Reversed and Rendered and Majority and Dissenting Opinions filed August
12, 2014.




                                     In The

                    Fourteenth Court of Appeals

                             NO. 14-12-00740-CV

        E. I. DU PONT DE NEMOURS AND COMPANY, Appellant
                                       V.

           ROBERT EARL ROYE AND DIANE ROYE, Appellees

                   On Appeal from the 165th District Court
                           Harris County, Texas
                     Trial Court Cause No. 2009-80504

                     MAJORITY OPINION


      Appellee Robert Earl Roye was burned seriously when he fell into a pool of
hot water at a chemical plant owned by appellant E. I. DuPont de Nemours & Co.
Roye sued DuPont, asserting both ordinary negligence and premises liability
causes of action. The trial court submitted each cause of action to the jury in
separate questions, and the jury found in favor of Roye on both. Based on the
jury’s findings, the trial court signed a final judgment awarding Roye the damages
found by the jury less settlement credits. DuPont appeals from that judgment.

      Although DuPont raises multiple issues on appeal, we need only address the
first and third because they are dispositive. In its first issue, DuPont contends the
trial court erred when it submitted Roye’s ordinary negligence cause of action to
the jury because Roye was limited to a premises liability cause of action. In its
third issue, DuPont contends that even assuming Roye was an invitee of DuPont at
the time he was injured, Roye did not establish that DuPont owed Roye any duty
regarding the condition of the premises that caused his injuries. Because we agree
with DuPont on both its first and third issues, we reverse and render a take-nothing
judgment.

                                  BACKGROUND

       DuPont owns a chemical plant with multiple manufacturing units in
LaPorte, Texas. Prior to 1999, DuPont owned and operated the entire facility,
including a formaldehyde production unit and a tetrahydrofuran (THF) production
unit. Formaldehyde is used in the manufacture of THF. Steam is a key component
used in the production of the chemicals manufactured at DuPont’s plant, as well as
a by-product of the manufacture of formaldehyde.           Because steam is used
throughout the facility, there is a complex system of steam pipelines running
through the DuPont plant. Roye was burned by hot condensate that had collected
in a pool underneath one of the pipelines.

      A.     DBW builds a steam pipeline for DuPont’s plant.

      In 1999, DuPont contracted with D. B. Western, Inc.—Texas (DBW) to
supply formaldehyde and steam to DuPont’s plant. As a result of this agreement,
DBW built a formaldehyde manufacturing plant on land purchased from DuPont
that was adjacent to but outside the fence surrounding DuPont’s chemical plant.


                                         2
DBW also agreed to design and construct a pipeline system to transport the
formaldehyde and steam to the DuPont plant. The pipeline system consists of a
pipeline support rack elevated twenty-six feet above the ground that carries
separate pipelines for formaldehyde and steam.                DuPont agreed it would be
responsible for routine visual inspection and maintenance of the portion of the
pipeline system located within its facility. Once construction was complete, this
responsibility was assigned to DuPont operators working in the THF unit. Roye
was one of those DuPont operators.

       DuPont had final authority over the design of the pipeline system on its
premises, and it also served as the construction manager for the project. As steam
travels along the pipeline, some of the steam condenses into liquid. To remove this
condensate from the pipeline, six steam traps were built into the part of the pipeline
traversing DuPont’s property. Steam traps, like all other parts of the units in a
chemical plant, require regular maintenance because they wear out and can also
malfunction.1 As a result, DuPont had operators inspect the equipment in their
areas of responsibility during every shift. In addition, DuPont hired an outside
company, Spirex Sarco, to survey all of the steam traps within the DuPont facility
regularly. These surveys continued after DuPont sold the THF unit to Invista,
S.a.r.l. in 2004. Finally, every employee working inside the DuPont facility,
whether an employee of DuPont or Invista, was charged with the responsibility to
report any malfunctioning equipment they observed.

       DBW asked DuPont to provide a specification for disposing of the
condensate from the six steam traps. In response to this request, DuPont sent
DBW “Specification P6D Condensate Disposal French Drain Method.” P6D calls

       1
          Van Mayberry, a DuPont mechanic at the LaPorte facility, testified that steam traps can
fail and then start working properly again. Mayberry described steam traps as unpredictable.

                                               3
for the installation of a French drain—consisting of a clay or concrete pipe two feet
in diameter that is buried vertically in the ground and filled with crushed stone or
gravel—beneath a steam trap.2 When the steam trap suspended from the pipeline
discharges hot condensate, the French drain catches it and gives it time to cool to a
safe temperature before releasing it into a storm sewer or drainage ditch. The
design of the DBW steam pipeline, as approved by DuPont, called for the
installation of French drains under all six steam traps on DuPont’s property.

       Although the design called for the installation of French drains under all six
steam traps, they were only installed under two. The four remaining steam traps
discharged the condensate directly onto the ground.                Gerald Hirst, DuPont’s
corporate representative during trial, testified that discharging hot condensate onto
the ground could be a safe alternative “when all parties agree that it’s a safe
location that people are not accessing on a regular basis.” According to Hirst,
DuPont’s on-site construction supervisors John Ponder and Oscar Gonzalez made
the decision that it was safe to not install four of the French drains.3 Both Ponder
and Gonzalez testified at trial, and each denied making the decision to not install
these French drains. Gonzalez testified that the decision to not install the drains
was made by the DuPont design review team during a construction status meeting.
Ponder testified that the steam traps where the French drains were not installed
were located in “open territory within the plant site.”



       2
         According to Specification P6D, French drains are not the preferred method for
disposing of hot condensate, which is a valuable commodity. P6D provides: “where conditions
make it difficult to dispose of hot condensate by preferred methods, a French drain, constructed
in accordance with this standard may be used.”
       3
         John Ponder was a DuPont employee at the time the DBW pipeline was constructed.
Oscar Gonzalez was a Kellogg, Brown & Root employee serving as a field construction
coordinator for projects at DuPont’s facility. Neither was an engineer.

                                               4
      The DBW steam pipeline is part of a complex steam distribution system at
the DuPont facility. Steam is generated by producers such as DBW and Co-Gen,
an electricity generator. The steam producers send the steam through metered
pipelines to the DuPont steam header.               From the steam header, the steam is
transported to the different units located inside the DuPont facility, including the
Invista THF unit, through additional pipelines. Ponder explained that while the
DBW steam pipeline could ordinarily be shut down without also requiring DuPont
to shut down its operations, the system requires that a balance be maintained
between the supply of steam entering the system and the amount of steam exiting
the system.

      B.       Invista buys part of the plant, hires Roye, and contracts to inspect
               the pipeline.
      In 2004, DuPont sold the THF unit to Invista. The sale did not include the
land; instead, DuPont and Invista entered into a long-term ground lease. Once
DuPont sold the THF unit, the DuPont facility became a shared industrial complex
located within a single fence line. In other words, there were no internal fences
separating the Invista THF unit from the remainder of the facility. The ground
lease granted Invista shared and non-exclusive easements to all “areas used by
Invista on the Plant Site on the date of [the] Lease.” These shared and non-
exclusive easements included the route of the DBW pipeline.

      When DuPont sold the THF unit, the DuPont employees working in that
unit, including Ponder and Roye, became Invista employees. 4 The employees’ job
duties did not change as a result of the sale. When it purchased the THF unit,
Invista contracted with DBW to purchase the steam produced by DBW’s
formaldehyde plant. Invista also contracted with DBW to inspect and maintain the

      4
          Invista hired Gonzalez as its maintenance supervisor in 2006.

                                                5
DBW pipeline system located “on its site.”

       C.     A pool of hot water develops in the ground under pipeline steam
              trap 5, and Roye falls into it and is seriously injured.
       On February 6, 2008, a DuPont employee gave his supervisor a work ticket
reporting that steam trap 5 on the DBW steam pipeline was malfunctioning by
“blowing through” steam. 5 Steam trap 5 was located in the DuPont portion of the
shared industrial complex, and it was one of the DBW steam traps without a
French drain underneath to catch the released condensate. The DuPont supervisor
passed the ticket up the line, where a DuPont planner and a DuPont scheduler
determined that the malfunctioning steam trap was DuPont’s responsibility to
repair. As a result of this decision, a DuPont work order was generated, and a
supervisor gave it to a DuPont operator to set up the repair. After the operator had
set up the job, on March 5, 2008, a DuPont supervisor gave a work order to
DuPont mechanic Van Mayberry to go out and repair the malfunctioning steam
trap. Mayberry testified that once he received a work order, he would complete the
repair if he could do it safely, and that it did not matter to him which company
owned the part being repaired.

       After receiving the work order, Mayberry went to steam trap 5. He observed
a wooden pallet at the edge of a water-filled hole approximately two to three feet
across and one foot deep. According to Mayberry, the water in the hole extended
underneath the leading edge of the pallet, which was within arm’s reach of the
steam trap hanging from the pipeline above. Mayberry stepped onto to the pallet to
keep his shoes dry and examined the steam trap. Mayberry determined that he
could not safely repair the trap because the job required the DBW steam pipeline to

       5
         This steam trap is identified as steam trap 1360 on the Spirex Sarco surveys. It was
primarily identified during trial as steam trap 5 because of its location on the DBW pipeline. We
adopt that identification here.

                                               6
be shut down.6 Mayberry made that notation on the work order and turned it in to
his supervisor as incomplete. Mayberry testified that he heard at a later time that
steam trap 5 was not DuPont’s and he did not know what happened to the steam
trap after that date. Mayberry did not report the hole he encountered during his
attempt to repair steam trap 5 because “everybody knew there was a hole out there
where the steam trap had been blowing.”

       In 2009, Roye worked as an operator in Invista’s THF unit. As an operator,
Roye’s duties included visually inspecting the DBW pipeline each shift. While
inspecting the DBW pipeline on April 7, 2009, Roye observed steam trap 5
continuously blowing steam. Recognizing that the steam trap had malfunctioned,
Roye wrote up and submitted a work notification of the malfunction.                         Ron
Hickman, another Invista employee, testified that Roye was training him as an
operator when they observed the malfunctioning steam trap.                      According to
Hickman, there was a pool of steaming water beneath the steam trap that he
estimated was approximately four feet by six feet in size.

       On May 5, 2009, Roye reported for work and spoke with Oscar Gonzalez.
Gonzalez told Roye that he had work tickets for the repair of steam traps on the
DBW pipeline on the day’s schedule, and he asked if Roye could look at them to
determine whether they could be set up for mechanics to perform the repairs.
According to Roye, the first step in setting up a repair job for the mechanics is to
determine whether a tagging or lock out list is on the computer. 7 When Roye

       6
         Mayberry testified that a DuPont operator had already noted on the work order that the
valve handle was missing, and Mayberry concluded there was no way to isolate the steam trap.
       7
         According to Roye, the lock out list is created by an operator and it establishes the
procedure an operator will use to set up the steam trap to be repaired safely. This list would be
reviewed by another operator and if both operators agreed, it would be submitted to a supervisor
for approval. Only after the supervisor approved the list would the operator go to the steam trap
and actually perform the set-up procedure.

                                               7
determined there was not a list on the computer, he decided to go to the steam trap,
make the list, and then enter it into the computer.

      Roye drove a golf cart to steam trap 5 and parked it about ten feet away from
the pallet and pool of condensate. Roye testified that he observed the steam trap
blowing, the ground with grass around the pool, and the wooden pallet. Roye
testified that he walked up to the pallet and could clearly see the bottom slats with
the ground and grass underneath them. Roye also saw that there was some water
underneath the pallet. Roye examined the steam trap and noticed the missing valve
handle. Roye knew there was a small tag on the valve identifying the type of
valve. With this information, Roye could possibly obtain a replacement handle
that would enable the steam trap to be repaired without waiting for the entire line
to be shut down. Roye testified that he needed to get close enough to the valve to
read the small tag.

      According to Roye, the blowing steam trap was about one-and-a-half feet
away from the pallet.     Roye testified he was accustomed to working around
blowing steam traps because he had frequently been required to do so during his
lengthy career at the DuPont facility. After visually examining the pallet, Roye
pushed down on the pallet with his foot to test it for integrity. When it seemed
safe, Roye stepped up on the pallet. Roye testified that when he took the next step,
the ground gave way beneath the pallet like a trap door opening, dropping him into
the pool of 400-degree condensate. Roye used the pallet to pull himself out of the
pool, but not before he suffered second- and third-degree burns over 75% of his
body, from his chest down to his feet. Roye was able to call for help on his radio
and when his co-workers found him, he was taken to the hospital by helicopter
ambulance.    This began a 70-day hospital stay followed by treatment at two
different rehabilitation hospitals. As a result of his burns, Roye has significant

                                          8
permanent impairments.

       D.      Roye sues DuPont and obtains a judgment in his favor.

       Roye filed suit against DuPont and other defendants alleging two principal
causes of action: premises liability and negligence in the design, construction, and
maintenance of the steam pipeline and steam traps. Roye’s wife, Diane Roye,
asserted a loss of consortium cause of action.8 Under his premises liability theory,
Roye alleged that he was an invitee of DuPont. He further alleged that the pool of
hot condensate presented an unreasonable risk of harm because it eroded the soil
beneath the surface, creating an unsupported ledge that collapsed under Roye’s
weight, dropping him into the pool. Under his negligence cause of action, Roye
alleged that DuPont negligently designed the DBW pipeline because it made the
decision to omit a French drain under steam trap 5, which he further alleged would
have prevented the creation of the hot pool of condensate and subsurface soil
erosion.    Prior to trial, he settled his claims against DBW, nonsuited other
defendants, and proceeded to trial against DuPont.

       At the conclusion of the evidence, the trial court submitted both theories of
liability to the jury as well as a question asking whether Roye was an invitee of
DuPont. The jury found that Roye was an invitee of DuPont and also found
DuPont liable under both the negligence and premises liability theories. The trial
court signed a judgment against DuPont for $11,568,627.35, which equaled the
damages found by the jury reduced by settlement credits. This appeal followed.



       8
          Because Mrs. Roye’s claims are derivative of her husband’s, we do not address her
claims separately. See In re Labatt Food Servs., L.P., 279 S.W.3d 640, 646 (Tex. 2012)
(observing that loss of consortium claims are derivative in the sense that family members must
establish that the defendant is liable for the injured family member’s injuries in order to recover
damages).

                                                9
                                           ANALYSIS

       As mentioned above, DuPont brings four issues on appeal challenging the
judgment against it. Because they are dispositive of this appeal, we need only
address the first and third issues.

I.     Because Roye was injured by a condition of DuPont’s premises, the trial
       court erred by submitting an ordinary negligence question against
       DuPont.
       Question 1 of the jury charge asked the jury “did the negligence, if any, of
[DuPont, DBW, Invista, or Roye] proximately cause the occurrence in question?”
Question 1 included standard common-law negligence definitions based on the
Texas Pattern Jury Charges. 9           The trial court also instructed the jury that in
answering Question 1, it should “not consider DuPont’s negligence, if any, in its
role as premises owner, as set forth in Question 4.” During the charge conference,
DuPont objected to the submission of Question 1 because the “case law is very
clear the case should only be submitted as a premises condition liability case and
not as a general negligence case.” The trial court overruled the objection. The jury
found that all four parties listed in Question 1 were negligent.

       In its first issue, DuPont argues the trial court erred when it overruled the
objection and submitted this ordinary negligence theory to the jury. We agree.

       A.      We review the legal correctness of the jury charge de novo.

       A trial court must submit in its charge to the jury all questions, instructions,
and definitions that are raised by the pleadings and the evidence. See Tex. R. Civ.
P. 278; Hatfield v. Solomon, 316 S.W.3d 50, 57 (Tex. App.—Houston [14th Dist.]

       9
         Question 1 defined “negligence” as the “failure to use ordinary care, that is failing to do
that which a person or company of ordinary prudence would have done under the same or similar
circumstances or doing that which a person or company of ordinary prudence would not have
done under the same or similar circumstances.”

                                                10
2010, no pet.) (citing Hyundai Motor Co. v. Rodriguez, 995 S.W.2d 661, 663–64
(Tex. 1999)). The goal is to submit to the jury the issues for decision logically,
simply, clearly, fairly, correctly, and completely. Hatfield, 316 S.W.3d at 57. To
achieve this goal, trial courts enjoy broad discretion so long as the charge is legally
correct. Id. We review whether a challenged portion of a jury charge is legally
correct using a de novo standard of review. Id. (citing St. Joseph Hosp. v. Wolff,
94 S.W.3d 513, 525 (Tex. 2003)).

      B.     Roye was not injured as a contemporaneous result of a negligent
             activity by DuPont, so he is limited to a premises liability claim.
      Under Texas law, a person injured on another’s property has two potential
causes of action against the owner of the property: (1) a negligence claim for
negligent activity on the premises, and (2) a premises liability claim for an
unreasonably dangerous condition on the premises. Clayton W. Williams Jr., Inc.
v. Olivo, 952 S.W.2d 523, 527 (Tex. 1997); Keetch v. Kroger Co., 845 S.W.2d
262, 264 (Tex. 1992). Although both liability theories are based on negligence
principles, they are independent theories that require different elements of proof.
Olivo, 952 S.W.2d at 529. When the alleged injury is the result of a negligent
activity, the injured party must have been injured by, or as a contemporaneous
result of, the activity itself. Keetch, 845 S.W.2d at 264. When the alleged injury is
caused by an unsafe or dangerous condition on the premises, the injured party is
limited to a premises liability theory and must prove his status to establish the type
of duty owed by the premises owner. State v. Shumake, 199 S.W.3d 279, 284
(Tex. 2006); see H. E. Butt Grocery Co. v. Warner, 845 S.W.2d 258, 259 (Tex.
1992); Wyckoff v. George C. Fuller Contracting Co., 357 S.W.3d 157, 163–64
(Tex. App.—Dallas 2011, no pet.). Artful phrasing of the pleadings to encompass
alleged design defects or any other theory of negligence does not affect the
application of premises liability law. Wyckoff, 357 S.W.3d at 163.
                                          11
      In the present case, Roye has not alleged or offered evidence that he was
injured as a contemporaneous result of an activity by DuPont. Instead, Roye seeks
to hold DuPont, the current owner of the premises, liable for his injuries caused by
an allegedly unsafe or dangerous condition on DuPont’s premises: a pool of hot
condensate that resulted in concealed sub-surface erosion of the soil. Because
Roye’s claim is based on an unsafe or dangerous condition of the property, we hold
that the cases cited above limited him to a premises liability theory of recovery.

      Roye asserts that a premises owner can also be found liable for ordinary
negligence if it played a role in designing an improvement that creates a hazardous
condition over time, but he identifies no cases applying that rule to a current
premises owner. It is of course true that a person injured by such a condition may
have a cause of action against the premises owner, but the cases just discussed
confirm that the action sounds in premises liability, not ordinary negligence.

      The cases on which Roye relies are distinguishable because they involve
defendants who did not own or control the premises at the time the alleged injuries
occurred. See In re Weekley Homes, L.P., 180 S.W.3d 127, 132 (Tex. 2005) (“[A]
contractor performing repairs has an independent duty under Texas tort law not to
injure bystanders by its activities, or by premises conditions it leaves behind.”);
Lefmark Mgmt. Co. v. Old, 946 S.W.2d 52, 54 (Tex. 1997) (stating that person who
creates a dangerous condition owes a duty of care even if person is not in control
of the premises at the time of the injury); Sci. Spectrum, Inc. v. Martinez, 941
S.W.2d 910, 912 (Tex. 1997) (observing in summary judgment case that court had
“recognized that under some circumstances, one who creates a dangerous
condition, even though he or she is not in control of the premises when the injury
occurs, owes a duty of due care”); City of Denton v. Page, 701 S.W.2d 831, 835
(Tex. 1986) (observing that “a private person who has created a dangerous

                                         12
condition may be liable even though not in control of the premises at the time of
injury”); Strakos v. Gehring, 360 S.W.2d 787, 790 (Tex. 1962) (stating that
contractor who left dangerous condition on premises can still be held liable even
though contractor’s work had been accepted and another had assumed control of
the premises); Jenkins v. Occidental Chem. Corp., 415 S.W.3d 14, 30–33, 39 (Tex.
App.—Houston [1st Dist.] 2013, pet. filed) (remanding for entry of judgment in
favor of injured chemical worker because former premises owner could be held
liable for negligent design of acid addition system).

      These cases establish that a person who formerly owned or controlled
property and created a dangerous condition is not insulated from liability when it
sells or departs from the property and leaves the condition behind.      But this
principle does not apply to our case, in which DuPont still owns the property and
can be sued on a premises liability theory.

      Because Roye was limited to a premises liability theory of recovery, we
sustain DuPont’s first issue and hold the trial court erred when it submitted an
ordinary negligence cause of action against DuPont to the jury. See Shumake, 199
S.W.3d at 284; Warner, 845 S.W.2d at 259; Wyckoff, 357 S.W.3d at 163.
Accordingly, the jury’s finding that DuPont was negligent is immaterial and cannot
support a judgment against DuPont. See Se. Pipe Line Co. v. Tichacek, 997
S.W.2d 166, 172 (Tex. 1999) (stating that jury finding on a question that should
not have been submitted is immaterial and may be disregarded); Nat’l City Bank of
Ind. v. Ortiz, 401 S.W.3d 867, 883 (Tex. App.—Houston [14th Dist.] 2013, pet.
denied) (same); see also Spencer v. Eagle Star Ins. Co. of Am., 876 S.W.2d 154,
157 (Tex. 1994) (stating rendition is appropriate when submitted jury question is
immaterial).



                                         13
II.   Because the evidence does not show DuPont had actual or constructive
      knowledge of the concealed hazard, Roye failed to establish that DuPont
      owed him a duty under premises liability law.
      Turning to Roye’s premises liability theory, DuPont contends in its third
issue that there is insufficient evidence it owed Roye a duty to protect him from the
obvious danger posed by the open pool of hot condensate. DuPont begins its
argument by accepting, for purposes of this issue, that Roye was DuPont’s invitee
when he was injured as a result of his fall into the pool. DuPont then asserts that
the only duty it owed Roye as an employee of an independent contractor working
on its premises was a duty to protect him from concealed hazards that DuPont
knew about or could have discovered through a reasonable inspection. DuPont
concludes that because there was no evidence it knew or should have known about
the concealed hazard Roye alleges caused his fall into the pool of hot condensate,
the judgment against it must be reversed and a take-nothing judgment rendered.
We agree with DuPont.

       A.    Whether DuPont knew or should have known of a concealed
             hazard that caused Roye’s injury is a legal question.
      As in any negligence action, a defendant in a premises liability case is liable
only to the extent it owes the plaintiff a legal duty. Gen. Elec. Co. v. Moritz, 257
S.W.3d 211, 217 (Tex. 2008). The plaintiff bears the burden to produce evidence
of duty, and liability cannot be imposed if no duty exists. Kroger Co. v. Elwood,
197 S.W.3d 793, 794 (Tex. 2006); Lee Lewis Constr., Inc. v. Harrison, 70 S.W.3d
778, 782 (Tex. 2001). Whether a duty exists is a question of law for the court to
decide from the facts surrounding the occurrence at issue. Golden Spread Council,
Inc. No. 562 of the Boy Scouts of America v. Akins, 926 S.W.2d 287, 289 (Tex.
1996); Pico v. Capriccio Italian Rest., Inc., 209 S.W.3d 902, 906 (Tex. App.—
Houston [14th Dist.] 2006, no pet.). Although our dissenting colleague argues

                                         14
forcefully that we should honor the jury’s verdict in this case, we are also required
to follow the supreme court’s holding that the existence of a duty in a premises
liability case is “not for the jury to decide under comparative negligence or
anything else.” Moritz, 257 S.W.3d at 217. Once the plaintiff establishes that a
defendant owed a duty, he must also prove the defendant breached that duty and
the breach proximately caused damages. Del Lago Partners, Inc. v. Smith, 307
S.W.3d 762, 767 (Tex. 2010).

       Generally, a property owner owes invitees a duty to use ordinary care to
reduce or eliminate an unreasonable risk of harm created by a premises condition
that the property owner knew or should have known about. Id. That duty is
modified when the plaintiff is an employee of an independent contractor, as Roye
was here. Moritz, 257 S.W.3d at 215; Wilhelm v. Flores, 195 S.W.3d 96, 98 (Tex.
2006) (per curiam) (stating that premises owner owed employee of business
invitee, who was on premises to remove bee hives purchased by invitee, no greater
duty than that owed to employee of independent contractor); Koch Ref. Co. v.
Chapa, 11 S.W.3d 153, 155 & n.1 (Tex. 1999).

       A premises owner has no duty to warn such employees of open and obvious
hazards or to make those hazards safe, but the owner does have a duty with respect
to pre-existing concealed hazards that it knows or should have known about.
Moritz, 257 S.W.3d at 215–16; CMH Homes, Inc. v. Daenen, 15 S.W.3d 97, 101
(Tex. 2000). 10 More specifically, a landowner may be liable for injury caused by
concealed deterioration of its premises if it knew the premises had become unsafe
or a reasonable inspection, if conducted, would have discovered that the

       10
          See also Coastal Marine Servs. of Tex., Inc. v. Lawrence, 988 S.W.2d 223, 225 (Tex.
1999) (per curiam); cf. Del Lago Partners, 307 S.W.3d at 767 (considering as part of legal duty
analysis whether owner knew or had reason to know of an unreasonable and foreseeable risk of
harm).

                                              15
deterioration had caused an unsafe condition. CMH Homes, Inc., 15 S.W.3d at
101. Evidence that a property owner knew of a safer, feasible alternative design,
without more, is not evidence that the owner knew or should have known that a
condition on its premises created an unreasonable risk of harm. Id. at 102.

      B.    Roye failed to establish that a reasonable inspection would have
            revealed the ledge beneath the ground near the hot pool of
            condensate.
      To meet his burden to establish that DuPont owed him a legal duty, Roye
first had to establish the existence of a concealed hazard. Moritz, 257 S.W.3d at
215; CMH Homes, Inc., 15 S.W.3d at 101. We must therefore determine the
nature of the hazardous condition that injured Roye. The parties acknowledge, and
we agree, that the hazard was not the steam trap hanging from the elevated pipeline
and discharging hot condensate. Rather, the hazard was located in the ground
underneath the steam trap.

      DuPont argues that the hazard was the pool of hot condensate that had
developed in the ground, and that it owed no duty to warn of this hazard, which
was open and obvious. But the visible pool was not the only hazard. Roye offered
evidence that the condensate had eroded the subsoil beneath the surface of the
ground adjacent to the pool over time, creating an unsupported ledge of topsoil that
collapsed when Roye stepped onto the pallet that rested on this ledge. Other courts
have recognized that even when certain aspects of a hazard are open and obvious,
the premises owner may still be liable if the specific conditions that caused the
employee’s injury were concealed. Griffin v. Shell Oil Co., 401 S.W.3d 150, 160–
61 (Tex. App.—Houston [1st Dist.] 2011, pet. denied); see also Kilchrist v. Sika
Corp., No. 3:10-CV-2567-B, 2012 WL 3599383, at *2 (N.D. Tex. Aug. 22, 2012),
aff’d, 555 Fed. Appx. 350 (5th Cir. 2014).


                                        16
      We conclude the record contains abundant evidence that the ledge of topsoil
next to the pool of hot condensate was a concealed hazard on the day Roye went to
set up the repair of steam trap 5. Roye’s safety expert identified this ledge as the
hazard that caused Roye’s injury. There is no evidence in the record, however, that
DuPont had actual knowledge of the concealed ledge at any relevant time.
Therefore, we turn to whether the record established that DuPont had constructive
knowledge of an unreasonable risk of harm associated with stepping on the ground
near the pool.

      In premises cases, constructive knowledge can be established by showing
that the hazardous condition existed long enough for the owner to have discovered
it through a reasonable inspection. CMH Homes, Inc., 15 S.W.3d at 102–03.
Here, while there is abundant evidence a concealed hazard existed the day of the
occurrence, there is no evidence in the record demonstrating when the open and
obvious pool of hot condensate created the concealed ledge. The mere passage of
time between Mayberry’s use of the pallet when he unsuccessfully attempted to
repair steam trap 5 in March 2008 and Roye’s fall into the pool of hot condensate
when he stepped onto the pallet in May 2009 is insufficient to establish that
DuPont had constructive knowledge of the concealed hazard. See id. at 101
(holding knowledge that stairs would become unstable after passage of twelve to
fifteen months simply by virtue of use was insufficient to establish constructive
knowledge of dangerous condition).

      Roye does not contend, and there is no evidence in the record indicating, that
DuPont failed to conduct any inspections of its premises. 11         See Moritz, 257
S.W.3d at 215 (stating property owner has duty to inspect premises). In addition,

      11
           In fact, Roye admits throughout his appellate briefing that DuPont conducted
inspections of the premises.

                                          17
there is no evidence in the record establishing what type of reasonable inspection a
landowner in DuPont’s position should undertake, or that such a reasonable
inspection would have revealed the ledge—a concealed hazard that every witness
who testified on the subject agreed could not have been discovered through a
visual inspection. See CMH Homes, Inc., 15 S.W.3d at 102 (stating plaintiff
“would be entitled to recover if he presented evidence that [the defendant] actually
knew that the platform and step unit had become unstable or if a reasonable
inspection would have revealed that the unit was no longer safe”); see also Fort
Brown Villas III Condo Ass’n, Inc. v. Gillenwater, 285 S.W.3d 879, 884 (Tex.
2009) (“Here, no evidence was presented that Fort Brown actually knew the chair
[that broke] had become dangerous or that Fort Brown failed to reasonably inspect
the chairs.”).

       In his brief, Roye points to various types of evidence that he argues support
charging DuPont with constructive knowledge. This evidence includes the opinion
of DuPont’s geotechnical engineer that the hole containing the hot condensate
developed and grew over a long period of time. Roye also emphasizes that DuPont
knew about the pool of hot condensate but did not erect barricades around it. In
addition, our dissenting colleague explains how hot water released from the steam
trap under pressure eroded the soil beneath to create a hole that filled with hot
water. 12 But the erosion-created hole and the pool of hot condensate were open
and obvious conditions of which everyone had actual knowledge, and as to which
DuPont owed Roye no duty. Thus, the facts that the hole was created by erosion
over a substantial length of time, and that DuPont knew about the hole and did not
place barricades around it, cannot be used to impute constructive knowledge of the

       12
          Much of the erosion testimony on which the dissent relies came from Roye’s
geotechnical engineering expert and was not specific to this case. The expert was not asked to
do any independent analysis of soil conditions at the accident site and determine what happened.

                                              18
concealed hazard—the hidden ledge near the hole—to DuPont. See Moritz, 257
S.W.3d at 215–16; CMH Homes, Inc., 15 S.W.3d at 101.

       Next, Roye contends that DuPont’s commissioning of surveys to track the
functioning of the steam traps on its premises, and Mayberry’s failed attempt to
repair steam trap 5, impute constructive knowledge to DuPont. As noted above,
however, the malfunctioning steam trap is not the hazard that injured Roye.
Roye’s argument is also contrary to the testimony of his own safety expert, who
opined that steam trap 5’s malfunction had no effect on the development of the
pool of hot condensate and the concealed subsurface ledge.

       Finally, Roye points to DuPont’s decision to not install a French drain under
steam trap 5 as called for by its design standard.13 But the supreme court has
determined that a premises owner’s awareness of a safer and feasible alternative
design, without more, is insufficient to impose constructive knowledge of a
hazardous condition on DuPont. CMH Homes, Inc., 15 S.W.3d at 102 (“To our
knowledge, no court has ever suggested that if it is possible to construct buildings
or fixtures with materials that are impervious to wear and tear, an owner has a legal
duty to do so and is charged with knowledge of an unreasonably dangerous
condition if it does not.”); see also Brookshire Grocery Co. v. Taylor, 222 S.W.3d
406, 407–08 (Tex. 2006) (“Ordinarily, an unreasonably dangerous condition for
which a premises owner may be liable is the condition at the time and place injury
occurs, not some antecedent situation that may have produced the condition.”).



       13
          Part A of the Background section above summarizes evidence that DuPont considered
discharging condensate onto the ground to be a safe alternative when all parties agree that people
do not regularly access the location, and that the DuPont design review team approved the
decision to use that method of discharge. The dissenting opinion correctly points out, however,
that there is evidence such discharge causes erosion and that DuPont’s French drain design
mitigates erosion.

                                               19
       Roye also asserts that a French drain was necessary because DuPont knew
steam traps created the risk of holes and cave-in problems, and that careful
inspection was essential to detect such stability problems. But the evidence Roye
cites does not support this assertion. Rather, it shows that soil borings dug to
determine the proper foundations for the rack supporting the elevated pipeline
revealed mostly clay throughout the soil profile,14 but one boring 150 feet west of
the line revealed sand below eight feet in depth, which a DuPont consultant
reported could create stability problems requiring special construction procedures.
In the opinion of Roye’s own geotechnical engineering expert, however, soil
testing conducted a mere 20 feet from the site of the injury has absolutely no
predicting power regarding conditions at the site. Accordingly, the existence of
sand at least 150 feet away and at eight feet in depth would not suggest to DuPont
that stability problems existed at the site of Roye’s injury or at three feet in depth,
which was the approximate depth of the hole at the time of his injury. 15

       Our dissenting colleague agrees with Roye and points to the testimony of his
safety expert. Based on the evidence just discussed regarding DuPont’s decision to
omit the French drain and its knowledge of soil borings, as well as the tendency of
condensate to openly and obviously erode the soil and pool, Roye’s safety expert
opined that the hazard of an unsupported ledge of topsoil next to the pool could be
reasonably expected to occur. As previously explained, however, supreme court
precedent compels the conclusion that the evidence on which the expert based his


       14
           There was also evidence from DuPont’s geotechnical engineering expert that the soils
at the plant site were consistent sandy clays and clays.
       15
           The dissenting opinion also points to evidence that DBW wanted to drill the pits for the
French drains (two of which were ultimately installed) at the same time it drilled the foundations
for the pipeline support rack. We fail to see how this evidence of efficient construction
management indicates that DuPont had reason to suspect there was sand right under the topsoil at
the site of Roye’s injury.

                                                20
opinion does not support constructive knowledge of the concealed hazard.
Moreover, even if that evidence could support his opinion, the supreme court has
held that constructive knowledge that a hazardous condition could be reasonably
expected to occur at some future date is insufficient. CMH Homes, Inc., 15
S.W.3d at 102 (rejecting argument that defendant “at least had constructive
knowledge of the condition of the steps because it knew the steps could become
unstable”). Rather, there must be evidence that the condition did occur a sufficient
length of time before the injury that a reasonable inspection would have revealed
it. Id. at 102–03; see also Brookshire Grocery Co., 222 S.W.3d at 407–08. As
already discussed, there is no such evidence in this record.

      Our dissenting colleague also contends this conclusion regarding
constructive knowledge is beside the point, as the jury was allowed to infer under
Keetch that DuPont had actual knowledge of the unsupported ledge of topsoil near
the pool because it “created the defect” by omitting a French drain. Post, at 2, 7.
We conclude the dissent’s reliance on Keetch is misplaced for three reasons.

      First, Keetch understandably did not involve a challenge to whether the
premises owner supermarket owed a legal duty to the plaintiff shopper; certainly it
did. In this case, however, DuPont’s position is that it owed Roye no duty as an
independent contractor’s employee because the only defect it knew or should have
known about was open and obvious. The question of duty is one for the court to
decide (nothing in Keetch says otherwise), and an inference that DuPont had actual
knowledge of an open and obvious defect—the erosion-created hole filled with hot
water that resulted from the omission of a French drain—cannot support a duty as
explained above.

      Second, Keetch did not hold that creating a condition always supports an
inference of knowledge, but merely that it “may” do so if there is also evidence the

                                         21
defendant “knew” or should reasonably have foreseen from an inspection that the
condition “presented an unreasonable risk of harm.” 845 S.W.2d at 265, 266;
Seideneck v. Cal Beyreuther Assocs., 451 S.W.2d 752, 754–55 (Tex. 1970)
(holding that although defendant placed rug on which plaintiff tripped, there was
legally insufficient evidence it should reasonably have foreseen from inspection a
probability that the rug would result in injury). 16 Here, as previously discussed,
there is no evidence DuPont had either actual or constructive knowledge of an
unreasonable risk of harm to those stepping on the concealed ledge of apparently
solid ground adjacent to the open and obvious hole filled with hot water.

       Third, Keetch and similar cases address arguments that knowledge should be
inferred when the defendant “created a condition that posed an unreasonable risk
of harm” at the time it was created, even though the harm may have occurred later.
845 S.W.2d at 265; see also CMH Homes, 15 S.W.3d at 101 (explaining that grape
display in Corbin v. Safeway Stores, Inc., 648 S.W.2d 292 (Tex. 1983),
“constituted a dangerous condition from the moment it was used”).17 Indeed, it is


       16
          See also Knox v. Fiesta Mart, Inc., No. 01-09-01060-CV, 2011 WL 1587362, at *5
(Tex. App.—Houston [1st Dist.] April 21, 2011, no pet.) (holding actual knowledge of
placement of object is not evidence of actual knowledge that object presented a hazard). The
dissent concedes as much: “it isn’t enough that the owner simply created a condition that turns
out to be hazardous;” there must also be evidence “that an owner has created a condition that it
could reasonably foresee poses an unreasonable risk of harm” for the inference of knowledge to
arise. Post, at 4. This principle is not inconsistent with our opinion in Grayson v. Anselmo, No.
14-06-01073-CV, 2008 WL 660433 (Tex. App.—Houston [14th Dist.] Mar. 11, 2008, no pet.)
(mem. op.). Grayson cannot overrule Seideneck and Keetch, nor does it purport to do so.
Grayson did not address a duty dispute, and the defendant there did not argue that even if he
created the condition (an inadequately attached railing on a ramp), he could not reasonably
foresee that it presented an unreasonable risk of harm. Thus, we had no occasion to address
Seideneck’s holding on that issue. Instead, we held that an implied finding in a bench trial that
the defendant did not have constructive knowledge of the dangerous condition was not against
the great weight and preponderance of the evidence. Id. at *4.
       17
          In Keetch, the plaintiff alleged the defendant’s employee “put the foreign substance [on
which the plaintiff slipped] on the floor.” 845 S.W.2d at 265. The dissent’s illustrations of a
freezer lid balanced precariously against a table leg and a lit bomb with a long fuse also fall
                                               22
the temporal connection between the defendant’s creation of the condition and its
dangerousness that makes it plausible to infer the defendant knew of the danger.18
Here, there is no evidence that the ground near the steam trap posed an
unreasonable risk of harm at the time DuPont omitted a French drain. Rather, the
concealed ledge developed over the next several years. For these reasons, Keetch
does not support an inference of actual knowledge in this case. As discussed
above, CMH Homes provides the framework for analyzing knowledge of
conditions that develop and become dangerous over time. 15 S.W.3d at 102–03.19

       Because Roye did not present evidence demonstrating that a reasonable
inspection would have discovered the concealed ledge, we hold as a matter of law
that Roye failed to meet his burden to establish DuPont owed him a duty to warn


within this category of cases in which the condition posed an unreasonable risk of harm from the
time it was created. See Hall v. Sonic Drive-In of Angleton, Inc., 177 S.W.3d 636, 645–46 (Tex.
App.—Houston [1st Dist.] 2005, pet. denied); Post, at 4, 6.
       18
         Keetch, 845 S.W.2d at 266; Coffee v. F.W. Woolworth Co., 536 S.W.2d 539, 540 (Tex.
1976) (holding store personnel in process of changing display had actual knowledge of its empty
and dangerous condition); Rice Food Market, Inc. v. Hicks, 111 S.W.3d 610, 613 (Tex. App.—
Houston [1st Dist.] 2003, pet. denied) (holding no evidence defendant had actual knowledge that
sign posed unreasonable risk of harm where “there is no evidence in the record that the sign was
a dangerous condition from the moment it was installed”).
       19
          The dissent argues that CMH Homes is not applicable because it does not address
actual knowledge of defects created by the owner. We disagree. The first part of the analysis in
CMH Homes addresses that very issue, while the second part addresses constructive knowledge.
In the first part, the supreme court discusses the plaintiff’s theory that CMH had “actual
knowledge” that the steps it installed presented an unreasonable risk of harm because it knew at
the moment it installed the steps that they would become unstable. CMH Homes, 15 S.W.3d at
99. To support this argument, the plaintiff relied on Corbin, which the supreme court has
described as a case about “when knowledge may be inferred from the creation of a condition.”
Keetch, 845 S.W.2d at 265. The supreme court distinguished Corbin and rejected the plaintiff’s
actual knowledge theory, however, concluding that the steps were not a dangerous condition
from the inception of their use. CMH Homes, 15 S.W.3d at 101. As the court pointed out, the
prospect of deterioration “does not necessarily mean that the owner or occupier has created a
dangerous condition.” Id. (emphasis added). Because this case likewise involves a condition
that was not dangerous at inception but deteriorated over time, CMH Homes supports our
conclusion that the Keetch inference of actual knowledge does not arise here.

                                              23
of a concealed hazard that DuPont knew or should have known about. See Moritz,
257 S.W.3d at 215 (stating owner has duty to inspect premises and warn
independent contractor’s employee of concealed hazards owner knows or should
have known about); CMH Homes, Inc., 15 S.W.3d at 103 (“To impose constructive
knowledge when the owner . . . would not have discovered the dangerous condition
from a reasonable inspection is to dramatically alter premise liability law.”);
Wyckoff, 357 S.W.3d at 165. We therefore sustain DuPont’s third issue on appeal
and hold that the jury’s premises liability finding cannot support a judgment
against DuPont.

                                           CONCLUSION

      Having sustained DuPont’s first and third issues on appeal, we reverse the
trial court’s judgment and render judgment that appellees take nothing on their
causes of action against DuPont.



                                     /s/            J. Brett Busby
                                                    Justice

Panel consists of Justices McCally and Busby and Former Justice Simmons.20
(McCally, J., Dissenting)




      20
           Former Justice Rebecca Simmons, sitting by assignment.

                                               24
