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




                                     In The

                    Fourteenth Court of Appeals

                             NO. 14-12-00740-CV

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

           ROBERT EARL ROYE AND DIANE ROYE, Appellees

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

                   DISSENTING OPINION

      Appellee Robert Earl Roye suffered second and third degree burns over 75%
of his body at the DuPont plant when the ground beneath a pallet he stepped upon
to perform his work caved in, causing him to fall into a pool of 400-degree water
up to his chest. Following a jury trial, the trial court entered judgment for the
Royes on, inter alia, their premises liability claim against DuPont. The majority
reverses, concluding as a matter of law that DuPont did not owe Roye any duty
regarding the condition of the premises that caused his injuries.        Because I
disagree, I respectfully dissent. I would affirm the judgment.

      I agree with the majority’s characterization of the hazard or defect at issue.
Specifically, I agree with the majority that the defect is not the steam trap on the
elevated piping. The majority concludes that the pool of hot condensate was a
defect, but a visible one. Again, I agree. The majority acknowledges that the
hollowing of subsurface soil adjacent to the pool of hot condensate, which created
a ledge, was the defect. This defect on the premises was concealed because the
surface layer of clay looked stable.

      I agree with the majority that there is no direct evidence that DuPont had
actual knowledge that the subsurface soil had eroded to the point that it had
become unstable. There is no evidence that anyone else had actual knowledge or
could have perceived from merely looking that the pallet rested precariously on the
surface layer of clay atop a cavern created by erosion of subsurface sand.

      I disagree that there is no evidence of DuPont’s actual knowledge. The
record contains direct evidence that DuPont created the hazardous premises
condition which, under Texas law, creates an inference that DuPont had actual
knowledge of the hazardous condition on its property. See Keetch v. Kroger Co.,
845 S.W.2d 262, 265 (Tex. 1992). Roye did not need evidence that DuPont could
have discovered this defect through a reasonable inspection because DuPont
created the defect.     Because DuPont created the premises defect, DuPont’s
knowledge became a question for the jury, and we must infer that DuPont had
knowledge of that defect, consistent with the jury’s verdict. Id. Therefore, I also
disagree with the majority’s (1) failure to analyze evidence of DuPont’s actual
knowledge under Keetch and (2) legal conclusion that duty in this case is a
question of law for this appellate court.

                                            2
A.     Keetch v. Kroger controls this premises liability cause.
       In 1992, the Texas Supreme Court decided Keetch v. Kroger Co. Appealing
a take-nothing judgment, Keetch urged that because Kroger created the hazardous
condition at issue it should be charged with knowledge of the defect, as a matter of
law. The Keetch Court refused to deem an owner’s actual knowledge of the
owner-created defect and held, instead, that “the fact that the owner or occupier of
a premises created a condition that posed an unreasonable risk of harm may
support an inference of knowledge.” Id.; 1 accord Coffee v. F.W. Woolworth Co.,
536 S.W.2d 539, 542 (Tex. 1976); see also Hall v. Sonic Drive-In of Angleton,
Inc., 177 S.W.3d 636, 645 (Tex. App.—Houston [1st Dist.] 2005, pet. denied)
(stating that the inference established by Keetch is well-settled). But, the Court
further held, “the jury still must find that the owner or occupier knew or should
have known of the condition.” Keetch, 845 S.W.2d at 265. The majority takes
Justice Hecht’s use of the word “may” out of context to suggest it somehow means
that evidence that the owner created the defect might, in some case, be no
evidence of duty. However, this construction places the majority opinion in direct
conflict with our own precedent. We have previously held that duty becomes a
question for the fact finder in an owner-created hazard because the inference arises.
SeeGrayson v. Anselmo, No. 14-06-01073-CV, 2008 WL 660433, at *4 (Tex.
App.—Houston [14th Dist.] Mar. 11, 2008, no pet.) (mem. op.) (“Coffee and
Keetch stand for the proposition that a fact finder may, but need not, infer that a
defendant had actual knowledge of a dangerous condition that it created. It is


       1
          Justice Hecht’s concurring opinion in Keetch makes clear that nothing more than an
inference arises in owner-created defects because “it often happens that a person who creates a
condition knows it at the time . . . [b]ut this is not always so.” Keetch, 845 S.W.2d at 267
(Hecht, J., concurring). Therefore, creating the condition should not amount to “notice of the
condition as a matter of law.” Id. Here, upon evidence that DuPont created the condition, the
trial court properly submitted the question of knowledge to the jury.

                                              3
within the fact finder’s province to decide whether the circumstances justify
inferring actual knowledge against the creator of a dangerous condition.”).
      The Keetch Court then provided definition to circumstances in which the
owner has created the condition for purposes of inferring knowledge. Specifically,
it isn’t enough that the owner simply created a condition that turned out to be
hazardous. See Seideneck v. Cal Bayreuther Assocs., 451 S.W.2d 752, 754–55
(Tex. 1970). The evidence must show that the owner created a condition “which
poses an unreasonable risk of harm” in order to constitute circumstantial evidence
of knowledge. Keetch, 845 S.W.2d at 266. An “unreasonable risk of harm” exists
under Texas law if “there is a sufficient probability of a harmful event occurring
that a reasonably prudent person would have foreseen it or some similar event as
likely to happen.” Seideneck, 451 S.W.2d at 754. Therefore, where evidence
establishes that an owner has created a condition that it could reasonably foresee
poses an unreasonable risk of harm, such evidence creates a fact issue for the jury
on actual knowledge. Hall, 177 S.W.3d at 645–46 (holding that because Hall
adduced evidence that Sonic left a freezer cover in an exposed, dangerous, and
unstable position where it was foreseeable that it would fall to the floor, summary
judgment on actual knowledge of the hazardous condition was reversible error).

      The majority does not analyze DuPont’s duty under Keetch. Instead, the
majority focuses its duty analysis on the absence of evidence that DuPont had
constructive knowledge of the ledge under the teachings of CMH Homes, Inc. v.
Daenen, 15 S.W.3d 97 (Tex. 2000). CMH does not control this case because the
defect alleged—unstable steps and platform—was a defect that developed over
time “simply by virtue of its use.” Id. at 100–01. The CMH Court did not analyze
or address defects created by the owner or the inference of actual knowledge that
arises therefrom. Instead, finding no direct evidence of actual knowledge, the


                                         4
CMH Court analyzed constructive knowledge—because CMH did not create
defective steps. Id. (stating that the issue in the case is “what are the legal
consequences if premises will become unsafe over time and the owner or occupier
is aware of that fact”). But, here, DuPont did not buy a non-hazardous ledge that
became hazardous simply by virtue of its use.

      We cannot construe CMH as applicable to owner-created, rather than use-
created, hazards without ignoring Keetch.       First, CMH and Keetch address
completely different theories of premises liability: Keetch addresses premises
liability for hazards created by a property owner and asks (the jury) whether the
property owner knew that the condition it created was unreasonably dangerous. In
so doing, Keetch authorizes an inference of actual knowledge. CMH addresses
premises liability for hazards the property owner could anticipate would develop
over time and asks whether the property owner knew or, through reasonable
inspection, should have known had developed.         CMH analyzes constructive
knowledge. Keetch owner-created premises defects arise from malfeasance; CMH
owner-should-have-discovered-the-premises-defect claims arise from nonfeasance.
See Del Lago Partners, Inc. v. Smith, 307 S.W.3d 762, 776 (Tex. 2013) (discussing
the difference between premises liability claims in malfeasance and nonfeasance).
CMH does not apply.

      Second, Keetch does not contain a temporal limitation.        However, the
majority’s application of CMH to this case grafts a temporal limitation that does
not exist for owner-created hazards. For example, in Corbin v. Safeway Stores,
Inc., 648 S.W.2d 292 (Tex. 1983), the Texas Supreme Court did not ask whether
the floor became dangerous at the instant an employee dropped the grape or after a
person first stepped on the grape and made it gooey and slippery. CMH, as applied
by the majority, would eliminate any duty owed by Safeway for the hazard it

                                        5
created in the first place.     Instead, in line with the post-CMH analysis we
performed in Grayson v. Anselmo, we should confine our review of premises
liability claims arising from owner-created hazards to Keetch and its progeny. See
Grayson, 2008 WL 660433, at *3–4 (applying Keetch, without mention of CMH,
to premises liability injury that occurred when the railing became separated from
an owner-constructed ramp).

      Finally, neither Keetch, CMH, nor any other Texas Supreme Court authority
articulates a public policy to protect property owners from liability for hazardous
conditions that they create but that do not cause immediate injury. A party’s
liability for affirmative acts of negligence or intentional conduct should not be
eliminated by the fortuity of where the injury occurred. Stated differently, if a
property owner lights a long fuse on the bomb he places on his property, he may be
held liable for injuries when it ultimately explodes without the necessity of further
inspection of the remaining length of the fuse.

      The majority also urges that no Keetch analysis is necessary is this case
because, unlike the allegation that the owner put the foreign substance on the floor
in Keetch, there is no evidence here that DuPont dug the hole. See Majority Op.
21–22.    The majority’s analysis misses the mark.       We have agreed that the
premises defect in this case is the ledge that resulted from hollowing. As outlined
below, there is evidence that DuPont created the ledge through its decision not to
provide drainage for its high-pressure hot condensate. Further, there is evidence
that DuPont should have reasonably foreseen that the undrained hot condensate
posed an unreasonable risk of harm not only through the pooling of hot
condensate, but also through differential erosion beneath the surface clay. DuPont
did dig the hole; they just didn’t use a shovel.

      We should affirm.

                                           6
B.       There is evidence that DuPont created the condition.

         DuPont created the condition, which is hollowing or erosion beneath the
ledge that collapsed, throwing Roye into 400-degree condensate. The jury heard
evidence that the ledge resulted from differential ground erosion at the point of
condensate discharge from the steam trap near where Roye suffered his injury.
The jury learned that discharging condensate is part of the design of the steam pipe
system. The very purpose of the steam trap is to improve circulation of the
valuable steam by eliminating unnecessary byproduct, condensate. So, the design
includes several spring-loaded steam traps to discharge the condensate from the
pipe. When the steam reaches 300 psi, the steam trap opens and condensate
discharges downward at a temperature of 400 degrees and a pressure of 300 psi.

         The jury learned that there are three acceptable methods for hot-condensate
disposal in the industry: (1) recirculate the condensate, (2) install a French drain, or
(3) allow the condensate to discharge into a concrete-lined ditch. Dean Baker, an
employee with DuPont at the La Porte facility at the time the piping was
constructed, told the jury that the purpose of a French drain is to prevent ground
degradation or erosion in the area. And, the jury saw D.B. Western’s original
proposed design drawing for handling discharge, Plaintiff’s Exhibit 267—a French
drain.

         Notwithstanding D.B. Western’s proposal, according to Oscar Gonzalez, “a
conscious decision was made by DuPont’s design team to remove four of the six
French drains.”     According to Dennis Beatham, DuPont engineers vetoed his
French Drain drawing. Thus, it was a DuPont decision to omit a French drain
system to accommodate the 400-degree condensate emitting from the steam trap at
300 psi. Ultimately, DuPont did not substitute one of the other two acceptable



                                           7
drainage systems for the French drain. Thus, DuPont decided that no drainage
system would be used.

      When DuPont omitted the French drain and substituted no drainage system
whatsoever, it created the hollowing condition. Specifically, a French drain works
like a gutter beneath a downspout, not only because it directs the flow of the hot
water but also because it reduces the pressure at which the water hits the ground
from approximately 300 psi to 0 psi. When hot condensate hits the ground at 300
psi, it creates a hole. Had DuPont recirculated the hot condensate—there is no
drainage and, therefore no hole. Had DuPont provided a concrete-lined pit, the
hole and the pooling still exists, but the pressure is applied to concrete so there is
no risk of ground degradation or erosion in the area.      Without any drainage, the
400-degree water hitting the ground at 300 psi created not only a pool of hot water,
but also erosion of the soil beneath the steam trap.

      In this case, however, no drainage of hot condensate created a problem far
larger than mere erosion of the soil because in this case there were different types
of soil at different layers. The jury heard testimony about the top layer of soil –
clay. The jury also heard that lower levels of soil were silt or sand. Clay does not
erode as easily as silt. Clay rooted with grass erodes even less. So, when hot
condensate hits the soil of different types in layers, such as clay on top of silt, at
300 psi, it does not merely create a hole straight down. Instead it causes erosion at
different rates. As the hot condensate hits the soil and begins to create the hole, the
clay, particularly clay rooted with grass, remains in place while the silt layers
beneath erode. It’s called differential erosion. When the layer of clay remains and
the layer of silt disappears, the condition of hollowing occurs and the ledge results.
DuPont created the condition. DuPont did not use a shovel to create the hollowing
of soil; it used un-drained and un-dissipated 400-degree, 300-psi condensate.

                                          8
C.    There is evidence that there was a sufficient probability of a harmful
      event occurring that DuPont knew or should have known that the event,
      or some similar event, was likely to happen.
      As outlined above, the condition is the hollowing through erosion that
created the ledge.

      1. DuPont knew the event or a similar event was likely to happen.

      With regard to the hazard of the condition, the jury first learned that the
erosion of any soil caused by hot condensate exploding from a steam trap is a
dangerous condition. Specifically, Dean Baker from DuPont told the jury that it is
unsafe not to have anything for condensate disposal because if there isn’t anything
to catch the condensate released at 300 pounds of pressure, it’s going to erode the
ground. Baker’s testimony is supported by DuPont’s own written standard for
condensate disposal. The standard directs, “Condensate shall not be discharged
into open ditches, French drains, or sewers without approval of Design, Plant or
Construction authority.”   The same standard further directs that if the design
contemplates an open discharge of condensate, the preferred method is to lower the
temperature of the condensate to a safe level and then discharge it or to use “a
suitable catch tank (see P12B) or a properly designed French drain (see P6D).”
Thus, DuPont’s own standard forbids condensate disposal into an open pit, such as
occurred where Roye was injured. Note that this standard requiring drainage is not
a standard applicable solely to variable soil. It is the standard for all soil. Thus,
there is some evidence that DuPont knew that the failure to supply a drainage
system—any drainage system—not only violated its own standard but also was
dangerous because of the effects of erosion.

      Significantly, the jury learned that DuPont did not merely miscalculate the
need for a French drain; DuPont calculated the risk and accepted it. Specifically,


                                         9
DuPont’s design engineers made the conscious decision to omit only four of the six
French drains that were designed into the system. The sole reason that DuPont
declined French drains in those four areas, though it was a departure from its own
standard, was because those four areas did not have as much traffic— not as many
people walking around. Stated differently, where DuPont knew many people
would be walking around, it installed French drains. Where DuPont knew fewer
people would be exposed to the hazard, it did not. Roye was one of the individuals
for whom DuPont calculated and accepted the risks posed by no French drain.

      Standing alone, the above-outlined evidence that ordinary erosion is unsafe
and DuPont created a circumstance of erosion at a location it knew workers would
need to maintain the steam trap is sufficient to infer knowledge and submit the
question to the jury. Specifically,

      (1)    DuPont created the condition, hollowing from erosion;
      (2)    Erosion for failure of a condensate drainage system is an unsafe
             condition;
      (3)    DuPont knew that it was a dangerous condition because the
             purpose of the industry-standard drainage is to prevent erosion;
             and
      (4)    DuPont deliberately created the hazard only in areas not subject
             to high traffic because it was an extraordinary hazard.

This is circumstantial evidence of actual knowledge. See Keetch, 845 S.W.2d at
266 (citing Coffee, 536 S.W.2d 539).

      2. DuPont should have known the event or a similar event was likely to
         happen.
      The danger of erosion became even more dangerous because of the variable
soil that turned ordinary erosion into differential erosion. And, DuPont knew
about the variable soil in the area where Roye suffered injury. Specifically, the
jury saw an October 2000 email from Donald Johnson, a DuPont geotechnical
                                        10
consultant. Johnson evaluated boring and soil data in the same area where DuPont
omitted the French drain. These soil borings were not conducted for purposes of
deciding the appropriate hot-condensate drainage. DuPont conducted soil borings
to determine the necessary depth of the drill shaft construction for the pipe rack
support system. And, Johnson noted that most, but not all, of the borings showed
clay “throughout the soil profile.” However, he warned that in one particular
boring he found “sand below 8 feet.” He cautioned, “While the sand is acceptable
for support, . . . it may create hole cave-in problems necessitating casing of the
hole or slurry construction.” Finally, he warned, “Careful inspection is essential to
detect stability problems and the need for special procedures.”

      Although the soil data did not come to DuPont in connection with the
drainage-system proposal, at least one DuPont representative should have known
of the relationship between the boring data and the condensate drainage—John
Ponder.   In 2000, Ponder was serving as the liaison between D.B. Western,
DuPont, and Harmony during the steam pipe construction.             As a “first line
supervisor,” Ponder was “very familiar with DuPont rules, procedures, and
protocols.” During trial, Ponder acknowledged that he had reviewed the D.B.
Western French drain design. His initials are on the design sketch. No more than
one month later, a D.B. Western representative wrote to Ponder informing that
D.B. Western needed Dupont’s decision on the drainage for the steam trap
immediately. Specifically, the letter stated, “We need to know quickly if we have
to drill these pits when we have drilling done for Bell Piles.” The Bell Piles are the
piling referred to in the soil boring report from Johnson. D.B. Western was telling
Ponder that it wanted, for efficiency reasons, to prepare the holes for rack
support—which might need reinforcement due to sand—at the same time it dug a
drainage system. Finally, Roye’s expert witness, James Knorpp of Knorpp Safety,


                                         11
tied this evidence together for the jury.   Knorpp is a retired, 30-year safety
engineer for OSHA, who formed his own safety consulting firm in 1994; so he
brought 50 years of experience to the jury. Based upon the documentation Knorpp
reviewed, including the above referenced documents, he opined that
      •     “DuPont knew that the French drains should be under each of the six
            steam traps on the 300-pound line” and originally intended to install
            them;
      •     Without a French drain, hot condensate spitting out of the steam trap
            has a tendency to erode the soil where it hits and pool;
      •     Soil conditions must be considered with condensate drainage because
            the soil must be capable of absorbing the water;
      •     DuPont had information about the variable soil conditions in the area
            and should have considered it when making a decision whether to
            dispose of condensate directly to the ground;
      •     Under these circumstances, without a French drain, the hazard
            (hollowing under the top soil) could be reasonably expected to occur;
            and
      •     “[T]he root cause [of Roye’s accident] was that there was a failure to
            install the safe — proper safety equipment — that is, French drain
            equipment or other collection media — at the time this equipment was
            designed and constructed and a failure to properly evaluate the hazard
            that could ultimately result.”
      The majority notes that Johnson’s soil-borings email does not address steam
traps or the necessity of a French drain. Lynn Ratcliff, DuPont’s expert, also
concluded that the two issues were “totally unrelated” because Johnson’s caution
meant that when the pilings were drilled there was a danger that the sand layer at
eight feet might collapse. The jury was free to disregard Ratcliff’s testimony and
accept Knorpp’s testimony and infer that DuPont should have recognized the
relationship between the two issues inasmuch as D. B. Western wanted to dig the
drainage pit at the same time it dug the hole for the supporting rack. See City of
Keller v. Wilson, 168 S.W.3d 802, 822, 827 (Tex. 2005). DuPont had all that it
                                       12
needed to know that the dangerous condition caused by erosion was exacerbated
by the variable soil.

D.    Conclusion

      In summary, I respectfully dissent to the decision to reverse the jury’s
verdict. Keetch v. Kroger is still Texas law. Owner-created conditions that pose
an unreasonable risk of harm give rise to a jury question on knowledge—actual
knowledge. CMH Homes, Inc. v. Daenen does not constitute a develops-over-time
exception to Keetch.

      The jury heard evidence that (1) DuPont created the condition and (2) there
was a sufficient probability of a harmful event occurring that DuPont knew or
should have known that the event, or some similar event, was likely to happen.
DuPont deliberately departed from industry standards and created an unreasonable
risk of harm to a few on its premises while shielding others from it. Roye was one
of the few. The jury determined DuPont had knowledge and we should honor that
decision.


                                            /s/    Sharon McCally
                                                   Justice

Panel consists of Justices McCally and Busby and Former Justice Simmons. *
(Busby, J., Majority).




      *
          Former Justice Rebecca Simmons, sitting by assignment.

                                              13
