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Phillips v. Dow Chemical Co.

11/30/2005



Angelia Stewart (Stewart) died when she fell from scaffolding on a worksite. Charles Phillips, who contended that he was Stewart's husband, asserted wrongful-death claims on his own behalf and a survival claim on behalf of Stewart's estate. Jim Stewart, Stewart's father, also sought recovery for wrongful death and as a bystander, due to his presence when she was injured. Randy and Teresa Stephens, guardians of Stewart's minor daughter, also asserted wrongful-death claims.


The appeal in Cause No. 01-03-00107-CV challenges the summary judgment rendered against all appellants in favor of Dow Chemical Company (Dow), the owner of the premises where Stewart was working. Dow prevailed on its claim that it owed no duty to Stewart as a matter of law because Dow neither retained nor exercised a right of control over her work.


The remaining appeals concern Phillips's standing to assert claims against any of the defendants. Phillips challenges the summary judgments rendered against him on the grounds that, as a matter of law, he was not Stewart's surviving spouse and therefore lacked standing to assert wrongful-death claims. Summary judgment was rendered in favor of Dow in Cause No. 01-03-00107-CV, and in favor of Sulzer Chemtech USA (Sulzer), the general contractor for the project at the worksite, Industrial Specialists, Inc. (ISI), which erected the scaffolding and connecting ladders used for the project, and Altair Strickland, LLP, f/k/a Altair Strickland, Inc. (Altair), Stewart's employer, in Cause No. 01-03-00451-CV. We affirm.


Factual Background


Stewart and her father, Jim Stewart, both worked for Altair and were members of a crew working on a large, repair project on a seven-level vessel at Dow's plant in Freeport. Stewart and her father worked in the 7100 block of a unit referred to as Styrene 2, which was being repaired. Steward was assigned to a "manway" located on the fourth level of Styrene 2. Stewart's job was to sign workers in and out of a confined space known as "the hole," and to observe the hole for fire danger. Scaffolding had been erected around the sides of the vessel, and ladders connected the different levels of the scaffolding. At the close of the workday on March 8, 2000, Stewart climbed down the scaffolding to the second level, where she stopped to speak with her father. After she started back down the ladder from the second level, she fell about 20 feet to the ground below, sustaining serious injuries. Stewart died, intestate, on August 19, 2000.


Procedural History


Appellants alleged negligence and gross negligence claims against Dow, Sulzer, and ISI, and a constitutional, gross-negligence claim against Altair. Dow and other defendants sought summary judgment in the trial court. Dow filed traditional and no-evidence motions for summary judgment, asserting that chapter 95 of the Civil Practice and Remedies Code controlled and negated any duty that Dow owed to Stewart. In a signed order granting both motions, the trial court stated its conclusion that Dow owed no duty to Stewart because Dow lacked sufficient control over either Sulzer or Altair on which to base a duty of care. Dow also sought traditional summary judgment contending that Phillips lacked standing, either as a surviving spouse or as an individual, because he was not Stewart's husband as a matter of law. ISI, Altair, and, later, Sulzer, filed traditional motions for summary judgment asserting similar challenges to Phillips's standing to sue on his own behalf. The trial court granted these motions and dismissed all claims asserted by Phillips, but specifically reserved the claims by the estate pending appointment of a new administrator.


The

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