Michael Torres and Enedina Torres v. Pasadena Refining System, Inc. and National Plant Services, LLC

• Court: Court of Appeals of Texas
• Decided: December 15, 2022
• Docket: 01-18-00638-CV
• Status: Published

Opinion

Opinion issued December 15, 2022

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-18-00638-CV ——————————— MICHAEL TORRES AND ENEDINA TORRES, Appellants V.

PASADENA REFINING SYSTEMS, INC. AND NATIONAL PLANT SERVICES, LLC, Appellees

On Appeal from the 269th District Court Harris County, Texas Trial Court Case No. 2016-27805

OPINION ON EN BANC RECONSIDERATION

Appellee, Pasadena Refining Systems, Inc. (“PRSI”), has filed a motion for

en banc reconsideration of our May 10, 2022 opinion and judgment. See TEX. R.

APP. P. 49.5. A majority of the Court has voted to grant en banc reconsideration. We withdraw our opinion of May 10, 2022, vacate our judgment of the same date,

and issue this opinion and judgment in their stead.

Appellant, Michael Torres (“Torres”), was injured at a refinery owned by

PRSI when he fell from a scaffold constructed by appellee, National Plant Services,

LLC (“NPS”). Torres and his wife, appellant Enedina Torres, brought premises

liability claims against PRSI and NPS. PRSI and NPS filed motions for summary

judgment, which the trial court granted, ordering that appellants take nothing by their

claims. In six issues, appellants contend that the trial court erred in rendering

summary judgment because they presented evidence raising issues of material fact.

We affirm in part and reverse and remand in part.

Background

On December 22, 2014, PRSI retained an independent contractor, 3-J Ryan,

Inc. (“Ryan”),1 to perform turnaround work at PRSI’s refinery in Pasadena, Texas.

Ryan then hired NPS to construct the scaffolding necessary to perform the work.

In the weeks preceding the incident at issue, heavy rains fell at the PRSI

facility. On the morning of March 18, 2015, Torres, a Ryan employee who had been

working as a welder on the turnaround project for approximately 80 days, waited in

his truck for the rain to stop and for direction regarding whether the day’s work

would proceed.

1 Ryan is not a party to this appeal. 2 At around 11:30 a.m., Torres learned that work at the facility would proceed

after lunch. At 2:00 p.m., a Ryan pipefitter, “Chavez,” asked Torres to climb a

scaffold with him to perform a “hot tap.” The procedure, which involved creating a

connection into a pressurized system, was considered dangerous. Torres noted that

Ryan had “safety men” on site, had safety meetings at the start of each shift, and had

supplied the safety harness that Torres wore. PRSI also had personnel on site.

At some point that Torres did not see, Chavez ascended the scaffold ladder

and entered the “hooch”—an area on the scaffold platform lined with fire blankets

and covered with a tarp to protect the work from wind and contamination. Although

Torres, who stood in mud at the base of the ladder, saw that the tarp was draping

over and partially blocking the entry gate to the scaffold platform, he noted that it

did not look unusually dangerous. Rather, it looked like a “normal hooch.” And,

the scaffold builder, NPS, who inspected the scaffolds each day, had safety-tagged

the scaffold in a manner indicating that it was safe for use. Torres expected to “go

up and move the tarp and go in and latch [his lanyard] and go to work.”

When Torres ascended the ladder and arrived at the entry gate of the scaffold

platform, he “noticed that the [gate] hinge was on the right and not the left,” which

required him to lean over to the left side of the gate to latch his safety lanyard. He

noted that he could not “latch on where the hinge [was] because [he] would have

gotten entangled.” In an effort to locate a space in which to attach his lanyard, he

3 tried to “throw [the tarp] over,” not realizing that it was tightly secured underneath.

The tension on the tarp “pulled” Torres to the left, and his muddy feet slipped off

the ladder. Torres fell 13 feet to the mud and concrete below, fracturing his neck,

an arm, and a rib and dislocating his shoulder.

Torres attributed his fall and injuries to his muddy feet, the placement of the

access gate, the tarp impeding his access to the scaffold platform, and a lack of

proper safety equipment, i.e., a self-retracting lifeline, or “yoyo,”2 or ladder cage on

the scaffold.

Appellants sued PRSI and the scaffold builder and inspector, NPS. Appellants

brought a premises liability claim3 against PRSI, alleging that PRSI owed certain

duties to Torres, which it breached, in:

a. controlling the placement of defective scaffolding equipment on PRSI’s premises; b. failing to follow its own policies and procedures requiring that its employees ensure that a [] self-retracting lifeline be placed on the scaffold;

2 Ryan safety supervisor, Lance Harp, testified that a “yoyo” is “similar to a seat belt, whereas you have a body harness on and then the yoyo’s attached to the top side of the scaffold or onto a structure adjacent to, has a cable inside of it with a spring mechanism.” And, “[a]s you’re climbing the ladder, if something happens and you slip, and fall, the yoyo will act like a seat belt and grab you. It won’t let you fall.” Ryan safety manager, Craig Houghton, testified that a safety “lanyard,” unlike a yoyo, is simply a “static line with shock absorbing capabilities.” 3 Although appellants also brought negligence claims against PRSI based on the same allegations, appellants, in their summary-judgment response, “agree[d] that their case sound[ed] in premises liability and not ordinary negligence.”

4 c. requiring that [Torres] and his employer perform work in an area of PRSI’s premises that was known to PRSI to be unsafe; d. failing to remedy or warn of a known, unreasonably dangerous condition on its premises; .... f. fail[ing] to provide adequate safety equipment; .... j. recklessly failing to ensure the safety of equipment for use; .... l. recklessly disregarding the safety of [Torres]; [and] m. failing to maintain a reasonably safe premises[.]

Appellants also asserted a premises liability claim4 against NPS, alleging that

NPS owed certain duties to Torres, which it breached, in:

a. erecting unsafe scaffolding; b. failing to ensure that the scaffolding it erected contained proper fall protection; c. failing to ensure that the scaffolding could be used safely; d. failing to plan and provide for safe ingress and egress to the scaffold platform; e. certifying that the scaffolding was safe for use, when it in fact was not; f. fail[ing] to properly train its employees; g. fail[ing] to provide adequate safety equipment;

4 Although appellants, in their petition, titled their claims against NPS as “negligence, gross negligence, and negligence per se,” appellants, in their summary-judgment response, “agree[d] that their case sound[ed] in premises liability and not ordinary negligence.” NPS asserted, however, that appellants failed to actually assert a premises liability claim in their petition. As discussed below, we conclude that appellants’ allegations against NPS, in substance, asserted a premises liability claim. 5 h. failing to fix dangerous conditions and/or warn about dangerous conditions; .... k. recklessly failing to ensure the safety of its equipment for use; l. fail[ing] to take adequate precautionary measures; [and] m. recklessly disregarding the safety of [Torres][.]

Torres sought damages for medical expenses, pain and suffering, physical

impairment, mental anguish, and lost earnings. Enedina sought damages for lost

financial support, affection, companionship, society, and consortium.

PRSI filed a combined no-evidence and traditional motion for summary

judgment. PRSI asserted, as pertinent here, that Torres was an employee of Ryan,

who was an independent contractor under the December 22, 2014 “Standard Terms

and Conditions for General Services Between [PRSI] and [Ryan] for Mechanical

Flare Gas Recovery Unit System” (“Contract”); that Ryan controlled the operative

details of its work; that PRSI did not retain contractual control or exercise actual

control over the details of the work; and that, as a premises owner, PRSI did not owe

Torres a duty to ensure that Ryan safely performed its work.

PRSI asserted that the terms of the Contract, discussed below, expressly

disclaimed any contractual control on the part of PRSI over the operative details of

Ryan’s work. PRSI further asserted that the testimony established that Ryan, and

not PRSI, exercised actual control over the operative details of Torres’s work.

Namely, Torres testified in his deposition that Ryan personnel controlled his work

6 at the PRSI facility, that Ryan directed Torres where to work and when, that Ryan

warned him about the hazards, and that it was a Ryan employee, Chavez, who had

directed Torres to climb the scaffold and assist with the hot tap on the day of the fall.

Further, a Ryan supervisor, Lance Harp, testified that PRSI’s role was limited to start

and stop authority, inspection of progress, and general safety protocols.

In their response to PRSI’s motion, appellants argued, as pertinent here, that

PRSI owed Torres a duty to ensure that Ryan performed its work safely because the

evidence established that PRSI retained contractual control and exercised actual

control over details of the work. Specifically, the Contract, as discussed below,

“establishe[d] PRSI’s retention of contractual control over the safety of the work.”

And, the evidence showed that “PRSI was actively engaged in directing, supervising,

and controlling the details of the work that Torres and [Ryan] were performing.”

NPS also filed a combined no-evidence and traditional motion for summary

judgment. NPS asserted that it was entitled to judgment because appellants’

allegations constituted an assertion of premises liability, but they failed to plead a

premises liability claim. Rather, they asserted negligence claims. NPS also argued

that it had no duty to Torres because there was no evidence that it owned or

controlled the premises or that it controlled the details of Torres’s work. And, there

was no evidence that it breached a duty or that such breach caused Torres’s damages.

NPS asserted that its evidence showed that its scaffolding was compliant with safety

7 requirements and asserted that it had no duty to provide fall protection because Ryan

had declined it.

In their response to NPS’s motion, appellants argued that the evidence

demonstrated that NPS, a premises occupier, exercised actual control over the

scaffold at issue and thus it owed Torres a duty to keep it safe. Only NPS was

authorized to construct, modify, and inspect its scaffolds. And, NPS incorrectly

installed the platform access gate, which required Torres to reach horizontally from

the ladder to transition to the platform. In addition, NPS performed daily safety

inspections of the scaffold at issue and had, on the day of Torres’s fall, tagged the

scaffold in a manner authorizing its use. Appellants asserted that NPS failed to take

into account the access issues, i.e., the gate and tarp, and that the scaffold lacked a

self-retractable lifeline, which PRSI’s and NPS’s policies required. Appellants

asserted that NPS’s breaches of duty were the proximate cause of Torres’s injuries.

The trial court rendered summary judgment for PRSI and NPS, and ordered

that appellants take nothing on their claims. The trial court denied appellants’

motion for new trial.

Summary Judgment

In their first and sixth issues, appellants generally challenge the trial court’s

summary judgments in favor of PRSI and NPS. They assert that the evidence raises

fact issues as to the elements of each of their claims. In their second issue, appellants

8 assert that the evidence raises fact issues as to the duty element of their claim against

PRSI. In their third issue, appellants assert that the evidence raises fact issues as to

the duty element of their claim against NPS. In their fourth issue, appellants assert,

with respect to their claims against both PRSI and NPS, that the trial court erred in

failing to find that the “necessary use” exception applies. In their fifth issue,

appellants assert that PRSI and NPS owed Torres a duty under a theory of negligent

undertaking.

A. Standard of Review

We review a trial court’s summary judgment de novo. Valence Operating Co.

v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). In conducting our review, we take as

true all evidence favorable to the non-movant, and we indulge every reasonable

inference and resolve any doubts in the non-movant’s favor. Id. If a trial court

grants summary judgment without specifying the grounds for granting the motion,

we must uphold the trial court’s judgment if any of the asserted grounds are

meritorious. Beverick v. Koch Power, Inc., 186 S.W.3d 145, 148 (Tex. App.—

Houston [1st Dist.] 2005, pet. denied).

A party may combine in a single motion a request for summary judgment

under the no-evidence and traditional standards. Binur v. Jacobo, 135 S.W.3d 646,

650–51 (Tex. 2004); see also TEX. R. CIV. P. 166a(c), (i). When a party seeks

summary judgment on both grounds and the trial court’s order does not specify its

9 reasons for granting summary judgment, we first review the propriety of the

summary judgment under the no-evidence standard. See Ford Motor Co. v.

Ridgway, 135 S.W.3d 598, 600 (Tex. 2004); see also TEX. R. CIV. P. 166a(i). If we

conclude that the trial court did not err in granting summary judgment under the

no-evidence standard, we need not reach the issue of whether the trial court erred in

granting summary judgment under the traditional standard. See Ridgway, 135

S.W.3d at 600; see also TEX. R. CIV. P. 166a(c).

To prevail on a motion for no-evidence summary judgment, the movant must

establish that there is no evidence to support an essential element of the

non-movant’s claim on which the non-movant would have the burden of proof at

trial. See TEX. R. CIV. P. 166a(i); Hahn v. Love, 321 S.W.3d 517, 523–24 (Tex.

App.—Houston [1st Dist.] 2009, pet. denied). The burden then shifts to the

non-movant to present evidence raising a genuine issue of material fact as to each of

the elements challenged in the motion. Mack Trucks, Inc. v. Tamez, 206 S.W.3d

572, 582 (Tex. 2006). A no-evidence summary judgment may not be granted if the

non-movant brings forth more than a scintilla of evidence to raise a genuine issue of

material fact on the challenged elements. See Ridgway, 135 S.W.3d at 600. 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.” Merrell

Dow Pharm., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997).

10 In a traditional motion for summary judgment, the movant has the burden to

establish that no genuine issue of material fact exists and that it is entitled to

judgment as a matter of law. See TEX. R. CIV. P. 166a(c); KPMG Peat Marwick v.

Harrison Cnty. Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex. 1999). When a

defendant moves for a traditional summary judgment, it must either: (1) conclusively

negate at least one essential element of the plaintiff’s cause of action or

(2) conclusively establish each essential element of an affirmative defense. See

Cathey v. Booth, 900 S.W.2d 339, 341 (Tex. 1995). If the movant meets its burden,

the burden shifts to the non-movant to raise a genuine issue of material fact

precluding summary judgment. Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197

(Tex. 1995). Evidence raises a genuine issue of fact if reasonable jurors could differ

in their conclusions in light of all of the summary-judgment evidence. Goodyear

Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, 755 (Tex. 2007).

B. Applicable Legal Principles

“[A] person injured on another’s property may have either a negligence claim

or a premises-liability claim against the property owner.” Occidental Chem. Corp.

v. Jenkins, 478 S.W.3d 640, 644 (Tex. 2016). “Negligence and premises liability

claims . . . are separate and distinct theories of recovery, requiring plaintiffs to prove

different, albeit similar, elements.” United Scaffolding, Inc. v. Levine, 537 S.W.3d

463, 471 (Tex. 2017). In a negligence claim, a plaintiff must prove the existence of

11 a legal duty, a breach of that duty, and damages proximately caused by the breach.

Gharda USA, Inc. v. Control Sols., Inc., 464 S.W.3d 338, 352 (Tex. 2015). In a

premises liability claim, a plaintiff must prove: (1) that the defendant had actual or

constructive knowledge of some condition on the premises; (2) that the condition

posed an unreasonable risk of harm; (3) that the defendant failed to exercise

reasonable care to reduce or eliminate the risk; and (4) that the defendant’s failure

proximately caused the plaintiff’s injuries. United Scaffolding, 537 S.W.3d at 471.

When a plaintiff alleges injury as a result of a physical condition or defect on the

premises, premises liability principles apply. Id. at 472. “[S]lip/trip-and-fall cases

have consistently been treated as premises defect causes of action.” Id. (holding

alleged injury resulting from fall through scaffolding platform that was not properly

secured constituted premises liability claim).

The threshold inquiry in a premises liability claim is whether the defendant

owed a duty to the injured person. Hillis v. McCall, 602 S.W.3d 436, 440 (Tex.

2020). “The existence of a duty is a question of law for the court to decide.” Id. The

duty owed depends upon the role of the person injured on the premises. Id.

Here, the duties owed by PRSI and NPS to Torres, if any, are determined by

the law governing a premises owner’s or general contractor’s duty to an independent

12 contractor’s employee.5 See Dow Chem. Co. v. Bright, 89 S.W.3d 602, 605–06 (Tex.

2002) (citing Koch Ref. Co. v. Chapa, 11 S.W.3d 153, 155 n.1 (Tex. 1999) (“A

general contractor owes the same duty as a premises owner to an independent

contractor’s employee. Thus, cases considering the duties of premises owners and

general contractors are used interchangeably.”)).

In this context, the duty owed depends upon the type of premises defect

alleged. “There are two types of premises defects for which an independent

contractor’s employee may seek to hold the general contractor liable.” Clayton W.

Williams, Jr., Inc. v. Olivo, 952 S.W.2d 523, 527 (Tex. 1997). The first category,

pre-existing defects, includes those defects or conditions that exist on a premises

when a business invitee enters for business purposes. Id. “Only concealed

hazards—dangerous in their own right and independent of action by another—that

are in existence when the independent contractor enters the premises fall into this

first []category.” Coastal Marine Serv. of Tex., Inc. v. Lawrence, 988 S.W.2d 223,

5 It is undisputed that PRSI is a premises owner. With respect to NPS, an independent contractor or subcontractor on a construction site, who is in control of the premises, is charged with the same duty as an owner or possessor. Rendleman v. Clarke, 909 S.W.2d 56, 60 (Tex. App.—Houston [14th Dist.] 1995, writ dism’d) (citing RESTATEMENT (SECOND) OF TORTS § 384 cmt. d (1965) (subcontractor subject to liability for harm done by work entrusted to him)). 13 225 (Tex. 1999); see, e.g., Smith v. Henger, 226 S.W.2d 425, 430–31 (Tex. 1950)

(open shaft on jobsite).6

The second category includes defects or conditions that are created by or arise

from the independent contractor’s (or its injured employee’s) work activity. Olivo,

952 S.W.2d at 527; see Dow Chem., 89 S.W.3d at 606.

Here, appellants alleged that Torres, a Ryan employee, was injured on PRSI’s

premises when he fell from defective scaffolding constructed by Ryan subcontractor,

NPS. It is undisputed that the scaffold at issue was not on the PRSI premises when

Ryan entered. Rather, PRSI hired Ryan to perform the work, and then Ryan retained

NPS to build the scaffolding for the work. Thus, appellants’ claims fall under the

second category. See Olivo, 952 S.W.2d at 527; see Dow Chem., 89 S.W.3d at 606.

6 With respect to pre-existing defects, a premises owner “has a duty to inspect the premises and warn the independent contractor/invitee of dangerous conditions that are not open and obvious and that the owner knows or should have known exist.” Coastal Marine Serv. of Tex., Inc. v. Lawrence, 988 S.W.2d 223, 225 (Tex. 1999). The rationale is that the owner is in a “superior position to know of or discover hidden dangerous conditions on his premises.” Griffin v. Shell Oil Co., 401 S.W.3d 150, 159 (Tex. App.—Houston [1st Dist.] 2011, pet. denied) (quoting Shell Chem. Co. v. Lamb, 493 S.W.2d 742, 746 (Tex. 1973)). With respect to pre-existing conditions that are open and obvious or known to the invitee, however, the general rule is that an owner has no duty to warn because the law presumes that the invitee will take reasonable measures to protect himself. Austin v. Kroger Tex., L.P., 465 S.W.3d 193, 203 (Tex. 2015). But, a “necessary-use” exception may apply if (1) it was necessary for the invitee to use the portion of the premises with the condition and (2) the owner should have anticipated that the invitee was unable to avoid the risks despite his awareness. Id. at 207. 14 Under the second category, when a dangerous condition arises from an

independent contractor’s work, the premises owner or general contractor “ordinarily

has no duty to warn the independent contractor’s employees” of the condition.

Olivo, 952 S.W.2d at 527. “The rationale for this rule is that a general contractor

normally has no duty to ensure that an independent contractor performs its work in

a safe manner.” Id.

In 1985, the supreme court recognized a limited exception. In Redinger v.

Living, Inc., the court held that if a general contractor exercises “some control” over

an independent contractor’s work, a duty arises to exercise reasonable care in

supervising the activity. 689 S.W.2d 415, 418 (Tex. 1985). The court adopted

Restatement (Second) of Torts, section 414, 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 [premises owner] owes a duty to exercise reasonable care, which is caused by his failure to exercise his control with reasonable care.

Id. (quoting RESTATEMENT (SECOND) OF TORTS § 414 (1977)). Since Redinger,

however, the supreme court has expressly limited the duty that arises on the part of

a premises owner or general contractor.

In Koch Refining, the supreme court noted: “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.” 11 S.W.3d at 156. The court noted

15 that, in Redinger, it adopted only a “limited-duty rule” and that the comments to

section 414 state that:

[i]n order for the rule stated in this Section to apply, the [premises owner] 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 to receive reports. . . .

Id. at 155 (quoting RESTATEMENT (SECOND) OF TORTS § 414 cmt. c).

In Dow Chemical, the supreme court held that, for a duty to arise, a premises

owner must have retained the right to control the “operative details,” that is, the

“means, methods, or details,” of the independent contractor’s work. 89 S.W.3d at

606, 608; see, e.g., Redinger, 689 S.W.2d at 418 (imposing duty on general

contractor who was on worksite and exercised control over work by issuing on-site

orders directing means and method that caused plaintiff’s injury). In addition, the

control “must relate to the injury.” Dow Chem., 89 S.W.3d at 606.

When the injury arises from an alleged failure by the premises owner to

maintain a safe workplace, the inquiry focuses on whether the premises owner

retained control over the condition or activity that caused the injury. See United

Scaffolding, 537 S.W.3d at 479 (holding that “relevant inquiry” was defendant’s

right of control over work site’s scaffold and subsequent responsibility to warn about

or remedy dangerous condition thereon and that court of appeals erred in expanding

scope of inquiry to consider control over general refinery operations); Lee Lewis

16 Constr., Inc. v. Harrison, 70 S.W.3d 778, 783 (Tex. 2001) (considering defendant’s

control over fall-protection systems used by independent contractor’s employees).

A premises owner or general contractor who requires that an independent

contractor observe workplace safety guidelines does not incur an unqualified duty

to ensure the safety of the independent contractor’s employees. Hoechst-Celanese

Corp. v. Mendez, 967 S.W.2d 354, 357–58 (Tex. 1998). Notably, “safety

requirements give rise to a narrow duty of care.” Id. at 356. That is, a premises

owner or general contractor who “promulgates mandatory safety requirements and

procedures owes only a narrow duty to ensure that those requirements and

procedures do not ‘unreasonably increase, rather than decrease, the probability and

severity of injury.’” JLB Builders, L.L.C. v. Hernandez, 622 S.W.3d 860, 867 (Tex.

2021) (quoting Mendez, 967 S.W.3d at 358). Further, “requiring compliance with

safety procedures does not give rise to a duty to an independent contractor’s

employees so long as those procedures do not unreasonably increase, rather than

decrease, the probability and severity of injury.” Id. at 869 (emphasis added, internal

quotations omitted).

C. Summary Judgment for PRSI

In their second issue, appellants argue that the evidence raised fact issues as

to the duty element of their premises liability claim against PRSI because it showed

that PRSI retained or exercised control over the operative details of Ryan’s work.

17 We consider whether appellants presented evidence that PRSI retained or

exercised control over the scaffold at issue and over Ryan’s employees’ use of fall-

protection systems. See United Scaffolding, 537 S.W.3d at 479 (holding that

“relevant inquiry for determining what, if any, duties [were] owed” was defendant’s

“control over the scaffold itself”); Lee Lewis Const., 70 S.W.3d at 783 (holding that

issue presented was control over fall-protection systems used by independent

contractor’s employees). Such control may be established through: (a) evidence of

a contractual agreement in which PRSI expressly retained control over the “means,

methods, or details” of Ryan’s work, that is, over the scaffold itself or Ryan’s

employees’ use of fall-protection systems or (b) evidence that PRSI actually

exercised such control. See Dow Chem., 89 S.W.3d at 606.

In its no-evidence motion for summary judgment, PRSI argued that it was

entitled to judgment because there was no evidence that it (1) retained such

contractual control or (2) exercised such actual control. See TEX. R. CIV. P. 166a(i).

1. Contractual Control

Appellants assert that the terms of the Contract between PRSI and Ryan

establish PRSI’s retention of contractual control over the work. In support of their

assertion, they presented a copy of the Contract.

Our primary objective in construing a contract is to give effect to the parties’

intent. Pathfinder Oil & Gas, Inc. v. Great W. Drilling, Ltd., 574 S.W.3d 882, 888

18 (Tex. 2019). We interpret contract language according to its plain, ordinary, and

generally accepted meaning unless the contract directs otherwise. Id. We consider

the writing as a whole in an effort to harmonize and give effect to all the provisions

of the contract so that none will be rendered meaningless. Id. at 889. “Contract

terms cannot be viewed in isolation . . . because doing so distorts meaning.” Id.

“Consistent with our long-established precedent,” “[n]o one phrase, sentence, or

section [of a contract] should be isolated from its setting and considered apart from

the other provisions.” Id. (internal quotations omitted). Whether a contract grants a

right of control is a question of law for the court. Dow Chem. Co., 89 S.W.3d at

606.

Appellants assert that the provision in bold emphasis below, which we

consider in its context at Exhibit C to the Contract, “PRSI General HSE [Health,

Safety, and Environmental] Requirements,” establishes PRSI’s retention of

contractual control over the work:

[Ryan] shall be fully and completely responsible for managing all HSE considerations associated with its performance of the work unless specific direction is otherwise provided in writing by PRSI. ....

[Ryan] shall not allow an unsafe . . . condition or behavior over which it has control to be conducted during performance of the work. When such a condition or behavior is identified by [Ryan], the related activity shall be discontinued until the condition or behavior has been eliminated or mitigated. If [Ryan] does not have the ability to eliminate or mitigate the condition or behavior, it shall immediately notify PRSI in writing. 19 ....

PRSI shall have the right, but not the obligation, to inspect the worksite and associated work records and to interview personnel to ascertain that [Ryan] is complying with the expectations and requirements of this attachment. Should [Ryan] fail to observe the requirements of this attachment, PRSI shall have the right to stop the work performed by [Ryan] at the worksite and to take the action necessary to resolve the condition with all related costs of such action for [Ryan’s] account. .... Stop Work or Suspension. The PRSI has the right to stop or suspend the work of [Ryan] for any reason, including, but not limited to, [Ryan’s] failure to comply with any of the safety and health requirements either set forth in this Contract or incorporated by reference. Correction of Deficiencies. When the PRSI notifies [Ryan], either verbally or in writing, that [Ryan] is not complying with a safety and health requirement either set forth in this Contract or incorporated by reference, [Ryan] shall correct the deficiency immediately. .... B. Worksite Safety. .... [Ryan] shall be responsible for initiating, maintaining and supervising all safety precautions and programs in connection with performance of the work. . . . .... Personal Protective Equipment .... [Ryan] shall provide and require all personnel to wear specialty personal protective equipment as required by the task or specified on the work permit (e.g., fall protection systems . . . ) . . . .

20 (Emphasis added.) Appellants assert that the bold emphasized language granting

PRSI a right to require Ryan to correct an unsafe work practice constituted retained

control over the operative details of Ryan’s work and therefore created a duty on the

part of PRSI to either warn Torres of the unsafe scaffolding or to make it safe.

Read as a whole, however, Exhibit C, which governs Health and Safety

requirements and “Worksite Safety,” expressly states that Ryan “shall be fully and

completely responsible for managing all HSE considerations associated with its

performance of the work” and “shall be responsible for initiating, maintaining and

supervising all safety precautions and programs in connection with performance of

the work.” (Emphasis added.) With respect to fall-protection systems, the Contract

expressly requires Ryan, not PRSI, to “provide and require all personnel to wear

specialty personal protective equipment as required by the task or specified on the

work permit (e.g., fall protection systems . . .).” (Emphasis added.)

Exhibit C provides that PRSI reserved a “right, but not the obligation,” to

inspect the worksite to ascertain whether Ryan was complying with the HSE

requirements, and PRSI reserved a “right” to stop the work. It is well established

that reserving a “general right to order the work stopped” or to inspect its progress

is not evidence of retained control. Dow Chem., 89 S.W.3d at 606–08 (“[I]t is not

enough that the premises owner has merely a general right to order the work

stopped.”); Koch Ref., 11 S.W.3d at 155; see also Gonzales v. Ramirez, 463 S.W.3d

21 499, 506–07 (Tex. 2015) (“[A] possibility of control is not evidence of a ‘right to

control’ actually retained. . . .”); Ellwood Tex. Forge Corp. v. Jones, 214 S.W.3d

693, 702 (Tex. App.—Houston [14th Dist.] 2007, pet. denied) (holding right to

forbid independent contractor from working without fall protection did not impose

duty to ensure that independent contractor’s employees used fall protection);

Victoria Elec. Co-op, Inc. v. Williams, 100 S.W.3d 323, 330 (Tex. App.—San

Antonio 2002, pet. denied) (retaining “latitude to ‘inspect, test, and approve’ . . .

work to make sure it was complying with . . . safety requirements” did “not implicate

a right to control the details of the independent contractor’s work”). Imposing

liability on premises owners who retain a right to order the work stopped “would

deter [them] from setting even minimal safety standards.” Dow Chem., 89 S.W.3d

at 608.

Further, reading the Contract as a whole reflects that section 1.2 designates

Ryan as an “independent contractor” and makes it solely responsible for the

supervision, direction, and control of its employees and subcontractors. In addition,

section 1.2 expressly disclaims that PRSI retained any right to control the “manner

or method” of Ryan’s work, as follows:

1.2 INDEPENDENT CONTRACTOR. The Parties agree that Contractor is and always shall be an independent contractor in the performance of every part of this Contract. . . . PRSI shall not have the right to control or direct the manner or method of the performance or providing of the Services/Goods by [Ryan]. PRSI is interested only in the results obtained and has only the general right of inspection and 22 supervision in order to secure the satisfactory completion of Services/Goods.

(Emphasis added.)

In Dow Chemical, the Texas Supreme Court held that a contract with similar

terms did not, as a matter of law, impose a duty on the premises owner. 89 S.W.3d

at 607. There, the premises owner and general contractor, Dow, retained Gulf States

as an independent contractor, and Gulf States employed Bright as a carpenter. Id. at

605. While Bright was working on Dow’s premises, he was injured by falling pipe

put in place by another Gulf States employee. Id. After Bright sued Dow for

premises liability, the parties filed cross-motions for summary judgment on the duty

element of Bright’s claim. Id. Dow asserted that it had no duty to ensure the safety

of an independent contractor’s employee. Id. Bright asserted that Dow retained

contractual control over the work based on the following terms in their contract:

22.01. Safety—CONTRACTOR shall take all necessary precautions for the safety of the employees on the work and shall comply with all safety rules and regulations of DOW as set forth in the Safety and Loss Prevention Manual for CONTRACTORS . . . . .... 30.01. Responsibilities—CONTRACTOR shall be an independent contractor under this Contract and shall assume all of the rights, obligations and liabilities, applicable to it as such independent contractor hereunder and any provisions in this Contract which may appear to give DOW the right to direct CONTRACTOR as to details of doing the work herein covered or to exercise a measure of control over the work shall be deemed to mean that CONTRACTOR shall follow the desires of DOW in the results of the work only.

23 Id. at 606–07. Thus, the contract terms provided that Gulf States was an independent

contractor, required it to comply with safety regulations set by Dow, and expressly

disclaimed that Dow retained any right to control the details of the independent

contractor’s work. Id. The supreme court held that, as a matter of law, the contract

did not impose a duty on Dow because “Dow did not retain the right to control the

means, methods, or details of Bright’s work.” Id. at 607.

In JLB Builders, the supreme court considered a similar contract stating that

the independent contractor there was to perform as such and was solely responsible

for the supervision, direction, and control of its employees, “for the manner and

means of accomplishing the Work,” and “for initiating, maintaining and supervising

all safety precautions and programs in its Work.” 622 S.W.3d at 869. The contract

also similarly stated that the general contractor had “no authority to direct, supervise

or control the means, manner or method of construction of the Work.” Id. The

supreme court held that such provisions “clearly do not confer a right to control” and

that it saw “no indication that [the general contractor’s] supervisory control extended

to the means and methods of [the] work.” Id. at 869–70. The contract there also

required the independent contractor to comply with numerous safety procedures,

including a detailed “Fall Protection Plan” mandating safety harnesses. Id. at 869.

The court noted that “requiring compliance with safety procedures does not give rise

to a duty to an independent contractor’s employees so long as those procedures do

24 not unreasonably increase, rather than decrease, the probability and severity of

injury.” Id. (internal quotations omitted). And, the plaintiff did not explain how the

procedures unreasonably increased the probability and severity of injury. Id. The

supreme court held as a matter of law that the contract did not provide a basis for

imposing liability on the general contractor. Id. at 870.

Here, the Contract between PRSI and Ryan, like the contracts in Dow and

JLB, expressly disclaimed any right on the part of PRSI to control the “manner or

method” of Ryan’s work. See id. at 869; Dow Chem., 89 S.W.3d at 606–07. Also

similarly, the Contract expressly designated Ryan as an independent contractor and

made it solely responsible for the supervision, direction, and control of its employees

and subcontractors. See JLB, 622 S.W.3d at 869; Dow Chem., 89 S.W.3d at 606–

07. And, the Contract made Ryan “fully and completely responsible for managing

all HSE considerations associated with its performance of the work” and “for

initiating, maintaining and supervising all safety precautions.” (Emphasis added).

In addition, Ryan, not PRSI, was required to “provide and require all personnel to

wear specialty personal protective equipment . . . (e.g., fall protection systems . . .).”

(Emphasis added.) Because there is no evidence that PRSI retained control over the

“the means, methods, or details” of Ryan’s work, PRSI established as a matter of

law that it owed no duty to Torres to ensure the safe performance of the work. See

JLB Builders, 622 S.W.3d at 869–70; Dow Chem., 89 S.W.3d at 606–07.

25 Further, PRSI’s reservation of a “right, but not the obligation,” to inspect the

worksite and a “right” to stop the work are not evidence of retained control. See

Dow Chem., 89 S.W.3d at 607–08. The supreme court has expressly held that a

premises owner’s implementation of mandatory safety procedures in creating a safer

construction site “does not serve as evidence” that its independent contractors are

“not free to do the work in their own way and is not evidence that [the owner]

controlled the method of work or its operative details.” Id. at 608. “[R]equiring

compliance with safety procedures does not give rise to a duty to an independent

contractor’s employees so long as those procedures do not unreasonably increase,

rather than decrease, the probability and severity of injury.” JLB Builders, 622

S.W.3d at 869 (internal quotations omitted). There is no allegation in this case that

PRSI promulgated safety rules or requirements that increased the probability or

severity of Torres’s injury. See id.

We hold as a matter of law that the Contract did not provide a basis for

imposing a duty of care on PRSI to ensure the safe performance of Ryan’s or

Torres’s work. See id. at 870.

2. Actual Control

Appellants also argue that PRSI exercised actual control over the work

because PRSI was “actively engaged in directing, supervising, and controlling the

details of the work that Torres and [Ryan] were performing.”

26 In the absence of a contractual agreement, control may be established by

evidence that the premises owner actually exercised control over the manner in

which the independent contractor’s work was performed. Dow Chem., 89 S.W.3d

at 606–07. This inquiry focuses on whether appellants presented evidence that PRSI

exercised actual control over the safety of the scaffold at issue or Ryan’s employees’

use of fall-protection systems. See United Scaffolding, 537 S.W.3d at 479 (holding

relevant inquiry was defendant’s right to control scaffold and responsibility to warn

about or remedy dangerous condition thereon and that court of appeals erred in

expanding scope of inquiry to factors such as control over refinery operations); Lee

Lewis Constr., 70 S.W.3d at 783 (“[W]e must determine if [plaintiffs] presented

more than a scintilla of evidence that [the general contractor] exercised actual control

over safety, in particular, the fall-protection systems used by [the independent

contractor’s] employees.”) (emphasis added)).

In Ellwood Texas Forge, the court concluded that there was no evidence of

actual control. 214 S.W.3d at 704. There, Ellwood, a steel-foraging plant, hired PI,

an independent contractor, to replace an air conditioner. Id. at 695–96. Jones, an

employee of PI, was injured when he fell from a ladder during the work. Id. at 696.

Jones, who was not wearing fall-protection equipment at the time of his fall, sued

Ellwood. Id. Ellwood’s safety policies required independent contractors’ employees

working over six feet above ground to use fall-protection equipment, and provided

27 that Ellwood had a right to enforce its safety rules and stop the work. Id. at 701.

Before the work began, an Ellwood maintenance coordinator, Wegner, signed a safe

work permit intended to identify the specific jobs that PI was to perform and the

required safety equipment, but no fall-protection devices were listed. Id. at 696.

Wegner testified that he did not know that PI employees were working without fall

protection; Jones testified that Wegner was at the jobsite and was aware. Id.

On appeal, Ellwood argued that there was no evidence that it exercised actual

control over the safety of the jobsite. See id. at 698, 701. Jones argued that Ellwood

had such control because it “had a right to forbid [PI] from working without fall

protection and to dictate what fall protection [PI] used.” Id. at 697–98. The court

held that “Ellwood’s right to forbid PI employees from doing their work in a

dangerous manner [was] insufficient to impose a duty on Ellwood to ensure that PI

and its employees followed Ellwood’s safety rules and regulations.” Id. at 698.

Instead, a premises owner assumes only a narrow duty to ensure that its rules or

requirements do not unreasonably increase the probability and severity of injury. Id.

at 702. Actual control is not demonstrated by having a “right to preclude work from

beginning in the first instance or stopping it after it has commenced” or by placing

a safety representative on site to observe the independent contractor’s work. Id.

In support of their argument, appellants rely on Lee Lewis Construction, 70

S.W.3d 778. There, a hospital hired a general contractor, LLC, to remodel a building

28 tower. Id. at 782. LLC hired an independent contractor, KK Glass, to provide glass

work on the project. Id. While Harrison, a KK employee, was working on the

tower’s tenth floor, he fell and suffered fatal injuries. Id. It was undisputed that

Harrison was not using an independent lifeline that would have stopped his fall. Id.

Harrison’s wife sued LLC. Id. The supreme court considered whether Harrison

presented evidence that LLC exercised actual control over safety, i.e., the fall-

protection systems used by KK employees. Id. at 783. The record showed that LLC’s

president assigned its job superintendent “the responsibility to routinely inspect the

ninth and tenth floor addition to the south tower to see to it that the subcontractors

and their employees properly utilized fall protection equipment.” Id. at 784. LLC’s

superintendent “personally witnessed and approved of the specific fall-protections

systems [KK] used” and “knew of and did not object to [KK] employees using a

bosun’s chair without an independent lifeline.”7 Id. The supreme court concluded

that this testimony constituted more than a scintilla of evidence of actual control over

the fall-protection systems on the jobsite. Id.

In Dow Chemical, the supreme court examined Lee Lewis. As discussed

above, Dow retained Gulf States, an independent contractor, who employed Bright.

89 S.W.3d at 605. After Bright, while working on Dow’s premises, was injured by

7 A “bosun’s chair” is a “wooden board suspended from the roof by a rope.” Lee Lewis Const., Inc. v. Harrison, 70 S.W.3d 778, 790 (Tex. 2001) (Hecht, C.J., concurring). 29 a falling pipe put in place by another Gulf States employee, Bright sued Dow. Id.

With respect to actual control imposing a duty on Dow, Bright presented evidence

that Dow had conferences with Gulf States’ employees, performed on-site

inspections, maintained personnel on the work site, and retained a right to stop the

work. Id. at 607–09. The supreme court concluded that because there was no

evidence that Dow had approved how the pipe was secured or, knowing of its

dangerous condition, had instructed Bright to perform the work, Dow did not, as a

matter of law, exercise actual control. Id. at 609. The supreme court noted that it

had “never concluded that a [premises owner] actually exercised control of a

premises where . . . there was no prior knowledge of a dangerous condition and no

specific approval of any dangerous act.” Id. (emphasis added).

Here, appellants did not, in their summary-judgment response, point to

evidence that PRSI had prior knowledge of a dangerous condition with respect to

the safety of the scaffold or that it specifically approved a dangerous act. See id.

Even were we to consider evidence that appellants presented in support of other

arguments in their summary-judgment response, i.e., the testimony of PRSI safety

supervisor Elliott Johnson that PRSI knew that there was not a self-retracting lifeline

on the scaffold at issue, appellants did not direct the trial court to any evidence that

PRSI specifically approved a dangerous act, such as ordering Torres to utilize the

scaffold despite the lack of safe ingress or self-retracting lifeline. See id.

30 Thus, like the supreme court concluded in Dow, because appellants did not

present evidence that PRSI knew of a dangerous condition and yet specifically

approved a dangerous act, the instant case is distinguishable from Lee Lewis. See

id. at 609 (“Had the Dow safety representative actually approved how the pipe in

question was secured or instructed Bright to perform his work knowing of the

dangerous condition, we could have a fact scenario mirroring Lee Lewis.”).

Accordingly, we conclude that appellants did not present evidence raising a genuine

issue of material fact as to actual control exercised by PRSI. See id.

In sum, because we conclude that appellants did not present evidence raising

a genuine issue of fact as to the duty element of their premises liability claim against

PRSI, we hold that the trial court did not err in granting summary judgment in favor

of PRSI. See Van Horn v. Chambers, 970 S.W.2d 542, 544 (Tex. 1998) (“The

nonexistence of a duty ends the inquiry . . . .”).

We overrule appellants’ second issue.8

8 In addition, we overrule the portions of appellants’ first and sixth issues in which they generally assert that the trial court erred in failing to find fact issues with respect to their claim against PRSI. Further, as discussed above, because it is undisputed that the scaffold at issue was not in existence on the PRSI premises when Ryan entered, this is not a pre-existing defects case and the “necessary-use exception” does not apply. See supra note 6; see also Austin, 465 S.W.3d at 207. Thus, we do not reach the portion of appellants’ fourth issue, in which they argue that the trial court erred in concluding that they failed to present evidence raising a fact issue on the applicability of the exception with respect to PRSI. 31 D. Negligent Undertaking

In a portion of their fifth issue, appellants argue that the trial court erred in

granting summary judgment in favor of PRSI because, “[a]part from its premises

liability, PRSI is also liable to Torres for its negligent undertaking, which is a

‘separate and distinct’ theory from negligent activity or premises liability.” PRSI

asserts that this issue is waived because appellants did not plead a claim for negligent

undertaking. Appellants argue that, although they did not expressly plead a claim

for “negligent undertaking,” a fair reading of their petition includes this theory

because they alleged that PRSI “control[ed] the placement of defective scaffolding

equipment on PRSI’s premises” and “fail[ed] to follow its own policies and

procedures requiring that its employees ensure that [a] self-retracting lifeline be

placed on the scaffold.”

One who voluntarily undertakes an affirmative course of action for the benefit

of another has a duty to exercise reasonable care that the other’s person or property

will not be injured by the undertaking. Colonial Sav. Ass’n v. Taylor, 544 S.W.2d

116, 119–20 (Tex. 1976). To establish a “negligent undertaking,” the plaintiff must

show that: (1) the defendant undertook to perform services that it knew or should

have known were necessary for the plaintiff’s protection; (2) the defendant failed to

exercise reasonable care in performing those services; and (3) either (a) the plaintiff

suffered harm because of his reliance on the defendant’s performance or (b) the

32 defendant’s failure to exercise such care increased the plaintiff’s risk of harm. Nall

v. Plunkett, 404 S.W.3d 552, 555–56 (Tex. 2013) (citing RESTATEMENT (SECOND)

OF TORTS § 324A (liability to third person for negligent undertaking)).

The critical inquiry concerning the duty element in a negligent undertaking is

whether the defendant acted in a way that requires the imposition of a duty where

one otherwise would not exist. Id. at 555. Such a duty may arise if a person

affirmatively undertakes to provide services to another upon which reliance can be

based. See Osuna v. S. Pac. R.R., 641 S.W.2d 229, 230 (Tex. 1982) (“Having

undertaken to place a flashing light at the crossing for the purpose of warning

travelers, the railroad was under a duty to keep the signal in good repair, even though

the signal was not legally required.”). Appellants’ allegations that PRSI failed to

“control the placement” of scaffolding on its premises and “fail[ed] to” follow its

policies and procedures do not allege affirmative undertakings. See Fort Bend Cty.

Drainage Dist. v. Sbrusch, 818 S.W.2d 392, 397–98 (Tex. 1991).

We overrule this portion of appellants’ fifth issue.

E. Summary Judgment for NPS

In their third issue, appellants argue that the evidence raises fact issues on the

duty element of their premises liability claim against NPS because it shows that NPS

exercised actual control over the scaffold at issue. In a portion of their first and sixth

issues, appellants generally challenge the trial court’s summary judgment in favor

33 of NPS and assert that the evidence raises genuine issues of fact as to the elements

of their claim.

1. Nature of the Claim

NPS asserted that it was entitled to summary judgment because appellants’

claim is based solely in premises liability, and appellants, in their petition, did not

plead a premises liability claim. Rather, they asserted only a general negligence

claim against NPS. In their summary-judgment response, appellants stated that they

“agree[d] that their case sounds in premises liability and not ordinary negligence.”

The parties dispute whether appellants alleged a premises liability claim.

Again, “[n]egligence and premises liability claims . . . are separate and

distinct theories of recovery, requiring plaintiffs to prove different, albeit similar,

elements to secure judgment in their favor.” United Scaffolding, 537 S.W.3d at 471.

When the injury is the result of a contemporaneous, negligent activity on the

property, ordinary negligence principles apply. Id. When the injury is the result of

the property’s condition, premises liability principles apply. Id. Because negligence

and premises liability claims are based on independent theories of recovery, they are

not interchangeable. Id.

In United Scaffolding, a refinery owner, Valero Energy, hired a contractor,

United Scaffolding Inc. (“USI”), to construct scaffolding at its refinery. Id. at 467.

According to Valero’s and USI’s scaffold policies, USI was required to inspect its

34 scaffolds before each work shift and before each scaffold’s use. Id. Subsequently, a

Valero employee, James Levine, while performing work 15 feet above ground on a

USI scaffold, slipped and fell up to his arms through a hole in the scaffold platform.

Id. Levine sued USI, alleging that USI created a dangerous condition by “improperly

assembling, erecting, and/or securing the scaffolding.” Id. at 472. Levine further

alleged that USI failed to “adequately determine dangerous conditions [it] created,”

“correct the dangerous condition which existed with the scaffolding,” “secure the

scaffolding in a proper and safe work condition,” and warn “that a dangerous

condition existed.” Id. The supreme court concluded that, because Levine claimed

that his injury resulted from a physical condition that USI created and then left on

the premises, Levine’s alleged injury arose from a premises defect. Id. at 473.

Here, appellants stated in their petition: “Plaintiffs bring negligence, gross

negligence, and negligence per se claims against NPS.” They alleged, in pertinent

part, that Torres was injured because NPS:

a. erect[ed] unsafe scaffolding; b. fail[ed] to ensure that the scaffolding it erected contained proper fall protection; c. fail[ed] to ensure that the scaffolding could be used safely; d. fail[ed] to plan and provide for safe ingress and egress to the scaffold platform; e. certif[ied] that the scaffolding was safe for use, when it in fact was not; ... g. fail[ed] to provide adequate safety equipment; [and] 35 h. fail[ed] to fix dangerous conditions and/or warn about dangerous conditions[.]

Thus, like in United Scaffolding, appellants’ allegations are that Torres was

injured by a condition that NPS created and then left on the premises. See id.

Namely, NPS created a “dangerous condition” by erecting unsafe scaffolding, failing

to provide for safe ingress to the scaffold platform, and failing to provide adequate

safety equipment. And, NPS failed to rectify or warn of the dangerous condition on

the scaffold and certified that the scaffold was safe for use, when in fact it was not.

We conclude that appellants, in their petition, presented a claim based on an

allegedly dangerous condition of the premises. See id. at 471. Thus, appellants

asserted a premises liability claim. See id. at 471, 473 (“The only fair reading of

Levine’s pleadings requires the determination that Levine did in fact allege that USI

assumed and retained the right to control the scaffolding it constructed, giving rise

to a duty to make and keep the premises safe for business invitees . . . .”).

2. No-Evidence Summary Judgment

NPS argued that there is no evidence that it owed a duty to Torres because

there is no evidence that it “controlled the details of [Torres’s] work.”

The “relevant inquiry for determining what, if any, duties [NPS] owed to

[Torres] is [NPS’s] control over the scaffold itself.” See id. at 479 (emphasis added).

The inquiry is not whether NPS was present at the work site, but whether NPS

retained a sufficient right of control over the scaffold work site, such that it had the 36 responsibility to remedy the condition that Torres alleges caused his injury. Id. at

475 (distinguishing between occupancy and control). “The duty question must focus

on [NPS’s] right to control the scaffold and subsequent responsibility to warn about

or remedy a dangerous condition on the scaffold.” See id. at 479.

Appellants’ summary-judgment evidence reflects that Ryan hired NPS to

erect, maintain, and inspect scaffolding at PRSI’s refinery for Ryan’s employees to

use in performing turnaround work. Because any contract between Ryan and NPS

is not before us, we consider appellants’ evidence of NPS’s exercise of actual

control. See Dow Chem. Co., 89 S.W.3d at 606.

Appellants presented evidence that Elliott Johnson, a PRSI safety supervisor,

testified in his deposition that NPS was obligated to inspect each scaffold and ensure

that it was safe before Ryan employees used it. Lance Harp, a Ryan field safety

supervisor, testified that “the scaffold company,” i.e., NPS, built the scaffold at

issue, was responsible for it, and that Ryan was “not supposed to alter” the scaffold

at all. Harp testified that only NPS was authorized to inspect the scaffold, that NPS

inspected its scaffolds “every day,” and that NPS was responsible for determining

whether a scaffold was safe to use and for assigning the appropriate safety tag.

Similarly, Johnson, a PRSI safety supervisor, and Richard Funesti, a PRSI safety

manager, each testified that NPS was in control of the scaffold at issue.

37 In his deposition, Jesse Rodriguez, president of NPS, testified that NPS was

responsible for inspecting the scaffold at issue, which included taking into account

access to the platform, and allowing people to work on the scaffold:

Q. Your employees are the ones who are filling out these yellow tags, correct? A. Yes. Q. And your employees are the ones who are assigning them to say that the scaffold can be used; is that fair? A. Well, yes. Q. Would you expect your employees to be taking into account things like access and egress when they are signing these yellow tags allowing people to work on the scaffold? A. Yes.

In United Scaffolding, the Texas Supreme Court concluded that the evidence

reflected USI’s right to control the scaffolding it constructed. 537 S.W.3d at 478. It

was undisputed that Valero hired USI to install, inspect, modify, and dismantle

scaffolding at the refinery. Id. at 474. The evidence showed that Valero employees

were authorized to construct, use, or dismantle a scaffold without first securing

USI’s permission. Id. And, USI was responsible for performing inspections to

ensure the scaffold’s safety before its use. Id. at 477. The court concluded that, once

Valero placed USI in the sole position to authorize the use of the scaffolds it

constructed, “USI attained the sufficient right to control those scaffolds.” Id. And,

because USI was obligated to inspect the scaffolds before Valero’s workers used

them, USI maintained the right to control the scaffolds until they were dismantled.

38 Id. at 479. The court concluded that the evidence established that USI retained a

right to control the scaffold, and thus it owed Levine a duty of care as to the

dangerous conditions on the scaffold. Id. at 480.

Here, similarly, because appellants presented evidence that NPS was in the

sole position of inspecting, and authorizing the use of, its scaffolds, we conclude that

appellants presented some evidence that NPS retained control over the scaffold at

issue. See id. at 477, 479. Thus, appellants presented more than a scintilla of

evidence that NPS owed Torres a duty of reasonable care. See id.

Accordingly, to the extent that the trial court granted summary judgment in

favor of NPS based on its no-evidence motion, we hold that the trial court erred. See

also Griffin, 401 S.W.3d at 160–62 (holding that trial court erred in granting

summary judgment on premises-defect claim because evidence of actual control was

presented). Because we conclude that the trial court erred in granting summary

judgment under the no-evidence standard, we next consider whether the trial court

erred in granting summary judgment under the traditional standard. See Ridgway,

135 S.W.3d at 600; see also TEX. R. CIV. P. 166a(c).

3. Traditional Summary Judgment

In its motion for traditional summary judgment, NPS argued that it was

entitled to judgment because the summary-judgment evidence conclusively

established that: (1) NPS did not own or have control over the premises; (2) NPS

39 “did not owe [Torres] a legal duty on the day of the incident”; (3) “even if there was

a duty, NPS did not breach a legal duty to [Torres]”; and (4) NPS was not the

proximate cause of Torres’s injuries.

With respect to the duty element, NPS asserted that appellants’ “cause of

action against it is limited as a matter of law to the Texas definition of premises

liability as set forth in Austin v. Kroger Tex[as], L.P.,” as follows: “Applying the

general rule, the Court has repeatedly described a landowner’s duty as a duty to make

safe or warn against any concealed, unreasonably dangerous conditions of which the

landowner is, or reasonably should be, aware but the invitee is not.” 465 S.W.3d at

203. And, “because the weather, rainwater, wet surfaces and the tarp [were] all open

and obvious, not concealed and were all known to [Torres] before he elected to put

himself in position to fall, NPS had absolutely no duty to warn, no duty to make the

conditions safe and has no liability as a matter of law.” As discussed above,

however, this is not a pre-existing defects case. See Coastal Marine., 988 S.W.2d

at 225.

With respect to conditions arising from an independent contractor’s work, as

here, the “relevant inquiry is whether the [contractor] assumed sufficient control

over the part of the premises that presented the alleged danger so that the [contractor]

had the responsibility to remedy it.” See United Scaffolding, 537 S.W.3d at 473–74

(applying control test in suit by injured refinery employee against scaffold builder).

40 Thus, whether NPS owed Torres a premises duty must be determined by examining

whether NPS “maintained a right to control the scaffold that allegedly caused

[Torres’s] injury.” See id. at 475. Again, control “may be expressed by contract or

implied by conduct.” Id. at 473.

Because NPS’s summary-judgment evidence does not contain its contract, if

any, with Ryan, we consider whether NPS presented summary-judgment evidence

conclusively negating its duty, that is, its actual control over the scaffold at issue.

See id. at 474, 476; see also Siegler, 899 S.W.2d at 197 (defendant moving for

traditional summary judgment must disprove at least one essential element of

plaintiff’s cause of action).

Under its premises-liability point in its traditional summary-judgment motion,

NPS, without citing evidence, simply states: “Here, NPS did not own or have control

of the premises. Most importantly, NPS did not owe any duty to [Torres].”

Elsewhere in its summary-judgment motion, NPS relies on the PRSI Incident

Investigation report, email correspondence regarding Torres’s accident report,

Torres’s medical records, a photograph of the scaffold at issue, and excerpts of the

depositions of Torres, Harp, Funesti, Reynolds, and Johnson.

In the medical records and excerpts of Torres’s testimony that NPS cites,

Torres stated after his fall that he was injured because he lost his footing on the

ladder, and he testified that his feet were muddy, that he saw the tarp blocking the

41 entry into the scaffold before he climbed the ladder, and that he fell when he lifted

the tarp over his head.

In the excerpts of deposition testimony that NPS appended as its summary-

judgment evidence, Harp, a Ryan safety supervisor, testified that only NPS inspected

and safety-tagged the scaffolds it built. NPS inspected the scaffold at issue and

tagged it as safe for use by Ryan employees, including Torres. Harp testified that

an NPS “scaffold crew” “would come by and update [the safety tags] every day.”

Funesti, a PRSI safety manager, testified that NPS was responsible for

inspecting its scaffolds on the premises and assigning safety tags. He noted that a

“green tag” means “you can just use it, you don’t need any fall protection.” A yellow

tag” means that “you can use it,” subject to certain criteria marked off on the tag. A

“red tag” means “you don’t use it.” Funesti testified that the tarp on the scaffold

from which Torres fell constituted a dangerous condition. He noted: “NPS—

because it was a scaffold, I would expect the scaffold builder to look at it because of

it being [a] scaffold. From my assessment something with a tarp, fire blankets or so,

they would look at that to make sure it’s safe . . . .” And, Reynolds, a PRSI

construction supervisor, testified that NPS had a duty to identify means for safe

access and egress to the scaffolds it built.

Johnson, a PRSI safety supervisor, testified that having to reach three or four

feet at the gate to the scaffold platform created a safety hazard. And, on March 18,

42 2015, the day of Torres’s fall, NPS inspected the scaffold at issue, noted it as “in

compliance,” and assigned it a “yellow tag,” which indicated that the scaffold could

be used, but “[f]all protection ha[d] to be utilized.” However, Johnson testified,

Torres’s tie-off points were limited and, as such, NPS’s policies required the use of

a retractable lifeline or ladder cage, neither of which were there.

As discussed above, the supreme court held in Lee Lewis Construction that

evidence that the general contractor performed inspections, was aware of the

dangerous condition, and approved the dangerous act constituted more than a

scintilla of evidence that the contractor retained an actual right of control. 70 S.W.3d

at 784. Thus, the contractor owed the subcontractor’s employee a duty of care. Id.

Similarly, here, NPS’s own summary-judgment evidence shows that it had the

sole authority to inspect its scaffolding on the premises, that it inspected its

scaffolding every day, that it inspected the scaffold at issue on the same day that

Torres fell, that the gate and tarp were in place at the time of the inspection and

constituted dangerous conditions, and that NPS specifically approved the scaffold

for use. And, although a yellow safety tag indicated that fall-protection was

required, none was present.

Taking as true all evidence favorable to appellants, as non-movants, and

indulging every reasonable inference and resolving any doubts in their favor, as we

must, we conclude that NPS’s own summary-judgment evidence constitutes more

43 than a scintilla of evidence that NPS retained actual control over the scaffold. See

Valence Operating Co., 164 S.W.3d at 661. Thus, NPS has not conclusively negated

the duty element of appellants’ claim. See Lee Lewis Constr., 70 S.W.3d at 784.

Because NPS’s summary-judgment evidence does not establish its right to judgment,

the burden never shifted to appellants to present evidence to raise a genuine issue of

material fact precluding summary judgment. See Siegler, 899 S.W.2d at 197; see

also City of Hous. v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979)

(holding non-movant not required to respond if deficiencies in movant’s own proof

or legal theories defeat movant’s right to judgment as matter of law). Accordingly,

we hold that the trial court erred in granting summary judgment in favor of NPS.

We sustain appellants’ third issue and the remainder of their first and sixth

issues, in which they generally assert that the trial court erred in granting summary

judgment in favor of NPS and failed to find fact issues.9

9 Having sustained appellants’ third issue, we do not reach the remainder of their fourth issue, in which they assert that the necessary-use exception applies to their claim against NPS. See TEX. R. APP. P. 47.1. Similarly, we do not reach the remainder of appellants’ fifth issue, in which they assert that NPS “owed a negligent-undertaking duty of care.” See id. 44 Conclusion

We reverse the portion of the trial court’s judgment in which it grants

summary judgment in favor of NPS on appellants’ claim and remand for further

proceedings. We affirm the remainder of the trial court’s judgment.

Sherry Radack Chief Justice

En Banc reconsideration was requested. TEX. R. APP. P. 49.5. A majority of the justices of the Court voted in favor of reconsidering the case en banc.

The en banc court consists of Chief Justice Radack and Justices Kelly, Goodman, Landau, Hightower, Countiss, Rivas-Molloy, Guerra, and Farris.

Chief Justice Radack, writing for the majority of the en banc court, joined by Justices Landau, Hightower, Countiss, Rivas-Molloy, Guerra, and Farris.

Justice Kelly, dissenting, with opinion to follow.

Justice Goodman, dissenting, without opinion, for the reasons expressed in the panel opinion issued on May 10, 2022.