PROPERTY OWNER FOUND NOT LIABLE FOR INJURIES TO INDEPENDENT CONTRACTOR’S EMPLOYEE

On January 4, 2012, San Antonio Court of Appeals affirmed the trial court’s judgment holding that an injured employee of an independent contractor failed to meet his burden to produce more than a scintilla of evidence that the property owner exerted contractual or actual control over his work.  Covarrubias v. Diamond Shamrock Refining Company, LP, 2012 WL 12116, No. 04-11-00289-CV (Tex.App.—San Antonio, Jan. 4, 2012).

Plaintiff-Appellant Pedro Covarrubias sued Defendant-Appellee Diamond Shamrock for premises liability and negligence after Covarrubias sustained second-degree burns while accessing the welds on a carbon steel line in one of Diamond Shamrock’s refineries.   Covarrubias was injured when the lift handrail of a scissor lift struck a nearby nipple (the fitting, consisting of a short piece of pipe, used for connecting two other fittings) causing it to break and hydrocarbons to be released.

In the first issue, the appellate court held that Covarrubias's claims were subject to Chapter 95 of the CPRC even though he was injured while accessing his work space using a scissor lift and not by the welds he was hired to repair.  See TEX. CIV. PRAC. & REM.CODE ANN. § 95.002.  The court held that since Covarrubias needed to use the scissor lift to access his work space, and although the nipple was not the object of Covarrubias's work, it was an unsafe part of his workplace.  Accordingly, the Court held as a matter of law that Chapter 95 applied to Covarrubias's claims.

In the second issue, the appellate court held that Covarrubias did not meet his burden in producing more than a scintilla of evidence that Diamond Shamrock exerted contractual or actual control over his work. Under Chapter 95, Diamond Shamrock, as the property owner, is not liable for Covarrubias's injuries unless Diamond Shamrock exercised or retained some control over the manner in which Covarrubias's work was performed, and Diamond Shamrock had actual knowledge of the faulty nipple which caused Covarrubias's injuries. See TEX. CIV. PRAC. & REM.CODE ANN. § 95.003.  The court found that Diamond Shamrock did not retain control over the manner in which Covarrubias's work was performed (i.e. using the lift to access the welds), which is one of the elements of a claim under chapter 95 of the CPRC,  and  that  Covarrubias  did  not  produce  any  evidence  to  counter  this  contention.   Because Covarrubias failed in his burden regarding the first prong of chapter 95.003, the court did not address whether Diamond Shamrock had actual knowledge of the dangerous condition.