Opinion issued August 31, 2026
In The
Court of Appeals
For The
First District of Texas
condition that caused the plaintiff’s injury, and failed to adequately warn him. TEX. CIV. PRAC. & REM. CODE § 95.003. Angel Mendoza sued for injuries he suffered when he fell while working as a contractor for Hacienda Services, Inc. d/b/a Censeo Homes (“Censeo”). The trial court granted take-nothing summary judgment in Censeo’s favor, and Mendoza appealed.
On appeal, Mendoza argues that the trial court erred by granting summary judgment because Censeo did not conclusively prove that Chapter 95 applies and because the summary judgment evidence created a question of fact about the applicability of the statutory exception. We conclude that the statute applies. In addition, we conclude that Mendoza failed to produce evidence relating to control or actual knowledge in response to Censeo’s no evidence motion for summary judgment.
Accordingly, we affirm.
Background
Hacienda Services, Inc. is a residential homebuilder that has done business as Fronterra Homes and Censeo Homes. Censeo built a number of houses in a new development in Angleton, Texas. Mendoza, who referred to himself as a “subcontractor,” owned a business called “Domingo’s Painting,” and employed
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multiple people.1 Mendoza primarily did interior and exterior painting for homebuilders like Censeo and Lennar Homes, but Mendoza was also “kind of a handyman.” In addition to painting, Mendoza had “learned to do a bunch of other stuff” including sheetrock, carpentry, and pressure washing, and he had done a variety of other tasks on Censeo projects on an ad hoc basis. Cortez described walking through building projects with Mendoza, pointing out miscellaneous tasks that needed to be completed (including sheetrock repairs, carpentry, pressure washing, and trash removal), and Mendoza telling him what he could do and how much each task would cost. Censeo would then pay Mendoza for those services by issuing a variance purchase order.2 Mendoza, through Domingo’s Painting, painted houses for Censeo in its Angleton development. On May 10, 2021, he and one of his employees arrived to work on two houses: one at 753 Rosewood Lane and the other next door. The one- story house at 753 Rosewood Lane had been sold, and the sale was scheduled to close several days later. Mendoza was engaged to help with final “punch list”
1 Because Mendoza’s injuries limit his ability to speak, Mendoza testified by deposition through an interpreter and the use of hand signals.
2 In his deposition, Jeff Cortez, who had worked for Censeo in both warranty issues and construction, spoke highly of Mendoza. Cortez said he used Mendoza for warranty work for Censeo before he became a construction superintendent. He testified that Censeo called on Mendoza for “almost every warranty call that needed paint. He was—he was our best guy.” When asked if Mendoza was a good worker, Cortez said: “He was the best worker we had. . . . [H]e was just awesome with customers. You could send him to somebody’s house and not be worried about anything. He was great with customers. He was a great painter.”
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items to make the one-story house ready for closing, and his employee was tasked to do “little stuff” on the interior of the two-story house next door.
Jeff Cortez, who was Censeo’s construction superintendent for those two houses, testified about the communications he had with Mendoza regarding the final punch list. Cortez did not use a formal punch list for the interior of the house. He said: “The inside doesn’t really require [a written punch list], because the inside we blue tape. So me and [Mendoza] had worked together so—long enough that I didn’t need to point to anything. If there was something on the ceiling, I would mark it on the floor and he would know. Everything on the walls was marked. I would write on the tape on the inside of the house like, ‘Whatever this is.’ And so really, the punch list on the inside was just blue tape, and we walked the outside . . . .”
As for the exterior, Cortez explained: “There was a little paint touch-up, a little caulking. It’s just when the house—it’s just sitting outside, so you’re going to get paint things messed up. Caulking is going to crack. And it’s the first thing you see when you pull into the driveway, so . . . you notice it.” Cortez was asked: “[S]o basically you were, like, ‘Fix this,’ pointed to the dormer?” Cortez said: “Yeah. I was like, ‘Just make sure the caulking is good. Touch up the paint. Wipe down the window.’”
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In his deposition, Mendoza denied that he was given instructions regarding the work to be done on the dormer of the house.3 Miguel Garcia, a Censeo project manager who testified as the corporate representative, said nobody at Censeo told Mendoza how to do his job because “[h]e’s a professional . . . an expert in his field.” Garcia also said that Censeo did not provide Mendoza with safety training “[b]ecause it’s his responsibility.”
Mendoza had his own equipment, including ladders, that he brought with him and used for interior and exterior painting jobs.4 Mendoza set up his extension ladder at the one-story house. Mendoza had worked on roofs two or three times without incident before his fall. But he did not know whether he wore fall protection on the day of his accident.
Cortez was upstairs in the house next door with a plumber, Mendoza’s employee was painting downstairs, and Mendoza was working alone at the one-
3 At his deposition, Mendoza was asked:
Q: On May 10th, 2021, did Jeff Cortez give you instructions regarding work to be done on the dormer, which is on the roof, of a home in Angleton, Texas?
A: No (indicating).
Mendoza recalled working “on the roof” of the house on May 10, 2021, but he did not remember working at the house before the accident.
4 Cortez said that “all the trades” bring their own equipment because “[w]e don’t provide anything.”
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story house.5 Cortez heard Mendoza’s employee screaming, ran downstairs, and found Mendoza unconscious on top of his ladder in the driveway of the one-story house. Although he did not witness the accident, Cortez said it looked like the ladder tipped backwards because Mendoza was face up on the ladder with his head toward the street. Cortez said: “[I]t looked like . . . his head went between the two rungs and hit concrete . . . . Imagine in your head if you were using a ladder as, like, a gurney to pick somebody up, that’s what it looked like.” Cortez stayed with Mendoza until an ambulance arrived, and he later ensured that Mendoza’s wife was notified about the accident.6 Cortez testified that Censeo “really didn’t” manage fall protection at the jobsites because it was up to each subcontractor to train their workers. He said: “[W]e didn’t have, like, a safety meeting and protocols or training or anything like that. . . . I mean, we had a binder . . . they printed out and gave us to keep in our cars in case anybody asked for it; but it wasn’t like hammered home or anything.” According to Cortez and Garcia, Censeo did not provide any fall protection, and it was up to the individual contractors to provide it. Cortez said that Mendoza had
5 A Censeo Homes salesperson was inside the one-story house at the time of the accident, and she came outside after Mendoza fell.
6 Cortez testified that he emailed a statement about the incident to Deidre Foster, who was investigating the accident internally. Although he did not see what happened to Mendoza, Cortez wrote: “Suspected fall from roof or ladder slipped when leaving roof.” Cortez did not believe the ladder slipped due to Mendoza’s position on the ground when Cortez reached him.
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been on roofs, and “he wasn’t unsure of his footing.” Cortez also said that he had “never seen anybody use fall protection.” However, Garcia said that was not consistent with his experience at Censeo, and he suggested that, due to his relative inexperience, Cortez might not have known what fall protections to look for.
According to Garcia, Censeo screens contractors for quality and safety, and he said that contractors can be terminated if it is “blatantly obvious” that they are “not being safe,” including violating OSHA regulations. He said that Censeo should not hire, and should fire, a contractor who acts unsafely. He agreed that Censeo’s project managers should be trained to identify a contractor’s unsafe acts and that contractors should follow applicable federal regulations pertaining to safety. He also agreed that Censeo “should not knowingly keep having a contractor do an unsafe thing,” and that “assign[ing] a contractor to do a job on a second story roof” when Censeo “know[s] that they’re not going to be using fall protection” endangers the contractor. But he emphasized that it was up to the contractors to follow their own safety rules.
Garcia repeatedly testified that fall protection was not needed where Mendoza was working because it was a one-story house, with the roof at nine feet. He said that considering that it was less than ten feet high and accounting for the
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slope of the roof, Censeo’s safety manual did not require fall protection.7 Garcia also relied on “toolbox talks,” which were employee talks about “some of the things that we see out there in the field,” in reaching his conclusion that no fall protection was needed at an elevation less than ten feet.
Garcia was asked about an OSHA (Occupational Safety and Health Administration) regulation that requires fall protection such as guardrails with toeboards, safety net systems, or personal fall arrest systems when an “employee [is] on a steep roof with unprotected sides and edges 6 feet or more above lower levels.” Garcia emphasized that the rule was for employees, and Mendoza was not an employee. He acknowledged that Censeo’s safety manual did not address work on roofs and that Garcia was a painter. Garcia said that Censeo did not consider fall protection for heights under ten feet: “I’m just telling you that it’s not something we look for because we know that it’s under 10 foot. Anything outside of that, cornice guys, framers, roofers, they all have fall protection for those purposes.” Garcia agreed that a contractor should abide by applicable regulations, including those specifying when fall protection is needed, and that Censeo should
7 Garcia’s deposition indicates that Censeo’s safety manual was an exhibit, but the manual does not appear in the appellate record, and it was not offered as summary-judgment evidence. Garcia testified that on page 15, the manual stated:
“Use fall arrest systems when working on ladder jacks that are more than 10 feet above the ground.”
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not continue to employ contractors that fail to use fall protection when needed because it endangers the contractor.
Garcia explained that Censeo’s safety manual came from the Texas Association of Builders, and he read the following from the safety manual:
This program is not meant to replace the safety plans of our independent contractors. Our independent contractors are responsible for developing and maintaining their own safety plans specific to their respective trade or occupation. These standards are simply to emphasize some of the common hazards and safety practices that may be found on company jobsites.
Garcia said that Censeo’s safety manual applied to employees, and that as a contractor, Mendoza was responsible for determining whether he needed fall protection and providing it:
Now if Mr. Mendoza felt like he needed fall protection, our manual states that he is responsible to supply his own fall protection, whether it’s equipment, what it is to do that. And so if we misjudged as a builder that he—that he didn’t need fall equipment, at the end of the day, we rely on his expertise and his competence to identify that.
Mendoza’s injuries from the fall were severe, disabling, and included a traumatic brain injury that limits his ability to speak. Mendoza sued Censeo along with the manufacturer and the installer of the roofing shingles. The statement of facts consisted of the following four numbered paragraphs:
10. On May 10, 2021, Plaintiff [Mendoza] was performing work as a painter at a one-story house located on the 700 block of Rosewood Lane in Angleton, Texas 77515.
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11. Plaintiff was performing the work under his trade name, Domingo’s Painting, and had been hired by Defendant Censeo Homes to do the work.
12. The roof of the house, which had just been installed by Defendant Dalco Roofing, was loose and granular. Defendant Dalco Roofing installed Tamko Heritage Shingles, manufactured by Defendant Tamko, on the roof in question.
13. Plaintiff was on the roof doing touch-up work on the roof jacks when, suddenly and without warning, he fell to the ground below, causing severe trauma to his brain that resulted in permanent injuries.
Mendoza alleged causes of action for negligence and premises liability. As to his negligence claim, Mendoza alleged that Censeo “proximately caused” the incident in the following ways:8
a) Failing to use reasonable care in performing and/or overseeing work at the property where the incident occurred;
b) Failing to provide a safe workplace;
c) Failing to provide adequate training;
d) Placing Plaintiff in a dangerous position and failing to act as a reasonable person in preventing harm;
e) Failing to provide appropriate equipment for Plaintiff’s use;
f) Failing to warn Plaintiff of the dangers associated with the task;
g) Failing to warn Plaintiff of the dangers associated with the roof;
8 Mendoza’s negligence claim is technically a negligent activity claim and will be treated as such here. Mendoza also sued the manufacturer and the installer of the roofing shingles, and he nonsuited his claims against them before the trial court rendered the summary judgment from which he now appeals.
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h) Failing to warn Plaintiff of dangers associated with the equipment provided by Defendants.
i) In failing to remove, eliminate or abate the dangerous conditions which existed at all times material hereto; and
j) Other acts deemed negligent and grossly negligent.
As to his premises liability claim, Mendoza alleged that he was an invitee on the premises because he was performing work for Censeo’s benefit. Mendoza pleaded that Censeo owed him “a duty to not create dangerous conditions on the premises and to warn of dangerous conditions that it knew or reasonably should have known about.” Mendoza alleged that Censeo breached its duties by:
a) Failing to use reasonable care to protect Plaintiff against unreasonable risk of harm;
b) Failing to properly inspect the premises for dangerous conditions;
c) Creating a dangerous condition on the premises and failing to remedy the dangerous condition;
d) Failing to warn of a dangerous condition that Defendants created on the premises;
e) Failing to warn of or cure a dangerous condition that Defendants knew or should have known existed on the premises; and
f) Other acts deemed negligent.
Censeo filed a traditional and no evidence motion for summary judgment.
Censeo’s summary judgment evidence consisted of the transcripts of the depositions of Mendoza, Cortez, and Garcia. In its traditional motion for summary
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judgment, Censeo argued that Chapter 95 of the Texas Civil Practice and Remedies Code applied, that the exception did not apply because Censeo did not retain control over the manner in which Mendoza performed his work, and that Censeo had no duty to warn or make safe the open and obvious condition (the height of the roof). Censeo also argued that there was no evidence of control or actual knowledge. Thus, Censeo sought summary judgment on traditional grounds on the question of applicability and the first element of the exception, and it sought summary judgment on no evidence grounds on both elements of the exception.
Mendoza responded, attaching as summary judgment evidence the same transcripts of his and Cortez’s depositions and a purchase order for interior and exterior painting of the house where Mendoza fell. The purchase order was dated October 28, 2020. He also claimed that he was engaged in maintenance activities outside the scope of the statute and that Censeo sent him to work on the roof despite knowing that he would not use fall protection.
The trial court initially denied the summary judgment motion because Censeo had not proven that it was a property owner. Censeo then filed a supplemental motion for summary judgment, attaching evidence that it owned the property on the day of the fall. The trial court granted final summary judgment in favor of Censeo, and Mendoza appealed.
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Analysis
On appeal, Mendoza argues that the trial court erred by granting Censeo’s summary judgment motion. I. Standards of Review A. Traditional Motion for Summary Judgment To prevail on a traditional motion for summary judgment, the moving party must prove there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law on the issues expressly set out in the motion. TEX. R. CIV. P. 166a (former); see Lujan v. Navistar, Inc., 555 S.W.3d 79, 84 (Tex. 2018). “To establish entitlement to summary judgment based on an affirmative defense . . . the defendant must conclusively establish each element of its affirmative defense.” First Sabrepoint Cap. Mgmt, L.P. v. Farmland Partners Inc., 712 S.W.3d 75, 84 (Tex. 2025); De La Rosa v. Miracle Farm, Inc., No. 01- 23-00579-CV, 2025 WL 2832218, at *3 (Tex. App.—Houston [1st Dist.] Oct. 7, 2025, no pet.) (mem. op.). We review summary judgments de novo. Weekley Homes, LLC v. Paniagua, 691 S.W.3d 911, 915 (Tex. 2024). In doing so, we “examine the entire record in the light most favorable to the nonmovant, indulging every reasonable inference and resolving any doubts against the motion.” City of Keller v. Wilson, 168 S.W.3d 802, 823 (Tex. 2005). And when, as here, the trial court does not specify the grounds on which it granted a summary judgment, we
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must uphold the trial court’s judgment if any of the grounds properly presented are meritorious. Merriman v. XTO Energy, Inc., 407 S.W.3d 244, 248 (Tex. 2013); Pertolanitz v. Waldroup, 722 S.W.3d 168, 172 (Tex. App.—Houston [1st Dist.] 2025, no pet.).
B. No Evidence Motion for Summary Judgment After an adequate time for discovery, a party may move for summary judgment contending that there is no evidence of one or more essential elements of the nonmovant’s claims, upon which the nonmovant would have the burden of proof at trial. See TEX. R. CIV. P. 166a(i) (former); see Lozada v. Posada, 718 S.W.3d 262, 266 (Tex. 2025). The motion must state the elements as to which there is no evidence. TEX. R. CIV. P. 166a(i) (former). Once the movant files a proper motion, the burden then shifts to the nonmovant to present evidence raising a genuine issue of material fact as to each of the elements specified in the motion. See id.; JLB Builders, L.L.C. v. Hernandez, 622 S.W.3d 860, 864 (Tex. 2021). To defeat a no-evidence motion for summary judgment, the nonmovant is not required to marshal its proof; his response need only point to evidence that raises a fact issue on the challenged element. State v. $3,774.28 in U.S. Currency, 713 S.W.3d 381, 388 (Tex. 2025).
A no-evidence motion “will be sustained when (a) there is a complete absence of evidence of a vital fact, (b) the court is barred by rules of law or of
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evidence from giving weight to the only evidence offered to prove a vital fact, (c) the evidence offered to prove a vital fact is no more than a mere scintilla, or (d) the evidence conclusively establishes the opposite of the vital fact.” Lozada, 718 S.W.3d at 266 (quotations omitted). “Less than a scintilla of evidence exists when the evidence is so weak as to do no more than create a mere surmise or suspicion of a fact.” King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003) (quotation omitted). “More than a scintilla of evidence exists when the evidence rises to a level that would enable reasonable and fair-minded people to differ in their conclusions.” Id (quotation omitted).
On appeal, we consider the evidence in the light most favorable to the nonmovant, crediting evidence a reasonable jury could credit and disregarding contrary evidence and inferences unless a reasonable jury could not. Merriman, 407 S.W.3d at 248. II. Chapter 95 A. Limitation on Liability and Applicability of Statute Chapter 95 of the Texas Civil Practices and Remedies Code was enacted 30 years ago as part of a sweeping tort-reform package. Francis v. Coastal Oil & Gas Corp., 130 S.W.3d 76, 82 (Tex. App.—Houston [1st Dist.] 2003, no pet.). The statute applies “when an independent contractor or its employee, who was hired to ‘construct[t], repai[r], renovat[e], or modif[y]’ an improvement to the owner’s
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property, brings a ‘claim for damages caused by negligence’ that ‘arises from the condition or use’ of that improvement.” CenterPoint Energy Houston Elec., LLC v. Wilder, —S.W.3d—, No. 01-22-00853-CV, 2025 WL 2248569, at *13 (Tex. App.—Houston [1st Dist.] Aug. 7, 2025, pet. denied) (quoting TEX. CIV. PRAC. & REM. CODE §§ 95.001, 95.002).
Chapter 95 applies “to all negligence claims that arise from either a premises defect or the negligent activity of a property owner or its employees.” Abutahoun v. Dow Chem. Co., 463 S.W.3d 42, 50 (Tex. 2015). In a premises liability case, it limits liability “for injuries to contractors and their employees . . . [when] . . . landowners exercise control over the work and possess actual knowledge of the injury-causing condition, and then only if the owner fails to provide an adequate warning.” SandRidge Energy, Inc. v. Barfield, 642 S.W.3d 560, 566 (Tex. 2022).9 Chapter 95 applies only “when the injury results from a condition or use of the same improvement on which the contractor (or its employee) is working when the injury occurs.” Ineos USA, LLC v. Elmgren, 505 S.W.3d 555, 567 (Tex. 2016).
A “condition” is “an intentional or an inadvertent state of being.” Los Compadres 9 “In contrast, at common law, a premises owner may be liable for failing to warn of a dangerous condition of which the owner did not know, but should have discovered by exercising reasonable care.” SandRidge Energy, Inc. v. Barfield, 642 S.W.3d 560, 566 n.22 (Tex. 2022). Compare, e.g., CMH Homes, Inc. v.
Daenen, 15 S.W.3d 97, 99 (Tex. 2000) (“[T]he elements of a premises claim are:
(1) Actual or constructive knowledge of a condition on the premises by the owner or occupier . . . .”), with TEX. CIV. PRAC. & REM. CODE § 95.003 (“A property owner is not liable . . . unless . . . the property owner had actual knowledge of the danger or condition . . . .”).
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Pescadores, L.L.C. v. Valdez, 622 S.W.3d 771, 785 (Tex. 2021) (citing Abutahoun, 463 S.W.3d at 49). “An improvement is any addition to real property, other than fixtures, that can be removed without causing injury to the real property.” Id. at 784; see Ineos, 505 S.W.3d at 568 (construing improvement to consist of entire system of furnaces stemming from common header as opposed to single part of individual furnace plaintiff worked on).
We construe “improvement” narrowly to adhere to the statute’s requirement that “the injury arise from the condition or use of the improvement that the contractor or subcontractor ‘constructs, repairs, renovates, or modifies.’” Los Compadres Pescadores, 622 S.W.3d at 784 (quoting TEX. CIV. PRAC. & REM. CODE § 95.002(2)) (declining to consider whether power lines were dangerous condition of workplace generally and focusing on condition of improvement, i.e., foundation pilings). However, “[i]f a dangerous condition, by reason of its proximity to an improvement, creates a probability of harm to one who ‘constructs, repairs, renovates, or modifies’ the improvement in an ordinary manner, it constitutes a condition of the improvement itself.” Id. at 785–86 (quoting TEX. CIV. PRAC. & REM. CODE § 95.002(2)); see Weekley Homes, 691 S.W.3d at 915 (stating in premises liability cases “contractor does not need to be injured by the improvement itself if the claim arises from a ‘condition’ of the improvement”).
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The defendant property owner has the burden of establishing the applicability of Chapter 95 by conclusively proving that the plaintiff has brought 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 subcontractor, 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, 622 S.W.3d at 782; CenterPoint Energy Houston Elec., 2025 WL 2248569, at *14; see TEX. CIV. PRAC. & REM. CODE §§ 95.001, 95.002. A defendant property owner may rely on a plaintiff’s factual allegations, not pleaded in the alternative, to define the issues and determine whether Chapter 95 applies. See Weekley Homes, 691 S.W.3d at 916; see also Hersh v. Tatum, 526 S.W.3d 462, 467 (Tex. 2017) (observing that plaintiff’s petition “is the best and all-sufficient evidence of the nature of the action.”). Whether Chapter 95 applies is a question of statutory construction that we review de novo. Abutahoun, 463 S.W.3d at 46; Phillips v. Dow Chem. Co., 186 S.W.3d 121, 130 (Tex. App.—Houston [1st Dist.] 2005, no pet.).
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B. Claimant’s Burden Under Chapter 95 “Under the common law, an independent contractor or its employee can recover against a property owner for premises liability or negligence if the owner exercised some control over the relevant work and either knew or reasonably should have known of the risk or danger.” Ineos, 505 S.W.3d at 561. But if Chapter 95 applies to the plaintiff’s claim, it is the plaintiff’s “sole means of recovery.” Abutahoun, 463 S.W.3d at 51. And the plaintiff must meet the more onerous evidentiary burden imposed by the statute. CenterPoint Energy Houston Elec., 2025 WL 2248569, at *13.
If the owner meets its burden to conclusively establish the statutory elements, a plaintiff cannot recover on his negligence claim against a property owner unless he shows that:
(1) the property owner exercised or retain[ed] some control over the manner in which the work [was] 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.
TEX. CIV. PRAC. & REM. CODE § 95.003 (emphasis added). III. Censeo Conclusively Proved Applicability of Chapter 95 In its traditional motion for summary judgment and supplemental motion for summary judgment, Censeo argued that Chapter 95 applied to Mendoza’s claims.
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A. First Element: Claim for Damages Caused By Negligence Resulting in Personal Injury
In his live pleading, Mendoza alleged that he was on the roof “doing touch-
up work on the roof jacks” when he fell to the ground, suffering “severe trauma to his brain that resulted in permanent injuries.” Thus, Mendoza’s live pleading established that he brought a claim for damages caused by negligence resulting in personal injury, conclusively establishing the first of the four elements Censeo had the burden to prove. See Los Compadres Pescadores, 622 S.W.3d at 782 (stating four elements property owner must prove to demonstrate applicability of Chapter 95); Weekly Homes, 691 S.W.3d 916 (stating defendant property owner can rely on plaintiff’s factual allegations).
B. Second Element: Real Property Ownership The second element Censeo had to prove was that it was an entity that owns real property primarily used for commercial or business purposes. See Los Compadres, 622 S.W.3d at 782. Censeo attached an affidavit and business records to its supplemental motion for summary judgment. The affidavit from Censeo’s accountant, Deidre Foster, stated: “On May 10, 2021, the date of the accident involving Mr. Mendoza, Hacienda Service Inc. was the owner of the home being constructed at 753 Rosewood Lane in Angleton, Texas. The property was subsequently transferred to the new owners on May 14, 2021.” The deed of trust transferring the home to the purchasers was also attached. In addition, Censeo’s
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corporate representative testified that Censeo built new residential homes for sale. This summary judgment evidence conclusively establishes the second element. See Los Compadres, 622 S.W.3d at 782.
C. Third Element: Claimant is Contractor The third element Censeo had to prove was that the claim was brought by an owner, contractor, or subcontractor or an employee of a contractor or subcontractor. See id. In his deposition, Mendoza indicated that he was a subcontractor and that he owned the subcontracting business, Domingo Painting. Both Cortez and Garcia also testified that Mendoza was a contractor. This evidence conclusively establishes the third element. See id.
D. Fourth Element: Claim Arises from Condition or Use of Improvement to Real Property When Claimant Constructs, Repairs, Renovates, or Modifies Improvement
The fourth element that Censeo had to prove was that Mendoza’s claim arose from the condition or use of an improvement to real property where Mendoza constructed, repaired, renovated, or modified the improvement. See id. In his live pleading, Mendoza alleged that the roof “was loose and granular,” and that he was on the roof “doing touch-up work on the roof jacks” when he fell. Both Mendoza and Censeo have maintained that the relevant improvement to the real property at issue in this case was the dormer. Mendoza’s allegations implicate a dangerous condition of the roof, in close proximity to the dormer. See Weekley Homes, 691
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S.W.3d at 916 (holding that property owner may rely on plaintiff’s factual allegations). Thus, Mendoza has alleged that his injuries arose from a condition of an improvement to real property. See Los Compadres Pescadores, 622 S.W.3d at 785–86 (“If a dangerous condition, by reason of its proximity to an improvement, creates a probability of harm to one who ‘constructs, repairs, renovates, or modifies’ the improvement in an ordinary manner, it constitutes a condition of the improvement itself.”).
Where the parties disagree is on the second part: whether Mendoza was constructing, repairing, renovating, or modifying the improvement that allegedly caused his accident. Mendoza argues that he was not because his “tiny touch ups” to the house did not constitute “constructing, repairing, renovating, or modifying” an improvement. In the trial court, Censeo argued that Mendoza’s allegations of negligence all stem from his “work on a condition of an improvement to real property.” On appeal, Censeo responds that the work Mendoza was doing constituted a modification because he was changing the form of the dormer’s paint from flawed to unflawed and changing the state of the window from unsealed to sealed by applying caulk to seal gaps and cracks in the existing caulking in anticipation of the house sale closing.
Chapter 95 does not define the terms “constructs, repairs, renovates, or modifies.” See, e.g., Priority Artificial Lift Servs., LLC v. Chiles, 698 S.W.3d 1, 14
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(Tex. App.—Houston [14th Dist.] 2024, no pet.); Vela v. Murphy Expl. & Prod. Co.-USA, No. 04-18-00830-CV, 2019 WL 7196603, at *4 (Tex. App.—San Antonio Dec. 27, 2019, no pet.) (mem. op.). Because this is a matter of statutory construction, we review the matter de novo and look to the terms’ common meanings. See Ineos, 505 S.W.3d at 563. In determining the common, ordinary meanings of these words, we may look to dictionaries and other sources. E.g., Jaster v. Comet II Const., Inc., 438 S.W.3d 556, 563 & n.10 (Tex. 2014).
Chapter 95 was enacted in 1995, and it has not been amended. At that time, these words had the following common definitions:
1. construct: build, make;
2. repair: to restore to good condition, fix;
3. renovate: to make like new again, put in good condition, repair;
4. modify: change, alter.
WEBSTER’S NEW COMPLETE DICTIONARY 113, 333, 443 (1995). Similarly, several of our sister courts of appeals have already considered the meaning of these terms as used in Chapter 95, using a dictionary definition to guide their understanding of their ordinary, common meaning.
1. construct—to build or form by putting together parts; frame;
devise.
2. repair—to restore to a good or sound condition after decay or damage; mend: to repair a motor; to restore or renew by any
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process of making good, strengthening, etc.: to repair one’s health by resting.
3. renovate—to restore to good condition; make new or as if new again; repair.
4. modify—to change somewhat the form or qualities of; alter partially.
Montoya v. Nichirin-Flex, U.S.A., Inc., 417 S.W.3d 507, 512 (Tex. App.—El Paso 2013, no pet.) (quoting WEBSTER’S NEW UNIVERSAL UNABRIDGED DICTIONARY 436, 1236, 1632 (2003)); accord Priority Artificial Lift Servs., 698 S.W.3d at 14; Vela, 2019 WL 7196603, at *4; Morales v. Alcoa World Alumina L.L.C., No. 13- 17-00101-CV, 2018 WL 2252901, at *7 (Tex. App.—Corpus Christi May 17, 2018, pet. denied) (mem. op.). The Fourteenth Court of Appeals concluded that “these definitions illustrate [that] Chapter 95 is intended to encompass actions that effect some change upon an improvement’s condition, form, or qualities.” Priority Artificial Lift Servs., 698 S.W.3d at 14.
Censeo’s summary-judgment evidence showed that Mendoza was engaged to perform touch-up painting, corrective caulking as needed, and basic cleaning (wiping down) on the dormer window. Cortez explained that just by virtue of being outside, the paint can get “messed up” and “[c]aulking is going to crack.” Because the dormer faces the front of the house, these defects are noticeable “when you pull into the driveway,” so Cortez told Mendoza to “fix” it. Mendoza’s activities constitute repair or renovation because he was acting to restore the window to good
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condition or to make it like new again and put it in good condition. See WEBSTER’S NEW COMPLETE DICTIONARY 443 (1995); see also Priority Artificial Lift Servs., 698 S.W.3d at 14; Vela, 2019 WL 7196603, at *4; Morales, 2018 WL 2252901, at *7; Montoya, 417 S.W.3d at 512.
We conclude that the summary-judgment evidence satisfies the fourth element. See Los Compadres Pescadores, 622 S.W.3d at 782. Because Mendoza did not produce any summary judgment evidence creating a genuine question of material fact on this element, we hold that Censeo conclusively proved that Chapter 95 applies. See id. IV. The Exception to the Applicability of Chapter 95 Censeo moved for traditional summary judgment as to the element of control and for no-evidence summary judgment as to both prongs of the statutory exception. Because Mendoza has the burden of proof to show that the exception applies, to defeat summary judgment, he had to produce evidence that creates a fact issue as to whether Censeo “exercised or retain[ed] some control over the manner in which the work [was] performed,” that Censeo “had actual knowledge of the danger or condition” that caused his injuries, and that Censeo “failed to adequately warn” him. See TEX. CIV. PRAC. & REM. CODE § 95.003.
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Mendoza argues that he did produce more than a scintilla of evidence showing that the exception to Chapter 95 applies in this case. Censeo argues that he did not.
As pleaded and litigated by the parties, Mendoza had primarily two theories about the danger or condition that caused his injuries. First, he pleaded that there was a defect in the roof itself, which he described as “loose and granular.” Second, he argued that Censeo told him to work on the roof, knew that he had not used personal fall protection in the past, and had safety policies that controverted federal regulations about when such fall protection was needed. Mendoza argues that Censeo exercised “some control” over the manner in which he performed his work generally by giving instructions and by its “knowledge and approval of unsafe conditions and by promulgating incorrect safety rules about fall protection.”
A. Retention of Control Under common law, “[a]s a general rule, one who employs an independent contractor has no duty to ensure that the contractor performs its work in a safe manner.” AEP Tex. Cent. Co. v. Arredondo, 612 S.W.3d 289, 295 (Tex. 2020) (citing Fifth Club, Inc. v. Ramirez, 196 S.W.3d 788, 791 (Tex. 2006)). However, the Texas Supreme Court has recognized an exception to this rule when “the employer retains some control over the manner in which the contractor performs the work that causes the damage.” AEP Tex. Cent., 612 S.W.3d at 295 (quoting
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Fifth Club, 196 S.W.3d at 791). The Texas Supreme Court has adopted section 414 of the Restatement (Second) of Torts, which states:
One who entrusts work to an independent contractor, but who retains the control of any part of the work, is subject to liability for physical harm to others for whose safety the employer owes a duty to exercise reasonable care, which is caused by his failure to exercise his control with reasonable care.
Redinger v. Living, Inc., 689 S.W.2d 415, 418 (Tex. 1985) (quoting Restatement (Second) of Torts § 414 (1977)).
What actions constitute retention of control for this purpose has often been the subject of litigation because of the necessity for an employer to communicate with contractors. See Koch Ref. Co. v. Chapa, 11 S.W.3d 153, 156 (Tex. 1999). “Every premises owner must have some latitude to tell its independent contractors what to do, in general terms, and may do so without becoming subject to liability.” Id. To establish the exception to the general rule, however, the premises owner or employer or must have control over the means, methods, or details of the independent contractor’s work. See AEP Tex. Cent., 612 S.W.3d at 295. Comment (c) to section 414 of the Restatement explains what it means for someone to retain control of any part of the work of an independent contractor in a way that will subject him to liability:
In order for the rule stated in this Section to apply, the employer must have retained at least some degree of control over the manner in which the work is done. It is not enough that he has merely a general right to order the work stopped or resumed, to inspect its progress or
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to receive reports, to make suggestions or recommendations which need not necessarily be followed, or to prescribe alterations and deviations. Such a general right is usually reserved to employers, but it does not mean that the contractor is controlled as to his methods of work, or as to operative detail. There must be such a retention of a right of supervision that the contractor is not entirely free to do the work in his own way.
RESTATEMENT (SECOND) OF TORTS § 414 (1965).
The first element to the exception to Chapter 95’s limitation on liability echoes these comments and requires the claimant to prove that “the property owner exercise[ed] or retain[ed] some control over the manner in which the work [was] 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 § 95.003; see Johnston v. Oiltanking Houston, L.P., 367 S.W.3d 412, 416 (Tex. App.—Houston [14th Dist.] 2012, no pet.).
Texas courts routinely look to non-chapter 95 cases when analyzing the control element in section 95.003. See TEX. CIV. PRAC. & REM. CODE § 95.003. For example, in Energen Resources Corp. v. Wallace, 642 S.W.3d 502, 515 (Tex. 2022), the Supreme Court of Texas relied on two common-law cases involving the question of control over a subcontractor in construing the control element under section 95.003, saying:
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 progress or receive reports’ is insufficient.’ TEX. CIV. PRAC. & REM. CODE § 95.003(1). Control may be shown with evidence that (1) a contract
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assigned control to the property owner or (2) the property owner ‘actually exercised control’ over the manner in which the work was performed. Dow Chem. Co. v. Bright, 89 S.W.3d 602, 606 (Tex.
2002). This control must extend to ‘the means, methods, or details of the independent contractor’s work . . . such that the [independent]
contractor is not entirely free to do the work in his own way.’ AEP Tex. Cent. Co. v. Arredondo, 612 S.W.3d 289, 295 (Tex. 2020)
(cleaned up).
Id.
Bright is a common-law case in which the Supreme Court looked to Redinger and section 414 of the Restatement. AEP Texas Central Co. is also a common-law case in which the Supreme Court looked to Redinger, section 414 of the Restatement, and Bright. In a footnote in Energen Resources Corp., the Supreme Court expressly acknowledged that common-law cases can inform the analysis of section 95.003 issues. Energen Res. Corp., 642 S.W.3d at 515 n.13. The Court said:
Bright is not a Chapter 95 case. But in analyzing the control prong of section 95.003, we have consulted our decisions regarding a property owner’s duties to independent contractors over whose work the property owner has ‘some control.’ See Ineos, 505 S.W.3d at 561 (citing Redinger, 689 S.W.2d at 418). One court of appeals has suggested that section 95.003(1) is a codification of our holding in Redinger. See Dyall v. Simpson Pasadena Paper Co., 152 S.W.3d 688, 699 (Tex. App.—Houston [14th Dist.] 2004, pet. denied).
Id.
Likewise, this Court has also relied on non-chapter 95 cases when applying or analyzing section 95.003. In Phillips v. Dow Chemical Co., 186 S.W.3d 121,
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134 (Tex. App.—Houston [1st Dist.] 2005, no pet.), this Court noted that although Bright “construes the common law of premises liability for injuries at a worksite, its holdings are relevant because section 95.003(1), the first of the two elements that must be established for a premises owner to be liable under chapter 95, codifies the common law.” 186 S.W.3d at 134 (citing Dyall, 152 S.W.3d at 699 & n.13 (citing George C. Hanks, Jr., When Sticks and Stones May Break Your Bones: An Overview of Texas Premises Liability Law for Business Owners, 60 TEX. B.J. 1010, 1021 (1997))). While a plaintiff may prove control based on a contractual right to control or evidence of actual control, in this case, Mendoza only raises the question of actual control. See Energen Res. Corp., 642 S.W.3d at 515; Bright, 89 S.W.3d at 606.
B. Means, Methods, and Details of Mendoza’s Work Mendoza argues that Censeo exercised control by providing explicit and detailed instructions regarding the performance of various tasks, some of which went beyond the original scope of the paint work order. He also asserts that Censeo controlled the order and priority of his work by using a detailed punch list system. Finally, he argues that Censeo exercised control by pointing to the dormer and asking him to work on the window on the roof.
In the trial court, Mendoza argued that Censeo exercised control by directing him to perform tasks from a specific list that included more than just painting
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services. He pointed to Garcia’s testimony that these tasks included moving trash and materials, caulking, pressure washing, and cleaning. He also relied on Cortez’s testimony that he asked Mendoza to touch up the paint, ensure the caulking around the dormer was good, and wipe down the window. Mendoza argued that because Censeo’s instructions went beyond “paint the house,” Censeo exercised control over the operative details of his work.
Cortez testified that because the purchase of the house was scheduled to close within days, the work that remained to be done consisted of punch list and touch-up items. “A punch list is a document created in connection with a walk- through by the owner or architect and contractor. The punch list may include clean up and touch up work, as well as work that is unacceptable in quality to the owner, contractor, or architect.” Sw. Progressive Enters., Inc. v. R.L. Harkins, Inc., No. 08-00-00294-CV, 2002 WL 358830, at *5 (Tex. App.—El Paso Mar. 7, 2002, no pet.) (mem. op.). Yet Cortez testified that there was no written punch list for touch- up painting inside the house. Instead, he identified areas that needed touching up by affixing blue tape to the area, and then he pointed out to Mendoza where those areas were in the house. As for the exterior, Cortez pointed to the dormer and told Mendoza to touch up the paint, check and correct the caulking as needed, and wipe down the window.
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There is no evidence, however, that Cortez or Censeo directed the manner in which Mendoza was to accomplish any of those tasks, such as by dictating what equipment to use, how to use it, or the order in which to complete the tasks. Garcia said nobody at Censeo told Mendoza how to do his job because “[h]e’s a professional . . . an expert in his field.” Cortez testified that Censeo did not provide any equipment, and both he and Mendoza agreed that Mendoza used his own ladder to access the dormer. Cortez did not supervise the order in which Mendoza performed the tasks, and he did not even know what order in which Mendoza worked on the tasks. Finally, Mendoza himself denied that he was given instructions regarding the work to be done on the dormer of the house. In short, Mendoza produced no evidence showing that he was not entirely free to do the work in his own way.10
10 In his brief, Mendoza refers to variance work orders dated October 25, 2021, which were included in the appendix to his brief. He argues that these represent a departure from the original scope of his painting work and that this is somehow evidence of Censeo’s control. While we note that there was some testimony from Garcia about the variance work orders, we cannot consider the documents in the appendix as a basis for reversal because they were not presented to the trial court and are not in the appellate record. See J.R. Richard Enters., Inc. v. Niz, No. 01-
20-00124-CV, 2020 WL 7391710, at *3 (Tex. App.—Houston [1st Dist.] Dec. 17, 2020, no pet.) (mem. op.) (“On appeal from a summary judgment, we can only consider such matters as were presented to the trial court.”); see also TEX. R. CIV.
P. 166a(c) (former) (“Issues not expressly presented to the trial court by written motion, answer or other response shall not be considered on appeal as grounds for reversal.”). Because the variance work orders and safety standards were not presented to the trial court as summary-judgment evidence, we do not consider them on appeal. See Marburger v. Guest, No. 01-23-00628-CV, 2025 WL 1710289, at *7 (Tex. App.—Houston [1st Dist.] June 19, 2025, no pet.) (mem.
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Here, the evidence showed that Cortez communicated the scope of the work to Mendoza but did not instruct him on the methods, manner, or means of accomplishing the results. See Koch Ref. Co., 11 S.W.3d at 156 (holding premises owner has latitude to tell independent contractors what to do without becoming subject to liability). Mendoza did not produce summary judgment evidence creating a genuine question of material fact on this point. See AEP Tex. Cent., 612 S.W.3d at 295 (holding that contract requiring restoration of premises informed scope of work but did not confer “a right of control as to the means, methods, and details of that work” when it provided “no indication of how [the contractor] should accomplish that result, such as by using a particular type of fill, equipment, or technique”).
C. Control Over Safety Relying on Lee Lewis Construction, Inc. v. Harrison, 70 S.W.3d 778 (Tex.
2001), Mendoza also argues that he produced evidence creating a fact issue on the “some control” element of Chapter 95, because Censeo exercised control over the safety aspect of his work. Mendoza maintains that Censeo knew of a dangerous condition (his past practice of working on roofs without fall protection) and nevertheless directed him to perform work on the roof. We conclude that Mendoza did not produce evidence raising a question of fact as to section 95.003(1).
op.) (stating that appellate courts cannot consider documents attached as appendices to appellate brief but not included in record on appeal).
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Assuming without deciding that Mendoza’s claims could be or should be assessed via the standard in Lee Lewis Construction, we conclude such assessment does not raise a fact issue.
In Lee Lewis Construction, a case involving a fatal fall injury, the Supreme Court held that a general contractor was liable to a subcontractor’s employee because there was evidence it controlled a safety aspect of the work to be performed. Lee Lewis Constr., 70 S.W.3d at 783. Lee Lewis Construction (“LLC”) was hired as general contractor on a project to add ninth and tenth floors to a hospital tower. Id. at 782. Jimmy Harrison worked for a glass-glazing subcontractor. Id. While working on the tower’s tenth floor, he fell and suffered fatal injuries. Id. A jury found that LLC had retained the right to control safety at the construction site. Id.
On appeal, LLC challenged the legal sufficiency of the evidence to support the jury’s finding. Id. at 783. The Supreme Court found that the following evidence supported the finding. Id. at 784. First, the owner of LLC testified that he had assigned LLC’s job superintendent to routinely inspect the addition to the tower and “see to it that the subcontractors and their employees properly utilized fall protection equipment.” Id. Next, other testimony showed that the job superintendent “personally witnessed and approved of the specific fall-protection systems” used by the subcontractor. Id. Finally, testimony showed that the job
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superintendent “knew of and did not object” to the subcontractor’s “employees using a bosun’s chair without an independent lifeline.” Id. The Supreme Court concluded that this was “more than a scintilla of evidence that LLC retained the right to control fall-protection systems on the jobsite.”11 Id.
The holding of Lee Lewis does not, however, stand alone. See JMI Contractors, LLC v. Medellin, 738 S.W.3d 775, 783 (Tex. 2026) (calling Lee Lewis a “doctrinal wrinkle” and surveying cases that have refined its application). In Bright, the Supreme Court held that the property owner had not retained control over an independent contractor, who had asserted a premises liability claim, through its safe work permit systems, safety manuals, and safety representatives. 89 S.W.3d at 607–11. The Court held that “mere promulgation of safety policies does not establish actual control.” Id. at 611 (citing Hoechst-Celanese Corp. v. Mendez, 967 S.W.2d 354, 357–58 (Tex. 1998) (requiring an independent contractor to “observe and promote compliance with federal laws, general safety guidelines, and other standard safety precautions [does] not impose an unqualified duty of care on [a premises owner] to ensure that [an independent contractor’s] employees [do] nothing unsafe”)).
11 The Amarillo Court of Appeals detailed even more evidence of both contractual and actual right of control retained and exercised by LLC over its subcontractor, including testimony from LLC’s president “conced[ing] that LLC retained the right to control safety on that job site.” Lee Lewis Constr., Inc. v. Harrison, 64 S.W.3d 1, 8–9 (Tex. App.—Amarillo 1999), aff’d, 70 S.W.3d 778 (Tex. 2001).
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In General Electric Co. v. Moritz, an employee of an independent contractor was injured when he fell off a loading-dock ramp and sued asserting negligent activity and premises liability claims. 257 S.W.3d 211, 213–14 (Tex. 2008). The Supreme Court held that the property owner had not exercised or retained control of the independent contractor’s activities by requiring the loading of trucks at a loading dock, distinguishing between control over where the trucks were loaded and how they were loaded. Id. at 214–15. The Court held that a control over one aspect of an independent contractor’s working conditions did not demonstrate retention of control when the plaintiff’s injury arose from a different aspect of his activities. Id. at 214.
Most recently, in JMI Contractors, the Supreme Court cabined the holding of Lee Lewis Construction, holding that “[a]ny reliance on Lee Lewis must necessarily be informed by the analysis in [Bright] and Moritz.” JMI Contractors, 738 S.W.3d at 784. The Court said that Lee Lewis Construction “is best understood to apply in the narrow set of circumstances present in that case. . . . [which] include the general contractor’s decision to fully control the particular plaintiff’s activity in a way that creates a heightened danger that in turn causes the plaintiff’s injury.” Id. (noting that LLC “required the use of a bosun’s chair without an independent lifeline—a dangerous device that led to the decedent’s death”). Thus, “to fall within the control framework presented in Lee Lewis, as clarified by Dow
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Chemical and Moritz, a plaintiff must establish that the defendant retained full control over the plaintiff’s activity and increased the risk of injury by creating a danger.” Id. That is: when “a general contractor’s [or owner’s] decision to fully control the particular plaintiff’s activity in a way that creates a heightened danger that in turn causes that plaintiff’s injury . . . that [control] independently gives rise to liability notwithstanding a dangerous condition of the premises.” Id.
In the trial court, Mendoza argued that Censeo exercised “some control” by instructing him to work on the roof while knowing that he “would not use fall protection,” a circumstance that would endanger him. For this argument, he relied on Garcia’s testimony that he did not believe that Mendoza needed fall protection while working on the roof, his agreement that (hypothetically) assigning a contractor to “do a job on a second story roof . . . [when] you know that they’re not going to be using fall protection” endangers the contractor, and Cortez’s testimony that he never saw anyone use fall protection. This evidence does not bring Mendoza’s claims within the limited circumstances of Lee Lewis Construction because it does not show that Censeo “fully control[led] [Mendoza’s] activity in a way that create[d] a heightened danger that in turn cause[d] [Mendoza’s] injury.” JMI Contractors, 738 S.W.3d at 784.
On appeal, Mendoza further relies on Censeo’s promulgation of Safety Program and Field Safety Standards, and its direction for him to work on a roof
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despite Cortez knowing that he had previously worked on a roof without fall protection. As with the variance purchase orders, see supra section IV.B., the safety standards, which Mendoza attached as an appendix to his brief, were not submitted to the trial court as summary judgment evidence and are not part of the appellate record. Thus, we cannot consider them in our review of the trial court’s summary judgment. See J.R. Richard Enters., Inc. v. Niz, No. 01-20-00124-CV, 2020 WL 7391710, at *3 (Tex. App.—Houston [1st Dist.] Dec. 17, 2020, no pet.) (mem. op.).
On appeal, Mendoza also relies on Garcia’s testimony that it was important to know when fall protection is required, that no fall protection was needed because Mendoza was at a height of less than ten feet, and that Censeo had a general responsibility to “look around and make sure things are being done in a safe way.” Mendoza further asserts that Censeo promoted incorrect safety standards by communicating to workers through toolbox talks that fall protection was not needed for work on a one-story house and below ten feet. He maintains that this increased rather than decreased the possibility of injury.
Again, unlike in Lee Lewis Construction, Mendoza did not produce any evidence that Censeo required Mendoza’s action of working on the roof without fall protection. See JMI Contractors, 738 S.W.3d at 784 (noting that LLC “required the use of a bosun’s chair without an independent lifeline—a dangerous
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device that led to the decedent’s death”). Id. Mendoza’s evidence fails to raise a question of fact about whether Censeo exercised the kind of control necessary under Lee Lewis Construction.
We therefore hold that the trial court did not err by granting no evidence summary judgment in Censeo’s favor.
D. No Evidence of Actual Knowledge Because the two elements necessary to demonstrate the applicability of the exception to Chapter 95 are conjunctive, Mendoza had to produce evidence raising a genuine question of material fact on both elements to avoid summary judgment. See TEX. CIV. PRAC. & REM. CODE § 95.003. The trial court’s summary judgment can be upheld solely based on our conclusion that Mendoza failed to raise a genuine question of material fact about control. However, Mendoza also maintains on appeal that he raised a genuine question of material fact about actual knowledge and whether Censeo failed to provide an adequate warning. We find that he did not.
“Actual knowledge requires knowledge that the dangerous condition existed at the time of the accident[.]” City of Corsicana v. Stewart, 249 S.W.3d 412, 414– 15 (Tex. 2008). “Actual knowledge of a dangerous condition is what a person actually knows, as distinguished from constructive or imputed knowledge, or what a reasonably prudent person should have known or should have foreseen.” Rawson
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v. Oxea Corp., 557 S.W.3d 17, 29–30 (Tex. App.—Houston [1st Dist.] 2016, pet. dism’d) (citing Tex. S. Univ. v. Gilford, 277 S.W.3d 65, 70 (Tex. App.—Houston [1st Dist.] 2009, pet. denied)). “[S]ection 95.003(2) elevated the alternative, common law, ‘should have known’ test of the premises owner’s knowledge of a dangerous condition to an ‘actual knowledge’ requirement.” Phillips, 186 S.W.3d at 133.
Despite pleading that there was a defect in the roof itself, Mendoza has made no argument in the trial court or on appeal that Censeo had actual knowledge of a defect in the roof. He has, however, argued that Censeo had actual knowledge that he would work without fall protection because he had worked without fall protection in the past. At most, however, this evidence demonstrates constructive knowledge that Mendoza was likely to work without fall protection. To raise a genuine a question of material fact about actual knowledge of a dangerous condition, Mendoza would have needed to produce some evidence that Censeo actually knew he was working without fall protection when it was required on the day of his fall. See City of Corsicana, 249 S.W.3d at 414–15. Mendoza produced no such evidence, nor does the evidence in the appellate record show that any Censeo employee saw him on the roof that day. Accordingly, we hold that the trial court could have properly granted Censeo’s no evidence summary judgment as to the second element of the exception to Chapter 95.
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Conclusion
We affirm the judgment of the trial court.
Susanna Dokupil
Justice
Panel consists of Justices Rivas-Molloy, Johnson, and Dokupil.