Summary
In Energen, which involved a water-well explosion, negligent drilling of a nearby oil well affected the state of being of the water well plaintiffs were working on.
Summary of this case from Paniagua v. Weekley Homes, LLCOpinion
No. 20-0451
03-11-2022
ENERGEN RESOURCES CORPORATION, Petitioner, v. Bryce J. WALLACE, Elite Drillers Corporation, and United Fire & Casualty and Its Parent, United Fire Group, Inc., Respondents
Ryan D. Clinton, Davis, Gerald & Cremer, P.C., Austin, Jill Christine Pennington, John A. "Jad" Davis Jr., Davis, Gerald & Cremer, P.C., Midland, for Petitioner. Ryan John McNeel, Brockett & McNeel LLP, Midland, Scott Kidd, Gauntt, Koen, Binney & Kidd, LLP, Spring, Jason Hamm, Hamm Law Group, PLLC, Midland, for Respondents. Wanda McKee Fowler, Raffi O. Melkonian, Wright Close & Barger, LLP, Houston, for Amicus Curiae.
Ryan D. Clinton, Davis, Gerald & Cremer, P.C., Austin, Jill Christine Pennington, John A. "Jad" Davis Jr., Davis, Gerald & Cremer, P.C., Midland, for Petitioner.
Ryan John McNeel, Brockett & McNeel LLP, Midland, Scott Kidd, Gauntt, Koen, Binney & Kidd, LLP, Spring, Jason Hamm, Hamm Law Group, PLLC, Midland, for Respondents.
Wanda McKee Fowler, Raffi O. Melkonian, Wright Close & Barger, LLP, Houston, for Amicus Curiae.
Justice Busby delivered the opinion of the Court, in which Chief Justice Hecht, Justice Lehrmann, Justice Boyd, Justice Devine, Justice Bland, and Justice Huddle joined.
Chapter 95 of the Civil Practice and Remedies Code limits a property owner's liability when an independent contractor or its employee, hired to "construc[t], repai[r], renovat[e], or modif[y]" an improvement to the owner's property, brings a "claim for damages caused by negligence" that "arises from the condition or use" of that improvement. TEX. CIV. PRAC. & REM. CODE §§ 95.001(1), 95.002(2). In this case, we consider whether a negligence claim can arise from the condition or use of an improvement even when negligence elsewhere is alleged to have contributed to the plaintiffs’ injuries. We conclude that it can so long as the other statutory requirements are satisfied.
In particular, Chapter 95 does not apply to a claim simply because the plaintiffs were injured by the condition or use of an improvement on which they were working. Rather, the "claim for damages caused by negligence" must "aris[e] from th[at] condition or use." Id. In other words, negligence that was a cause of the plaintiffs’ damages must involve the condition or use of the improvement on which they were working.
Here, the defendant owner offered uncontroverted evidence—and the plaintiffs’ own petition alleged—that there was negligence regarding a condition of the water well the plaintiffs were drilling and this negligence was a cause of their damages. Chapter 95 therefore applies. Because the defendant also proved conclusively that it could not be held liable under Chapter 95 given its lack of control over the work, the trial court properly granted summary judgment in its favor. We reverse the court of appeals’ contrary judgment and reinstate the trial court's judgment.
BACKGROUND
Petitioner Energen Resources Corporation obtained mineral leasehold rights to land in Reeves County, Texas, in 2011. In late 2013, Energen hired Nabors Drilling Technologies USA, Inc. and New Prospect Company (NPC) to drill an oil well on the lease. After Nabors and NPC began work on the oil well, Energen contracted with Dubose Drilling, Inc. to complete a water well which, once finished, would facilitate the drilling and operations of the oil well.
Dubose was unsuccessful in its initial attempts to find a water source. Dubose later subcontracted with respondent Elite Drillers Corporation to complete the water well, and Elite assigned its president, respondent Bryce J. Wallace, to supervise the project. The wells were roughly five hundred feet apart from each other, and Energen continued drilling the oil well while Elite worked on the water well.
On January 14, 2014, a "gas kick"—an unexpected migration of gas from the reservoir to the wellbore—occurred at the oil well. Shortly thereafter, the oil well was shut in to prevent any further loss of natural gas. In the following days, reports on the oil well noted a loss of circulation and no returns.
On January 17, Wallace supervised as Elite's crew sent pressurized air into the water well to clear drilling mud. Upon noticing that the air pressure had increased substantially, Wallace shut off the air compressor, but the pressure continued to build. Wallace realized that natural gas was flowing out of the wellbore and warned those nearby to run. Moments later, the gas flowing from the water well caught fire and exploded. Wallace suffered severe burns and Elite's drilling equipment was damaged.
Elite, Wallace, and Elite's insurers United Fire & Casualty Company and United Fire Group, Inc. (collectively, "plaintiffs") brought claims for negligence, gross negligence, and trespass to chattels against Energen. Energen filed a traditional motion for summary judgment, asserting that Chapter 95 of the Civil Practice and Remedies Code applied to plaintiffs’ claims. Energen also observed that if plaintiffs were contending a condition of the oil well—rather than the water well—gave rise to their claims, the water well's purpose to facilitate the oil well's production brought the claims within Chapter 95's ambit. Finally, Energen contended that Chapter 95 barred the suit because Energen did not "exercis[e] or retai[n] some control over the manner in which the work [was] performed." TEX. CIV. PRAC. & REM. CODE § 95.003(1).
Elite and Wallace also sued Dubose, Nabors, and NPC. They later dismissed their claims against Nabors and settled with Dubose and NPC, leaving Energen as the sole defendant here.
In response, plaintiffs asserted that Chapter 95 did not apply because the improvement on which they were working (the water well) was not the same improvement from which their claims arose (the oil well). Because the negligent drilling of the oil well caused their injuries, they argued that Chapter 95 did not apply. Even if Chapter 95 applied, plaintiffs contended that they had raised a genuine issue of material fact regarding whether Energen exercised or retained some control over the drilling of the water well.
The trial court granted Energen's motion, rendering a take-nothing judgment. The trial court did not specify which of Energen's theories for Chapter 95's applicability it found persuasive.
On appeal, plaintiffs raised two issues. First, they asserted that Energen failed to establish that Chapter 95 applied as a matter of law. According to plaintiffs, Energen's main argument for Chapter 95's applicability—that the presence of natural gas was a "condition" of the water well—had not been raised in its motion for summary judgment. Second, if Chapter 95 applied, plaintiffs contended that they had raised a genuine issue of material fact with respect to Energen's control under section 95.003(1).
The court of appeals reversed the trial court's summary judgment and remanded for further proceedings. 603 S.W.3d 499, 501 (Tex. App.—El Paso 2020). Regarding the first issue, the court held that Chapter 95 did not apply. Id. at 514. Reasoning that Chapter 95 distinguishes between claims for negligent acts and conditions, the court began by examining the "true nature" of the claims. Id. at 511 (citing Keetch v. Kroger Co. , 845 S.W.2d 262, 264 (Tex. 1992) ). It was undisputed that Elite and Wallace were working on the water well at the time of the explosion. Id. at 510. Therefore, the court concluded that Chapter 95 would apply only "if Energen conclusively established that the injuries arose from a premises defect of the Water Well." Id.
After examining the pleadings, the court held that plaintiffs not only alleged negligent activity at the oil well, but also raised a fact issue regarding whether that activity occurred contemporaneously with their injuries. Id. at 511–12. The court distinguished this case from Keetch , where a grocery-store customer slipped on a wet floor at least thirty minutes after an employee finished spraying plants nearby. Id. at 511, 513. Unlike the evidence in Keetch , which established a "complete absence of ongoing activity," the court thought the evidence here—in particular, the reports of lost circulation and returns—raised a fact issue regarding contemporaneous negligent activity. Id. at 513–14.
The court of appeals concluded that Energen "failed to conclusively establish as a matter of law that no contemporaneous activity occurred on the Oil Well that resulted in the creation of a dangerous condition on the Water Well." Id. at 514. Because Energen did not prove conclusively that Chapter 95 applied, the court did not reach the second issue: "whether Wallace and Elite carried their burden on the challenged element of control." Id. at 514–15.
Energen filed a petition for review, which we granted.
ANALYSIS
I. Standard of review
"We review summary judgments de novo, taking as true all evidence favorable to the nonmovant, and indulging every reasonable inference and resolving any doubts in the nonmovant's favor." Barbara Techs. Corp. v. State Farm Lloyds , 589 S.W.3d 806, 811 (Tex. 2019). A party that moves for traditional summary judgment must demonstrate that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. TEX. R. CIV. P. 166a(c). In addition, "[t]he nonmovant has no burden to respond ... unless the movant conclusively establishes its cause of action or defense." Rhône-Poulenc, Inc. v. Steel , 997 S.W.2d 217, 222–23 (Tex. 1999).
This case also involves a question of statutory construction, which is a legal one that we review de novo. Youngkin v. Hines , 546 S.W.3d 675, 680 (Tex. 2018). "In construing a statute, our objective is to determine and give effect to the Legislature's intent." City of San Antonio v. City of Boerne , 111 S.W.3d 22, 25 (Tex. 2003). We begin by examining the plain meaning of the statute's language. Crosstex Energy Servs., L.P. v. Pro Plus, Inc. , 430 S.W.3d 384, 389–90 (Tex. 2014). "If the statute is clear and unambiguous, we must read the language according to its common meaning ‘without resort to rules of construction or extrinsic aids.’ " Id. at 389 (quoting State v. Shumake , 199 S.W.3d 279, 284 (Tex. 2006) ).
II. Energen conclusively established that Chapter 95 applies to plaintiffs’ claims.
When Chapter 95 applies, it limits a real property owner's liability for common-law negligence claims that arise out of a contractor's or subcontractor's work on an improvement to the property. As we recently observed, Chapter 95 applies to a claim
For purposes of brevity, we use the words "work" and "working" as a shorthand reference to the acts of "construct[ing], repair[ing], renovat[ing], or modif[ying]" an improvement to which Chapter 95 applies.
(1) for damages caused by negligence resulting in personal injury, death, or property damage, (2) asserted against a person or entity that owns real property primarily used for commercial or business purposes ..., (3) asserted by an owner, contractor, or subcontractor or an employee of a contractor or subcontractor, and (4) "that arises from the condition or use of an improvement to real property where the contractor or subcontractor constructs, repairs, renovates, or modifies the improvement."
Los Compadres Pescadores, L.L.C. v. Valdez , 622 S.W.3d 771, 782 (Tex. 2021) (quoting TEX. CIV. PRAC. & REM. CODE § 95.002(2) ). Here, the parties do not dispute that the first three requirements are met. Their disagreement concerns the fourth requirement. We recently addressed Chapter 95's fourth requirement in Valdez , where a property owner argued that Chapter 95 applied to claims alleging a dangerous condition of the "workplace." Id. at 783. Prior to Valdez , we held that a claim satisfies section 95.002 ’s fourth requirement only if the claim "results from a condition or use of the same improvement on which the contractor (or its employee) is working when the injury occurs." Ineos USA, L.L.C. v. Elmgren , 505 S.W.3d 555, 567 (Tex. 2016) (emphasis added). Although our definition of "improvement" is broad, see Abutahoun v. Dow Chem. Co. , 463 S.W.3d 42, 49 (Tex. 2015), we concluded in Valdez that it is not so broad as to encompass the "entire workplace." 622 S.W.3d at 784.
Although the parties do not dispute that Energen is a "property owner" for purposes of Chapter 95, see Tex. Civ. Prac. & Rem. Code § 95.001(3), we note other courts have held that a mineral lessee is a property owner. E.g., Painter v. Momentum Energy Corp. , 271 S.W.3d 388, 397 (Tex. App.—El Paso 2008, pet. denied) (concluding owner of leasehold interest in mineral property was "property owner" under Chapter 95); Francis v. Coastal Oil & Gas Corp. , 130 S.W.3d 76, 84 (Tex. App.—Houston [1st Dist.] 2003, no pet.) (determining mineral lessee was "property owner" because "[w]ell-settled law holds that a mineral lease conveys a fee simple determinable interest in real property").
Thus far, our Chapter 95 cases have focused on whether negligence regarding a condition or use of the "same improvement" on which the plaintiff was working gave rise to his claim. Consistent with this focus, plaintiffs contend that negligent drilling at the oil well—which, they argue, is a separate improvement from the water well—caused their injuries. Because it is undisputed that plaintiffs were hired to complete only the water well, they contend that the improvement from which their claim arose is different from the improvement they were hired to construct. Energen counters that Chapter 95 applies because plaintiffs’ injuries also arose from a condition of the water well improvement.
For a claim to fall within Chapter 95's ambit, the statutory text requires more than Energen suggests. Specifically, negligence regarding "the condition or use" of the improvement on which plaintiffs were working must be a cause of their damages. This requirement is apparent from the text of the statute itself, and it is confirmed by the common law.
Chapter 95 applies "only to a claim ... that arises from" an improvement's "condition or use." TEX. CIV. PRAC. & REM. CODE § 95.002(2). The statute defines a "claim" using the essential common-law elements of negligence, causation, and damages: a "claim for damages caused by negligence." Id. § 95.001(1). We have explained that the phrase "arises from" means "caused by." Abutahoun , 463 S.W.3d at 48. Read together, sections 95.001 and 95.002 provide that Chapter 95 applies only when the sequence of negligence causing damages that is the Legislature's chosen definition of claim "arises from the condition or use" of the improvement on which the plaintiffs were working.
The definition includes only the factual elements of the claim. It does not include duty, which is a legal question. See Del Lago Partners, Inc. v. Smith , 307 S.W.3d 762, 767 (Tex. 2010).
We do not agree with our concurring colleagues that we may substitute the phrase "injurious accident" for the statutory term "claim" and the Legislature's supplied definition of that term. Cf. post at 516–17 (Blacklock, J., concurring). Chapter 95 does not task courts with determining the "originating cause" of a claim. Id. at 516–17. Rather, it defines what claim "means," see Tex. Civ. Prac. & Rem. Code § 95.001(1), and that definition does not refer to either injury or accident.
As we observed in Abutahoun , the statutory phrase "condition or use" indicates that Chapter 95 applies to "all negligence claims that arise from either a premises defect or the negligent activity of a property owner or its employees." Id. at 50. It is not enough for a plaintiff's damages to arise from the condition or use of an improvement if such condition or use does not involve the essential element of negligence. There must also be a causal connection between the plaintiff's damages and negligence regarding the condition or use of the improvement on which the plaintiff was working. See id. at 48 ("Chapter 95 applies to a negligence claim that ‘arises from,’ or is caused by, ‘the condition or use of an improvement ... where the contractor or subcontractor ... modifies the improvement.’ ").
The statutory rule that Chapter 95 applies only if there is a connection between the damage-causing negligence and the condition or use of the improvement on which the plaintiff was working matches the common-law rule that a landowner is not liable unless there is such a connection. This correspondence is informative because Chapter 95 does not create a new cause of action; rather, it limits liability for common-law negligence claims when it applies. See TEX. CIV. PRAC. & REM. CODE § 95.003 (providing that property owner "is not liable ... unless" certain requirements are met).
Under the common law, "[t]he general rule is that an owner or occupier does not have a duty to see that an independent contractor performs work in a safe manner." Redinger v. Living, Inc. , 689 S.W.2d 415, 418 (Tex. 1985). Thus, the owner generally is not liable for dangerous conditions or activities "arising out of the independent contractor's work." Clayton W. Williams, Inc. v. Olivo , 952 S.W.2d 523, 528 (Tex. 1997). But if the owner retains or exercises "supervisory control ... relate[d] to the condition or activity that caused the injury," it "can be liable for negligence in exercising or failing to exercise control over the part of the independent contractor's work that created the dangerous condition" or constituted the negligent activity. Id. ; see also Redinger , 689 S.W.2d at 418 (adopting RESTATEMENT (SECOND) OF TORTS § 414 (1977) ).
Chapter 95 preserves this common-law control requirement, but it narrows liability by adding a further requirement: that the owner "had actual knowledge of the danger or condition ... and failed to adequately warn." Tex. Civ. Prac. & Rem. Code § 95.003(2). We discuss these requirements in Part III below.
Our recent opinions have likewise understood Chapter 95 to require that the damage-causing negligence arise from the condition or use of the improvement on which the plaintiff was working. As we explained in Endeavor Energy Resources, L.P. v. Cuevas , when a negligent-activity claim involves only one party's negligence, the claim "arises from" the "use" of an improvement "if the one negligent act occurs contemporaneously with the use of the improvement." 593 S.W.3d 307, 311 (Tex. 2019) (citing Abutahoun , 463 S.W.3d at 50 ). The same is true of a premises-defect claim, as we observed in Valdez : "For chapter 95 to apply, it is not enough that a dangerous condition" the defendant negligently failed to warn of or make safe "existed on the premises.... Instead, the danger must arise from the condition (or use) of ‘an improvement’ ... on which the claimant was working." 622 S.W.3d at 783. Thus, Endeavor and Valdez confirm that Chapter 95 applies only where there is some negligence involving the condition or use of an improvement.
Endeavor involved a negligent-hiring claim, which "requires proof of two separate negligent acts." 593 S.W.3d at 311. In that situation, we recognized that if at least "one of the negligent acts involves the contemporaneous use of an improvement," Chapter 95 applies "regardless of when the other negligent act occurred or whether it involved the use of an improvement." Id. For a negligent-hiring claim, Chapter 95 does not require that "the property owner's negligence involve the use of the improvement." Id. (emphasis added). But we did not suggest in Endeavor that Chapter 95 would apply even if none of the allegedly negligent acts involved the use of the improvement on which the plaintiff was working. Cf. post at 517–18 (Blacklock, J., concurring).
Here, Energen asserts that a condition—rather than a use—of the water well caused plaintiffs’ damages. As we noted in Endeavor , "[C]hapter 95's reference to a claim arising from ‘the condition ... of an improvement to real property’ contemplates a claim for premises liability." 593 S.W.3d at 310. Premises liability is a "species of negligence" that "encompasses a nonfeasance theory based on the owner's failure to take measures to make the property safe." Del Lago Partners, Inc. v. Smith , 307 S.W.3d 762, 776 (Tex. 2010). A "condition" is "an intentional or an inadvertent state of being." Abutahoun , 463 S.W.3d at 49 (quoting Sparkman v. Maxwell , 519 S.W.2d 852, 858 (Tex. 1975) ). And something is a condition of an improvement if it "affect[s] the ‘state of being’ of" that improvement. Valdez , 622 S.W.3d at 785. In sum, Chapter 95 applies where negligence affecting the condition of an improvement on which plaintiffs were working was a cause of their damages.
Abutahoun , 463 S.W.3d at 50.
Applying these principles, we conclude Energen has conclusively established that Chapter 95 applies. The record includes undisputed evidence that plaintiffs were hired to construct the water well, so it is the relevant improvement. See id. at 784. In their petition, plaintiffs alleged that "Energen ... failed to exercise reasonable care in relation to the defective and/or dangerous conditions in the drilling and completion of the Water Well." They also alleged that a "high volum[e] of natural gas" built up in the water well and ignited, resulting in an explosion that injured Wallace and damaged Elite's equipment. In other words, plaintiffs’ own petition alleges that their damages were caused by negligence arising from a dangerous condition of the water well on which they were working. Cf. Catholic Diocese of El Paso v. Porter , 622 S.W.3d 824, 829 (Tex. 2021) (discussing common-law duties of reasonable care that property owner owes invitees and licensees regarding dangerous conditions on land). Plaintiffs respond that the oil well and water well are separate improvements, there is a genuine issue of material fact regarding whether their injuries occurred as a result of contemporaneous negligent activity at the oil well on which they did no work, and thus Chapter 95 does not apply. The court of appeals agreed, reasoning that it had to determine whether the "true nature" of plaintiffs’ claims were for "premises defect arising from the Water Well or ... negligent activity arising from the Oil Well." 603 S.W.3d at 511. The court concluded there was a fact issue regarding whether "the Water Well was a mere conduit for the end result of" contemporaneous negligent drilling activity at the oil well. Id. at 513.
For summary judgment purposes, Energen can rely on plaintiffs’ allegations to demonstrate the applicability of Chapter 95. See Regency Field Servs., LLC v. Swift Energy Operating, LLC , 622 S.W.3d 807, 818–19 (Tex. 2021).
We do not suggest that a plaintiff's allegations will be dispositive in determining whether Chapter 95 applies. Rather, a defendant moving for summary judgment that Chapter 95 applies may offer evidence proving that the plaintiff's claim arises from negligence regarding the condition or use of the improvement on which the plaintiff was working. In this particular case, however, the plaintiffs’ own allegations demonstrate that Chapter 95 applies. The concurrence raises the concern that a future plaintiff could "plead around" the statute by alleging negligence unconnected to the condition or use of the improvement that caused the plaintiff's injury. See post at 517–18 (Blacklock, J., concurring). But such an allegation would not even support liability under the common law, which as we have explained generally imposes no duty on a landowner regarding dangerous conditions or activities arising from an independent contractor's work on an improvement.
Here, Energen—which the parties agree was the property owner—hired Dubose as a general drilling contractor. Dubose then subcontracted with plaintiff Elite. The parties do not address the precise nature of the duty Energen would owe Elite and its president Wallace under the common law, and our disposition does not require us to consider that issue.
We disagree with the court of appeals’ approach for two reasons. First, although Chapter 95 distinguishes between claims for negligent activities and those for premises defects, it applies to both types of claims. E.g., Abutahoun , 463 S.W.3d at 50–51. Thus, in determining Chapter 95's applicability, the dispositive issue is not whether the claim should truly be characterized as one for negligent activity or premises defect. Rather, as previously discussed, what matters is whether there was negligence regarding the "condition or use" of the improvement on which plaintiffs were working and, if so, whether that negligence was a cause of plaintiffs’ damages.
Second, although Chapter 95 requires a causal connection between negligence involving the improvement and the plaintiff's damages, we have held that this negligence need not be the "only cause" of the damages. Endeavor , 593 S.W.3d at 311. Because plaintiffs alleged additional negligence at the oil well, the court of appeals concluded that was sufficient to raise a fact issue "as to whether contemporaneous drilling on the Oil Well caused the injuries that were sustained by [plaintiffs] while they worked on the Water Well." 603 S.W.3d at 513. But whether contemporaneous or not, negligence away from the water well that contributes to plaintiffs’ damages does not negate the conclusion—rooted in plaintiffs’ own pleadings—that negligence at the water well on which they worked also caused those same damages.
Thus, we agree with our concurring colleagues that Chapter 95's use of the phrase "arises from" does not "require courts to identify a sole causal source to the exclusion of all others." Post at 517 (Blacklock, J., concurring).
We also find unpersuasive plaintiffs’ argument that they did not allege a premises-defect claim with respect to the water well because their petition contains no assertions that the water well itself was defective. Under the Texas Tort Claims Act (TTCA), we have held that a claim for a "condition" of tangible personal property "must [contain] an allegation of ‘defective or inadequate property.’ " Sampson v. Univ. of Tex. at Austin , 500 S.W.3d 380, 388 (Tex. 2016) (quoting Salcedo v. El Paso Hosp. Dist. , 659 S.W.2d 30, 32 (Tex. 1983) ). We have used decisions regarding the TTCA to inform our analysis of Chapter 95. See Abutahoun , 463 S.W.3d at 49.
Unlike Chapter 95, however, the TTCA distinguishes between claims for the "condition or use" of tangible personal property and claims for a premises defect. See id. at 49 n.7 ; see also TEX. CIV. PRAC. & REM. CODE §§ 101.021, 101.022(a). The Sampson case, in which a professor tripped over an electrical cord stretched across a walkway, illustrates this distinction. See 500 S.W.3d at 390. There, the claim was not one for the "condition" of the cord because the professor did not allege that the cord was defective. Id. at 391. Rather, it was the "static placement" of the cord—a "condition" of the real property—that gave rise to the professor's claims, and so we characterized the professor's claim as one for a premises defect. Id. at 390–91.
In enacting Chapter 95, the Legislature addressed a property owner's liability to independent contractors for negligence claims regarding both premises defects and negligent activities. See Abutahoun , 463 S.W.3d at 49–50 (citing Redinger , 689 S.W.2d at 417 ). "[A] premises defect claim is based on the property itself being unsafe." Shumake , 199 S.W.3d at 284 ; see also Valdez , 622 S.W.3d at 783. Such a claim can be based on negligence regarding a "dangerous condition" of the property without also showing a "defect" thereof. Valdez , 622 S.W.3d at 784. For example, the concrete pilings in Valdez were not alleged to be defective, but we determined that Chapter 95 applied because an energized power line hanging overhead was a "condition" of the pilings. Id. at 785–86.
Similarly, the water well here was not alleged to be defective; rather, the natural gas in the water well was a "dangerous condition" that, according to plaintiffs, Energen negligently failed to "become aware of, rectify[,] and communicate." Because plaintiffs alleged negligence regarding a dangerous condition of the water well on which they were working, their arguments for avoiding Chapter 95's application fall short. For these reasons, we conclude Energen conclusively established that Chapter 95 applies.
III. Because Energen conclusively proved it did not exercise or retain control over plaintiffs’ work, it cannot be liable under Chapter 95.
When Chapter 95 applies, a plaintiff's "sole means of recovery" is section 95.003, and the plaintiff has the burden of proving both prongs of that section at trial. Abutahoun , 463 S.W.3d at 51–52. The plaintiff must demonstrate that the property owner (1) "exercise[d] or retain[ed] some control over the manner in which the work [was] performed" and (2) "had actual knowledge of the danger or condition resulting in the ... personal injury ... or property damage and failed to adequately warn." TEX. CIV. PRAC. & REM. CODE § 95.003.
As a preliminary matter, we note that because Energen filed a traditional motion for summary judgment on the first prong of section 95.003, it had the burden to establish conclusively that it neither exercised nor retained control over plaintiffs’ work. A no-evidence motion for summary judgment immediately shifts the burden to the nonmovant. See TEX. R. CIV. P. 166a(i). With a traditional motion for summary judgment, however, the nonmovant has no burden to respond "unless and until" the movant conclusively establishes its cause of action or defense as a matter of law. Casso v. Brand , 776 S.W.2d 551, 556 (Tex. 1989) ; TEX. R. CIV. P. 166a(c). Only after the movant does so will the nonmovant have the burden of "rais[ing] a genuine issue of material fact." Lujan v. Navistar, Inc. , 555 S.W.3d 79, 84 (Tex. 2018).
The court of appeals incorrectly suggested that if Energen established Chapter 95's applicability, the burden would be on plaintiffs to satisfy both prongs of section 95.003. See 603 S.W.3d at 514–15. That would be true if a no-evidence motion for summary judgment were involved, see Ineos , 505 S.W.3d at 568, but Energen did not file such a motion here. Energen moved for traditional summary judgment, and therefore it was Energen's burden to establish conclusively that it neither exercised nor retained control over the manner in which plaintiffs performed their work. See, e.g., Kelly v. LIN Television of Tex., L.P. , 27 S.W.3d 564, 570–71 (Tex. App.—Eastland 2000, pet. denied).
In the trial court, Energen's only grounds for summary judgment were that Chapter 95 applied to plaintiffs’ claims and that it neither exercised nor retained control over plaintiffs’ work under section 95.003(1). In this Court, Energen also asserts that it did not have "actual knowledge" of a danger or condition under section 95.003(2). But because Energen did not move for summary judgment on the latter prong of section 95.003, we do not consider whether Energen had actual knowledge. See State Farm Lloyds v. Page , 315 S.W.3d 525, 532 (Tex. 2010) ("Summary judgment may not be affirmed on appeal on a ground not presented to the trial court in the motion.").
To establish "control" under section 95.003(1), evidence of a property owner's "right to order the work to start or stop or to inspect progress or receive reports" is insufficient. TEX. CIV. PRAC. & REM. CODE § 95.003(1). Control may be shown with evidence that (1) a contract assigned control to the property owner or (2) the property owner "actually exercised control" over the manner in which the work was performed. Dow Chem. Co. v. Bright , 89 S.W.3d 602, 606 (Tex. 2002). This control must extend to "the means, methods, or details of the independent contractor's work ... such that the [independent] contractor is not entirely free to do the work in his own way." AEP Tex. Cent. Co. v. Arredondo , 612 S.W.3d 289, 295 (Tex. 2020) (cleaned up).
Bright is not a Chapter 95 case. But in analyzing the control prong of section 95.003, we have consulted our decisions regarding a property owner's duties to independent contractors over whose work the property owner has "some control." See Ineos , 505 S.W.3d at 561 (citing Redinger , 689 S.W.2d at 418 ). One court of appeals has suggested that section 95.003(1) is a codification of our holding in Redinger. See Dyall v. Simpson Pasadena Paper Co. , 152 S.W.3d 688, 699 (Tex. App.—Houston [14th Dist.] 2004, pet. denied).
Here, Energen conclusively established that it neither exercised actual control nor retained contractual control over plaintiffs’ work. The summary judgment record shows that it was Dubose—not Energen—that subcontracted with Elite. Energen also provided the deposition of plaintiff Wallace, who testified that he had never talked to anyone with Energen. In fact, Wallace testified that the only entity from which he received information both before and after commencing drilling work on the water well was Dubose.
Because Energen conclusively established that section 95.003(1) was not satisfied, the burden shifted to plaintiffs to raise a fact issue regarding control. Plaintiffs responded with the deposition of Energen's senior geologist, who testified that he investigated possible water sources and recommended to Energen's senior engineer that the water well be drilled deeper. But merely "mak[ing] suggestions or recommendations which need not necessarily be followed, or ... prescrib[ing] alterations and deviations," does not establish control. Koch Refin. Co. v. Chapa , 11 S.W.3d 153, 155 (Tex. 1999) (per curiam) (quoting RESTATEMENT (SECOND) OF TORTS § 414 cmt. c (1965)). Nor does "direct[ing] when and where the work [will be] done." Arredondo , 612 S.W.3d at 295. Thus, plaintiffs’ evidence does not raise a fact issue regarding control.
We conclude that Energen conclusively established that it neither exercised nor retained control over the manner in which plaintiffs performed their work, and plaintiffs failed to raise a fact issue regarding control. As a result, Energen cannot be held liable under section 95.003.
CONCLUSION
As we recognized in Endeavor , the condition or use of the improvement on which a plaintiff was working need not be the "only cause" of that plaintiff's damages for Chapter 95 to apply. 593 S.W.3d at 311. But there must be negligence regarding the improvement's condition or use, and such negligence must be a cause of the plaintiff's damages. Because plaintiffs alleged that Energen's negligence regarding a dangerous condition of the water well caused their damages, their claims are subject to Chapter 95. Energen conclusively established that it lacked the control over plaintiffs’ work necessary to hold it liable under section 95.003, and plaintiffs failed to raise a fact issue. We therefore reverse the court of appeals’ judgment and reinstate the trial court's take-nothing judgment.
Justice Blacklock filed a concurring opinion, in which Justice Young joined.
Justice Blacklock, joined by Justice Young, concurring.
Chapter 95's limitations on liability "appl[y] only to a claim ...:
(2) that arises from the condition or use of an improvement to real property where the contractor or subcontractor constructs, repairs, renovates, or modifies the improvement."
TEX. CIV. PRAC. & REM. CODE § 95.002.
The plaintiffs allege they were injured while working on a water well, which was in a dangerous condition due to a gas leak coming from a nearby oil well. I agree with the Court that Chapter 95 applies to this claim. It does so because of the basic facts giving rise to the claim. The "improvement to real property" being "repair[ed]" was the water well. This improvement was in a dangerous "condition"—it contained gas leaking from the oil well. The dangerous condition caused an explosion, injuring the plaintiffs. The plaintiffs’ claims thus "arise[ ] from" the dangerous condition of the improvement, triggering Chapter 95. I see no basis in the statutory text for any further analysis.
Although the Court reaches the correct result, it does so only after unduly complicating Chapter 95's application. According to the Court, "Chapter 95 does not apply to a claim simply because the plaintiffs were injured by the condition or use of an improvement on which they were working." Ante at 507. Instead, "negligence that was a cause of the plaintiffs’ damages must involve the condition or use of the improvement on which they were working." Id. By requiring that the negligence "involve" the improvement, the Court adds unwarranted doctrinal baggage to a straightforwardly worded statute that very clearly applies to this case.
Determining whether Chapter 95 applies need not be so difficult. One might imagine some initial confusion about the statute's use of the potentially slippery words "arises from." But this Court has already cleared that up. "Arises from," in Chapter 95, means simply "is caused by." Endeavor Energy Res., L.P. v. Cuevas , 593 S.W.3d 307, 310 (Tex. 2019) ; Abutahoun v. Dow Chem. Co. , 463 S.W.3d 42, 48 (Tex. 2015) ; see also Utica Nat'l Ins. v. Am. Indem. Co. , 141 S.W.3d 198, 203 (Tex. 2004) ("This Court has held that ‘arise out of’ means that there is simply a ‘causal connection or relation,’ which is interpreted to mean that there is but for causation, though not necessarily direct or proximate causation.") (quoting Mid–Century Ins. v. Lindsey , 997 S.W.2d 153, 156 (Tex. 1999) ).
So what "causes" a negligence claim? In the strictest sense, a negligence claim is an abstraction that "arises from" the mind of the lawyer. In a more practical sense, surely the sense in which Chapter 95 speaks, a negligence claim is caused by—and therefore arises from—the factual allegations on which the claim is based. And no fact is more foundational to a negligence claim than the injurious accident giving rise to the claim. The accident—and the injury it produces—are the brute facts of the case, from which the abstraction we call a "claim" arises. Who is responsible for the accident? Were they negligent? Did the negligence cause the injury? These questions follow from the fact of the accident itself—or arise from it, you might say. But they are farther down the causal chain. The injurious accident is the originating cause without which a "claim" could not even begin to exist.
I would not say the injurious accident is the sole "cause" of a negligence claim. A negligence claim surely has additional causes, such as the negligence allegations on which the Court focuses. But there are other causes of the damages (such as the injury itself), and surely the claim "arises from" those causes just as much as it arises from the alleged negligence.
In the past, we have not interpreted the Legislature's use of "arises from" to require courts to identify a sole causal source to the exclusion of all others. Claims—or in the Tort Claims Act, injuries—can "arise from" multiple causal sources, any one of which is sufficient to satisfy the "arising from" requirement. Endeavor , 593 S.W.3d at 311 (holding that a claim can "arise from" a "combination" of acts and concluding that "[t]he statute's plain language requires only that the claim arise from the use of an improvement to the property, not ... that the use of the improvement be the only cause of the injury"); see also PHI, Inc. v. Tex. Juv. Just. Dep't , 593 S.W.3d 296, 303 (Tex. 2019) (noting that there may be more than one cause that satisfies the Tort Claims Act's "arises from" standard). Today, however, the Court interprets Chapter 95's "arises from" requirement to require exclusive focus on one cause of the claim—the negligence—to the exclusion of other causes, such as the injury.
The Court's textual basis for its restricted view of where claims "arise from" is Chapter 95's definition of "claim": "a claim for damages caused by negligence." TEX. CIV. PRAC. & REM. CODE § 95.001(1). This definition limits Chapter 95 to negligence claims, but it tells us nothing about where negligence claims "arise from." The definition's straightforward recitation of the elements of a negligence claim cannot bear the weight the Court puts on it. As the statute is written, it is the claim—not the negligence—that must "arise from" the condition or use of the improvement in order for Chapter 95 to apply.
Of the many things that might be said to "cause" a negligence claim, none is clearer than the injurious accident from which the claim originates. Whether an injury was caused by the condition or use of an improvement will typically be apparent from the hard facts alleged about the accident, reducing litigation and uncertainty about Chapter 95's application. Negligence, on the other hand, is a malleable legal construct. Whereas the facts of the accident are what they are, deciding where and to whom to assign the negligence is often a strategic decision made by lawyers. If Chapter 95 only applies if the alleged negligence "involves" the improvement, lawyers will look for creative ways to plead around Chapter 95—even in cases where a condition or use of the improvement caused the injury and therefore gave rise to the claim. The result will be lengthier and more indeterminate litigation over whether the case meets the Court's unnecessary rearticulation of Chapter 95's requirements.
The Court relies primarily on its prior decisions in Endeavor and Abutahoun , neither of which requires the rule the Court announces. To the extent we have ever addressed whether Chapter 95 applies only if the alleged negligence "involves" the improvement, we suggested in Endeavor that it does not: "The statute's plain language requires only that the claim arise from the use of an improvement to the property, not that the property owner's negligence involve the use of the improvement." Endeavor , 593 S.W.3d at 311. To be sure, in Endeavor , we answered whether the claim arose from the use of an improvement by analyzing whether the alleged negligence involved the improvement. Id. That is certainly one way to answer the question. But what Endeavor said was sufficient , the Court now deems necessary. Our prior case law does not require that jump, and neither, as I read it, does the text of Chapter 95.
The process of reasoning the Court used in Endeavor when applying Chapter 95 to the facts and arguments raised there does not generate a rule requiring all future courts to use precisely the same process of reasoning. When this Court employs a line of reasoning to think its way through a statute's application to a particular case, it is not announcing a binding rule that the same line of reasoning now controls all cases. Of course, courts should strive to apply statutes consistently and to use consistent reasoning in doing so. But when applying statutes, an outsized focus on the reasoning of prior cases can result in precedent that builds and builds upon itself—even with each case correctly decided—until a case comes along where the precedent and the statute seem to be pointing in different directions. See PHI , 593 S.W.3d at 305–06 (rejecting elements of reasoning derived from the Court's precedent "in a case where application of those elements yields a result that conflicts with a common-sense reading of the statutory text").
Rather than load more judicial constructs onto Chapter 95, we should back up and ask whether many of our prior statements about it truly illuminate—rather than obscure—what seems to me an uncomplicated statutory text. We are not bound to follow the reasoning of our precedents to the ends of the earth. We are bound to follow the text of the statute, which in my view does not support the rule the Court adopts today.
I respectfully concur.