JOHN BARFIELD AND TANA BARFIELD, WIFE, INDIVIDUALLY, AND JOHN BARFIELD AND TANA BARFIELD AS NEXT FRIENDS OF C. B. AND K. B., MINOR CHILDREN
No. 08-17-00059-CV
COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS
March 27,
Appeal from the 109th District Court of Andrews County, Texas (TC# 19145)
DISSENTING OPINION
Finding myself in partial disagreement with my colleagues, I respectfully dissent. There is no need to restate the facts of the case that are ably set forth in the majority opinion. We also agree that Chapter 95 controls this dispute, and dictates
As to the first two elements, I agree with the majority’s ultimate conclusions. Chapter 95 incorporates the
Nor does SandRidge take serious issue with its actual knowledge of the risk. It owned the transmission lines. It knew the lines carried high voltage current that presented a serious risk of injury on contact
Instead, my disagreement turns on the third
First, Barfield urges that SandRidge’s motion for summary judgment is limited to its claim that it owed “no duty” to warn. He urges, however, that Chapter 95 belies that argument because the statute itself imposes a duty to warn when the landowner controls the details of the work and has actual knowledge of the hazard. According to Barfield, the Texas Supreme Court’s “no duty” analysis in Austin v. Kroger Texas, L.P., 465 S.W.3d 193 (Tex. 2015), upon which SandRidge relies, must therefore take a backseat to the statutory analysis of Chapter 95. Under that view, Barfield’s knowledge of the risk does not become relevant until the jury addresses contributory negligence.
SandRidge’s motion, however, not only asserted a “no duty” ground, but in a separately headed section, it also claimed that “SandRidge’s warning was adequate as a matter of law.” It argued: “Conversely, even if the Court erroneously concluded that SandRidge owed a duty to warn Barfield about the energized poles, SandRidge would be entitled to judgment as a matter of law because the evidence conclusively establishes that SandRidge did not fail to adequately warn Barfield of this condition.” To be sure, SandRidge does not point to any particular warning that it gave. Rather, it essentially claims that because Barfield was fully aware of the condition, even a silent-nothing-said warning is adequate as a matter of law. Or, not saying anything can be an adequate warning when the other person is fully aware of the risk. Whether stated as a “no duty” claim, or as a “we fulfilled our duty” argument, I view the motion as sufficient to raise the core issue presented here: under Chapter 95, must a landowner affirmatively warn an invitee of a hazard of which the invitee is fully aware? Subject to some exceptions, the answer to that question in my mind is no.
Under common law principles, Austin v. Kroger answers that question for an employee complaining of the employer’s failure to provide a safe workplace. In that case the court held that an employee generally cannot recover against a non-subscribing employer for an injury caused by a premises defect of which the employee was fully aware but that his job duties required him to remedy. Id. at 217. More specific to this situation, the court in General Elec. Co. v. Moritz, 257 S.W.3d 211, 215-16 (Tex. 2008)1 held that a loading ramp at a warehouse which lacked railings was an open and obvious condition, for which the independent contractor, and not the landowner needed to warn or make safe. And as the court stated in Wilhelm v. Flores, 195 S.W.3d 96, 98 (Tex. 2006), “Nor would Wilhelm, as occupier of the premises where the beehives were kept, have owed an independent contractor’s employees a duty to warn them about being stung, since that danger was obvious.”
Barfield argues, however, that Chapter 95 would have us put blinders on as to what the invitee might know. In applying the statute as written, he urges that we must look only at what warnings the landowner gave, and here it said nothing. If that were true, however, a landowner would be required to mechanically issue
It is of course “the Legislature’s prerogative to enact statutes” and our “responsibility to interpret those statutes according to the language the Legislature used[.]” Molinet v. Kimbrell, 356 S.W.3d 407, 414-15 (Tex. 2011). But we do so unless the “result of the plain meaning of the language yield[s] absurd or nonsensical results.” Id. Requiring a landowner to warn about risks the invitee is well aware, and perhaps more aware of by virtue of his or her expertise, hits the absurd or nonsensical button for me. Barfield correctly suggests that a jury might later terminate this case in SandRidge’s favor with a favorable comparative causation finding. But that would be well after the parties expend considerable resources discovering and trying the case.
Barfield alternatively argues that if we consider common law jurisprudence, then the “necessary-use” exception found in those cases applies here. But that doctrine is, after all, an exception. As such, it would be incumbent on Barfield to show its application (once SandRidge first met an initial burden to show an adequate warning). In Kroger, the court states that the necessary use exception applies when “(1) it was necessary that the invitee use the unreasonably dangerous premises and (2) the landowner should have anticipated that the invitee was unable to avoid the unreasonable risks despite the invitee’s awareness of them.” Id. at 207, citing Parker v. Highland Park, Inc., 565 S.W.2d 512 (Tex. 1978). Here, Barfield did not show that an electrical contractor would be unable to avoid an unreasonable risk in working around energized power lines.2 Additionally, Moritz explicitly rejected a Parker necessary-use exception in a case analogous to this one. Moritz, 257 S.W.3d at 216.
The third issue for me is that the adequacy of the warning is not truly at issue. Barfield is not claiming that he believed the current was at one voltage, when it was actually another. Nor does he claim that he was told that only one line was energized, when in fact two were hot. The parties treat the voltage and amperage as dangerous, ascribing no significance to whatever differences in information that they may have had. The majority weaves into this question, however, SandRidge’s work requirements that the contractors should have a pre-job meeting to discuss work hazards. The majority implicitly suggests that had such a meeting been held, a more robust warning might have been given, or plan devised to avoid the hazard. But those meetings, at least on this record, suggest nothing more than a means to communicate about the hazards on the job. Because the hazard was already known, the absence of the meeting does not impair the adequacy of the warning. Alternatively, if the purpose of the meeting was to devise the safest work practices, that duty already fell on Barfield’s employer, and not the SandRidge. A general contractor does
I acknowledge the difficulty in deciding which of the many common-law-premises-liability precedents should inform our application of Chapter 95, and which do not. See Abutahoun v. Dow Chem. Co., 463 S.W.3d 42, 51 (Tex. 2015) (discussing whether Chapter 95 was intended to modify or abrogate common law rules). Abutahoun itself states that cases like Moritz “will continue to apply to cases when the applicability provision of section 95.002 cannot be met.” Id. at 52. That language might suggest that Moritz does not apply to a Chapter 95 claim when section 95.002 is met. Nonetheless, for the reasons noted above, I respectfully dissent to my colleagues’ thoughtful opinion.
JEFF ALLEY, Chief Justice
March 27, 2020