Court of Appeals of Texas, Eighth District, El Paso
JOHN BARFIELD AND TANA BARFIELD, WIFE, INDIVIDUALLY, AND JOHN BARFIELD AND TANA BARFIELD AS NEXT FRIENDS OF C. B. AND K. B., MINOR CHILDREN, Appellants,
SANDRIDGE ENERGY, INC., AND JOSE PEPE SAENZ, Appellees.
from the 109th District Court of Andrews County, Texas (TC#
Alley, C.J., Rodriguez, and Palafox, JJ.
M. PALAFOX, JUSTICE.
Barfield and his wife, Tana Barfield, challenge the trial
court's order granting summary judgment in favor of
SandRidge Energy, Inc. (SandRidge). In a suit based on
premises liability, John Barfield alleged he was
electrocuted while working for an independent contractor on
an improvement located on property owned and controlled by
SandRidge. On appeal, Barfield argues that he carried his
burden to produce evidence raising genuine issues of material
fact to preclude judgment as a matter of law on the statutory
elements required to impose liability on a property owner
pursuant to chapter 95 of the Texas Civil Practice and
Remedies Code. See Tex. Civ. Prac. & Rem. Code
Ann. §§ 95.001 - .004. Finding error, we reverse
occasion in question, SandRidge operated oil and gas leases
in Andrews County, Texas, as an energy-production company.
Additional to owning property and improvements thereon,
SandRidge owned the substation and distribution lines on its
property which provided electrical power to its operations.
SandRidge hired OTI Electrical Services, LLC (OTI), to modify
a series of distribution lines attached to electrical poles
on the property. Barfield worked as a lineman employed by
to a master services agreement, OTI performed electrical work
for SandRidge that generally involved the building of power
lines to support new wells drilled on its property. Barfield
was assigned to work on the lease known as the SandRidge
Miles Terry Steven #10 located on a portion of property
referred to as the Arena Field. For SandRidge, electrical
engineer Jose "Pepe" Saenz was assigned to
supervise the work of Barfield and the other OTI crewmembers
working in the field.
January 11, 2012, Barfield was performing electrical work
that included modifications to a distribution line that
supplied electrical power to a series of wells when he
sustained an injury that caused severe burns to his body.
Barfield was working high above ground in a bucket-
performing his work within four feet or so of an energized
distribution line-removing "hot taps" to
de-energize transformers. In his live pleading, Barfield
alleged he sustained an electrical shock that rendered him
unconscious and caused burns to both arms that were so severe
that his left arm was amputated at the shoulder and his right
arm was amputated at his forearm. Barfield alleged these
injuries occurred because SandRidge and Saenz had
"imposed a procedure on OTI to work on the energized
end-bank pole of the distribution line which supplied power
to pump jacks on the well site." Barfield claimed that
SandRidge and Saenz would not "de-energize" their
lines before electrical work was performed. Instead, he
alleged, that SandRidge and Saenz required OTI and its
employees to work on and around a live energy source in
direct contravention of the safe work practices and
regulatory requirements applicable not only to
SandRidge's own employees but also to employees of its
contractors. Barfield claimed he was informed "that
'de-energizing' the line would take multiple wells
offline until the work was completed with resultant loss of
production." Barfield alleged his injuries were caused
by the negligence of both SandRidge and Saenz individually.
Invoking chapter 95 of the Texas Civil Practice and Remedies
Code, Barfield asserted that SandRidge was liable for
personal injuries based on the facts alleged given that
SandRidge exercised control over the manner in which his work
was performed on its property, that it had actual knowledge
of a danger or condition existing on the property, and that
it failed to adequately warn him of the same. See
Tex. Civ. Prac. & Rem. Code Ann. § 95.003.
to Barfield's suit, both SandRidge and Saenz generally
denied Barfield's allegations while additionally
asserting several affirmative defenses. Among defenses, both
defendants asserted that Barfield's action against them
failed pursuant to section 95.003 of the Texas Civil Practice
and Remedies Code. See id. § 95.003. Based on
proportionate responsibility, SandRidge and Saenz
additionally asserted that Barfield's own negligence was
the proximate cause of the occurrence in question and
resulting damages. See Tex. Civ. Prac. & Rem.
Code Ann. §§ 33.001-.003.
a period of discovery, SandRidge and Saenz jointly filed a
hybrid motion for summary judgment combining both traditional
and no-evidence grounds pursuant to the Texas Rules of Civil
Procedure. See Tex. R. Civ. P. 166a(c) and (i).
Pursuant to chapter 95, SandRidge argued it was entitled to
judgment as a matter of law based on four grounds. First,
that SandRidge did not owe a duty to warn Barfield or his
employer about the allegedly dangerous condition on its
premises (i.e. the presence of energized lines at the poles
where Barfield was working as an independent contractor)
because the evidence conclusively established that Barfield
and OTI knew about this condition. Second, even if SandRidge
owed a duty to warn Barfield about the energized poles, the
evidence conclusively established that SandRidge did not fail
to adequately warn Barfield of this condition as he admitted
that he and OTI knew they were working on energized poles.
Third, that SandRidge did not have actual knowledge of any
other allegedly dangerous condition on its premises that may
have resulted in Barfield's injuries, to wit: that the
maximum voltage in the lines was higher than expected due to
the structure of the poles. Fourth, that SandRidge did not
exercise or retain control over the manner in which Barfield
or OTI performed their work.
of SandRidge, Saenz argued that he was entitled to judgment
as a matter of law because he was acting solely within the
scope of his employment. Moreover, Saenz asserted he did not
owe a duty to Barfield given that he did not own or control
the premises at issue, nor did he engage in any
contemporaneous activity that caused Barfield's injury.
Both SandRidge and Saenz included summary judgment evidence
in support of their motions to include the master services
agreement between SandRidge and OTI, certain documents
produced in discovery, and testimony from witnesses who were
with his own evidence, Barfield asserted he raised issues of
fact precluding judgment as a matter of law as to the
statutory elements required by chapter 95 to impose liability
upon SandRidge, under limited conditions, for an alleged
failure to provide a safe workplace. In its entirety,
however, Barfield's response focused solely on the
liability of SandRidge without contesting Saenz'
independent assertion that he owed no duty of care to
Barfield given he had merely worked as an employee of
written order, the trial court granted the motions for
summary judgment of both SandRidge and Saenz without
providing explanation. Subsequently, Barfield filed a motion
for reconsideration and a motion for new trial, which the
trial court later denied. Thereafter, Barfield filed a timely
appeal of the trial court's order.
appeal, Barfield raises two issues challenging the trial
court's grant of summary judgment in favor of SandRidge.
Simultaneously, however, he abandons the related challenge he
asserted against the judgment granted in favor of
Saenz. Barfield seeks reversal of the trial
court's grant of summary judgment on the basis that
SandRidge owed a duty to make its premises safe given that
(1) SandRidge had actual knowledge of the hazard of
Barfield's necessary work in close proximity to energized
power lines, (2) SandRidge failed to adequately warn, and (3)
SandRidge exercised "some control" over how
Barfield and OTI performed their work. Barfield essentially
argues he met the evidentiary burden of chapter 95 to raise
issues of fact on whether the limited conditions of the
statute were satisfied to impose liability on SandRidge for
an alleged failure to make its premises safe. Being that both
issues are intertwined with statutory requirements, we
consider them together for brevity.
review a trial court's summary judgment de novo.
Valence Operating Co. v. Dorsett, 164 S.W.3d 656,
661 (Tex. 2005); Chappell v. Allen, 414 S.W.3d 316,
322 (Tex. App.-El Paso 2013, no pet.). A party seeking
summary judgment may move for both a traditional and a
no-evidence summary judgment. Binur v. Jacobo, 135
S.W.3d 646, 650 (Tex. 2004); see Tex. R. Civ. P.
166a(c), (i). When a party has sought summary judgment on
both grounds, we typically review the propriety of the
summary judgment under the no-evidence standard first.
See Merriman v. XTO Energy, Inc., 407 S.W.3d 244,
248 (Tex. 2013). We review no-evidence motions under the same
legal sufficiency standard as a directed verdict.
Id. Under this standard, the nonmovant has the
burden to produce more than a scintilla of evidence to
support each challenged element of its claims. Id.
traditional motion, the movant has the burden to show there
is no genuine issue of material fact and the movant is
entitled to judgment as a matter of law. Tex.R.Civ.P.
166a(c). Lightning Oil Co. v. Anadarko E&P Onshore,
LLC, 520 S.W.3d 39, 45 (Tex. 2017). A defendant is
entitled to summary judgment if it conclusively negates at
least one essential element of the cause of action asserted
against it by the plaintiff. Frost Nat'l Bank v.
Fernandez, 315 S.W.3d 494, 508 (Tex. 2010). A matter is
conclusively established if reasonable people could not
differ as to the conclusions to be drawn from the evidence.
See City of Keller v. Wilson, 168 S.W.3d 802, 816
(Tex. 2005). If the movant meets its burden, the burden then
shifts to the nonmovant to raise a genuine issue of material
fact precluding judgment as a matter of law. See Centeq
Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex.
reviewing either type of summary judgment motion, we view the
evidence "in the light most favorable to the nonmovant,
crediting evidence a reasonable jury could credit and
disregarding contrary evidence and inferences unless a
reasonable jury could not." Merriman, 407
S.W.3d at 248. Where the summary judgment order fails to
specify the grounds upon which the trial court relied for its
ruling, we may affirm the judgment if any of the grounds
advanced are meritorious. Vasquez v. S. Tire Mart,
LLC, 393 S.W.3d 814, 817 (Tex. App.-El Paso 2012, no
pet.). With its hybrid motion, SandRidge argued it owed no
duty to Barfield to provide a safe workplace based upon the
liability protection afforded to a property owner by chapter
95 of the Civil Practice and Remedies Code. See Tex.
Civ. Prac. & Rem. Code Ann. § 95.003. In countering,
Barfield argued it met the evidentiary burden required of
chapter 95 for an exception to liability protection to apply
to the circumstances. Because SandRidge and Barfield
essentially relied on the same evidence for each motion type,
we follow suit.
pursuant to Chapter 95
begin with the parties' general agreement that chapter 95
of the Civil Practice and Remedies Code governs this
negligence suit based on premises liability. See id.
§§ 95.002, 95.003. First, section 95.002 limits the
chapter's application to certain prescribed claims.
Id. § 95.002. For the chapter to apply, the
claim must be filed "(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. Second, when applicable to the
circumstances, a claimant must satisfy two conditions to
impose liability on a property owner for failing to provide a
safe workplace. Id. § 95.003. To impose
liability, the claimant must establish that: "(1) the
property owner exercise[d] or retain[ed] 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) 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." Id. § 95.003.
short, chapter 95 relates to limitations on a property
owner's liability for injury, death, or property damage,
to employees of independent contractors and other named
parties, when such injury or damage arises from constructing,
repairing, renovating, or modifying, an improvement to real
property. Abutahoun v. Dow Chem. Co., 463 S.W.3d 42,
43 (Tex. 2015). Construing chapter 95, the Texas Supreme
Court described sections 95.002 and 95.003, respectively, as
being "the heart of the chapter."
Abutahoun, 463 S.W.3d at 46 (citing Tex. Civ. Prac.
& Rem. Code Ann. §§ 95.002 and .003). Thus,
Abutahoun observed that when conditions of section
95.002 are satisfied, a claimant's sole means of recovery
requires satisfaction of both prongs of section 95.003.
Id. at 51.
the parties readily agree that the evidence established that
chapter 95 applies to Barfield's claim. See id.
§ 95.002. First, there is no dispute that SandRidge was
the owner of the improvements on which Barfield worked at the
time he sustained his injuries. The evidence established that
SandRidge owned and controlled the distribution line, poles,
substation, and worksite where Barfield worked. Second, the
master services agreement established a contractual
relationship between SandRidge and OTI and expressly provided
that OTI was hired to work for SandRidge as an independent
contractor. As an employee of OTI, Barfield performed work
that modified the electrical poles and power lines located on
SandRidge's property. Given these circumstances, the
parties agree, and we so hold, that chapter 95 generally
governs Barfield's claim of personal injury against
SandRidge based on premises liability. See §
95.002(1) and (2); see also Abutahoun, 463 S.W.3d at
50-51; Painter v. Momentum Energy Corp., 271 S.W.3d
388, 398 (Tex. App.-El Paso 2008, pet. denied) (chapter 95
applies to a premises-liability claim where the injury arises
from work being done on an improvement).
reaching agreement on applicability, however, the parties
heavily dispute whether the summary judgment record
conclusively established that SandRidge was protected from
liability by the terms of the statute, or whether issues of
material fact were raised by Barfield regarding the exception
to such protection. See id. § 95.003. As stated
earlier, a property owner is protected from liability when
chapter 95 applies unless two distinct conditions are
established: (1) that the property owner exercised or
retained control over the manner in which the employee
performed his work; and (2) the property owner had actual
knowledge of the danger or condition resulting in the injury
and failed to adequately warn. See id. §
95.003(1) and (2). Here, Barfield asserts that he met the
evidentiary burden required to raise issues of fact as to
whether SandRidge could be held liable for damages arising
from a failure to provide a safe workplace. See id.
§ 95.003. Countering, SandRidge contends there was no
evidence that it exercised or retained control over the work
performed by OTI or Barfield, and that it conclusively
established that it owed no duty to warn Barfield given that
OTI and Barfield actually knew about the dangerous condition
on its property.
Section 95.003's Control Requirement
the parties' dispute on liability, we begin with the
first prong of the statute-the requirement of "some
control." Barfield contends he raised a fact issue as to
whether SandRidge had exercised or retained control over the
manner of his work at the time he was injured. Section 95.003
requires that Barfield establish that SandRidge
"exercise[d] or retain[ed] 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[.]" Id. § 95.003(1).
courts have interpreted the requirement of "some
control" as codifying the Texas Supreme Court's
holding in Redinger v. Living, Inc., which adopted
the rule enunciated in section 414 of the Restatement
(Second) of Torts. See Dyall v. Simpson Pasadena Paper
Co., 152 S.W.3d 688, 699 (Tex. App.-Houston [14th Dist.]
2004, pet. denied) (citing Redinger v. Living, Inc.,
689 S.W.2d 415, 418 (Tex. 1985)); see also Torres v.
Chauncey Mansell & Mueller Supply Company, 518
S.W.3d 481, 491-92 (Tex. App.-Amarillo 2017, pet. denied)
("This level of control is a mere iteration of the
control required by our common law when one attempts to
impose liability upon a property owner for injuries suffered
by a subcontractor."); Hernandez v. Amistad Ready
Mix, Inc., 513 S.W.3d 773, 776 (Tex. App.-San Antonio
2017, no pet.); Garcia v. Apache Corp., No.
11-17-00077-CV, 2019 WL 613718, at *3 (Tex. App.-Eastland
Feb. 14, 2019, no pet.) (mem. op.).
the common law, Redinger adopted the standard that
"[o]ne who entrusts work to an independent contractor,
but who retains the control of any part of the work, is
subject to liability for physical harm to others for whose
safety the employer owes a duty to exercise reasonable care,
which is caused by his failure to exercise his control with
reasonable care." Redinger, 689 S.W.2d at 418.
"This rule applies when the employer retains some
control over the manner in which the independent
contractor's work is performed[ ] but does not retain the
degree of control which would subject him to liability as a
master." Id. When a property owner exercises
some control over a subcontractor's work, he or she may
be liable under the common law unless reasonable care is
exercised in supervising the subcontractor's activity.
type of control needed is more than a general right to order
the work stopped or started, to inspect its progress or to
receive reports, to make suggestions or recommendations which
may be ignored, or to prescribe alterations and deviations in
the work. Fifth Club, Inc. v. Ramirez, 196 S.W.3d
788, 791-92 (Tex. 2006) (citing Koch Ref. Co. v.
Chapa, 11 S.W.3d 153, 155 (Tex. 1999)). The property
owner becomes liable only if it controls the details or
methods of the independent contractor's work to such an
extent that the contractor is not entirely free to do the
work in his own way. Ramirez, 196 S.W.3d at 792;
Chapa, 11 S.W.3d at 155 (quoting Restatement
(Second) of Torts § 414 cmt. c (1965));
Painter, 271 S.W.3d at 406 (citing Bell v. VPSI,
Inc., 205 S.W.3d 706, 719 (Tex. App.-Fort Worth 2006, no
pet.) (the right of control must extend to the operative
details of the subcontractor's work)). The retention of a
right to control an aspect of an independent contractor's
work so as to give rise to a duty of care may be shown by
either a contractual right or by the actual exercise of
control. Lee Lewis Const., Inc. v. Harrison, 70
S.W.3d 778, 783 (Tex. 2001). The determination of what a
contract says is generally a question of law for the court.
Id. But a determination of whether a party exercised
actual control is generally a question of fact for the jury.
Barfield asserts that more than a scintilla of evidence
established that he and OTI were not free to perform their
work entirely in their own way due to SandRidge exercising
control over the detail of whether power lines in close
proximity remained energized while they worked. Barfield
contends that SandRidge's electrical inspector, Jose
"Pepe" Saenz, required Barfield to perform his work
in close proximity to the energized lines, otherwise known as
performing "hot" work, despite written policies
prohibiting such work except under narrowly defined
circumstances that were not then applicable. Barfield further
asserts that he and OTI requested that lines be de-energized,
but Saenz refused.
evidence, Barfield not only produced his own deposition, he
also produced testimony from several other witnesses to
include (1) Mike Lawson, his boss at OTI, (2) Jose
"Pepe" Saenz, SandRidge's electrical supervisor
assigned to supervise the area where Barfield worked, (3)
Mark Sutherland, SandRidge's liability expert, and (4)
Richard Sosa, SandRidge's Vice-President of Power
Systems. Barfield also produced other discovery materials on
which he relies to include applicable safety rules and
practices of SandRidge, which OTI contractually agreed it
would follow, as well as safety work practices of SandRidge
which were then in effect and on which workers were trained.
review, we note that Michael Lawson, owner of OTI, testified
that everyone at OTI knew they were required to follow
SandRidge's safety policies while working on leases and
equipment of SandRidge. Indeed, the master services agreement
provided that "[OTI] warrants that it will be subject to
and cause [OTI's] employees, agents, representatives,
subcontractors and others under [OTI's] control during
the performance of the Work or in connection therewith to be
subject to all applicable safety, health and environmental
rules and all applicable provisions of national, state or
local safety, health and environmental laws, rules,
regulations or orders." Related to OTI's contractual
obligation, Barfield included applicable safety practices of
SandRidge on which he relies to meet his evidentiary burden.
Relevant safety practices provided as follows:
7. Safety-related Work Practices
Safety-related work practices must be employed to prevent
electric shock or other injuries resulting from either direct
or indirect electrical contacts when work is performed near
or on equipment or circuits that are or may be
energized. The specific safety-related work practices,
as it applies to the work at hand, must be consistent with