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Worker Injured on Former’s Employer’s Premises

pipeline-1112653-m.jpgA recent appellate case arose when a plaintiff was seriously burned after falling into a pool of hot water at the defendant’s chemical plant. The plant had multiple manufacturing units, but the facility was owned by DuPont. The unit where the plaintiff was injured was a formaldehyde production unit. Steam was a key part of the chemical production, and both steam and formaldehyde were supplied by D.B. Western, Inc., which built a formaldehyde manufacturing plant on land adjacent to the chemical plant. Steam pipes ran through the DuPont plant, and through them ran formaldehyde and steam from the adjacent plant.

There were steam traps designed by D.B. Western that DuPont and its outside company Spirex Sarco were responsible for maintaining. In 2004, DuPont sold the formaldehyde unit to Invista, and the employees of DuPont working there, including the plaintiff, became Invista employees. Invista had a contract with the same contracting company to purchase the steam and inspect the pipeline system. The plaintiff was burned by hot condensate that was in a pool under a pipeline.

The plaintiff sued DuPont, the owner of the plant, alleging negligence in the design, construction, and maintenance of the pipeline and steam traps, as well as premises liability. With regard to premises liability, the plaintiff claimed he was an invitee of DuPont. The plaintiff’s wife alleged loss of consortium.


The plaintiff argued that the hot condensate created an unreasonable risk of harm because it broke down subsurface soil and created an unsupported ledge that allowed him to fall into the pool. Before the trial, the plaintiff settled claims against D.B. Western, and other defendants were nonsuited, so the plaintiff only went to trial against DuPont. The jury found for the plaintiff on both causes of action. The judgment was for $11,568,627.35. DuPont appealed.

Among other issues, the jury was asked whether any of the defendants’ negligence was the proximate cause of the plaintiff’s fall. The jury ruled that all four defendants were negligent. The defendant argued that the ordinary negligence theory should not have been submitted to the jury.

The appellate court agreed. It explained that the plaintiff wasn’t injured as a contemporaneous outcome of DuPont’s negligent activity, so he was limited to his premises liability claim. In Texas, if you are hurt on somebody else’s property you have two causes of action against the property owner: negligence based on negligent activity on the premises, and premises liability for an unreasonably dangerous condition on the premises. If the injury is due to negligent activity, you must have been injured as a contemporaneous result of the negligent activity.

The plaintiff was trying to hold DuPont responsible for injuries based on a dangerous condition–the pool of hot condensate–rather than a dangerous activity. Therefore, he was limited to recovering on the basis of a premises liability theory.

The defendant also argued that there was insufficient evidence it owed the plaintiff a duty to protect him from an obvious danger. It argued that the plaintiff was an employee of an independent contractor and that all DuPont owed him was a duty to protect him from concealed hazards that it knew about or should have discovered through reasonable inspection.

The appellate court agreed with DuPont. It explained that the plaintiff was owed no duty to warn of open and obvious dangers, only pre-existing concealed hazards that it knew or should have known about.

The appellate court explained that in premises liability cases, Texas plaintiffs can establish a defendant’s constructive knowledge by showing a hazardous condition existed long enough that a reasonable owner would have found it on inspection. In this case, there wasn’t evidence to show when the open and obvious pool created the concealed ledge that collapsed with the plaintiff on it. It held as a matter of law that the plaintiff had failed to meet the burden to show the defendant owed him a duty to warn of a concealed hazard it knew or should have known about.

If you or a loved one has suffered an injury on somebody else’s property, you may be entitled to compensation, including medical expenses, loss of wages, and pain and suffering. It is important to retain an attorney with experience litigating premises liability cases in Texas. The experienced San Antonio personal injury attorneys at Carabin & Shaw may be able to help. Call our office for more information at 1-800-862-1260.

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