                          NUMBER 13-17-00446-CV

                             COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                      CORPUS CHRISTI - EDINBURG


HOMER HERNANDEZ,                                                             Appellant,

                                         v.

DRISCOLL CHILDREN’S
HOSPITAL,                                                                     Appellee.


                    On appeal from the 347th District Court
                          of Nueces County, Texas.


                         MEMORANDUM OPINION
Before Chief Justice Contreras and Justices Benavides and Longoria
            Memorandum Opinion by Justice Benavides

      By one issue, appellant Homer Hernandez appeals the trial court’s summary

judgment in favor of appellee, Driscoll Children’s Hospital (the Hospital). We affirm.
                                          I.      BACKGROUND

       The Hospital hired J.R. Electric, a contractor, to perform the work necessary to

install an MRI scanner. Hernandez, an employee of J.R. Electric, was electrocuted and

injured while working on an electrical breaker box at the Hospital. Hernandez sued the

Hospital for negligence, gross negligence, and premises liability.

       The Hospital filed a motion for traditional summary judgment claiming it was not

liable for Hernandez’s injury pursuant to § 95.003 of the Texas Civil Practices and

Remedies Code. See TEX. CIV. PRAC. & REM. CODE ANN. § 95.003. Hernandez filed a

response and two supplemental responses.

       The trial court denied the Hospital’s motion for summary judgment, and the

Hospital filed a motion for reconsideration. In its motion for reconsideration, the Hospital

argued that Hernandez did not (1) respond to its Chapter 95 argument, (2) submit any

evidence or argue that the Hospital retained any control of the work performed by a

contractor, or (3) argue or submit any evidence that the Hospital had actual knowledge of

the alleged dangerous condition. See id. Hernandez filed a response and supplemental

response to the motion for reconsideration generally stating that his exhibits showed that

“the evidence of [the Hospital’s] control is overwhelming and conclusive.” After holding a

hearing, the trial court granted the Hospital’s motion for reconsideration and motion for

summary judgment. This appeal followed. 1



       1   In his summary of the argument section of his brief, Hernandez states the following:

               Appellant further contends that, as a preliminary and perhaps, a dispositive matter,
       Judge Ables Assignment-procured by violations of the Texas Rules of Civil Procedure and
       Tex. Gov’t Code statutes governing assignments and objections thereto, all render Judge
       Ables disqualified, ab initio, and thus, render all action taken by Judge Ables, including his
       Order granting Defendant Driscoll Hospital's Motion for Summary Judgment void.


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                                    II.      STANDARD OF REVIEW

        In a traditional motion for summary judgment, the movant has the burden of

showing that no genuine issue of material fact exists and that it is entitled to judgment as

a matter of law. TEX. R. CIV. P. 166a; Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548

(Tex. 1985). If the movant’s motion and summary judgment proof facially establish a right

to judgment as a matter of law, the burden shifts to the non-movant to raise a material

fact issue sufficient to defeat summary judgment. Centeq Realty, Inc. v. Siegler, 899

S.W.2d 195, 197 (Tex. 1995). A defendant seeking a traditional motion for summary

judgment must either conclusively disprove at least one element of each of the plaintiff’s

causes of action or plead and conclusively establish each essential element of an

affirmative defense. Cathey v. Booth, 900 S.W.2d 339, 341 (Tex. 1995) (per curiam). We

review a summary judgment de novo to determine whether a party’s right to prevail is

established as a matter of law. Dickey v. Club Corp. of Am., 12 S.W.3d 172, 175 (Tex.

App.—Dallas 2000, pet. denied).

        In our de novo review of a trial court’s summary judgment, we consider all the

evidence in the light most favorable to the nonmovant, crediting evidence favorable to the

nonmovant if reasonable jurors could and disregarding contrary evidence unless

reasonable jurors could not. Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex.




         To the extent that Hernandez argues that the Honorable Stephan B. Ables was without authority to
hear the case, we disagree. The Honorable Missy Medary, the Presiding Judge of the Fifth Administrative
Judicial Region, signed an order of assignment assigning the case to Judge Ables on March 12, 2017, and
on April 10, 2017, she held a hearing wherein she advised all parties of the assignment of the case to Judge
Ables. Accordingly, the record reflects that Judge Medary provided actual notice to Hernandez of the
assignment of the case to Judge Ables. See TEX. GOV’T CODE ANN. § 74.053(c). In addition, although
Hernandez filed an objection to the assignment of the case to Judge Ables on May 8, 2017, it was untimely
as it was filed more than seven days after Hernandez received notice of the assignment. See id. (providing
that a party has seven days to object to assignment of judge).


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2006). The evidence raises a genuine issue of fact if reasonable and fair-minded jurors

could differ in their conclusions in light of all of the summary judgment evidence.

Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, 755–56 (Tex. 2007).

                                     III.    CHAPTER 95

       “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).               Under Chapter 95, the

property owner is not liable for a plaintiff’s injuries if the 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” unless the

plaintiff establishes 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. TEX. CIV. PRAC. & REM.

CODE ANN. § 95.003. The property owner has the initial burden to establish that Chapter

95’s general rule applies to the plaintiff’s claim. Montoya v. Nichirin–Flex U.S.A., Inc.,

417 S.W.3d 507, 511 (Tex. App.—El Paso 2013, no pet.). The burden then shifts to the

plaintiff to establish control and knowledge. See id.

       Thus, as applicable here, the Hospital had the initial burden of conclusively

establishing (1) it is a property owner, (2) Hernandez alleged that the Hospital is liable for

Hernandez’s personal injury, (3) Hernandez was an employee of a contractor, and (4)



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Hernandez’s claim arises from a condition or use of an improvement to the Hospital’s

property where J.L. Electric was constructing, repairing, renovating, or modifying the

improvement. See id.; see also TEX. CIV. PRAC. & REM. CODE ANN. § 95.003. Once the

Hospital met its burden, the burden then shifted to Hernandez to establish that the

Hospital (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. See Montoya, 417 S.W.3d at 511; see also TEX. CIV. PRAC. &

REM. CODE ANN. § 95.003.

                                           III.     DISCUSSION

A.      Same Improvement

        By his first issue, Hernandez contends that the Hospital did not meet its initial

burden of conclusively establishing that his claim arises from a condition or use of an

improvement to the Hospital’s property where J.L. Electric was constructing, repairing,

renovating, or modifying such improvement. 2 See Montoya, 417 S.W.3d at 511. Citing

Hernandez v. Brinker International, Inc., Hernandez claims that the improvement he was

hired to repair (the MRI machine) is not the complained-of condition (the breaker box)

that caused his injury. See 285 S.W.3d 152, 155 (Tex. App.—Houston [14th Dist.] 2009,

no pet.).

        In Brinker, the appellant was hired to fix an air conditioning unit (the improvement),


        2 It is undisputed that the Hospital met its initial burden to conclusively establish that (1) it is a
property owner, (2) Hernandez alleges that the Hospital is liable for personal injury, and (3) Hernandez was
an employee of a contractor. Therefore, we need not address those elements. See TEX. R. APP. P. 47.1.


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and while he carried a compressor, either walking to the unit or away from it, the roof

where the unit was located (the condition that caused the injury) collapsed, causing the

appellant’s injury. Id. at 154. The property owner filed a motion for summary judgment

claiming that Chapter 95 barred the appellant’s recovery because the property owner

exercised no control over his work. Id. The trial court granted the summary judgment

motion. Id.

       On appeal, the appellant in Brinker argued that Chapter 95 only applied if his claim

arose from the condition or use of the improvement he was repairing (the air conditioning

unit), but because his claim arose from the condition of a different improvement (the roof),

Chapter 95 did not apply. Id. at 155. The property owner conceded the injury resulted

from the use of the roof and not from the condition or use of the air conditioning system;

however, the property owner argued that the entire building was the “improvement,” and

the air conditioning unit was a mere “fixture” to the building. Id. The Houston Court of

Appeals agreed with the appellant and held that the roof and the air conditioning unit were

separate improvements to real property. Id. The Brinker court concluded that Chapter

95 only applies to a claim that involves an injury caused by the same improvement for

which the contractor was hired to repair. Id. at 158. The Texas Supreme Court has since

agreed. Ineos USA, L.L.C. v. Elmgren, 505 S.W.3d 555, 567 (Tex. 2016) (holding that

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).

       Here, in its motion for summary judgment, the Hospital attached the affidavit of Joe

Martinez, the Hospital’s director of its engineering department, stating that the Hospital

hired J.R. Electric to perform two tasks: (1) install an MRI scanner and (2) “repair and



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modify the electrical system of the [H]ospital to allow for the installation . . . ” of the MRI

scanner (emphasis added). Martinez said, “This work included the installation of new

wiring in a breaker box [permanently] attached to the [H]ospital.” According to Martinez,

the MRI machine could not have been installed without repairing and modifying the

breaker box.    Thus, unlike Brinker, where the improvement being repaired (the air

conditioning unit) did not cause the injury, the Hospital’s summary judgment evidence

shows that one of the improvements it hired J.L. Electric to repair (the breaker box)

caused Hernandez’s injury. Accordingly, the summary judgment evidence conclusively

established that Hernandez’s injury resulted from a condition or use of the same

improvement that J.L. Electric was hired to perform when he was injured. See Ineos USA,

505 S.W.3d at 567; Brinker, 285 S.W.3d at 155.

       In his response, Hernandez did not present any evidence contradicting the

Hospital’s summary judgment evidence that it hired J.R. Electric in part to install new

wiring in the breaker box, and we find none. See Montoya, 417 S.W.3d at 511; Nichols

v. Smith, 489 S.W.2d 719, 723–24 (Tex.—Fort Worth 1973) aff’d, 507 S.W.2d 518 (Tex.

1974) (providing that once the defendant established its defense as a matter of law by

summary judgment evidence, the defendant is entitled to summary judgment unless the

plaintiff provides legitimate summary judgment evidence showing that a fact issue exists);

see also TEX. R. CIV. P. 166a(c). Thus, considering all the evidence in the light most

favorable to Hernandez, we conclude that the Hospital met its initial burden of establishing

that Chapter 95 applies, and Hernandez did not raise a material fact issue sufficient to

defeat summary judgment on that basis. See Centeq Realty, Inc., 899 S.W.2d at 197.

B.     Exceptions to Chapter 95



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      Next, Hernandez argues that summary judgment was improper because he

provided evidence which raises a material question of fact regarding whether the Hospital

(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 his personal

injury and failed to adequately warn him of that danger or condition. See TEX. CIV. PRAC.

& REM. CODE ANN. § 95.003.

      A plaintiff may prove control by either showing there is a contractual right of control

or the property owner exercised actual control. Ellwood Tex. Forge Corp. v. Jones, 214

S.W.3d 693, 700 (Tex. App.—Houston [14th Dist.] 2007, pet. denied) (citing Dow Chem.

Co. v. Bright, 89 S.W.3d 602, 606 (Tex. 2002); Elliott–Williams Co. v. Diaz, 9 S.W.3d 801,

804 (Tex. 1999); Chi Energy, Inc. v. Urias, 156 S.W.3d 873, 879 (Tex. App.—El Paso

2005, pet. denied)). “The owner, to be liable, must have the right to control the means,

methods, or details of the independent contractor’s work to the extent that the

independent contractor is not entirely free to do the work his own way.” Id. The property

owner must have the right to control the “operative detail of the contractor’s work.” Id.

The property owner must have more than a general right to inspect the progress, receive

reports, or tell the worker to start and stop. Chi Energy, Inc., 156 S.W.3d at 879.

      In his summary judgment pleadings, Hernandez did not provide argument

concerning control. Instead, he generally cited his exhibits, which include approximately

100 pages of, among other things, deposition testimony, pictures, and manuals. In fact,

at the motion for summary judgment hearing, Hernandez argued that Chapter 95 does

not apply because this is a common law negligence case. He did not argue or provide



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summary judgment evidence that the Hospital controlled the methods or details of his

work to the extent that he was not entirely free to do the work his own way. 3 Instead,

Hernandez argued that the Hospital controlled the breaker box by changing the lock and

leaving the breaker box on. On appeal, Hernandez states that the Hospital exercised or

retained control of “the lock-out/tag-out,” “the training of all employees of contractors on

lock-out/tag-out procedures,” and the Hospital’s locks, keys, and master keys. However,

he points to no evidence supporting these assertions.

        Hernandez does not explain what the lockout/tagout procedures entail, or how the

above-stated allegations relate to whether the Hospital retained some control over the

“operative detail” of his work. However, the summary judgment evidence established that

lockout/tagout procedures are implemented by electricians and mechanics when working

on a breaker box as a safety measure. As Martinez explained at his deposition, per the

safety standards, an electrician will shut off the breaker box, log that he is working on the

breaker box on a tag on a padlock, and then lock the breaker box to ensure his safety. 4

        On appeal, Hernandez claims that the Hospital removed the padlock that his

employer (J.L. Electric) placed on the breaker box, then replaced the lock “with [its] own

lock and turned on the electric . . . thereby [e]nsuring a massive electric shock to

Hernandez.” As we understand it, Hernandez complains that the Hospital controlled the

breaker box and caused his injury when it violated its lockout/tagout safety measures


        3 We note that at the summary judgment hearing, Hernandez repeatedly stated that there was
summary judgment evidence that the Hospital retained control over his work. However, Hernandez did not
cite any such evidence and continued to argue that Chapter 95 was inapplicable because this case involves
negligence unrelated to Hernandez’s work.
        4 Martinez explained that the electrician working on a breaker box puts his name, the date, and the
time when he locks out the breaker box on a tag which is located on a padlock. According to Martinez,
while the padlock is in place, the breaker box cannot be turned on and remains shut off.


                                                        9
when it replaced J.L. Electric’s lock with its own. However, whether the Hospital acted

negligently does not pertain to whether the Hospital maintained control over Hernandez’s

work. Thus, even assuming, without deciding that the Hospital did what Hernandez

alleges, that evidence does not support a conclusion that the Hospital retained control

over the methods, or details of his work to the extent that he was not entirely free to do

the work his own way as required by Chapter 95. See Ellwood Tex. Forge Corp., 214

S.W.3d at 700.

        Martinez stated in his affidavit that

        [n]o one from [the Hospital] was assisting or directing the work performed
        by J.R. Electric. J.R. Electric maintained control of the electrical work
        associated with the installation of the MRI scanner. J.R. Electric, as an
        independent contractor, provided all of the labor, tools and equipment
        necessary to complete modification of the breaker box associated with the
        MRI replacement project. [The] Hospital did not have any control over the
        hiring or direction of Mr. Hernandez.

        Hernandez has pointed to no evidence, and we find none, controverting Martinez’s

affidavit or supporting a conclusion that the Hospital had the right to control the method,

manner, means, and operative details of his work.                  Thus, the undisputed evidence

establishes that the Hospital did not maintain any control over Hernandez’s work as a

matter of law. Having examined the summary judgment record de novo, we conclude

that the Hospital conclusively established, as a matter of law, that it neither exercised nor

retained control over the manner in which Hernandez performed his work. See TEX. R.

CIV. P. 166a; Nixon, 690 S.W.2d at 548. Thus, the trial court properly granted summary

judgment in favor of the Hospital. Accordingly, we overrule Hernandez’s sole issue. 5


        5 We need not address Hernandez’s argument that he provided evidence raising a question of

material fact that the Hospital had actual knowledge of the danger or condition that caused his injury
because, to show that Chapter 95’s exception applies, Hernandez was also required to raise a material fact
issue regarding whether the Hospital controlled the manner in which the work was performed, and we have

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                                       IV.     CONCLUSION

       We affirm the trial court’s judgment.


                                                      GINA M. BENAVIDES,
                                                      Justice


Delivered and filed the
15th day of August, 2019.




concluded that he did not do so. See TEX. CIV. PRAC. & REM. CODE ANN. § 95.003; Centeq Realty, Inc. v.
Siegler, 899 S.W.2d 195, 197 (Tex. 1995); see also TEX. R. APP. P. 47.1.


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