Fourth Court of Appeals San Antonio, Texas MEMORANDUM OPINION
No. 04-24-00729-CV
Jesus Junior GARCIA, Appellant
v.
SAN MIGUEL ELECTRIC COOPERATIVE, INC., Appellee
From the 81st Judicial District Court, Atascosa County, Texas Trial Court No. 22-03-0161-CVA Honorable Russell Wilson, Judge Presiding
Opinion by: Lori I. Valenzuela, Justice
Sitting: Lori I. Valenzuela, Justice Lori Massey Brissette, Justice H. Todd McCray, Justice
Delivered and Filed: November 19, 2025
AFFIRMED
Appellant Jesus Junior Garcia was injured after a catwalk collapsed under him in a cooling
tower owned by appellee San Miguel Electric Cooperative, Inc. In two issues, Garcia argues the
trial court erred by concluding San Miguel was entitled to summary judgment under Chapter 95
of the Texas Civil Practice and Remedies Code. Because the evidence did not raise a genuine issue
of material fact to preclude summary judgment in San Miguel’s favor, we affirm the judgment. 04-24-00729-CV
BACKGROUND
In 2022, San Miguel contracted with Garcia’s employer, Midwest Cooling Towers, to
inspect and repair an 18-cell cooling tower used in San Miguel’s operations. At that time, Garcia
worked for Midwest as a carpenter. Midwest’s work for San Miguel originally included, inter alia,
structural repairs to cells L, M, N, and O of the cooling tower, but the parties eventually agreed
that Midwest would also perform similar work on cell P. It appears to be undisputed that San
Miguel’s own employees did not enter the cooling tower and that the only people who did were
outside contractors like Midwest that San Miguel hired to inspect and repair the tower.
Garcia spent the morning of March 8, 2022 working in the upper elevations of cell P.
Although there were catwalks installed near the top of the cooling tower, Garcia testified that he
did not use them to access or perform his work on this job.
When Garcia stopped working to take his lunch break, he decided to leave his tool belt on
the fan deck at the top of cell P so he would not have to carry it down to the ground and bring it
back up after lunch. He tried to use a catwalk to access the fan deck, but when he stepped on the
catwalk’s metal grating, it collapsed under him. He fell more than 40 feet into the basin of the
cooling tower and suffered multiple injuries.
Garcia sued San Miguel, and San Miguel filed a traditional motion for summary judgment.
In its motion, San Miguel argued that Garcia’s premises liability claims were barred by Chapter
95 of the Texas Civil Practice and Remedies Code. 1 In response, Garcia argued that San Miguel
had not established that Chapter 95 barred his claims as a matter of law.
1 San Miguel’s motion for summary judgment also argued that it was entitled to summary judgment on Garcia’s negligent undertaking and gross negligence claims even if Chapter 95 does not apply here. Garcia did not challenge those arguments in either his summary judgment response or his briefing in this appeal.
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The trial court granted San Miguel’s motion for summary judgment without specifying any
grounds. Garcia then timely filed this appeal.
ANALYSIS
In his first issue, Garcia argues San Miguel did not conclusively establish that Chapter 95
applies to his claims. See TEX. CIV. PRAC. & REM. CODE §§ 95.001–.002; TEX. R. CIV. P. 166a(c).
In his second issue, he argues that if Chapter 95 applies, genuine issues of material fact exist as to
San Miguel’s control over Midwest’s work and its knowledge of the danger posed by the catwalk.
TEX. CIV. PRAC. & REM. CODE § 95.003.
Standard of Review
We review summary judgments de novo. See SandRidge Energy, Inc. v. Barfield, 642
S.W.3d 560, 566 (Tex. 2022). We accept evidence favorable to the nonmovant as true and resolve
all doubts and make all reasonable inferences in his favor. See Energen Res. Corp. v. Wallace, 642
S.W.3d 502, 509 (Tex. 2022). The movant must establish that there are no genuine issues of
material fact and that it is entitled to a judgment as a matter of law. TEX. R. CIV. P. 166a(c); Wal-
Mart Stores, Inc. v. Xerox State & Loc. Sols., Inc., 663 S.W.3d 569, 576 (Tex. 2023). A defendant
that moves for traditional summary judgment must show the plaintiff’s claim fails as a matter of
law, either because the evidence conclusively disproved at least one required element of the
plaintiff’s claim or because the defendant conclusively established all the elements of an
affirmative defense. See Cathey v. Booth, 900 S.W.2d 339, 341 (Tex. 1995) (per curiam); see also
Weekley Homes, LLC v. Paniagua, 691 S.W.3d 911, 915 (Tex. 2024) (per curiam) (defendant bears
initial burden to establish Chapter 95 applies). “Evidence is conclusive only if reasonable people
could not differ in their conclusions, a matter that depends on the facts of each case.” City of Keller
v. Wilson, 168 S.W.3d 802, 816 (Tex. 2005) (footnote omitted).
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If the movant does not conclusively establish its right to judgment, then the nonmovant has
no duty to respond. See Rhone-Poulenc, Inc. v. Steel, 997 S.W.2d 217, 222–23 (Tex. 1999). But if
the movant satisfies its burden, the nonmovant must present evidence that raises a genuine issue
of material fact to preclude summary judgment. See Romo v. Tex. Dep’t of Transp., 48 S.W.3d
265, 269 (Tex. App.—San Antonio 2001, no pet.).
When a trial court grants a motion for summary judgment but its order does not specify its
grounds for doing so, “we must affirm the summary judgment if any of the theories presented to
the trial court and preserved for appellate review are meritorious.” Provident Life & Accident Ins.
Co. v. Knott, 128 S.W.3d 211, 216 (Tex. 2003).
Applicable Law
Chapter 95 of the Texas Civil Practice and Remedies Code protects owners of “real
property primarily used for commercial or business purposes” from liability for negligence claims
brought:
(1) against a property owner, contractor, or subcontractor for personal injury, death, or property damage to an owner, a contractor, or a subcontractor 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 §§ 95.001–.002. If a property owner defendant establishes that
Chapter 95 applies to a plaintiff’s claims, the plaintiff cannot recover unless he shows that “the
property owner exercise[d] or retain[ed] 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 “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.
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When Chapter 95 applies, section 95.003 is “a plaintiff’s ‘sole means of recovery’ . . . and
the plaintiff has the burden of proving both prongs of that section at trial.” Energen, 642 S.W.3d
at 514 (quoting Abutahoun v. Dow Chem. Co., 463 S.W.3d 42, 51 (Tex. 2015)). Accordingly,
Chapter 95 is not an affirmative defense, and a defendant may assert its protections at trial—or, as
here, in a motion for summary judgment—even if it did not raise that issue in its answer. Gorman
v. Ngo H. Meng, 335 S.W.3d 797, 802–03 (Tex. App.—Dallas 2011, no pet.), abrogated on other
grounds by First Tex. Bank v. Carpenter, 491 S.W.3d 729, 732–33 (Tex. 2016).
A summary judgment movant relying on Chapter 95 must conclusively establish that the
plaintiff’s claim: (1) is for damages caused by negligence or premises liability resulting in personal
injury; (2) is asserted against an entity that owns real property primarily used for commercial or
business purposes; (3) is asserted by a contractor or an employee of a contractor, and (4) arises
from the condition or use of an improvement to real property where the contractor constructs,
repairs, renovates, or modifies the improvement. Los Compadres Pescadores L.L.C. v. Valdez, 622
S.W.3d 771, 782 (Tex. 2021). “‘For chapter 95 to apply, it is not enough that a dangerous
condition’ the defendant negligently failed to warn of or make safe ‘existed on the
premises. . . . Instead, the danger must arise from the condition (or use) of “an
improvement” . . . on which the claimant was working.’” Energen, 642 S.W.3d at 511–12 (quoting
Valdez, 622 S.W.3d at 783, alterations in original). “Chapter 95 only applies 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).
If a traditional summary judgment movant establishes that Chapter 95 applies to the claims,
it must also establish as a matter of law that it lacked actual knowledge of the danger and/or that
it did not exercise or retain control over the work. TEX. CIV. PRAC. & REM. CODE § 95.003;
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Energen, 642 S.W.3d at 514–15. If the movant satisfies that burden, the nonmovant can avoid
summary judgment by presenting evidence that raises a fact issue as to both actual knowledge and
control. Phillips v. Dow Chem. Co., 186 S.W.3d 121, 133 (Tex. App.—Houston [1st Dist.] 2005,
no pet.).
Application
Did San Miguel Conclusively Establish that Chapter 95 Applies to Garcia’s Claims?
The parties agree that San Miguel owns the commercial real property at issue here, Garcia
was an employee of a contractor, and Garcia’s claims sound in negligence as that term is used in
Chapter 95. See TEX. CIV. PRAC. & REM. CODE §§ 95.001–.002; Energen, 642 S.W.3d at 513
(“[A]lthough Chapter 95 distinguishes between claims for negligent activities and those for
premises defects, it applies to both types of claims.”). They disagree about whether San Miguel
conclusively established that Garcia’s claims arise from the condition or use of the same
improvement that he was constructing, repairing, renovating, or modifying when his injuries
occurred. TEX. CIV. PRAC. & REM. CODE § 95.002; Valdez, 622 S.W.3d at 782; Ineos, 505 S.W.3d
at 567.
In its most recent analyses of this issue, the Texas Supreme Court explained that “when
evaluating Chapter 95, the relevant improvement should be construed ‘narrowly[.]’” Paniagua,
691 S.W.3d at 915 (quoting Valdez, 622 S.W.3d at 784). The court also rejected a construction of
Chapter 95 that encompasses an “entire workplace” because that construction “would negate the
statute’s explicit, limited applicability to injuries ‘that arise[] from the condition or use of an
improvement to real property.’” Valdez, 622 S.W.3d at 784 (quoting TEX. CIV. PRAC. & REM. CODE
§ 95.002(2), alteration and emphasis in original). Nevertheless, the court has declined to divide
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individual parts of a unified system “into separate, discr[ete] improvements.” Ineos, 505 S.W.3d
at 568 (internal quotation marks omitted).
In its motion for summary judgment, San Miguel argued that “[t]he ‘improvement to real
property’ here was the cooling tower, all of which was within [Midwest’s] scope of work.” It
contended that Midwest’s work included “advis[ing] San Miguel Cooperative, Inc. if there were
any issues inside the cooling towers and to fix any identified problems” and that Garcia’s fall and
injuries occurred “as the result of a real property condition within” that scope of work. As support
for these propositions, San Miguel presented summary judgment evidence showing that the work
for which it hired Midwest included specific repairs to four enumerated cells of the cooling tower,
as well as “an inspection of the cooling tower except the mechanicals[.]” Because the summary
judgment evidence lists the specific cell repairs and the more general “inspection” as separate line
items, we must conclude that the parties intended to distinguish between them and to include both
in the scope of Midwest’s work. See, e.g., Rosetta Res. Operating, LP v. Martin, 645 S.W.3d 212,
218 (Tex. 2022) (“The goal of contract construction is to ascertain the parties’ intent as expressed
in the language of the agreement.”).
As Garcia notes, nothing in the record explicitly states that San Miguel hired Midwest to
construct, repair, renovate, or modify catwalks in cell P or any other portion of the cooling tower.
But as explained above, San Miguel’s summary judgment evidence showed that with the exception
of “the mechanicals,” 2 the entire cooling tower—and, by extension, the entirety of cell P where
Garcia was working and was injured—fell within the scope of Midwest’s work. Because the record
unquestionably established that the catwalk was part of the cooling tower and cell P and that repairs
to cell P were in the scope of Midwest’s work, San Miguel’s motion for summary judgment
2 Garcia’s own summary judgment evidence established that “the mechanicals” was limited to “the fan, the motor and the gearbox, and that’s it.”
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showed that the catwalk was not so attenuated from Midwest’s work that it constituted a separate,
discrete improvement. See Ineos, 505 S.W.3d at 568. The motion was thus sufficient to shift the
burden to Garcia to create a fact question on Chapter 95’s applicability.
In his summary judgment response, Garcia argued and presented evidence that the catwalk
was outside the scope of his work because he only used it to leave cell P at lunchtime, not to
perform any of his assigned tasks. We have previously held, however, that Chapter 95 can apply
even if the injury-causing condition is not directly within the scope of the plaintiff’s work. See
Covarrubias v. Diamond Shamrock Refining Co., LP, 359 S.W.3d 298, 300–03 (Tex. App.—San
Antonio 2012, no pet.). In Covarrubias, the plaintiff was injured when a scissor lift he was riding
struck a metal implement, “causing it to break and hydrocarbons to be released.” Id. at 300.
Although the metal implement “was not the object of Covarrubias’s work, it was an unsafe part of
his workplace” that he encountered when he was “accessing his work space.” Id. at 302–03. Under
those facts, we concluded Chapter 95 applied as a matter of law. See id.
It is true that the appellant in Covarrubias was being lifted toward his work and Garcia was
walking away from his. However, both men were injured by the dangerous condition of an
improvement to real property, and both men were exposed to that dangerous condition as they
moved within the confines of their assigned work spaces in connection with their work. 3 Because
we see no meaningful distinction between these fact patterns, we are bound by our analysis in
Covarrubias to conclude that Garcia’s summary judgment evidence did not create a genuine issue
of material fact on Chapter 95’s applicability. See id. The trial court therefore did not err by
concluding San Miguel was entitled to judgment as a matter of law on that issue. TEX. R. CIV. P.
166a(c).
3 During oral argument, Garcia’s appellate counsel suggested that Garcia fell outside of either cell P or the cooling tower itself. The record does not support this assertion.
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We overrule Garcia’s first issue.
Did San Miguel Conclusively Establish that It Lacked Actual Knowledge of the Danger and/or Did Not Retain Control of Midwest’s Work?
Because we have concluded that Chapter 95 applied to Garcia’s claims, we must also
determine whether San Miguel established as a matter of law either: (1) it did not exercise or retain
control over the manner in which Midwest performed its work; or (2) it did not have actual
knowledge of the danger posed by the catwalk. TEX. CIV. PRAC. & REM. CODE § 95.003. Because
the actual knowledge prong is dispositive, we need not consider the control issue. See TEX. R. APP.
P. 47.1.
In premises liability cases, “[a]ctual knowledge requires knowledge that the dangerous
condition existed at the time of the accident[.]” Sampson v. Univ. of Tex. at Austin, 500 S.W.3d
380, 397 (Tex. 2016) (internal quotation marks omitted). “Awareness of a potential problem is not
actual knowledge of an existing danger.” Reyes v. City of Laredo, 335 S.W.3d 605, 609 (Tex.
2010) (per curiam). “When a property owner only knows of general, potentially dangerous
factors . . . as opposed to the specific factors that caused an injury, the property owner does not
have actual knowledge” for the purpose of Chapter 95. Souders v. Exxon Mobil Corp., No. 01-21-
00593-CV, 2024 WL 1404707, at *7 (Tex. App.—Houston [1st Dist.] Apr. 2, 2024, no pet.) (mem.
op.). Where a showing of actual knowledge is required, evidence of constructive knowledge will
not satisfy the plaintiff’s evidentiary burden. See, e.g., Sampson, 500 S.W.3d at 397; see also City
of Corsicana v. Stewart, 249 S.W.3d 412, 414–15 (Tex. 2008) (per curiam) (unlike actual
knowledge, constructive knowledge “can be established by facts or inferences that a dangerous
condition could develop over time”).
In its motion for summary judgment, San Miguel argued and presented evidence that: (1)
its employees never enter the cooling tower or use the catwalks; (2) the only people who do enter
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the cooling tower and use the catwalks are outside experts that San Miguel hires to maintain the
tower; and (3) an inspection of the cooling tower that occurred before Garcia’s fall “did not detect
any issues or make recommendation on future need of repair or replacement of the subject
catwalk.” If left uncontroverted, this evidence would not permit reasonable people to disagree
about whether San Miguel had actual knowledge of the danger posed by the catwalk. See TEX. R.
CIV. P. 166a(c); City of Keller, 168 S.W.3d at 816. Accordingly, it was sufficient to shift the
evidentiary burden to Garcia.
Garcia did not identify any direct evidence that San Miguel knew the specific catwalk at
issue was deteriorated or otherwise dangerous. See Stewart, 249 S.W.3d at 414–15; Souders, 2024
WL 1404707, at *7 (listing cases showing “that a property owner has actual knowledge of a danger
or condition resulting in injury when he knows of the specific factors that cause the injury”). He
argued, however, that the summary judgment record contained sufficient circumstantial evidence
to support a finding of actual knowledge. As support for this assertion, he noted: (1) San Miguel
had received an inspection report noting that the “tower structure” of many cells of the cooling
tower, including cell P, was in “very poor condition”; and (2) a San Miguel employee testified that
humidity inside the cooling tower could cause wood to rot and metal to rust. Garcia argued this
evidence created a fact issue as to San Miguel’s actual knowledge of the danger. He also argues in
his reply brief that San Miguel engaged in “negligent ignorance” about the cooling tower’s
condition.
We disagree. “Circumstantial evidence establishes actual knowledge only when it either
directly or by reasonable inference supports that conclusion.” Stewart, 249 S.W.3d at 415 (internal
quotation marks omitted); see also Reyes, 335 S.W.3d at 609 (describing facts in which
circumstantial evidence showed the development of the danger was “a virtual certainty”). While
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the testimony of San Miguel’s employee showed that he had some general knowledge about the
potential effects of humidity, it did not show that either he or San Miguel knew that any humidity-
based rot or rust had affected the catwalk or would cause it to collapse. See Reyes, 335 S.W.3d at
609; Souders, 2024 WL 1404707, at *7–11 (reversing jury verdict because plaintiff did not present
legally sufficient evidence of actual knowledge); contra Hernandez v. Amistad Ready Mix, Inc.,
513 S.W.3d 773, 775–78 (Tex. App.—San Antonio 2017, no pet.) (holding fact issue existed on
actual knowledge where defendant knew the specific materials it supplied to plaintiff were “rusted,
corroded, and bent”).
Similarly, the inspection report upon which Garcia relied stated only that cell P’s wooden
internal structure was in “poor condition.” It did not state or imply that the poor condition of the
tower’s internal structure raised any concerns about the safety or stability of the catwalk or its
metal grating. See Reyes, 335 S.W.3d at 609 (no evidence of actual knowledge where defendant
knew creek might flood but did not know it actually had flooded); Univ. of Tex.-Pan Am. v.
Aguilar, 251 S.W.3d 511, 513–14 (Tex. 2008) (per curiam) (safety manual that warned against
obstructing walking areas did not show defendant had actual knowledge of tripping hazard); Harris
County v. Lopez, 665 S.W.3d 874, 882–83 (Tex. App.—Houston [14th Dist.] 2023, pet. denied)
(prior complaints about elevator getting stuck did not show defendant had actual knowledge that
the elevator’s doors would malfunction). The report does not support Garcia’s claim that San
Miguel had actual knowledge or his implication that San Miguel’s lack of knowledge resulted from
its own negligent ignorance.
At most, the evidence in this case would allow reasonable people to infer that San Miguel
knew that a dangerous condition might possibly develop over time; it would not allow reasonable
people to infer that San Miguel actually knew the catwalk in question would collapse. See, e.g.,
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Sampson, 500 S.W.3d at 397; Reyes, 335 S.W.3d at 609. The evidence upon which Garcia relied
therefore established only constructive knowledge, not actual knowledge, and constructive
knowledge is insufficient to satisfy Chapter 95. See Souders, 2024 WL 1404707, at *7, *11.
Because the evidence did not raise a fact issue about whether San Miguel had actual
knowledge of the danger, the trial court did not err by concluding San Miguel was entitled to
summary judgment on that prong of section 95.003. See TEX. CIV. PRAC. & REM. CODE § 95.003;
TEX. R. CIV. P. 166a(c). We overrule Garcia’s second issue.
CONCLUSION
Having overruled Garcia’s appellate issues, we affirm the trial court’s judgment.
Lori I. Valenzuela, Justice
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