ENERGEN RESOURCES CORPORATION, Pеtitioner, v. BRYCE J. WALLACE, ELITE DRILLERS CORPORATION, and UNITED FIRE & CASUALTY and Its Parent, UNITED FIRE GROUP, INC., Respondents
No. 20-0451
Supreme Court of Texas
March 11, 2022
Argued September 16, 2021
JUSTICE BLACKLOCK filed a concurring opinion, in which Justice Young joined.
Chapter 95 of the Civil Practice and Remedies Code limits a property owner‘s liability when an independent contractor or its employee, hired to “construc[t], repai[r], renovat[e], or modif[y]” an
In particular, Chapter 95 does not apply to a claim simply because the plaintiffs were injured by the condition or use of an improvement on which they were working. Rather, the “claim for damages caused by negligence” must “aris[e] from th[at] condition or use.” Id. In other words, negligence that was a cause of the plaintiffs’ damages must involve the condition or use of the improvement on which they were working.
Here, the defendant owner offered uncontroverted evidence—and the plaintiffs’ own petition alleged—that there was negligence regarding a condition of the water well the plaintiffs were drilling and this negligence was a cause of their damages. Chapter 95 therefore applies. Because the defendant also proved conclusively that it could not be held liable under Chapter 95 given its lack of control over the work, the trial court properly granted summary judgment in its favor. We reverse the court of appeals’ contrary judgment and reinstate the trial court‘s judgment.
BACKGROUND
Petitioner Energen Resources Corporation obtained mineral leasehold rights to land in Reeves County, Texas, in 2011. In late 2013,
Dubose was unsuccessful in its initial attempts to find a water source. Dubose later subcontracted with respondent Elite Drillers Corporation to cоmplete the water well, and Elite assigned its president, respondent Bryce J. Wallace, to supervise the project. The wells were roughly five hundred feet apart from each other, and Energen continued drilling the oil well while Elite worked on the water well.
On January 14, 2014, a “gas kick“—an unexpected migration of gas from the reservoir to the wellbore—occurred at the oil well. Shortly thereafter, the oil well was shut in to prevent any further loss of natural gas. In the following days, reports on the oil well noted a loss of circulation and no returns.
On January 17, Wallace supervised as Elite‘s crew sent pressurized air into the wаter well to clear drilling mud. Upon noticing that the air pressure had increased substantially, Wallace shut off the air compressor, but the pressure continued to build. Wallace realized that natural gas was flowing out of the wellbore and warned those nearby to run. Moments later, the gas flowing from the water well caught fire and exploded. Wallace suffered severe burns and Elite‘s drilling equipment was damaged.
Elite, Wallace, and Elite‘s insurers United Fire & Casualty Company and United Fire Group, Inc. (collectively, “plaintiffs“) brought
In response, plaintiffs asserted that Chapter 95 did not apply because the improvement on which they werе working (the water well) was not the same improvement from which their claims arose (the oil well). Because the negligent drilling of the oil well caused their injuries, they argued that Chapter 95 did not apply. Even if Chapter 95 applied, plaintiffs contended that they had raised a genuine issue of material fact regarding whether Energen exercised or retained some control over the drilling of the water well.
The trial court granted Energen‘s motion, rendering a take-nothing judgment. The trial court did not specify which of Energen‘s theories for Chapter 95‘s applicability it found persuasive.
On appeal, plaintiffs raised two issues. First, they asserted that Energen failed to establish that Chapter 95 applied as a matter of law.
The court of appeals reversed the trial court‘s summary judgment and remanded for further proceedings. 603 S.W.3d 499, 501 (Tex. App.—El Paso 2020). Regarding the first issue, the court held that Chapter 95 did not apply. Id. at 514. Reаsoning that Chapter 95 distinguishes between claims for negligent acts and conditions, the court began by examining the “true nature” of the claims. Id. at 511 (citing Keetch v. Kroger Co., 845 S.W.2d 262, 264 (Tex. 1992)). It was undisputed that Elite and Wallace were working on the water well at the time of the explosion. Id. at 510. Therefore, the court concluded that Chapter 95 would apply only “if Energen conclusively established that the injuries arose from a premises defect of the Water Well.” Id.
After examining the pleadings, the court held that plaintiffs not only alleged negligent activity at the oil well, but also raised a fact issue regarding whether that activity occurred contemporaneously with their injuriеs. Id. at 511–12. The court distinguished this case from Keetch, where a grocery-store customer slipped on a wet floor at least thirty minutes after an employee finished spraying plants nearby. Id. at 511, 513. Unlike the evidence in Keetch, which established a “complete absence of ongoing activity,” the court thought the evidence here—in
The court of appeals concluded that Energen “failed to conclusively establish as a matter of law that no contemporaneous activity occurred on the Oil Well that resulted in the creation of a dangеrous condition on the Water Well.” Id. at 514. Because Energen did not prove conclusively that Chapter 95 applied, the court did not reach the second issue: “whether Wallace and Elite carried their burden on the challenged element of control.” Id. at 514–15.
Energen filed a petition for review, which we granted.
ANALYSIS
I. Standard of review
“We review summary judgments de novo, taking as true all evidence favorable to the nonmovant, and indulging every reasonable inference and resolving any doubts in the nonmovant‘s favor.” Barbara Techs. Corp. v. State Farm Lloyds, 589 S.W.3d 806, 811 (Tex. 2019). A party that moves for traditional summary judgment must demonstrate that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law.
This case also involves a question of statutory construction, which is a legal one that we review de novo. Youngkin v. Hines, 546 S.W.3d 675, 680 (Tex. 2018). “In construing a statute, our objective is to determine and give effect to the Legislature‘s intent.” City of San Antonio v. City of Boerne, 111 S.W.3d 22, 25 (Tex. 2003). We begin by examining the plain meaning of the statute‘s language. Crosstex Energy Servs., L.P. v. Pro Plus, Inc., 430 S.W.3d 384, 389–90 (Tex. 2014). “If the statute is clear and unambiguous, we must read the language according to its common meaning ‘without resort to rules of construction or extrinsic aids.‘” Id. at 389 (quoting State v. Shumake, 199 S.W.3d 279, 284 (Tex. 2006)).
II. Energen conclusively established that Chapter 95 applies to plaintiffs’ claims.
When Chapter 95 applies, it limits a real property owner‘s liability for common-law negligence claims that arise out of a contractor‘s or subcontractor‘s work on an improvement to the property.2 As we recently observed, Chapter 95 applies to a claim
(1) for damages caused by negligence resulting in personal injury, death, or property damage, (2) asserted against a person or entity that owns real property primarily used for commercial or business purposes . . . , (3) asserted by an owner, contractor, or subcontractor or an employee of a contractor or subcontractоr, and (4) “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.”
Los Compadres Pescadores, L.L.C. v. Valdez, 622 S.W.3d 771, 782 (Tex. 2021) (quoting
We recently addressed Chapter 95‘s fourth requirement in Valdez, where a property owner argued that Chapter 95 applied to claims alleging a dangerous condition of the “workplace.” Id. at 783. Prior to Valdez, we held that a claim satisfies section 95.002‘s fourth requirement only if the claim “results from a condition or use of the same improvement on which the contractor (or its emplоyee) is working when the injury occurs.” Ineos USA, L.L.C. v. Elmgren, 505 S.W.3d 555, 567 (Tex. 2016) (emphasis added). Although our definition of “improvement” is broad, see Abutahoun v. Dow Chem. Co., 463 S.W.3d 42, 49 (Tex. 2015), we concluded in Valdez that it is not so broad as to encompass the “entire workplace.” Id. at 784.
Thus far, our Chapter 95 cases have focused on whether negligence regarding a condition or use of the “same improvement” on which the plaintiff was working gave rise to his claim. Consistent with this focus, plaintiffs contend that negligent drilling at the oil well—which, they argue, is a separate improvement from the water well—caused their injuries. Because it is undisputed that plaintiffs were hired to complete only the water well, they contend that the improvement
For a claim to fall within Chapter 95‘s ambit, the statutory text requires more than Energen suggests. Specifically, negligence regarding “the condition or use” of the improvement on which plaintiffs were working must be a cause of their damages. This requirement is apparent from the text of the statute itself, and it is confirmed by the common law.
Chapter 95 applies “only to а claim . . . that arises from” an improvement‘s “condition or use.”
The statutory rule that Chapter 95 applies only if there is a connection between the damage-causing negligence and the condition or use of the improvement on which the plaintiff was working matches the common-law rule that a landowner is not liable unless there is such a connection. This correspondence is informative because Chapter 95 does not create a new cause of action; rather, it limits liability for common-law negligence claims when it applies. See
Under the common law, “[t]he general rule is that an owner or occupier does not have a duty to see that an independent contractor*
Our recent opinions have likewise understood Chapter 95 to require that the damage-causing negligence arise from the condition or use of the improvement on which the plaintiff was working. As we explained in Endeavor Energy Resources, L.P. v. Cuevas, when a negligent-activity claim involves only one party‘s negligence, the claim “arises from” the “use” of an improvement “if the one negligent act occurs contemporaneously with the use of the improvement.” 593 S.W.3d 307, 311 (Tex. 2019) (citing Abutahoun, 463 S.W.3d at 50).7 The same is true
Here, Energen asserts that a condition—rather than a use—of the water well caused plaintiffs’ damages. As we noted in Endeavor, “[C]hapter 95‘s reference to a claim arising from ‘the condition . . . of an improvement to real property’ contemplatеs a claim for premises liability.” 593 S.W.3d at 310. Premises liability is a “species of negligence”8 that “encompasses a nonfeasance theory based on the owner‘s failure to take measures to make the property safe.” Del Lago Partners, Inc. v. Smith, 307 S.W.3d 762, 776 (Tex. 2010). A “condition” is “an intentional or an inadvertent state of being.” Abutahoun, 463 S.W.3d at 49 (quoting Sparkman v. Maxwell, 519 S.W.2d 852, 858 (Tex. 1975)). And something is a condition of an improvement if it “affect[s] the ‘state of being’ of that improvement.” Valdez, 622 S.W.3d
Applying these principles, we conclude Energen has conclusively established that Chapter 95 applies. The record includes undisputed evidence that plaintiffs were hired to construct the water well, so it is the relevant improvement. See id. at 784. In their petition, plaintiffs alleged that “Energen . . . failed to exercise reasonable care in relation to the defective and/or dangerous conditions in the drilling and completion of the Water Well.”9 They also alleged that a “high volum[e] of natural gas” built up in the water well and ignited, resulting in an explosion that injured Wallace and damaged Elite‘s equipment.10 In other words, plaintiffs’ own petition alleges that their damages were caused by negligencе arising from a dangerous condition of the water
Plaintiffs respond that the oil well and water well are separate improvements, there is a genuine issue of material fact regarding whether their injuries occurred as a result of contemporaneous negligent activity at the oil well on which they did no work, and thus Chapter 95 does not apply. The court of appeals agreed, reasoning that it had to determine whether the “true nature” of plaintiffs’ claims were for “premises defect arising from the Water Well or . . . negligent activity arising from the Oil Well.” 603 S.W.3d at 511. The court concluded there was a fact issue regarding whether “the Water Well was a mere conduit for the end result of” contemporaneous negligent drilling activity at the oil well. Id. at 513.
We disagree with the court of appeals’ approach for two reasons. First, although Chapter 95 distinguishes between claims for negligent activities and those for premises defects, it applies to both types of claims. E.g., Abutahoun, 463 S.W.3d at 50–51. Thus, in determining Chapter 95‘s applicability, the dispositive issue is not whethеr the claim should truly be characterized as one for negligent activity or premises defect. Rather, as previously discussed, what matters is whether there
Second, although Chapter 95 requires a causal connection between negligence involving the improvement and the plaintiffs damages, we have held that this negligence need not be the “only cause” of the damages. Endeavor, 593 S.W.3d at 311.12 Because plaintiffs alleged additional negligence аt the oil well, the court of appeals concluded that was sufficient to raise a fact issue “as to whether contemporaneous drilling on the Oil Well caused the injuries that were sustained by [plaintiffs] while they worked on the Water Well.” 603 S.W.3d at 513. But whether contemporaneous or not, negligence away from the water well that contributes to plaintiffs’ damages does not negate the conclusion—rooted in plaintiffs’ own pleadings—that negligence at the water well on which they worked also caused those same damages.
We also find unpersuasive plaintiffs’ argument that they did not allege a premises-defеct claim with respect to the water well because their petition contains no assertions that the water well itself was defective. Under the Texas Tort Claims Act (TTCA), we have held that a claim for a “condition” of tangible personal property “must [contain] an allegation of ‘defective or inadequate property.‘” Sampson v. Univ. of Tex. at Austin, 500 S.W.3d 380, 388 (Tex. 2016) (quoting Salcedo v. El Paso Hosp. Dist., 659 S.W.2d 30, 32 (Tex. 1983)). We have used decisions regarding the TTCA to inform our analysis of Chapter 95. See Abutahoun, 463 S.W.3d at 49.
Unlike Chapter 95, however, the TTCA distinguishes between claims for the “condition or use” of tangible personal property and claims for a premises defect. See id. at 49 n.7; see also
In enacting Chapter 95, the Legislature addressed a property owner‘s liability to indepеndent contractors for negligence claims regarding both premises defects and negligent activities. See Abutahoun, 463 S.W.3d at 49–50 (citing Redinger, 689 S.W.2d at 417). “[A] premises defect claim is based on the property itself being unsafe.” Shumake, 199 S.W.3d at 284; see also Valdez, 622 S.W.3d at 783. Such a claim can be based on negligence regarding a “dangerous condition” of the property without also showing a “defect” thereof. Valdez, 622 S.W.3d at 784. For example, the concrete pilings in Valdez were not alleged to be defective, but we determined that Chapter 95 applied because an energized power line hanging overhead was a “condition” of the pilings. Id. at 785–86.
III. Because Energen conclusively proved it did not exercise or retain control over plaintiffs’ work, it cannot be liable under Chapter 95.
When Chapter 95 applies, a plaintiffs “sole means of recovery” is section 95.003, and the plaintiff has the burden of proving both prongs of that section at trial. Abutahoun, 463 S.W.3d at 51–52. The plaintiff must demonstrate that the property owner (1) “exercise[d] or retain[ed] some control over the manner in which the work [was] performed” and (2) “had actual knowledge of the danger or condition resulting in the . . . personal injury . . . or property damage and failed to adequately warn.”
As a preliminary matter, we note that because Energen filed a traditional motion for summary judgment on the first prong of section 95.003, it had the burden to establish conclusively that it neither exercised nor retained control over plaintiffs’ work. A no-evidence motion for summary judgment immediately shifts the burden to the nonmovant. See
The court of appeals incorrectly suggested that if Energen established Chapter 95‘s applicability, the burden would be on plaintiffs to satisfy both prongs of section 95.003. See 603 S.W.3d at 514–15. That would be true if a no-evidence motion for summary judgment were involved, see Ineos, 505 S.W.3d at 568, but Energen did not file such a motion here. Energen moved for traditional summary judgment, and therefore it was Energen‘s burden to establish conclusively that it neither exercised nor retained control over the manner in which plaintiffs performed their work. See, e.g., Kelly v. LIN Television of Tex., L.P., 27 S.W.3d 564, 570–71 (Tex. App.—Eastland 2000, pet. denied).
In the trial court, Energen‘s only grounds for summary judgment were that Chapter 95 applied to plaintiffs’ claims and that it neither exercised nor retained control over plaintiffs’ work under section 95.003(1). In this Court, Energen also asserts that it did not have “actual knowledge” of a danger or condition under sectiоn 95.003(2). But because Energen did not move for summary judgment on the latter prong of section 95.003, we do not consider whether Energen had actual knowledge. See State Farm Lloyds v. Page, 315 S.W.3d 525, 532 (Tex. 2010) (“Summary judgment may not be affirmed on appeal on a ground not presented to the trial court in the motion.“).
To establish “control” under section 95.003(1), evidence of a property owner‘s “right to order the work to start or stop or to inspect
Here, Energen conclusively established that it neither exercised actual control nor retained contractual control over plaintiffs’ work. The summary judgment record shows that it was Dubose—not Energen—that subcontracted with Elite. Energen also provided the deposition of plaintiff Wallace, who testified that he had never talked to anyone with Energen. In fact, Wallace testified that the only entity frоm which he received information both before and after commencing drilling work on the water well was Dubose.
Because Energen conclusively established that section 95.003(1) was not satisfied, the burden shifted to plaintiffs to raise a fact issue regarding control. Plaintiffs responded with the deposition of Energen‘s senior geologist, who testified that he investigated possible water
We conclude that Energen conclusively established that it neither exercised nor retained control over the manner in which plaintiffs performed their work, and plaintiffs failed to raise a fact issue regarding control. As a result, Energen cannot be held liable under section 95.003.
CONCLUSION
As we recognized in Endeavor, the condition or use of the improvement on which a plaintiff was working need not be the “only cause” of that plaintiffs damages for Chapter 95 to apply. 593 S.W.3d at 311. But therе must be negligence regarding the improvement‘s condition or use, and such negligence must be a cause of the plaintiff‘s damages. Because plaintiffs alleged that Energen‘s negligence regarding a dangerous condition of the water well caused their damages, their claims are subject to Chapter 95. Energen conclusively established that it lacked the control over plaintiffs’ work necessary to hold it liable under section 95.003, and plaintiffs failed to raise a fact issue. We therefore reverse the court of appeals’ judgment and reinstate the trial court‘s take-nothing judgment.
J. Brett Busby
Justice
OPINION DELIVERED: March 11, 2022