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Morales v. Alcoa World Alumina LLC

Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg

May 17, 2018

RUSTY MORALES AND OLGA MARIE ORTIZ, Appellants,
v.
ALCOA WORLD ALUMINA L.L.C. AND STEPHEN ALVARADO, Appellees.

          On appeal from the 135th District Court of Calhoun County, Texas.

          Before Chief Justice Valdez and Justices Contreras and Hinojosa

          MEMORANDUM OPINION

          DORI CONTRERAS JUSTICE

         Appellants Rusty Morales and Olga Marie Ortiz sued appellees Alcoa World Alumina L.L.C. (AWA or Alcoa) and Stephen Alvarado, an AWA employee, after Morales suffered personal injuries in an industrial accident. The trial court granted summary judgment motions filed by AWA and Alvarado and dismissed the suit.

         On appeal, Morales and Ortiz raise two issues concerning the statutory defense available to property owners in suits brought by contractors under chapter 95 of the civil practice and remedies code. See Tex. Civ. Prac. & Rem. Code Ann. § 95.003 (West, Westlaw through 2017 1st C.S.). They argue that: (1) as a matter of law, the chapter 95 defense does not apply to their claims; and (2) even if it does apply, there are fact issues precluding summary judgment in favor of AWA. Morales and Ortiz also contend that the trial court erred in granting summary judgment to Alvarado because he is individually liable for his own negligence.

         We conclude that chapter 95 is applicable to the claims raised against AWA, but that summary judgment was improper as to both AWA and Alvarado because issues of material fact exist. We affirm in part and reverse and remand in part.

         I. Background

         Morales was an employed as a supervisor at Turner Industries Group, LLC (Turner), which was under contract to provide maintenance and repair services at AWA's alumina refining facility in Point Comfort, Texas. At the facility, raw bauxite dirt is refined through the "Bayer process" to produce pure aluminum oxide, or alumina. One of the steps of this process involves creating a solution of bauxite and sodium hydroxide called "process liquor, " then pumping that solution through pipes, or "risers, " to presses which filter the solution. Over time, the flow of process liquor in the risers causes solid residue to build up, and the risers must be periodically washed out with a cleaning solution known as "caustic." At the Point Comfort plant, AWA uses a system of solid and open "blinds"- circular pieces of steel inserted between flanges-to control the flow of caustic and process liquor in the various risers.

         On September 3, 2014, Morales was supervising a crew of Turner employees who were instructed by AWA to "swap out" blinds on two of the risers at the plant. At the time, riser number 27 was being washed with caustic while riser number 25 contained liquor. AWA hired Turner to, among other things, replace the solid blind on a pipe leading to riser 25 with an open blind that would allow caustic to flow into that riser. When two Turner employees unbolted a flange and removed the solid blind, they found that a hardened "pancake" of scale had formed behind the blind, completely obstructing the pipe. They used a jackhammer to remove the scale deposit. When the jackhammer broke through the scale, hot liquor sprayed out of the pipe and onto Morales, causing him to suffer severe burns on his back and his right arm.

         Morales and his wife Ortiz (collectively, Morales) sued AWA and Alvarado, contending among other things that they were negligent by failing to ensure that all of the liquor was cleared out of riser 25 before giving the Turner crew orders to begin their work. Morales further alleged that AWA had actual knowledge that the riser "was not isolated from the flow" of liquor.

         AWA, Alvarado, and Morales each filed summary judgment motions. In its motion, AWA asserted that it was entitled to judgment as a matter of law under chapter 95 of the civil practice and remedies code, which provides:

A property owner is not liable for personal injury, death, or property damage to a contractor, subcontractor, or an employee of a contractor or subcontractor who constructs, repairs, renovates, or modifies an improvement to real property, including personal injury, death, or property damage arising from the failure to provide a safe workplace unless:
(1) the property owner exercises or retains some control over the manner in which the work is performed, other than the right to order the work to start or stop or to inspect progress or receive reports; and
(2) the property owner had actual knowledge of the danger or condition resulting in the personal injury, death, or property damage and failed to adequately warn.

Tex. Civ. Prac. & Rem. Code Ann. § 95.003 (West, Westlaw through 2017 1st C.S.). AWA contended that there was no evidence that it controlled Turner's work or that it actually knew about the presence of hot liquor in riser number 25 at the time Morales was injured. In response, Morales argued that chapter 95 does not apply and, in the alternative, that there are fact questions as to the section 95.003 factors. See id. Morales also moved for partial summary judgment on grounds that chapter 95 does not apply. Alvarado's motion for summary judgment contended that there was no evidence that Alvarado owed or breached any duty to Morales apart from AWA's duty.

         After a hearing, the trial court granted AWA's and Alvarado's motions, denied Morales's motion, and rendered judgment that Morales take nothing by way of his suit. This appeal followed.

         II. Discussion

         A. Standard of Review and Applicable Law

         We review summary judgments de novo. Neely v. Wilson, 418 S.W.3d 52, 59 (Tex. 2013). AWA's motion raised traditional and no-evidence grounds; Alvarado's motion raised no-evidence grounds only; and Morales's motion raised traditional grounds only. Though the burden varies for traditional and no-evidence summary judgment motions, all parties brought forth summary judgment evidence; therefore, the differing burdens are immaterial and the ultimate issue is whether a fact issue exists. Id. (citing Buck v. Palmer, 381 S.W.3d 525, 527 & n.2 (Tex. 2012)); see Tex. R. Civ. P. 166a(c), (i). A fact issue exists, precluding summary judgment, if there is more than a scintilla of probative evidence to support the plaintiff's claim. Id. Evidence is more than a scintilla if it "rises to a level that would enable reasonable and fair-minded people to differ in their conclusions." Serv. Corp. Int'l v. Guerra, 348 S.W.3d 221, 228 (Tex. 2011). Evidence is less than a scintilla if it is "so weak as to do no more than create a mere surmise or suspicion that the fact exists." Regal Fin. Co. v. Tex Star Motors, Inc., 355 S.W.3d 595, 603 (Tex. 2010). We review the summary judgment evidence in the light most favorable to the non-movant, indulging every reasonable inference and resolving any doubts against the motion. City of Keller v. Wilson, 168 S.W.3d 802, 824 (Tex. 2005).

         When both sides move for summary judgment and the trial court grants one motion and denies the other, we review the summary judgment evidence presented by both sides, determine all questions presented, and render the judgment the trial court should have rendered. SeaBright Ins. Co. v. Lopez, 465 S.W.3d 637, 641-42 (Tex. 2015).

         As noted, chapter 95 of the Texas Civil Practice and Remedies Code provides that AWA is not liable for the personal injury of any independent contractor's employee who constructs, repairs, renovates, or modifies an improvement to real property unless AWA: (1) exercised or retained some control over the manner in which the work was performed, other than the right to order the work to start or stop or to inspect progress or receive reports; and (2) had actual knowledge of the danger or condition resulting in the personal injury and failed to adequately warn. Tex. Civ. Prac. & Rem. Code Ann. § 95.003. Chapter 95 is applicable only to a claim:

(1) 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; and
(2) 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.

Id. § 95.002 (West, Westlaw through 2017 1st C.S.). Chapter 95 applies "to all negligence claims that arise from either a premises defect or the negligent activity of a property owner or its employees." Abutahoun v. Dow Chem. Co., 463 S.W.3d 42, 50 (Tex. 2015).

         The property owner has the burden to establish that chapter 95 applies to the plaintiff's claim. See Gorman v. Ngo H. Meng, 335 S.W.3d 797, 802 (Tex. App.-Dallas 2011, no pet.); Rueda v. Paschal, 178 S.W.3d 107, 111 (Tex. App.-Houston [1st Dist.] 2005, no pet.). Once the defendant has shown that chapter 95 applies to the claim, the plaintiff has the burden to establish both prongs of section 95.003. Gorman, 335 S.W.3d at 802-03; Rueda, 178 S.W.3d at 111.

         B. Summary Judgment Evidence

         In support of its summary judgment motion, AWA produced evidence including a copy of the contract between AWA and Turner which was in effect at the time of the accident. The contract provides that Turner is an independent contractor and that AWA "disclaims any right to control the manner of performance by [Turner] and [AWA] will not control the manner of performance by [Turner]."

         AWA also produced a transcript of Morales's deposition, in which he testified that he was supervising two Turner employees, Leo Gayton and Dominick Cano, at the time of the accident. Morales stated that he was responsible for ensuring that Turner's safety rules were followed as they applied to Gayton and Cano. Morales acknowledged that he signed a "Tagout/Lockout Verification" form showing that he visually inspected the line to ensure that it was clear. He also signed a "Job Safety Analysis" worksheet indicating that "Line of Fire" was one of the "potential risks" involved in the job.

          While Gayton and Cano were removing bolts from flanges to access the pipe leading to riser 25, Morales went to Turner's trailer to get water for Gayton and Cano, and he then came back to the work site to see that the crew was using a jackhammer on the scale deposit. Shortly thereafter, process liquor sprayed out and hit Morales from behind, causing him to fall forward. He then ran to a safety shower. His burns were extensive enough that he had to be airlifted to San Antonio for skin graft surgery to be performed.

         Morales testified that he had been fully informed as to the hazards involved in working with materials such as Bayer process liquor, and, according to his training, a full Tyvek chemical suit with face protection is required to be worn when working on a live line or a line that cannot be isolated. Gayton and Cano were wearing face shields and chemical protective suits at the time of the accident. Morales was not wearing such protection, however, because he was only supervising, not doing the job himself. Morales did not set up a barricade around the work area because the area was congested and tight, and he did not think a barricade was necessary.

         When Morales was asked whether anyone from AWA told Gayton and Cano "how to jackhammer out that scale, " Morales stated: "I'm not sure. Alvarado was there the whole time. He could have. . . . He pointed some things out to them." Morales later clarified that he did not witness Alvarado give Gayton or Cano any instructions as to how to open the line or use the jackhammer, and he did not know of any evidence that AWA personnel knew that riser 25 contained process liquor at the time Gayton or Cano were working on it.

         AWA's maintenance supervisor Jeffrey McCaskill stated in deposition testimony that he walked through the job with Morales at around 9:00 a.m. and hung the work permit at around 10:30 a.m. Initially, McCaskill informed Morales that the risers were not ready to be worked on because he had not yet verified that they had been fully drained. He stated that he and Alvarado opened the drain connected to risers 25 and 27 in order to drain them of any remaining liquor. When AWA employee Rudy Pena attempted to hook up a hose to the drain, liquor sprayed out onto Pena's face. Pena immediately went to the safety shower to rinse but did not suffer any burns. McCaskill attributed this incident to a "bad gasket" and stated that it did not indicate that there was a problem with the valve that would allow process liquor into the riser. After returning from taking Pena to get medical care as a precaution, McCaskill saw that the "the drain line to number 25 press riser was coming out full force, " indicating that the valve was not properly seated, which McCaskill also said was normal. The valve was then replaced.

         McCaskill conceded that he did not ensure that the line was flushed with water, but he stated that this was not required by AWA procedures because "open[ing] the drain" and observing the flow stop is "a form of verification on our lockout/tagout procedure." He opined that the accident involving Morales occurred because the valve was leaking and because Morales was in the "line of fire" without wearing protective equipment. McCaskill stated that Turner has safety and protective equipment requirements in addition to those set by AWA, and that "most of" the requirements were "for them to decide." He speculated that the valve leak was caused by scale breaking off and plugging the valve after he had verified it was clear, though he had not seen or heard of this type of incident happening before.

         McCaskill stated that each of the dozens of risers at the facility are scheduled to be washed out with caustic once annually. He agreed with Morales's counsel that Turner employees are required to follow specific directions for their assigned tasks, including the flange break that was done here. When asked whether Turner employees are "free to ignore the Alcoa way to do things and do it their own way, " McCaskill replied "No."

         The summary judgment evidence produced by Morales included a twelve-page "Standard Work Instruction" (SWI) form containing detailed guidelines on how AWA's contractors must perform flange breaks at the Point Comfort plant. The SWI form contains a numbered list of safety items including: "Wear standard Personal Protective Equipment (PPE): Hardhat, safety-toed foot wear, goggles, appropriate gloves, hearing protection, long sleeve shirt and DAP on self. Additional PPE if verification cannot be performed is chemical suit, chemical gloves, rubber boots and face shield."[1] The form also contains a numbered list describing the procedure to be used for unbolting flanges, including the exact order in which particular bolts are supposed to be removed. The list includes the following items:

3. VERIFY system has been flushed with water by witnessing flushing & draining of system. If verification cannot be performed, additional PPE with standard PPE must be worn. If verification as defined in this document cannot be performed a Flange Break Permit must be completed and authorized by the ...

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