                           NUMBER 13-17-00101-CV

                          COURT OF APPEALS

                 THIRTEENTH DISTRICT OF TEXAS

                   CORPUS CHRISTI – EDINBURG

RUSTY MORALES AND
OLGA MARIE ORTIZ,                                                      Appellants,

                                         v.

ALCOA WORLD ALUMINA L.L.C.
AND STEPHEN ALVARADO,                                                   Appellees.


                  On appeal from the 135th District Court
                       of Calhoun County, Texas.


                       MEMORANDUM OPINION
   Before Chief Justice Valdez and Justices Contreras and Hinojosa
             Memorandum Opinion by Justice Contreras

      Appellants Rusty Morales and Olga Marie Ortiz sued appellees Alcoa World

Alumina L.L.C. (AWA or Alcoa) and Stephen Alvarado, an AWA employee, after Morales

suffered personal injuries in an industrial accident. The trial court granted summary
judgment motions filed by AWA and Alvarado and dismissed the suit.

       On appeal, Morales and Ortiz raise two issues concerning the statutory defense

available to property owners in suits brought by contractors under chapter 95 of the civil

practice and remedies code. See TEX. CIV. PRAC. & REM. CODE ANN. § 95.003 (West,

Westlaw through 2017 1st C.S.). They argue that: (1) as a matter of law, the chapter 95

defense does not apply to their claims; and (2) even if it does apply, there are fact issues

precluding summary judgment in favor of AWA. Morales and Ortiz also contend that the

trial court erred in granting summary judgment to Alvarado because he is individually

liable for his own negligence.

       We conclude that chapter 95 is applicable to the claims raised against AWA, but

that summary judgment was improper as to both AWA and Alvarado because issues of

material fact exist. We affirm in part and reverse and remand in part.

                                       I. BACKGROUND

       Morales was an employed as a supervisor at Turner Industries Group, LLC

(Turner), which was under contract to provide maintenance and repair services at AWA’s

alumina refining facility in Point Comfort, Texas. At the facility, raw bauxite dirt is refined

through the “Bayer process” to produce pure aluminum oxide, or alumina. One of the

steps of this process involves creating a solution of bauxite and sodium hydroxide called

“process liquor,” then pumping that solution through pipes, or “risers,” to presses which

filter the solution. Over time, the flow of process liquor in the risers causes solid residue

to build up, and the risers must be periodically washed out with a cleaning solution known

as “caustic.” At the Point Comfort plant, AWA uses a system of solid and open “blinds”—

circular pieces of steel inserted between flanges—to control the flow of caustic and



                                              2
process liquor in the various risers.

       On September 3, 2014, Morales was supervising a crew of Turner employees who

were instructed by AWA to “swap out” blinds on two of the risers at the plant. At the time,

riser number 27 was being washed with caustic while riser number 25 contained liquor.

AWA hired Turner to, among other things, replace the solid blind on a pipe leading to riser

25 with an open blind that would allow caustic to flow into that riser. When two Turner

employees unbolted a flange and removed the solid blind, they found that a hardened

“pancake” of scale had formed behind the blind, completely obstructing the pipe. They

used a jackhammer to remove the scale deposit. When the jackhammer broke through

the scale, hot liquor sprayed out of the pipe and onto Morales, causing him to suffer

severe burns on his back and his right arm.

       Morales and his wife Ortiz (collectively, Morales) sued AWA and Alvarado,

contending among other things that they were negligent by failing to ensure that all of the

liquor was cleared out of riser 25 before giving the Turner crew orders to begin their work.

Morales further alleged that AWA had actual knowledge that the riser “was not isolated

from the flow” of liquor.

       AWA, Alvarado, and Morales each filed summary judgment motions. In its motion,

AWA asserted that it was entitled to judgment as a matter of law under chapter 95 of the

civil practice and remedies code, which provides:

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

       (1)    the property owner exercises or retains some control over the
              manner in which the work is performed, other than the right to order
              the work to start or stop or to inspect progress or receive reports; and
                                              3
        (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.

TEX. CIV. PRAC. & REM. CODE ANN. § 95.003 (West, Westlaw through 2017 1st C.S.). AWA

contended that there was no evidence that it controlled Turner’s work or that it actually

knew about the presence of hot liquor in riser number 25 at the time Morales was injured.

In response, Morales argued that chapter 95 does not apply and, in the alternative, that

there are fact questions as to the section 95.003 factors. See id. Morales also moved

for partial summary judgment on grounds that chapter 95 does not apply. Alvarado’s

motion for summary judgment contended that there was no evidence that Alvarado owed

or breached any duty to Morales apart from AWA’s duty.

        After a hearing, the trial court granted AWA’s and Alvarado’s motions, denied

Morales’s motion, and rendered judgment that Morales take nothing by way of his suit.

This appeal followed.

                                       II. DISCUSSION

A.      Standard of Review and Applicable Law

        We review summary judgments de novo. Neely v. Wilson, 418 S.W.3d 52, 59

(Tex. 2013).    AWA’s motion raised traditional and no-evidence grounds; Alvarado’s

motion raised no-evidence grounds only; and Morales’s motion raised traditional grounds

only.   Though the burden varies for traditional and no-evidence summary judgment

motions, all parties brought forth summary judgment evidence; therefore, the differing

burdens are immaterial and the ultimate issue is whether a fact issue exists. Id. (citing

Buck v. Palmer, 381 S.W.3d 525, 527 & n.2 (Tex. 2012)); see TEX. R. CIV. P. 166a(c), (i).

A fact issue exists, precluding summary judgment, if there is more than a scintilla of

probative evidence to support the plaintiff’s claim. Id. Evidence is more than a scintilla if
                                             4
it “rises to a level that would enable reasonable and fair-minded people to differ in their

conclusions.” Serv. Corp. Int’l v. Guerra, 348 S.W.3d 221, 228 (Tex. 2011). Evidence is

less than a scintilla if it is “so weak as to do no more than create a mere surmise or

suspicion that the fact exists.” Regal Fin. Co. v. Tex Star Motors, Inc., 355 S.W.3d 595,

603 (Tex. 2010). We review the summary judgment evidence in the light most favorable

to the non-movant, indulging every reasonable inference and resolving any doubts

against the motion. City of Keller v. Wilson, 168 S.W.3d 802, 824 (Tex. 2005).

      When both sides move for summary judgment and the trial court grants one motion

and denies the other, we review the summary judgment evidence presented by both

sides, determine all questions presented, and render the judgment the trial court should

have rendered. SeaBright Ins. Co. v. Lopez, 465 S.W.3d 637, 641–42 (Tex. 2015).

      As noted, chapter 95 of the Texas Civil Practice and Remedies Code provides that

AWA is not liable for the personal injury of any independent contractor’s employee who

constructs, repairs, renovates, or modifies an improvement to real property unless AWA:

(1) exercised or retained some control over the manner in which the work was performed,

other than the right to order the work to start or stop or to inspect progress or receive

reports; and (2) had actual knowledge of the danger or condition resulting in the personal

injury and failed to adequately warn.       TEX. CIV. PRAC. & REM. CODE ANN. § 95.003.

Chapter 95 is applicable only to a claim:

      (1)    against a property owner, contractor, or subcontractor for personal
             injury, death, or property damage to an owner, a contractor, or a
             subcontractor or an employee of a contractor or subcontractor; and

      (2)    that arises from the condition or use of an improvement to real
             property where the contractor or subcontractor constructs, repairs,
             renovates, or modifies the improvement.



                                              5
Id. § 95.002 (West, Westlaw through 2017 1st C.S.). 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 v. Dow Chem. Co., 463 S.W.3d 42, 50 (Tex. 2015).

       The property owner has the burden to establish that chapter 95 applies to the

plaintiff’s claim. See Gorman v. Ngo H. Meng, 335 S.W.3d 797, 802 (Tex. App.—Dallas

2011, no pet.); Rueda v. Paschal, 178 S.W.3d 107, 111 (Tex. App.—Houston [1st Dist.]

2005, no pet.). Once the defendant has shown that chapter 95 applies to the claim, the

plaintiff has the burden to establish both prongs of section 95.003. Gorman, 335 S.W.3d

at 802–03; Rueda, 178 S.W.3d at 111.

B.     Summary Judgment Evidence

       In support of its summary judgment motion, AWA produced evidence including a

copy of the contract between AWA and Turner which was in effect at the time of the

accident. The contract provides that Turner is an independent contractor and that AWA

“disclaims any right to control the manner of performance by [Turner] and [AWA] will not

control the manner of performance by [Turner].”

       AWA also produced a transcript of Morales’s deposition, in which he testified that

he was supervising two Turner employees, Leo Gayton and Dominick Cano, at the time

of the accident. Morales stated that he was responsible for ensuring that Turner’s safety

rules were followed as they applied to Gayton and Cano. Morales acknowledged that he

signed a “Tagout/Lockout Verification” form showing that he visually inspected the line to

ensure that it was clear. He also signed a “Job Safety Analysis” worksheet indicating that

“Line of Fire” was one of the “potential risks” involved in the job.




                                              6
       While Gayton and Cano were removing bolts from flanges to access the pipe

leading to riser 25, Morales went to Turner’s trailer to get water for Gayton and Cano, and

he then came back to the work site to see that the crew was using a jackhammer on the

scale deposit. Shortly thereafter, process liquor sprayed out and hit Morales from behind,

causing him to fall forward. He then ran to a safety shower. His burns were extensive

enough that he had to be airlifted to San Antonio for skin graft surgery to be performed.

       Morales testified that he had been fully informed as to the hazards involved in

working with materials such as Bayer process liquor, and, according to his training, a full

Tyvek chemical suit with face protection is required to be worn when working on a live

line or a line that cannot be isolated. Gayton and Cano were wearing face shields and

chemical protective suits at the time of the accident. Morales was not wearing such

protection, however, because he was only supervising, not doing the job himself. Morales

did not set up a barricade around the work area because the area was congested and

tight, and he did not think a barricade was necessary.

       When Morales was asked whether anyone from AWA told Gayton and Cano “how

to jackhammer out that scale,” Morales stated: “I’m not sure. Alvarado was there the

whole time. He could have. . . . He pointed some things out to them.” Morales later

clarified that he did not witness Alvarado give Gayton or Cano any instructions as to how

to open the line or use the jackhammer, and he did not know of any evidence that AWA

personnel knew that riser 25 contained process liquor at the time Gayton or Cano were

working on it.

       AWA’s maintenance supervisor Jeffrey McCaskill stated in deposition testimony

that he walked through the job with Morales at around 9:00 a.m. and hung the work permit



                                            7
at around 10:30 a.m. Initially, McCaskill informed Morales that the risers were not ready

to be worked on because he had not yet verified that they had been fully drained. He

stated that he and Alvarado opened the drain connected to risers 25 and 27 in order to

drain them of any remaining liquor. When AWA employee Rudy Pena attempted to hook

up a hose to the drain, liquor sprayed out onto Pena’s face. Pena immediately went to

the safety shower to rinse but did not suffer any burns. McCaskill attributed this incident

to a “bad gasket” and stated that it did not indicate that there was a problem with the valve

that would allow process liquor into the riser. After returning from taking Pena to get

medical care as a precaution, McCaskill saw that the “the drain line to number 25 press

riser was coming out full force,” indicating that the valve was not properly seated, which

McCaskill also said was normal. The valve was then replaced.

       McCaskill conceded that he did not ensure that the line was flushed with water, but

he stated that this was not required by AWA procedures because “open[ing] the drain”

and observing the flow stop is “a form of verification on our lockout/tagout procedure.” He

opined that the accident involving Morales occurred because the valve was leaking and

because Morales was in the “line of fire” without wearing protective equipment. McCaskill

stated that Turner has safety and protective equipment requirements in addition to those

set by AWA, and that “most of” the requirements were “for them to decide.” He speculated

that the valve leak was caused by scale breaking off and plugging the valve after he had

verified it was clear, though he had not seen or heard of this type of incident happening

before.

       McCaskill stated that each of the dozens of risers at the facility are scheduled to

be washed out with caustic once annually. He agreed with Morales’s counsel that Turner



                                             8
employees are required to follow specific directions for their assigned tasks, including the

flange break that was done here. When asked whether Turner employees are “free to

ignore the Alcoa way to do things and do it their own way,” McCaskill replied “No.”

       The summary judgment evidence produced by Morales included a twelve-page

“Standard Work Instruction” (SWI) form containing detailed guidelines on how AWA’s

contractors must perform flange breaks at the Point Comfort plant.                      The SWI form

contains a numbered list of safety items including: “Wear standard Personal Protective

Equipment (PPE): Hardhat, safety-toed foot wear, goggles, appropriate gloves, hearing

protection, long sleeve shirt and DAP on self. Additional PPE if verification cannot be

performed is chemical suit, chemical gloves, rubber boots and face shield.”1 The form

also contains a numbered list describing the procedure to be used for unbolting flanges,

including the exact order in which particular bolts are supposed to be removed. The list

includes the following items:

       3.         VERIFY system has been flushed with water by witnessing flushing
                  & draining of system. If verification cannot be performed, additional
                  PPE with standard PPE must be worn. If verification as defined in
                  this document cannot be performed a Flange Break Permit must be
                  completed and authorized by the Department Superintendent or
                  his/her designee prior to beginning work.

                  ....

       15.        TRY not to destroy gasket when breaking seal to ensure that if line
                  is pressured-up, the flange can be tighten [sic] back up. If the line
                  releases an excess amount of liquids the person(s) shall step back



       1   The SWI form defines “verification” as:
       The witnessing of water being flushed through piping, vessels, tanks, pump or valves
       before the unbolting of flanges. This verification must be performed before starting task.
       Person(s) performing the task of flange break must personally observe the flushing of water
       across the flange being unbolted. The flushing of water may be performed by person
       performing flange break task or another classification.

                                                     9
                 to avoid being contacted with hot or chemical liquids. DO NOT PUT
                 YOUSELF [sic] IN LINE OF FIRE.

       16.       MAINTAIN a defensive posture during flange break in case of
                 displacement of the pipe and possible spray of liquids breaking
                 loose flanges.

                 ....

       18.       REMOVE any scale, debris or old gasket material between flanges
                 before make-up of flanges to prevent leaks to system when placing
                 back in service.

In a section entitled “Verification for Flange Break,” the SWI states:

       FLUSHING of water must be performed from isolation to isolation for true
       verification not just across the flange being unbolted.

       RELEASE any stored material in piping or system by breaking the vacuum.
       The breaking of vacuum in piping or systems must be performed at the
       highest point of the piping or system by opening a valve. After the vacuum
       is broken, a water flush shall be induced to verify no blockage or potential
       stored energy in pipe or system.

       AWA’s corporate representative, Dwayne Maly, testified that contractors are

required to comply with the SWI form when breaking flanges. Maly’s deposition also

contains the following exchange:

       [Morales’s counsel]: Just as we have specific instruction for the Turner
                            contractors to follow when performing flange breaks
                            which detail even the unbolting of the flanges, is there
                            a similar document that specifically details the
                            operation of a jackhammer to remove scale or—

                              (Simultaneous speaking.)

       [AWA’s counsel]:       Objection. Object to the form of the question.

       [Maly]:                Is there a work instruction on how to descale
                              something?

       [Morales’s counsel]: Yes.

       [Maly]:                I don’t know if we have one exactly written that way.
                              An old JSA [Job Safety Analysis] would tell you how
                              to use the hammer and then where to position yourself

                                             10
                            is basically what that procedure would be, but I don’t
                            know if we actually have one like that or a current one.

      [Morales’s counsel]: Okay. Would the descaling using the jackhammer,
                           would that work be included in all of the requirements
                           set forth in this document?

      [Maly]:               In the flange break?

      [Morales’s counsel]: Yes.

      [Maly]:               The flange break procedure is basically all that
                            unbolting and then getting the system isolated. If I
                            have scale that’s completely blocking the pipe, then
                            you would still be in under that assumption of flange
                            break because flange break is letting you remove
                            piping making sure there’s nothing in the system to
                            come out. If the pipe is still scaled up, that flange
                            break still basically applies because you still haven’t
                            confirmed that I am into that piping system that
                            nothing is ready to go back to get me.

      [Morales’s counsel]: Right. So this SWI flange break would apply to the
                           work that was being done while the Turner contractors
                           were jackhammering?

      [Maly]:               That’s correct, yeah.

Maly stated that McCaskill left the facility at some point on September 3, 2014, and that

Alvarado then became the AWA “contact” person for the Turner crew from that point.

      The day after the accident, AWA’s plant manager Ben Kahrs sent an email to AWA

employees acknowledging that flush verification of riser 25 was not done correctly:

      We had a serious incident yesterday in 35 where the isolation of a mud floor
      pipe was not done correctly. The Turner supervisor on the job was exposed
      to an uncontrolled liquor spill from the pipe that was thought to be properly
      isolated. In this case, the flush verification was not done correctly, even
      though it was specifically circled on the pre-task brief.

      Until further notice, a knowledgeable and Level 2 trained salaried employee
      will be required for 100% of liquor isolation tasks to visually verify the water
      flush is done from one side of the fence to the other. This is required before
      isolation is finalized and the work permit is hung.



                                            11
       Arnold Ecle, an AWA operator who worked at the Point Comfort plant, provided an

affidavit which stated in part as follows:

       4.     As an operator, I was responsible for a Quadrant assigned to me.

       5.     Quadrants on the Press Floor are known as ISO, South, North, and
              Oxalate.

       6.     Operators on the Press Floor rotated among the Quadrants.

       7.     The Quadrants contain Presses.

       8.     The Presses are operated 24 hours per day, 7 days a week, 365
              days a year, except for during periods of maintenance.

       9.     The Quadrants are staffed by operators like myself 24 hours per day,
              7 days a week, 365 days a year.

       10.    The responsibilities of an operator of a Quadrant included monitoring
              the computer system in the Control Room of the Press Floor.

       11.    Operators like myself were trained by Alcoa and were responsible for
              monitoring flow, level, temperature and pressure of the lines feeding
              the Presses.

       12.    When maintenance was performed on the Risers in the Mud Floor
              (second floor of Press Building) that fed liquor to the Presses,
              Operators like myself were trained by Alcoa to and were required to
              enter the number “4” on the computer system in the Control Room of
              the Press Floor to indicate that the Press was out of service for
              maintenance on the Riser.

       13.    When maintenance was performed on the Risers in the Mud Floor
              that fed liquor to the Presses, Operators like myself were trained by
              Alcoa to and were required to monitor the flow and pressure readings
              on the computer system in the Control Room of the Press Floor to
              monitor whether the Riser was isolated from the flow of liquor in order
              to ensure a continuous zero-energy state during the period of
              maintenance.

       14.    Operators like myself were trained by Alcoa that during a period of
              maintenance, the flow readings on the computer system should be
              zero.

       15.    In the event that that computer system in the Control Room of the
              Press Floor indicated positive flow during a time in which
              maintenance was performed on a Riser in the Mud Floor, operators

                                             12
                like myself were trained by Alcoa to immediately report this reading
                to a supervisor.

Records from the control room indicate that, though the status of riser 25 was shown as

“4” for maintenance throughout September 3, 2014, there were positive flow readings

during the morning and afternoon up until around 1:00 p.m. It is undisputed that the

Turner crew was not advised of these readings.

C.      Applicability of Chapter 95

        By his first issue on appeal, Morales contends that chapter 95 does not apply to

his suit because he and his crew were performing routine maintenance rather than

“construct[ing], repair[ing], renovat[ing], or modif[ying]” improvements at the plant. See

TEX. CIV. PRAC. & REM. CODE ANN. §§ 95.002(2), .003.2

        Morales cites Montoya v. Nichirin-Flex, U.S.A., Inc., 417 S.W.3d 507, 513 (Tex.

App.—El Paso 2013, no pet.), wherein a similar argument was made. In Montoya, the

defendant auto parts distributor hired a company to clean and repair leaks in the

corrugated metal roof of its warehouse. Id. at 509. An employee for the roofing company

suffered fatal injuries when she fell through a corroded part of the roof, and the

employee’s mother filed a premises liability suit, but the trial court granted summary

judgment to the defendant based on chapter 95. Id. at 509–10. On appeal, the plaintiff

argued that chapter 95 did not apply because the deceased and her employer were not




        2  It is undisputed that AWA is the owner of the Point Comfort plant, that press riser 25 is an
improvement to AWA’s real property, and that Morales’s claim arose from the condition or use of riser 25.
See TEX. CIV. PRAC. & REM. CODE ANN. § 95.002 (West, Westlaw through 2017 1st C.S.); Ineos USA, L.L.C.
v. Elmgren, 505 S.W.3d 555, 567 (Tex. 2016) (holding that chapter 95 “only applies when the injury results
from a condition or use of the same improvement on which the contractor (or its employee) is working when
the injury occurs”).

                                                   13
“constructing, repairing, renovating, or modifying” an improvement to real estate, but

rather were performing routine maintenance. Id. at 510.

       The El Paso court of appeals observed that the terms in chapter 95 must be given

their ordinary meaning because they are not specifically defined by statute. Id. at 512

(citing Cities of Austin, Dallas, Fort Worth & Hereford v. Sw. Bell Tel. Co., 92 S.W.3d 434,

442 (Tex. 2002) (“Generally, we will accept the words used according to their ordinary

meaning, unless given a specific statutory definition . . . .”)). The ordinary meanings of

the terms used in the statute are as follows:

       1.     construct—to build or form by putting together parts; frame; devise.

       2.    repair—to restore to a good or sound condition after decay or
       damage; mend: to repair a motor; to restore or renew by any process of
       making good, strengthening, etc.: to repair one’s health by resting.

       3.      renovate—to restore to good condition; make new or as if new again;
       repair.

       4.     modify—to change somewhat the form or qualities of; alter partially.

Id. (citing W EBSTER’S NEW UNIVERSAL UNABRIDGED DICTIONARY 436, 1236, 1632 (2003)).

On the other hand, “maintenance” is ordinarily defined as “care or upkeep, as of

machinery or property”; and “maintain” is defined as “to keep in an appropriate condition,

operation, or force; keep unimpaired” or “to keep in a specified state.”          Id. (citing

WEBSTER’S NEW UNIVERSAL UNABRIDGED DICTIONARY 1160 (2003)). Although the roofing

company’s proprietor testified that the employee was performing maintenance, not repair,

the Montoya court held that chapter 95 applied because the employee’s “activity was not

aimed at keeping the roof in an existing state”; instead, “it was done to restore a primary

function of a roof, namely, keeping water and other elements out of the building’s interior.”

Id. at 512–13.


                                             14
        Morales argues that, unlike in Montoya, the work he and his crew were doing at

the Point Comfort plant on September 3, 2014 was ordinary, routine maintenance which

is not covered by chapter 95. We disagree. Morales’s argument hinges on the notion

that “maintenance” and the activities specified in chapter 95 are mutually exclusive. But

we find no authority to support that general premise. Chapter 95 does not mention

“maintenance”—rather, its focus is on four specific activities, and there is nothing in the

statute indicating, implicitly or explicitly, that those activities may not be done as part of

routine maintenance. To the contrary, AWA cites cases, including Montoya, where courts

have held that activities which seem to fall under the broad definition of “maintenance”

nevertheless also constitute “construction, repair, renovation, or modification” under

chapter 95. See Montoya, 417 S.W.3d at 512; Francis v. Coastal Oil & Gas Corp., 130

S.W.3d 76, 85 (Tex. App.—Houston [1st Dist.] 2003, no pet.) (applying chapter 95 where

plaintiff was injured while performing a “coiled-tubing washout” of a well, in which an

engine pumps debris out of the well and into a receptacle); see also Rawson v. Oxea

Corp., No. 01-15-01005-CV, 2016 WL 7671375, at *12 (Tex. App.—Houston [1st Dist.]

Dec. 22, 2016, pet. filed) (mem. op.) (applying chapter 95 where plaintiff was injured while

replacing damaged insulators at an electrical substation).3



         3 AWA also cites several other cases in which courts applied chapter 95, but the issue of whether

the plaintiff’s activity constituted “construction, repair, renovation, or modification” was undisputed and was
not squarely addressed. See Ineos, 505 S.W.3d at 559 (plaintiff was injured “while replacing a valve on a
furnace header” at a petrochemical plant); Abutahoun v. Dow Chem. Co., 463 S.W.3d 42, 53 (Tex. 2015)
(independent contractor was exposed to asbestos while assisting with the installation of pipe insulation);
Oiltanking Houston, L.P. v. Delgado, 502 S.W.3d 202, 212–18 (Tex. App.—Houston [14th Dist.] 2016, pet.
denied) (independent contractor was killed in an explosion while welding a flange on the end of a pipe used
to transport crude oil); Rosa v. Mestena Operating, LLC, 461 S.W.3d 181, 182–87 (Tex. App.—San Antonio
2014, pet. denied) (plaintiff was injured while “performing maintenance on wooden electrical poles”);
Vanderbeek v. San Jacinto Methodist Hosp., 246 S.W.3d 346, 352 (Tex. App.—Houston [14th Dist.] 2008,
no pet.) (plaintiff was injured while he was reconnecting a pipe to a sink as part of remodeling a hospital
emergency room). Still, these cases illustrate that activities which may arguably be considered
“maintenance” are often uncontroversially deemed “construction, repair, renovation, or modification” for

                                                     15
       In light of the plain statutory language and the relevant case law, we conclude that

the summary judgment evidence adduced here established that the work being done by

the Turner crew was of the type covered by chapter 95. By removing solid blinds and

replacing them with open blinds, the Turner crew changed the form or qualities of the pipe

leading to the riser; and by using the jackhammer to remove scale, they restored the riser

to a good, new condition.       In other words, they were renovating or modifying the

equipment. See Montoya, 417 S.W.3d at 512 (defining chapter 95 terms). As in Montoya,

Turner’s activity was not aimed at keeping riser 25 in an existing state; rather, it was done

to restore the riser’s primary function, namely, enabling the free flow of liquid into and out

of the system. See id.; Francis, 130 S.W.3d at 85 (holding that “the coiled-tubing washout

Francis was performing qualified as either repair or renovation of the well” because “the

purpose of the coiled-tubing washout was to rehabilitate the well so that the flow of gas

could increase”); see also Rawson, 2016 WL 7671375, at *9 (holding that plaintiff was

“repairing” the substation when he replaced damaged insulators because “the substation

could not be fully operational without replacing the damaged insulators”). Thus, chapter

95 applies, regardless of whether the work could be also considered “maintenance.”

       Morales contends that the risers “were not changed and were not intended to be

changed” by Turner’s work—they were merely to be opened and cleaned—and that “the

only tangible physical change that occurred and that was intended to occur was to the

accumulated waste scale inside the pipes, which is not itself an improvement to real

property.” We disagree. As noted, the swapping of blinds constitutes a modification to

the pipe leading to the riser because it changed its form or qualities, allowing caustic to



purposes of chapter 95.

                                             16
flow into the riser. As for the jackhammering, although that activity may be described in

an extremely narrow sense as being directed solely at the scale buildup, the objective of

that activity was to modify the riser—which is undisputedly an improvement to AWA’s real

property—so that caustic could flow into it.

       Finally, Morales cites First State Bank v. Carpenter, 491 S.W.3d 729, 730 (Tex.

2016), in which the Texas Supreme Court declined to apply chapter 95 where the plaintiff,

an independent contractor, was injured while showing roof damage to an insurance

adjuster. The Court held that chapter 95 did not apply because the evidence showed that

the property owner “had never fully decided what, if any, repairs to make to the roof” at

the time the contractor was injured. Id. at 733. The present case is distinguishable

because there is no dispute that Morales and his crew were under contract and hired to

do a specific task at the time Morales was injured.

       For the foregoing reasons, we conclude that the trial court did not err in determining

that chapter 95 applies to Morales’s claims. We overrule his first issue.

D.     Fact Issues

       By his second issue, Morales argues that, even if chapter 95 applies, there are fact

issues as to the section 95.003 factors which preclude summary judgment. To avoid

summary judgment, Morales was required to produce evidence that AWA: (1) exercised

or retained some control over the manner in which the work was performed, other than

the right to order the work to start or stop or to inspect progress or receive reports; and

(2) had actual knowledge of the danger or condition resulting in Morales’s injury and failed

to adequately warn. TEX. CIV. PRAC. & REM. CODE ANN. § 95.003.




                                               17
       1.     Control

       With regard to the first prong of section 95.003, “control” may be proven in one of

two ways: (1) by evidence of a contractual agreement that explicitly assigns the property

owner a right to control; or (2) by evidence that the property owner actually exercised

control over the manner in which the independent contractor performed its work. Dow

Chem. Co. v. Bright, 89 S.W.3d 602, 606 (Tex. 2002); Ellwood Tex. Forge Corp. v. Jones,

214 S.W.3d 693, 700 (Tex. App.—Houston [14th Dist.] 2007, pet. denied). To be liable,

the property owner must control or have the right to control the means, methods, or details

of the contractor’s work such that the contractor is “not entirely free to do the work his

own way.” Ellwood Tex. Forge Corp., 214 S.W.3d at 700 (citing Elliott–Williams Co. v.

Diaz, 9 S.W.3d 801, 804 (Tex. 1999)). The right to control the work must extend to the

“operative detail” of the contractor’s work. Id. It is not enough that the owner has the

right to order the work to stop and start or to inspect progress or receive reports, nor is it

enough to recommend a safe manner for the independent contractor’s employees to

perform the work. See Dow Chem. Co., 89 S.W.3d at 606–07; see also TEX. CIV. PRAC.

& REM. CODE ANN. § 95.003(1).

       As to actual control, Morales notes that Maly and McCaskill each testified the

Turner crew was required to comply with the specific detailed instructions contained in

the SWI form when performing a flange break, and McCaskill agreed that the crew “could

not do the job in their own way.” See Ellwood, 214 S.W.3d at 700. Morales further notes

that Maly agreed in his deposition testimony that the SWI applicable to flange breaks

“would apply to the work that was being done while the Turner contractors were

jackhammering.” Finally, Morales contends in his reply brief that the flange break SWI



                                             18
establishes AWA’s control over the scale pancake removal process because it required

Turner to “REMOVE any scale, debris or old gasket material between flanges before

make-up of flanges to prevent leaks to system when placing back in service.”

        We agree with Morales that this constitutes more than a scintilla of probative

evidence supporting a finding of actual control “over the manner in which the work is

performed.” TEX. CIV. PRAC. & REM. CODE ANN. § 95.003(1). Narrowly speaking, the work

Turner was hired to do in this case was to swap blinds on two risers. This necessarily

entails the unbolting of flanges, and the evidence establishes that AWA required Turner

to perform that task according to the detailed instructions contained in the SWI. Moreover,

it is undisputed that AWA exercised actual and exclusive control over the verification

process, including the proper flushing and draining of the risers, and that the Turner crew

relied on AWA’s performance of this activity. Accordingly AWA exercised “some control”

over the “operative details” of “the work.” See id.4

        AWA urges that “the work” at issue here must be limited to the jackhammering of

the scale pancake because that is the specific activity which the Turner crew was

engaged in at the time Morales was injured. It argues that the SWI therefore does not

show actual control under section 95.003 because it does not address the “operative

detail” of the scale removal process specifically              See Ellwood Tex. Forge Corp., 214

S.W.3d at 700 (citing Elliott–Williams Co., 9 S.W.3d at 804). In a similar vein, AWA

contends that the flange break instructions in the SWI cannot constitute “some control”

because there is no relationship between those instructions and Morales’s injury. It notes



        4 In light of this conclusion, we need not address whether there is evidence to support a finding of
a contractual right of control. See TEX. R. APP. P. 47.1; Dow Chem. Co. v. Bright, 89 S.W.3d 602, 606 (Tex.
2002).

                                                    19
that a “nexus must be shown between the [property owner’s] retained control and the

condition or activity that caused the injury.” Johnston v. Oiltanking Houston, L.P., 367

S.W.3d 412, 417 (Tex. App.—Houston [14th Dist.] 2012, no pet.) (citing Shell Oil Co. v.

Khan, 138 S.W.3d 288, 294 (Tex. 2004); Elliott–Williams Co., 9 S.W.3d at 803; Hoechst-

Celanese Corp. v. Mendez, 967 S.W.2d 354, 357 (Tex. 1998); Clayton W. Williams Jr.,

Inc. v. Olivo, 952 S.W.2d 523, 528 (Tex. 1997)). In other words, the property owner’s

duty is “commensurate with the control it retains” over the work. Id. (citing Gen. Elec. Co.

v. Moritz, 257 S.W.3d 211, 214 (Tex. 2008); Hoechst-Celanese Corp., 967 S.W.2d at

357). AWA argues that no “nexus” can be shown here because AWA’s control over

Turner’s work, to the extent that it exists, did not play any part in causing the accident.

       We decline to define the “the work” as narrowly as AWA urges. AWA is correct

that the evidence does not establish that Morales’s injury was caused by, or was even

related to, AWA negligently exercising control over Turner’s work. But Morales makes no

claim to that effect. Instead, Morales’s claim is principally based on the independent

negligent activity of AWA in failing to ensure that riser 25 was clear of liquor before it

directed Turner to begin the flange break. This flush verification process was an integral

and inextricable part of Turner’s work, and according to Morales, AWA’s negligent

performance of this activity was a proximate cause of his injury. We conclude that AWA’s

exclusive control over this process constitutes “some control over the manner in which

the work is performed” under section 95.003(1). Any other construction of section 95.003

would lead to an absurd result, as a property owner would have blanket immunity from

liability for its own direct negligence in causing injury to a contractor, in all cases except

where the contractor specifically alleges that the property owner negligently exercised



                                             20
control over the contractor’s work. See Ineos USA, LLC v. Elmgren, 505 S.W.3d 555,

563 (Tex. 2016) (noting that, in construing chapter 95, we rely “on the plain meaning of

the text unless a different meaning is supplied by statutory definition, is apparent from the

context, or the plain meaning would lead to an absurd or nonsensical result”).

       We conclude that the record evidence, viewed in the light most favorable to

Morales, see City of Keller, 168 S.W.3d at 824, establishes an issue of material fact

concerning whether AWA exercised or retained “some control” over the manner in which

the work was performed. See TEX. CIV. PRAC. & REM. CODE ANN. § 95.003(1).

       2.     Actual Knowledge

       We must next determine whether the evidence created a fact issue as to the

second prong of section 95.003—i.e., that AWA had actual knowledge of the danger or

condition that resulted in Morales’s injury but failed to adequately warn. See id. “Actual

knowledge requires knowledge that the dangerous condition existed at the time of the

accident, as opposed to constructive knowledge which can be established by facts or

inferences that a dangerous condition could develop over time.” City of Corsicana v.

Stewart, 249 S.W.3d 412, 414–15 (Tex. 2008). Circumstantial evidence may establish

actual knowledge, but only when it “either directly or by reasonable inference” supports

that conclusion. Id. at 415.

       The summary judgment evidence here included Ecle’s affidavit which stated that

operators were trained to monitor liquor flow from the plant’s control room and to ensure

that the flow readings were zero during periods of maintenance. Ecle further stated

control rooms in each quadrant of the plant are “staffed by operators like myself 24 hours

per day, 7 days a week, 365 days a year.” However, there were positive flow readings



                                             21
for riser 25 during the morning and early afternoon of September 3, 2014, indicating the

presence of liquor in the riser. This was the dangerous condition that injured Morales,

but it is undisputed that he was not warned of the condition.

        Additionally, McCaskill testified that he did not ensure that the line was flushed with

water prior to the Turner crew starting their work. Although McCaskill stated that he did

not believe this was required by AWA procedures, plant manager Kahrs stated in his

email to AWA employees that “the flush verification was not done correctly.”5 In any

event, regardless of whether a water flush was specifically required by AWA procedures,

McCaskill’s testimony is more than a scintilla of evidence that AWA was aware that riser

25 had not been flushed and therefore could not be verified as isolated.

        Again viewing the evidence in the light most favorable to Morales, see City of

Keller, 168 S.W.3d at 824, we conclude that a trier of fact could reasonably infer that

Alcoa had actual knowledge of the presence of liquor in riser 25 at the time of the accident.

See City of Corsicana, 249 S.W.3d at 414–15; Abarca v. Scott Morgan Residential, Inc.,

305 S.W.3d 110, 125 (Tex. App.—Houston [1st Dist.] 2009, pet. denied) (finding an issue

of material fact as to actual knowledge of dangerous construction of scaffolding where

evidence established that defendant’s employees “were present while the scaffold was

built and gave instructions regarding its construction”), disapproved of on other grounds

by Ineos USA, 505 S.W.3d at 564 n.3. Accordingly, there is a fact issue precluding

summary judgment. Morales’s second issue is sustained.



        5  As noted, the flange break SWI form indicated that “verification”—defined as the “witnessing of
water being flushed through piping, vessels, tanks, pump or valves before the unbolting of flanges”—“must
be performed before starting task,” and if verification cannot be done, “a Flange Break Permit must be
completed and authorized by the Department Superintendent or his/her designee prior to beginning work.”
It is undisputed that no Flange Break Permit was obtained here.

                                                   22
F.     Claims Against Alvarado

       By his third issue, Morales argues that the trial court erred in granting summary

judgment to Alvarado. Alvarado argued in his motion that there is no evidence he owed

an individual duty to Morales or that he breached any such duty.

       “Though the existence of duty is a question of law when all of the essential facts

are undisputed, when the evidence does not conclusively establish the pertinent facts or

the reasonable inferences to be drawn therefrom, the question becomes one of fact for

the jury.” Helbing v. Hunt, 402 S.W.3d 699, 703 (Tex. App.—Houston [1st Dist.] 2012,

pet. denied); see Mitchell v. Mo.-Kan.-Tex. R.R. Co., 786 S.W.2d 659, 662 (Tex. 1990)

(“While foreseeability as an element of duty may frequently be determined as a matter of

law, in some instances it involves the resolution of disputed facts or inferences which are

inappropriate for legal resolution.”), overruled on other grounds by Union Pac. R.R. Co.

v. Williams, 85 S.W.3d 162 (Tex. 2002). Thus, in a summary-judgment proceeding, if the

nonmovant’s version of the facts would support the imposition of a legal duty, summary

judgment for the defendant based on a claim of no duty is inappropriate.

       Generally, a corporation is vicariously liable for the tortious acts of its employee

when those acts are within the course and scope of employment.6 See, e.g., Goodyear

Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, 757 (Tex. 2007). An employee may,

however, be individually liable for his or her own negligence when he or she “owes an

independent duty of reasonable care to the injured party apart from the employer’s duty.”

Leitch v. Hornsby, 935 S.W.2d 114, 117 (Tex. 1996); see Tri v. J.T.T., 162 S.W.3d 552,




       6 It is undisputed that Alvarado was acting within the course and scope of his employment with

AWA at all times relevant to Morales’s claims.

                                                 23
562 (Tex. 2005). In other words, “liability cannot be imposed on employees where the

employer and the employees committed the identical negligent acts or omissions.” In re

Butt, 495 S.W.3d 455, 466–67 (Tex. App.—Corpus Christi 2016, orig. proceeding) (citing

Tri, 162 S.W.3d at 562; Leitch, 935 S.W.2d at 117; Pico v. Capriccio Italian Rest., Inc.,

209 S.W.3d 902, 904 (Tex. App.—Houston [14th Dist.] 2006, no pet.)). But “a corporate

agent is personally liable for his own fraudulent or tortious acts.” Id. (citing Miller v.

Keyser, 90 S.W.3d 712, 717 (Tex. 2002); see Leyendecker & Assocs., Inc. v. Wechter,

683 S.W.2d 369, 375 (Tex. 1984); Khan v. GBAK Props., Inc., 371 S.W.3d 347, 359 (Tex.

App.—Houston [1st Dist.] 2012, no pet.)).

       In In re Butt, we held that corporate officials for H.E.B. Grocery Company did not

owe an independent duty of care to a plaintiff who slipped and fell at an H.E.B. store. 495

S.W.3d at 466–67. The plaintiff, in paragraph 27 of his petition, alleged that H.E.B. owed

a duty to its invitees to reasonably inspect the store to discover dangerous conditions,

and that H.E.B. breached that duty “by choosing not to use computerized video

surveillance, or a comparably effective and financially feasible alternative means, to

inspect the store to identify timely and reliably the presence of foreign materials on the

floor of the store.” Id. at 458. As to the individual corporate officers, the plaintiff alleged

only that they “had control over what was and was not done by H.E.B., to discharge

H.E.B.’s duty to its patrons, as described in paragraph 27” and that they “failed to exercise

such control with reasonable care.” Id. We concluded that, because the allegations

against the officers were “identical” to the allegations against the corporation, the plaintiff

did not establish that the officers owed an individual duty “either by virtue of their positions

as apex corporate officials or as a result of their own actions.” Id. at 467. We noted that



                                              24
the plaintiff did not allege that the officers “committed tortious or fraudulent acts, or that

they personally created the allegedly dangerous condition at issue in this case—a wet

floor.” Id. at 466.

       This case is distinguishable from In re Butt because Morales does not seek to hold

Alvarado liable by virtue of Alvarado’s status as a corporate officer. Instead, he claims

that Alvarado was personally responsible for the failure to verify that riser 25 was clear of

process liquor at the time Turner was directed to start their work. Morales cites federal

district court cases holding that, under Texas law, an employee may be liable when he or

she is personally involved in directing or participating in tortious acts as part of his or her

employment. See Richardson v. Wal-Mart Stores Tex., LLC, 192 F. Supp. 3d 719, 723

(S.D. Tex. 2016) (holding that a Wal-Mart employee was liable for actions taken during

the course and scope of her employment because “[u]nlike the defendant in Leitch, [the

employee] was personally involved in the conduct that allegedly contributed to [the

plaintiff’s] injury”); Lyle v. 24 Hour Fitness, USA, Inc., No. A-14-CA-300 LY, 2014 WL

5094126, at *4 (W.D. Tex. Oct. 10, 2014) (noting that Texas law creates an independent

duty for store managers in premises liability cases when “the pleadings alleged the store

manager or agent played a personal role in creating the dangerous condition at issue”);

Alexander v. Lincare Inc., No. CIV A 3:07-CV-1137-D, 2007 WL 4178592, at *3 (N.D. Tex.

Nov. 27, 2007) (noting that “[a] corporation’s employee is personally liable for tortious

acts which he directs or participates in during his employment” and collecting cases).

       Morales’s response to Alvarado’s summary judgment motion cites the following

evidence as support for his claim that Alvarado was personally involved in directing or

participating in tortious acts: (1) Maly’s deposition testimony stating that after McCaskill



                                              25
left the Point Comfort plant in the middle of the day on September 3, 2014, Alvarado

became AWA’s “contact” person for the Turner crew; (2) McCaskill’s testimony that the

pipeline leading to riser 25 was not flushed with water; (3) the flange break SWI, which

states that “FLUSHING of water must be performed from isolation to isolation for true

verification not just across the flange being unbolted”; and (4) Kahrs’ email, which

acknowledged that “flush verification was not done correctly, even though it was

specifically circled on the pre-task brief.” We find that this evidence, when viewed in the

light most favorable to Morales, see City of Keller, 168 S.W.3d at 824, creates a fact issue

as to whether Alvarado owed and breached an individual duty to Morales. Morales’s third

issue is sustained.

                                     III. CONCLUSION

       Because chapter 95 applies to Morales’s claims, we affirm the trial court’s denial

of his motion for partial summary judgment. However, having found disputed issues of

material fact as to those claims, we reverse the trial court’s summary judgment in favor

of AWA and Alvarado. The cause is remanded for further proceedings consistent with

this opinion.


                                                        DORI CONTRERAS
                                                        Justice


Delivered and filed the
17th day of May, 2018.




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