Under Texas premises liability statute, Chapter 95 of the Texas Civil Practices and Remedies Code, when does a property owner have “actual knowledge” of a danger or condition that causes damages for which it is liable? The Texas Supreme Court case recently provided some guidance.

In John Paniagua, et. al. v. Weekley Homes, Weekley hired Leobardo Maravilla, an independent contractor, to install siding and perform cornice work on townhomes in a residential development in Dallas. Leobardo’s work crew included his brother Jose Camerino Maravilla and John Paniagua. The project worksite included several temporary electricity poles that provided electricity for workers’ tools and other equipment during the construction process. On May 31, 2016, rain had been falling intermittently in the area and there were lightning strikes nearby. Leobardo testified that Weekley’s builder, John Holmes, instructed him to move aluminum scaffolding while it was raining so they could finish a particular part of the project before they left the job site. Holmes denied telling them they had to move the scaffolding in the rain. While Leobardo, Jose, and Paniagua were outside on a rain-soaked driveway moving the scaffolding, Jose was electrocuted to death and Paniagua was injured by an electric shock.

The Court’s opinion in Paniagua remarkably was the third time the Court has considered matters in this case. On two prior reviews of motions for summary judgments granted in favor of Weekley, the Court reversed and remanded to the trial court for further deliberations. The current opinion, on review of a third summary judgment granted in favor of Weekley, addresses whether Holmes, the builder for Weekley, had “actual knowledge” of the electrified driveway.

Under Chapter 95, for states “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 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 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.”

The Court held that “actual knowledge” equates to knowledge that a dangerous condition was present at the time of the incident. Specifically, the Court noted that constructive knowledge or inferences that a dangerous condition could develop or that a condition is potentially dangerous does not rise to the level of actual knowledge. In affirming the summary judgment, the Court found that the record  did not show Weekley knew of the thunder and lightning strikes in the area. While Holmes was at the job site, he left before the electrocution/electric shock injury. The Court found that no evidence showed Holmes perceived anything other than rain. In defining the relevant condition as the electrified driveway, the Court then found that Weekley had no “actual knowledge” of that condition and, therefore, was not liable under Chapter 95.

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