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Phillips v. Dow Chemical Co.11/30/2005
applies to appellants' claims. Appellants' pleadings allege that Stewart was injured while on the job at a worksite defined as Dow's Freeport plant. It is undisputed that Dow owns this premises, that this premises is real property, that Dow uses this premises for commercial or business purposes, and that Dow was sued in those capacities. See Tex. Civ. Prac. & Rem. Code Ann. § 95.001(3). Appellants further alleged that Dow was "charged with the duty of reasonable, or ordinary, care in being sure that the premises upon which Angelia Stewart was working and the equipment Plaintiff was using were reasonably safe." Similarly, appellants claim "damages," for Stewart's "personal injure " and "death," allegedly caused by negligence (and gross negligence) "arising from" Dow's "failure to provide a safe workplace." See Tex. Civ. Prac. & Rem. Code Ann. §§ 95.002(1), 95.003.
Appellants summarize their numerous, specific allegations of misconduct or lack of conduct by Dow as "constit negligence as that term is defined at law." See Francis, 130 S.W.3d at 88 (holding that trial court's recognizing "some evidence" of negligence of premises owner that proximately caused alleged injuries did not give rise to common-law duty beyond scope of chapter 95); Dyall v. Simpson Pasadena Paper Co., 152 S.W.3d 688, 710 (Tex. App.---Houston [14th Dist.] 2004, pet. filed) (majority opinion on en banc reconsideration) (recognizing that chapter 95 encompasses all common-law negligence claims); Kelly v. LIN Television, 27 S.W.3d 564, 569--70 (Tex. App.---Eastland 2000, pet. denied) (holding that chapter 95 encompassed assertions of negligence, negligence per se, res ipsa loquitur, and negligent misrepresentation ). Chapter 95 specifically pertains to claims for "damages caused by negligence" alleged against a "property owner" like Dow. See Tex. Civ. Prac. & Rem. Code Ann. § 95.001(1)--(3).
Lastly, appellants challenge the applicability of chapter 95 on the grounds that their claims do not arise from a "condition or use of real property," as required by section 95.002(2), because Stewart's injuries arose from her fall from scaffolding and not from any work she was performing on Dow's styrene unit. See Tex. Civ. Prac. & Rem. Code Ann. § 95.002(2). But, as Dow stressed in moving for summary judgment, "failure to provide a safe workplace" under section 95.003, means that, although the injuries alleged must relate to work being done by the injured party, the statute does not require that the injury-producing defect must be the object of the injured party's work. See Francis, 130 S.W.3d at 83; see also Fisher, 16 S.W.3d at 202 (construing legislative history and holding that injury resulting from defective ladder contractor used to access air-conditioning unit contractor was hired to repair was injury within scope of section 95.002(2)). Stewart worked as holewatch and firewatch for cleanup, or "repair" or "renovation" work that her employer, Altair, was performing as a subcontractor to the general contractor, Sulzer. See Tex. Civ. Prac. & Rem. Code Ann. § 95.002(2). Stewart was working on the manway located on the fourth level of Dow's unit and could access that level only by the scaffolding erected by ISI. The scaffolding from which she fell was an "improvement to real property" owned by Dow. See id. Accordingly, the scaffolding from which Stewart fell was sufficiently related to Stewart's injuries to bring Dow within the protections of chapter 95.
We hold that appellants alleged claims within chapter 95, which preempted their common-law claims, that Dow relied on chapter 95 in seeking summary judgment, and that the trial court's ruling is premised on chapter 95.
B. General Rule of Chapt
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