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Los Compadres Pescadores, L.L.C. v. Valdez

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

June 20, 2019


          On appeal from the County Court at Law No. 2 of Cameron County, Texas.

          Before Chief Justice Contreras and Justices Benavides and Longoria



         Appellant Los Compadres Pescadores, L.L.C. (Los Compadres) appeals a final judgment in favor of appellees Juan G. Valdez and Alfredo Teran. By seven issues, Los Compadres contends that the judgment awarding appellees damages for personal injuries should be reversed because: (1) Chapter 95 of the Texas Civil Practice and Remedies Code applies to appellees' suit (issue one); (2) there was no jury finding as required by Chapter 95 that Los Compadres had actual knowledge of the danger or condition that resulted in appellees' injuries or that Los Compadres had control over appellee's work (issues two and three); (3) there was no jury question supporting a finding that Los Compadres was liable under an agency theory (issue four); appellees were aware of the danger so Los Compadres cannot be held liable for the failure to warn (issue five); and (5) the evidence is legally and factually insufficient under Chapter 95 to support a finding of causation (issues six and seven). See Tex. Civ. Prac. & Rem. Code Ann. § 95.002. We affirm.

         I. Background

         Los Compadres hired Luis Torres to supervise and coordinate the construction of condominiums on South Padre Island and Luis Robert Paredes Jr., doing business as Paredes Drilling Co., to perform specialty drilling work required to dig the foundation piers for the condominiums.[1] Paredes hired both appellees and Ricardo Gallin, a non-party, to assist with the drilling work on the property.

         According to Paredes, he usually works from the back of a property to the front when performing the drilling work; however, in this case Torres asked him to begin in the front of the property due to an energized power line hanging overhead in the back portion of the property located on an easement. Paredes stated that Torres told him to work around the line, and he did so. Paredes testified that he asked Torres about the power line, and Torres told him that he "was going to talk to AEP about it."[2] Specifically, Paredes testified that Torres said, "I'm going to take care of it. I'll talk to them." Subsequently, Paredes said that he saw Torres on the worksite "with somebody from AEP." Paredes stated, "I wasn't in the conversation, but after Torres walked towards me, I said, 'Are we good to go?' And he said, 'Yes, go ahead and go.'" Torres testified that Paredes "said he was going to take care of the line"; however, on the date of the incident, the line had not been de-energized.

         According to Paredes, on February 10, 2010, the date of the accident, Torres was not present; however, Torres's brother was there.[3] Paredes remembered talking to Torres on his cell phone and on Torres's brother's cell phone, and Torres informed him that AEP would not be de-energizing the power line. According to Paredes, Torres instructed him to "go forward that day, even though the lines weren't de-energized." Paredes also stated, "He [Torres] didn't tell me whether [the line] was de-energized or energized, he just told me that-you know, it was-I knew it was there and I knew he had told me to go . . . forward."

         Paredes, appellees, and Gallin dug a hole approximately ten feet from the power line. The men poured cement into the hole and used a metal rebar to push air pockets out of the concrete. Appellees assisted Paredes with lifting and maneuvering the rebar because it was heavy. While the men maneuvered the rebar, it contacted the power line and the men were electrocuted. Paredes and appellees were thrown back, knocked unconscious, and sustained burns. Appellees were transported to the hospital and treated for their injuries.

         Appellees sued Los Compadres for premises liability and negligence, alleging that Los Compadres' agent, acting in the course and scope of employment, was guilty of the following negligent conduct: (1) failing to notify the operator of the electrical line (AEP) at least forty-eight hours before the work began in violation of Chapter 752.003(a) of the Texas Health and Safety Code; (2) failing to negotiate a satisfactory mutual arrangement to provide temporary de-energization and grounding or temporary relocation of the line in violation of Chapter 752.003(b) of the Texas Health and Safety Code; and (3) performing a function or activity on land when it was not safe to do so, thereby causing appellees' injuries in violation of Chapter 752.004 of the Texas Health and Safety Code. See Tex. Health & Safety Code Ann. §§ 752.003, 752.004.

         The jury found that Los Compadres was 50% negligent and that Paredes and AEP were each 25% negligent in causing appellees' injuries. The trial court ordered Los Compadres to pay Valdez $96, 983.51 in damages and pre-judgment interest and to pay Teran $52, 011.57 in damages and pre-judgment interest. Because appellees settled with AEP, the trial court gave Los Compadres and Paredes settlement credits of $17, 700 for Valdez and $7, 300 for Teran. This appeal followed.

         II. Applicable Law

         "Chapter 95 enunciates a general rule of non-liability for property owners when a contractor or subcontractor or an employee of a contractor or subcontractor is injured while performing repairs or construction." Rosa v. Mestena Operating, LLC, 461 S.W.3d 181, 182-87 (Tex. App.-San Antonio 2014, pet. denied). The property owner has the initial burden to establish that Chapter 95 applies. Montoya v. Nichirin-Flex U.S.A., Inc., 417 S.W.3d 507, 511 (Tex. App.-El Paso 2013, no pet.). A property owner establishes that Chapter 95 applies if the plaintiff's claim is for personal injury 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. Once the property owner establishes that Chapter 95 applies, the burden shifts to the plaintiff to establish that the property owner (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, death, or property damage and failed to adequately warn the plaintiff of that danger or condition. Id.

         Chapter 95 is the plaintiff's sole means of recovery if it applies. Ineos USA, LLC v. Elmgren, 505 S.W.3d 555, 561 (Tex. 2016). "Chapter 95 only applies when the injury results from a condition or use of the same improvement on which the contractor (or its employee) is working when the injury occurs." Id. at 567 (emphasis added).

         III. Chapter 95

         By its first issue, Los Compadres contends that we must recognize that Chapter 95 applies.

         As we understand it, Los Compadres first generally argues that appellees' claims are governed by Chapter 95 because the Texas Supreme Court has construed Chapter 95's "condition or use" language to mean that Chapter 95 applies to both premises liability and negligence claims against a property owner. We agree with Los Compadres that 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.'" Torres v. Chauncey Mansell & Mueller Supply Co., 518 S.W.3d 481, 486 (Tex. App.-Amarillo 2017, pet. denied). However, as further explained below, for Chapter 95 to apply, a property owner must first establish that the plaintiff's injury was caused by the same improvement the plaintiff was constructing, repairing, renovating, or modifying when the injury occurred. Ineos USA, LLC, 505 S.W.3d at 567. Thus, although this case involves negligence claims and Los Compadres is the property owner, our analysis does not end there.[4] See id.

         Los Compadres had the initial burden to establish that Chapter 95 applies by showing that (1) Los Compadres is a property owner, (2) appellees alleged that Los Compadres is liable for personal injury, (3) appellees were employees of a contractor or subcontractor, and (4) appellees' claims arise from a condition or use of an improvement to Los Compadres' property where the contractor or subcontractor was constructing, repairing, renovating, or modifying the improvement. See Montoya, 417 S.W.3d at 511. Although, Los Compadres states in its brief that there is no dispute as to the first three elements, it does not specifically state that appellees were constructing, repairing, renovating, or modifying an improvement when the injury occurred.[5] See id.

         Nonetheless, Los Compadres cites Torres-a case that has similar facts. In Torres, the appellant was electrocuted when the handle of a bull float he was using to smooth freshly poured cement in a parking lot touched an electrical line that was hanging overhead. 518 S.W.3d at 484. The trial court granted summary judgment in favor of the property owner, and the appellate court affirmed, holding in relevant part, that Chapter 95 applied because the power line was part of the workplace, which the court concluded must be considered when determining whether Chapter 95 applies. Id. at 485. The Torres court relied on Ineos and disavowed Hernandez v. Brinker International, Inc., 285 S.W.3d 152, 157-58 (Tex. App.-Houston [14th Dist.] 2009, no pet.) (plurality op.), even though the Ineos court cited Hernandez approvingly and relied upon to hold that Chapter 95 only applies if the injured plaintiff was constructing, repairing, renovating, or modifying the same improvement that caused the injury. [6] Ineos USA, L.L.C., 505 S.W.3d at 567; Torres, 518 S.W.3d at 484.

         The Ineos court adopted the Hernandez analysis. See 505 S.W.3d at 567. In Hernandez, the appellant was hired to fix an air conditioning unit, and while he carried a compressor either walking to the unit or away from it, the roof where the unit was located collapsed, causing the appellant's injury. 285 S.W.3d at 154. The property owner filed a motion for summary judgment claiming that Chapter 95 barred the plaintiff's recovery because the ...

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