                                                                                                                 ACCEPTED
                                                                                                             14-14-00158-CV
                                                                                           FOURTEENTH COURT OF APPEALS
                                                                                                          HOUSTON, TEXAS
                                                                                  R. RUSSELL HOLLENBECK 5/28/2015 3:54:37 PM
                                                                                                       CHRISTOPHER PRINE
                                                                                  hollenbeck@wrightclose.com          CLERK

                                                                                  Board Certified Civil Appellate Law
                                                                                  Texas Board of Legal Specialization

                                                                                       FILED IN
                                                                                14th COURT OF APPEALS
                                          May 28, 2015                             HOUSTON, TEXAS
                                                                                5/28/2015 3:54:37 PM
                                                                                CHRISTOPHER A. PRINE
                                                                                         Clerk
Hon. Christopher A. Prine, Clerk                                      Via Electronic Submission
Fourteenth Court of Appeals
301 Fannin, Suite 245
Houston, Texas 77002

      Re:    Cause No. 14-14-00158-CV
             Oiltanking Houston, L.P., et al. v. Alberto Delgado, et al.

Dear Mr. Prine:

      The undersigned is counsel for the Appellants, Oiltanking Houston, L.P.,
Oiltanking Holding Americas, Inc., Oiltanking Partners, L.P., and Oiltanking
North America, L.L.C. (collectively, “Oiltanking”), in this proceeding. Oiltanking
respectfully requests that you forward this letter brief to Justices Boyce, McCally,
and Donovan. A copy of this letter is being served on counsel for the Appellees
contemporaneously with its filing with the Court.

       Oiltanking submits this post-submission letter to draw the Court’s attention
to a recent decision by the Texas Supreme Court that impacts the consideration of
the issues raised at the parties’ recent oral argument.

I.    Chapter 95 applies to all negligence claims, including negligent activity
      and negligent undertaking claims, when its prerequisites are satisfied.

      At the parties’ oral argument, the members of the panel asked counsel for
both sides, “What about Elmgren?” (paraphrasing). The panel seemed particularly
concerned about the holdings of that case concerning the scope of Chapter 95’s
application to claims sounding in negligence. See Elmgren v. Ineos USA, LLC, 431
S.W.3d 657, 671 (Tex. App—Houston [14th Dist.] 2014, pet. filed).



                                         WRIGHT & CLOSE, LLP
         ONE RIVERWAY, SUITE 2200, HOUSTON, TEXAS 77056  TEL: 713.572.4321  FAX: 713.572.4320
Fourteenth Court of Appeals
May 28, 2015
Page 2 of 5

      In Elmgren, this Court held, in part, as follows: “[W]e conclude that
Chapter 95 defeats a premises-liability claim if the statutory requisites are satisfied
but does not as a matter of law reach distinct claims for negligent activity and
negligent undertaking.” Id.

      The Texas Supreme Court’s very recent decision in Abutahoun v. Dow
Chemical Company, __ S.W.3d __, 2015 WL 2147979 (Tex. May 8, 2015),
answers the panel’s question by effectively overruling Elmgren in this regard. (See
attached.) In Abutahoun, the Court held as follows:

             The sole issue in this appeal is whether Chapter 95 applies to an
      independent contractor’s negligence claims against a property owner
      when the claims are based on injuries arising out of the property
      owner’s negligent activities and not the independent contractor’s own
      work. . . . Applying the plain language of the statute, we hold that
      Chapter 95 applies to all independent contractor claims for damages
      caused by a property owner’s negligence when the requirements of
      section 95.002(2) are satisfied.
                                       * * *
             As we have explained, “negligent activity encompasses a
      malfeasance theory based on affirmative, contemporaneous conduct
      by the owner that caused the injury, while premises liability
      encompasses a nonfeasance theory based on the owner’s failure to
      take measures to make the property safe.” Despite their differences,
      both claims are a species of negligence. While it is true that “[w]e
      have rejected attempts to blur the distinction between these two
      claims, it is nonetheless an accurate statement that both types of
      claims fall within the common meaning of the term “negligence”
      that appears, undefined in section 95.001(1).

Id. at *1, *7 (citations omitted) (emphasis added).

         As a result, the Court held that “[w]e can only conclude that the Legislature
intended for Chapter 95 to apply to all negligence claims that arise from either a
premises defect or the negligent activity of a property owner or its employees
. . . .” Id. at *6 (emphasis added).

                                          2
Fourteenth Court of Appeals
May 28, 2015
Page 3 of 5

      At oral argument, counsel for Appellees all but conceded the absence of any
evidence supporting a negligent activity theory of liability. Given this recent
decision from the Texas Supreme Court, as well as the fact that Appellees’ claims
indisputably arise from a condition of the improvement on which they were
working at the time of this accident, it is clear that whether this Court concludes
Appellees’ theories of liability arise from negligent activity, negligent undertaking,
or a condition of the premises, Appellees were required to satisfy the elements of
Chapter 95 to recover.

II.   There was no evidence of control or actual knowledge.

       Chapter 95 requires proof that (i) the property owner exercised or retained
some control over the manner in which the independent contractor performed its
work, and (ii) the property owner had actual knowledge of the danger or condition
of the premises that resulted in the independent contractor’s injuries or death and
failed to adequately warn the contractor. See TEX. CIV. PRAC. & REM. CODE §
95.003. Appellees failed to satisfy the elements of the statute.

       This Court has previously held that proving a property owner exercised
control over the means, methods, or details of an independent contractor’s work
requires more than showing a right to order work to start or stop or to inspect
progress and receive reports. See Johnston v. Oiltanking Houston, L.P., 367
S.W.3d 412, 417 (Tex. App.—Houston [14th Dist.] 2012, no pet.). Nor is it
enough to show the defendant controlled one aspect of an independent contractor’s
activities if the accident arose from another. Id. Finally, the right to schedule the
timing of work, coordinate the activities of contractors, and prescribe alterations or
deviations in the work is also not sufficient to impose liability on a premises
owner. Id. at 419 (“Oiltanking must have some latitude to tell its independent
contractors what to do, in general terms, and may do so without becoming subject
to liability.”). As shown in Oiltanking’s briefing, the evidence at trial did not rise
to the level of control required to establish liability under Chapter 95.

     How this accident occurred was also a matter of dispute at trial. But there
was no evidence that anyone at Oiltanking possessed actual knowledge that

                                          3
Fourteenth Court of Appeals
May 28, 2015
Page 4 of 5

hazardous fumes or vapors were leaking around the plumber’s plug into the work
area (if, in fact, they were) before this accident occurred. And as this Court has
previously explained, mere constructive knowledge is not sufficient to satisfy the
requirements of Chapter 95. See, e.g., Elmgren, 431 S.W.3d at 666 (holding
defendant not liable under Chapter 95 where no evidence showed actual
knowledge that valve at issue was leaking); Bishop v. Nabisco, Inc., 2004 WL
832916 at *3 (Tex. App.—Houston [14th Dist.] 2004, no pet.) (mem. op.) (“Actual
knowledge that the cover was dangerous is different than knowing that the cover
was potentially dangerous.”). There was no evidence at trial that Oiltanking
possessed the actual knowledge necessary to establish liability under Chapter 95.

      For these and the others reasons raised in its briefing, Oiltanking respectfully
requests that the Court reverse the trial court’s judgment.

                                          Respectfully submitted,

                                          /s/ R. Russell Hollenbeck
                                          WRIGHT & CLOSE, LLP
                                          State Bar No. 00790901




                                          4
Fourteenth Court of Appeals
May 28, 2015
Page 5 of 5

RRH:jcr

cc:   Peter M. Kelly                        Via Electronic Service
      KELLY, DURHAM & PITTARD, LLP
      1005 Heights Blvd.
      Houston, Texas 77008

      Robert S. Kwok                        Via Electronic Service
      KWOK DANIEL LTD., L.L.P.
      6588 Corporate Drive, Suite 300
      Houston, Texas 77036

      Attorneys for Appellees




                                        5
Abutahoun v. Dow Chemical Company, --- S.W.3d ---- (2015)


                                                                            Safe Workplace Laws
                     2015 WL 2147979                                   Independent contractor's employee was not
       Only the Westlaw citation is currently available.               injured by an improvement separate from
                                                                       improvement that was object of his work in
      NOTICE: THIS OPINION HAS NOT BEEN                                removing asbestos insulation and installing new
      RELEASED FOR PUBLICATION IN THE                                  insulation on property owner's pipe system,
 PERMANENT LAW REPORTS. UNTIL RELEASED,                                and thus, statute precluding liability of property
 IT IS SUBJECT TO REVISION OR WITHDRAWAL.                              owners for injuries suffered by contractors or
                                                                       their employees from owner's failure to provide
                  Supreme Court of Texas.
                                                                       a safe workplace applied to negligence claim
                                                                       asserted by employee's estate, which in turn
  Magdalena Adrienna Abutahoun, Individually and
                                                                       meant that estate was required to carry two-
  as Personal Representative of the Heirs and Estate
                                                                       pronged evidentiary burden, under the statute,
  of Robert Wayne Henderson, Deceased, and Tanya
                                                                       to prove that owner exercised or retained some
  Elaine Henderson, Individually in Her Own Right                      control over the manner in which the work was
  and as Next Friend of Z.Z.H., a Minor, Petitioners,                  performed and that owner had actual knowledge
                          v.                                           of the danger or condition resulting in worker's
      The Dow Chemical Company, Respondent                             death and failed to adequately warn. V.T.C.A.,
                                                                       Civil Practice & Remedies Code § 95.001 et seq.
       NO. 13–0175 | Argued January 14,
   2015 | OPINION DELIVERED: May 8, 2015                               Cases that cite this headnote

Synopsis
Background: Worker's estate sued property owner under            [2]   Statutes
theories of premises liability, negligence, gross negligence,               Language
and conspiracy, alleging owner failed to keep its premises             When construing a statute, courts begin with its
in reasonably safe condition while worker was performing               language.
work for independent contractor, and failed to warn worker
                                                                       Cases that cite this headnote
of “dangerous ongoing activities, namely the use, application,
and clean-up and removal of asbestos-containing products.”
The 160th Judicial District Court, Jim Jordan, J., entered       [3]   Appeal and Error
judgment, on jury verdict, for estate. The Court of Appeals               Cases Triable in Appellate Court
reversed, 395 S.W.3d 335. Estate's petition for review was             Appellate court reviews statutory construction de
granted.                                                               novo.

                                                                       Cases that cite this headnote
[Holding:] The Supreme Court, Green, J., held that statute
precluding liability of property owners for injuries suffered    [4]   Statutes
by contractors' employees from an owner's failure to provide                Plain Language; Plain, Ordinary, or
safe workplace applied to estate's claims.                             Common Meaning
                                                                       Courts look to the plain meaning of the words in
                                                                       a statute as an expression of legislative intent.
Affirmed.
                                                                       Cases that cite this headnote


 West Headnotes (10)                                             [5]   Statutes
                                                                             Plain language; plain, ordinary, common, or
                                                                       literal meaning
 [1]       Negligence



                 © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                        1
Abutahoun v. Dow Chemical Company, --- S.W.3d ---- (2015)


       Statutes
            Extrinsic Aids to Construction                            Cases that cite this headnote

       If the statute is clear and unambiguous, courts
       must read the language according to its common          [9]    Statutes
       meaning without resort to rules of construction                     Plain, literal, or clear meaning of statute;
       or extrinsic aids.                                             ambiguity
                                                                      Because abrogation is disfavored, courts
       Cases that cite this headnote
                                                                      examine the statute's plain language for the
                                                                      Legislature's clear intention to replace a common
 [6]   Statutes                                                       law remedy with a statutory remedy, and the
            Plain Language; Plain, Ordinary, or                       court declines to construe statutes to deprive
       Common Meaning                                                 citizens of common-law rights unless the
       Statutes                                                       Legislature clearly expressed that intent.
            Defined terms; definitional provisions
                                                                      Cases that cite this headnote
       Statutes
            Context
                                                               [10]   Negligence
       Statutes
                                                                          Safe Workplace Laws
            Relation to plain, literal, or clear meaning;
       ambiguity                                                      When a claim does not arise from a condition
                                                                      or use of an improvement to real property
       A court initially limits its statutory review to the
                                                                      where the contractor or subcontractor modifies
       plain meaning of the text as the sole expression
                                                                      the improvement, the statute precluding liability
       of legislative intent, unless the Legislature has
                                                                      of property owners for injuries suffered by
       supplied a different meaning by definition, a
                                                                      contractors or their employees from owner's
       different meaning is apparent from the context,
                                                                      failure to provide a safe workplace does not
       or applying the plain meaning would lead to
                                                                      apply and an independent contractor can recover
       absurd results.
                                                                      for common law negligence. Tex. Civ. Prac. &
       Cases that cite this headnote                                  Rem. Code Ann. § 95.002(2).

                                                                      Cases that cite this headnote
 [7]   Statutes
            Titles, headings, and captions
       When the plain meaning of a statute controls, the
       title of the section carries no weight, as a heading   ON PETITION FOR REVIEW FROM THE COURT OF
       does not limit or expand the meaning of a statute.     APPEALS FOR THE FIFTH DISTRICT OF TEXAS

       Cases that cite this headnote                          Attorneys and Law Firms

                                                              Erin Marie Wiegand, Fisher, Boyd, Johnson & Huguenard,
 [8]   Statutes                                               LLP, Houston, Justin Joseph Presnal, Fisher, Boyd, Johnson
            Absence of Ambiguity; Application of              & Huguenard, LLP, Houston, Michael E. Shelton, The
       Clear or Unambiguous Statute or Language               Shelton Law Firm, Houston, for Amicus Curiae Dallas
       Statutes                                               Building Trades Council.
            Extrinsic Aids to Construction
                                                              William V. Dorsaneo III, SMU School of Law, Dallas, for
       When a statute's language is clear and
                                                              Amicus Curiae William V. Dorsaneo III.
       unambiguous, it is inappropriate to resort to rules
       of construction or extrinsic aids to construe the      Christine Tamer, Denyse Ronan Clancy, John Lacoste
       language.                                              Langdoc, Baron & Budd, P.C., Dallas, for Petitioner
                                                              Magdalena Adrienna Abutahoun.


              © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                         2
Abutahoun v. Dow Chemical Company, --- S.W.3d ---- (2015)


                                                                     nearby. He was also allegedly exposed to asbestos dust
Amy Pharr Hefley, Macey Reasoner Stoke, Matthew Eagan,               as a result of his own direct contact with the insulation
Stephen G. Tipps, Baker Botts LLP, Houston, David P.                 products. At trial, a Dow employee who worked on the
Herrick, Herrick & Associates PC, Dallas, for Respondent             same asbestos-insulated pipeline system as Robert Henderson
The Dow Chemical Company.                                            testified, “[y]ou name it, we sawed it,” and also testified
                                                                     that individuals within twenty yards of him were “in the
Opinion
                                                                     [asbestos] dust area.” In a pre-trial deposition, Robert
JUSTICE GREEN delivered the opinion of the Court.                    Henderson testified that he was doing the same kind of
                                                                     work as Dow employees on the asbestos-insulated pipeline
 *1 In this case of first impression, we must interpret Chapter      system, and he testified about the frequency, regularity, and
95 of the Texas Civil Practice and Remedies Code, which              proximity of the exposure he received as a bystander to Dow
relates to limitations on a property owner's liability for injury,   employees performing similar insulation work nearby. Robert
death, or property damage to an independent contractor. See          Henderson testified that, while at Dow's Freeport facility, he
TEX. CIV. PRAC. & REM. CODEE ch. 95. The underlying                  worked on the pipeline system two to three days per week
legal dispute began when a pipeline insulation worker                for four to five hours per day, usually working within five to
contracted mesothelioma and sued a chemical company                  ten feet of Dow employees who were working with asbestos-
alleging that he was exposed to asbestos-containing products         based insulation.
while working as an independent contractor at the chemical
company's facility. The sole issue in this appeal is whether          *2 Eventually, Robert Henderson was diagnosed with
Chapter 95 applies to an independent contractor's negligence         mesothelioma, and he and his wife, Tanya, sued Dow
claims against a property owner when the claims are based            and over a dozen other defendants, alleging under various
on injuries arising out of the property owner's negligent            negligence and product liability theories that the defendants
activities and not the independent contractor's own work. The        were responsible for Robert Henderson's injuries due to
court of appeals held that “[t]he plain meaning of the text          asbestos exposure. Upon Robert Henderson's death, the
of Chapter 95 does not preclude its applicability where a            petition was amended to allow his adult daughter, Magdalena
claim is based upon negligent actions of the premises owner.”        Adrienna Abutahoun, and his minor daughter, through Tanya
395 S.W.3d 335, 347 (Tex.App.–Dallas 2013). Applying the             Henderson as next friend, to join the lawsuit as wrongful
plain meaning of the statute, we hold that Chapter 95 applies        death heirs (collectively, the Hendersons). The lawsuit
to all independent contractor claims for damages caused              was originally filed in the 160th District Court in Dallas
by a property owner's negligence when the requirements of            County but was transferred to the asbestos multi-district
section 95.002(2) are satisfied. We affirm the court of appeals'     litigation (MDL) pretrial court in Harris County for pretrial
judgment.                                                            proceedings. See TEX. GOV'T CODE § 74.162.

                                                                     Dow moved for summary judgment in the MDL pretrial
                                                                     court, arguing that Chapter 95 of the Texas Civil Practice
          I. Factual and Procedural Background
                                                                     and Remedies Code applied to the Hendersons' negligence
The Dow Chemical Company contracted with Win–Way                     claims against Dow and precluded any recovery. The MDL
Industries to install insulation on a system of pipelines at         pretrial court granted Dow summary judgment in part and
Dow's facility in Freeport, Texas. Robert Henderson was              dismissed “all claims against [Dow] in which Plaintiffs allege
a Win–Way employee, and he assisted with the insulation              that Decedent Robert Wayne Henderson ... was injured by
work at Dow's Freeport facility from 1967 to 1968. Dow's             exposure to respirable asbestos as the result of the activities
Freeport facility contained thousands of pipes in a pipeline         of Decedent and/or the activities of other employees of
system that ran throughout the facility. The pipes, which            Decedent's employer on any premises of [Dow].” The MDL
Robert Henderson helped insulate with a material containing          pretrial court denied Dow's motion for summary judgment
asbestos, transported steam and various types of acid. While         “as to all of Plaintiffs' other claims against [Dow], including
working for Win–Way on the asbestos-insulated pipeline               Plaintiffs' claims that Decedent was injured by virtue of the
system at Dow's Freeport facility, Robert Henderson was              activities of Dow Employees.” Accordingly, although Robert
allegedly exposed to asbestos dust by Dow employees who              Henderson was allegedly exposed to asbestos both directly
were installing, sawing, and removing asbestos insulation            from his own insulation work and as a bystander to the



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                              3
Abutahoun v. Dow Chemical Company, --- S.W.3d ---- (2015)


insulation work of Dow employees, only the Hendersons'              improvement. See id. at 348. Thus, Chapter 95 applied to
claims predicated on the negligence of Dow's employees were         the Hendersons' claims against Dow, and the Hendersons had
allowed to proceed before the jury.                                 to establish Dow's liability under the standards set forth in
                                                                    Chapter 95, which they failed to do. Id. The Hendersons filed
The MDL pretrial court remanded the case to the original trial      a petition for review in this Court, which we initially denied.
court, and the Hendersons' remaining claims based on Dow's          After considering the Hendersons' motion for rehearing,
employees' contemporaneously negligent activities were tried        which cited several recent courts of appeals' decisions that
to a jury. The Hendersons' claims against all other defendants      conflicted with the court of appeals' decision in this case, we
were resolved before the case was submitted to the jury. At         granted the Hendersons' petition. See 58 TEX. SUP. CT. J. 85
the conclusion of trial, a general negligence question was          (Nov. 24, 2014).
submitted that instructed the jury to consider, with respect
to Dow, “only the activities of [Dow] employees at Dow ...
facilities.” 1 The jury returned a verdict in which it found that                           II. Discussion
Dow's negligence proximately caused Robert Henderson's
injuries, and that Dow was 30% responsible for causing               [1] [2] As always, “[w]hen construing a statute, we begin
Robert Henderson's injuries. Based on the jury verdict and          with its language.” State v. Shumake, 199 S.W.3d 279, 284
several adjustments, the trial court rendered judgment against      (Tex.2006). Chapter 95 of the Texas Civil Practice and
Dow for $2.64 million plus interest and court costs.                Remedies Code is titled “Property Owner's Liability for Acts
                                                                    of Independent Contractors and Amount of Recovery.” TEX.
Dow appealed the verdict and argued that Chapter 95 does not        CIV. PRAC. & REM. CODEE ch. 95. The heart of the
distinguish between a property owner's liability for exposure       chapter, sections 95.002 and .003, establishes Chapter 95's
caused by the activities of contractors and their employees         applicability and limitations on a property owner's liability
and exposure that the property owner's own employees'               for personal injury, death, or property damage to independent
activities caused. 395 S.W.3d at 338–39. Further, Dow               contractors, respectively. 2 Id. §§ 95.002–.003. Regarding
argued that Chapter 95 applied to bar all of the Hendersons'        applicability, section 95.002 states that Chapter 95 “applies
negligence claims because the Hendersons did not establish          only to a claim.” Id. § 95.002. A “claim” is specifically
that Dow had both control over Robert Henderson's work              defined as “a claim for damages caused by negligence.” Id.
and actual knowledge of the dangers of asbestos exposure            § 95.001(1). Section 95.002 then explains that Chapter 95
as Chapter 95 requires. See id. at 339; see also TEX. CIV.          applies only to a claim for damages caused by negligence:
PRAC. & REM. CODEE § 95.003. The Hendersons argued
that Dow could not “avail itself of the heightened protections        (1) against a property owner, contractor, or subcontractor
afforded by Chapter 95” because their claims against Dow              for personal injury, death, or property damage to an owner,
were “based solely upon the negligent activities of Dow               a contractor, or a subcontractor or an employee of a
employees, and not from injury arising from the condition             contractor or subcontractor; and
or use of an improvement of real property by [Robert]
                                                                      (2) that arises from the condition or use of an
Henderson.” 395 S.W.3d at 342.
                                                                      improvement to real property where the contractor or
                                                                      subcontractor constructs, repairs, renovates, or modifies
 *3 The court of appeals agreed with Dow's interpretation
                                                                      the improvement.
of the statute. See id. at 347. The court of appeals
reversed the trial court's judgment and rendered a take-            Id. § 95.002. Section 95.003 establishes the limitations on a
nothing judgment in favor of Dow, holding that Chapter              property owner's liability for a claim to which Chapter 95
95 applied to the Hendersons' claims against Dow because            applies:
“[t]he plain meaning of the text of [section 95.002(2) ] does
not preclude [Chapter 95's] applicability where a claim is            A property owner is not liable for personal injury, death,
based upon the negligent actions of the premises owner.”              or property damage to a contractor, subcontractor, or an
Id. The court of appeals reasoned that the claim arose                employee of a contractor or subcontractor who constructs,
from the condition or use of an improvement (the asbestos-            repairs, renovates, or modifies an improvement to real
insulated pipeline system) where Robert Henderson, as a               property, including personal injury, death, or property
contractor, constructed, repaired, renovated, or modified the



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                             4
Abutahoun v. Dow Chemical Company, --- S.W.3d ---- (2015)


  damage arising from the failure to provide a safe workplace      Dow argues that the court of appeals correctly held that
  unless:                                                          “[t]he plain meaning of the text of [section 95.002(2)
                                                                   ] does not preclude [Chapter 95's] applicability where a
     (1) the property owner exercises or retains some control      claim is based upon the negligent actions of the premises
     over the manner in which the work is performed, other
                                                                   owner.” 3 395 S.W.3d at 347. Under Dow's interpretation
     than the right to order the work to start or stop or to
                                                                   of the statute, Chapter 95 “applies ... to a claim ... against
     inspect progress or receive reports; and
                                                                   a property owner ... for damages caused by negligence ...
      (2) the property owner had actual knowledge of the           that arises from the condition or use of an improvement
      danger or condition resulting in the personal injury,        to real property.” According to Dow, the only condition
      death, or property damage and failed to adequately warn.     on Chapter 95's applicability—that the claim arise from the
                                                                   condition or use of an improvement to real property that
Id. § 95.003.                                                      the contractor “constructs, repairs, renovates, or modifies”—
                                                                   was satisfied because Robert Henderson's asbestos exposure
 [3]     [4]    [5]     [6] “We review statutory construction deresulted from Dow's employees doing the same work he did
novo.” Crosstex Energy Servs., L.P. v. Pro Plus, Inc., 430         on the same asbestos-insulated pipe system. Dow contends
S.W.3d 384, 389 (Tex.2014) (citing City of Rockwall v.             that Chapter 95 applies when a negligence claim arises from
Hughes, 246 S.W.3d 621, 625 (Tex.2008)). We look to the            the “condition or use” of the improvement on which an
plain meaning of the words in a statute as an expression of        independent contractor is working, and the claim need not be
legislative intent. Id. “If the statute is clear and unambiguous,  predicated on a contractor's negligence.
we must read the language according to its common meaning
‘without resort to rules of construction or extrinsic aids.’ ”      [7]     [8] Neither party seriously contends that Chapter 95
Id. (quoting Shumake, 199 S.W.3d at 284). Thus, we initially       is ambiguous, although the Hendersons argue that the Court
limit our statutory review to the plain meaning of the text as     should employ several statutory construction aids that are
the sole expression of legislative intent, see State ex rel. State typically reserved for interpreting ambiguous statutes. 4 We
Dep't of Highways & Pub. Transp. v. Gonzalez, 82 S.W.3d            read Chapter 95 to be unambiguous, and therefore we apply
322, 327 (Tex.2002), unless the Legislature has supplied           its plain meaning as the statute is written. See City of Hous. v.
a different meaning by definition, a different meaning is          Jackson, 192 S.W.3d 764, 770 (Tex.2006).
apparent from the context, or applying the plain meaning
would lead to absurd results, see Tex. Lottery Comm'n v. First      *5 The core of Chapter 95's applicability is that it “applies
State Bank of DeQueen, 325 S.W.3d 628, 635 (Tex.2010).             only to a claim,” TEX. CIV. PRAC. & REM. CODEE §
                                                                   95.002, and the Legislature specifically defined a “claim”
 *4 The Hendersons argue that the court of appeals erred           to mean “a claim for damages caused by negligence,” id.
by holding that Chapter 95 applies to a claim predicated on        § 95.001(1). Section 95.002(1) identifies whom a claim
a property owner's “contemporaneous negligent acts” and            for damages caused by negligence subject to Chapter 95
not, according to section 95.002(2), only to a claim that          may be brought against: “a property owner, contractor, or
arises when an independent contractor constructs, repairs,         subcontractor.” Id. § 95.002(1). Despite identifying three
renovates, or modifies an improvement to real property. In         potential defendants in the applicability provision of section
other words, according to the Hendersons, any claim that           95.002, the Legislature limited only a property owner's
falls within the scope of section 95.002 must arise out of the     liability in section 95.003. See id. § 95.003. Furthermore,
independent contractor's work. They argue that the omission        although the statute lists whom a claim governed by Chapter
of a “property owner” from section 95.002(2), especially           95 can be asserted against, section 95.002 says nothing
when it is included in section 95.002(1)'s list of possible        about the actor who causes the negligence claim to arise and
defendants against whom a claim falling within Chapter 95          makes no distinction between harm caused by a contractor's
might be asserted, establishes that Chapter 95 applies only to     actions and harm caused by another's actions. See id. §
claims against property owners arising “out of the contractor's    95.002. Section 95.002(1) simply provides that a claim for
work, and does not apply to a contractor who is a passive          damages caused by negligence may be brought for “personal
victim of the contemporaneous negligent activities of the          injury, death, or property damage.” Id. § 95.002(1). That
premises owner.”                                                   section also identifies the persons who may be damaged as
                                                                   “an owner, a contractor, or a subcontractor or an employee


               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                            5
Abutahoun v. Dow Chemical Company, --- S.W.3d ---- (2015)



of a contractor or a subcontractor.” 5 Id. Reading these         Texas Tort Claims Act to no avail); Tex. State Technical
provisions together, Chapter 95 applies to a claim against       Coll. v. Beavers, 218 S.W.3d 258, 261 (Tex.App.–Texarkana
a property owner for an independent contractor's personal        2007, no pet.) (“The courts of Texas have struggled to define
injury, death, or property damage caused by negligence. The      the limits of ‘use’ and ‘condition’ ... under the Texas Tort
Legislature did not distinguish between negligence claims        Claims Act.”). But despite numerous intermediate appellate
based on contemporaneous activity or otherwise, and neither      court decisions interpreting the phrase “condition or use”
shall we. Cf. Shumake, 199 S.W.3d at 287 (“Because it is         every way imaginable, we have never held that the phrase
not defined otherwise, we conclude that the Legislature must     rendered the Texas Tort Claims Act ambiguous or inoperable.
have intended for gross negligence to have its commonly-         This Court has agreed, for purposes of the Texas Tort
accepted legal meaning.”).                                       Claims Act, that the “condition or use” provision is “difficult
                                                                 to understand and difficult to apply,” but we have never
The second part of the applicability provision, section          used that characterization “as an excuse to shirk our duty
95.002(2), includes several undefined statutory words            to interpret and apply the statute.” Robinson v. Cent. Tex.
and phrases that have amassed commonly-accepted legal            MHMR Ctr., 780 S.W.2d 169, 171 (Tex.1989). Accordingly,
meanings in this Court's jurisprudence interpreting other        although we review the “condition or use” language in
tort-related statutes. Section 95.002(2), the most disputed      Chapter 95 as a matter of first impression, we draw upon
provision in this case, limits Chapter 95's applicability        this Court's interpretation of the similar phrase in the Texas
“only to a claim ... that arises from the condition or use       Tort Claims Act for guidance. See TEX. GOV'T CODE §
of an improvement to real property where the contractor          311.023(4).
or subcontractor constructs, repairs, renovates, or modifies
the improvement.” TEX. CIV. PRAC. & REM. CODEE                    *6 This Court has defined a “condition” as “either an
§ 95.002(2). This Court has analyzed tort-related statutes       intentional or an inadvertent state of being.” Sparkman v.
that include the undefined phrase “arises from” consistently     Maxwell, 519 S.W.2d 852, 858 (Tex.1975). We have defined
as being intended, at minimum, to capture causation. See,        “use” as meaning “to put or bring into action or service; to
e.g., Ryder Integrated Logistics, Inc. v. Fayette Cnty., 453     employ for or apply to a given purpose.” Miller, 51 S.W.3d at
S.W.3d 922, 928–29 (Tex.2015) (per curiam) (construing           588. We have broadly defined an “improvement” to include
how “arising from” was used in another tort-related statute,     “all additions to the freehold except for trade fixtures [that]
discussing prior cases that explained the phrase, and            can be removed without injury to the property.” Sonnier
concluding that “a plaintiff can satisfy the ‘arising from’      v. Chisholm–Ryder Co., 909 S.W.2d 475, 479 (Tex.1995)
standard by demonstrating proximate cause”); see also TEX.       (examining the statute of repose in section 16.009 of the
GOV'T CODE § 311.023(4) (permitting courts to consider           Texas Civil Practice and Remedies Code, which contains the
laws on similar subjects when construing statutes). Thus,        identical phrase “improvement to real property”).
section 95.002(2) provides that Chapter 95 applies to a
negligence claim that “arises from,” or is caused by, “the       Given these definitions, a condition of an improvement to
condition or use of an improvement to real property where the    real property represents a different concept than a use of
                                                                 an improvement to real property. Indeed, we have treated
contractor or subcontractor ... modifies the improvement.” 6
                                                                 a condition or a use as comprising separate prongs of
TEX. CIV. PRAC. & REM. CODEE § 95.002(2).
                                                                 the Texas Tort Claims Act. See Dall. Metrocare Servs. v.
                                                                 Juarez, 420 S.W.3d 39, 42 (Tex.2013) (per curiam). This
We next consider the meaning of the undefined phrase
                                                                 distinction between these two concepts is supported “by use
“condition or use of an improvement to real property.” See
                                                                 of the disjunctive conjunction ‘or’ between the two [words],
id. For four decades, Texas jurists have repeatedly expressed
                                                                 which signifies a separation between two distinct ideas.”
concerns about the difficulty of discerning the Legislature's
                                                                 Spradlin v. Jim Walter Homes, Inc., 34 S.W.3d 578, 581
intended meaning behind the words “condition or use” as
                                                                 (Tex.2000). The Legislature's enunciation of the two concepts
they appear in the Texas Tort Claims Act, another tort-related
                                                                 of “condition or use” is consistent with this Court's common
statute. 7 See, e.g., Tex. Dep't of Crim. Justice v. Miller,     law jurisprudence, also reflected in Chapter 95, surrounding
51 S.W.3d 583, 590 (Tex.2001) (Hecht, J., concurring)            a controlling contractor or property owner's liability for
(detailing multiple instances when members of this Court
                                                                 injuries to independent contractors. 8 In the seminal case
“have repeatedly beseeched the Legislature for guidance”
                                                                 of Redinger v. Living, Inc., 689 S.W.2d 415 (Tex.1985),
on how to interpret the “use-of-property standard” in the


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Abutahoun v. Dow Chemical Company, --- S.W.3d ---- (2015)


the Court explained that a property owner's “duty to keep           Inc. v. Smith, 307 S.W.3d 762, 776 (Tex.2010) (citations
the premises in a safe condition may subject the [property          omitted). Despite their differences, both claims are a species
owner] to direct liability for negligence in two situations:        of negligence. See, e.g., W. Invs., Inc. v. Urena, 162 S.W.3d
(1) those arising from a premises defect, (2) those arising         547, 550 (Tex.2005) (recognizing that “[p]remises liability
from an activity or instrumentality.” 9 Id. at 417; see also        is a special form of negligence” and that “[n]egligence and
Keetch v. Kroger Co., 845 S.W.2d 262, 264 (Tex. 1992)               premises liability ... involve closely related but distinct duty
(citing Redinger, 689 S.W.2d 415) (“Recovery on a negligent         analyses”). While it is true that “[w]e have rejected attempts
activity theory requires that the person have been injured by       to blur the distinction between these two claims,” Shumake,
or as a contemporaneous result of the activity itself rather than   199 S.W.3d at 284, it is nonetheless an accurate statement
by a condition created by the activity.”).                          that both types of claims fall within the common meaning
                                                                    of the term “negligence” that appears, undefined, in section
These two categories of negligence existed in this Court's          95.001(1), see Urena, 162 S.W.3d at 550.
jurisprudence prior to the enactment of Chapter 95, and “we
presume the Legislature enacts a statute with knowledge of          Next, we address the Hendersons' contention that the court
existing law.” Dugger v. Arredondo, 408 S.W.3d 825, 835             of appeals' opinion “obviates more than a century of
(Tex.2013). More specifically, in a Texas Tort Claims Act           Texas common law that holds that a property owner is
case we decided the year before the Legislature enacted             liable in negligence for its own contemporaneous negligent
Chapter 95, we interpreted the identical phrase “condition or       activity.” According to the Hendersons, Chapter 95 did not
use” to “encompass[ ] disparate bases for liability, one of         abrogate common law negligence claims against property
which is not dependant upon the actions of any employee.”           owners for their contemporaneous negligent activities. More
DeWitt v. Harris Cnty., 904 S.W.2d 650, 653 (Tex.1995).             specifically, the Hendersons argue that “there is no ‘clear
We explained that the “use” language “encompasses ...               repugnance’ between (i) Chapter 95 claims ‘where the
liability based on respondeat superior.” Id. We added that the      contractor or subcontractor constructs, repairs, renovates,
inclusion of “liability for a condition of real property” existed   or modifies the improvement’ ... versus (ii) common law
“in addition to liability based on principles of respondeat         claims based on the contemporaneous negligent acts of
superior,” and therefore liability for a condition imposed          property owners.” Dow cites several cases recognizing that,
liability for premises defects. Id. (emphasis omitted). Quite       because of Chapter 95, an independent contractor no longer
plainly, in DeWitt we held that the inclusion of the “use”          has a common law negligence claim against a property
language was meant to impose liability for the negligent            owner. See, e.g., Francis v. Coastal Oil & Gas Corp.,
actions of an employee based on principles of respondeat            130 S.W.3d 76, 88 (Tex.App.–Houston [1st Dist.] 2003,
superior. Id. One year after we attached this particular            no pet.) (“We agree ... that chapter 95 controls this case,
meaning to the phrase “condition or use,” the Legislature           is [the independent contractor]'s exclusive remedy against
included the same undefined phrase in Chapter 95. We can            [the property owner], and precludes common-law negligence
only conclude that the Legislature intended for Chapter 95 to       liability in [the property owner].”).
apply to all negligence claims that arise from either a premises
defect or the negligent activity of a property owner or its          [9] We have explained that statutes can modify or abrogate
employees by virtue of the “condition or use” language in           common law rules, but only when that was what the
section 95.002(2). See TEX. CIV. PRAC. & REM. CODEE                 Legislature clearly intended. Energy Serv. Co. of Bowie
§ 95.002(2); Dugger, 408 S.W.3d at 835.                             v. Superior Snubbing Servs., Inc., 236 S.W.3d 190, 194
                                                                    (Tex.2007). Because abrogation is disfavored, we examine
 *7 For the sake of thoroughness, we note that section              the statute's plain language for the Legislature's clear
95.002(2)'s inclusion of “condition or use” preserves the           intention to replace a common law remedy with a statutory
notion that claims based on a premises defect are distinct from     remedy, and we “decline[ ] to construe statutes to deprive
claims based on negligent activities. As we have explained,         citizens of common-law rights unless the Legislature clearly
“negligent activity encompasses a malfeasance theory based          expressed that intent.” Satterfield v. Satterfield, 448 S.W.2d
on affirmative, contemporaneous conduct by the owner that           456, 459 (Tex.1969); see also Cash Am. Int'l Inc. v. Bennett,
caused the injury, while premises liability encompasses a           35 S.W.3d 12, 16 (Tex.2000). The Hendersons are correct
nonfeasance theory based on the owner's failure to take             that a clear repugnance between the common law and a
measures to make the property safe.” Del Lago Partners,             statutory cause of action is required for courts to find that the



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                              7
Abutahoun v. Dow Chemical Company, --- S.W.3d ---- (2015)


Legislature abrogated a common law right. See Cash Am. Int'l      theories). Similarly, when a claim is brought against a
Inc., 35 S.W.3d at 16.                                            contractor or a subcontractor, section 95.003's limitation on
                                                                  liability does not apply and an independent contractor can
Here, we do not find the sort of “clear repugnance” that would    recover for common law negligence. See TEX. CIV. PRAC.
justify a conclusion that the Legislature intended to abrogate    & REM. CODEE § 95.003 (limiting only a property owner's
an independent contractor's common law right to recover           liability). We conclude that Chapter 95 did not abrogate an
damages based upon the negligence of property owners. But         independent contractor's right to recover for common law
see, e.g., Waffle House, Inc., 313 S.W.3d at 807 (finding         negligence in all instances. If anything, Chapter 95 is in
abrogation of common law negligence causes of action where        derogation of the common law, and Texas courts do not
a statutory scheme involved a unique set of standards and         strictly construe such statutes. See TEX. GOV'T CODE §
procedures and the plaintiff sought to use the common law         312.006(b).
to circumvent the “panoply of special rules” in the statute).
Chapter 95 does not deprive an independent contractor of the      Having concluded that Chapter 95 applies to an
right to recover damages from a negligent property owner.         independent contractor's claims for damages caused by the
In fact, section 95.003 allows for such a recovery as long as     contemporaneous negligent acts of a property owner, Dow
the evidentiary burdens of the statute are satisfied. See TEX.    could be subject to liability only if the Hendersons satisfied
CIV. PRAC. & REM. CODEE § 95.003 (“A property owner               the evidentiary burdens in both prongs of section 95.003.
is not liable for personal injury, death, or property damage to   See TEX. CIV. PRAC. & REM. CODEE § 95.003. At
a contractor ... unless....”). To be sure, when section 95.002    trial and at the court of appeals, the Hendersons sought to
makes Chapter 95 applicable to an independent contractor's        establish that negligence claims based on a property owner's
negligence claim against a property owner that arises from        or its employees' contemporaneous negligent activities did
the condition or use of an improvement to real property,          not fall within Chapter 95, but the Hendersons never sought
the independent contractor's sole means of recovery is by         to establish Dow's liability in the event that Chapter 95 did,
satisfying section 95.003. This is consistent with the court      in fact, apply to their claims. See 395 S.W.3d at 348. In
of appeals' holding that when Chapter 95 applies to an            this appeal, the Hendersons do not challenge the court of
independent contractor's claims, the independent contractor       appeals' conclusion that “[o]n this record, ... Chapter 95 is
has “the burden to show that both conditions of section 95.003    applicable to all of [the Hendersons'] claims against Dow.”
[have] been met before liability could be imposed upon” the       See id. In fact, the Hendersons urge us not to address Chapter
property owner. 395 S.W.3d at 348.                                95's applicability to their specific claims in this case: “But
                                                                  this debate—is the improvement the entire pipe system at
 *8 [10] Moreover, by its own terms, Chapter 95's limitation      Dow or the specific pipes [Robert] Henderson was working
on liability does not apply to all negligence claims an           on–need not be reached in this case....” Most importantly,
injured independent contractor may assert. See TEX. CIV.          the Hendersons have not challenged the court of appeals'
PRAC. & REM. CODEE § 95.002(2). When a claim does                 conclusion that “the record does not support a finding of
not “arise from a condition or use of an improvement              liability as to Dow pursuant to the requirements of Chapter
to real property where the contractor or subcontractor ...        95.” Id. Issues not raised on appeal to this Court are waived.
modifies the improvement,” Chapter 95 does not apply and          Guitar Holding Co., L.P. v. Hudspeth Cnty. Underground
an independent contractor can recover for common law              Water Conservation Dist. No. 1., 263 S.W.3d 910, 918
negligence. See Felton v. Lovett, 388 S.W.3d 656, 660 &           (Tex.2008) (citing TEX. R. APP. P. 53.2(f)); see also Del
n.10 (Tex.2012) (declining to recognize abrogation of the         Lago Partners, Inc., 307 S.W.3d at 776 (“[W]e should not
common law because the statute did “not purport to affect the     stretch for a reason to reverse that was not raised.”).
common law in cases other than those the statute covers”).
This Court has developed a comprehensive body of law on           In sum, the Hendersons failed to challenge the court of
property owner liability for injuries suffered by independent     appeals' conclusions that: (1) their specific claims against
contractors that will continue to apply to cases when the         Dow, as pleaded and applied, fell within Chapter 95, and
applicability provision of section 95.002 cannot be met. See      (2) their claims were barred by Chapter 95 because the
generally Gen. Elec. Co. v. Moritz, 257 S.W.3d 211, 214–          Hendersons did not establish Dow's liability under section
15 (Tex.2008) (explaining the duties owed to independent          95.003. Because these conclusions were not challenged, they
contractors under negligent activity and premises defect          are not properly before the Court and we do not decide



               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                           8
Abutahoun v. Dow Chemical Company, --- S.W.3d ---- (2015)


                                                                   the condition or use of an improvement to real property where
whether the court of appeals correctly applied Chapter 95
                                                                   the independent contractor constructs, repairs, renovates, or
to the facts of this case. See Guitar Holding Co., L.P., 263
                                                                   modifies the improvement. Chapter 95 limits property owner
S.W.3d at 918. Accordingly, because we agree with the court
                                                                   liability on claims for personal injury, death, or property
of appeals' construction of Chapter 95, we affirm its judgment
                                                                   damage caused by negligence, including claims concerning
reversing the trial court's judgment and rendering a take-
                                                                   a property owner's own contemporaneous negligent activity.
nothing judgment in Dow's favor. This obviates the need to
                                                                   The Hendersons have not challenged the court of appeals'
address the remaining issues Dow raises in this appeal.
                                                                   conclusion that Chapter 95 applied to their specific claims
                                                                   as pleaded, nor have they challenged the court of appeals'
                                                                   conclusion that they failed to establish Dow's liability under
                      III. Conclusion                              section 95.003. We therefore affirm the court of appeals'
                                                                   judgment that reversed the trial court's judgment and rendered
The court of appeals correctly held that Chapter 95 applies to
                                                                   a take-nothing judgment in Dow's favor.
independent contractors' claims against property owners for
damages caused by negligence when those claims arise from


Footnotes
1      The trial court overruled Dow's objection that Chapter 95 precluded the submission of a general negligence question.
       The trial court also denied Dow's requested jury instructions and questions that would have required the Hendersons to
       establish Dow's liability based upon Chapter 95's requirements.
2      For ease of reference, this opinion uses the phrase “independent contractor” as a shorthand substitute for the lengthier
       statutory phrase of “a contractor, subcontractor, or an employee of a contractor or subcontractor” that appears in Chapter
       95. See TEX. CIV. PRAC. & REM. CODE E §§ 95.002–.004. Although the phrase “independent contractor” does not
       appear in the text of Chapter 95, it appears in Chapter 95's title and section 95.003's heading, “Liability for Acts of
       Independent Contractors.” See id. § 95.003.
3      Both parties and the court of appeals used the phrase “premises owner” when referring to Chapter 95 and its contents.
       The word “premises” does not appear in Chapter 95. Instead, the chapter uses the phrase “property owner,” which
       section 95.001(3) defines to mean “a person or entity that owns real property primarily used for commercial or business
       purposes.” TEX. CIV. PRAC. & REM. CODEE § 95.001(3). We use the phrase “property owner” to remain consistent
       with the statutory text.
4      For instance, the Hendersons urge the Court to consider several titles in Chapter 95, legislative statements of the bill's
       sponsors, and a canon of construction called the doctrine of the last antecedent as indications of legislative intent. When
       the plain meaning of a statute controls, however, “the title of the section carries no weight, as a heading ‘does not limit
       or expand the meaning of a statute.’ ” Waffle House, Inc. v. Williams, 313 S.W.3d 796, 809 (Tex.2010) (quotingTEX.
       GOV'T CODE § 311.024). Moreover, “[w]hen a statute's language is clear and unambiguous, it is inappropriate to resort
       to rules of construction or extrinsic aids to construe the language.” City of Rockwall, 246 S.W.3d at 626; see also Tex.
       W. Oaks Hosp., LP v. Williams, 371 S.W.3d 171, 185 (Tex.2012) (recognizing that the doctrine of the last antecedent
       applies to ambiguous statutes); Stracener v. United Servs. Auto. Ass'n, 777 S.W.2d 378, 383 (Tex.1989) (recognizing
       that the doctrine of the last antecedent is merely an aid used to determine the meaning and intent of communications,
       and it is not applicable in every case).
5      Although section 95.002(1) specifies who may be damaged for purposes of Chapter 95, section 95.001(2) defines a
       “claimant” more broadly to mean “a party making a claim subject to this chapter.” TEX. CIV. PRAC. & REM. CODE E §
       95.001(2). The word “claimant” appears only in the special legislative definitions and nowhere else in Chapter 95. See id.
6      Once again, only for ease of reference–and not to indicate a lack of significance for the words omitted—we have
       shortened section 95.002(2)'s phrase “constructs, repairs, renovates, or modifies the improvement” simply to “... modifies
       the improvement.”
7      The Texas Tort Claims Act uses the phrase “condition or use of tangible personal or real property.” TEX. CIV. PRAC. &
       REM. CODEE § 101.021. The Texas Tort Claims Act is distinguishable, however, because there is a separate section
       that applies specifically to claims for premises or special defects. Id. § 101.022. In contrast, Chapter 95's plain language
       does not require courts to classify certain negligence claims for different treatment.
8      Below, we address the Hendersons' contention that Chapter 95 did not abrogate common law negligence claims against
       property owners, or that any such finding of abrogation was impermissible. See infra pp. ––––.



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Abutahoun v. Dow Chemical Company, --- S.W.3d ---- (2015)



9     Thereafter, the Court adopted the RESTATEMENT (SECOND) OF TORTS § 414 (1977) approach for imposing liability
      on a property owner or general contractor that controls the work of an independent contractor who is negligently injured.
      See Redinger, 689 S.W.2d at 418.


End of Document                                             © 2015 Thomson Reuters. No claim to original U.S. Government Works.




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