A recent Texas personal injury lawsuit arose when a worker who was helping a subcontractor lay a cement parking lot around a sales office was electrocuted. The property owner, a supply company, had hired a general contractor and assigned one of its employees to coordinate with the subcontractor and monitor what was happening.
The worker was working at night and trying to level freshly poured concrete with a bull float. The bull float’s handle was 16 inches long. As the worker pulled the float back toward himself, it touched an electrical line that was over or next to the lot where the work was being completed. Later in a deposition, the worker testified he knew about the line’s presence because he’d seen it before.
He also testified that people from the supply company were not only present at the scene but also told him and his coworkers what to do. He assumed that they were from the supply company based on coworker comments and admitted he didn’t know who they were. He admitted that nobody told him to use the float, but said that the people told him to pour the cement.
As a result of touching a live electrical line, he suffered a serious injury. In his lawsuit, he claimed that the presence of a live power line created an unreasonably dangerous condition. Causes of action alleged against the property owner were premises liability, gross negligence, negligence per se, and active negligence. The property owner eventually filed a motion for summary judgment.
In the motion, the property owner raised Chapter 95 of the Texas Civil Practice and Remedies Code, claiming that the summary judgment evidence removed the plaintiff’s ability to satisfy the statutory requirements. The owner argued they had no control over the work performed by the plaintiff and his employer, the subcontractor, and that the plaintiff knew about the overhead lines. They also argued that the statute under which the plaintiff sought to impose negligence as a matter of law didn’t apply to them.
The trial court granted the motion for summary judgment without explaining the basis. It left unresolved a motion filed by the supplier in which it objected to the plaintiff’s summary judgment evidence.
On appeal, the plaintiff argued that Chapter 95 of the Texas Civil Practice and Remedies Code was not applicable. Sections 95.002(1) and (2) control whether recovery is possible in a claim against a subcontractor, contractor, or property owner for personal injury that arises from an improvement to real property where the contractor or subcontractor is either constructing, repairing, renovating or modifying an improvement.
If a claim falls within this section the property isn’t liable for personal injury unless a two-part test is met. The first part of the test is proving that the owner retained some control over how the work was performed that was more than the right to start or stop the work or inspect its progress. The second part of the test is to prove that the owner had actual knowledge of the danger that resulted in injury and failed to properly warn of the danger.
The appellate court explained that the property owner was building an edifice from which to operate its supply business and part of that was the cement parking lot. The plaintiff’s employer was hired to complete the lot and the plaintiff was hurt when the tool he was using touched an electrical line. The plaintiff argued Chapter 95 applied because he was a cement finisher and the injury didn’t arise from a condition of the parking lot, but from an overhead high voltage power line not being used for his work.
The appellate court disagreed, explaining that the location at which an improvement is to be completed is factored into the scope of the improvement. An electrical line has been deemed a condition of the place being improved. It determined that Chapter 95 applied, and that the property owner didn’t try to control details of the subcontractor performance. The company’s employee monitored progress and mostly communicated by phone with the contractor, rather than controlling how the work was being performed. Since the plaintiff hadn’t shown that the supply company exercised control, the first prong of the test for Chapter 95 wasn’t passed, and it was proper for summary judgment to be granted on that ground. For this and other reasons, the lower court’s judgment was affirmed.
If you are hurt in a construction or workplace accident, the experienced San Antonio attorneys at Carabin Shaw may be able to represent you and develop a sound strategy for handling your case. Call our office for more information at 1-800-862-1260.
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