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Phillips v. Dow Chemical Co.11/30/2005
er 95: Property Owner Not Liable
Appellants alternatively contend that if chapter 95 applies, their summary-judgment evidence raised fact issues concerning Dow's actual knowledge of the dangerousness of the scaffolding equipment and, in addition, concerning Dow's control over both scaffolding and fall restraints at the worksite. Dow responds that the trial court properly rendered summary judgment in Dow's favor because appellants did not raise material fact issues concerning whether Dow (1) had a right to control how the work was performed and (2) had actual knowledge of the dangerous condition that resulted in Stewart's injury.
When, as here, chapter 95 applies, a property owner will not be liable for negligence claims arising from the failure to provide a safe workplace unless:
(1) the property owner exercises or retains some control over the manner in which the work is performed, other than the right to order the work to start or stop or to inspect progress and receive reports; and
(2) the property owner had actual knowledge of the danger or condition resulting in the personal injury , death, or property damage and failed to adequately warn. Tex. Civ. Prac. & Rem. Code Ann. § 95.003(1)--(2) (Vernon 2005) (emphasis added). The first condition of section 95.003 codifies the common-law holding of Redinger v. Living, Inc., 689 S.W.2d 415, 418 (Tex. 1985), which adopted section 414 and accompanying comments of the Restatement (Second) of Torts; the second condition requires actual, rather than merely constructive, knowledge by the premises owner concerning the allegedly dangerous condition. See Dyall, 152 S.W.3d at 699 & n.13 (citing George C. Hanks, Jr., When Sticks and Stones May Break Your Bones: An Overview of Texas Premises Liability Law for Business Owners, 60 Tex. B. J. 1010, 1021 (1997) (Hanks)). Both conditions of section 95.003 must be met before Chapter 95's exception to the general rule of non-liability for a premises owner will be imposed. See Rueda v. Paschal, No. 01-04-00744-CV, slip op. at 8; 2005 WL 14741118 at *3 (Tex. App.---Houston [1st Dist.] June 23, 2005, no pet. h.); Francis, 130 S.W.3d at 83; Dyall, 152 S.W.3d at 699; Kelly, 27 S.W.3d at 567. As Dow emphasized in moving for traditional summary judgment, section 95.003(2) elevated the alternative, common law, "should have known" test of the premises owner's knowledge of a dangerous condition, to an "actual knowledge" requirement. Compare Tex. Civ. Prac. & Rem. Code Ann. § 95.003(2) (requiring actual knowledge) with Williams v. Olivo, 952 S.W.2d 523, 527 (Tex. 1997) (recognizing that duty to warn of dangerous conditions could be based on constructive knowledge of that condition, as well as actual knowledge) (citing Shell Chem. Co. v. Lamb, 493 S.W.2d 742, 746 (Tex. 1973)).
Because Dow's motion for summary judgment established that chapter 95 applies to appellants' claims, appellants had to present evidence demonstrating triable issues of fact concerning both required elements of section 95.003 to overcome that statute's general rule of non-liability. See Tex. Civ. Prac. & Rem. Code Ann. § 95.003; Rueda, slip op. at 8; 2005 WL 1474118 at *3; Fisher, 16 S.W.3d at 203; Dyall, 152 S.W.3d at 699, 709--10; Kelly, 27 S.W.3d at 567 (all addressing non-movant's burden under section 95.003 in summary judgment context); see also Francis, 130 S.W.3d at 83 (analyzing plaintiff's failure to meet evidentiary burden under section 95.003 in context of judgment notwithstanding verdict).
C. Dow's Motion for Traditional Summary Judgment
Dow's motion for traditional summary judgment pursuant to rule 166a(c) relied on both requirements of the exception to the gene
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