When is an owner liable for personal injuries sustained on its property? In Oxy USA WTP LP v. Bringas, the Houston Court of Appeals (First District) held that Oxy USA WTP LT (“Oxy”), the property owner, was not liable to a third-tier subcontractor under a premise liability, negligent activity or negligence per se theory.

In Bringas, Bringas, a third-tier independent contractor to Oxy, was asked to swap out two slide-top waste bins with open-top waste bins at a remote, unmanned compressor station, the Barilla Draw, in the Permian Basin. Bringas opted to perform the work in near complete darkness between 12:00 midnight to 2:00 a.m. As one of bins was being loaded onto a trailer for removal, the bin came into contact with an energized power line, creating an electric shock that caused significant bodily injuries to Bringas. Bringas then sued Oxy for premises defect, negligent activity, and negligence per se, alleging Oxy owed a duty to warn of dangerous conditions, i.e., the nearby high voltage power lines, which were not open and obvious. The trial court denied Oxy’s motion for summary judgement. On interlocutory appeal, the Houston Court of Appeals reverse, finding Oxy was entitled to summary judgment for all causes of action asserted.

The Houston Court of Appeals first reviewed Texas law regarding an owner’s liability for injuries sustained on its property. “In failing to keep premises safe, one in control of premises may be liable for negligence arising from a negligent activity on the premises and that arising from a premises defect.”  Under a negligent activity theory of liability, the person’s injury must result from the owner’s contemporaneous activity on site. In contrast, a premises liability defect is based on the property itself of a condition of the property being unsafe.

In evaluating whether Bringas could assert a premises liability claim against Oxy, the Court distinguished between two categories of premises defects: “Category one” defects where the defect existed at the time the independent contractor entered the premises, and “category two” defects where the defect was created by the independent contractor’s own work  on site. “Only concealed hazards—dangerous in their own right and independent of action by another—that are in existence when the independent contractor enters the premises fall into category one defects.” For a property owner to be liable for a category two defect, the owner must exercise control of the contractor’s work and fail to use reasonable care. A general right to order work to stop, inspect progress of  work, or receive reports is insufficient to establish control.

The Houston Court of Appeals held that there was no evidence that the proximity of the waste bins to the overhead power lines was an existing premises defect that was unrelated to Bringas’ moving the bins, thereby ruling out a category one defect. Instead, the Court held that the danger was “activated” by Bringas performing his work in swapping out one of the bins at night, making his claim a category two defect. Citing to the following provision in the subcontract agreement between Oxy and the first-tier subcontractor, the Court held that Oxy as a matter of law did not have any right to control Bringas’ work.

Any provision in this Agreement whereby Oxy or Oxy’s representative would otherwise have the right to direct Contractor to the matter of performing the Work shall be interpreted as meaning that Contractor shall follow the wishes of Oxy in the results achieved and not in the means whereby the Work is to be accomplished.

The Court similarly dismissed Bringas’ assertion that Oxy exerted actual control over the “operative detail” of Bringas’ work. There was simply no evidence to support Bringas’ assertion that Oxy told Bringas how to swap out the waste bins. The compressor station was unmanned and Oxy was not even notified when Bringas would be on site.

Finally, the Court dismissed Bringas’ negligent activity and negligence per se claims. The Court noted that the same defect—insufficient lighting, work performed in the dark—formed the basis of Bringas’ premises defect and negligent activity claim, impermissibly recasting his premises defect claim as a negligent activity claim. Bringas’ negligence per se claim was premised on Oxy’s alleged violation of a Texas statute, Section 752.003 of the Texas Health and Safety Code. In dismissing that claim, the Court reviewed the language of Section 752.003 requiring a person “responsible” for temporary work closer to a high voltage line than the distances prescribed in the statute must notice of the operator of the line at least 48 hours before the work begins. As with the category premises defect claim, the Court found as a matter of law that Oxy did not retain control over Bringas’ work and was not “responsible” for his work.

The attorneys in our Austin and Dallas offices have litigated many cases involving electric shock and/or electrocution, and have significant experience with Chapter 95 and other laws impacting a property owner’s or general contractor’s liability. Please contact us at info@gstexlaw.com.

Legal Disclaimers

This blog is made available by Gerstle Snelson, LLP for educational purposes and to provide general information about the law, only.  Neither this document nor the information contained in it is intended to constitute legal advice on any specific matter or of a general nature.  Use of the blog does not create an attorney-client relationship with Gerstle Snelson, LLP where one does not already exist with the firm.  This blog should not be used as a substitute for competent legal advice from a licensed attorney.

©Gerstle Snelson, LLP 2024.  All rights reserved.  Any authorized reprint or use of this material is prohibited.  No part of this blog may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying, recording, or by any information storage or retrieval system without the express written permission of Gerstle Snelson, LLP.