August 4, 2021

Volume XI, Number 216

Advertisement

August 04, 2021

Subscribe to Latest Legal News and Analysis

August 03, 2021

Subscribe to Latest Legal News and Analysis

August 02, 2021

Subscribe to Latest Legal News and Analysis

Texas Supreme Court Clarifies Scope of Property Owners' Statutory Protections

The Texas Supreme Court’s recent decision in Los Compadres Pescadores, L.L.C. v. Valdez provides new guidance regarding a commercial property owner’s protections against liability for injuries occurring on construction sites.  Chapter 95 of the Texas Civil Practice and Remedies Code limits a commercial property owner’s liability for injuries to a contractor’s or subcontractor’s employees.  Under the statute, owners are liable for such injuries only if they “exercise[] or retain[] some control over the manner in which the work is performed” and have actual knowledge of the danger or condition that injures the employee.  Tex. Civ. Prac. & Rem. Code Ann. § 95.003.  But for that limitation to apply, the employee’s injuries must “arise[] from the condition or use of an improvement to real property where the contractor or subcontractor constructs, repairs, renovates, or modifies the improvement.”  Id. § 95.002.  Several years ago, the Texas Supreme Court clarified that the employee’s injuries must result “from a condition or use of the same improvement on which the contractor (or its employee) is working when the injury occurs.” 

Building on its prior decision, the Texas Supreme Court’s March 26, 2021, decision in Los Compadres Pescadores holds that the injury must arise from a dangerous condition of the specific improvement the employee is working on—not just a hazard present in the workplace, generally.  The Texas Supreme Court’s decision in Los Compadres Pescadores held that Chapter 95 covered claims by a contractor’s employees who were injured by an energized power line while constructing pilings for a condominium building.  The employees were installing a twenty-foot rebar when the rebar’s top end contacted a live power line.  The resulting electrical shock injured the employees.  The Texas Supreme Court held these injuries “ar[ose] from the condition … of an improvement to real property,” bringing them within Chapter 95’s scope, because the power line’s proximity to the pilings created a probability of harm to the employees tasked with constructing those pilings.

The Texas Supreme Court explained that identifying the “improvement” is the first step under Chapter 95.  The Court opined that an improvement—defined as “any addition to real property, other than fixtures, that can be removed without causing injury to the real property”—can be as broad as a completed building or as narrow as pilings within the building’s foundation.  Given this broad definition, the Court considered what the employees were hired to do—here, to construct only the pilings—as evidence of the relevant “improvement.”  The Court rejected the property owner’s contention that the overall “workplace” was the “improvement,” as that would impermissibly bring all workplace hazards within Chapter 95’s scope.  Indeed, a “workplace” cannot be an “improvement” because it “is not ‘an addition to real property.’” 

The Texas Supreme Court next provided guidance on what constitutes a “condition” of an improvement.  A condition must “affect the ‘state of being’” of the identified improvement to qualify under Chapter 95.  Items that hang over real property, like power lines, can meet this standard if they are near the improvement.  Thus “[i]f a dangerous condition, by reason of its proximity to an improvement, creates a probability of harm to one who ‘constructs, repairs, renovates, or modifies’ the improvement in an ordinary manner, it constitutes a condition of the improvement itself.” 

Despite the Court’s ultimate conclusion that Chapter 95 applied on these facts, the Los Compadres Pescadores decision establishes important limits on the statute’s scope.  The Texas Supreme Court’s interpretation of “condition … of an improvement” to eliminate claims based on generalized workplace or premises injuries, and to require a proximal connection between the hazard and the improvement on which the work was performed, will narrow the universe of cases that fall within the scope of Chapter 95’s protections.  Commercial property owners in Texas should be aware of these limitations when defending themselves against negligence claims.  They should also be aware that under Los Compadres Pescadores, even if Chapter 95 applies to an employee’s injury claim, the employee’s failure to secure a jury finding on the owner’s actual knowledge of the dangerous condition will not preclude a finding of liability.

Full text of the Supreme Court’s opinion is available here.

© 2021 Bracewell LLPNational Law Review, Volume XI, Number 89
Advertisement
Advertisement
Advertisement
Advertisement
Advertisement
Advertisement

About this Author

Phillip Sampson, Bracewell Law Firm, Texas, Construction and Litigation Attorney
Partner

Phillip Sampson is a member of the firm's management committee and co-chair of the firm's construction litigation practice group. He has experience trying cases for both plaintiffs and defendants in state and federal courts, as well as before arbitration panels. He has also successfully handled a number of appeals at the state and federal level. Phillip represents clients and tries cases involving a diverse range of industries and matters, with a focus on complex commercial litigation, personal injury, and mass tort. He has prosecuted and defended cases involving complex...

713-221-1307
Richard Whiteley, Bracewell Law Firm, Construction and Real Estate Litigation Attorney
Partner

Richard Whiteley, co-chair of the firm's construction litigation practice group, enjoys solving complex problems for his clients in an adversarial context, and believes an aggressive strategy of always preparing a case like it will ultimately go to trial is the best way to achieve the most favorable outcome. Richard has a wide range of experience in trial work and arbitration, with an emphasis on construction litigation, intellectual property litigation, products liability litigation, real estate litigation, and other types of commercial litigation. Richard has tried and...

713-221-1123
Yvonne Y. Ho Appellate & Litigation Attorney Bracewell Houston, TX
Partner

Yvonne Ho's practice focuses on appeals and original proceedings in Texas and federal appellate courts. Yvonne has been recognized by Chambers USA for appellate litigation in Texas (2020) and received the Rising Star Award from the University of Houston Law Alumni Association (2014). She is also a frequent author and speaker on appellate issues, and previously served as a law clerk to the Honorable Ewing Werlein, Jr., in the United States District Court for the Southern District of Texas, and the Honorable Thomas M. Reavley, in the United States Court of Appeals for the Fifth...

713.221.1369
Carlton D. Wilde III Business Litigation Attorney Bracewell Houston, TX
Associate

Carlton Wilde is a trial lawyer with jury experience.  He brings a quick wit and an ability to dive into the details of a case while advising clients on strategy implications in an easy-to-follow manner.  He has first and second chair experience representing both plaintiffs and defendants in a diverse range of complex business litigation and arbitration matters in the energy, construction, consumer products, real estate, and healthcare industries. As a member of Bracewell’s insurance recovery group, Carlton is active in the representation of clients in the recovery of property damage and...

713-221-1555
Stephani A. Michel Litigation Attorney Bracewell Houston, TX
Associate

Stephani Michel focuses her practice on appeals and proceedings in Texas and federal appellate courts. Prior to joining Bracewell, she served as a judicial clerk to The Honorable Gregg J. Costa of the US Court of Appeals, Fifth Circuit.

713-221-1422
Advertisement
Advertisement