                                                                                  United States Court of Appeals
                                                                                           Fifth Circuit
                                                                                         F I L E D
                                                   In the                                  June 1, 2005
                          United States Court of Appeals                             Charles R. Fulbruge III
                                        for the Fifth Circuit                                Clerk
                                             _______________

                                               m 04-20686
                                             Summary Calendar
                                             _______________




                              MICHAEL SPEARS AND ANGELA SPEARS,

                                                                Plaintiffs-Appellants,

                                                  VERSUS

                          CROWN CENTRAL PETROLEUM CORPORATION,

                                                                Defendant-Appellee.


                                      _________________________

                              Appeal from the United States District Court
                                  for the Southern District of Texas
                                          m 4:02-CV-3064
                                   _________________________




Before DAVIS, SMITH, and DENNIS,                                               I.
  Circuit Judges.                                           Michael Spears was working for Phillip
                                                        Service Corporation (“PSC”), a contractor
PER CURIAM:*                                            performing “turnaround” maintenance at the
                                                        refinery of Crown Central Petroleum (“Crown
                                                        Central”). Spears was assigned to work on a
                                                        heat exchanger in the fluid catalytic cracking
   *
                                                        (“FCC”) unit of the refinery. After concluding
     Pursuant to 5TH CIR. R. 47.5, the court has        his work on the heat exchanger, Spears began
determined that this opinion should not be published
                                                        toting his tools to the PSC tool shed, located
and is not precedent except under the limited cir-
cumstances set forth in 5TH CIR. R. 47.5.4.
                                                        south of the FCC unit. He tripped on steel-
braided hoses lying across his path and was                    tion resulting in the personal injury,
injured.                                                       death, or property damage and
                                                               failed to adequately warn.
   Spears and his wife sued Crown, alleging
state law causes of action; jurisdiction is based       TEX. CIV. PRAC. REM. CODE § 95.003. Fur-
on diversity of citizenship. Crown subsequently         thermore, the code clarifies,
moved for summary judgment, claiming that,
under chapter 95 of the Texas Civil Practice               This chapter applies only to a claim:
and Remedies Code, it cannot be liable for any
injuries to Spears. The district court agreed.                 (1) against a property owner, con-
                                                               tractor, or subcontractor for per-
                      II.                                      sonal injury, death, or property
   Enacted in 1995, chapter 95 reflects just one               damage to an owner, a contractor,
aspect of the Texas legislature’s recent so-                   or a subcontractor or an employee
called “tort reform” efforts. Generally, Texas                 of a contractor or subcontractor;
law imposed a duty on premises owners to                       and
inspect their premises and warn invitees of
dangers that are not open and obvious. See                     (2) that arises from the condition
Coastal Mar. Serv. v. Lawrence, 988 S.W.2d                     or use of an improvement to real
223, 225 (Tex. 1999). With the passage of                      property where the contractor or
chapter 95, however, that duty is abrogated in                 subcontractor constructs, repairs,
certain circumstances. According to the stat-                  renovates, or modifies the improve-
ute,                                                           ment.

   A property owner is not liable for personal          TEX. CIV. PRAC. REM. CODE § 95.002
   injury, death, or property damage to a con-          (emphasis added). It is the italicized portion
   tractor, subcontractor, or an employee of a          that is at issue in this case.
   contractor or subcontractor who constructs,
   repairs, renovates, or modifies an improve-                               III.
   ment to real property, including personal in-           Spears contends that chapter 95 is not
   jury, death, or property damage arising from         applicable here because his injury and claim
   the failure to provide a safe workplace              did not arise from the condition or use of the
   unless:                                              improvement to real property on which he
                                                        worked. He does not deny that the heat
       (1) the property owner exercises or              exchanger on which he was working is an
       retains some control over the man-               improvement for statutory purposes. Never-
       ner in which the work is performed,              theless, he posits that his injury and claim
       other than the right to order the                arose from the hoses left on the pathway
       work to start or stop or to inspect              outside the FCC unit in which the “improve-
       progress or receive reports; and                 ment” on which he was working was located.
                                                        Consequently, goes the argument, his claim
       (2) the property owner had actual                cannot have arose from the “condition or use
       knowledge of the danger or condi-                of” the improvement.


                                                    2
    At first blush, Spears’s argument is per-                hand, have repeatedly concluded that claims
suasive. Although Crown Central points to an                 such as Spears’s are barred.
abundance of Texas cases concluding that any
injury relating to the work done on the premises                 The best example is Fisher, on which the
is covered under chapter 95,1 “relating to” is a             district court substantially relied. In Fisher,
much broader proposition than is “arising from               the court used legislative history to conclude
the condition or use of the improvement.”                    that where a defect in a ladder used to reach
                                                             an air conditioning unit that was the object of
   This case is illustrative.         The injury             the plaintiff’s work caused the injury, chapter
undoubtedly was related to the work Spears                   95 protected the premises owner. The ladder
was doing, because it occurred while he was                  “provided appellant a means to reach his work
leaving his work site. Nevertheless, the alleged             site. It was not the object of his work. Never-
cause of the injury (i.e., the hoses) was neither            theless, appellant’s injuries arose from ‘the
a condition nor a use of the heat exchanger,                 failure to provide a safe workplace.’” Fisher,
which was the improvement on which Spears                    16 S.W. 3d at 202 (quoting TEX. CIV. PRAC.
worked. The district court acknowledged as                   REM. CODE § 95.003).
much, noting that “the injury-producing defect,
a hose stretched across a walkway, was not the                   In cases where federal jurisdiction is predi-
object of [Spears’] toils.”                                  cated solely on diversity, we are charged with
                                                             making our best “Erie guess” and “determin-
    None of this is to say, however, that the dis-           [ing] as best as [we] can” what the Texas
trict court erred in concluding that chapter 95              Supreme Court would decide were the ques-
shields Crown from liability. The Texas Su-                  tion before it. Howe v. Scottsdale Ins. Co.,
preme Court has yet to decide a case interpret-              204 F.3d 624, 627 (5th Cir. 2000). Where, as
ing the language of chapter 95 and elucidating               here, the state’s highest civil court has yet to
the extent of its limitations on premises liability.         rule on the question, we look to the decisions
The intermediate Texas courts, on the other                  of intermediate courts of appeals for guidance.
                                                              See id. Those decisions represent “dat[a] for
                                                             ascertaining state law which is not to be disre-
   1
      See Francis v. Coastal Oil & Gas Corp., 130            garded by a federal court unless it is convinced
S.W.3d 76, 83 (Tex. App. SSHouston [1st Dist.]               by other persuasive data that the highest court
2002, pet. denied); Admire v. H.E. Butt Grocery              of the state would decide otherwise.” Id.
Co., No. 01-02-00060-CV, 2003 WL 203514, at *2
(Tex. App.SSHouston [1st Dist.] 2003, no pet.);                 Given that the Texas intermediate courts of
Fisher v. Lee Chang P’ship, 16 S.W.3d 198, 202               appeals have unanimously2 construed chapter
(Tex. App.SSHouston [1st Dist.] 2000, pet. denied).          95 broadly, to preclude liability in instances
Other courts, although not explicitly confronting the
                                                             such as this, we must respect those decisions
argument Spears makes here, have similarly dis-
missed claims despite the fact that the alleged cause
                                                             as the best, and only, indicator of how the
of the worker’s injury was not the object of his toil.       Texas Supreme Court would rule. Conse-
See, e.g., Ashabranner v. Hydrochem Indus. Servs.,           quently, summary judgment was appropriate.
Inc., No. 14-03-00762-CV, 2004 WL 613026 (Tex.
App.SSHouston [14th Dist.] 2004, no pet.); Wilson
v. Patel, No. 03-03-00275-CV, 2004 WL 579073,
at *2 (Tex. App.SSAustin 2004, no pet.).                        2
                                                                    See note 1, supra.

                                                         3
AFFIRMED.




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