Texas Bars Contractors’ Premises-Liability Claims Against Owners Even Where the Owners Were Partially At Fault

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.

Abutahoun v. The Dow Chem. Co., No 13-0175 (Tex. May 8, 2015).

Thanks to Nick Brooks at Griffith Davison & Shurtleff, P.C. for his help with preparing this post.