TEX. CIV. PRAC. & REM. CODE ANN. § 95.003. "Both conditions of section 95.003 must be met before chapter 95's exception to the general rule of nonliability for a premises owner will be imposed." Phillips v. Dow Chem. Co., 186 S.W.3d 121, 132-33 (Tex. App.—Houston [1st Dist.] 2005, no pet.). "[T]he second condition requires actual, rather than merely constructive, knowledge by the premises owner concerning the allegedly dangerous condition."

We note that Chapter 95 of the Civil Practice and Remedies Code preempts common law claims. See Phillips v. Dow Chem. Co., 186 S.W.3d 121, 131-32 (Tex.App.-Houston [1st Dist.] 2005, no pet.); see also Dyall v. Simpson Pasadena Paper Co., 152 S.W.3d 688, 710 (Tex.App.-Houston [14th Dist.] 2004, pet. denied) (recognizing that Chapter 95 encompasses all common-law negligence claims). Therefore, Bray Abarca and Sanchez are limited on remand to consideration of only the claims envisioned by Chapter 95.

the injury is not itself an improvement, where the injury arises from work being done on an improvement."); Moreno v. BP Am. Prod. Co., No. 04-08-00036-CV, 2008 WL 4172248, at *2 (Tex.App.-San Antonio Sept. 10, 2008, pet. denied) (mem. op.) ("Although the injuries alleged must relate to work being done by the injured party, Chapter 95 does not require that the improvement's condition or use actually cause the injury."); James, 2008 WL 2220016, at *2 (chapter 95 applied when truck driver who delivered materials to contractor was injured when portable toilet rolled off loading dock); Clark v. Ron Bassinger, Inc., No. 07-03-00291-CV, 2006 WL 229901, at *2 (Tex. App.-Amarillo 2006, no pet.) (memo, op.) ("As in Fisher, although the covered sky-light opening was not the object of Clark's work, it was an unsafe part of his work-place and his injury arose from the failure to provide him a safe workplace. The circumstances of Clark's injury, therefore, come within the reach of Chapter 95."); Phillips v. Dow Chem. Co., 186 S.W.3d 121, 132 (Tex.App.-Houston [1st Dist.] 2005, no pet.) ("`failure to provide a safe workplace' under section 95.003, means that, although the injuries alleged must relate to work being done by the injured party, the statute does not require that the injury-producing defect must be the object of the injured party's work"); Francis, 130 S.W.3d at 83 ("The `failure to provide a safe workplace' means that the injuries must relate to work being done by the injured party, but the injury-producing defect need not be the object of the injured party's work."). However, we need not decide the issue in this case.

Thus, two requirements must be met before a suit for a worker's injuries falls within the parameters of Chapter 95. First, the suit must be brought by and against a party specified in § 95.002(1); second, the claim must "arise from" an activity involving a modification or improvement to the property. Petri v. Kestrel Oil & Gas Props., L.P., 878 F. Supp. 2d 744, 770 (S.D. Tex. 2012); Williamson v. Paccar, Inc., No. 4:06-CV-282, 2007 WL 2264720, at *3 (E.D. Tex. Aug. 6, 2007); Vanderbeek v. San Jacinto Methodist Hosp., 246 S.W.3d 346, 350 (Tex. App.—Houston [14th Dist.] 2008, no pet.); Phillips v. Dow Chem. Co., 186 S.W.3d 121, 131 (Tex. App.—Houston [14th Dist.] 2005, no pet.). The second prong of the statute is satisfied so long as the contractor makes a modification, renovation, repair, or refurbishment to any permanent structure attached to the land.

Standing under the Texas Wrongful Death Statute "is for the exclusive benefit of the surviving spouse, children, and parents of the deceased." Tex. Civ. Prac. & Rem. Code § 71.004(a); Phillips v. The Dow Chemical Co., 186 S.W.3d 121, 126-27 (Tex.App.—Houston [1st Dist.] 2005, no pet.); Villegas v. Griffin Indus., 975 S.W.2d. 745, 749 (Tex.App.—Corpus Christi 1998, pet. denied). If the surviving spouse, children, or parents have not brought an action within three months of the deceased's death, the executor or administrator of the deceased's estate is entitled to bring suit. Tex. Civ. Prac. & Rem. Code § 71.004(c). Under the Texas Survival Statute, an individual's heirs, legal representatives, and estate have standing to bring suit.

Whether these three conditions are met is a question of fact. See Union Carbide Corp. v. Smith, 313 S.W.3d 370, 376 (Tex. App. 2009) (submitting to a jury the question of whether a defendant retained control of the manner in which the work was performed); Phillips v. The Dow Chem. Co., 186 S.W.3d 121, 133 (Tex. App. 2005). Summary judgment, for a defendant, is not appropriate when there is a genuine issue of material fact that the defendant had control, possessed knowledge, and failed to warn.

; Painter v. Momentum Energy Corp., 271 S.W.3d 388, 398 (Tex.App.-El Paso 2008, pet. denied) (“Courts have held that chapter 95 applies, despite the fact that the object causing the injury is not itself an improvement, where the injury arises from work being done on an improvement.”); Phillips v. Dow Chem. Co., 186 S.W.3d 121, 132 (Tex.App.-Houston [1st Dist.] 2005, no pet.); Francis v. Coastal Oil & Gas Corp., 130 S.W.3d 76, 83 (“The ‘failure to provide a safe workplace’ means that the injuries must relate to work being done by the injured party, but the injury-producing defect need not be the object of the injured party's work.”)

The second presumption is that where, as here, "two or more marriages of a person to different spouses are alleged, the most recent marriage is presumed to be valid as against each marriage that precedes the most recent marriage. . . ." See TEX. FAM. CODE § 1.102; Phillips v. The Dow Chem. Co., 186 S.W.3d 121, 128 (Tex. App. — Houston [1st Dist.] 2005, no pet.). To rebut this presumption, the proponent of the earlier marriage must prove its existence and validity.

Chapter 95 therefore codifies the holding in Redinger regarding control, but modifies the common law approach by protecting the property owner from liability unless it has actual knowledge of the dangerous activity resulting in the injury and fails to adequately warn of the danger. Arsement, 400 F.3d at 245; see also Phillips v. The Dow Chemical Co., 186 S.W.3d 121, 132 (Tex. App. — Houston [1 Dist.] 2005). 1. Chapter 95 Applies to Plaintiff's Claims

As is evident from the statute's plain language, the legislature did not include constructive knowledge as a basis for imposing liability on a premises owner; instead, the legislature expressly required that the premises owner have actual knowledge of the allegedly dangerous condition. See id.; Phillips v. The Dow Chem. Co., 186 S.W.3d 121, 135 (Tex.App. 2005, no pet.). Actual knowledge of a dangerous condition is what a person actually knows, as distinguished from constructive knowledge, or what a person should have known.