Co-author Darien Harris
The Texas Civil Practices and Remedies Code, Chapter 95, limits a property owner’s liability when an independent contractor hired to construct, repair, renovate or modify an improvement to the owner’s property brings a negligence claim that arises “from the condition or use of the improvement.” The Texas Supreme Court has ruled that the property owner is free from liability when negligence elsewhere contributes to the plaintiff’s injuries. But the contributing negligence must involve the condition or use of the improvement on which the plaintiff was working.
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In Energen Res. Corp. v. Wallace, Energen hired Nabors and New Prospect to drill an oil well in Pecos County. Energen contracted Dubose Drilling to complete a water well that would assist the oil well drilling operation. Dubose subcontracted with Elite Drillers to complete the water well. Elite’s president, Wallace, supervised the water well project. Because the wells were only 500 feet from each other, Energen and Elite more or less worked side-by-side.
The oil well suffered a “gas kick”, causing gas to migrate to the wellbore. Under Wallace’s supervision, Elite’s crew attempted to clear the drilling mud. Realizing that the gas was flowing from the water well, Wallace warned everyone to run. The gas caught fire and exploded. Wallace was severely burned and Elite’s equipment was damaged.
Wallace, Elite, and Elite’s insurers sued Energen for negligence and other claims. Energen moved for summary judgment that Chapter 95 applied. Energen argued that if the plaintiffs contended that a condition of the oil well gave rise to their claims, the water well’s purpose – to facilitate the oil well’s production – brought the claims under Chapter 95.
The Supreme Court reinstated the trial court’s take-nothing judgment. Chapter 95 applied to the claims. Plaintiffs’ characterization of the claim as a negligent activity at the oil well – rather than a dangerous condition of the water well – was not dispositive. The pertinent question in Chapter 95 cases is whether the claim resulted from a condition or use of the same improvement on which the contractor or its employee was working when the injury occurred.
The Court construed “condition or use” to indicate that Chapter 95 applies to “all negligence claims that arise from either a premises defect or the negligent activity of a property owner or its employees” and there must be a causal connection between the plaintiff’s damages and negligence regarding the condition or use of the improvement on which the plaintiff was working. Even if negligence elsewhere contributed to the plaintiffs’ injuries, negligence at the improvement need not be the “only cause” of the plaintiffs’ damages.
The water well was the relevant improvement because plaintiffs were hired to construct the water well. The plaintiffs’ own petition alleged that their damages were caused by negligence arising from a dangerous condition of the water well, specifically that Energen failed to exercise reasonable care in relation to the defective and/or dangerous conditions in drilling and completing the water well.
Also, Energen neither exercised nor retained control over the manner in which plaintiffs performed their work. It was Dubose – not Energen – that subcontracted with Elite, and Wallace testified that he received information only from Dubose and never spoke with anyone from Energen.
Finally, Energen’s senior geologist’s testimony that he made recommendations to Elite’s senior engineer did not prove that Energen exercised control over the work. Merely making suggestions or recommendations which need not be necessarily followed did not establish control.