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Lopez v. Ensign U.S. Southern Drilling, LLC

Court of Appeals of Texas, Fourteenth District

March 21, 2017

RYAN LOPEZ, Appellant

         On Appeal from the 281st District Court Harris County, Texas Trial Court Cause Nos. 2014-21405 and 2014-21405A

          Panel consists of Justices Jamison, Wise, and Jewell.


          Kevin Jewell Justice

         Appellant Ryan Lopez sought damages from Freeport-McMoRan Oil & Gas, LLC d/b/a Plains Exploration & Production Company, and Ensign U.S. Southern Drilling, LLC, for personal injuries sustained when he fell down a stairway on a drilling rig. Both Freeport-McMoRan and Ensign filed motions for summary judgment, which the trial court granted. On appeal, Lopez contends that neither defendant is entitled to summary judgment. We affirm because the summary judgment evidence conclusively establishes appellees' entitlement to judgment as a matter of law on Lopez's premises liability claim.


         Freeport-McMoRan owned and operated the Charlotte #3H Well in Karnes County, Texas (the "Well"). Freeport-McMoRan contracted with Ensign to provide the Ensign 155 drilling rig (the "Rig") to drill the Well.

         Separately, Freeport-McMoRan contracted with Stratagraph, Inc. to provide mud logging services, which were support services necessary to drill the Well. The Master Service Contract between Freeport-McMoRan and Stratagraph recognized Stratagraph as an independent contractor, responsible for the supervision and control of its employees. Ensign had no contractual relationship with Stratagraph.

         Stratagraph employed Lopez as a mud logger. Lopez was assigned to work from May 2012 to July 2012, during which time he worked the night shift-from 6:00 p.m. to 6:00 a.m. As a mud logger, Lopez's duties generally entailed analyzing samples of drill cuttings collected at regular intervals. To collect the drill cuttings, Lopez would traverse a stairway on the Rig to access the shale shaker and collect the samples. He would then return to a Stratagraph trailer on site, which was located next to the Rig opposite the shale shaker, where he analyzed the cuttings. Lopez reported his findings to Freeport-McMoRan.

         During his shift on July 1, Lopez was injured when he fell down a stairway on the Rig. As Lopez was returning to the Stratagraph trailer after collecting a drill cutting, he fell when his hand slipped through a gap in the handrail on one side of the stairway. The stairway did not have a handrail on both sides.

         Lopez filed suit against Freeport-McMoRan and Ensign for personal injuries sustained in the fall. In his initial petition, Lopez asserted a negligence cause of action. He later filed an amended petition, in which he re-asserted an ordinary negligence claim but also added a premises liability cause of action in the alternative.[1]

         Freeport-McMoRan filed a traditional and no evidence motion for summary judgment. Tex.R.Civ.P. 166a(c), (i). As relevant here, Freeport-McMoRan asserted three general arguments in the motion. First, it argued that Lopez's cause of action sounded in premises liability only, as opposed to ordinary negligence, because his alleged injury arose from a condition on the premises as opposed to a negligently performed activity.[2] Second, it contended that Texas Civil Practice and Remedies Code Chapter 95 applied and compelled judgment for Freeport-McMoRan because Lopez could not meet the required elements of proof under that statute. Tex. Civ. Prac. & Rem. Code §§ 95.001-.004 (applicable to negligence claims asserted by independent contractors' employees brought against a property owner). Third, in the event Chapter 95 did not apply, Lopez's common law premises liability claim failed because Freeport-McMoRan had no duty to warn him of the gap in the handrail, which was not concealed.

         Ensign also filed a no evidence and traditional motion for summary judgment. In the no evidence portion of its motion, Ensign argued that Lopez had no evidence of each required element of a premises liability theory, and that Ensign owed no duty to Lopez. In its traditional motion, Ensign asserted, like Freeport-McMoRan, that it owed no duty to warn because the gap in the handrail was not concealed.

         The trial court granted summary judgment to both Freeport-McMoRan and Ensign without specifying the grounds on which it relied. This appeal followed.

         Standard of Review

         We review the trial court's grant of summary judgment de novo. Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). We take as true all evidence favorable to the nonmovant, accepting all reasonable inferences therefrom, and resolving doubt in the nonmovant's favor. Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 157 (Tex. 2004).

         Regarding traditional summary judgment, the movant has the burden to show there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. Tex.R.Civ.P. 166a(c); Joe, 145 S.W.3d at 157. If the movant establishes its right to judgment as a matter of law, the burden shifts to the nonmovant to present evidence raising a genuine issue of material fact. Ballard v. Arch Ins. Co., 478 S.W.3d 950, 953 (Tex. App.-Houston [14th Dist.] 2015, no pet.).

         In a no evidence motion for summary judgment, a party may move for summary judgment on the ground that there is no evidence as to one or more elements essential to a claim or defense on which the adverse party bears the burden of proof. Tex.R.Civ.P. 166a(i). To avoid summary judgment, the nonmovant must present evidence raising a genuine issue of material fact supporting each element contested in the motion. Tex.R.Civ.P. 166a(i); Timpte Indus., Inc. v. Gish, 286 S.W.3d 306, 310 (Tex. 2009).

         We do not consider as grounds for reversal issues not expressly presented to the trial court in response to a summary judgment motion. Tex.R.Civ.P. 166a(c); Tello v. Bank One, N.A., 218 S.W.3d 109, 118 (Tex. App.-Houston [14th Dist.] 2007, no pet.). Because the trial court did not specify the grounds for its ruling, we must affirm if any of the grounds presented to the trial court and preserved for appellate review has merit. Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 216 (Tex. 2003).


         In two issues, Lopez contends the trial court erred in granting summary judgment to Freeport-McMoRan and Ensign. We address the propriety of summary judgment as to each appellee separately.

         A. Freeport-McMoRan's Motion for Summary Judgment

         In his first issue, Lopez challenges the summary judgment granted to Freeport-McMoRan. Lopez contends that Chapter 95 does not apply to this case or there is a material fact question as to its application. See Tex. Civ. Prac. & Rem. Code §§ 95.001-.004. Lopez argues that common law premises liability principles govern his claim.

         1. Applicability of Texas Civil Practice & Remedies Code Chapter 95

         We begin our analysis by addressing whether Lopez's premises liability claim is governed by Chapter 95, as Freeport-McMoRan argues, or by the common law, as Lopez argues. We address this issue first because if Chapter 95 applies, it is Lopez's "sole means of recovery." See Abutahoun v. Dow Chem. Co., 463 S.W.3d 42, 51 (Tex. 2015). The difference between Chapter 95 and the common law is material for liability purposes because, when Chapter 95 applies to a negligence claim, it imposes more onerous evidence requirements to establish entitlement to recovery.[3] Like all issues of statutory construction, we review Chapter 95's applicability de novo. Id. at 46.

         Freeport-McMoRan had the burden to establish Chapter 95's applicability. Cox v. Air Liquide America, LP, 498 S.W.3d 686, 689 (Tex. App.-Houston [14th Dist.] 2016, no pet.); see Rueda v. Paschal, 178 S.W.3d 107, 111 (Tex. App.- Houston [1st Dist.] 2005, no pet.). Accordingly, we construe this part of its motion as a traditional motion for summary judgment. See Cox, 498 S.W.3d at 689.[4] A defendant proves Chapter 95 applies by presenting evidence conclusively establishing that all elements of section 95.002 have ...

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