Rusty Morales and Olga Marie Ortiz v. Alcoa World Alumina L.L.C. and Stephen Alvarado ( 2018 )

NUMBER 13-17-00101-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
RUSTY MORALES AND
OLGA MARIE ORTIZ, Appellants,
v.
ALCOA WORLD ALUMINA L.L.C.
AND STEPHEN ALVARADO, Appellees.
On appeal from the 135th District Court
of Calhoun County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Contreras and Hinojosa
Memorandum Opinion by Justice Contreras
Appellants Rusty Morales and Olga Marie Ortiz sued appellees Alcoa World
Alumina L.L.C. (AWA or Alcoa) and Stephen Alvarado, an AWA employee, after Morales
suffered personal injuries in an industrial accident. The trial court granted summary
judgment motions filed by AWA and Alvarado and dismissed the suit.
On appeal, Morales and Ortiz raise two issues concerning the statutory defense
available to property owners in suits brought by contractors under chapter 95 of the civil
practice and remedies code. See TEX. CIV. PRAC. & REM. CODE ANN. § 95.003 (West,
Westlaw through 2017 1st C.S.). They argue that: (1) as a matter of law, the chapter 95
defense does not apply to their claims; and (2) even if it does apply, there are fact issues
precluding summary judgment in favor of AWA. Morales and Ortiz also contend that the
trial court erred in granting summary judgment to Alvarado because he is individually
liable for his own negligence.
We conclude that chapter 95 is applicable to the claims raised against AWA, but
that summary judgment was improper as to both AWA and Alvarado because issues of
material fact exist. We affirm in part and reverse and remand in part.
I. BACKGROUND
Morales was an employed as a supervisor at Turner Industries Group, LLC
(Turner), which was under contract to provide maintenance and repair services at AWA’s
alumina refining facility in Point Comfort, Texas. At the facility, raw bauxite dirt is refined
through the “Bayer process” to produce pure aluminum oxide, or alumina. One of the
steps of this process involves creating a solution of bauxite and sodium hydroxide called
“process liquor,” then pumping that solution through pipes, or “risers,” to presses which
filter the solution. Over time, the flow of process liquor in the risers causes solid residue
to build up, and the risers must be periodically washed out with a cleaning solution known
as “caustic.” At the Point Comfort plant, AWA uses a system of solid and open “blinds”—
circular pieces of steel inserted between flanges—to control the flow of caustic and
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process liquor in the various risers.
On September 3, 2014, Morales was supervising a crew of Turner employees who
were instructed by AWA to “swap out” blinds on two of the risers at the plant. At the time,
riser number 27 was being washed with caustic while riser number 25 contained liquor.
AWA hired Turner to, among other things, replace the solid blind on a pipe leading to riser
25 with an open blind that would allow caustic to flow into that riser. When two Turner
employees unbolted a flange and removed the solid blind, they found that a hardened
“pancake” of scale had formed behind the blind, completely obstructing the pipe. They
used a jackhammer to remove the scale deposit. When the jackhammer broke through
the scale, hot liquor sprayed out of the pipe and onto Morales, causing him to suffer
severe burns on his back and his right arm.
Morales and his wife Ortiz (collectively, Morales) sued AWA and Alvarado,
contending among other things that they were negligent by failing to ensure that all of the
liquor was cleared out of riser 25 before giving the Turner crew orders to begin their work.
Morales further alleged that AWA had actual knowledge that the riser “was not isolated
from the flow” of liquor.
AWA, Alvarado, and Morales each filed summary judgment motions. In its motion,
AWA asserted that it was entitled to judgment as a matter of law under chapter 95 of the
civil practice and remedies code, which provides:
A property owner is not liable for personal injury, death, or property damage
to a contractor, subcontractor, or an employee of a contractor or
subcontractor who constructs, repairs, renovates, or modifies an
improvement to real property, including personal injury, death, or property
damage 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 or receive reports; and
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(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 (West, Westlaw through 2017 1st C.S.). AWA
contended that there was no evidence that it controlled Turner’s work or that it actually
knew about the presence of hot liquor in riser number 25 at the time Morales was injured.
In response, Morales argued that chapter 95 does not apply and, in the alternative, that
there are fact questions as to the section 95.003 factors. See id. Morales also moved
for partial summary judgment on grounds that chapter 95 does not apply. Alvarado’s
motion for summary judgment contended that there was no evidence that Alvarado owed
or breached any duty to Morales apart from AWA’s duty.
After a hearing, the trial court granted AWA’s and Alvarado’s motions, denied
Morales’s motion, and rendered judgment that Morales take nothing by way of his suit.
This appeal followed.
II. DISCUSSION
A. Standard of Review and Applicable Law
We review summary judgments de novo. Neely v. Wilson, 418 S.W.3d 52, 59
(Tex. 2013). AWA’s motion raised traditional and no-evidence grounds; Alvarado’s
motion raised no-evidence grounds only; and Morales’s motion raised traditional grounds
only. Though the burden varies for traditional and no-evidence summary judgment
motions, all parties brought forth summary judgment evidence; therefore, the differing
burdens are immaterial and the ultimate issue is whether a fact issue exists. Id. (citing
Buck v. Palmer, 381 S.W.3d 525, 527 & n.2 (Tex. 2012)); see TEX. R. CIV. P. 166a(c), (i).
A fact issue exists, precluding summary judgment, if there is more than a scintilla of
probative evidence to support the plaintiff’s claim. Id. Evidence is more than a scintilla if
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it “rises to a level that would enable reasonable and fair-minded people to differ in their
conclusions.” Serv. Corp. Int’l v. Guerra, 348 S.W.3d 221, 228 (Tex. 2011). Evidence is
less than a scintilla if it is “so weak as to do no more than create a mere surmise or
suspicion that the fact exists.” Regal Fin. Co. v. Tex Star Motors, Inc., 355 S.W.3d 595,
603 (Tex. 2010). We review the summary judgment evidence in the light most favorable
to the non-movant, indulging every reasonable inference and resolving any doubts
against the motion. City of Keller v. Wilson, 168 S.W.3d 802, 824 (Tex. 2005).
When both sides move for summary judgment and the trial court grants one motion
and denies the other, we review the summary judgment evidence presented by both
sides, determine all questions presented, and render the judgment the trial court should
have rendered. SeaBright Ins. Co. v. Lopez, 465 S.W.3d 637, 641–42 (Tex. 2015).
As noted, chapter 95 of the Texas Civil Practice and Remedies Code provides that
AWA is not liable for the personal injury of any independent contractor’s employee who
constructs, repairs, renovates, or modifies an improvement to real property unless AWA:
(1) exercised or retained some control over the manner in which the work was performed,
other than the right to order the work to start or stop or to inspect progress or receive
reports; and (2) had actual knowledge of the danger or condition resulting in the personal
injury and failed to adequately warn. TEX. CIV. PRAC. & REM. CODE ANN. § 95.003.
Chapter 95 is applicable only to a claim:
(1) against a property owner, contractor, or subcontractor for personal
injury, death, or property damage to an owner, a contractor, or a
subcontractor or an employee of a contractor or subcontractor; and
(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.
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Id. § 95.002 (West, Westlaw through 2017 1st C.S.). 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.” Abutahoun v. Dow Chem. Co., 463 S.W.3d 42, 50 (Tex. 2015).
The property owner has the burden to establish that chapter 95 applies to the
plaintiff’s claim. See Gorman v. Ngo H. Meng, 335 S.W.3d 797, 802 (Tex. App.—Dallas
2011, no pet.); Rueda v. Paschal, 178 S.W.3d 107, 111 (Tex. App.—Houston [1st Dist.]
2005, no pet.). Once the defendant has shown that chapter 95 applies to the claim, the
plaintiff has the burden to establish both prongs of section 95.003. Gorman, 335 S.W.3d
at 802–03; Rueda, 178 S.W.3d at 111.
B. Summary Judgment Evidence
In support of its summary judgment motion, AWA produced evidence including a
copy of the contract between AWA and Turner which was in effect at the time of the
accident. The contract provides that Turner is an independent contractor and that AWA
“disclaims any right to control the manner of performance by [Turner] and [AWA] will not
control the manner of performance by [Turner].”
AWA also produced a transcript of Morales’s deposition, in which he testified that
he was supervising two Turner employees, Leo Gayton and Dominick Cano, at the time
of the accident. Morales stated that he was responsible for ensuring that Turner’s safety
rules were followed as they applied to Gayton and Cano. Morales acknowledged that he
signed a “Tagout/Lockout Verification” form showing that he visually inspected the line to
ensure that it was clear. He also signed a “Job Safety Analysis” worksheet indicating that
“Line of Fire” was one of the “potential risks” involved in the job.
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While Gayton and Cano were removing bolts from flanges to access the pipe
leading to riser 25, Morales went to Turner’s trailer to get water for Gayton and Cano, and
he then came back to the work site to see that the crew was using a jackhammer on the
scale deposit. Shortly thereafter, process liquor sprayed out and hit Morales from behind,
causing him to fall forward. He then ran to a safety shower. His burns were extensive
enough that he had to be airlifted to San Antonio for skin graft surgery to be performed.
Morales testified that he had been fully informed as to the hazards involved in
working with materials such as Bayer process liquor, and, according to his training, a full
Tyvek chemical suit with face protection is required to be worn when working on a live
line or a line that cannot be isolated. Gayton and Cano were wearing face shields and
chemical protective suits at the time of the accident. Morales was not wearing such
protection, however, because he was only supervising, not doing the job himself. Morales
did not set up a barricade around the work area because the area was congested and
tight, and he did not think a barricade was necessary.
When Morales was asked whether anyone from AWA told Gayton and Cano “how
to jackhammer out that scale,” Morales stated: “I’m not sure. Alvarado was there the
whole time. He could have. . . . He pointed some things out to them.” Morales later
clarified that he did not witness Alvarado give Gayton or Cano any instructions as to how
to open the line or use the jackhammer, and he did not know of any evidence that AWA
personnel knew that riser 25 contained process liquor at the time Gayton or Cano were
working on it.
AWA’s maintenance supervisor Jeffrey McCaskill stated in deposition testimony
that he walked through the job with Morales at around 9:00 a.m. and hung the work permit
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at around 10:30 a.m. Initially, McCaskill informed Morales that the risers were not ready
to be worked on because he had not yet verified that they had been fully drained. He
stated that he and Alvarado opened the drain connected to risers 25 and 27 in order to
drain them of any remaining liquor. When AWA employee Rudy Pena attempted to hook
up a hose to the drain, liquor sprayed out onto Pena’s face. Pena immediately went to
the safety shower to rinse but did not suffer any burns. McCaskill attributed this incident
to a “bad gasket” and stated that it did not indicate that there was a problem with the valve
that would allow process liquor into the riser. After returning from taking Pena to get
medical care as a precaution, McCaskill saw that the “the drain line to number 25 press
riser was coming out full force,” indicating that the valve was not properly seated, which
McCaskill also said was normal. The valve was then replaced.
McCaskill conceded that he did not ensure that the line was flushed with water, but
he stated that this was not required by AWA procedures because “open[ing] the drain”
and observing the flow stop is “a form of verification on our lockout/tagout procedure.” He
opined that the accident involving Morales occurred because the valve was leaking and
because Morales was in the “line of fire” without wearing protective equipment. McCaskill
stated that Turner has safety and protective equipment requirements in addition to those
set by AWA, and that “most of” the requirements were “for them to decide.” He speculated
that the valve leak was caused by scale breaking off and plugging the valve after he had
verified it was clear, though he had not seen or heard of this type of incident happening
before.
McCaskill stated that each of the dozens of risers at the facility are scheduled to
be washed out with caustic once annually. He agreed with Morales’s counsel that Turner
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employees are required to follow specific directions for their assigned tasks, including the
flange break that was done here. When asked whether Turner employees are “free to
ignore the Alcoa way to do things and do it their own way,” McCaskill replied “No.”
The summary judgment evidence produced by Morales included a twelve-page
“Standard Work Instruction” (SWI) form containing detailed guidelines on how AWA’s
contractors must perform flange breaks at the Point Comfort plant. The SWI form
contains a numbered list of safety items including: “Wear standard Personal Protective
Equipment (PPE): Hardhat, safety-toed foot wear, goggles, appropriate gloves, hearing
protection, long sleeve shirt and DAP on self. Additional PPE if verification cannot be
performed is chemical suit, chemical gloves, rubber boots and face shield.”1 The form
also contains a numbered list describing the procedure to be used for unbolting flanges,
including the exact order in which particular bolts are supposed to be removed. The list
includes the following items:
3. VERIFY system has been flushed with water by witnessing flushing
& draining of system. If verification cannot be performed, additional
PPE with standard PPE must be worn. If verification as defined in
this document cannot be performed a Flange Break Permit must be
completed and authorized by the Department Superintendent or
his/her designee prior to beginning work.
....
15. TRY not to destroy gasket when breaking seal to ensure that if line
is pressured-up, the flange can be tighten [sic] back up. If the line
releases an excess amount of liquids the person(s) shall step back
1 The SWI form defines “verification” as:
The witnessing of water being flushed through piping, vessels, tanks, pump or valves
before the unbolting of flanges. This verification must be performed before starting task.
Person(s) performing the task of flange break must personally observe the flushing of water
across the flange being unbolted. The flushing of water may be performed by person
performing flange break task or another classification.
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to avoid being contacted with hot or chemical liquids. DO NOT PUT
YOUSELF [sic] IN LINE OF FIRE.
16. MAINTAIN a defensive posture during flange break in case of
displacement of the pipe and possible spray of liquids breaking
loose flanges.
....
18. REMOVE any scale, debris or old gasket material between flanges
before make-up of flanges to prevent leaks to system when placing
back in service.
In a section entitled “Verification for Flange Break,” the SWI states:
FLUSHING of water must be performed from isolation to isolation for true
verification not just across the flange being unbolted.
RELEASE any stored material in piping or system by breaking the vacuum.
The breaking of vacuum in piping or systems must be performed at the
highest point of the piping or system by opening a valve. After the vacuum
is broken, a water flush shall be induced to verify no blockage or potential
stored energy in pipe or system.
AWA’s corporate representative, Dwayne Maly, testified that contractors are
required to comply with the SWI form when breaking flanges. Maly’s deposition also
contains the following exchange:
[Morales’s counsel]: Just as we have specific instruction for the Turner
contractors to follow when performing flange breaks
which detail even the unbolting of the flanges, is there
a similar document that specifically details the
operation of a jackhammer to remove scale or—
(Simultaneous speaking.)
[AWA’s counsel]: Objection. Object to the form of the question.
[Maly]: Is there a work instruction on how to descale
something?
[Morales’s counsel]: Yes.
[Maly]: I don’t know if we have one exactly written that way.
An old JSA [Job Safety Analysis] would tell you how
to use the hammer and then where to position yourself
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is basically what that procedure would be, but I don’t
know if we actually have one like that or a current one.
[Morales’s counsel]: Okay. Would the descaling using the jackhammer,
would that work be included in all of the requirements
set forth in this document?
[Maly]: In the flange break?
[Morales’s counsel]: Yes.
[Maly]: The flange break procedure is basically all that
unbolting and then getting the system isolated. If I
have scale that’s completely blocking the pipe, then
you would still be in under that assumption of flange
break because flange break is letting you remove
piping making sure there’s nothing in the system to
come out. If the pipe is still scaled up, that flange
break still basically applies because you still haven’t
confirmed that I am into that piping system that
nothing is ready to go back to get me.
[Morales’s counsel]: Right. So this SWI flange break would apply to the
work that was being done while the Turner contractors
were jackhammering?
[Maly]: That’s correct, yeah.
Maly stated that McCaskill left the facility at some point on September 3, 2014, and that
Alvarado then became the AWA “contact” person for the Turner crew from that point.
The day after the accident, AWA’s plant manager Ben Kahrs sent an email to AWA
employees acknowledging that flush verification of riser 25 was not done correctly:
We had a serious incident yesterday in 35 where the isolation of a mud floor
pipe was not done correctly. The Turner supervisor on the job was exposed
to an uncontrolled liquor spill from the pipe that was thought to be properly
isolated. In this case, the flush verification was not done correctly, even
though it was specifically circled on the pre-task brief.
Until further notice, a knowledgeable and Level 2 trained salaried employee
will be required for 100% of liquor isolation tasks to visually verify the water
flush is done from one side of the fence to the other. This is required before
isolation is finalized and the work permit is hung.
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Arnold Ecle, an AWA operator who worked at the Point Comfort plant, provided an
affidavit which stated in part as follows:
4. As an operator, I was responsible for a Quadrant assigned to me.
5. Quadrants on the Press Floor are known as ISO, South, North, and
Oxalate.
6. Operators on the Press Floor rotated among the Quadrants.
7. The Quadrants contain Presses.
8. The Presses are operated 24 hours per day, 7 days a week, 365
days a year, except for during periods of maintenance.
9. The Quadrants are staffed by operators like myself 24 hours per day,
7 days a week, 365 days a year.
10. The responsibilities of an operator of a Quadrant included monitoring
the computer system in the Control Room of the Press Floor.
11. Operators like myself were trained by Alcoa and were responsible for
monitoring flow, level, temperature and pressure of the lines feeding
the Presses.
12. When maintenance was performed on the Risers in the Mud Floor
(second floor of Press Building) that fed liquor to the Presses,
Operators like myself were trained by Alcoa to and were required to
enter the number “4” on the computer system in the Control Room of
the Press Floor to indicate that the Press was out of service for
maintenance on the Riser.
13. When maintenance was performed on the Risers in the Mud Floor
that fed liquor to the Presses, Operators like myself were trained by
Alcoa to and were required to monitor the flow and pressure readings
on the computer system in the Control Room of the Press Floor to
monitor whether the Riser was isolated from the flow of liquor in order
to ensure a continuous zero-energy state during the period of
maintenance.
14. Operators like myself were trained by Alcoa that during a period of
maintenance, the flow readings on the computer system should be
zero.
15. In the event that that computer system in the Control Room of the
Press Floor indicated positive flow during a time in which
maintenance was performed on a Riser in the Mud Floor, operators
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like myself were trained by Alcoa to immediately report this reading
to a supervisor.
Records from the control room indicate that, though the status of riser 25 was shown as
“4” for maintenance throughout September 3, 2014, there were positive flow readings
during the morning and afternoon up until around 1:00 p.m. It is undisputed that the
Turner crew was not advised of these readings.
C. Applicability of Chapter 95
By his first issue on appeal, Morales contends that chapter 95 does not apply to
his suit because he and his crew were performing routine maintenance rather than
“construct[ing], repair[ing], renovat[ing], or modif[ying]” improvements at the plant. See
TEX. CIV. PRAC. & REM. CODE ANN. §§ 95.002(2), .003.2
Morales cites Montoya v. Nichirin-Flex, U.S.A., Inc., 417 S.W.3d 507, 513 (Tex.
App.—El Paso 2013, no pet.), wherein a similar argument was made. In Montoya, the
defendant auto parts distributor hired a company to clean and repair leaks in the
corrugated metal roof of its warehouse. Id. at 509. An employee for the roofing company
suffered fatal injuries when she fell through a corroded part of the roof, and the
employee’s mother filed a premises liability suit, but the trial court granted summary
judgment to the defendant based on chapter 95. Id. at 509–10. On appeal, the plaintiff
argued that chapter 95 did not apply because the deceased and her employer were not
2 It is undisputed that AWA is the owner of the Point Comfort plant, that press riser 25 is an
improvement to AWA’s real property, and that Morales’s claim arose from the condition or use of riser 25.
See TEX. CIV. PRAC. & REM. CODE ANN. § 95.002 (West, Westlaw through 2017 1st C.S.); Ineos USA, L.L.C.
v. Elmgren, 505 S.W.3d 555, 567 (Tex. 2016) (holding that chapter 95 “only applies when the injury results
from a condition or use of the same improvement on which the contractor (or its employee) is working when
the injury occurs”).
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“constructing, repairing, renovating, or modifying” an improvement to real estate, but
rather were performing routine maintenance. Id. at 510.
The El Paso court of appeals observed that the terms in chapter 95 must be given
their ordinary meaning because they are not specifically defined by statute. Id. at 512
(citing Cities of Austin, Dallas, Fort Worth & Hereford v. Sw. Bell Tel. Co., 92 S.W.3d 434,
442 (Tex. 2002) (“Generally, we will accept the words used according to their ordinary
meaning, unless given a specific statutory definition . . . .”)). The ordinary meanings of
the terms used in the statute are as follows:
1. construct—to build or form by putting together parts; frame; devise.
2. repair—to restore to a good or sound condition after decay or
damage; mend: to repair a motor; to restore or renew by any process of
making good, strengthening, etc.: to repair one’s health by resting.
3. renovate—to restore to good condition; make new or as if new again;
repair.
4. modify—to change somewhat the form or qualities of; alter partially.
Id. (citing W EBSTER’S NEW UNIVERSAL UNABRIDGED DICTIONARY 436, 1236, 1632 (2003)).
On the other hand, “maintenance” is ordinarily defined as “care or upkeep, as of
machinery or property”; and “maintain” is defined as “to keep in an appropriate condition,
operation, or force; keep unimpaired” or “to keep in a specified state.” Id. (citing
WEBSTER’S NEW UNIVERSAL UNABRIDGED DICTIONARY 1160 (2003)). Although the roofing
company’s proprietor testified that the employee was performing maintenance, not repair,
the Montoya court held that chapter 95 applied because the employee’s “activity was not
aimed at keeping the roof in an existing state”; instead, “it was done to restore a primary
function of a roof, namely, keeping water and other elements out of the building’s interior.”
Id. at 512–13.
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Morales argues that, unlike in Montoya, the work he and his crew were doing at
the Point Comfort plant on September 3, 2014 was ordinary, routine maintenance which
is not covered by chapter 95. We disagree. Morales’s argument hinges on the notion
that “maintenance” and the activities specified in chapter 95 are mutually exclusive. But
we find no authority to support that general premise. Chapter 95 does not mention
“maintenance”—rather, its focus is on four specific activities, and there is nothing in the
statute indicating, implicitly or explicitly, that those activities may not be done as part of
routine maintenance. To the contrary, AWA cites cases, including Montoya, where courts
have held that activities which seem to fall under the broad definition of “maintenance”
nevertheless also constitute “construction, repair, renovation, or modification” under
chapter 95. See Montoya, 417 S.W.3d at 512; Francis v. Coastal Oil & Gas Corp., 130
S.W.3d 76, 85 (Tex. App.—Houston [1st Dist.] 2003, no pet.) (applying chapter 95 where
plaintiff was injured while performing a “coiled-tubing washout” of a well, in which an
engine pumps debris out of the well and into a receptacle); see also Rawson v. Oxea
Corp., No. 01-15-01005-CV, 2016 WL 7671375, at *12 (Tex. App.—Houston [1st Dist.]
Dec. 22, 2016, pet. filed) (mem. op.) (applying chapter 95 where plaintiff was injured while
replacing damaged insulators at an electrical substation).3
3 AWA also cites several other cases in which courts applied chapter 95, but the issue of whether
the plaintiff’s activity constituted “construction, repair, renovation, or modification” was undisputed and was
not squarely addressed. See Ineos, 505 S.W.3d at 559 (plaintiff was injured “while replacing a valve on a
furnace header” at a petrochemical plant); Abutahoun v. Dow Chem. Co., 463 S.W.3d 42, 53 (Tex. 2015)
(independent contractor was exposed to asbestos while assisting with the installation of pipe insulation);
Oiltanking Houston, L.P. v. Delgado, 502 S.W.3d 202, 212–18 (Tex. App.—Houston [14th Dist.] 2016, pet.
denied) (independent contractor was killed in an explosion while welding a flange on the end of a pipe used
to transport crude oil); Rosa v. Mestena Operating, LLC, 461 S.W.3d 181, 182–87 (Tex. App.—San Antonio
2014, pet. denied) (plaintiff was injured while “performing maintenance on wooden electrical poles”);
Vanderbeek v. San Jacinto Methodist Hosp., 246 S.W.3d 346, 352 (Tex. App.—Houston [14th Dist.] 2008,
no pet.) (plaintiff was injured while he was reconnecting a pipe to a sink as part of remodeling a hospital
emergency room). Still, these cases illustrate that activities which may arguably be considered
“maintenance” are often uncontroversially deemed “construction, repair, renovation, or modification” for
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In light of the plain statutory language and the relevant case law, we conclude that
the summary judgment evidence adduced here established that the work being done by
the Turner crew was of the type covered by chapter 95. By removing solid blinds and
replacing them with open blinds, the Turner crew changed the form or qualities of the pipe
leading to the riser; and by using the jackhammer to remove scale, they restored the riser
to a good, new condition. In other words, they were renovating or modifying the
equipment. See Montoya, 417 S.W.3d at 512 (defining chapter 95 terms). As in Montoya,
Turner’s activity was not aimed at keeping riser 25 in an existing state; rather, it was done
to restore the riser’s primary function, namely, enabling the free flow of liquid into and out
of the system. See id.; Francis, 130 S.W.3d at 85 (holding that “the coiled-tubing washout
Francis was performing qualified as either repair or renovation of the well” because “the
purpose of the coiled-tubing washout was to rehabilitate the well so that the flow of gas
could increase”); see also Rawson, 2016 WL 7671375, at *9 (holding that plaintiff was
“repairing” the substation when he replaced damaged insulators because “the substation
could not be fully operational without replacing the damaged insulators”). Thus, chapter
95 applies, regardless of whether the work could be also considered “maintenance.”
Morales contends that the risers “were not changed and were not intended to be
changed” by Turner’s work—they were merely to be opened and cleaned—and that “the
only tangible physical change that occurred and that was intended to occur was to the
accumulated waste scale inside the pipes, which is not itself an improvement to real
property.” We disagree. As noted, the swapping of blinds constitutes a modification to
the pipe leading to the riser because it changed its form or qualities, allowing caustic to
purposes of chapter 95.
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flow into the riser. As for the jackhammering, although that activity may be described in
an extremely narrow sense as being directed solely at the scale buildup, the objective of
that activity was to modify the riser—which is undisputedly an improvement to AWA’s real
property—so that caustic could flow into it.
Finally, Morales cites First State Bank v. Carpenter, 491 S.W.3d 729, 730 (Tex.
2016), in which the Texas Supreme Court declined to apply chapter 95 where the plaintiff,
an independent contractor, was injured while showing roof damage to an insurance
adjuster. The Court held that chapter 95 did not apply because the evidence showed that
the property owner “had never fully decided what, if any, repairs to make to the roof” at
the time the contractor was injured. Id. at 733. The present case is distinguishable
because there is no dispute that Morales and his crew were under contract and hired to
do a specific task at the time Morales was injured.
For the foregoing reasons, we conclude that the trial court did not err in determining
that chapter 95 applies to Morales’s claims. We overrule his first issue.
D. Fact Issues
By his second issue, Morales argues that, even if chapter 95 applies, there are fact
issues as to the section 95.003 factors which preclude summary judgment. To avoid
summary judgment, Morales was required to produce evidence that AWA: (1) exercised
or retained some control over the manner in which the work was performed, other than
the right to order the work to start or stop or to inspect progress or receive reports; and
(2) had actual knowledge of the danger or condition resulting in Morales’s injury and failed
to adequately warn. TEX. CIV. PRAC. & REM. CODE ANN. § 95.003.
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1. Control
With regard to the first prong of section 95.003, “control” may be proven in one of
two ways: (1) by evidence of a contractual agreement that explicitly assigns the property
owner a right to control; or (2) by evidence that the property owner actually exercised
control over the manner in which the independent contractor performed its work. Dow
Chem. Co. v. Bright, 89 S.W.3d 602, 606 (Tex. 2002); Ellwood Tex. Forge Corp. v. Jones,
214 S.W.3d 693, 700 (Tex. App.—Houston [14th Dist.] 2007, pet. denied). To be liable,
the property owner must control or have the right to control the means, methods, or details
of the contractor’s work such that the contractor is “not entirely free to do the work his
own way.” Ellwood Tex. Forge Corp., 214 S.W.3d at 700 (citing Elliott–Williams Co. v.
Diaz, 9 S.W.3d 801, 804 (Tex. 1999)). The right to control the work must extend to the
“operative detail” of the contractor’s work. Id. It is not enough that the owner has the
right to order the work to stop and start or to inspect progress or receive reports, nor is it
enough to recommend a safe manner for the independent contractor’s employees to
perform the work. See Dow Chem. Co., 89 S.W.3d at 606–07; see also TEX. CIV. PRAC.
& REM. CODE ANN. § 95.003(1).
As to actual control, Morales notes that Maly and McCaskill each testified the
Turner crew was required to comply with the specific detailed instructions contained in
the SWI form when performing a flange break, and McCaskill agreed that the crew “could
not do the job in their own way.” See Ellwood, 214 S.W.3d at 700. Morales further notes
that Maly agreed in his deposition testimony that the SWI applicable to flange breaks
“would apply to the work that was being done while the Turner contractors were
jackhammering.” Finally, Morales contends in his reply brief that the flange break SWI
18
establishes AWA’s control over the scale pancake removal process because it required
Turner to “REMOVE any scale, debris or old gasket material between flanges before
make-up of flanges to prevent leaks to system when placing back in service.”
We agree with Morales that this constitutes more than a scintilla of probative
evidence supporting a finding of actual control “over the manner in which the work is
performed.” TEX. CIV. PRAC. & REM. CODE ANN. § 95.003(1). Narrowly speaking, the work
Turner was hired to do in this case was to swap blinds on two risers. This necessarily
entails the unbolting of flanges, and the evidence establishes that AWA required Turner
to perform that task according to the detailed instructions contained in the SWI. Moreover,
it is undisputed that AWA exercised actual and exclusive control over the verification
process, including the proper flushing and draining of the risers, and that the Turner crew
relied on AWA’s performance of this activity. Accordingly AWA exercised “some control”
over the “operative details” of “the work.” See id.4
AWA urges that “the work” at issue here must be limited to the jackhammering of
the scale pancake because that is the specific activity which the Turner crew was
engaged in at the time Morales was injured. It argues that the SWI therefore does not
show actual control under section 95.003 because it does not address the “operative
detail” of the scale removal process specifically See Ellwood Tex. Forge Corp., 214
S.W.3d at 700 (citing Elliott–Williams Co., 9 S.W.3d at 804). In a similar vein, AWA
contends that the flange break instructions in the SWI cannot constitute “some control”
because there is no relationship between those instructions and Morales’s injury. It notes
4 In light of this conclusion, we need not address whether there is evidence to support a finding of
a contractual right of control. See TEX. R. APP. P. 47.1; Dow Chem. Co. v. Bright, 89 S.W.3d 602, 606 (Tex.
2002).
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that a “nexus must be shown between the [property owner’s] retained control and the
condition or activity that caused the injury.” Johnston v. Oiltanking Houston, L.P., 367
S.W.3d 412, 417 (Tex. App.—Houston [14th Dist.] 2012, no pet.) (citing Shell Oil Co. v.
Khan, 138 S.W.3d 288, 294 (Tex. 2004); Elliott–Williams Co., 9 S.W.3d at 803; Hoechst-
Celanese Corp. v. Mendez, 967 S.W.2d 354, 357 (Tex. 1998); Clayton W. Williams Jr.,
Inc. v. Olivo, 952 S.W.2d 523, 528 (Tex. 1997)). In other words, the property owner’s
duty is “commensurate with the control it retains” over the work. Id. (citing Gen. Elec. Co.
v. Moritz, 257 S.W.3d 211, 214 (Tex. 2008); Hoechst-Celanese Corp., 967 S.W.2d at
357). AWA argues that no “nexus” can be shown here because AWA’s control over
Turner’s work, to the extent that it exists, did not play any part in causing the accident.
We decline to define the “the work” as narrowly as AWA urges. AWA is correct
that the evidence does not establish that Morales’s injury was caused by, or was even
related to, AWA negligently exercising control over Turner’s work. But Morales makes no
claim to that effect. Instead, Morales’s claim is principally based on the independent
negligent activity of AWA in failing to ensure that riser 25 was clear of liquor before it
directed Turner to begin the flange break. This flush verification process was an integral
and inextricable part of Turner’s work, and according to Morales, AWA’s negligent
performance of this activity was a proximate cause of his injury. We conclude that AWA’s
exclusive control over this process constitutes “some control over the manner in which
the work is performed” under section 95.003(1). Any other construction of section 95.003
would lead to an absurd result, as a property owner would have blanket immunity from
liability for its own direct negligence in causing injury to a contractor, in all cases except
where the contractor specifically alleges that the property owner negligently exercised
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control over the contractor’s work. See Ineos USA, LLC v. Elmgren, 505 S.W.3d 555,
563 (Tex. 2016) (noting that, in construing chapter 95, we rely “on the plain meaning of
the text unless a different meaning is supplied by statutory definition, is apparent from the
context, or the plain meaning would lead to an absurd or nonsensical result”).
We conclude that the record evidence, viewed in the light most favorable to
Morales, see City of Keller, 168 S.W.3d at 824, establishes an issue of material fact
concerning whether AWA exercised or retained “some control” over the manner in which
the work was performed. See TEX. CIV. PRAC. & REM. CODE ANN. § 95.003(1).
2. Actual Knowledge
We must next determine whether the evidence created a fact issue as to the
second prong of section 95.003—i.e., that AWA had actual knowledge of the danger or
condition that resulted in Morales’s injury but failed to adequately warn. See id. “Actual
knowledge requires knowledge that the dangerous condition existed at the time of the
accident, as opposed to constructive knowledge which can be established by facts or
inferences that a dangerous condition could develop over time.” City of Corsicana v.
Stewart, 249 S.W.3d 412, 414–15 (Tex. 2008). Circumstantial evidence may establish
actual knowledge, but only when it “either directly or by reasonable inference” supports
that conclusion. Id. at 415.
The summary judgment evidence here included Ecle’s affidavit which stated that
operators were trained to monitor liquor flow from the plant’s control room and to ensure
that the flow readings were zero during periods of maintenance. Ecle further stated
control rooms in each quadrant of the plant are “staffed by operators like myself 24 hours
per day, 7 days a week, 365 days a year.” However, there were positive flow readings
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for riser 25 during the morning and early afternoon of September 3, 2014, indicating the
presence of liquor in the riser. This was the dangerous condition that injured Morales,
but it is undisputed that he was not warned of the condition.
Additionally, McCaskill testified that he did not ensure that the line was flushed with
water prior to the Turner crew starting their work. Although McCaskill stated that he did
not believe this was required by AWA procedures, plant manager Kahrs stated in his
email to AWA employees that “the flush verification was not done correctly.”5 In any
event, regardless of whether a water flush was specifically required by AWA procedures,
McCaskill’s testimony is more than a scintilla of evidence that AWA was aware that riser
25 had not been flushed and therefore could not be verified as isolated.
Again viewing the evidence in the light most favorable to Morales, see City of
Keller, 168 S.W.3d at 824, we conclude that a trier of fact could reasonably infer that
Alcoa had actual knowledge of the presence of liquor in riser 25 at the time of the accident.
See City of Corsicana, 249 S.W.3d at 414–15; Abarca v. Scott Morgan Residential, Inc.,
305 S.W.3d 110, 125 (Tex. App.—Houston [1st Dist.] 2009, pet. denied) (finding an issue
of material fact as to actual knowledge of dangerous construction of scaffolding where
evidence established that defendant’s employees “were present while the scaffold was
built and gave instructions regarding its construction”), disapproved of on other grounds
by Ineos USA, 505 S.W.3d at 564 n.3. Accordingly, there is a fact issue precluding
summary judgment. Morales’s second issue is sustained.
5 As noted, the flange break SWI form indicated that “verification”—defined as the “witnessing of
water being flushed through piping, vessels, tanks, pump or valves before the unbolting of flanges”—“must
be performed before starting task,” and if verification cannot be done, “a Flange Break Permit must be
completed and authorized by the Department Superintendent or his/her designee prior to beginning work.”
It is undisputed that no Flange Break Permit was obtained here.
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F. Claims Against Alvarado
By his third issue, Morales argues that the trial court erred in granting summary
judgment to Alvarado. Alvarado argued in his motion that there is no evidence he owed
an individual duty to Morales or that he breached any such duty.
“Though the existence of duty is a question of law when all of the essential facts
are undisputed, when the evidence does not conclusively establish the pertinent facts or
the reasonable inferences to be drawn therefrom, the question becomes one of fact for
the jury.” Helbing v. Hunt, 402 S.W.3d 699, 703 (Tex. App.—Houston [1st Dist.] 2012,
pet. denied); see Mitchell v. Mo.-Kan.-Tex. R.R. Co., 786 S.W.2d 659, 662 (Tex. 1990)
(“While foreseeability as an element of duty may frequently be determined as a matter of
law, in some instances it involves the resolution of disputed facts or inferences which are
inappropriate for legal resolution.”), overruled on other grounds by Union Pac. R.R. Co.
v. Williams, 85 S.W.3d 162 (Tex. 2002). Thus, in a summary-judgment proceeding, if the
nonmovant’s version of the facts would support the imposition of a legal duty, summary
judgment for the defendant based on a claim of no duty is inappropriate.
Generally, a corporation is vicariously liable for the tortious acts of its employee
when those acts are within the course and scope of employment.6 See, e.g., Goodyear
Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, 757 (Tex. 2007). An employee may,
however, be individually liable for his or her own negligence when he or she “owes an
independent duty of reasonable care to the injured party apart from the employer’s duty.”
Leitch v. Hornsby, 935 S.W.2d 114, 117 (Tex. 1996); see Tri v. J.T.T., 162 S.W.3d 552,
6 It is undisputed that Alvarado was acting within the course and scope of his employment with
AWA at all times relevant to Morales’s claims.
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562 (Tex. 2005). In other words, “liability cannot be imposed on employees where the
employer and the employees committed the identical negligent acts or omissions.” In re
Butt, 495 S.W.3d 455, 466–67 (Tex. App.—Corpus Christi 2016, orig. proceeding) (citing
Tri, 162 S.W.3d at 562; Leitch, 935 S.W.2d at 117; Pico v. Capriccio Italian Rest., Inc.,
209 S.W.3d 902, 904 (Tex. App.—Houston [14th Dist.] 2006, no pet.)). But “a corporate
agent is personally liable for his own fraudulent or tortious acts.” Id. (citing Miller v.
Keyser, 90 S.W.3d 712, 717 (Tex. 2002); see Leyendecker & Assocs., Inc. v. Wechter,
683 S.W.2d 369, 375 (Tex. 1984); Khan v. GBAK Props., Inc., 371 S.W.3d 347, 359 (Tex.
App.—Houston [1st Dist.] 2012, no pet.)).
In In re Butt, we held that corporate officials for H.E.B. Grocery Company did not
owe an independent duty of care to a plaintiff who slipped and fell at an H.E.B. store. 495
S.W.3d at 466–67. The plaintiff, in paragraph 27 of his petition, alleged that H.E.B. owed
a duty to its invitees to reasonably inspect the store to discover dangerous conditions,
and that H.E.B. breached that duty “by choosing not to use computerized video
surveillance, or a comparably effective and financially feasible alternative means, to
inspect the store to identify timely and reliably the presence of foreign materials on the
floor of the store.” Id. at 458. As to the individual corporate officers, the plaintiff alleged
only that they “had control over what was and was not done by H.E.B., to discharge
H.E.B.’s duty to its patrons, as described in paragraph 27” and that they “failed to exercise
such control with reasonable care.” Id. We concluded that, because the allegations
against the officers were “identical” to the allegations against the corporation, the plaintiff
did not establish that the officers owed an individual duty “either by virtue of their positions
as apex corporate officials or as a result of their own actions.” Id. at 467. We noted that
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the plaintiff did not allege that the officers “committed tortious or fraudulent acts, or that
they personally created the allegedly dangerous condition at issue in this case—a wet
floor.” Id. at 466.
This case is distinguishable from In re Butt because Morales does not seek to hold
Alvarado liable by virtue of Alvarado’s status as a corporate officer. Instead, he claims
that Alvarado was personally responsible for the failure to verify that riser 25 was clear of
process liquor at the time Turner was directed to start their work. Morales cites federal
district court cases holding that, under Texas law, an employee may be liable when he or
she is personally involved in directing or participating in tortious acts as part of his or her
employment. See Richardson v. Wal-Mart Stores Tex., LLC, 192 F. Supp. 3d 719, 723
(S.D. Tex. 2016) (holding that a Wal-Mart employee was liable for actions taken during
the course and scope of her employment because “[u]nlike the defendant in Leitch, [the
employee] was personally involved in the conduct that allegedly contributed to [the
plaintiff’s] injury”); Lyle v. 24 Hour Fitness, USA, Inc., No. A-14-CA-300 LY, 2014 WL
5094126, at *4 (W.D. Tex. Oct. 10, 2014) (noting that Texas law creates an independent
duty for store managers in premises liability cases when “the pleadings alleged the store
manager or agent played a personal role in creating the dangerous condition at issue”);
Alexander v. Lincare Inc., No. CIV A 3:07-CV-1137-D, 2007 WL 4178592, at *3 (N.D. Tex.
Nov. 27, 2007) (noting that “[a] corporation’s employee is personally liable for tortious
acts which he directs or participates in during his employment” and collecting cases).
Morales’s response to Alvarado’s summary judgment motion cites the following
evidence as support for his claim that Alvarado was personally involved in directing or
participating in tortious acts: (1) Maly’s deposition testimony stating that after McCaskill
25
left the Point Comfort plant in the middle of the day on September 3, 2014, Alvarado
became AWA’s “contact” person for the Turner crew; (2) McCaskill’s testimony that the
pipeline leading to riser 25 was not flushed with water; (3) the flange break SWI, which
states that “FLUSHING of water must be performed from isolation to isolation for true
verification not just across the flange being unbolted”; and (4) Kahrs’ email, which
acknowledged that “flush verification was not done correctly, even though it was
specifically circled on the pre-task brief.” We find that this evidence, when viewed in the
light most favorable to Morales, see City of Keller, 168 S.W.3d at 824, creates a fact issue
as to whether Alvarado owed and breached an individual duty to Morales. Morales’s third
issue is sustained.
III. CONCLUSION
Because chapter 95 applies to Morales’s claims, we affirm the trial court’s denial
of his motion for partial summary judgment. However, having found disputed issues of
material fact as to those claims, we reverse the trial court’s summary judgment in favor
of AWA and Alvarado. The cause is remanded for further proceedings consistent with
this opinion.
DORI CONTRERAS
Justice
Delivered and filed the
17th day of May, 2018.
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