Opinion filed July 27, 2017




                                                In The


            Eleventh Court of Appeals
                                            __________

                                     No. 11-15-00157-CV
                                         __________

                EVELYN CUEVAS ET AL., Appellants
                             V.
            ENDEAVOR ENERGY RESOURCES, L.P., Appellee

                         On Appeal from the 385th District Court
                                Midland County, Texas
                            Trial Court Cause No. CV51195

                          MEMORANDUM OPINION
        This summary judgment appeal concerns an application of Chapter 95 of the
Civil Practices and Remedies Code to claims brought by the survivors of the
decedent, Angel Cuevas, Jr. Cuevas was fatally injured while working on a drilling
rig that was drilling a well on a lease owned and operated by Endeavor Energy
Resources, L.P. Appellants1 filed suit against Endeavor and Cuevas’s employer, Big

        1
         The Appellants consist of: (a) Plaintiffs Evelyn Cuevas, individually and as next friend of Clarisa
Cuevas and Esequiel Cuevas, minor children, and on behalf of the Estate of Angel Cuevas, Jr., and Melanie
Molina, as next friend of Belen Cuevas, a minor; (b) Intervenor Erika Messer, as next friend of Kristina
Cuevas, a minor; and (c) Intervenor New Hampshire Insurance Company. The three sets of Appellants
have filed separate briefs challenging the trial court’s summary judgment.
Dog Drilling, alleging claims of negligence and premises liability. The trial court
granted Endeavor’s motion for summary judgment based upon its determination that
Appellants did not have evidence to establish a claim against Endeavor under
Section 95.003. 2 See TEX. CIV. PRAC. & REM. CODE ANN. § 95.003 (West 2011).
We affirm.
                                           Background Facts
       Endeavor is an owner/operator of oil and gas leases located in Midland
County. Endeavor contracted with Big Dog Drilling to drill a well on Endeavor’s
mineral lease. Cuevas was an employee of Big Dog Drilling. On June 25, 2011,
Cuevas and other rig hands were working on Big Dog Drilling Rig No. 17. The
accident occurred while the Big Dog crew was “rigging up” the rig in preparation
for drilling operations. Cuevas was working in the substructure area of the rig,
known as the cellar, trying to repair a cellar jet line. The cellar jet line is a pipe that
works as a vacuum to remove fluid from the cellar.
       Cuevas and the other rig hands were using a rope known as a catline, which
was attached to a pulley system known as a cathead, to lift the cellar jet line in order
to make the repairs. During this process, the catline became unexpectedly caught on
the cathead, which caused the cellar jet line to rise abruptly and strike Cuevas in the
head, ultimately resulting in his death. No Endeavor employees were present at the
location when the accident occurred.
       In the Plaintiffs’ Original Petition, they alleged that Endeavor owned and
operated the job site and that Endeavor was an occupier of the premises.3 Plaintiffs
alleged that the premises were unreasonably dangerous, unsafe, and a producing
cause of their damages.               Plaintiffs alleged a premises liability claim against


       2
         Big Dog Drilling is not a party to this appeal. After granting Endeavor’s motion for summary
judgment, the trial court entered an order severing Appellants’ claims against Big Dog Drilling.
       3
           The intervenors have essentially adopted the plaintiffs’ pleadings and arguments in this case.
                                                       2
Endeavor based on the contention that Cuevas suffered bodily injury resulting in his
death as a result of a dangerous condition on the premises, which Endeavor permitted
to exist and about which Endeavor failed to warn Cuevas.
       Endeavor filed a motion for summary judgment asserting traditional and no-
evidence grounds regarding Appellants’ original negligence and premises liability
claims. Endeavor’s traditional summary judgment grounds alleged that Chapter 95
applied to plaintiffs’ claims against Endeavor, and Endeavor’s no-evidence ground
asserted that plaintiffs had no evidence satisfying the requirements of Section
95.003. Plaintiffs subsequently filed a supplemental petition alleging negligent
hiring, retention, and supervision claims against Endeavor. Plaintiffs alleged that
Endeavor was negligent in hiring Cuevas’s employer, Big Dog Drilling, to drill a
well on its lease and that Endeavor was negligent in failing to properly supervise Big
Dog Drilling as it performed work on the lease. Endeavor did not amend or
supplement its motion for summary judgment to address these new claims.
       After a hearing, the trial court granted Endeavor’s motion for summary
judgment on all claims asserted by Appellants. Collectively, Appellants present two
issues on appeal.4 They assert in their first issue that the trial court erred in granting
summary judgment on the original premises liability claim. They assert in their
second issue that the trial court erred by granting summary judgment on the
negligent hiring, retention, and supervision claims that were pleaded after Endeavor
filed its motion for summary judgment.
                The Original Premises Liability and Negligence Claims
       We review a summary judgment de novo. Travelers Ins. Co. v. Joachim, 315
S.W.3d 860, 862 (Tex. 2010).             As noted previously, Endeavor asserted, as a
traditional summary judgment ground, that Appellants’ original claims against

       4
        Appellant/Intervenor New Hampshire Insurance Company only presents a single issue on appeal
complaining of the matter alleged by the other Appellants as their first issue.
                                                3
Endeavor are governed by Chapter 95. We are aided in our analysis by two recent
opinions by the Texas Supreme Court addressing the application of Chapter 95. See
Ineos USA, LLC v. Elmgren, 505 S.W.3d 555 (Tex. 2016); Abutahoun v. Dow Chem.
Co., 463 S.W.3d 42 (Tex. 2015).
      We note at the outset that the parties agree that Chapter 95 applies to
Appellants’ original premises liability and negligence claims as alleged in Plaintiffs’
Original Petition. Accordingly, Endeavor’s traditional summary judgment ground
is not being challenged on appeal as it applies to Appellants’ original claims.
Instead, Appellants’ first issue focuses on Endeavor’s no-evidence ground asserting
that Appellants had no evidence to establish a claim under Section 95.003.
      After adequate time for discovery, a party may move for summary judgment
on the ground that there is no evidence of one or more essential elements of a claim
or defense on which an adverse party would have the burden of proof at trial.
TEX. R. CIV. P. 166a(i). A no-evidence summary judgment motion under Rule
166a(i) is essentially a motion for a pretrial directed verdict; it requires the
nonmoving party to present evidence raising a genuine issue of material fact
supporting each element contested in the motion. Id.; Timpte Indus., Inc. v. Gish,
286 S.W.3d 306, 310 (Tex. 2009); Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572,
581–82 (Tex. 2006).      When reviewing a no-evidence summary judgment, we
“review the evidence presented by the motion and response in the light most
favorable to the party against whom the summary judgment was rendered, crediting
evidence favorable to that party if reasonable jurors could, and disregarding contrary
evidence unless reasonable jurors could not.” Timpte Indus., 286 S.W.3d at 310;
Mack Trucks, 206 S.W.3d at 582 (citing City of Keller v. Wilson, 168 S.W.3d 802,
827 (Tex. 2005)).




                                          4
      Section 95.003 provides that:
            A property owner is not liable for personal injury, death, or
      property damage to . . . an employee of a contractor or subcontractor
      who constructs, repairs, renovates, or modifies an improvement to real
      property, including personal injury, death, or property damage arising
      from the failure to provide a safe workplace unless:

                    (1) the property owner exercises or retains some
             control over the manner in which the work is performed,
             other than the right to order the work to start or stop or to
             inspect progress or receive reports; and

                   (2) the property owner had actual knowledge of the
             danger or condition resulting in the personal injury, death,
             or property damage and failed to adequately warn.

CIV. PRAC. & REM. § 95.003. When Chapter 95 applies to a claim, “it is the
plaintiff’s ‘sole means of recovery.’” Ineos, 505 S.W.3d at 561 (quoting Abutahoun,
463 S.W.3d at 51). The difference between Chapter 95 and the common law is
material for liability purposes because, when Chapter 95 applies to a negligence
claim, it imposes more stringent evidentiary requirements to establish entitlement to
recovery. Id. “When Chapter 95 applies . . . , it grants the property owner additional
protection by requiring the plaintiff to prove that the owner ‘had actual knowledge
of the danger or condition,’ so the owner is not liable based merely on what it
reasonably should have known.” Id. (quoting CIV. PRAC. & REM. § 95.003(2)).
      We begin our analysis with the actual knowledge component. “Because
evidence of actual knowledge triggers an exception to the protection that Chapter 95
otherwise provides, the plaintiff has the burden to prove the owner’s actual
knowledge.” Id. at 568 (citing Vanderbeek v. San Jacinto Methodist Hosp., 246
S.W.3d 346, 352 (Tex. App.—Houston [14th Dist.] 2008, no pet.)).               Actual
knowledge requires knowledge that the dangerous condition existed at the time of
the accident, whereas constructive knowledge can be established by facts or
                                           5
inferences that a dangerous condition could develop over time. Id. (citing City of
Corsicana v. Stewart, 249 S.W.3d 412, 414–15 (Tex. 2008) (per curiam)).
“Circumstantial evidence establishes actual knowledge only when it ‘either directly
or by reasonable inference’ supports that conclusion.” Id. (quoting Stewart, 249
S.W.3d at 415).
      Appellants premise their actual knowledge contention on the assertion that
Endeavor and Big Dog Drilling had common ownership.                 Based upon this
contention, Appellants assert that Endeavor had actual knowledge that the use of the
cathead spools on a drilling rig was a recognized danger, which was evidenced by
cathead spools being replaced with air hoists on other Big Dog Drilling rigs prior to
the incident. Conversely, Endeavor asserted that general knowledge of the use of
catheads on Big Dog Drilling rigs did not constitute actual knowledge of the danger
or condition resulting in the death of Cuevas. Endeavor asserts that no employee of
Endeavor knew that the cellar jet line needed repair or that the cathead and catline
would be used by Big Dog Drilling to lift it for repair. In this regard, the deposition
testimony of Cuevas’s coworkers indicated that no employees of Endeavor were
present at the time of the accident and no employee of Endeavor was aware of the
problem with the cellar jet line or the manner that was used to attempt to repair it.
      The Texas Supreme Court’s recent opinion in Ineos addresses the actual
knowledge issue. The claimant in Ineos was the employee of an independent
contractor that was working to replace a valve on a furnace heater in a petrochemical
plant. Id. at 559. He suffered burns when a burst of gas exploded out of a pipe that
he was working on. Id. The claimant in Ineos asserted that the owner of the plant
had actual knowledge of the dangerous condition because it had knowledge of the
presence of explosive gases and hydrocarbons in the plant. Id. at 568–69. The court
determined that the presence of gas at the plant was not the danger or condition
resulting in the claimant’s injuries, but rather it was the presence of gas in the
                                          6
specific line upon which the claimant was actually working that resulted in the
claimant’s injuries. Id. at 569.
      Appellant’s contention that Endeavor had knowledge that the use of catheads
and catlines on drilling rigs is potentially dangerous is similar to the contention by
the claimant in Ineos that the property owner had knowledge of a potentially
dangerous situation on its property. The court in Ineos rejected the contention that
general knowledge of a potentially dangerous condition constituted actual
knowledge of the dangerous condition that resulted in the claimant’s injury. Id. In
this context, the dangerous condition that resulted in Cuevas’s death was the specific
use of the cathead and catline to lift the cellar jet line for repair, and there is no
evidence that Endeavor had actual knowledge that the cathead and catline were being
used in this manner. Accordingly, we conclude that the trial court did not err in
concluding that Appellants did not raise a fact issue on the actual knowledge
requirement of Section 95.003(2).       We overrule Appellants/Plaintiffs Evelyn
Cuevas’s and Melanie Molina’s first issue, Appellant/Intervenor Erika Messer’s first
issue, and Appellant/Intervenor New Hampshire Insurance Company’s sole issue on
appeal.
               Negligent Hiring, Retention, and Supervision Claims
      Appellants/Plaintiffs Evelyn Cuevas and Melanie Molina and Appellant/
Intervenor Erika Messer assert in their second issues that the trial court erred in
granting summary judgment on Appellants’ negligent hiring, retention, and
supervision claims because Endeavor did not amend or supplement its motion for
summary judgment to include those later-filed claims. A defendant who does not
amend or supplement its motion for summary judgment to address claims asserted
in a plaintiff’s amended or supplemental pleading is generally not entitled to a
summary judgment on the plaintiff’s entire case.         See Blancett v. Lagniappe
Ventures, Inc., 177 S.W.3d 584, 592 (Tex. App.—Houston [1st Dist.] 2005, no pet.).
                                          7
Appellants rely upon this general rule to assert that the trial court erred in granting
summary judgment on the entire case.
      An amended or supplemental motion for summary judgment is not always
necessary, however, when a ground asserted in a motion for summary judgment
conclusively negates a common element of the newly and previously pleaded claims,
or when the original motion is broad enough to encompass the newly asserted claims.
See Blancett, 177 S.W.3d at 592; Farah v. Mafrige & Kormanik, P.C., 927 S.W.2d
663, 671–72 (Tex. App.—Houston [1st Dist.] 1996, no writ); Judwin Props., Inc. v.
Griggs & Harrison, 911 S.W.2d 498, 502 (Tex. App.—Houston [1st Dist.] 1995, no
writ). Endeavor asserts that the grounds alleged in its motion for summary judgment
were broad enough to extend to the supplemental claims. In this regard, Endeavor
asserted that Appellants’ claims were subject to Chapter 95 and that Appellants had
no evidence to satisfy the requirements of Section 95.003. Endeavor contends that
the supplemental claims of negligent hiring, retention, and supervision are also
subject to Chapter 95 and that the same lack of evidence pertaining to Appellants’
premises liability claim extends to the supplemental claims. We agree in part with
Endeavor’s contention.
      In Abutahoun, the Texas Supreme Court addressed the types of claims
covered by Chapter 95. The court held that Chapter 95 applies “to all negligence
claims that arise from either a premises defect or the negligent activity of a property
owner or its employees.” Abutahoun, 463 S.W.3d at 50. “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.’” Id. (emphasis added) (quoting Del Lago
Partners, Inc. v. Smith, 307 S.W.3d 762, 776 (Tex. 2010)). The court further noted,
however, that Chapter 95’s limitations on liability do not apply to all negligence
                                           8
claims that an injured independent contractor may assert. Id. at 52. Specifically, as
per Section 95.002(2), Chapter 95 does not apply when a claim does not arise from
a condition or use of an improvement to real property where the contractor or
subcontractor constructs, repairs, renovates, or modifies the improvement. Id.; see
CIV. PRAC. & REM. § 95.002(2).
         The Texas Supreme Court concluded that Chapter 95 applies to
contemporaneous negligent acts of the property owner. Abutahoun, 463 S.W.3d at
52. These are acts that occur on the premises at the time the claimant is injured. In
their supplemental pleadings, Appellants are asserting that Endeavor was negligent
in hiring Cuevas’s employer, Big Dog Drilling, to drill the well and that Endeavor
was negligent in failing to train and supervise Big Dog Drilling in conducting
drilling operations. Appellants’ supplemental claims of negligent retention and
supervision are essentially claims of contemporaneous negligent acts occurring on
the premises and are thus subject to Chapter 95. Therefore, the trial court’s implicit
determination that Endeavor did not have actual knowledge of the dangerous
condition causing Cuevas’s death extends to the supplemental claims of negligent
retention and supervision. However, Appellants’ claims for negligent hiring do not
appear to be contemporaneous acts occurring on the premises, but rather they are
acts that occurred prior to the injury. Accordingly, we conclude that Endeavor’s
grounds for summary judgment did not extend to the supplemental negligent hiring
claim.
         Endeavor additionally cites G & H Towing Co. v. Magee for the proposition
that the harmless error rule applies where the trial court grants more relief than the
summary judgment motion requested. G & H Towing Co. v. Magee, 347 S.W.3d
293, 297–98 (Tex. 2011). We conclude that the summary judgment on the negligent
hiring claims was harmless under G & H Towing. The court stated in G & H Towing
that, “[a]lthough a trial court errs in granting a summary judgment on a cause of
                                          9
action not expressly presented by written motion, we agree that the error is harmless
when the omitted cause of action is precluded as a matter of law by other grounds.”
Id. (citing Withrow v. State Farm Lloyds, 990 S.W.2d 432, 437–38 (Tex. App.—
Texarkana 1999, pet. denied)) (holding reversal would be meaningless because
recovery for omitted cause of action was precluded as a matter of law).
      Appellants are asserting that, as an owner/occupier of property, Endeavor
owed the employee (Cuevas) of an independent contractor (Big Dog Drilling) a duty
to protect Cuevas by hiring a safe independent contractor to perform the work. Duty
is a question of law for the court to determine rather than for the jury to decide. See
Gen. Elec. Co. v. Moritz, 257 S.W.3d 211, 217 (Tex. 2008).
      Generally, an owner or occupier of property does not owe a duty to ensure
that independent contractors perform their work in a safe manner. Id. at 214; see
RESTATEMENT (SECOND)       OF   TORTS § 409 (“[T]he employer of an independent
contractor is not liable for physical harm caused to another by an act or omission of
the contractor or his servants.”). However, there are a number of exceptions to this
general rule. See Fifth Club, Inc. v. Ramirez, 196 S.W.3d 788, 798–801 (Tex. 2006)
(Brister, J., concurring) (outlining the various exceptions to the general rule that are
set out in the Restatement). Section 411 of the Restatement provides that “[a]n
employer is subject to liability for physical harm to third persons caused by his
failure to exercise reasonable care to employ a competent and careful contractor.”
RESTATEMENT (SECOND) OF TORTS § 411. Texas has recognized the exception for
negligent hiring as set out in Section 411. See Fifth Club, Inc., 196 S.W.3d at 799
n.1 (Brister, J., concurring); Motloch v. Albuquerque Tortilla Co., 454 S.W.3d 30,
33 (Tex. App.—Eastland 2014, no pet.); see also Castro v. Serrata, 145 F. Supp. 2d
835, 836 (S.D. Tex. 2001) (applying Texas law). This exception is separate from
the exception recognized by Section 414 for one who retains a right to control the
contractor’s work. RESTATEMENT (SECOND) OF TORTS § 414; see Abutahoun, 463
                                          10
S.W.3d at 50 n.9 (recognizing that Texas has adopted Section 414); Moritz, 257
S.W.3d at 214 (same); Motloch, 454 S.W.3d at 33–35 (analyzing a negligent hiring
claim separately from a negligent control claim under Section 414); see also Fifth
Club, Inc., 196 S.W.3d at 798–801 (Brister, J., concurring).
      Under the doctrine of negligent hiring, a general contractor owes a duty to
third parties to exercise reasonable care to retain independent contractors that are not
incompetent or unfit. Hagins v. E-Z Mart Stores, Inc., 128 S.W.3d 383, 392–93
(Tex. App.—Texarkana 2004, no pet.) (citing Wise v. Complete Staffing Servs., Inc.,
56 S.W.3d 900, 902 (Tex. App.—Texarkana 2001, no pet.)); see McClure v.
Denham, 162 S.W.3d 346, 354 (Tex. App.—Fort Worth 2005, no pet.) (“In other
words, an employer has a duty to use ordinary care in employing an independent
contractor.”); see also Castro, 145 F. Supp. 2d at 836. However, a duty under the
doctrine of negligent hiring is not owed by the general contractor to the employees
of the independent contractor. McClure, 162 S.W.3d at 354; Hagins, 128 S.W.3d at
393; see Castro, 145 F. Supp. 2d at 836–37. Thus, as a matter of law, Endeavor did
not owe a duty to Cuevas under the doctrine of negligent hiring with respect to its
selection of his employer to perform work on Endeavor’s lease. Accordingly, the
trial court’s entry of summary judgment on the supplemental negligent hiring claim
was harmless. We overrule the second issues of Appellants/Plaintiffs Evelyn Cuevas
and Melanie Molina and Appellant/Intervenor Erika Messer.
                                   This Court’s Ruling
      We affirm the judgment of the trial court.




July 27, 2017                                         JOHN M. BAILEY
Panel consists of: Wright, C.J.,                      JUSTICE
Willson, J., and Bailey, J.

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