                                     In The

                               Court of Appeals
                   Ninth District of Texas at Beaumont
                          ____________________
                             NO. 09-12-00060-CV
                          ____________________

                         CALVIN CLARY, Appellant

                                       V.

                 EXXONMOBIL CORPORATION AND
              EXXONMOBIL OIL CORPORATION, Appellees
_______________________________________________________          ______________

                   On Appeal from the 136th District Court
                          Jefferson County, Texas
                        Trial Cause No. D-183,398
________________________________________________________          _____________

                                   OPINION

      Calvin Clary, an employee of The Newtron Group, Inc., worked with other

Newtron employees at the ExxonMobil chemical plant in Beaumont repairing

electrical equipment exposed to water during Hurricane Ike. As part of the

contract, Newtron employees other than Clary removed damaged switchgear from

the “switchgear 2” building, made necessary repairs, and put the switchgear back

in the building. Clary, who worked outside on junction boxes, went to the building


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to obtain signatures on a work permit. As he was leaving the building, a glass pane

inset in a door fell out and injured his hand.

      Clary sued ExxonMobil. He claimed that the company was negligent in the

manner it maintained and inspected the worksite, and that the condition was

unsafe. ExxonMobil filed a motion for summary judgment. The trial court

concluded that there was “simply no evidence to establish the actual knowledge

requirement on the part of defendant as required by §95.003[.]” See Tex. Civ. Prac.

& Rem. Code Ann. § 95.003 (West 2011). The trial court granted ExxonMobil’s

motion.

      Clary argues that Chapter 95 does not apply in this case. He also contends

that if Chapter 95 does apply, summary judgment should have been denied because

he “met the burden of section 95.003 to demonstrate that [ExxonMobil] exercised

or retained some control over the manner in which the work was performed and

had actual knowledge of the danger or condition.”

                         THE IMPROVEMENT UNDER REPAIR

      Section 95.003 applies to personal injuries that arise “from the condition or

use of an improvement to real property where the contractor or subcontractor

constructs, repairs, renovates, or modifies the improvement.” Tex. Civ. Prac. &

Rem. Code Ann. § 95.002 (West 2011). Section 95.003 provides:

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             A property owner is not liable for personal injury, death, or
      property damage to a contractor, subcontractor, or an employee of a
      contractor or subcontractor who constructs, repairs, renovates, or
      modifies an improvement to real property, including personal injury,
      death, or property damage arising from the failure to provide a safe
      workplace unless:
             (1) the property owner exercises or retains some control over
      the manner in which the work is performed, other than the right to
      order the work to start or stop or to inspect progress or receive reports;
      and
             (2) the property owner had actual knowledge of the danger or
      condition resulting in the personal injury, death, or property damage
      and failed to adequately warn.

Id. at § 95.003.

      In this matter of statutory construction, we consider whether the electrical

equipment alone or the entire building is to be considered the “improvement.” If

the electrical devices are the improvement under repair by the contractor, Chapter

95 may not apply, because the injury did not arise from the use or condition of the

electrical devices. If the building is the improvement under repair by the

contractor, then Chapter 95 may apply, because the injury arose from the condition

or use of the building.

      ExxonMobil contends that the statute applies even though “the particular

object that injured the worker was not actually the improvement upon which the

plaintiff was performing work.” To the contrary, and relying on Hernandez v.

Brinker Int’l, Inc., 285 S.W.3d 152, 157-58 (Tex. App.—Houston [14th Dist.]

                                          3
2009, no pet.) (plurality opinion), Clary argues Chapter 95 does not apply to his

claim because his injury arose from the dangerous condition of an object (the door

and glass window), which was separate from what he contends is the improvement

(the electrical devices).

      In Hernandez, the contractor had been repairing an air conditioner on the

roof of a building. 285 S.W.3d at 153-54. While Hernandez was removing the

compressor and taking it to another location on the roof, the roof collapsed and he

fell through the opening. Hernandez sued the apparent owner of the building, and

argued that Chapter 95 did not apply because the claim arose from the condition of

a different improvement than that under repair: the roof, not the air conditioner.

The defendant responded that the building was the improvement, and the air

conditioner was a mere ‘“fixture’ to the building.” See id. at 156.

      One Justice on the Fourteenth Court of Appeals concluded that Chapter 95

did not apply to the claims. He reasoned “pursuant to the plain language of section

95.002(2), Chapter 95 does not apply to a contractor’s employee’s claim against a

property owner when the improvement the condition or use of which gives rise to

the injury claim is not the same improvement the contractor was at the premise to

address at the time of injury.” Id. at 157-58. One Justice concurred in the appellate

court’s judgment, but for “reasons different from those stated in the plurality

                                          4
opinion.” See id. at 164 (Anderson, J., concurring). He concluded the defendant did

not establish it was the property owner. See id. One Justice dissented. She

concluded that Chapter 95 applied, reasoning that the improvement under repair

was the building. See id. at 164-66 (Yates, J., dissenting).

      Other courts of appeals have held that Chapter 95 applies even though a

plaintiff is injured by something other than the object he is repairing. See, e.g.,

Covarrubias v. Diamond Shamrock Ref. Co., LP, 359 S.W.3d 298, 300, 302-03

(Tex. App.—San Antonio 2012, no pet.) (hydrocarbons released when scissor-lift

that the contractor was using to access his work space hit a fitting that was not the

object of his work); Clark v. Ron Bassinger, Inc., No. 07-03-0291-CV, 2006 Tex.

App. LEXIS 795, at **5-6 (Tex. App.—Amarillo Jan. 31, 2006, no pet.) (mem.

op.) (skylight was not the object of the employee’s work, but it was an unsafe part

of his workplace); Fisher v. Lee & Chang P’ship, 16 S.W.3d 198, 202 (Tex.

App.—Houston [1st Dist.] 2000, pet. denied) (ladder provided a means for the

contractor to reach his work site and the injury stemmed from a failure to provide a

safe workplace); see also Gorman v. Ngo H. Meng, 335 S.W.3d 797, 805-06 (Tex.

App.—Dallas 2011, no pet.) (referring to the plurality opinion in Hernandez as “a

departure from the existing case law of other intermediate courts of appeals”). The

statute has been applied to dangerous conditions “no matter when the condition

                                           5
arose.” See Kelly v. LIN Television of Tex., L.P., 27 S.W.3d 564, 570 (Tex. App.—

Eastland 2000, pet. denied). In Kelly, the Eastland appellate court stated that

“Section 95.003 covers the workplace as well as the improvement being worked

upon by the contractor[,]” and, citing Fisher, noted that “[t]his was recognized by

the first reported case to construe the statute.” Id. While Clary acknowledges these

other decisions conflict with the lead opinion in Hernandez, he argues that this

Court should follow the rationale of that opinion.

       Under Clary’s argument, the statute would protect an owner without actual

knowledge of a defect only if the injury had resulted from the condition or use of

electrical devices. Yet even before the statute was enacted, an owner would not

likely have had liability for an injury to an electrician arising from the electrical

device the electrician was hired to repair. See Shell Chem. Co. v. Lamb, 493

S.W.2d 742, 748 (Tex. 1973). Exceptions existed, where liability may possibly

have been imposed. See id.; see generally Dyall v. Simpson Pasadena Paper Co.,

152 S.W.3d 688, 697-99 (Tex. App.—Houston [14th Dist.] 2004, pet. denied)

(discussing the law before Chapter 95). But the electrical devices here were known

to be in need of repair, and Newtron was on the property because of a technical

specialty in electrical repair.




                                         6
      In Lamb, an electrical subcontractor was hired to assist in the construction of

a facility. One of the subcontractor’s employees received an electrical shock and

fell from a ladder resulting in his death. His community survivors sued the general

contractor under a duty-to-warn theory. The Supreme Court noted that “the duty

owed by a general contractor to employees of its subcontractor is that duty owed

by an occupier of land to a business invitee.” Lamb, 493 S.W.2d at 746. The

Supreme Court described the dangerous condition as “the existence of an exposed

wire coupled with the termination of the other end of that wire into a switchboard

which resulted in the occasional possibility (when the alarm system switch was

turned on at the switchboard) of giving an electrical shock to a person with whom

the wire came in contact.” Id. at 747. Yet the Court held the contractor owed no

duty to warn the electrical subcontractor of the dangerous condition. The Court

reasoned in part:

            The dangerous condition in the instant case was peculiar to the
      technical specialty for which Fisk [the electrical subcontractor] was
      employed. Fisk had a duty to perform its work safely, and Fisk was in
      a superior position to prevent the existence of, to inspect for, and to
      eliminate or warn its employees of this dangerous condition.

Id. at 748. Because no duty to warn existed, a directed verdict was proper. Id.

      Lamb was decided before Chapter 95 was enacted. We are not convinced

that the Legislature intended Chapter 95 to be applicable only to injuries arising

                                          7
from the specific object under repair. With the exception of the opinion in

Hernandez, the statute has been applied broadly by the courts of appeals across the

State. “Improvement” is a broad term, meaning essentially an addition to real

property. See Black’s Law Dictionary 826 (9th ed. 2009). Clary’s injury arose from

the condition or use of the “switchgear 2” building. The electrical equipment, the

door, and the glass pane were parts of the same improvement. Members of Clary’s

crew and other Newtron employees were working in the building where the injury

occurred. The electrical crews were there because of damage caused by Hurricane

Ike. After the hurricane, the door that later failed became the primary access to the

“switchgear 2” building. The “switchgear 2” building, not the switchgear alone,

was the “improvement” within the meaning of Chapter 95. Because the injury

arose from the condition or use of the improvement, Clary’s claims are subject to

Chapter 95.

                                    THE DEFECT

      Clary contends that “ExxonMobil personnel had actual and constructive

knowledge that the door . . . was not working properly and had been subjected to

high pressure forces at the window level and above, both during and after the

storm.” Section 95.003(2) requires proof of actual knowledge, not constructive

knowledge. See Tex. Civ. Prac. & Rem. Code Ann. § 95.003(2). Clary was

                                         8
required to produce some evidence that ExxonMobil had actual knowledge of the

danger or condition “resulting in the personal injury[.]” See Gorman, 335 S.W.3d

at 802; see also Rueda v. Paschal, 178 S.W.3d 107, 111 (Tex. App.—Houston [1st

Dist.] 2005, no pet.).

      Clary testified that he only worked on ExxonMobil’s premises for Newtron

after Hurricane Ike, and that the first time he used the door in question was the day

of the incident. He testified that after the accident, the ExxonMobil “top dog” told

Clary “he was sorry that he hurt me” and reportedly directed that all of the

windows in the plant be checked.

      Mark Holt, a safety coordinator for Newtron, testified that he assisted in the

investigation. He testified that, although he did not tell the person who wrote the

investigation summary “how to write” it, the summary included findings that: the

door was difficult to open prior to Hurricane Ike due to a binding on the threshold;

a thirty-pound fire extinguisher is installed on the door; the door is equipped with a

closing mechanism that prevents slamming of the door; after the hurricane the door

became the primary access to the “switchgear 2” building; the frame mechanism

fell into four parts as the glass fell from the door; the frame mechanism showed no

signs of adhesive and appeared to lock into place to create a secure fit; the door is

older than twenty years; and the integrity of the frame mechanism could have been

                                          9
compromised. The recommendation of the investigation team was that competent

professionals inspect all windows and doors with glass inserts to ensure their

integrity. Holt testified that on another ExxonMobil incident form someone else

noted that in places the window caulk was dry and missing, which caused or

contributed to the injury. Holt stated that no problems or hazards concerning the

door had ever been reported to him, and he had no knowledge of a problem with

the door before or after Hurricane Ike.

      Jody Peveto, an electrician for Newtron, testified that after Hurricane Ike it

was a problem common to everyone who opened the door that the door was hard to

open because of the frame dragging. Peveto said that Clary had helped him open

the door because it was stuck. Peveto explained that he was unaware of anyone

who had noticed the glass pane loose, and that to his knowledge the window had

never been reported as a hazard. He testified that the inside of the building

appeared to have been pressure-washed after the hurricane. Peveto never thought

to report the sticking door because he did not consider the door a hazard.

      Jim Fennell, a process safety engineer at ExxonMobil, participated in the

investigation of the incident. At his deposition, Fennell reviewed pictures from the

investigation and testified that he recalled that the door was in good condition, the

door had a brownish water line on it, and one of the pictures showed the waterline

                                          10
that the investigating team had observed and measured. According to Fennell, the

investigation determined that the most likely cause of the incident was the

hundreds of pounds of pressure from water pushing on the glass during Hurricane

Ike. He agreed that it appeared the inside of the building had somehow been

cleaned after the hurricane.

      Clary maintains the door not only was subjected to strong forces during

Hurricane Ike but the door also suffered from numerous long-standing defects: a

‘“binding’ on the threshold that caused users to have to exert excessive force to

open the door; a heavy fire extinguisher mounted on the door in a way that

additionally threw off its balance; and a vestigial window, with glass secured by

cracking caulk and a tension-based frame.” Clary argues this evidence

demonstrates ExxonMobil had actual knowledge of the danger or condition

resulting in Clary’s injuries.

      Knowledge that the building had been subjected to hurricane conditions does

not amount to actual knowledge that the glass pane inset in the door was a danger

or a condition that could cause injuries. Peveto testified to the door sticking, but he

never reported it to ExxonMobil because he never considered any part of the

window or door a hazard prior to this incident. The other described “defects” of the

door were observations made as a result of a post-incident investigation. Fennell

                                          11
testified that the investigators concluded the door was difficult to open before the

incident, but he did not have personal knowledge of that fact or the source of that

information. No legally sufficient evidence supports Clary’s contention that

ExxonMobil had actual knowledge before the accident of the danger or condition

resulting in the personal injury. Appellant’s issues are overruled. The trial court’s

judgment is affirmed.

      AFFIRMED.

                                              _________________________________
                                                      DAVID GAULTNEY
                                                          Justice

Submitted on April 8, 2013
Opinion Delivered September 5, 2013

Before McKeithen, C.J., Gaultney and Kreger, JJ.




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