Appeal from the 281st District Court Harris County, Texas
Trial Court Cause Nos. 2014-21405 and 2014-21405A
consists of Justices Jamison, Wise, and Jewell.
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
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.
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.
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
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
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.
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. 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
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.
trial court granted summary judgment to both Freeport-McMoRan
and Ensign without specifying the grounds on which it relied.
This appeal followed.
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).
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).
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).
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
Freeport-McMoRan's Motion for Summary Judgment
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.
Applicability of Texas Civil Practice & Remedies Code
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. Like all issues of statutory
construction, we review Chapter 95's applicability de
novo. Id. at 46.
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. A defendant proves Chapter
95 applies by presenting evidence conclusively establishing
that all elements of section 95.002 have ...