- Chapter 95: When is a Premises Owner Liable if a Contractor is Injured?
- February 1, 2013 | Author: Joseph M. Schreiber
- Law Firm: Vorys, Sater, Seymour and Pease LLP - Houston Office
Chapter 95 of the Texas Civil Practice and Remedies Code defines the duty, and legal liability, of premises owners for injuries to contractors. The law explicitly states that premises owners have no liability to contractors who are making improvements to the premises unless the premises owner controls the manner of the work of the contractor (other than the right to order the work to stop and start, inspect or receive reports), and the premises owner has actual knowledge of a danger on the property resulting in the worker’s injury and fails to adequately warn. What is a relatively straightforward provision of law has become much more nuanced when faced with a variety of case law over the past decade pushing at the outer edges of the law’s language. In this article, we outline what Chapter 95 is, how the law has evolved through court decisions, and how premises owners can protect themselves from legal liability for injuries that occur to contractors on their premises.
What is Chapter 95?
A property owner generally does not have a duty to see that a subcontractor performs his work in a safe manner. However, a limited duty arises if the general contractor retains control over a subcontractor’s methods of work to the point that the subcontractor is not entirely free to do the work in his own way. An employer who gives on-site orders or provides detailed instructions on the means or methods to carry out the work order owes the independent contractor employee a duty of reasonable care to protect him from work-related hazards.
A considerable number of exceptions to the general rule of no duty were created in the courts. In 2003, the Texas legislature passed and enacted Chapter 95 of the Civil Practices and Remedies Code to codify this area of the law. Under Chapter 95, a property owner is not liable for personal injury, death, or property damage to a contractor, subcontractor, or an employee of a contractor or subcontractor who constructs, repairs, renovates, or modifies an improvement to real property, including personal injury, death, or property damage arising from the failure to provide a safe workplace unless:
1. The property owner exercises or retains some control over the manner in which the work is performed, other than the right to order the work to start or stop or to inspect progress or receive reports; and
2. The property owner had actual knowledge of the danger or condition resulting in the personal injury, death, or property damage and failed to adequately warn.
When a contractor is injured and sues either a property owner or general contractor, various questions have to be answered: (1) does Chapter 95 apply at all; (2) if it does, did the property owner or general contractor exercise control over the operative details of the contractor’s work; and (3) did the property owner or general contractor have actual knowledge of the danger which caused the plaintiff’s injury, and fail to adequately warn. Each of these considerations will be discussed below.
Does Chapter 95 apply to the injury?
A number of considerations go into whether Chapter 95 applies to a case involving a contractor’s claim for injury against a property owner or general contractor. The first, which is usually easy to answer is whether the plaintiff was an independent contractor. The second, which comes up somewhat rarely, is whether the premises is used primarily for commercial purposes. Another, more complex question is whether Chapter 95 applies when the contractor was not injured directly by what he was working on.
Plaintiffs have frequently cited to the legislative history of Chapter 95, when Representative Junell gave as an example:
“Let’s say there is a concrete company supplying concrete to a plant and because of premise owner’s negligence (such as failing to properly maintain their pipelines, vessels, or pressures) there is an explosion destroying the concrete truck and injuring the driver. Nothing in this chapter would raise the burden of proof on the property owner’s negligence for the recovery of the damages related to the truck or the person.”
Representative Junell’s example is an extreme one, and while it has been cited, has generally not been given controlling authority, mainly because such an extreme example has not come up yet in the case law.
However, the courts have ruled that if the contractor is injured by something in his general work area, by something connected to his work, or in getting to his job, Chapter 95 still applies. In a relatively simple case, the Dallas Court of Appeals held Chapter 95 applied to an HVAC repairman who was hired to fix a walk-in freezer that was shocking people, who was killed when diagnosing the repair to be done, The court held that diagnosing the problem was part of the repair that the HVAC repairman was hired to accomplish.
Two somewhat trickier cases involved repairmen who were injured in the area of their work, but not by the work itself. In Clark v. Ron Bassinger, the Amarillo Court of Appeals held that Chapter 95 applied to a plumbing contractor who fell through a covered skylight on the construction site where he was working. In Fisher v. Lee & Chang Partnership, the Houston First District Court of Appeals held that Chapter 95 applied when a contractor who was hired to repair a roof-mounted air conditioner fell from a ladder getting to the roof.
However, in the Hernandez v. Brinker case, the Houston Fourteenth Court of Appeals found that Chapter 95 did not apply when the defendant property owner knew it had a faulty roof, had contracted with a roofer to fix it in the near future, and didn’t bother to tell the plaintiff air-conditioning repairman about the roof before he tried to install a new air-conditioning compressor on the root. The roof collapsed under him.
The Hernandez case seems to conflict with the Fisher case, both involving repairs on the roof of buildings, and the Clark case, where the plumber fell through a hole in the roof. The only way to harmonize the rulings and to make them make sense with each other is to look at the culpability of the defendant in each. The Hernandez case is an outlier because unlike the Fisher and Clark cases, the Hernandez plaintiff’s danger was not obvious. The defendant in Hernandez was clearly culpable in that it knew the roof was dangerous, had a repairman scheduled to fix it the following week, and did not tell the plaintiff who was moving a large air conditioning compressor up to that very roof. In the Clark case, the contractor should have known that the roof of a new construction could have had a skylight, and should have watched out for potential covered spots on the roof. In Fischer, the ladder which fell was presumably not an imminent danger, like the roof in Hernandez. The premises owner didn’t know that it was likely that the ladder would fall.
The lesson for premises owners and general contractors in this section is that if there is a danger which is well known to the property owner, but not foreseeable by the contractor, the premises owner has to tell them about it. In a situation where a pipe or valve unexpectedly ruptures when bumped into by a contractor getting to his work area, the courts are likely to apply Chapter 95. However, if the premises owner knows of a particular pipe which is particularly vulnerable, and it is likely that the contractor will encounter that faulty pipe, the owner must tell the contractor about it.
Did the property owner control the contractor’s work?
Of all the issues in a contractor injury case, the issue of control is litigated most often. Chapter 95 states that in order for liability to attach, the premises owner must retain some control over the manner in which the work is performed, other than the right to order the work to start or stop or to inspect progress or receive reports. This can be shown through a contractual right of control or an exercise of actual control. It is exceedingly rare for a premise owner to contractually retain the right to control the contractor’s work. The focus is then usually on actually exercised control.
Case law has clarified that the property owner or general contractor must control the means, methods, or details of the work and the control must extend to the operative details of the plaintiff/contractor’s work. Further, the control must relate to the injury the negligence causes. It is not enough to show that the property owner controlled one aspect of the independent contractor’s activities if the contractor’s injury arose from something else.
The early cases on Chapter 95 determined control by what it was not. The Houston Fourteenth Court of Appeals in Dyall v. Simpson Pasadena Paper Co., held that control was not established by showing that the property owner had general control over safety matters in the facility. The court held that unless a safety regulation actually made the contractor’s work more dangerous, control would not attach. Control was not established by insisting that the contractor carry a “throw-down pack” respirator in a hazardous gas area. Courts have held that control is not found by making contractors execute repairs or modifications by following schematics or blue prints. The courts found this akin to telling the contractor what needed to be done, rather than how to do it. Further, courts have not found control under Chapter 95 by owners telling contractors that certain of their employees are not allowed on the premises.
In two recent cases, courts have found control in Chapter 95 cases and admonished defendants for trying to define the details of the plaintiff’s work too narrowly. In GSF Energy v. Padron, the plaintiff’s contracting company was hired to clean out the inside of a methane conversion tank which was filled with methane saturated wood which adhered to the walls of the tank. The plaintiff and his co-worker were told to go into the tank, climb a ladder and to use only brass tools to knock the pieces of wood off the side of the tank. The plaintiff was killed when he hit a particular piece really hard, twice, and it fell on him. GSF Energy tried to argue that they had not told Padron to hit pieces really hard, twice. The court found that in telling the contractor to go in the tank, and approving only brass pick axes, the property owner had in fact controlled the details of Padron’s work - how to get the saturated wood off the tank walls with force. This decision seems to come down to the relatively simple work operation (getting wood off the side of a tank with a pick-axe) combined with direction on which specific tools to use (brass pick axes). It is also important to note that the case is in the process of being appealed and may be reversed.
In the second case, Pasadena Refining System, Inc. v. McRaven, the plaintiff’s company was hired to place a cart anchor cable on a coker unit owned by Pasadena Refining (PRSI). A lift truck was brought out to the coker unit and barriers around the unit were taken down. The plaintiff was sent to PRSI to remove the lift truck. PRSI knew that they were flushing the coker unit, releasing 200 degree water/coke slurry mixture, and that the drain culvert tops were not working. Nonetheless, the PRSI supervisor approved McRaven walking out to the lift truck, into the area where the culverts were uncovered with tops, yet covered over by the hot slurry. McRaven slipped and fell into the slurry, sustaining severe burns. While PRSI argued that they did not control the details of how McRaven was going to get the lift truck out, the court found this unconvincing.
The lessons learned are that plant personnel are free to do the following without a finding of “control” attaching: (1) telling the contractor what work needs to be done, with specificity (including through the use of blueprints and schematics); (2) ordering the work to start, stop, or for repairs or changes to be made to the work in progress; (3) banning certain of the contractor’s employees from the property; (4) setting up a safety program and requiring the contactor to abide by it; or (5) requiring throw-down packs or other escape equipment to be worn. The courts have found control typically in cases where the actual work is relatively simple in operation (driving a lift truck, getting wood off the walls of a vessel). Requiring specific tools, or controlling access to an area where the only action is to get a piece of equipment out, can equate to control.
Was there actual knowledge of the hazard and failure to warn?
Chapter 95 requires that the property owner have actual knowledge of the danger causing the injury, and failure to adequately warn the contractor. It is not enough to have knowledge about a dangerous condition on the premises, generally, if it is not the danger which actually injures the plaintiff.
While the actual knowledge prong is rarely litigated, a few cases are useful. In McRaven (discussed earlier), PRSI had knowledge that the culvert was uncovered, that scalding hot coker water was being released at the time it gave McRaven permission to move the lift truck, and that a scalding slurry was overflowing the culvert at the time. Likewise, in the Hernandez v. Brinker case, the property owner had actual knowledge that the roof was faulty - it had a repairman scheduled for the next week, and it failed to warn Hernandez at all about it.
This is contrasted with the Dyall v. Simpson Pasadena Paper Co. case in which Dyall was hired to repair a leaky fiberglass pipe in a paper factory. The pipe had leaked chlorine dioxide (a highly toxic chemical), but by the time Dyall arrived at the plant, the leak had slowed to a trickle of clear, odorless liquid (chlorine dioxide is yellow and pungent, and vaporizes in a green mist). The court found that the unit where Dyall was working had signs warning of the danger of chlorine dioxide, and that Dyall was told to use a “throw-down pack” (emergency respirator) and leave the area immediately if he smelled chlorine. It also found that the line had been purged and that Simpson employees were walking by it without respirators. This was not a situation where the company had actual knowledge of the danger - the liquid from the pipe did not appear to be chlorine dioxide or anything but water - and failed to warn.
The lessons of these cases are relatively simple. If a contractor is hired to perform dangerous work, they should be warned of the dangers present, either through signs, oral warnings, or written warnings. Property owners should not remain silent out of an attempt to avoid liability. The opposite may occur.
Conclusion and recommendations
The owner of a commercial property can hire independent contractors to work on the premises and not incur liability for injuries to the contractor, so long as the property owner does not control the operative details of how the contractor does his work, and so long as the property owner warns the contractor of known dangers he will encounter. The property owner can tell what needs to be done with specificity (just not exactly how it is to be done), can control which employees are on the site or not on the site, and can require that the contractor adhere to safety rules. The property owner should warn the contractor of known dangers he is likely to encounter, through warning signs, lockout/tag-out procedures and direct communication with the employee who is sent out to do the job, if at all possible.