Wallace and Deanna Dyall v. Simpson Pasadena Paper Company

• Court: Court of Appeals of Texas
• Decided: November 24, 2004
• Docket: 14-01-00432-CV
• Status: Published

Opinion

Affirmed; En Banc Rehearing Granted; Majority and Dissenting Opinions on Rehearing of July 17, 2003, are Withdrawn; Majority and Dissenting Opinions on En Banc Rehearing filed November 24, 2004

Affirmed; En Banc Rehearing Granted; Majority and Dissenting Opinions on Rehearing of July 17, 2003, are Withdrawn; Majority and Dissenting Opinions on En Banc Rehearing filed November 24, 2004.

In The

Fourteenth Court of Appeals

____________

NO. 14-01-00432-CV

WALLACE AND DEANNA DYALL, Appellants

V.

SIMPSON PASADENA PAPER COMPANY, Appellee

On Appeal from the 61st District Court

Harris County, Texas

Trial Court Cause No. 99-09337

D I S S E N T I N G   O P I N I O N   ON   E N   B A N C   R E H E A R I N G

                                                  INTRODUCTION

I respectfully dissent.  The majority’s reasoning is flawed in four ways, all of which lead the majority to the wrong conclusion.

The first two problems relate to the nature of this appeal, an appeal of a summary judgment.  First, the majority improperly expands the scope of the motion to include knowledge of a dangerous condition, even though the motion was based only on control over the work being performed.  Second, the majority applies the wrong standard of review.  Instead of looking at the evidence in the light most favorable to Dyall, the non-movant, the majority views the evidence in the light most unfavorable to Dyall.

The third and fourth problems stem from the majority’s reliance on legislative history to conclude that the scope of section 95.003 is so narrow it excludes all safety issues—even when a premises owner at a plant with dangerous chemicals informs a maintenance worker that he can proceed safely with his work without any breathing equipment.  This conclusion directly contradicts the plain wording of the statute and one of the two examples the sponsoring senator gave to illustrate what situations the section does not cover.

If these problems are avoided, and the evidence is viewed in the appropriate light, we find the following.  More than a scintilla of evidence shows that the Simpson employees knew the plant and the chemicals in it and understood when protective breathing equipment should be worn.  More than a scintilla of evidence shows that Dyall and Carter did not know the plant well and were uncertain if they needed protective breathing equipment.  More than a scintilla of evidence shows that Simpson employees discussed with Dyall and Carter their need for protective breathing equipment.  And more than a scintilla of evidence shows that Simpson employees advised Dyall and Carter that they did not need protective breathing equipment.

For these reasons, the majority errs in concluding that no fact issue exists on the control prong of section 95.003.

I.        This Is an Appeal of a Summary Judgment, Which Means that our Review is Subject to Restrictions.

A.      A Summary Judgment Is Subject to a Particular Scrutiny. 

As noted earlier, this appeal reached our court by way of a summary judgment.  When a summary judgment arrives on our doorstep, it is subject to a great deal of scrutiny.  We scrutinize the facts in the light most favorable to the non-movant.  See Nixon v. Mr. Prop. Mgmt., 690 S.W.2d 546, 548–49 (Tex. 1985).  We scrutinize the facts to see if the non-movant’s claims create at least a scintilla of evidence creating a fact issue.  Id.  We scrutinize the motion and the grounds contained in it to ensure that only the grounds contained in the motion are the basis of the summary judgment.  See McConnell v. Southside Indep. Sch. Dist., 858 S.W2d 337, 339–41 (Tex. 1993).

B.      Simpson’s Motion Was Limited to One Ground.

Simpson brought its motion for summary judgment on only one ground: lack of control.  Simpson alleged that it exercised no control over Dyall’s and Carter’s work, pointing out that it never advised Dyall and Carter how to do their welding.  Simpson carefully chose its summary judgment evidence, presenting only evidence to show that Simpson did not tell Dyall and Carter how to weld.  One excerpt from Simpson’s motion clearly illustrates the company’s focus in the motion:

Q.      Would it be fair to say the gentleman [at Simpson] that showed you where the area was didn’t tell you how to do the repair work?

                                                         * * * * *

A.      He didn’t tell us how to do the repair work.

Q.      That’s why you guys were out there?

A.      Right.

Q.      Because y’all are, I guess, experts in fixing this type of work?  

Q.      Would it be fair to say that in the entire time you were at the Simpson plant no Simpson people told you . . . how to fix that flange?

A.      To my recollection, no.

Nothing in the motion mentioned the second element of section 95.003: knowledge of a dangerous condition.

C.      The Majority Opinion Improperly Injected the Second Prong, Knowledge of a Dangerous Condition, into its Review.

1.       The majority’s statement of facts highlights Simpson’s lack of knowledge and Dyall’s knowledge that chlorine dioxide was in the pipe.

The majority admits that it addresses knowledge, stating, “. . . we would ordinarily restrict our analysis solely to evidence of control . . . .”  Nowhere is its focus on knowledge more evident than in its factual statement of the case.  There, the majority goes into great detail regarding the Simpson employees’ knowledge and Dyall’s and Carter’s knowledge concerning the pipe’s contents and what Dyall and Carter should have known concerning the pipe’s contents.  The thrust of this statement of facts is fourfold: 1) to show that Simpson thought it had cleared the pipe of chlorine dioxide; 2) to show that chlorine dioxide has an unusual odor and therefore Dyall and Carter would have known to wear masks if chlorine dioxide were present; 3) to show that signs near the pipe warned Dyall and Carter that the pipes contained chlorine dioxide; and 4) to show that Simpson employees did not tell Dyall and Carter that they should or should not wear protective breathing equipment.

Simpson discussed none of these facts in its summary judgment motion.  Simpson did not mention them because its sole focus was that it did not control how Dyall and Carter welded.

2.       The majority opinion should not have focused on actual knowledge because Simpson’s motion mentioned only control.

For several reasons, the majority errs when it injects actual knowledge into its review of the case.  The first reason is this: a movant can obtain a summary judgment only on the grounds it discusses in its motion for summary judgment.  Id.  The purpose of the motion is to notify the non-movant of the issues he must address.  If a case involves more than one issue, and one of them clearly is not discussed in the motion, the non-movant need not address that issue and need not except to the motion as being vague.  Id. at 342.  Simpson’s motion clearly did not address the knowledge prong of section 95.003.

The second reason the majority errs relates to the first.  When a non-movant knows what issues are involved in the motion for summary judgment, he gathers the evidence responsive to those issues and presents it to the trial court.  Generally, the non-movant presents evidence relating only to the issues contained in the motion, and does not present evidence related to other issues.  The evidence may contain some overlap of issues but, generally, the focus is on the issue challenged in the summary judgment motion.  This record generally supports that theory.  A review of the deposition excerpts attached to the response to the motion for summary judgment reveals that the testimony relates primarily to control and not to knowledge.  It would be inappropriate to assume that Dyall has presented all of his evidence related to knowledge and to hold against him based on that assumption.  If anything, we should assume that Dyall has not presented all of his evidence on knowledge.

Third, even though Dyall may have argued in parts of his response that Simpson knew the pipe was not completely clear, that does not enlarge the scope of the motion.  The rule is quite clear.  A summary judgment may be granted only on the specific issues presented in the motion.  See Tex. R. Civ. P. 166a; McConnell, 858 S.W.2d at 339.

Fourth, Dyall did not base his claim of control on Simpson’s knowledge of what was in the pipe.  Quoting from his summary judgment response, he claims “[Simpson] exercised control over the manner in which the job was done, safety-wise, by telling Mr. Dyall and Mr. Carter that they did not need to return to their shop to get a full-face air tank respirator to work on the leak.”  In addition, Dyall included in the body of his response excerpts from the depositions of Simpson employees; these excerpts support a claim that Simpson employees felt it their duty to ensure that contractors wore the right protective gear for the job they performed, and that some of the employees advised Dyall and Carter on the necessity of wearing protective breathing equipment.

Thus, the motion was limited to control, Dyall presented evidence responding to the specific claim of control—he did not rely on knowledge to defeat the summary judgment—and even if Dyall did discuss knowledge in his response to the motion, the motion controls what grounds can form the basis of the judgment. 

D.      The Majority Opinion Looks at the Evidence in the Light Most Negative to Dyall.  

The second problem with the majority opinion is that it does not view the evidence in the appropriate light.  It generally discounts Dyall’s testimony and views the evidence in the light most negative to Dyall.  Several examples underscore this point.

First of all, the majority refuses to acknowledge that Dyall and Carter did not know what chemicals they might encounter at the plant and did not know if they needed protective gear.  The record supports an inference that Dyall and Carter were relying on the Simpson employees to tell them if they should wear protective breathing equipment.  The record does not conclusively show that Dyall and Carter knew that they were to work on a pipe that had contained chlorine dioxide and might still contain some residue of that substance.  The majority reaches the conclusion—without support from the record—that chlorine dioxide has such a distinct odor anyone would be able to recognize it.  Yet, a Simpson employee acknowledged on the record that the plant has many strong odors and a person unfamiliar with the plant might not be able to discern the chlorine dioxide among the other noxious odors:^[1]

Q.      That’s my point.  In the sense that you may know it’s a bad odor, but unless you’ve worked around it, you can’t specifically identify what that specific odor was; is that correct?

A.      Absolutely.  I don’t think you would know what it was.

Q.      So, basically, if it’s your first or second time into that facility, would you say there are a lot of new odors, if you’ve never been in a paper mill before, that a general person in the general population would not be familiar with?

A..     Yes.

Next, the majority reviews an encounter between Dyall and Carter and Elleven, the Simpson employee in charge of giving Dyall and Carter their work orders.  Upon finding out that Dyall and Carter did not have their air packs with them, Elleven responded, “Well that’s all right.  I don’t think you’ll need them.”  Rather than viewing this as some evidence of a Simpson employee telling Dyall and Carter that they could work safely without protective breathing equipment, the majority calls the statement “ambivalent:”  “This statement is ambivalent on its face and cannot reasonably be construed as a command or instruction not to use such equipment.”  It may not have been a command, but reasonable minds could reach different conclusions on whether this statement amounted to advice from someone who was more knowledgeable about the plant’s chemicals.  More importantly, the statute does not require a command; it merely requires some level of control that is more than ordering the start and stop of work.  Tex. Civ. Prac. & Rem. Code § 95.003(1).

Later, the majority again refuses to make any reasonable inferences in favor of Dyall.  This occasion concerns Dyall’s claim that Simpson employees exercised control by telling Dyall he need not be concerned about a second leak that sprang from the pipe on which Dyall and Carter worked. 

While Dyall and Carter worked on the pipe, they detected a foul odor and reported it to Simpson operations employees, who checked the area where Dyall and Carter worked.  Either before or after the Simpson employees arrived to check on the odor, Dyall and Carter noticed a new leak other than the one they were repairing.  Carter explained:

When I talked to the guy and told him about the leak, I said, you know, “Is it all the same thing or is it something else?”  He came over and he looked, he goes, “Oh, it’s all in—it’s the same pipe.”  I said, “Oh Okay.  He said, “But other than that,” he goes, “I don’t see anything that would cause an odor which, you know, y’all are speaking of.”

Two reasonable inferences flow from this testimony: (1) Carter wanted to know if he could safely work around the leak and (2) Simpson employees led Dyall and Carter to believe that they could continue working safely without protective breathing equipment.  Dyall and Carter clearly asked the employees about the odor and leak because they did not know what substance was leaking from the pipe and wondered if they should continue their work.^[2]  Yet, the majority uses this testimony as a springboard to conclude that Carter and Simpson should have known they might encounter chlorine dioxide because of signs at the plant warning of chlorine dioxide, and that they should have known in any event when to wear protective breathing devices and what type they should wear.  This was wrong.

Thus, the majority’s review of the statement of facts and its conclusions based on the statement of facts are flawed because it (1) injects an issue not contained in the motion for summary judgment and (2) looks at the evidence in the light most unfavorable to Dyall.  That is error.

II.       The Majority Relies on Legislative History to Undergird its Holding that Dyall Has Not Created a Fact Issue on Control.  Holding that Dyall Did Create a Fact Issue Does Not Offend the Plain Language of the Statute or the Legislative History.

The majority expends five pages explaining the history of the movement from a broad imposition of liability on landowners to a narrower one.  It uses this history to undergird and justify its holding that Dyall has not created a fact issue on control.  However, concluding that Dyall did create a fact issue on control does not offend the plain language of the statute or the legislative history.  Because the motion was based on control, our review must consider what that word means and whether it can encompass advising Dyall whether he should use protective breathing equipment.

A.      The Statute’s Definition of Control Does Not Exclude this Case.

The statute defines control broadly.  Although it does not contain a true definition of “control,” it does give some direction as to what “control” means.  The direction comes in two parts, the first part stating what “control” is, the second part stating what it is not.  First, the statute states what control is: direction in the “manner in which the work is performed.”  Tex. Civ. Prac. & Rem. Code § 95.003(1).  Then it states what control is not: “the right to order the work to start or stop or to inspect progress or receive reports.”  Id.  So, if a property owner takes some action to direct how subcontractors perform their job and the action is more than simply telling them when to start and stop their work, or inspecting their work or receiving reports on the work, that action can qualify as some control. 

It appears the Legislature has said that simple decisions unconnected with how the job is done, such as when workers will start and stop work each day or on particular days, do not qualify as control.  However, decisions related to the job performance, such as advising workers—who do not know if the pipes on which they work contain toxic or non-toxic matter—whether they should wear protective breathing devices, do qualify as some control.  At that point the property owner is advising the worker how the work should be done, not merely ordering the work stopped or started.  Thus the statute’s definition of control does not exclude this case.

B.      The Legislative History of Chapter 95 Does Not Exclude this Case.

Although the legislative history and the general movement of the law toward narrower liability on property owners is relevant, it does not bode badly for this case.  In fact, this case does not offend that trend and does not involve the type of facts that led to the enactment of Chapter 95.

1.       The fact issues here are not like the safety issues in the cases the majority discusses.

Each of the cases the majority discusses—cases that apparently led to the enactment of Chapter 95—are substantively different from this case.  Here, Dyall was an expert in welding, or at least knew how to weld.  However, because he was not an employee of Simpson, he did not know the plant facilities and certainly did not know what substances each of the pipes at the plant carried.  If Dyall and Carter knew which substances at the plant were toxic and which were not, they would not have asked three or four times whether they needed air packs or whether a substance was safe to work around, as they did (1) when they arrived at the plant entrance, (2) when they received  their work orders from Elleven, (3) when they asked what the foamy substance was that a worker washed down a drain, and (4) when a foul odor appeared and they noticed a second leak.  In effect, Dyall had expert knowledge only about the welding part of the job; the other part of the job, knowing which chemicals at the plant could injure him, he did not know.  That is different than the cases cited by the majority.

In Lee Lewis,^[3] the employee of the sub-contractor was fatally injured by a safety decision his employer made while the company installed windows in a high rise.  Lee Lewis Constr., Inc. v. Harrison, 70 S.W.3d 778, 781-82 (Tex. 2001).  The safety decision directly related to work the sub-contractor did and in which it was an expert, high rise window installation.  It did not involve, as this case does, a type of work or a work place with which the sub-contractor was unfamiliar.  See id. at 784-85.

In Koch Refining, the premises owner had a safety employee observe the work of its sub-contractor.  Koch Ref. Co. v. Chapa, 11 S.W.3d 153, 156 (Tex. 1999).  Koch Refining was held not liable because it merely observed its contractor work.  Id. at 156-57.  Unlike the facts here, the safety employee did not advise the subcontractor on any safety issues.  Id.

In Dow Chemical, an employee of the independent contractor sued Dow for injuries allegedly caused by a fellow employee of the independent contractor.  Dow Chem. Co. v. Bright, 89 S.W.3d 602, 605 (Tex. 2002).  As with Koch Refining, Dow had only the authority to stop the work, and it did not engage in discussions with the independent contractor as to how the job should be done.  Id. at 607-09. 

In each of these cases, the premises owner either (a) did not discuss with the independent contractor how a certain aspect of the job should be done, or (b) the independent contractor was working in an area within its realm of expertise.^[4]  This case is different.  Dyall and Carter were not very familiar with this plant and showed by their actions that they did not know which fumes were toxic and which were not.  Or, at least on this record, a fact issue exists on this point.  Welding was their expertise—noxious fumes were not.

In short, Lee Lewis, Koch Refining, and Dow Chemical illustrate the fact scenario the Legislators intended Chapter 95 to reach: an expert sub-contractor suing a landowner for injuries occurring in the sub-contractor’s area of expertise.  Our appeal involves a landowner with more expertise than the subcontractor on the very part of the job for which the landowner is being sued.

Thus, holding that this case falls within the control exception to section 95.003 will not open the floodgates for lawsuits.  This case does not present the fact scenario Chapter 95 was designed to address.

2.       The sponsoring legislator’s example of a factual scenario not precluded by section 95.003 is similar to this case.

Finding that this case provides some proof of “control” is not an inconceivable stretch as the majority argues, for the legislative history contains an example of control startlingly like this one.  In the example, a maintenance contractor who has a contract to perform work at the plant arrives to weld on a pipeline.  The property owner informs the contractor the lines are clear and ready for welding when they are not clear.  As a result, the contractor’s employee is injured by chemicals released from the line.  This is how the legislative sponsor described it:

Example: Likewise, if we have a maintenance contractor who gets a contract to perform work at the plant, and the property owner informs the contractor that the lines are clear and ready for welding, when in fact they are not, due to the property owner’s negligence, and an employee of the maintenance contractor is injured by the release of chemicals.  Nothing in this chapter would change the burden of proof or the damages recoverable.

H.J. of TEX., 74th Leg., R.S. 2611-12 (1995).^{[5], [6]}

From the legislator’s perspective, the most important fact in the example—that the land owner negligently informed the welder he could work safely on the line—is a factual thread running through this case.  If nothing else, Dyall at least created a fact issue on whether the land owner, Simpson, led Dyall to believe he could safely work on the line without protective breathing equipment.

The example also contains facts that are different than the facts in this case; one of the facts is insignificant, one is significant.  First, in the example, the workers were told the line was clear, meaning that it was empty.  Here, the workers were not told the line was clear, but they were led to believe they did not need protective breathing equipment because the material in the line was not toxic.  That is an insignificance difference.  Second, in the example, the workers were not advised how to do their job.  Here, the workers were advised they did not need protective breathing equipment.  That difference is significant.

Thus, the plain language of the statute and the Legislative history support a conclusion that this is not the type of case the legislature intended Chapter 95 to preclude.

III.      When we View the Evidence in the Light Most Favorable to Dyall, a Fact Issue Emerges.

Thus far, then, we know four important things.  First, the majority used the wrong standard of review; second, the majority wrongly considered knowledge; third, this case falls within the statute’s definition of “control;” and fourth, the legislative history supports the concept that Dyall could recover if the facts are reviewed in his favor.  We do not know one important piece of information—what the evidence reveals when we review it appropriately. When we view the evidence in the light most favorable to Dyall, a fact issue emerges, as the following points illustrate. 

A.      Some Evidence Shows that Simpson Employees Considered Themselves the Experts and In Charge of Safety for All People Who Worked at the Plant, Including Subcontractors.

First, Simpson employees considered themselves experts and in charge of safety for all people working at the plant.  In his response, Dyall included deposition testimony of three Simpson employees, each of whom agreed that they were responsible for safety at the plant and would not allow contractors to work around chlorine dioxide—at least not without an air pack or an air-line respirator.

The first of these employees is Bruce Stiles, a shift supervisor for the bleach plant facility where the leak sprouted.  He acknowledged that the pipe may have had some residue of chlorine dioxide in it, but because he could not detect an odor of chlorine dioxide, he thought Dyall and Carter could work on it without protective equipment.

                                           Bruce Stiles’s Deposition

Q.      On April the 19th when you saw the leak in the ClO2 [chlorine dioxide] injector that we’re talking about, what were you doing in the pine bleach plant at the time?  Were you just performing a routine inspection of the facilities?

A.      Right.  That was my job.  I walked around, just checking everything. 

Q.      And you see the leak from--I think you said a good distance away, you could see it was leaking?                      

A.      Yes.  

Q.      Would you describe it as a spray or just like a flowing leak?  Or how would you describe it?

A.      It was a spray.  Probably a pinhole but maybe the size of a pen point or something.  It was spraying down on the concrete.  It wasn’t a flow.  It does not take much ClO2 [chlorine dioxide] at the pure form to be able to see it.

Q.      Well, what was the leak?  What material was leaking?

A.      While we were running, the material that was leaking was ClO2 [chlorine dioxide].   

Q.        Did you see a green cloud associated with it?

A.        Yes, there was a green cloud in there also, yes.

Q.        What did you do immediately after you saw that?

A.        I called and told the bleach plant operator to shut the facility down.

Q.        Was it your decision to get IPP out there or--

A.        It was a joint decision.

Q.        Why did you want them out there?

A.        Because we can’t run the plant and put ClO2 [chlorine dioxide] in the air.  We can’t do that.  Or couldn’t do that.

                                                                       * * * * *

Q.        You were over there on several occasions, I mean--

A.        Yes.

Q.        --for long periods of time?

A.        Yes.  I mean, as far as I remember, I stayed there basically the whole time, other than maybe go to the phone or something.  There wasn’t a phone right there.

Q.        . . . And at any time during that interval, the period of time that IPP was out there, did you witness the clear liquid leak?  Did you see it still leaking?   

A.        Yes.  When they were putting the goop around it, that’s how--whoever it was told me that, you know, we hadn’t stopped it.  Because you could still see the liquid leaking from around the patch he was putting on it.  Yes.

Q.        What does “a clear liquid” mean to you?

A.        I couldn’t smell it and I couldn’t see it so it meant it was safe, to me. 

Q.        Do you think it was water?

A.        Yeah.  It was mostly water.  I couldn’t say whether it had any kind of residue.  But yes, I considered it to be water.   

Q.        When you say “residue,” do you mean pulp?

A.        No.  I mean maybe it could have ClO2 [chlorine dioxide] residue.  I don’t know.

Q.        If there was a low-level exposure coming out of a leak to diluted chlorine dioxide water, would that be something that a shift supervisor would point out to an independent contractor that was coming.     

A.        Yes.  But if it was where I could actually smell it, I would not put a person to work in it, no.

Q.        Why is that?

A.        Kind of what chlorine dioxide does.  I mean--

Q.        It’s bad stuff?

A.        It’s bad stuff.  I don’t know what it does to you in the long term, but I know what it does to you short term.  It’s my responsibility also for that area.  If our maintenance people work in a chlorine leak or something, they would go in with full face equipment.    

Q.        Full face equipment.  Now, would that be where you have your own oxygen with you?    

A.        Not an air pack no.  It has a canister that filters it out.

Q.        But that would filter all your air that you were getting when you were around it that way?

A.        Yes.

Q.        And you have those there at the facility?

(emphasis added)

The second employee was James Bueker, superintendent of the pine bleaching plant where Dyall was working.  Like Stiles, he agreed that he would interrupt a person working around chlorine dioxide and tell them that they needed an air respirator or mask.  He also felt he had more of a duty to warn subcontractors who were working unsafely than employees because subcontractors might not be familiar with the plant and its toxins.

James Bueker’s Deposition

Q.        I want to ask you about another comment that you made.  I believe you said that if you were walking through the plant and you saw someone working in or around a chlorine bleach or a ClO2 [chlorine dioxide] leak without air respirators or masks, you would have told them that they probably needed to be wearing an air respirator or mask?  

A.         Uh-huh.

Q.        Why would you tell them that?

A.        I wouldn’t care for them to get sick.  I mean, . . . if I walked by and there was a leak there and the person was working on it without a mask on and it was dripping a bunch of stuff, either he would need to put on a mask if he’s going to work there, depending on which way the wind was blowing.  

A lot of times if there was a small leak, you could put a water hose on top of the leak and that would keep it from, say, gassing off and you could very easily work on something.  But if it was dripping quite largely or profusely, then our job would be to get everybody back and try and stop the leak.  And if not, if it was a big leak, then you better put on a full-face or Scott air pack and you would have to go in there and flange it.

Q.        . . . [W]ould you consider that one of your duties, as being the bleach plant supervisor or superintendent, if you saw someone working unsafely, to point that out to them?   

A.        Yes, absolutely.

Q.        At that time would you have considered that you had the right and the duty to say the same thing to subcontractors that were in there working, if you saw them working unsafely? 

A.        Probably more so to contractors, because they might not be familiar with the area. 

Q.        What I’m trying to get at is:  Because you had worked in the industry for many years, you knew immediately what the smell of chlorine dioxide was.  But if someone had come to that facility and had never worked in a chlorine dioxide plant, would they be able to identify that specific odor?

A.        . . . Not as being ClO2 [chlorine dioxide], but it’s an odor that makes you want to leave.  You don’t need to know what it is.

Q.        That’s my point.  In the sense that you may know it’s a bad odor, but unless you’ve worked around it, you can’t specifically identify what that specific odor was; is that correct?

A.        Absolutely.  I don’t think you would know what it was.

Q.        So basically, if it’s your first or second time into that facility, would you say there are a lot of new odors, if you’ve never been in a paper mill before, that a general person in the general population would not be familiar with?

Q.        Is there a possibility that in working around a small leak of chlorine dioxide it could be diluted enough so that you could work maybe several feet away from it and it not be so strong that you must run immediately, but you could continue to work if it’s far enough away?

The third employee whose testimony was presented in Dyall’s response to the summary judgment was Paul Licata, the environmental and safety manager for Simpson.  As with Stiles and Bueker, he agreed that he would not allow a contractor to work at the plant without proper safety equipment.

                                                       Paul Licata’s Deposition

Q.        . . . The chlorine dioxide water solution, is that commonly referred to as ClO2 water?

Q.        Is that a hazardous substance?

Q.        No?  Tell me why not.

A.        The water solution itself is mostly water.  And the hazard comes from the chlorine dioxide off-gassing from the water.  So it would be an inhalation hazard more than a contact hazard.

Q.        If someone is going to be exposed to chlorine dioxide, should they have ventilation in the area?

A.        If they’re going to be exposed to it, they should remove themselves from the area.

Q.        If there’s no way--to help them from being exposed to it, should they have ventilation in the area to help remove the danger?

A.        If there’s no way to avoid the exposure, they should have respiratory protection.

Q.      Who was in charge of safety on April 19th, 1998 when you were not there?

A.      The operations personnel are responsible for safety.

Q.      And so for the bleach plant facility, who would that have been?

A.      That would have been the productions shift supervisor for the bleach plant.

Q.        Would you, as environmental and safety manager for Simpson Pasadena Paper Company, have allowed a contractor to work without proper safety equipment if you knew of it?

A.        No.

Q.        Mr. Pitts asked you if you were to see independent contractors who were working without the proper protection equipment, you wouldn’t have allowed that to happen, is that correct?

Q.        If you knew of independent contractors who were working with leaking ClO2 water without face shields, without goggles and without respirators, would you have allowed them to continue working?

Q.        What was leaking?

A.        Here again, this is difficult for me to understand.  Because if we had that situation, the Simpson employee would understand that is in--that would be an emergency situation because that’s going to off-gassing.  And if it’s not--For health reasons, it would be an environmental excursion (phonetic) that we would want to know about.  So they, No. 1, they shouldn’t be allowing that to happen and, No. 2, should not be sending anybody into that situation.

Q.      At what parts per million is chlorine dioxide dangerous to human beings?

A.      I’d have to look that up.  It’s in the one part per million or less range.

Q.      So actually, if you’re around chlorine dioxide, or you had to be, you would want a self-contained air pack; is that right?

A.      If I was going in to repair a leak that involved chlorine dioxide, I would have to have an air pack, right, or an air-line respirator.

Q.      And when you said that Simpson Pasadena Paper Company had the responsibility to discuss general hazards with contractors, that would include if they were going to be exposed to chlorine dioxide water, would it not?

A.      That would be part of the pulp mill discussion, yes.

The majority does not consider any of this testimony or, if it does, it also looks at contradictory testimony.  That is error.

B.      Simpson Employees Actually Advised Dyall and Carter Several Times Whether They Would Need Protective Breathing Gear.

The second important point we see from viewing the evidence in the light most favorable to Dyall is that in addition to considering themselves experts in safety, Simpson employees actually advised Dyall and Carter if they needed protective breathing gear.  At the gate Dyall and Carter had a brief discussion with a Simpson employee about protective breathing equipment; he said he did not think they would need any gear but told them to talk with Jerry Elleven.

1.       Dyall and Carter talked with Jerry Elleven about protective breathing gear.

The second Simpson employee to discuss protective safety breathing equipment with Dyall and Carter was Jerry Elleven.  Dyall and Carter were directed to him immediately upon arriving at the plant.  Elleven was responsible for telling Dyall and Carter what Simpson needed them to do and for showing them where they would be working.  Elleven asked if they had full air packs.  Upon learning that they had left them at their company’s headquarters, he told them he did not think they would need them.  Elleven sent them to “the safety guy” who issued Dyall and Carter throw-down packs they were to use in case of an emergency.  Elleven watched them work at least part of the time.  The record is not clear if Dyall and Carter later spoke with Elleven or someone else about the second leak that sprouted.

2.       Dyall and Carter asked an employee washing a “foamy substance” down a drain if it was safe.    

After receiving the throw-down packs, Dyall and Carter drove to the leaking flange.  They noticed an employee washing a “foamy substance” down a drain.  Not knowing what the substance was, they asked if they needed rubber boots or if the substance was safe for them to walk in without rubber boots.  The employee assured them it was safe.

3.       Simpson employees investigated a second leak that sprang while Dyall and Carter worked on the flange and led them to believe they need not worry about it.

Although the record is a little unclear at times, it appears that at least one new leak sprang while Dyall and Carter were working on the leaking flange.  Dyall and Carter asked Simpson employees if it was safe to work around the leak.  Simpson employees assured them they could continue working because the substance flowing from the new leaks was the same as the material leaking from the flange.

In summary, all of this evidence shows the following.  Simpson employees considered themselves experts on the toxins at the plant.  Dyall and Carter were not experts on the toxins at the plant.  Dyall and Carter did not know if they needed protective breathing gear and, if so, what kind.  Dyall and Carter consulted with Simpson employees to ascertain if they needed protective breathing gear, and the Simpson employees advised Dyall and Carter no protective breathing gear was needed.  This qualifies as some control and creates a fact issue.

It is error to hold otherwise. 

IV.      Dyall’s Other Common Law Claims Also Survive Summary Judgment Because Dyall Raised a Fact Issue Regarding Control. 

The final flaw in the majority’s analysis relates to Dyall’s other common law  negligence claims. The majority correctly notes that these claims can be brought only if the plaintiff meets the two requirements of section 95.003 that the owner (1) control some aspect of the work and (2) know of the dangerous condition.  However, because Dyall has created a fact issue on control, his common law negligence claims should not be dismissed.  As the majority states, just as with Dyall’s main claim of negligence, these claims also cannot be brought unless Dyall first shows that the owner exercised some control over the work.  Because Dyall met that burden, Dyall should be able to continue his pursuit of these claims.

                                                   CONCLUSION

For all of these reasons the court errs in holding that Dyall did not create a fact issue on the issue of control as raised in Simpson’s motion for summary judgment and because Dyall created an issue on control, the majority errs in concluding that Dyall may not continue with his other claims for negligence.  The court should reverse the judgment and remand the case to the trial court for further proceedings.

/s/      Wanda McKee Fowler

Justice

Judgment rendered and Majority and Dissenting Opinions on En Banc Rehearing filed November 24, 2004.  (Chief Justice Hedges and Justices Anderson, Edelman, Frost and Guzman join the majority; Justice Yates and Seymore join this dissent). 

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^[1]  Dyall testified that he had been to the plant on only one or two prior occasions.

^[2]  The majority concludes it would be ludicrous to hold that Simpson exercised control because Simpson employees told Dyall and Carter it was safe for them to work; it concludes this would be tantamount to exercising control by not exercising control.  I beg to differ.  In a paper mill or a chemical plant, deciding whether work can be done safely is of paramount importance.  Deciding that protective breathing equipment does not need to be worn is as much of a decision as deciding that protective breathing equipment needs to be worn.  Control is exercised in both decisions.

^[3]  The majority’s description of Lee Lewis Construction, Inc. is inaccurate.  The general contractor was not held liable simply because it had a regulation that companies use lifelines when working in high places; rather, the general contractor was more actively involved in directing the sub-contractor’s work.

^[4]  For example, a sub-contractor who regularly installs windows in high-rise buildings should know the best way to ensure an employee’s safety while installing the windows.  See Lee Lewis Constr., Inc., 70 S.W.3d at 785.  An independent contractor regularly performing maintenance on large commercial elevated signs knows the safety concerns connected with working in high places.  See Samco Props., Inc. v. Cheatham, 977 S.W.2d 469, 476. Tex. App.—Houston [14^th Dist.] 1998, pet. denied).

^[5]  The majority argues that we must look only to the statute itself to glean the legislature’s intent.  However, “[e]ven when a statute is not ambiguous on its face, we can consider other factors to determine the Legislature’s intent, including . . . the legislative history; the common law or former statutory provisions, including laws on the same or similar subjects; [and] the consequences of a particular construction . . . .” Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 493 (Tex. 2001).

^[6]  This example underscores a potential problem with the statute as currently written.  Clearly, the sponsor of the bill believed Chapter 95 would not apply to this fact scenario.  Yet, the plain language of the statute seems to cover this example because the worker 1) was injured, Tex. Civ. Prac. & Rem. Code § 95.002(1), 2) by a condition or use of an improvement to property, Id. at 95.002(2), 3) on which he was working, Id., and the property owner 4) did not retain some control over the work, Id. at 95.003(1), and 5) was not aware of the dangerous condition, Id. at 95.003(2).