Court of Appeals of Texas, Seventh District, Amarillo
Appeal from the 146th District Court Bell County, Texas,
Trial Court No. 253, 938-B, Honorable Jack Weldon Jones,
QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
QUINN CHIEF JUSTICE.
us is an appeal and cross-appeal from a final summary
judgment. Hilario Torres contends that the trial court erred
in granting the motion and denying him recovery against
Chauncey Mansell and Mueller Supply Co., Inc. (collectively
referred to as Mueller). Mueller argues, via the
cross-appeal, that the trial court erred in overruling his
motion to modify the judgment to include therein a ruling on
its objections to Torres' summary judgment evidence. We
dispute began when Torres was electrocuted. According to the
summary judgment evidence, he worked for a subcontractor
(Chino) hired by A&S Construction to lay a cement parking
lot surrounding the sales office Mueller was building for
itself. Mueller (the property owner) had hired A&S
Construction as the general contractor and assigned Mansell
(one of its employees) to coordinate and monitor the job.
time of the incident in question, Torres was working at night
and attempting to smooth or level the surface of some freshly
poured concrete. While doing that, the metal handle of the
bull float (also called the "mapa, " "avion,
" and "airplane") he utilized to perform his
task touched an electrical line. The line was over or
adjacent to that portion of the lot being completed.
Apparently, the float's handle approximated 16' in
length, and it contacted the live wire as Torres pulled the
float across the cement's surface towards him. Torres
testified, via deposition, that he knew of the line's
presence after having seen it days before.
also testified that "people" from Mueller not only
were at the scene but also were the ones who told him and his
colleagues "what to do there." Who those people
were, he could not remember, though. Furthermore, the
assumption that they were from Mueller was based on comments
from his coworkers. He admitted, though, that he personally
did not know who they were. Those coworkers also said that
because someone from Mueller allegedly was there, "we
should do a good job." According to the same deposition
testimony, the unknown Mueller people (along with Brian Alvey
of A&S Construction) told Torres and his compatriots
"to pour the concrete." None, however, directed him
to use the float or mapa. Instead, Torres reiterated, they
said "[y]ou're going to pour this cement" and
[e]verybody do your particular job."
the live electrical line resulted in Torres suffering
extensive injury and the suit underlying this appeal. In his
suit, Torres asserted that the presence of the live power
lines created an unreasonably dangerous condition.
Furthermore, the causes of action alleged against Mueller
sounded in premises liability, active negligence, negligence
per se, and gross negligence. Mueller joined issue and
eventually filed a traditional motion for summary judgment.
motion for summary judgment, Mueller invoked Chapter 95 of
the Texas Civil Practice and Remedies Code, argued that it
controlled the disposition of the entire lawsuit, and
contended that the summary judgment evidence negated
Torres' ability to satisfy the requirements of that
statute as a matter of law. It also argued the summary
judgment evidence established that 1) it retained no control
over the work performed by Torres or his employer, 2) the
overhead lines were known to Torres, and 3) the statute under
which Torres sought to impose negligence per se was
inapplicable to it. Torres responded to the motion with his
own evidence, argument, and a motion for a continuance to
conduct additional discovery.
trial court denied the motion for continuance but granted
that seeking a summary judgment. No ground was mentioned as
the basis for granting summary judgment, though. And, one
motion that went unresolved was that filed by Mueller wherein
it objected to aspects of the summary judgment evidence
proffered by Torres. This omission was made the subject of a
motion to modify the judgment, which motion was not granted.
because this appeal was transferred from the Third Court of
Appeals, we are bound to apply its precedent and that of the
Texas Supreme Court. See Tex. R. App. P.
41.3 (stating that "[i]n cases transferred by the
Supreme Court from one court of appeals to another, the court
of appeals to which the case is transferred must decide the
case in accordance with the precedent of the transferor court
under principles of stare decisis if the transferee
court's decision otherwise would have been inconsistent
with the precedent of the transferor court.")
we need not reiterate the relevant standard of review in an
appeal from a summary judgment. It is well settled and
described in Kachina Pipeline Co. v. Lillis, 471
S.W.3d 445 (Tex. 2015), and Cantu v. Southern Ins.
Co., No. 03-14-00533-CV, 2015 Tex.App. LEXIS 8847 (Tex.
App.-Austin Aug. 25, 2015, no pet.) (mem. op.). The parties
are referred to those cases for its description.
our Supreme Court, in Joe v. Two Thirty Nine Joint
Venture, 145 S.W.3d 150 (Tex. 2004), described the
standard of review utilized when addressing whether a trial
court erred in denying a motion for continuance seeking time
to conduct discovery. Id. at 160-161; see Melton
v. Farrow, No. 03-13-00542-CV, 2015 Tex.App. LEXIS 1224,
at *10-11 (Tex. App.-Austin Feb. 10, 2015, pet. denied) (mem.
op.) (reiterating the standard stated in Joe v. Two
Thirty Nine Joint Venture). It too will be applied when
we address that issue.
asserts various grounds allegedly warranting a reversal of
the trial court's decision to grant Mueller's motion
for summary judgment. We address each in turn.
Civil Practice and Remedies Code § 95.001 et seq
first ground we address involves the application of Chapter
95 of the Texas Civil Practice and Remedies Code. Torres
believes the statute to be inapplicable because the
improvement being completed did not cause his injury. We
95 controls recovery in a "claim . . . against a
property owner, contractor, or subcontractor for personal
injury, death, or property damage to an owner, a contractor,
or a subcontractor or an employee of a contractor or
subcontractor . . . that arises from the condition or use of
an improvement to real property where the contractor or
subcontractor constructs, repairs, renovates, or modifies the
improvement." Tex. Civ. Prac. & Rem. Code
Ann. § 95.002(1) & (2) (West 2011). If the
claim falls within the scope of § 95.002(1) and (2) then
the property owner "is not liable" for personal
injury, death or property damage "arising from the
failure to provide a safe workplace unless" two hurdles
are cleared. Id. § 95.003. The first requires
proof that the owner exercised or retained some control over
the manner in which the work is performed; however, the
control must involve more than the right to order the work to
start or stop, to inspect progress, and to receive reports.
Id. § 95.003(1). Under the second hurdle, it
must be shown that the owner had actual knowledge of the
danger or condition resulting in the injury, death or damage,
and failed to adequately warn of that danger. Id.
scope of the statute is quite broad given the definition of
the word "claim." It means "a claim for
damages caused by negligence, " id. §
95.001(1), and the Supreme Court has chosen not to interpret
that language as distinguishing between negligence claims
"based on contemporaneous activity or otherwise"
because the legislature made no such distinctions.
Abutahoun v. Dow Chem. Co., 463 S.W.3d 42, 48 (Tex.
2015). That is, "Chapter 95's plain language does
not require the court to classify certain negligence claims
for different treatment." Id. at 49 n.7.
Rather, it encompasses "all negligence claims that arise
from either a premises defect or the negligent activity of a
property owner or its employees." Id. at 50;
Ineos USA, LLC. v. Elmgren, 505 S.W.3d 555, 562
(Tex. 2016) (reiterating that Chapter 95 applies to all
negligence based claims).
Supreme Court, in Abutahoun, took the opportunity to
discuss and define other words found in the statute as well.
For instance, the word "condition" was construed as
meaning "'either an intentional or an inadvertent
state of being.'" Abutahoun, 463 S.W.3d at
49, quoting Sparkman v. Maxwell, 519 S.W.2d 852
(Tex. 1975); accord, 4front Engineered Solutions, Inc. v.
Rosales, 505 S.W.3d 905, 912 (Tex. 2016) (involving
Chapter 95 and observing that "[b]y asking about a
'condition of the premises, ' this question [in the
jury instructions] presented a premises-liability theory that
focuses on the 'state of being' of the property
itself"). In turn, "use" was interpreted as
meaning "'to put or bring into action or
service'" or to "'employ for or apply to a
given purpose.'" Abutahoun, 463 S.W.3d at
49, quoting Tex. Dept. of Crim. Justice v. Miller,
51 S.W.3d 583, 588 (Tex. 2001).
other term undefined in Chapter 95 but discussed by the Court
was "improvement." And, the Court opted to
"broadly define[ ] [it] to include 'all additions to
the freehold except for trade fixtures [that] can be removed
without injury to the property.'" Id. at
49, quoting Sonnier v. Chisholm-Ryder Co., 909
S.W.2d 475, 479 (Tex. 1995). The broad nature of the
definition was reconfirmed by the Supreme Court in Ineos.
Ineos USA, LLC. v. Elmgren, ...