Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg
appeal from the County Court at Law No. 2 of Cameron County,
Chief Justice Contreras and Justices Benavides and Longoria
CONTRERAS, CHIEF JUSTICE
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.
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. Paredes hired
both appellees and Ricardo Gallin, a non-party, to assist
with the drilling work on the property.
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." 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.
to Paredes, on February 10, 2010, the date of the accident,
Torres was not present; however, Torres's brother was
there. 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 . . .
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.
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.
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.
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.
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
first issue, Los Compadres contends that we must recognize
that Chapter 95 applies.
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. See id.
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. See id.
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.  Ineos USA, L.L.C., 505 S.W.3d at
567; Torres, 518 S.W.3d at 484.
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