Opinion
No. CA 7:03-CV-0215-R.
April 12, 2005
MEMORANDUM ORDER AND OPINION
Before this Court is Defendant's Motion for Summary Judgment against Plaintiffs Stanley Moon and Geneva M. Moore, filed January 31, 2005. For the reasons detailed below Defendant's motion is DENIED.
I. BACKGROUND
This dispute arose from injuries sustained by Plaintiff, Stanley Moore, while performing janitorial and maintenance activities on Defendant Howmet Corporation's ("Howmet") premisses. At the time of the injury, Moore was an employee of Ace Maintenance Company ("Ace") and was working at Howmet's facilities pursuant to a contract for maintenance and janitorial services between Howmet and Ace. Under this contract, Ace was to perform certain janitorial and maintenance tasks at Howmet's facilities including vacuuming, dusting, cleaning windows, taking out the rash, and changing air filters. The contract also allowed Howmet to instruct Ace employees to perform other duties as needed.
Moore's specific duties included changing the air filters throughout Howmet's premisses. His in uries resulted from a fall he experienced while attempting to change an air filter. In order to change this specific filter, Moore had to climb a pipe and stand on the pipe to gain access to the air filter. On this particular day, Moore lost his balance and struck his head on another pipe before falling to the ground.
By its motion, Defendant Howmet seeks to have this Court find that Defendant Howmet is not liable to Plaintiff Moore for his injuries. Howmet claims that it is not liable for Moore's injuries because Chapter 95 of the Texas Civil Practice and Remedies Code precludes Moore's recovery. Howmet asserts that Moore's recovery is precluded because Howmet did not exercise or retain contro "over the manner in which" Moore performed his work. TEX. CIV. PRAC. REM. CODE ANN. § 95.003(1) (Vernon 2004). In turn, Plaintiff Moore argues that Chapter 95 does not preclude recovery in this case because Chapter 95 does not apply to the employment relationship between Moore and Howmet. Moore asserts that Chapter 95 is not controlling because Moore was not constructing, repairing, renovating, or modifying an improvement to real property as required by the statute. Id. at § 95.002(3). Thus, Moore asserts that his claims are governed by the common law — not Chapter 95. In the alternative, Moore alleges that Howmet exercised control "over the manner in which" Moore performed his work and is thus, liable under Chapter 95 for the injuries he sustained while working on Howmet's premises. Id. at § 95.003(1).
II. SUMMARY JUDGMENT STANDARD
Rule 56(c) of the Federal Rules of Civil Procedure allows summary judgment only when the moving party demonstrates that there is no genuine issue as to any material fact, and the party is entitle to judgment as a matter of law. See Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Melton v. Teachers Ins. Annuity Assoc. of Am., 114 F.3d 557, 559 (5th Cir. 1997). The moving party bears the initial burden of identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, that demonstrate the absence of a genuine issue of material fact. See Celotex Corp., 477 U.S. at 323.
Once the movant has discharged its initial burden under Rule 56, the nonmovant must set forth specific facts, by affidavits or otherwise, showing there is a genuine issue for trial. See Topalian v. Ehrman, 954 F.2d 1125, 1132 (5th Cir. 1992), cert. denied, 506 U.S. 825 (1992). In weighing the evidence, the court must decide all reasonable doubts and inferences in the light most favorable to the nonmovant. See Walker v. Sears, Roebuck Co., 853 F.2d 355, 358 (5th Cir. 1988); Thornbrough v. Columbus Greenville R.R. Co., 760 F.2d 633, 640 (5th Cir. 1985). As long as then appears to be some support for the disputed allegations such that "reasonable minds could differ is to the import of the evidence," the motion for summary judgment must be denied. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986).
III. ANALYSIS
While the Defendant asserts that Plaintiff's recovery is precluded by Chapter 95 because Defendant did not exercise the necessary level of control over Plaintiff, it is not necessary for this Court to consider the control issue in order to dispose of the Defendant's Motion for Summary Judgment. Before considering the control exercised by the Defendant, Chapter 95 requires this Court to first determine whether Chapter 95 is applicable to the relationship between Defendant and Plaintiff. For the reasons that follow, this Court finds that Chapter 95 is not applicable to the case at bar.
Chapter 95 does not apply to all cases in which a property owner (an individual or a company) has hired a contractor to perform work on the property owner's premisses. Instead, Chapter 95 only applies to contracting relationships where "the contractor or subcontractor constructs, repairs, renovates, or modifies" an improvement to real property. TEX. CIV. PRAC. REM. CODE ANN. § 95.002(2) (Vernon 2004). Chapter 95 was enacted to shield the property owner from liability in those situations where the property owner hired a contractor to perform major construction, repair, or renovation work on his property. See Dyall v. Simpson Pasadena Paper Co., 152 S.W.3d 688, 697-99 (Tex.App.-Houston [14th Dist.] 2004, pet. filed). The legislature felt it was unfair to punish the property owner by imposing liability where the property owner was wise enough to realize that the desired work requires the expertise of a professional, either because it is inherently dangerous work or requires a particular skill. Id. at 699. Therefore, Chapter 95 applies only in those situations where a property owner hires "someone with expertise to repair or renovate some improvement on their property" and that individual is injured while performing work on the property owner's premisses. Id. (citing Kelly v. LIN Television of Tex., L.P., 27 S.W.3d 564, 570 (Tex.App. — Eastland 2000, pet. struck). Chapter 95 does not apply where the property owner hires someone to do routine work that is either not dangerous or does not require the knowledge of an expert.
The Dyall case provides an example of the type of work to which Chapter 95 applies. See Dyall v. Simpson Pasadena Paper Co., 152 S.W.3d 688 (Tex.App.-Houston [14th Dist.] 2004, pet. filed). The contractor in Dyall was required to repair a flange on a leaky pipe at a paper mill. Id. at 693. The pipe supplied the mill with chlorine dioxide, a dangerous chemical. Id. In Dyall, there was no question whether Chapter 95 applied because the contractor was performing repair work. However, this case is also indicative of a situation where the work was dangerous and required the knowledge and skill of someone who had experience working in the vicinity of dangerous chemicals. Another case illustrating the type of work contemplated by the statute is Francis v. Coastal Oil Gas Corp., in which a contractor was hired to clean a gas well "in order to rehabilitate the well and increase the flow of gas by installing smaller diameter tubing" inside the well. Francis v. Coastal Oil Gas Corp., 130 S.W.3d 76, 81 (Tex.App.-Houston [1st Dist.] 2003, no pet.). The plaintiff in this case argued that Chapter 95 did not apply because cleaning the well "was not a construction, repair, renovation or modification of [an] improvement." Id. at 85. However, the Texas Court of Appeals held that since the purpose of the cleaning "was to rehabilitate the well so that the flow of gas could increase," the cleaning "qualified as either repair or renovation of the well." Id. Thus, even if the work required is not normally thought of as a "renovation or repair" it is possible for the work to be covered by the statute when that work is either dangerous, requires some level of expertise to properly complete the work, or the purpose of the work is to rehabilitate the improvement and restore it to a proper level of functionality.
Replacement of air filters and the provision of routine janitorial services is not the type of work contemplated by Chapter 95. Moore's responsibilities consisted of cleaning Howmet's facilities and routine replacement of air filters throughout the facility. Neither of these activities qualifies as construction, repair, renovation, or modification of an improvement to real property as contemplated by the statute. Moore's responsibilities were not inherently dangerous and did not require any specialized skill. Cf. Dyall, 152 S.W.3d at 692 (Employee suffered injuries while repairing a pipe that supplied dangerous chemicals to a paper mill.). In addition, Moore's activities were no meant to "rehabilitate" or "restore" any part of Howmet's facilities to proper functioning. Cf. Francis, 130 S.W.3d at 85 (Finding that cleaning of a gas well was within the meaning of the statute because the purpose of the cleaning was to improve the functioning of the well.). Thus, Moore's responsibilities at Howmet did not include construction, repairs, renovations, or modifications as required by Chapter 95.
Since Plaintiff was not constructing, repairing, renovating, or modifying an improvement to real property, Chapter 95 does not apply to the relationship between Defendant Howmet and Plaintiff Moores TEX. CIV. PRAC. REM. CODE § 95.002(2) (Vernon 2004). Because Chapter 95 is not applicable to this case, Defendant Howmet cannot assert the defense provided in § 95.003 of the Texas Civil Practice and Remedies Code and it is not necessary for this Court to address whether Howmet exercised or maintained an adequate level of control over the manner in which Plaintiff Moore performed his work. Therefore, the Defendant's Motion for Summary Judgment is denied.