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Barfield v. SandRidge Energy, Inc.

Court of Appeals of Texas, Eighth District, El Paso

December 6, 2019

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,
v.
SANDRIDGE ENERGY, INC., AND JOSE PEPE SAENZ, Appellees.

          Appeal from the 109th District Court of Andrews County, Texas (TC# 19145)

          Before Alley, C.J., Rodriguez, and Palafox, JJ.

          OPINION

          GINA M. PALAFOX, JUSTICE.

         John 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[1] 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 and remand.

         BACKGROUND [2]

         On the 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 OTI.

         Pursuant 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.

         On 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.

         Responding 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.

         Following 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.

         Independent 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 deposed.

         Responding 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 SandRidge.

         By 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.

         DISCUSSION

         On 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.[3] 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.

         Standard of Review

         We 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.

         In a 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. 1995).

         In 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.

         Liability pursuant to Chapter 95

         We 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.

         In 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.

         Here, 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).

         Despite 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.

         A. Section 95.003's Control Requirement

         Given 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).

         Texas 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.).

         Applying 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. Id.

         The 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. Id.

         Here, 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.

         As 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.

         On 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 ...

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