The Texas Supreme Court recently applied
a statutory bar to contractors’ claims for premises liability against property
owners. The statute invalidates the injured contractor’s claims even if the injuries
were caused by the negligence of the owner or another contractor, as long as
the injured contractor was working on construction, renovations, or repairs to
the property at the time of the injury. Abutahoun v. The Dow
Chem. Co., No 13-0175 (Tex. May 8, 2015)
(interpreting Tex. Civ.
Prac. & Rem. Code ch. 95).
Chapter 95 of the Texas Civil Practice
and Remedies Code sets forth circumstances in which an owner is not liable for
negligence claims brought by independent contractors or their employees. The
relevant portion of Chapter 95
states that an owner is not liable for injury or property-damage claims by a
contractor that constructs, repairs, renovates, or modifies an improvement to
the property, unless the owner exercises or retains control over the manner in
which the work is performed, has actual knowledge of the danger or condition,
and fails to adequately warn the contractor. Tex.
Civ. Prac. & Rem. Code § 95.003.
In Abutahoun,
the plaintiff was the estate of a construction worker who contracted and died
from mesothelioma as a result of asbestos exposure. The decedent was an
employee of an independent contractor that installed asbestos insulation around
pipes on the owner’s property. The owner’s own employees were also performing
similar tasks. The actions of the employee, independent contractor, and owner’s
employees all contributed to the decedent’s death. In the trial court, there
was a jury verdict in favor of the plaintiff in excess of $2.5 million. The
trial court justified its decisions by distinguishing the negligent acts of the
independent contractor and the negligent acts of the property owner, and
holding the owner liable for its comparative negligence.
The owner appealed, arguing that Chapter
95 does not make such a distinction and that all of the plaintiff’s claims
should be barred. Interpreting the statute, the Court agreed with the owner that
as long as the injured party was performing construction, renovation, or
repair, it could not sue the owner in negligence for that injury even if the
owner’s negligence caused the injury.
The Court did not express an opinion on
the exceptions to Chapter 95, which would allow an injured contractor to sue
the property owner for negligence if the property owner had control over the
independent contractor’s work, knew of the dangerous condition, and failed to
warn the contractor. This exception was not at issue in the case - the
plaintiff argued only that Chapter 95 did not apply at all.
Thanks to Nick Brooks
at Griffith Davison & Shurtleff,
P.C. for his help with preparing this post.
