Affirmed and Opinion filed January 31,=20
2008.
In The
Fourteenth=20
Court of Appeals
____________
NO. 14-06-00783-CV
____________
GARY=20
VANDERBEEK, =
Appellant
V.
SAN JACINTO=20
METHODIST HOSPITAL, =
Appellee
On Appeal from the =
125th District Court
Harris=20
County, =
Texas
Trial Court Cause =
No. 03-19917
O P I N I=20
O N
The=20
employee of a plumbing contractor brought suit against a hospital =
to=20
recover damages for injuries he sustained while working on the =
hospital=20
premises. In challenging the summary judgment granted in =
favor of=20
the hospital, the plumber contends that (1) the trial court erred =
in=20
applying Chapter 95 of the Texas Civil Practice and Remedies Code =
and (2)=20
even if Chapter 95 applies, the summary-judgment evidence raises a =
fact=20
issue, and, therefore, summary judgment was improper. We=20
affirm.
I. =20
Factual and Procedural=20
Background
Appellant=20
Gary Vanderbeek, a plumber employed by Humphrey Plumbing, =
sustained=20
injuries to both legs when a caustic substance spilled on him =
while he was=20
working in a building owned by appellee San Jacinto Methodist =
Hospital=20
(the AHospital@). =20
The Hospital had contracted with Humphrey Plumbing for plumbing =
work=20
necessary to remodel the Hospital=3Ds=20
emergency room. As part of the remodel, Vanderbeek worked on =
a=20
plumbing pipe within a wall. For this project, Vanderbeek =
cut and=20
capped a vent line and a drainage pipe, both of which were =
connected to a=20
sink in an adjacent room used for emergency care. Vanderbeek =
informed the emergency-room manager that the sink was out of order =
and=20
should not be used. Hospital employees placed a piece of =
sheetrock=20
over the sink and wrote Aout of=20
order@ =
on the=20
sheetrock.
After=20
Vanderbeek performed this work, within several weeks=3D =
span, a=20
plumber employed by the Hospital attempted to unclog the sink on =
two=20
occasions. In the same time period, two other Hospital =
maintenance=20
employees were called to address drainage issues with the same =
sink. =20
These Hospital employees may have poured AGlug@ =
drain=20
cleaner into the sink. Eventually, the sink was removed as =
the=20
remodeling progressed in that room.
Several=20
weeks after his initial work, Vanderbeek returned to reconnect the =
pipe. No one warned Vanderbeek that a substance might be =
present in=20
the pipe. Hospital personnel were not present at the time, =
and he=20
worked without direction or instructions from Hospital =
personnel. =20
When Vanderbeek removed the cap to the drainage pipe, a liquid =
came out of=20
the pipe and covered Vanderbeek=3Ds pants=20
from the knees down. Vanderbeek alleged he suffered chemical =
burns=20
requiring medical treatment, lost time from work, and endured =
extreme=20
physical pain and emotional distress. Vanderbeek alleged =
that the=20
Hospital was negligent because it allowed caustic drain cleaner =
into the=20
sink, when the sink was not to be used. =
The=20
Hospital moved for summary judgment on the ground that Chapter 95 =
of the=20
Texas Civil Practices and Remedies Code bars =
Vanderbeek=3Ds=20
claim. Vanderbeek responded that a fact issue remained as to =
whether=20
the Hospital assumed the duty of taking the sink out of service =
based on=20
the following evidence:
! =
; =20
At least=20
one Hospital plumber and two Hospital maintenance employees were =
called to=20
address drainage problems with the sink between the time =
Vanderbeek=20
created the temporary door (November 2, 2002) and the date on =
which the=20
liquid came out of the pipe (December 27, 2002);
! =
; =20
The sink=20
was removed prior to December 27, 2002;
! =
; =20
A caustic=20
substance remained in the pipe, and test results from=20
Vanderbeek=3Ds pants revealed =
that the=20
caustic substance was consistent with the composition of the drain =
cleaner=20
AGlug,@ a product commonly =
used by=20
the Hospital.
The trial=20
court granted the Hospital=3Ds=20
motion. Vanderbeek now appeals the trial court=3Ds decision=20
and contends that (1) the Hospital failed to conclusively prove =
that=20
Chapter 95 of the Texas Civil Practices and Remedies Code applies =
to his=20
negligence claim and (2) even if Chapter 95 applies, the trial =
court erred=20
in granting the motion for summary judgment because Vanderbeek =
raised a=20
genuine issue of fact as to whether the Hospital exercised or =
retained=20
sufficient control over the manner in which the work was=20
performed.
II. Issues=20
Presented
=20
Vanderbeek presents the following issues for review:
(1) =
Does=20
Chapter 95 apply to claims grounded not in vicarious liability but =
solely=20
in a premises owner=3Ds own negligence?
(2) =
Did the=20
Hospital conclusively prove that Chapter 95 applies to=20
Vanderbeek=3Ds negligence claims?
(3) =
Did the=20
trial court improperly shift the summary-judgment burden of proof =
to=20
Vanderbeek to create a fact issue in the application of Chapter 95 =
to his=20
claims?
(4) =20
Alternatively, under Chapter 95, may a premises owner like the =
Hospital=20
undertake its own independent work or tamper with=20
subcontractors=3D work on projects on its property yet =
escape=20
liability for injuries sustained by those subcontractors or their=20
employees resulting from such acts?
(5) =20
In the alternative, does a fact issue exist concerning whether =
Chapter 95=20
bars Vanderbeek=3Ds claims?
III. =20
Standard of Review
We review=20
issues of statutory construction de novo. Subaru of Am., =
Inc. v.=20
David McDavid Nissan, Inc., 84 S.W.3d 212, 222 (Tex.=20
2002). When=20
a statute is clear and unambiguous, we need not resort to =
extrinsic aids=20
to define the meaning of the statute. St.=20
Luke=3Ds Episcopal Hosp. v.=20
Agbor, 952=20
S.W.2d 503, 505 (Tex. 1997). When, as in this case, =
the=20
meaning of the statutory language is unambiguous, we adopt the=20
interpretation supported by the plain meaning of the =
provision=3Ds words. =
Id.;=20
Monsanto Co. v. Cornerstones Mun. Util. Dist., 865 =
S.W.2d=20
937, 939 (Tex. 1993); Dyall v. Pasadena Paper Co., =
152=20
S.W.3d 688, 708 (Tex. App.CHouston [14th Dist.] =
2004, pet.=20
denied) (en banc) (determining the legislative intent behind =
Chapter 95 of=20
the Texas Civil Practice and Remedies Code by examining the plain =
meaning=20
of the words of the statute.)
In a=20
traditional motion for summary judgment, if the =
movant=3Ds motion and =
summary-judgment=20
evidence facially establish its right to judgment as a matter of =
law, the=20
burden shifts to the nonmovant to raise a genuine, material fact =
issue=20
sufficient to defeat summary judgment. M.D. Anderson =
Hosp. &=20
Tumor Inst. v. Willrich, 28 S.W.3d 22, 23 (Tex. 2000). =
In=20
our de novo review of a trial court=3Ds summary=20
judgment, we consider all the evidence in the light most favorable =
to the=20
nonmovant, crediting evidence favorable to the nonmovant if =
reasonable=20
jurors could and disregarding contrary evidence unless reasonable =
jurors=20
could not. Mack Trucks, Inc. v. Tamez, 206 S.W.3d =
572, 582=20
(Tex. 2006). The evidence raises a genuine issue of fact if=20
reasonable and fair-minded jurors could differ in their =
conclusions in=20
light of all of the summary-judgment evidence. Goodyear =
Tire=20
& Rubber Co. v. Mayes, 236 S.W.3d 754, 755B56 (Tex.=20
2007). When, as in this case, the order granting summary =
judgment=20
does not specify the grounds upon which the trial court relied, we =
must=20
affirm the summary judgment if any of the independent =
summary-judgment=20
grounds is meritorious. FM Props. Operating Co. v. City =
of=20
Austin, 22 S.W.3d 868, 872 (Tex. 2000).
=
; =
&=
nbsp; &n=
bsp; =20
IV. Analysis
A. =20
Did the trial court err in determining that the summary-judgment =
evidence=20
conclusively proves that Chapter 95 applies to=20
Vanderbeek=3Ds=20
claim?
Vanderbeek=20
argues in his main issue that the trial court erred in determining =
that=20
the summary-judgment evidence conclusively proves that =
Chapter 95=20
bars his negligence claim against the Hospital. Vanderbeek =
asserts=20
that Chapter 95 does not apply because his negligence claim is =
predicated=20
solely upon the negligence of the Hospital, as the premises owner, =
rather=20
than on the negligence of other independent =
contractors.
=20
Chapter 95=20
of the Texas Civil Practice and Remedies Code governs a property=20
owner=3Ds=20
liability for acts of independent contractors. Tex. Civ. Prac. & Rem. =
Code=20
Ann. ' 95.001 (Vernon =
2005). =20
Under section 95.001, a Aclaim@ involves =
Aa claim for damages =
caused by=20
negligence.@ Id. =
' 95.001(1). =
A=20
Aproperty =
owner@ is a Aperson or entity that =
owns real=20
property primarily used for commercial or business =
purposes.@ =
Id. =
' 95.001(3). =
Section=20
95.002 specifically applies Chapter 95 to a negligence =
claim
(1) against a =
property=20
owner, contractor, or subcontractor for personal injury, death, or =
property damage to an owner, a contractor, or a subcontractor or =
an=20
employee of a contractor or subcontractor; and
(2) that =
arises from=20
the condition or use of an improvement to real property where =
contractor=20
or subcontractor constructs, repairs, renovates, or modifies the=20
improvement.
Id. =
' =
95.002=20
(Vernon 2005). Under Chapter 95, the Hospital is a property =
owner.=20
See=20
id. =
' =
95.001(3). In=20
asserting his claim, Vanderbeek attempts to hold the Hospital =
liable for=20
personal injury. See id. '' 95.001(1),=20
95.002(1). =20
Vanderbeek is an employee of Humphrey Plumbing, a contractor for =
the=20
Hospital. See id. ' =
95.002(1). =20
Vanderbeek=3Ds=20
negligence claim arises from the condition or use of the Hospital=20
building, which is an improvement to real property. See=20
id.=20
' 95.002(2). =
The=20
contractor (Humphrey Plumbing) repaired, renovated, or modified =
the=20
Hospital building. See id. ' 95.002(2). =
The=20
summary-judgment evidence conclusively proves that =
Vanderbeek=3Ds claim=20
meets all of the section 95.002 requirements.
Additionally,=20
under the plain language of section 95.003, property owners are =
not liable=20
for negligence claims covered by Chapter 95 unless two conditions =
are met:=20
(1) the property owner exercises or retains some control over the =
manner=20
in which the work is performed, other than the right to order the =
work to=20
start or stop or to inspect progress or receive reports; =
and=20
(2) the property owner had actual knowledge of the danger or =
condition=20
resulting in the personal injury, death, or property damage and =
failed to=20
adequately warn. Id. ' =
95.003=20
(Vernon 2005). If section 95.002 made Chapter 95 =
inapplicable to=20
negligent property owners, then section 95.003 would be =
unnecessary. =20
See =
Francis v.=20
Coastal Oil & Gas Corp., 130 S.W.3d 76, 84 =
(Tex.=20
App.CHouston [1st Dist.] =
2003, no=20
pet.) (concluding that section 95.003 imposes proof of control and =
knowledge as prerequisites to liability for negligence and that =
Chapter 95=20
does not protect only Apassive@ owners).
Vanderbeek makes =
three=20
arguments urging the inapplicability of Chapter 95. First,=20
Vanderbeek argues that Chapter 95 does not apply because the =
negligence in=20
this case resulted from the Hospital=3Ds actions, as =
premises owner,=20
in allowing a caustic substance into the drain. Vanderbeek =
asserts=20
that Chapter 95 is intended to protect only passive property =
owners. =20
According to Vanderbeek, the omission of Aproperty =
owner@ from section =
95.002(2) means=20
that a negligent property owner is excluded from the category of =
property=20
owners protected by Chapter 95.
Under its unambiguous =
language,=20
Chapter 95 governs negligence claims against a property owner =
for=20
personal injury, death, or property damage to contractors, =
subcontractors,=20
or an employee of either if the claim arises from the condition or =
use of=20
an improvement to real property and if the=20
contractor or subcontractor constructs, repairs, renovates, or =
modifies=20
the improvements. Id. =
' 95.002. Section=20
95.002 does not limit the scope of Chapter 95 based on the acts,=20
omissions, or nature of the alleged negligence of the property=20
owner. Id.
Appellant=20
is correct in noting that section 95.002(1) includes Aproperty=20
owner@ =
as a=20
possible defendant, though Aproperty=20
owner@ =
is=20
excluded from the actors mentioned in 95.002(2). See =
Francis,=20
130 S.W.3d at 80, 83 (examining the applicability of Chapter =
95=20
involving a negligent owner and the same passive-owner =
argument). =20
However, Chapter 95 does not protect only Apassive@ =
property=20
owners against claims of negligence. Tex. Civ. Prac. & Rem. =
Code=20
Ann. ' =
95.003;=20
Francis, 130 S.W.3d at 84. When the property owner is =
negligent, liability will be triggered under section 95.003 only =
when the=20
actions of the property owner satisfy both conditions of control =
and=20
knowledge. Tex. =
Civ. Prac.=20
& Rem. Code Ann. ' =
95.003;=20
Francis, 130 S.W.3d at 84. Applying this reasoning to =
the=20
present case, we conclude that Chapter 95 applies to=20
Vanderbeek=3Ds claim,=20
and as a result, the Hospital is shielded from liability under =
this=20
statute unless each of the two conditions required to trigger =
owner=20
liability under section 95.003 are proved.
Moreover,=20
in determining the applicability of Chapter 95, we evaluate the =
actions of=20
Vanderbeek and Humphrey Plumbing and not the actions of the=20
Hospital. See Tex.=20
Civ. Prac. & Rem. Code Ann. ' =
95.002. Upon=20
finding that Chapter 95 controls, then under section 95.003, a =
court=20
reviews the Hospital=3Ds actions in =
considering=20
whether those actions constitute the control and actual knowledge =
needed=20
to impose liability, but section 95.003 does not determine the=20
applicability of Chapter 95. Compare=20
id. =
(governing applicability of Chapter 95), with id. =
' =
95.003=20
(imposing prerequisites of control and knowledge to a property =
owner who=20
is otherwise subject to Chapter 95).
Vanderbeek makes two =
additional=20
arguments regarding the applicability of Chapter 95. First, =
he=20
argues the Hospital=3Ds summary-judgment =
evidence did=20
not conclusively prove that Chapter 95 applies. This =
argument fails=20
because, as explained above, the Hospital conclusively established =
all=20
elements of applicability required in section 95.002. Next,=20
Vanderbeek argues that the trial court improperly shifted the =
burden to=20
him to prove that Chapter 95 does not apply. In=20
reviewing a summary judgment, we must consider whether the =
Hospital=20
carried the burden at the trial court level by showing that there =
was no=20
genuine issue of material fact such that the judgment should have =
been=20
granted as a matter of law. KPMG Peat Marwick v. =
Harriston County=20
Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex. =
1999). Because=20
the Hospital conclusively proved that Chapter 95 applies by =
meeting the=20
requirements of section 95.002, summary judgment was properly =
granted, and=20
the trial court did not improperly shift the burden to=20
Vanderbeek.
B. =20
Did the trial court err in granting summary judgment because there =
is a=20
genuine fact issue as to the element of control?
Vanderbeek=20
argues that even if Chapter 95 applies, the trial court erred in =
granting=20
summary judgment because the summary-judgment evidence raises a =
fact issue=20
on the element of control. See Tex. Civ. Prac. & Rem. =
Code=20
Ann. ' =
95.003. The third section of Chapter 95 limits a property=20
owner=3Ds=20
liability:
A property owner is =
not=20
liable for personal injury, death, or property damage to a =
contractor,=20
subcontractor or an employee of a contractor or subcontractor who=20
constructs, repairs, renovates, or modifies an improvement to real =
property, including personal injury, death, or property damage =
arising=20
from the failure to provide a safe workplace unless:
(1) the property =
owner=20
exercises or retains some control over the manner in which =
the work=20
is performed, other than the right to order the work to =
start or=20
stop or to inspect progress or receive reports;=20
and
(2) the=20
property owner had actual knowledge of the danger or condition =
resulting=20
in the personal injury, death, or property damage and failed to =
adequately=20
warn.
Id.=20
(emphasis added). Therefore, control =
and actual=20
knowledge are the two independent and necessary elements to impose =
liability. Kelly v. LIN Television of Tex., L.P., =
27=20
S.W.3d 564, 567 (Tex. App.CEastland 2000, pet.=20
denied).
Control can be =
contractual or=20
actual. Dow Chem. Co. v. Bright, 89 S.W.3d 602, 606 =
(Tex.=20
2002). Neither party alleges contractual control; =
thus, in=20
this case we focus only on actual control. Actual control is =
control=20
over the manner in which the work is performed. Koch Ref. =
Co. v.=20
Chapa, 11 S.W.3d 153, 155, 157 (Tex. 1999) (finding =
that a=20
safety representative=3Ds instruction to=20
subcontractor=3Ds employees in =
performing safer=20
work methods did rise to the level of actual control required for=20
liability). Moreover, having control of the facilities does =
not=20
satisfy the requirement for control in section 95.003. =
Dyall,=20
152 S.W.3d at 701 (en banc) (concluding that success or =
failure of an=20
attempt to eliminate a hazard in a facility does not demonstrate=20
Acontrol over the =
manner in=20
which the work is performed@).
The record contains =
no=20
summary-judgment evidence indicating that the Hospital =
controlled=20
the timing, sequence, or manner of Vanderbeek=3Ds work. =20
See Koch=20
Ref. Co., 11 S.W.3d at 155, 157; Kelly, =
27 S.W.3d=20
at =
571. =20
Vanderbeek produced evidence that (1) the Hospital assumed the =
duty to=20
take the sink out of service, (2) a Hospital employee attempted to =
use the=20
sink and discovered that it would not drain, (3) Hospital =
maintenance=20
employees were called to unclog the sink, at which time drain =
cleaner may=20
have been poured into the sink, (4) a different Hospital employee =
was=20
called on two occasions to unclog the sink, (5) the sink was =
finally=20
removed by Hospital employees, and (6) a caustic substance =
remained in the=20
pipe. Vanderbeek argues that the Hospital exercised control =
over the=20
manner in which he performed his work in that, by allowing a =
caustic=20
substance into the pipe line, the Hospital changed the manner in =
which he=20
should perform his work to avoid injury. If we were to =
embrace this=20
argument, we would be extending the definition of Acontrol@ =
beyond=20
the plain meaning of the statute.
Vanderbeek=20
admits that no Hospital employee told him to reconnect the =
pipe. =20
Likewise, Vanderbeek admits that he assumed nothing had been =
placed in the=20
sink since he first capped the pipes several weeks before. =
No=20
Hospital employees were present when Vanderbeek reconnected the=20
pipe. Although Vanderbeek=3Ds evidence=20
establishes that the Hospital had control of the facility, as a =
matter of=20
law the summary-judgment evidence proves that the Hospital did not =
have=20
control over the manner in which Vanderbeek performed his job, =
which is=20
required to satisfy section 95.003. See Tex. Civ. Prac. & Rem. =
Code=20
Ann. ' =
95.003(1); Dyall, 152 S.W.3d at 701B10. =20
Under the applicable standard of review, we conclude that the =
trial court=20
did not err by granting summary judgment in favor of the =
Hospital. =20
Accordingly,=20
we overrule Vanderbeek=3Ds issues=20
and affirm the trial court=3Ds=20
judgment.
/s/ =20
Kem Thompson Frost
Justice
Judgment=20
rendered and Opinion filed January 31, 2008.
Panel=20
consists of Chief Justice Hedges and Justices Frost and=20
Guzman. |