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Phillips v. Dow Chemical Co.11/30/2005
sed actual control by enacting a regulation that applied to Stewart and therefore triggered a duty to her. Dow countered that Stewart was injured as she was descending the ladder and that Dow's fall-restraint requirements did not apply to workers who were descending ladders. We agree.
Paragraph 7 of the fall-restraint safety standards specifies that a fall-restraint device must be used when "personnel are working off ladders and the work require them to be outside the 'confines of the ladder.'" (Emphasis added.) Taken together, paragraphs 1 and 7 of the safety standards compelled use of fall-restraints when workers are not protected by guardrails, when they are working off, as opposed to on, ladders, or when their work location went beyond the confines of ladders. Moreover, proof that the premises owner promulgated safety standards and regulations is insufficient evidence of actual control unless there is also proof that they increased, rather than decreased, the possibility of severe injury. See id. Although appellants contend, on appeal, that Dow's safety standards and regulations increased the possibility of severe injury, their pleadings lack this claim, and no summary-judgment evidence supports this contention.
To avoid section 95.003's general rule of non-liability of the premises owner, appellants had to present triable issues of fact on both elements of the statute. See Tex. Civ. Prac. & Rem. Code Ann. ยง 95.003. Having examined the summary judgment record de novo, we conclude that Dow conclusively established, as a matter of law, that it neither exercised nor retained control over the manner in which the cleanup of Styrene 2 was performed to a sufficient degree to give rise to a triable issue of fact concerning the first condition of section 95.003(1). We further conclude that appellants did not present summary-judgment evidence sufficient to defeat Dow's motion.
Because both elements of section 95.003 must be present for potential premises-owner liability, id., and because Dow negated the "control" element of section 95.003(1), Dow also negated any exception to section 95.003's general rule of non-liability and was, therefore, entitled to prevail as a matter of law on appellants' survival and death claims against Dow.
We overrule appellants' first issue in Cause No. 01-03-00107-CV.
Conclusion
We affirm the judgments of the trial court.
Panel consists of Chief Justice Radack and Justices Keyes and Alcala.
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