Court of Appeals of Texas, Fourth District, San Antonio
the 365th Judicial District Court, Dimmit County, Texas Trial
Court No. 14-05-12283-DCV-AJA Honorable Amado J. Abascal,
III, Judge Presiding.
Sitting: Sandee Bryan Marion, Chief Justice Rebeca C.
Martinez, Justice Luz Elena D. Chapa, Justice.
C. Martinez, Justice.
Vela sued Murphy Exploration & Production Company-USA
("Murphy") and Nabors Drilling Technologies, Inc.
("Nabors") under a premises liability theory and
for gross negligence after he suffered personal injuries
while working for T-Force Energy Services, Inc.
("T-Force") at an oil well site that was owned and
operated by Murphy. Nabors owned a drilling rig on
Murphy's well site. Murphy and Nabors each filed
traditional and no-evidence motions for summary judgment,
which the trial court granted. On appeal, Vela contends
neither defendant was entitled to summary judgment. We
owned and operated the Stumberg Ranch Well Site (the
"well site") where Vela was injured. The well site
had four wells on a single pad that were twenty-five feet
apart from one another (Wells: 1H, 2H, 3H, and 4H). A
"cellar" surrounded each of the well bores (Well 1H
Cellar, Well 2H Cellar, Well 3H Cellar, and Well 4H Cellar).
A cellar is generally a six-to-ten-foot hole constructed
beneath the drilling rig that acts as a sort of
"containment barrier" around the well to trap
water, mud, oil, or other contaminants that may come out of
the well bore while the rig is drilling.
contracted with Nabors "to furnish and operate" the
M17 drilling rig. The M17 drilling rig was positioned over
Well 2H. Murphy contracted with T-Force, a rig-moving
company, to move the M17 drilling rig from Well 2H to Well
4H. Nabors was responsible for disassembling the M17 drilling
rig before the rig-move, and T-Force, pursuant to its
contractual obligations with Murphy, was then responsible for
moving the M17 drilling rig from Well 2H and positioning it
over Well 4H. Under these arrangements, Nabors and T-Force
were both subcontractors of Murphy, and Nabors and T-Force
did not have a contractual relationship with each other.
on top of the Well 4H Cellar were several 8-foot wide,
40-foot long, 2, 000-pound matting boards, and located on top
of the matting boards were two 80, 000-pound mud pumps. On
the morning of June 29, 2012, using a T-Force crane and
forklift, Vela, as the "rigger" employed by
T-Force, rigged up the two mud pumps to the crane and the
T-Force crane operator maneuvered the pumps off the matting
boards. The T-Force forklift operator then removed the
matting boards. Without the matting boards covering the mouth
of the Well 4H Cellar, the Well 4H Cellar was unsecured and
open. After the matting boards were removed from the mouth of
the Well 4H Cellar, Vela fell into the Well 4H Cellar while
walking to retrieve his tagline. Vela sustained personal
injuries as a result of his fall.
filed suit against Murphy and Nabors based on a theory of
premises liability and gross negligence. Vela alleged that
Murphy and Nabors knew the Well 4H Cellar was unsecured,
which was an unreasonably dangerous condition, and they chose
not to secure it and that Murphy and Nabors were required to
warn Vela and others similarly situated about the
unreasonably dangerous conditions existing on the premises.
Nabors filed a no-evidence and traditional motion for summary
judgment claiming that Nabors, as a co-subcontractor, did not
owe T-Force or its employees a duty under a premises
liability theory because Nabors was not the owner of the well
site, and did not exert control, or assume responsibility
over, the well site sufficient to give rise to a legal duty.
Murphy filed a no-evidence and traditional motion for summary
judgment claiming Chapter 95 of the Texas Civil Practice and
Remedies Code shielded Murphy from liability as a matter of
law. The trial court granted both motions for summary
judgment but did not specify the grounds it relied upon. Vela
review a trial court's summary judgment de novo.
Lightning Oil Co. v. Anadarko E&P Onshore, LLC,
520 S.W.3d 39, 45 (Tex. 2017). When a trial court does not
specify the grounds it relied upon in granting summary
judgment, "reviewing courts must affirm summary judgment
if any of the grounds asserted are meritorious."
Id. "If a party moves for summary judgment on
both traditional and no-evidence grounds, as the [appellees]
did here, we first consider the no-evidence motion."
no-evidence motion for summary judgment, "the movant
must first assert that no evidence exists as to one or more
elements of a claim the nonmovant would have the burden of
proof [on] at trial." Covarrubias v. Diamond
Shamrock Ref. Co., 359 S.W.3d 298, 301 (Tex. App.-San
Antonio 2012, no pet.). "Once the movant has alleged no
evidence exists as to one or more elements, the burden is
then shifted to the nonmovant to present more than a
scintilla of evidence which raises a genuine issue of
material fact on each of the challenged elements."
Less than a scintilla of evidence exists when the evidence is
"so weak as to do no more than create a mere surmise or
suspicion" of a fact. More than a scintilla of evidence
exists when the evidence "rises to a level that would
enable reasonable and fair-minded people to differ in their
King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751
(Tex. 2003) (internal citation omitted) (first quoting
Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex.
1983); then quoting Merrell Dow Pharm., Inc. v.
Havner, 953 S.W.2d 706, 711 (Tex. 1997)). "If the
nonmovant fails to produce more than a scintilla of evidence,
there is no need to analyze whether the movant's proof
satisfies the Rule 166a(c)-traditional motion for summary
judgment-burden." Covarrubias, 359 S.W.3d at
traditional motion for summary judgment, the movant
"bears the burden of proving there is no genuine issue
of material fact as to at least one essential element of the
cause of action being asserted and that it is entitled to
judgment as a matter of law." Lightning Oil
Co., 520 S.W.3d at 45. If the movant establishes its
right to judgment as a matter of law, the burden shifts to
the nonmovant to present evidence raising a genuine issue of
material fact. Arredondo v. Techserv Consulting
& Training, Ltd., 567 S.W.3d 383, 390 (Tex. App.-San
Antonio 2018, pet. filed). "When reviewing a traditional
motion for summary judgment, we review the evidence in the
light most favorable to the non-movant, indulge every
reasonable inference in favor of the non-movant, and resolve
any doubts against the motion." Lightning Oil
Co., 520 S.W.3d at 45.
issues, Vela contends the trial court erred in granting
summary judgment in favor of Murphy and Nabors. We address
the propriety of summary judgment as to each appellee
Murphy's Motion for Summary Judgment
contends the trial court erred in granting summary judgment
in favor of Murphy because Chapter 95 of the Texas Civil
Practice and Remedies Code does not apply to Vela's
Applicability of Chapter 95
95 "limits property owner liability on claims for
personal injury, death, or property damage caused by
negligence." Abutahoun v. Dow Chemical Co., 463
S.W.3d 42, 53 (Tex. 2015). If Chapter 95 applies, "its
tenets regulate the viability of each claim [the appellant]
alleged that involve negligence, that is, his claims of
active negligence, premises liability, and gross
negligence." Torres v. Chauncey Mansell &
Mueller Supply Co., Inc., 518 S.W.3d 481, 494 (Tex.
App.-Amarillo 2017, pet. denied). "If Chapter 95
applies, it is the plaintiff's 'sole means of
recovery.'" Ineos USA, LLC v. Elmgren, 505
S.W.3d 555, 561 (Tex. 2016) (quoting Abutahoun, 463
S.W.3d at 51). Chapter 95 applies to a claim:
(1) against a property owner . . . for personal injury,
death, or property damage to an owner, a contractor, or a
subcontractor or an employee of a contractor or
(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.
Tex. Civ. Prac. & Rem. Code § 95.002. Additionally,
"[c]hapter 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." Ineos, 505 S.W.3d at 567 (emphasis
added). Murphy, as the property owner, has the initial burden
of establishing that Chapter 95 applies to Vela's claim.
Cox v. Air Liquide Am., LP, 498 S.W.3d 686, 689
(Tex. App.-Houston [14th Dist.] 2016, no pet.). "Because
a party may not obtain a no-evidence summary judgment on an
issue for which it ...