Ineos USA, LLC v. Elmgren

505 S.W.3d 555, 59 Tex. Sup. Ct. J. 1278, 2016 Tex. LEXIS 504, 2016 WL 3382144
CourtTexas Supreme Court
DecidedJune 17, 2016
DocketNo. 14-0507
StatusPublished
Cited by73 cases

This text of 505 S.W.3d 555 (Ineos USA, LLC v. Elmgren) is published on Counsel Stack Legal Research, covering Texas Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ineos USA, LLC v. Elmgren, 505 S.W.3d 555, 59 Tex. Sup. Ct. J. 1278, 2016 Tex. LEXIS 504, 2016 WL 3382144 (Tex. 2016).

Opinion

JUSTICE BOYD

delivered the opinion of the Court.

This appeal presents three issues regarding Chapter 95 of the Texas Civil Practice and Remedies Code, which protects property owners against liability to contractors, subcontractors, and their employees under certain circumstances. The first issue is whether the statute applies to negligence claims other than those that assert premises liability. Applying our recent decision in Abutahoun v. Dow Chemical Co., 463 S.W.3d 42 (Tex.2015), we hold that it does. The second issue is whether the statute applies to claims against a property owner’s employee. Applying the statute’s plain language, we hold that it does not. The third issue is whether the plaintiffs’ evidence creates a fact issue that precludes summary judgment despite the statute’s protection. We hold that it does not. Because we disagree with the court of appeals on the first issue but agree on the second and third, we affirm the court of appeals’ judgment in part and reverse and render judgment in part.

I.

Background

Ineos USA, LLC,1 owns a petrochemical plant in Alvin, Texas. Plaintiff Johannes Elmgren worked as a boilermaker for Za-chry Industrial, an independent contractor that provided maintenance services at the plant. In June 2010, Elmgren was injured white replacing a valve on a furnace header. The furnace is part of a processing system through which hot, combustible gas flows through pipes under pressure) Before removing a valve, that part of the pipe system must be shut off from the gas supply. On the night of Elm-gren’s injury, employees of both Ineos and Zachry conducted a lockout-tagout procedure to isolate the section containing the valves Elmgren was going to replace. Sometime later, the employees conducted a “sniff test,” and its results indicated that no gas was present in that section of the system. Elmgren and a coworker removed and replaced one valve, but around 3:00 a.m., as they were removing a second valve, a burst of gas exploded out of the pipe, causing burns to Elmgren’s torso, neck, and face.

[560]*560Elmgren and his wife Valerie, on behalf of themselves and their minor children, filed suit against Ineos and Jonathan Pavlovsky, an Ineos employee who the Elmgrens alleged was the “furnace maintenance team leader.” The Elmgrens theorized that a leaky pipe valve several hundred feet away from the valve on which Elmgren was working caused gas to enter the pipes, resulting in the explosion when Elmgren opened the system. They alleged that the “super-heated gas leak was an unreasonably dangerous condition;” the defendants “knew or should have known of the ... dangers;”'the defendants should have warned Elmgren, protected him, or corrected the danger; by failing to do so, the defendants breached a duty to furnish Elmgren a “safe place and conditions” in which to work; the defendants acted negligently and with reckless disregard for the dangers; and the defendants’ negligence proximately caused Elmgreris injuries.2

Ineos and Pavlovsky filed motions for summary judgment asserting that Chapter 95 of the Texas Civil Practice and Remedies Code protects them from liability on all of the Elmgrens’ claims. In response, the Elmgrens argued that Chapter 95 does not apply to their claims, that their evidence established Ineos’ liability even if Chapter 95 applies, and that Chapter 95 does not protect Pavlovsky because it only applies -to claims against a “property owner.” The trial court granted the defendants’ motions, and the Elmgrens appealed.

The court of appeals affirmed in part and reversed in part. 431 S.W.3d 657, 672 (Tex.App.2014). Construing the Elm-grens’ petition to. assert separate claims for premises liability, negligent activity, and negligent undertaking, the court interpreted Chapter 95 to apply only to the premises-liability claim, and thus reversed the summary judgment on the non-premises negligence claims. Id. at 667-71. The court affirmed the summary judgment in Ineos’ favor on the premises-liability claim, holding that Chapter 95 applies to that claim and the Elmgrens submitted no evidence to avoid the statute’s protection. Id. at 666. Finally, the court reversed the summary judgment on all claims against Pavlovsky, holding that Pavlovsky faded to conclusively establish that Chapter 95 protects him as the property owner’s employee. Id. at 667, 671. Based on these holdings, the court remanded the case to the trial court for further proceedings on the Elmgrens’ non-premises claims against In-eos and on all of their claims against Pav-lovsky. Id. at 672. Ineos and Pavlovsky filed a petition for review, which we granted.

II.

Negligence Claims

Chapter 95 of the Texas Civil Practice & Remedies Code applies to a claim:

(1) against a property owner, contractor, or subcontractor for personal injury, death, or property damage to an owner, a contractor, or a subcon[561]*561tractor or an employee of a contractor or subcontractor; and
(2) 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.

Tex. Civ. Prac. & Rem. Code § 95.002. The statute defines a “claim” to mean “a claim for damages caused by negligence, including a counterclaim, cross-claim, or third party claim.” Id. § 95.001(1). A “property owner” is a “person or entity that owns real property primarily used for commercial or business purposes.” Id. § 95.001(3).

The section of Chapter 95 that grants liability protection on which Ineos and Pavlovsky rely provides:

A property owner is not liable for personal injury, death, or property damage to a contractor, subcontractor, or an employee of a contractor or subcontractor who constructs, repairs, renovates, or modifies an improvement to real property ... unless:
(1) the property 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; 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.

Id. § 95.003.

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. See Redinger v. Living, Inc., 689 S.W.2d 415, 418 (Tex.1985) (“[W]hen the general contractor exercises some control over a subcontractor’s work he may be liable unless he exercises reasonable care in supervising the subcontractor’s activity.”); CMH Homes, Inc. v. Daenen, 15 S.W.3d 97, 101 (Tex.2000) (“[I]t follows that an owner or occupier is not liable for deterioration of its premises unless it knew of or by reasonable inspection would have discovered the [danger].”).

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Bluebook (online)
505 S.W.3d 555, 59 Tex. Sup. Ct. J. 1278, 2016 Tex. LEXIS 504, 2016 WL 3382144, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ineos-usa-llc-v-elmgren-tex-2016.