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Bright v. Dow Chemical Co.5/6/1999
This is an appeal from a summary judgment for the defendant in a personal injury case involving premises defect and negligence issues. We reverse.
FACTS
Plaintiff Larry Bright, Jr., was employed as a carpenter by Gulf States, Inc. Gulf States was hired to construct an off-gas compressor unit at a plant being built by defendant, Dow Chemical Company. When Gulf States started the project, there was empty land at the location where the compressor was to be built. Under the contract between Gulf States and Dow, Gulf States provided all materials, including the pipes for the project. Gulf States was an independent contractor.
Bright's injury occurred while employed by Gulf States and carrying out his tasks as a carpenter. As he was removing plywood forms that had been used as a mold for a concrete pier, a pipe became unstable and fell, trapping Bright's arm between the falling pipe and an I-Beam, causing serious injury. The pipe that fell and struck Bright's arm was put there by a Gulf States' pipe fitter. The evidence indicates the instability of the pipe could be attributed to either one or both of the following factors: (1) the pipe was improperly secured, i.e. it was only secured on one end; and/or (2) the actions Bright was performing at the time jostled the pipe enough to make it fall.
Bright filed suit against Dow, alleging:
1. Dow was the owner, operator, and manager of the plant where the accident occurred;
2. Dow had the right to control the details of the work, supervise the work, and direct and control safety of the work performed at the site; and
3. Dow was negligent in: maintaining and inspecting the plant; having inadequate safety and construction policies in place; failing to keep the plant safe for business invitees; failing to warn employees and invitees of dangerous and defective conditions; failing to train, manage, direct, and supervise its employees and contractors' employees; and failing to instruct Gulf States to repair the improperly secured platform.
Bright moved for a partial summary judgment asserting, as a matter of law, Dow sufficiently retained the right of control and actually exercised control over Gulf States, giving rise to a duty of care owed to him by Dow.
Dow also moved for summary judgment, asserting Dow owed no legal duty to Bright because:
1. Bright's injury did not arise out of a dangerous and hidden condition which existed when Bright and his employer, Gulf States, entered the premises of Dow;
2. Bright's injury did not arise from an activity or instrumentality of Dow but arose from an activity controlled and conducted solely by Gulf States as part of its work for Dow; and
3. Dow neither retained nor exercised control over the activities of Gulf States or Bright.
The trial court granted summary judgment for Dow and denied Bright's motion for partial summary judgment. The only issue in this appeal is whether the summary judgment evidence established, as a matter of law, that Dow owed no legal duty to Bright.
In a sole issue, Bright argues that the trial court erred in granting summary judgment that Dow owed him no legal duty because: (1) Dow retained specific contractual control of the project; (2) Dow exercised actual control over the work conditions; and (3) Dow established a course of dealing with the contractor to direct the details of the work.
CONTROLLING LAW
Under Texas Rule of Civil Procedure 166a(c), a party moving for summary judgment has the burden of proving there is no genuine issue of material fact, and that it is entitled to judgmen
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