 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Phillips v. Dow Chemical Co.11/30/2005
rmed by the subcontractor, ISI, which was responsible for constructing and for inspecting daily the scaffolding from which Stewart fell, or the work performed by Stewart's employer, Altair.
D. Appellants' Response to Dow's Motion for Traditional Summary Judgment
Appellants' response presented multiple grounds in opposition to Dow's motion. These included the legal challenges to the applicability of chapter 95 that we have addressed and rejected above. Appellants' remaining legal challenge assumed, but did not concede, that chapter 95 applied, which would, therefore, require proof to meet section 95.003(2)'s requirement that Dow had actual knowledge of the allegedly dangerous condition giving rise to Stewart's injuries. Appellants then argued that Dow's conduct amounted to "negligent ignorance," which, appellants maintained, is the same as "actual knowledge."
On reviewing appellants' contention, we conclude that it attempts to reinstate the now rejected common-law principle that not only actual knowledge, but also constructive knowledge of a dangerous condition by a premises owner suffices to impose liability on the premises owner. See Williams, 952 S.W.2d at 527. As addressed above, in enacting chapter 95, the Legislature did not include constructive knowledge as a basis for imposing liability on a premises owner; instead, the Legislature expressly required that the premises owner have actual knowledge of the allegedly dangerous condition. Compare id. with Tex. Civ. Prac. & Rem. Code Ann. § 95.003(2); see Hanks, 60 Tex. B. J. at 1021. Accordingly, we reject appellants' contention that "negligent ignorance" equates to actual knowledge under chapter 95.
E. Lack of Actual Control by Dow
Appellants also presented summary judgment evidence in opposition to Dow's motion for summary judgment, which, they argued in the trial court and on appeal, raised sufficiently triable issues of fact concerning Dow's control to preclude summary judgment in Dow's favor.
As addressed above, Dow's motion for traditional summary judgment demonstrated that its hold-harmless agreements with Sulzer, ISI, and Altair did not give rise to a duty owed to Stewart because the agreements did not confer, but rather precluded, any right of retained control in Dow. It is undisputed that Dow's safety supervisor had the right to order work stopped for safety violations or concerns and had done so on occasion in the past. But, this right does not suffice as a fact issue that could trigger section 95.003(1)'s first condition for non-liability, because section 95.003(1) explicitly requires that the premises owner exercise or retain more control over the manner in which work is performed than the right to order it stopped. See Tex. Civ. Prac. & Rem. Code Ann. § 95.003; Dow Chem. Co., 89 S.W.3d at 608. Moreover, although it is also undisputed that Dow engaged independent safety personnel to supervise the cleanup project, mere presence of the premises owner's safety personnel at a worksite is likewise insufficient to demonstrate that the owner actually exercised control over the work. See Dow Chem. Co., 89 S.W.3d at 608.
Appellants further contend that Dow exercised actual control by promulgating Safety Standard No.---71 concerning "Fall Restraint System Use." Paragraph 1 of this standard required that a "fall restraint system with continuous attachment" be used by personnel in "work areas not protected by guardrails where there is a danger of employees falling from a distance of six feet or greater." Because Stewart had to perform her work at a level above six feet and fell approximately 20 feet, appellants argued that Dow's regulation was evidence that Dow exerci
Page 1 2 3 4 5 6 7 8 9 10 11 Texas Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|