                             Fourth Court of Appeals
                                    San Antonio, Texas
                               MEMORANDUM OPINION

                                       No. 04-18-00830-CV

                                           Rene VELA,
                                            Appellant

                                                v.

   MURPHY EXPLORATION & PRODUCTION COMPANY-USA and Nabors Drilling
                         Technologies, Inc.,
                             Appellees

                   From the 365th Judicial District Court, Dimmit County, Texas
                             Trial Court No. 14-05-12283-DCV-AJA
                        Honorable Amado J. Abascal, III, Judge Presiding

Opinion by:      Rebeca C. Martinez, Justice

Sitting:         Sandee Bryan Marion, Chief Justice
                 Rebeca C. Martinez, Justice
                 Luz Elena D. Chapa, Justice

Delivered and Filed: December 27, 2019

AFFIRMED

           Rene 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 affirm.
                                                                                       04-18-00830-CV


                                           BACKGROUND

        Murphy 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.

        Murphy 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.

        Located 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




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Cellar, Vela fell into the Well 4H Cellar while walking to retrieve his tagline. 1 Vela sustained

personal injuries as a result of his fall.

           Vela 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 appeals.

                                                STANDARD OF REVIEW

           We 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.” Id.




1
    The tagline controls the load the crane is holding.


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          In a 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.” Id.

          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 conclusions.”

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 301.

          In a 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.



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                                                                                        04-18-00830-CV


                                               DISCUSSION

          In two 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

separately.

   A. Murphy’s Motion for Summary Judgment

          Vela 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

claims.

              a. Applicability of Chapter 95

          Chapter 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
          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.

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


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                                                                                     04-18-00830-CV


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 bears

the burden of proof, we construe this part of [Murphy’s] motion as a motion for traditional

summary judgment.” Id.

        Thus, for Chapter 95 to apply, Murphy was first required to show that: “(1) it is a property

owner against whom a contractor’s employee asserts a personal injury claim[.]” Lopez v. Ensign

U.S. S. Drilling, LLC, 524 S.W.3d 836, 843 (Tex. App.—Houston [14th Dist.] 2017, no pet.). The

parties do not dispute that Murphy meets the requirements of section 95.002(1). Murphy, as the

mineral leaseholder, is a property owner. See id. (defining a mineral lease holder as a “property

owner” for purposes of section 95.002(1)). Vela’s claim is against Murphy, a property owner, for

personal injury, and Vela is an employee of T-Force, a contractor. Thus, section 95.002(1) is

satisfied.

        We next consider whether Murphy established the elements of section 95.002(2), which

required Murphy to show that Vela’s injury arose from a condition or use of an improvement to

Murphy’s property where T-Force and Vela were constructing, repairing, renovating, or modifying

that same improvement when Vela’s injury occurred. See TEX. CIV. PRAC. & REM. CODE

§ 95.002(2). In its summary judgment motion, and on appeal, Murphy argues that section

95.002(2) is established because (a) the Well 4H Cellar is an improvement to real property; (b)

Vela’s injury arose from the unsecured condition of the Well 4H Cellar; and (c) Vela and T-Force

were constructing, repairing, renovating, or modifying the Well 4H Cellar when his injury

occurred. Vela contends the cellar is not an improvement to real property, and “even if it were an

improvement, T-Force and Vela were not on Murphy’s site to do anything to the cellar. They were

not there to construct, repair, renovate, or modify the cellar.”


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       We first consider whether Murphy established as a matter of law that the Well 4H Cellar

is an “improvement” for purposes of section 95.002(2). Chapter 95 does not define what

constitutes an “improvement to real property,” but, in interpreting Chapter 95, the Texas Supreme

Court has broadly construed the term “improvement” to include “all additions to the freehold

except for trade fixtures [that] can be removed without injury to the property.” Abutahoun,

463 S.W.3d at 49 (quoting Sonnier v. Chisholm–Ryder Co., 909 S.W.2d 475, 479 (Tex. 1995)). It

is also “settled law . . . that mineral wells constitute improvements to real property.” Francis v.

Coastal Oil & Gas Corp., 130 S.W.3d 76, 85 (Tex. App.—Houston [1st Dist.] 2003, no pet.)

(citing Fox v. Thoreson, 398 S.W.2d 88, 89 (Tex. 1966)).

       The description of a “cellar” in the summary judgment record is undisputed, and it is

undisputed that this description applies to the 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, overflow mud, and chemicals that might flow out of the wellbore during drilling.

According to Vela’s expert witness, the walls of the cellar are generally lined with corrugated steel

or a plastic kind of lining in order to protect the soil from chemical contamination, the inside of

the cellar likely contains a conduit and a pump to dispose of the liquids collecting in the cellar, and

cellars are usually constructed “every single time” a well is drilled. Thus, the cellar, much like a

mineral well, is an “addition to the freehold,” “involves the assembly of materials” into a cylinder-

type structure, and will remain a permanent structure of the well site working in conjunction with

the mineral well. Cf. Coastal Oil, 130 S.W.3d at 85 (recognizing that “mineral wells constitute

improvements to real property” because a well “involves the assembly of materials into a

permanent structure” and remains on the well site after it is drilled). Given the Texas Supreme

Court’s directive to broadly construe the term “improvement,” we determine, as a matter of law,




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                                                                                     04-18-00830-CV


that the Well 4H Cellar is an “improvement” to real property under Chapter 95. See Abutahoun,

463 S.W.3d at 49.

       Murphy was also required to show that Vela’s injury arose from the condition or use of the

Well 4H Cellar for section 95.002(2) to apply. See TEX. CIV. PRAC. & REM. CODE § 95.002(2).

Vela does not contest this element, and the summary judgment evidence shows Vela’s injuries

were the result of him falling into the unsecured condition of the Well 4H Cellar.

       Last, for section 95.002(2) to apply, Murphy was required to show that T-Force and Vela

were constructing, repairing, renovating, or modifying the cellar when his injury occurred. See

TEX. CIV. PRAC. & REM. CODE § 95.002(2). Murphy argues T-Force and Vela modified the Well

4H Cellar at the time of Vela’s injury by removing the mud pumps, matting boards, and metal

grate covering the mouth of the cellar. Vela contends T-Force’s and Vela’s work at the well site

was limited to moving the rig and never extended to the construction, modification, renovation, or

repair of the Well 4H Cellar.

       Chapter 95 does not define the terms “constructs, repairs, renovates, or modifies,” but our

sister courts have given these words their ordinary meaning. See, e.g., Montoya v. Nichirin-Flex,

U.S.A., Inc., 417 S.W.3d 507, 512 (Tex. App.—El Paso 2013, no pet.) (“The Legislature has not

defined the terms ‘constructs,’ ‘repairs,’ ‘renovates,’ or ‘modifies,’ as used in Section 95.002(2).

Consequently, the words must be given their ordinary meaning.”). The ordinary meaning of the

terms are as follows:

       1. construct—to build or form by putting together parts; frame; devise.

       2. repair—to restore to a good or sound condition after decay or damage; mend: to
       repair a motor; to restore or renew by any process of making good, strengthening,
       etc.: to repair one’s health by resting.

       3. renovate—to restore to good condition; make new or as if new again; repair.

       4. modify—to change somewhat the form or qualities of; alter partially.


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Id. at 512 (quoting WEBSTER’S NEW UNIVERSAL UNABRIDGED DICTIONARY 463, 1236, 1632

(2003)). Murphy argues T-Force and Vela modified, altered, or “changed the form or qualities

of,” the Well 4H Cellar by removing the mud pumps, matting boards, and metal grate from the

mouth of the cellar in furtherance of the rig move operation. Vela does not contest that T-Force

removed the mud pumps or matting boards but disputes that the Well 4H Cellar was covered by a

metal grate. We review the evidence in the light most favorable to Vela and consider the issue as

if the Well 4H Cellar were not covered by a metal grate. See Lightning Oil Co., 520 S.W.3d at 45.

       The undisputed summary judgment evidence shows T-Force was tasked with moving the

M17 drilling rig from Well 2H to Well 4H. On top of the Well 4H Cellar were several 8-foot wide,

40-foot long, 2,000-pound matting boards, and on top of the matting boards were two 80,000-

pound mud pumps. Vela, as T-Force’s “rigger,” 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. After the matting boards were removed from the Well

4H Cellar, Vela walked to retrieve his tagline to rig up other equipment to the crane and as he did

so, he fell into the Well 4H Cellar.

       Pursuant to the statute’s ordinary and plain meaning, we conclude that the work being done

by T-Force and Vela at the time of Vela’s injury was of the type covered by Chapter 95. See TEX.

CIV. PRAC. & REM. CODE § 95.002(2). By removing the mud pumps, matting boards, and other

equipment positioned on top of the Well 4H Cellar, T-Force and its employees modified the Well

4H Cellar by altering and changing the Well 4H Cellar from its secured form into its unsecured

form. In fact, according to Vela’s own testimony and the testimony of his expert, had T-Force not

removed the matting boards covering the Well 4H Cellar, Vela would not have fallen into the Well

4H Cellar. Thus, it was the Well 4H Cellar’s altered state that contributed to Vela’s injury.




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       Relying on Hernandez v. Brinker International Inc., 285 S.W.3d 152 (Tex. App.—Houston

[14th Dist.] 2009, no pet.) (plurality opinion), Vela argues T-Force and its employees were hired

to move the M17 drilling rig from Well 2H to Well 4H and were not hired to do anything to the

Well 4H Cellar. In Brinker, the appellant was hired to repair an air-conditioning system, but was

injured by a separate improvement, the appellee’s roof. Id. at 157. The plurality determined that

the appellant did not modify or repair the appellee’s roof and further stated “Chapter 95 does not

apply to a contractor’s employee’s claim against a property owner when the improvement the

condition or use of which gives rise to the injury claim is not the same improvement the contractor

was at the premises to address at the time of injury.” See id. at 157–58. However, here, the Well

4H Cellar is the “same improvement [T-Force] was at the premises to address.” The undisputed

summary judgment evidence shows that T-Force’s and Vela’s responsibilities at the well site

included more than merely moving the M17 drilling rig from Well 2H to Well 4H. Rather, the

undisputed evidence shows that modifying the Well 4H Cellar by removing the equipment and

matting boards was a necessary component of T-Force’s rig-move operation. When asked why

the matting boards were removed from the mouth of the Well 4H Cellar, Vela testified the matting

boards had to be moved in order to perform the rig move. Steven Saenz, a T-Force employee and

Vela’s supervisor, indicated in his testimony that “when you’re moving the rig into [position], [the

cellar’s] got to be uncovered.” Vela’s expert confirmed that the equipment and the matting boards

covering the Well 4H Cellar had to be moved in order to properly position the rig over Well 4H.

Additionally, the drilling report from the day of Vela’s accident indicated that the day’s tasks

included: “rig down and move motor package, backyard, and mats, reorganize mats and prepare

to walk rig forwards to Stumberg 4H well.” Thus, it is incorrect for Vela to assert that “T-Force

and Vela were not on Murphy’s site to do anything to the cellar” when modifying the Well 4H

Cellar by removing the equipment and matting boards from the mouth of the cellar was necessary


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for T-Force to complete its rig-move from Well 2H to Well 4H. See Hernandez v. Driscoll

Children’s Hosp., No. 13-17-00446-CV, 2019 WL 3819868, at *3 (Tex. App.—Corpus Christi-

Edinburg 2019, no pet.) (mem. op.) (determining that although the plaintiff was hired to install an

MRI machine, “the MRI machine could not have been installed without [first] repairing and

modifying the breaker box,” and thus, the breaker box was an improvement the plaintiff was hired

to repair).

        Vela also points to Saenz’s testimony that T-Force did not construct or modify the Well

4H Cellar. However, “[c]onclusory testimony or affidavits are not competent summary judgment

evidence and are insufficient to create a question of fact to defeat summary judgment.” Montoya,

417 S.W.3d at 513. Notably, Saenz confirmed that it was T-Force’s responsibility to make sure

the rig was positioned over the Well 4H Cellar in a way that was supposed to give the M17 drilling

rig “access to that cellar.” Such access would not have been possible without first modifying the

Well 4H Cellar by removing the equipment and matting boards from the mouth of the cellar.

        Murphy has met the requirements of section 95.002(2) because it established that: (a) the

Well 4H Cellar is an improvement to real property; (b) Vela’s injury arose from the unsecured

condition of the Well 4H Cellar; and (c) Vela and T-Force were constructing, repairing, renovating,

or modifying the Well 4H Cellar when his injury occurred. See TEX. CIV. PRAC. & REM. CODE

§ 95.002(2). For the foregoing reasons, we conclude that Murphy met its initial burden of

establishing that Chapter 95 applies to Vela’s claims, and Vela did not raise a genuine issue of

material fact sufficient to defeat summary judgment on that basis. 2 See Driscoll, 2019 WL

3819868, at *4.



2
  Because we find that Chapter 95 applies to Vela’s claims, we need not address Vela’s alternative argument that
Murphy owed common law duties to Vela. See Ineos, 505 S.W.3d at 561 (explaining that when Chapter 95 applies,
the plaintiff cannot recover under the common law because Chapter 95 “is the plaintiff’s ‘sole means of recovery’”).


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           b. Exceptions to Chapter 95

       Section 95.003 provides for exceptions when Chapter 95 would otherwise apply, and Vela

argues that he provided some evidence for the application of an exception to defeat summary

judgment. We disagree.

       Section 95.003 provides that a property owner is not liable for personal injury to a

contractor or an employee of a contractor who constructs, repairs, renovates, or modifies an

improvement to real property unless:

       (1) the property owner exercises or retains some control over the manner in which
       the work is 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.

TEX. CIV. PRAC. & REM. CODE ANN. § 95.003. “Once the defendant has shown that Chapter 95

applies to the [plaintiff’s] claim, the plaintiff has the burden to establish both prongs of section

95.003” to establish an exception. Montoya, 417 S.W.3d at 511. Because the plaintiff must show

both control and actual knowledge, a property “owner may be aware of the danger, but exercise

no control, or he may exercise control and have no actual knowledge of the danger; in either

instance, the [property] owner is statutorily shielded from liability.” Ellwood Tex. Forge Corp. v.

Jones, 214 S.W.3d 693, 700 (Tex. App.—Houston [14th Dist.] 2007, pet. denied).

                   i. Control

       “Control may be proven in two ways: (1) a contractual right of control or (2) an exercise

of actual control.” Id. (citing Dow Chem. Co. v. Bright, 89 S.W.3d 602, 606 (Tex. 2002)). For the

property owner to be liable under Chapter 95, the control must include:

       the [property owner’s] 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. The right to control the work must extend
       to the operative detail of the contractor’s work. It is not enough that the owner has


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           the right to order the work to stop and start or to inspect progress or receive reports.
           Nor is it enough to recommend a safe manner for the independent contractor’s
           employees to perform the work.

Moreno v. BP Am. Prod. Co., No. 04-08-00036-CV, 2008 WL 4172248, at *3 (Tex. App.—San

Antonio Sept. 10, 2008, pet. denied) (mem. op.) (internal citations omitted).

           It is undisputed that Murphy did not have a contractual right of control. The plain language

of the contract provision 3 shows that Murphy did not have a contractual right to control the manner

in which T-Force performed its work. See Jacobs v. Huser Constr., Inc., 429 S.W.3d 700, 704–

05 (Tex. App.—San Antonio 2014, no pet.) (concluding similar language in a contract did not give

the property owner “the right to control the means, methods, or details” of the independent

contractor’s work).

           On appeal, Vela contends he presented some evidence that Murphy exercised actual control

over the manner in which T-Force performed its work. However, Vela’s own testimony concedes

that Murphy did not exercise actual control over the manner in which T-Force performed its work.

Vela stated no one from Murphy ever told him how to do his job, and that he received his work

instructions from either the T-Force crane operator or from Saenz, his T-Force supervisor. See

Covarrubias, 359 S.W.3d at 303. Vela argues, however, that “Murphy decided where the rig

would be moved” and “T-Force played no role in the decision on where to move the rig.”

However, moving the M17 drilling rig to the spot designated by Murphy was T-Force’s job.




3
    The contract between Murphy and T-Force stated:

           [T-Force] will at all times be an independent contractor, and nothing in this Agreement will be
           construed as creating the relationship of principal and agent, or employer and employee . . . . [T-
           Force] will have operational control, supervision and management of the Work, the selection of
           employees and the fixing of their hours of labor, and no right is reserved to [Murphy] to direct or
           control the manner in which the Work is performed, as distinguished from the result to be
           accomplished.

(emphasis added).


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“Being told what one’s job is and to go do it is far different than being told how to do one’s job.

It is the latter form of conduct that evinces the type of control needed to impose liability upon a

property owner, not the former.” Torres, 518 S.W.3d at 494 (emphasis added). Vela contends

Murphy’s drilling report is evidence of actual control because it “gave instructions about the work

to be accomplished that day, and the order in which the work would be done.” We disagree. A

property owner “must have some latitude to tell its independent contractors what to do, in general

terms, and may do so without becoming subject to liability.” Ellwood, 214 S.W.3d at 704. The

fact that Murphy’s company man gave T-Force and Nabors their general assignments for the day

does not indicate the right to control the manner, means, or details of T-Force’s work. See id. Vela

also claims Murphy’s company man was the person in charge of the well site and “the entire

operation.” However, “the control element is not satisfied simply through proof that the property

owner [or its representative] had control of the facilities.” Torres, 518 S.W.3d at 491. Rather,

“[t]he right to control the work must extend to the operative detail of . . . [T-Force’s] work.”

Moreno, 2008 WL 4172248, at *3.

        Vela argues that on the day of the accident, Murphy conducted a mandatory pre-job safety

meeting with T-Force, and that Murphy’s company man was present at the job site and signed off

on the Job Safety Analyses (“JSA”) 4 prepared for the work being done. A mandatory safety

meeting, however, does not demonstrate actual control over the manner, means, or details of T-

Force’s work, nor does a safety procedure requiring Murphy’s company man to sign off on the

JSAs evidence actual control. See Union Carbide Corp. v. Smith, 313 S.W.3d 370, 378 (Tex.

App.—Houston [1st Dist.] 2009, pet. denied); see also Dyall v. Simpson Pasadena Paper Co., 152

S.W.3d 688, 701–02 (Tex. App.—Houston [14th Dist.] 2004, pet. denied). The presence of


4
  According to the deposition testimony, a JSA analyzes the safety risks and hazards associated with a job and
recommends ways to eliminate them.


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Murphy’s company man on the job site is also not indicative of actual control. See Ellwood, 214

S.W.3d at 702. Vela further claims Murphy could have asserted control over the manner in which

T-Force performed its work, if it wanted to. However, section 95.003(3) requires “actual control,

not simply the possibility of control.” Id. (emphasis added); see Coastal Marine Serv. of Tex., Inc.

v. Lawrence, 988 S.W.2d 223, 226 (Tex. 1999) (per curiam). Thus, “the possibility that [Murphy]

personnel could have retained or exercised control over [T-Force’s] work does not address whether

they did so on the occasion in question.” Ellwood, 214 S.W.3d at 704.

       After reviewing the summary judgment record in the light most favorable to Vela, we

conclude Vela failed to produce more than a scintilla of evidence showing Murphy exercised actual

control over the manner in which T-Force performed its work. See id. at 304. Thus, we need not

address whether Murphy had actual knowledge of the danger or condition resulting in Vela’s

injury. See Moreno, 2008 WL 4172248, at *3. Accordingly, we affirm the trial court’s order

granting Murphy’s motion for summary judgment on Vela’s premises liability and gross

negligence claims because Murphy established as a matter of law that Chapter 95 applies. See

Torres, 518 S.W.3d at 491.

   B. Nabors’s Motion for Summary Judgment

       Nabors owns the M17 drilling rig that T-Force was contracted to move. Nabors sought

traditional and no-evidence summary judgment on Vela’s premises liability and gross negligence

claims, and the trial court granted summary judgment in Nabors’s favor. Vela contends he

presented more than a scintilla of evidence raising a genuine issue of material fact on each element

of his premises liability claim against Nabors, including that Nabors: (1) occupied and was in

control of the premises, giving rise to a legal duty, (2) knew of the unsecured cellar, which was an

unreasonably dangerous condition, and chose not to secure it or warn of its peril; and (3) was

required to warn Vela and others similarly situated about unreasonably dangerous conditions on


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the premises. Vela also contends he presented more than a scintilla of evidence raising a genuine

issue of material fact on each element of his gross negligence claim. We disagree.

       Under Texas law, a claimant who is injured on another person’s property “has two potential

but mutually exclusive causes of action against the owner of the property: (1) an ordinary

negligence claim arising from a negligently conducted activity on the premises, or (2) a premises

liability claim for an unreasonably dangerous condition on the premises.” Lopez, 527 S.W.3d at

845 (citing Clayton W. Williams, Jr., Inc. v. Olivo, 952 S.W.2d 523, 527 (Tex. 1997)). Vela

asserted in a response to Nabors’s motion for summary judgment that his was not a negligent-

activity case because his “injury did not occur contemporaneously with Nabors’s or Murphy’s

negligence;” rather, Vela asserted “this is a premises defect case” based on an unreasonably

dangerous condition on the premises.

       Premises liability and gross negligence require a plaintiff to establish that the defendant

owed the plaintiff a legal duty. See Pinkerton’s v. Manriquez, 964 S.W.2d 39, 44 (Tex. App.—

Houston [14th Dist.] 1997, pet. denied); see also City of Waco v. Kirwan, 298 S.W.3d 618, 623

(Tex. 2009). Nabors argues there is no evidence showing it owed a legal duty to Vela. Vela asserts

Nabors owed him a duty as an independent contractor in possession of the premises.

           a. Duty

       “An owner or occupier of land generally has a duty to use reasonable care to make and

keep the premises safe for invitees.” Villegas v. Tex. Dep’t of Transp. & Rekca, Inc., 120 S.W.3d

26, 38 (Tex. App.—San Antonio 2003, pet. denied) (citing Olivo, 952 S.W.2d at 527). An

independent contractor in possession of the premises “is charged with the same duty as an owner

or occupier” of land. Id. (quoting Olivo, 952 S.W.2d at 527). However, an independent contractor:

       who does not own or possess [the] property assumes no liability for injury under a
       premises liability theory, unless [the independent contractor] assumes control over,
       and responsibility for, the premises. It is the possession and control which generally


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                                                                                      04-18-00830-CV


       must be shown as a prerequisite to liability. Accordingly, if an independent
       contractor is in control of the premises, he is charged with the same duty as an
       owner or possessor [of land].

Id. (internal citations omitted) (quoting Rendleman v. Clarke, 909 S.W.2d 56, 60 (Tex. 1995)).

Absent “control over, and responsibility for, the premises,” an independent contractor “who does

not own or possess [the] property assumes no liability for injury under a premises liability theory.”

Id.

       Murphy, as the mineral lease holder, is the owner and possessor of the well site. Because

Nabors “does not own or possess [the] property,” Nabors “is only subject to premises liability if it

assumed control over, and responsibility for, the premises.” Id. (citing Rendleman, 909 S.W.2d at

60). Thus, absent “control over, and responsibility for, the premises,” Nabors does not owe a legal

duty to Vela under a premises liability theory. See id.; see also Pinkerton’s, 964 S.W.2d at 45–46.

       Vela contends he presented some evidence to establish that Nabors had control over the

well site during the rig-move operation to give rise to a legal duty. Vela argues that because Nabors

actively participated in the rig-move operation, Nabors had control over the well site. The

summary judgment evidence shows Murphy contracted with Nabors “to furnish and operate” the

M17 drilling rig. 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 to Well 4H. Nabors’s mere presence on the well site

in furtherance of its contractual duties to Murphy does not equate to “control over the premises”

giving rise to a duty. See City of Denton v. Page, 701 S.W.2d 831, 835 (Tex. 1986).

       Vela also claims that Nabors determined where the rig was going to go, what the next order

of business was, and instructed T-Force employees. However, Vela’s claims on appeal are

contradicted by his own summary judgment evidence. Vela stated no one from Nabors ever told

him how to do his job, and he received his work instructions from either the T-Force crane operator


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                                                                                      04-18-00830-CV


or from Saenz, his T-Force supervisor. Vela’s claim that Nabors decided what “the next order of

business” was is contradicted by Murphy’s drilling report as it indicates that Murphy’s company

man gave T-Force and Nabors their assignments for the day. See Pinkerton’s, 964 S.W.3d at 46

(finding an independent contractor did not exercise sufficient control over the premises where the

owner of the premises supervised the independent contractor in an indirect manner). Additionally,

it is undisputed that Murphy decided where the M17 drilling rig would be moved.

       Vela also contends “Nabors was in possession and control of the drill site where its M17

rig was located at the time [Vela] fell into the unsecured cellar.” To support this assertion, Vela

points to the fact that the M17 drilling rig was Nabors’s personal property. However, ownership

over an object on the property does not establish control over the premises where Vela’s injury

occurred. See Page, 701 S.W.2d at 835. Even assuming “Nabors was in possession and control

of the drill site where its M17 rig was located,” the summary judgment evidence shows T-Force,

in preparation for the rig being positioned over Well 4H, removed the equipment and matting

boards covering the mouth of the Well 4H Cellar. Nabors’s drilling rig had not been moved yet

and was still positioned over Well 2H. Vela was injured at the Well 4H drill site, not the Well 2H

drill site where the M17 drilling rig was still located.

       Lastly, Vela claims that the Master-Service Agreement between Murphy and Nabors

indicates that “Nabors had control over the safety and security of the premises.” The contract

between Murphy and Nabors provides: “[Nabors] will be solely responsible for [the] safety of its

work and operations, . . . and, further, represents that it will take immediate actions to remedy any

and all known unsafe conditions relating to [Nabors’s] work and operations.” The Master-Service

Agreement between Murphy and Nabors does not show that Nabors had control over the safety

and security of the entire premises; rather, Nabors had control over the safety of its own work and

operations. In a similar vein, Vela also contends it was Nabors’s responsibility to ensure the Well


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4H Cellar was secured after T-Force removed the matting boards covering the Well 4H Cellar.

However, the Master-Service Agreement does not provide that Nabors’s responsibilities extended

to T-Force’s work and operations, or that Nabors was required to remedy any known unsafe

conditions relating to T-Force’s work and operations. In fact, the contract between Murphy and

T-Force stated that T-Force “will be solely responsible for [the] safety of its work and operations”

and that T-Force “has an affirmative obligation to remedy immediately any and all unsafe

conditions relating to [T-Force’s] work and operations.” (emphasis added).

         Based on the foregoing, we hold Vela failed to present more than a scintilla of evidence

showing Nabors had control of, or responsibility over, the well site that would give rise to a legal

duty under Vela’s premises liability theory. See Pinkerton’s, 964 S.W.2d 39 at 45–46. 5 Because

a legal duty is an essential element of Vela’s premises liability and gross negligence claims, the

trial court did not err by granting Nabors’s no-evidence motion for summary judgment. See id. at

44; Spruell v. USA Gardens at Vail LeasCo, L.L.C., No. 02-12-00056-CV, 2013 WL 362740, at

*5–6 (Tex. App.—Fort Worth Jan. 31, 2013, pet. denied) (mem. op.) (holding the appellants’

premises liability and gross negligence claims failed because the appellants failed to establish that

the appellees owed them a legal duty); see also TEX. R. CIV. P. 166a(i). 6



5
  Vela also contends that Nabors had a right to control T-Force’s work, which gave rise to a duty to ensure that T-
Force performed its work in a safe manner. This argument, however, requires Vela to establish the first element of a
premises-liability claim—that Nabors had control of, or responsibility over, the premises. See Olivo, 952 S.W.2d at
527–29 (“[T]he injured plaintiff must establish both the general contractor’s right to control the defect-producing work
and . . . the traditional premises defect elements.”). For the reasons discussed, Vela has not established control of, or
responsibility over, the well site that would give rise to a legal duty and potential premises liability. Relying on
Bennett v. Span Industries, Inc., 628 S.W.2d 470, 473 (Tex. App.—Texarkana 1981, writ ref’d n.r.e.), Vela also
contends, “a subcontractor may owe a common law duty to other subcontractors at a work site.” However, the
appellant’s claim in Bennett was based on a theory of ordinary negligence. Id. at 472. Vela’s theory for liability is
instead one of premises liability. Thus, Bennett is inapplicable. See Olivo, 952 S.W.2d at 528–29 (“[P]remises defect
cases and negligent activity cases are based on independent theories of recovery . . . .”); see also Rendleman, 909
S.W.2d at 60 (determining “the evidence did not raise a cause of action based on premises liability” because
“appellant’s duty did not arise from a matter of legal relationship, but from the duty of ordinary care at common law”).
6
  Accordingly, we do not address whether Vela presented more than a scintilla of evidence raising a genuine issue of
material fact with regard to the other elements of his premises liability and gross negligence claims against Nabors.


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                                   CONCLUSION

The judgment of the trial court is affirmed.

                                          Rebeca C. Martinez, Justice




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