Opinion filed February 14, 2019




                                        In The


        Eleventh Court of Appeals
                                     __________

                                  No. 11-17-00077-CV
                                      __________

                    ALFREDO GARCIA, JR., Appellant
                                         V.
                   APACHE CORPORATION, Appellee


                     On Appeal from the 118th District Court
                            Howard County, Texas
                         Trial Court Cause No. 50,316


                     MEMORANDUM OPINION
      The trial court entered an order in which it granted Apache Corporation’s
traditional motion for summary judgment and dismissed Alfredo Garcia, Jr.’s
lawsuit against Apache. Apache based its motion on Chapter 95 of the Texas Civil
Practice and Remedies Code. In three issues, Garcia contends that the trial court
erred when it ruled that the provisions of Chapter 95 protect Apache from his lawsuit.
We affirm.
      The summary judgment evidence shows that Apache was the owner of a tank
battery. The tank battery comprises several 500-barrel steel tanks and a ventilation
system. Apache wanted to install a new flare system and emissions control, and it
hired Blakely Construction to modify some existing piping on the tank battery.
      Garcia, an employee of Blakely, and another Blakely worker climbed on top
of one of the tanks to disconnect a 30-foot section of the existing piping. The pipe
was bolted on one end to the top of the tank, and the other end of the pipe was
fastened to an elevated riser, or A-frame, which was located south of the tank.
Garcia attached his fall protection lanyard to that pipe. He and the other Blakely
employee then unbolted the end of the pipe from the top of the tank and placed the
disconnected end on a temporary stand that was on top of the tank. The temporary
stand was not attached or secured. The other end of the pipe remained fastened to
the riser that was located south of the tank.
      As Garcia continued to work, the wind speed increased and caused the
temporary stand to blow over. When the temporary stand blew over, the pipe slid
off the sloped surface of the tank and fell to the ground, and because Garcia’s fall
protection lanyard was still connected to that pipe, he fell to the ground with it.
Garcia suffered extensive injuries.
      Garcia sued Apache for injuries that he received from the fall. Apache
eventually filed a traditional motion for summary judgment and claimed that the
provisions of Chapter 95 protected Apache from liability for Garcia’s claims. The
trial court granted Apache’s motion, without stating its reasons therefor, and
dismissed Garcia’s lawsuit. In three issues on appeal, Garcia basically argues that
the summary judgment evidence in this case did not conclusively establish that
Apache is entitled to protection from Garcia’s claims under Chapter 95.
      Section 95.002(1) of the Texas Civil Practice and Remedies Code provides
that Chapter 95 applies to claims “(1) against a property owner, contractor, or
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subcontractor for personal injury, death, or property damage to an owner, a
contractor, or a subcontractor or an employee of a contractor or subcontractor.” TEX.
CIV. PRAC. & REM. CODE ANN. § 95.002(1) (West 2011). Section 95.002(2) provides
further that the claim must arise “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(2).
      Section 95.003 provides as follows:
            A property owner is not liable for personal injury, death, or
      property damage to a contractor, subcontractor, or an employee of a
      contractor or subcontractor who constructs, repairs, renovates, or
      modifies an improvement to real property, including personal injury,
      death, or property damage arising from the failure to provide a safe
      workplace 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.
Id. § 95.003.
      It is undisputed that Chapter 95 applies to this lawsuit. Because Chapter 95
is applicable, Garcia has the burden to satisfy both conditions contained in
Section 95.003. Abutahoun v. Dow Chem. Co., 463 S.W.3d 42, 51–52 (Tex. 2015).
Therefore, before Apache can be held liable for Garcia’s injuries, Garcia must show
that Apache retained or exercised control over the manner in which Garcia
performed the work. If it is shown that Apache retained or exercised control, then it
must also be shown that Apache had actual knowledge of the danger or condition
that resulted in Garcia’s injuries and then failed to adequately warn Garcia of the


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danger or condition. Id.; Kelly v. LIN Television of Tex., L.P., 27 S.W.3d 564, 567
(Tex. App.—Eastland 2000, pet. denied).
      Apache filed a traditional motion for summary judgment, not a no-evidence
one. In this appeal, Apache maintains, among other things, that it conclusively
established that it did not retain or exercise control over the danger or condition that
caused Garcia’s injury.
      We review a summary judgment de novo. Travelers Ins. Co. v. Joachim, 315
S.W.3d 860, 862 (Tex. 2010). The movant for traditional summary judgment must
show that there is no genuine issue of material fact and that it is entitled to judgment
as a matter of law. See TEX. R. CIV. P. 166a(c); Mann Frankfort Stein & Lipp
Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). When we review a
traditional motion for summary judgment, we review the evidence in the light most
favorable to the nonmovant, indulge every reasonable inference in favor of the
nonmovant, and resolve any doubts against the novant. City of Keller v. Wilson, 168
S.W.3d 802, 824 (Tex. 2005).
      We will affirm a traditional summary judgment in favor of a defendant only
when the record shows that the defendant has conclusively disproved at least one
element of each of the plaintiff’s claims or has conclusively established all the
elements of an affirmative defense as to each claim. Am. Tobacco Co., Inc. v.
Grinnell, 951 S.W.2d 420, 425 (Tex. 1997). A matter is conclusively established if
ordinary minds could not differ as to the conclusion to be drawn from the evidence.
Triton Oil & Gas Corp. v. Marine Contractors & Supply, Inc., 644 S.W.2d 443, 446
(Tex. 1982). If a defendant establishes a right to summary judgment as a matter of
law, the burden shifts to the plaintiff to present evidence raising a genuine issue of
material fact. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678–79
(Tex. 1979); Plunkett v. Conn. Gen. Life Ins. Co., No. 11-13-00129-CV, 2015 WL
3484985, at *4 (Tex. App.—Eastland May 29, 2015, pet. denied) (mem. op.).
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      We agree with Apache’s contention that it conclusively established that it
neither retained nor exercised the control contemplated in Section 95.003(1). That
being true, Garcia bore the burden to present summary judgment evidence that raised
a material issue of fact as to whether Apache retained or exercised control. See CIV.
PRAC. & REM. § 95.003(2); Abutahoun, 463 S.W.3d at 51–52.
      There is nothing in the summary judgment record to show that Apache
retained any control over the project. Therefore, the question is whether Apache
exercised control over the work being done by Blakely.
      The type of control contemplated in Section 95.003(1) refers to a property
owner’s right to control the means, methods, or details of the manner in which the
work is performed to the extent that those doing the work are not entirely free to do
the work in their own way. See Elliott-Williams Co. v. Diaz, 9 S.W.3d 801, 804
(Tex. 1999). Although Elliott-Williams is a common law case, the first prong of
Section 95.003 is a codification of the common law. Dyall v. Simpson Pasadena
Paper Co., 152 S.W.3d 688, 699 (Tex. App.—Houston [14th Dist.] 2004, pet.
denied). A right of control “must extend to the ‘operative detail’ of the contractor’s
work.” Chi Energy, Inc. v. Urias, 156 S.W.3d 873, 880 (Tex. App.—El Paso 2005,
pet. denied). The control must involve the means, method, or details of the work.
Id. at 879. It is not enough that the owner has the right to order the work to stop and
start, to inspect progress, or to receive reports, or that the owner recommends a safe
manner for the independent contractor’s employees to employ in the performance of
the work. See CIV. PRAC. & REM. § 95.003(1); Dow Chem. Co. v. Bright, 89 S.W.3d
602, 606–09 (Tex. 2002).
      The summary judgment evidence includes Apache’s admissions that it had the
right to stop work, that it could shut down the work if it saw an unsafe condition,
that it could specify that certain equipment should be used, and that it could shut
down the job if that equipment was not used. Those types of activities are not
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sufficient to show the exercise of control. Torres v. Chauncey Mansell & Mueller
Supply Co., 518 S.W.3d 481, 492–95 (Tex. App —Amarillo 2017, pet. denied).
      Garcia relies upon an “Internal Incident Report” that Apache personnel
prepared after the accident. There is nothing in that report to show that Apache
controlled the means, methods, or details of the way that Blakely employees were to
perform the work or that those employees were not entirely free to do the work in
their own way. See Elliott-Williams Co., 9 S.W.3d at 804. Further, there is nothing
in the record to show that Apache exercised the kind of control that “extend[ed] to
the ‘operative detail’ of the contractor’s work.” See Chi Energy, 156 S.W.3d at 880.
On the day that Garcia fell from the tank, as well as the day before, there were no
Apache supervisors present at the jobsite who could instruct Blakely employees on
the details of how they were to perform their work. Milton Miller, who was
substituting for Apache’s regular supervisor over the jobsite, was at another Apache
location when Garcia fell. Miller did not know that Blakely employees would be
working on top of the tank that day.
      Garcia relies upon Lee Lewis Construction, Inc. v. Harrison, 70 S.W.3d 778,
784 (Tex. 2001), and Redinger v. Living, Inc., 689 S.W.2d 415 (Tex. 1985), in
support of his position. Those cases are distinguishable. Unlike the case now before
us, there was evidence that the premises owners in both of those cases did in fact
exercise actual control over the manner, means, and details of the work. See Lee
Lewis, 70 S.W.3d at 784; Redinger, 689 S.W.2d at 418.
      We hold that Apache conclusively established that it neither retained nor
exercised control over the work that Blakely was hired to do. It was Garcia’s burden
to then present summary judgment evidence that raised a genuine issue of material
fact as to control; he did not. We overrule Garcia’s first issue on appeal.
      In his second issue on appeal, Garcia takes the position that this is “a classic
negligent activity, failure to supervise case.”     Garcia maintains that “Miller’s
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absence (the failure to exercise control) doesn’t excuse the negligence; Miller’s
absence is the negligence.” Regardless of the name given to Garcia’s claim, it is a
negligence claim that arises from the condition or use of an improvement to real
property and, as such, is subject to Chapter 95. Chapter 95 applies to all independent
contractor claims for damages that are caused by a property owner’s negligence, if
the requirements of Section 95.002 are satisfied. Abutahoun, 463 S.W.3d at 43–44;
Torres, 518 S.W.3d at 486.                   Those claims include ones that involve the
contemporaneous negligent activities of the premises owner.                             Abutahoun, 463
S.W.3d at 48.
        Chapter 95 applies to Garcia’s claim, even if it is couched as a negligent-
failure-to-supervise claim. Because Chapter 95 applies to Garcia’s claim and
because Garcia did not meet his summary judgment burden on the control issue
contained in Section 95.003(1), we overrule Garcia’s second issue on appeal.
        In view of our holding regarding the control issue, we need not reach Garcia’s
third issue on appeal in which he addresses the actual-knowledge and failure-to-warn
elements of Section 95.003(2).
        We affirm the judgment of the trial court.



                                                           JIM R. WRIGHT
                                                           SENIOR CHIEF JUSTICE
February 14, 2019
Panel consists of: Bailey, C.J.,
Stretcher, J., and Wright, S.C.J.1

Willson, J. not participating.

        1
          Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland,
sitting by assignment.
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