Opinion
No. 14-01-00432-CV
Affirmed; Majority and Dissenting Opinions filed July 25, 2002.
On Appeal from the 61st District Court, Harris County, Texas, Trial Court Cause No. 99-09337
Gary B. Pitts, Alice Oliver-Parrott and Maria Teresa Arguindegui for appellant.
Matthew W. Brown and Robert G. Dees for appellee.
Panel consists of Justices HUDSON, FOWLER, and EDELMAN.
MAJORITY OPINION
This appeal arises from a claim for injuries sustained following inhalation of chlorine dioxide, a toxic chemical, by an employee of an independent contractor hired to make repairs on a leaking flange at a paper mill. Wallace Dyall, an employee of Industrial Pipe and Plastic, Inc. ("IPP"), and his wife, Deanna Dyall (collectively, the "Dyalls"), sued the owner of the mill, Simpson Pasadena Paper Company ("Simpson"), asserting claims for negligence, gross negligence, and negligence per se. Simpson filed for summary judgment, arguing that it exercised no control over the repairs being done on its property, and thus, under Chapter 95 of the Texas Civil Practice and Remedies Code, could not be held liable. The trial court granted a take-nothing summary judgment in favor of Simpson.
In five points of error, the Dyalls contend the trial court erred in granting summary judgment because (1) genuine issues of material fact exist as to the level of control exercised by Simpson over the repair operations for which Wallace Dyall was hired, and (2) they asserted a claim that was not precluded by the operation of Chapter 95. We affirm.
Standard of Review
The standard we follow in reviewing a summary judgment is well-established. The movant for summary judgment has the burden to show that no genuine issue of material fact exists and that he is entitled to judgment as a matter of law. Tex.R.Civ.P. 166a(c); Lear Siegler, Inc. v. Perez, 819 S.W.2d 470, 471 (Tex. 1991); Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex. 1985). When deciding whether there is a disputed material fact issue precluding summary judgment, we treat proof favorable to the non-movant as true and we resolve any doubts in its favor. Nixon, 690 S.W.2d at 548-49; Montgomery v. Kennedy, 669 S.W.2d 309, 311 (Tex. 1984). A defendant, as movant, is entitled to summary judgment if it either disproves at least one essential element of each of the plaintiff's causes of action or establishes all the elements of an affirmative defense. Am. Tobacco Co. v. Grinnell, 951 S.W.2d 420, 425 (Tex. 1997).
Chapter 95 of the Texas Civil Practice and Remedies Code
Negligence claims against a property owner for the injury of a contractor's employee that arise "from the condition or use of an improvement to real property where the contractor . . . repairs . . . the improvement," are governed by Chapter 95 of the Texas Civil Practice and Remedies Code. Tex. Civ. Prac. Rem. Code Ann. § 95.002(2) (Vernon 1997). A property owner is not liable for such injuries arising from the failure to provide a safe workplace unless the plaintiffs prove that the property owner (1) exercised or retained "some control over the manner in which the work [wa]s performed, other than the right to order the work to start or stop or to inspect progress or receive reports," and (2) had actual knowledge of the danger or condition resulting in the personal injury and failed to adequately warn of that danger. Id. § 95.003; see also Kelly v. Lin Television of Texas, 27 S.W.3d 564, 567 (Tex.App.-Eastland 2000, pet. stricken, rev. denied).
In the instant case, the Dyalls contend genuine issues of material fact exist as to Simpson's control of the repair operations Wallace Dyall was directed to perform. To that end, they list a number of instances that purport to demonstrate Simpson had responsibility for "safety matters" in the area to be repaired, and argue that, as a consequence, Wallace Dyall "was not entirely free to do the work his own way." In particular, the Dyalls emphasize the issuance of escape respirators by an unidentified Simpson employee, and that employee's opinion no more extensive respiratory equipment was required, as showing Simpson had a supervisory role.
As Wallace Dyall himself testified, however, Simpson neither exercised nor retained control over the manner — that is, "the mode or method" — through which he attempted repair. Webster'S Third New International Dictionary 1376 (1993). Moreover, Joey Carter, the IPP foreman who accompanied Wallace Dyall to the repair site, acknowledged that they each bore the responsibility of determining the appropriate respiratory equipment. Mr. Carter further testified that, aside from merely showing them the location of the leak, Simpson employees played no part in the repair. The evidence adduced by the Dyalls thus shows, at most, only Simpson's "right to order the work to start or stop or to inspect progress and receive reports." Tex. Civ. Prac. Rem. Code Ann. § 95.003(1) (Vernon 1997); see also Kelly, 27 S.W.3d at 571. Accordingly, summary judgment was properly granted for Simpson based upon section 95.003(1).
Common-Law Negligence
As aforementioned, the Dyalls contend the trial court erred in granting summary judgment because, even if Chapter 95 applies, it does not preclude their assertion of a claim for common-law negligence.
Such an argument belies the clear language of the statute. A property owner is entitled to the defense provided by Chapter 95 for claims "for damages caused by negligence." Tex. Civ. Prac. Rem. Code Ann. § 95.001(1) (Vernon 1997); see also Kelly, 27 S.W.3d at 569 (applying Chapter 95 to assertions of negligence, negligence per se, res ipsa loquitur, and negligent misrepresentation). No distinction is made for negligence claims arising under common-law. Accordingly, the Dyalls were required to surmount the defense provided by Chapter 95 as to all of their claims that sounded in negligence.
The judgment of the trial court is affirmed.
I respectfully dissent. This is a summary judgment case. We are to review the evidence in the light most favorable to Dyall and to make all reasonable inferences in his favor. See Nixon v. Mr. Prop. Mgmt., 690 S.W.2d 546, 548-49 (Tex. 1985).
The question is whether Dyall's suit falls within the protections section 95.003(1) affords to property owners. See Tex. Civ. Prac. Rem. Code Ann. § 95.003(1) (Vernon 1997). For this Court to reverse, there only needs to be a fact issue on this point. D. Houston, Inc. v. Love, 45 Tex. Sup.Ct. J. 943, 946, 2002 Tex. Lexis 102 *8-9 (June 27, 2002) (whether an employer retains control over an independent contractor is an issue for the trier of fact when disputed). The key language is this:
A property owner is not liable for personal injury to . . . an employee of a contractor . . . who . . . repairs . . . an improvement to real property, including personal injury, . . . arising from the failure to provide a safe workplace unless:
(1) theproperty 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.
Tex. Civ. Prac. Rem. Code Ann. § 95.003(1) (emphasis added).
Relying on testimony by Dyall and his supervisor, Carter, that no Simpson employee interfered — or meddled — with their welding job, and that no Simpson employee told them how to do their job, the majority holds that the summary judgment evidence proves that Simpson (the defendant) did not retain any control over the job. By looking almost solely at this narrow testimony, the majority misses the main thrust of Dyall's argument and ignores important facts and testimony Dyall presented below.
Dyall is not claiming that Simpson retained control over how he welded. Dyall is claiming that Simpson retained control over safety issues — whether he should continue working around a gaseous emission, whether he should continue working without a personal protective breathing device, and, if he needed a protective breathing device, what kind he should use. Dyall claims that there is some evidence showing that only Simpson employees — safety or operations employees — could have known what chemicals were in the pipe he worked on. Only Simpson employees — safety or operations — could know whether those gases were toxic. And only Simpson employees — safety or operations — could know what kind of personal protective device Dyall needed to wear.
Dyall didn't know. Dyall was a welder. Dyall was not a hazardous chemicals expert. This was his first or second trip to this plant.
The legislative history of Chapter 95 of the Civil Practice and Remedies Code supports Dyall's claim; it seems to say — very directly — that Simpson retained some control over Dyall's work because it held sole knowledge of the alleged hazardous chemicals.
It is the legislative intent of the authors 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.
Example: [I]f 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 [sic] . . . nothing in the chapter would change the burden of proof or the damages recoverable.
H.J. of Tex., 74th Leg., R.S. 2611-12 (1995) (statement of legislative intent).
I don't know how you get much closer to that example than this case. As the intervenor, Texas Workers' Compensation Insurance Fund, pointed out, Simpson retained some control "with respect to safety issues, chemical exposure, chemical saturation in the area, required safety personal protective equipment, and by falsely assuring Wallace Dyall and Joey Carter that it was safe for them to work near a chlorine dioxide leak without appropriate personal protective equipment." Some of the facts and testimony of the experts in the case appear to bear this out. And, of course, we only need some facts to reverse. See Love, 45 Tex. Sup.Ct. J. at 946, 2002 Tex. Lexis 102 at *8-9.
Dyall and his supervisor, Carter, were called to Simpson to fix a leak. When they arrived, they said they had left their personal protective devices. The person at the gate told them they probably wouldn't need them and gave them "throw down packs." The person said the Simpson safety people would issue them what they needed. Dyall and Carter were issued "throw down packs," but not told to put them on, even though chemicals would be emitting from the pipe while they worked. Simpson wanted Dyall and Carter to work on the pipe without shutting down the flow of chemicals through the pipeline. While Dyall and Carter worked on the leak, another leak appeared. It had a foul odor. Dyall and Carter stopped their welding and went to Simpson's safety people; they were the only ones who could know or determine what the leak was. Dyall and Carter could not. Dyall and Carter asked the Simpson safety people about the leak.
According to the testimony, a throw down pack has two canisters protruding from a face mask. The worker breathes in the outside air, which the canisters filter.
The Simpson safety or operations people checked out the leak. The Simpson safety or operations people told Dyall and Carter it was safe. The Simpson safety or operations people did not tell Dyall and Carter they needed any type of protective breathing device.
Ultimately, Dyall and Carter were not able to repair the leak. The Simpson employees asked them to bring them some special plugs to plug the pipe with. At this point, Dyall and Carter had been around the gas for one and a half to two hours. Both Dyall and Carter became physically ill. When they returned with the plugs, both men chose to wear their respirators.
Dyall became physically ill after he and Carter completed their welding work on the first leak and went to their truck. He and Carter then returned to their plant to pick up "plugs" to give to the Simpson employees. They delivered these plugs and it appears that again, after being on the site, Dyall became physically ill. Thereafter, he developed a cough and shortness of breath, which have prevented him from functioning fully.
Dyall's expert said that, based on the facts of this case as presented in the depositions and based on industry standard, Simpson retained control over safety — whether it was safe to work on the leak without a personal protective device, whether it was safe to work with a personal protective device, and, if so, what kind of device. Dyall's industrial hygiene expert said the Simpson safety or operations people wrongly concluded that Dyall and Carter did not need personal protective equipment.
These facts and the following testimony by Dyall's expert raise at least a fact issue that Simpson retained some control over the work.
Q Do you agree with Mr. Constance and Mr. Bobbins' testimony that it was inexcusable for Joey Carter not to have asked what was in the pipe he was about to work on?
A I wouldn't use the word inexcusable.
Q What word would you use?
A I would say he should have asked what was in the pipe, yes.
Q So . . . what excuse would he possibly, have had in this situation?
A Well, the excuse would have been that he relied on the Simpson people to keep him informed of what the hazard was associated with the work they were going to do; and to be sure they had the proper personal protective equipment. It's always the host company. They're [Simpson] the host — they're [Dyall] the employee. It's always their [Simpson's] responsibility. It's their plant. They know more about the hazards than anyone else. You know, they knew that line was not clear. They knew that small line contained chlorine dioxide, and that the water had no way of clearing that line. They should have anticipated that there might have been an accident.
* * * *
Q Dr. Stevens, Exhibit No. 3 to your deposition is a copy of Chapter 95 of Texas Civil Practice and Remedies Code entitled Property Owner's Liability For Acts of Independent Contractors and Amount of Recovery. And I'll let you look at that and I'll ask you some questions about that as it applies to your opinions that you've formed in this case.
A All right, sir. (Witness perusing document.)
Q Dr. Stevens, based on your knowledge, training and experience and your review of the evidence in this case, the depositions and other evidence which you've looked at, would you say that Simpson failed to provide a safe workplace to Wallace Dyall?
A Yes, absolutely my opinion.
Q Based on your review of the depositions of the eyewitnesses who were there at the time that Wallace Dyall was working in the Simpson plant, would you say that the property owner, which would be Simpson, exercised or retained some control over the manner in which the work was performed other than the right to order the work to start or stopgap or to inspect progress or receive reports?
* * * *
A See if I can answer that correctly. Yes, they had control of the situation.
Q And based on your review of the records and the depositions and evidence in this case and your knowledge, training and experience in industrial hygiene, would you say that the property owner, which would be Simpson in this case, had actual knowledge of the danger or condition which resulted in personal injury to Wallace Dyall?
A Yes, they did.
Q And would you say that they failed to adequately warn Wallace Dyall of the dangers involved?
A Yes, they did.
* * * *
Q In this situation, who would know best what was in the pipes and what the dangerous propensities or the chemical — the hazardous — the hazards involved with that chemical?
A Either the operations people or the safety people.
Q And if, based on your opinion, and — from that testimony, if you take that as true, if the control which was exercised by Simpson, if they actually allowed them to continue working with this chemical, which was chlorine dioxide, is that — is there a connection or a nexus between that control and the injury which Wallace Dyall sustained?
A Well, absolutely there's a connection. It leads all the way back to the — to the point of when the material was leaking. You know, they went out there and it was leaking. They — you know, they — they were allowed — and I'll use the word allowed because they weren't — they weren't stopped, and it's the responsibility of the Simpson people to stopgap them if they think there's a hazard. They were allowed to go in there and perform that work knowing that material was leaking. I think the — I think Mr. Carter and Mr. Dyall both had the false impression that whatever was leaking out of there was — was not hazardous.
Q And can you say whether or not based on your knowledge, training and experience in industrial hygiene is the entity which has the ultimate responsibility in a situation like that the property owner or the operator of that refinery?
A It's always the operator and owner of the plant.
Q And is that the industry standard?
A That's the industry standard.
This testimony and the other proof mentioned earlier raised a fact issue that could cause reasonable minds to differ as to whether Simpson retained some control over Dyall and Carter's work. See Love, 45 Tex. Sup.Ct. J. at 948, 2002 Tex. Lexis 102 at *18 (holding that employer did not carry its summary judgment burden); Nixon, 690 S.W.2d at 548-49. For this reason, I respectfully dissent and would reverse and remand for further proceedings.