. Nothing in this chapter would change the burden of proof or the damages recoverable.
Id. (citing same).
. The Dallas court of appeals declined to follow our dicta from Dyall in Dow Chemical Co. v. Abutahoun,
. The record does not disclose a ruling on the Elmgrens’ second motion to compel.
. See Shanley,