Spears v. Crown Central Petroleum Corp. , 133 F. App'x 129 ( 2005 )

United States Court of Appeals
Fifth Circuit
F I L E D
In the June 1, 2005
United States Court of Appeals Charles R. Fulbruge III
for the Fifth Circuit Clerk
_______________
m 04-20686
Summary Calendar
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MICHAEL SPEARS AND ANGELA SPEARS,
Plaintiffs-Appellants,
VERSUS
CROWN CENTRAL PETROLEUM CORPORATION,
Defendant-Appellee.
_________________________
Appeal from the United States District Court
for the Southern District of Texas
m 4:02-CV-3064
_________________________
Before DAVIS, SMITH, and DENNIS, I.
Circuit Judges. Michael Spears was working for Phillip
Service Corporation (“PSC”), a contractor
PER CURIAM:* performing “turnaround” maintenance at the
refinery of Crown Central Petroleum (“Crown
Central”). Spears was assigned to work on a
heat exchanger in the fluid catalytic cracking
*
(“FCC”) unit of the refinery. After concluding
Pursuant to 5TH CIR. R. 47.5, the court has his work on the heat exchanger, Spears began
determined that this opinion should not be published
toting his tools to the PSC tool shed, located
and is not precedent except under the limited cir-
cumstances set forth in 5TH CIR. R. 47.5.4.
south of the FCC unit. He tripped on steel-
braided hoses lying across his path and was tion resulting in the personal injury,
injured. death, or property damage and
failed to adequately warn.
Spears and his wife sued Crown, alleging
state law causes of action; jurisdiction is based TEX. CIV. PRAC. REM. CODE § 95.003. Fur-
on diversity of citizenship. Crown subsequently thermore, the code clarifies,
moved for summary judgment, claiming that,
under chapter 95 of the Texas Civil Practice This chapter applies only to a claim:
and Remedies Code, it cannot be liable for any
injuries to Spears. The district court agreed. (1) against a property owner, con-
tractor, or subcontractor for per-
II. sonal injury, death, or property
Enacted in 1995, chapter 95 reflects just one damage to an owner, a contractor,
aspect of the Texas legislature’s recent so- or a subcontractor or an employee
called “tort reform” efforts. Generally, Texas of a contractor or subcontractor;
law imposed a duty on premises owners to and
inspect their premises and warn invitees of
dangers that are not open and obvious. See (2) that arises from the condition
Coastal Mar. Serv. v. Lawrence, 988 S.W.2d or use of an improvement to real
223, 225 (Tex. 1999). With the passage of property where the contractor or
chapter 95, however, that duty is abrogated in subcontractor constructs, repairs,
certain circumstances. According to the stat- renovates, or modifies the improve-
ute, ment.
A property owner is not liable for personal TEX. CIV. PRAC. REM. CODE § 95.002
injury, death, or property damage to a con- (emphasis added). It is the italicized portion
tractor, subcontractor, or an employee of a that is at issue in this case.
contractor or subcontractor who constructs,
repairs, renovates, or modifies an improve- III.
ment to real property, including personal in- Spears contends that chapter 95 is not
jury, death, or property damage arising from applicable here because his injury and claim
the failure to provide a safe workplace did not arise from the condition or use of the
unless: improvement to real property on which he
worked. He does not deny that the heat
(1) the property owner exercises or exchanger on which he was working is an
retains some control over the man- improvement for statutory purposes. Never-
ner in which the work is performed, theless, he posits that his injury and claim
other than the right to order the arose from the hoses left on the pathway
work to start or stop or to inspect outside the FCC unit in which the “improve-
progress or receive reports; and ment” on which he was working was located.
Consequently, goes the argument, his claim
(2) the property owner had actual cannot have arose from the “condition or use
knowledge of the danger or condi- of” the improvement.
2
At first blush, Spears’s argument is per- hand, have repeatedly concluded that claims
suasive. Although Crown Central points to an such as Spears’s are barred.
abundance of Texas cases concluding that any
injury relating to the work done on the premises The best example is Fisher, on which the
is covered under chapter 95,1 “relating to” is a district court substantially relied. In Fisher,
much broader proposition than is “arising from the court used legislative history to conclude
the condition or use of the improvement.” that where a defect in a ladder used to reach
an air conditioning unit that was the object of
This case is illustrative. The injury the plaintiff’s work caused the injury, chapter
undoubtedly was related to the work Spears 95 protected the premises owner. The ladder
was doing, because it occurred while he was “provided appellant a means to reach his work
leaving his work site. Nevertheless, the alleged site. It was not the object of his work. Never-
cause of the injury (i.e., the hoses) was neither theless, appellant’s injuries arose from ‘the
a condition nor a use of the heat exchanger, failure to provide a safe workplace.’” Fisher,
which was the improvement on which Spears 16 S.W. 3d at 202 (quoting TEX. CIV. PRAC.
worked. The district court acknowledged as REM. CODE § 95.003).
much, noting that “the injury-producing defect,
a hose stretched across a walkway, was not the In cases where federal jurisdiction is predi-
object of [Spears’] toils.” cated solely on diversity, we are charged with
making our best “Erie guess” and “determin-
None of this is to say, however, that the dis- [ing] as best as [we] can” what the Texas
trict court erred in concluding that chapter 95 Supreme Court would decide were the ques-
shields Crown from liability. The Texas Su- tion before it. Howe v. Scottsdale Ins. Co.,
preme Court has yet to decide a case interpret- 204 F.3d 624, 627 (5th Cir. 2000). Where, as
ing the language of chapter 95 and elucidating here, the state’s highest civil court has yet to
the extent of its limitations on premises liability. rule on the question, we look to the decisions
The intermediate Texas courts, on the other of intermediate courts of appeals for guidance.
See id. Those decisions represent “dat[a] for
ascertaining state law which is not to be disre-
1
See Francis v. Coastal Oil & Gas Corp., 130 garded by a federal court unless it is convinced
S.W.3d 76, 83 (Tex. App. SSHouston [1st Dist.] by other persuasive data that the highest court
2002, pet. denied); Admire v. H.E. Butt Grocery of the state would decide otherwise.” Id.Co., No. 01-02-00060-CV, 2003 WL 203514, at *2
(Tex. App.SSHouston [1st Dist.] 2003, no pet.); Given that the Texas intermediate courts of
Fisher v. Lee Chang P’ship, 16 S.W.3d 198, 202 appeals have unanimously2 construed chapter
(Tex. App.SSHouston [1st Dist.] 2000, pet. denied). 95 broadly, to preclude liability in instances
Other courts, although not explicitly confronting the
such as this, we must respect those decisions
argument Spears makes here, have similarly dis-
missed claims despite the fact that the alleged cause
as the best, and only, indicator of how the
of the worker’s injury was not the object of his toil. Texas Supreme Court would rule. Conse-
See, e.g., Ashabranner v. Hydrochem Indus. Servs., quently, summary judgment was appropriate.
Inc., No. 14-03-00762-CV, 2004 WL 613026 (Tex.
App.SSHouston [14th Dist.] 2004, no pet.); Wilson
v. Patel, No. 03-03-00275-CV, 2004 WL 579073,
at *2 (Tex. App.SSAustin 2004, no pet.). 2
See note 1, supra.
3
AFFIRMED.
4