Johannes "Joe" Elmgren and Valarie Elmgren, Individually and as Next Friends of Their Minor ChildrenAPE Rehear v. INEOS USA, LLC F/K/A Innovene USA, LLC, INEOS Polymers, Inc., A/K/A/ INEOS Olefins, Ineos Olefins & Polymers USA, a Division of Ineos USA, LLC and Jonathan "Bubba" Pavlovsky

Affirmed in part, and Reversed and Remanded in part, and Opinion filed March
20, 2014.

In the

Fourteenth Court of Appeals

NO. 14-13-00044-CV

JOHANNES “JOE” ELMGREN AND VALARIE ELMGREN, INDIVIDUALLY
AND AS NEXT FRIENDS OF THEIR MINOR CHILDREN, Appellants
V.

INEOS USA, LLC F/K/A INNOVENE USA, LLC, INEOS POLYMERS, INC.,
A/K/A INEOS OLEFINS, INEOS OLEFINS & POLYMERS USA, A DIVISION
OF INEOS USA, LLC, AND JONATHAN “BUBBA” PAVLOVSKY, Appellees

On Appeal from the 412th District Court
Brazoria County, Texas
Trial Court Cause No. 61,590

OPINION

Appellants Johannes “Joe” Elmgren and Valarie Elmgren, both individually and
as next friends for their minor children (collectively, the “Elmgrens”), appeal the trial
court’s summary judgment in favor of appellees, Ineos USA, LLC f/k/a Innovene USA,
LLC, Ineos Polymers, Inc., a/k/a Ineos Olefins, Ineos Olefins & Polymers USA, a
division of Ineos USA, LLC (collectively, “Ineos”), and Jonathan “Bubba” Pavlovsky,
on all its claims. Joe was working for Ineos’ subcontractor pursuant to a maintenance
services contract. While replacing valves on a de-coke header system at Ineos’ plant,
Joe suffered burns from an explosion and release of super-heated gas. The Elmgrens
present five issues, four of which relate to chapter 95 of the Texas Civil Practice and
Remedies Code: (1) whether chapter 95 applies at all; (2) whether Ineos and Pavlovsky
conclusively proved chapter 95 applies; (3) whether there is a fact issue on Ineos’ and
Pavlovsky’s control over the work being performed; and (4) whether there is a fact issue
on Ineos’ and Pavlovsky’s actual knowledge of the danger or condition resulting in
Joe’s injuries. The Elmgrens also argue that the trial court erred in denying their motion
to compel responses to a production request for the names of Ineos’ process engineers.
We affirm in part, and reverse and remand in part.

I. FACTUAL AND PROCEDURAL BACKGROUND

Appellant Johannes “Joe” Elmgren was employed as a boilermaker by Zachry
Industrial, Inc. Zachry had contracted with Ineos Olefins & Polymers USA, a division
of Ineos USA, LLC, to perform maintenance services at Ineos’ plant. Joe reported to
work at the plant at approximately 7:00 p.m. on June 22, 2010. Joe’s task was to
replace valves on a de-coke header on the Olefins #2 DDB 101B furnace. Joe’s Zachry
supervisor, David Robin, and Ineos’ operator, Clint Pierce, conducted a lock out tag out
(LOTO) procedure to ensure there was no gas present in the line. A sniff test for gas
was performed at approximately 8:30 p.m. with a zero result. Ineos issued the work
permit for the valve replacement. At approximately 3:00 a.m., during the process of
removing the second valve, super-heated gas was released in an explosion that resulted
in burns to Joe’s torso, neck, and jaw line.

The Elmgrens brought claims against Ineos and Pavlovsky for negligence and
wrongful termination. The Elmgrens also sought exemplary damages. Pavlovsky is the

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working team leader over furnace maintenance at Ineos. Ineos and Pavlovsky filed
traditional and no-evidence motions for summary judgment. Under their traditional
motions, they argued that they qualified for protection from liability under chapter 95;
they were not liable as a matter of law because they did not exercise or retain control,
either contractually or actually, over the manner in which Joe’s work was performed;
and they were not liable as a matter of law because they had no actual knowledge of the
danger or condition resulting in Joe’s injuries. Under their no-evidence motions, Ineos
and Pavlovsky argued that the Elmgrens produced no evidence of control over the work
performed by Joe and no evidence of actual knowledge as required by chapter 95. The
Elmgrens responded that chapter 95 did not apply to Pavlovsky because he is not a
property owner, Ineos retained contractual and actual control over Joe’s work, and Ineos
had actual knowledge of the danger or condition resulting in Joe’s injuries. The
Elmgrens also argued that chapter 95 does not apply to their claims in this situation
because they “arise from Ineos’ direct role in informing Zachry’s crew that the system
was safe to proceed.”1

The parties filed various other motions, including the Elmgrens’ motion to
compel the identity of Ineos’ process engineers. The Elmgrens took additional
depositions. Ultimately, after an oral hearing, the trial court granted Ineos’ and
Pavlovsky’s motions for summary judgment. The trial court expressly found that
chapter 95 applied to the Elmgrens’ claims for personal injury; there was no genuine
issue as to any material fact, and Ineos and Pavlovsky were entitled to judgment as a
matter of law on all of the Elmgrens’ claims; and Ineos and Pavlovsky did not exercise
1
Ineos and Pavlovsky also moved for traditional summary judgment as to the Elmgrens’
wrongful termination claim and for no-evidence summary judgment as to the Elmgrens’ claims for
wrongful termination and exemplary damages. The Elmgrens responded to these grounds in the trial
court but have not raised, much less presented any argument or authority on, the granting of summary
judgment on these claims on appeal. Therefore, they have abandoned these claims and we do not
address summary judgment as to these claims. See Duerr v. Brown, 262 S.W.3d 63, 69 (Tex. App.—
Houston [14th Dist.] 2008, no pet.).

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or retain control over Joe’s work, and did not have actual knowledge of the danger or
condition resulting in his injuries and fail to adequately warn. The judgment stated that
it finally disposed of all of the Elmgrens’ claims. The Elmgrens timely appealed.

II. SUMMARY JUDGMENT STANDARDS

We review the trial court’s granting of summary judgment de novo. Ferguson v.
Bldg. Materials Corp. of Am., 295 S.W.3d 642, 644 (Tex. 2009) (per curiam) (citation
omitted). Ineos’ and Pavlovsky’s motions for summary judgment are hybrid traditional
and no-evidence motions. See Tex. R. Civ. P. 166a(c), (i). To the extent necessary, we
therefore apply the established standards of review for each. Brockert v. Wyeth Pharm.,
Inc., 287 S.W.3d 760, 764 (Tex. App.—Houston [14th Dist.] 2009, no pet.). To be
entitled to summary judgment under rule 166a(c), a movant must establish that there is
no genuine issue of material fact so that the movant is entitled to judgment as a matter
of law. Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848
(Tex. 2009). If the movant’s motion and summary judgment evidence facially establish
its right to judgment as a matter of law, the burden shifts to the nonmovant to raise a
genuine, material fact issue sufficient to defeat summary judgment. See M.D. Anderson
Hosp. & Tumor Inst. v. Willrich, 28 S.W.3d 22, 23 (Tex. 2000) (per curiam). A genuine
issue of material fact exists if more than a scintilla of evidence establishing the
existence of the challenged element is produced. Ford Motor Co. v. Ridgway, 135
S.W.3d 598, 600 (Tex. 2004) (citation omitted).

A no-evidence motion for summary judgment must be granted if: (1) the moving
party asserts that there is no evidence of one or more specified elements of a claim or
defense on which the adverse party would have the burden of proof at trial and (2) the
respondent produces no summary judgment evidence raising a genuine issue of material
fact on those elements. See Tex. R. Civ. P. 166a(i); Mayer v. Willowbrook Plaza Ltd.
P’ship, 278 S.W.3d 901, 908 (Tex. App.—Houston [14th Dist.] 2009, no pet.). We

4
sustain a no-evidence summary judgment where: (1) there is a complete absence of
evidence of a vital fact, (2) the court is barred by rules of law or of evidence from giving
weight to the only evidence offered to prove a vital fact, (3) the evidence offered to
prove a vital fact is no more than a mere scintilla, or (4) the evidence conclusively
establishes the opposite of the vital fact. Lowe’s Home Ctrs., Inc. v. GSW Mktg, Inc.,
293 S.W.3d 283, 287–88 (Tex. App.—Houston [14th Dist.] 2009, pet. denied) (citing
Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997)). “Evidence
does not exceed a scintilla if it is ‘so weak as to do no more than create a mere surmise
or suspicion’” that the challenged fact exists. Akin, Gump, Strauss, Hauer & Feld,
L.L.P. v. Nat’l Dev. & Research Corp., 299 S.W.3d 106, 115 (Tex. 2009) (quoting
Kroger Tex. Ltd. P’ship v. Suberu, 216 S.W.3d 788, 793 (Tex. 2006)).

In reviewing the granting of either type of summary judgment motion, we indulge
every reasonable inference in favor of the nonmovant, resolve any doubts arising in its
favor, and take as true all evidence favorable to it. Echartea v. Calpine Corp., No. 14-
10-00019-CV, 2011 WL 2684889, at *2 (Tex. App.—Houston [14th Dist.] July 12,
2011, no pet.) (mem. op.) (citation omitted). Ordinarily, we first review the no-evidence
summary judgment, then, if necessary, the traditional summary judgment as to the
Elmgrens’ claims. See Ford Motor Co., 135 S.W.3d at 600. Here, we review the
traditional summary judgment because the burden does not shift to the Elmgrens on the
elements of control and actual knowledge unless and until Ineos and Pavlovsky
conclusively establish that chapter 95 applies. See Vanderbeek v. San Jacinto Methodist
Hosp., 246 S.W.3d 346, 352 (Tex. App.—Houston [14th Dist.] 2008, no pet.).

III. ANALYSIS

A. Applicability of chapter 95

Chapter 95 of the Texas Civil Practice and Remedies Code was enacted in 1996
as part of a sweeping tort-reform package. Ellwood Tex. Forge Corp. v. Jones, 214
5
S.W.3d 693, 699 (Tex. App.—Houston [14th Dist.] 2007, pet. denied) (citing Dyall v.
Simpson Pasadena Paper Co., 152 S.W.3d 688, 699 (Tex. App.—Houston [14th Dist.]
2006, pet. denied) (en banc)). “It was enacted because the legislature recognized that
property owners often want to hire someone with expertise to repair or renovate some
improvement on their property.” Dyall, 152 S.W.3d at 699. Chapter 95 applies only to
a claim:

(1) against a property owner, contractor, or subcontractor for
personal injury, death, or property damage to an owner, a contractor, or a
subcontractor or an employee of a contractor or subcontractor; and
(2) that arises from the condition or use of an improvement to real
property where the contractor or subcontractor constructs, repairs,
renovates or modifies the improvement.

Tex. Civ. Prac. & Rem. Code § 95.002 (West 2011) (titled “Applicability”). “Claim” is
defined in chapter 95 as “a claim for damages caused by negligence.” Id. § 95.001(1).
“Property owner” is defined as “a person or entity that owns real property primarily
used for commercial or business purposes.” Id. § 95.001(3). Under chapter 95:

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:
(1) 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
(2) 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.

Id. § 95.003 (titled “Liability for Acts of Independent Contractors”). Section 95.003(1)
served to codify the Texas Supreme Court’s holding in Redinger v. Living, Inc., 689

6
S.W.2d 415 (Tex. 1985), which adopted section 414 and the accompanying comments
of the Restatement (Second) of Torts.2 See Ellwood, 214 S.W.3d at 700; Dyall, 152
S.W.3d at 699. Section 95.003(2) further limited a premises owner’s liability by
requiring a plaintiff to prove that the owner had actual, not merely constructive,
knowledge of a dangerous condition on the premises. See Ellwood, 214 S.W.3d at 700;
Dyall, 152 S.W.3d at 699.

B. The trial court did not err in granting summary judgment pursuant to chapter
95 as to negligence claims against Ineos arising from the condition of the
improvement Zachry was repairing.

1. Zachry and Joe were repairing the “gas process” improvement.

In their related first and second issues, the Elmgrens do not dispute that the facts
at issue fall within subsection (1) of section 95.002 with respect to Ineos. The Elmgrens
brought a claim for damages caused by negligence against a property owner or
contractor (Ineos) for personal injury to an employee (Joe) of a subcontractor (Zachry).
See id. § 95.002(1).3 The Elmgrens instead assert that chapter 95 is inapplicable to their
claims because Joe’s injuries arose from the defective condition of the operation of the
plant’s gas process, which Ineos separately and solely controlled, rather than from any
work being done by Joe to replace the de-coke header valves. See id. § 95.002(2). In
other words, they contend Ineos did not prove Joe was working on the same
improvement that resulted in his injuries.

2
The Redinger court held that, while in general a premises owner does not have a duty to see
that an independent contractor performs its work in a safe manner, the owner may be liable if it retains
some control over the manner in which the contractor’s work is performed. 689 S.W.2d at 418.
3
The Elmgrens’ live pleadings, attached to Ineos’ and Pavlovsky’s summary judgment
motions, alleged that Joe was an employee of Zachry and that “all Corporate Defendants were the
owners of the premises” at issue in Alvin, Texas. Ineos and Pavlovsky also attached to their summary
judgment motions the maintenance services contract between Ineos and Zachry, and an affidavit from
Ineos’ corporate deputy secretary Paul Capuzzi wherein he avers that the corporate Ineos defendants
own the Alvin chemical plant.

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 The Elmgrens primarily rely on this court’s plurality opinion in Hernandez v.
Brinker International, Inc., 285 S.W.3d 152 (Tex. App.—Houston [14th Dist.] 2009, no
pet.) (plurality op.). There, the plaintiff, a subcontractor employee, was hired to
maintain and make repairs to a restaurant’s air-conditioning system, which was located
on the roof of the restaurant. That particular day, the plaintiff was supposed to replace a
compressor motor. As he was walking to or from the air conditioner with the old or
new motor, he fell through the roof. The Hernandez plurality concluded that section
95.002(2) did not apply in such a situation:

The roof and the air-conditioning system are separate improvements to real
property. Section 95.002(2) states that Chapter 95 applies only to a claim
“that arises from the condition or use of an improvement to real property
where the contractor or subcontractor [repairs or modifies] the
improvement.” Therefore, pursuant to the plain language of section
95.002(2), Chapter 95 does not apply to a contractor’s employee’s claim
against a property owner when the improvement the condition or use of
which gives rise to the injury claim is not the same improvement the
contractor was at the premise to address at the time of injury.

285 S.W.3d at 157–58 (alterations in orig.). The plurality concluded: “Hernandez’s
claim arises from the condition of the roof, but Hernandez did not repair or modify the
roof. Hernandez repaired the air-conditioning system. Thus, under the plain language
of section 95.002(2), Chapter 95 does not apply to Hernandez's claims.” Id. at 161.

Ineos relies on cases where this court has concluded that the plaintiff’s injuries
did arise from the condition or use of the improvement the plaintiff was repairing or
modifying. For example, in Vanderbeek, a hospital engaged a contractor for plumbing
work necessary to remodel the emergency room. The plaintiff, a plumber who worked
for the contractor, suffered chemical burns when a caustic liquid came out of a drainage
pipe that he had previously capped. We concluded that section 95.002(2) applied and
affirmed a take-nothing summary judgment for the hospital. 246 S.W.3d at 350–51, 353

8
(“Vanderbeek’s negligence claim arises from the condition or use of the Hospital
building, which is an improvement to real property. . . . The contractor (Humphrey
Plumbing) repaired, renovated, or modified the Hospital building.”).

Likewise, in Dyall, without specifically discussing the applicability of section
95.002(2), this court sitting en banc affirmed a take-nothing summary judgment in favor
of a paper mill owner in an action by an independent contractor’s employees for
respiratory injuries relating to the inhalation of toxic gases released from a pipe while
they were repairing a leaking flange. 152 S.W.3d at 693–96, 710.

The plurality in Hernandez, however, did not take issue with Vanderbeek and
Dyall because in those cases the facts supported that “the employee’s injury was caused
by a condition or the use of the improvement he was repairing or modifying.” 285
S.W.3d at 161 (discussing Vanderbeek, 246 S.W.3d at 348–49; Dyall, 152 S.W.3d at
695–96).

Under the plain language of section 95.002(2), to meet their burden on summary
judgment to show that chapter 95 applies to the Elmgrens’ claims, Ineos and Pavlovsky
must facially establish that the claims “arise[] from the condition or use of an
improvement to real property where [Zachry] constructs, repairs, renovates, or modifies
the improvement.” See Tex. Civ. Prac. & Rem. Code § 95.002(2). As alleged, Zachry
and Joe were working on repairing valves on the “common header system and
specifically on a de-coke header” on the Olefins #2 DDB 101B furnace at Ineos’ plant.
The Elmgrens also alleged that Joe was severely injured by a “sonic boom type super
heated explosion of gases” and that his injuries resulted from a “super heated gas leak”
“into the line upon which he was working.” The Elmgrens described this leak as “an
unreasonably dangerous condition.” They do not argue that the common header system
and the de-coke header are not an improvement to real property, but rather that the
particular LOTO line and valves Joe was working on do not qualify as the same

9
improvement as the rest of the “gas process.” Essentially, what the Elmgrens would
have us do is to attempt to divide the plant’s “gas process” system of furnaces and
headers valve-by-valve or line-by-line into separate, discreet improvements. However,
neither section 95.002(2) nor our case law, including the plurality in Hernandez,
precludes us from determining these particular alleged facts indicate that the Elmgrens’
claims arise from the condition of the “gas process” system improvement and that
Zachry and Joe were repairing or modifying such improvement. Rather, such a result is
consistent with the plain language of section 95.002(2). See Tex. Civ. Prac. & Rem.
Code § 95.002(2). In addition, this result is consistent with the outcomes in Vanderbeek
and Dyall, and distinguishable from the Hernandez plurality.

We therefore conclude Ineos has conclusively proven that chapter 95 applies, and
we overrule the Elmgrens’ first and second issues as to Ineos—to the extent the
Elmgrens alleged negligence claims arising from the condition of the improvement
Zachry and Joe were repairing. See Vanderbeek, 246 S.W.3d at 351.

2. There is no genuine fact issue on Ineos’ actual knowledge.

In their third issue, the Elmgrens argue that, to the extent chapter 95 applies, they
raised a genuine fact issue that Ineos exercised or retained control over Zachry’s and
Joe’s work. See Tex. Civ. Prac. & Rem. Code § 95.003(1). Likewise, in their fourth
issue, the Elmgrens argue that they raised a fact issue that Ineos had actual knowledge
of the danger or condition resulting in Joe’s burns and failed to adequately warn. See id.
§ 95.003(2).

Both of these independent and necessary conditions of section 95.003 must be
met before liability will be imposed upon the property owner. See id. § 95.003;
Vanderbeek, 246 S.W.3d at 352; Ellwood, 214 S.W.3d at 700; Dyall, 152 S.W.3d at
699. Ineos moved for both traditional and no-evidence summary judgment on both
prongs of section 95.003. We already have determined that Ineos conclusively
10
established that chapter 95 applies to claims against them to the extent they arise from
the condition of the improvement Zachry and Joe were repairing, so the trial court
properly shifted the burden on summary judgment to the Elmgrens. See Vanderbeek,
246 S.W.3d at 352. Thus, under chapter 95, they had the burden to raise a fact issue on
both the control and actual knowledge prongs in order to withstand summary judgment.
See Tex. Civ. Prac. & Rem. Code § 95.003; Ellwood, 214 S.W.3d at 700 (“An owner
may be aware of the danger, but exercise no control, or he may exercise control and
have no actual knowledge of the danger; in either instance, the owner is statutorily
shielded from liability.”); Dyall, 152 S.W.3d at 699 (“The burden now rests upon the
plaintiff to show both (1) control and (2) actual knowledge of the danger.” (emphasis in
orig.)).

Where the summary judgment evidence fails to raise a fact issue on one prong of
section 95.003, we need not address the other prong. See Bartee v. Baylor Coll. of
Med., No. 14-06-00324-CV, 2007 WL 2989614, at *4 & n.3 (Tex. App.—Houston
[14th Dist.] Oct. 16, 2007, no pet.) (mem. op.) (concluding trial court correctly granted
summary judgment based upon section 95.003 where no fact issue raised as to control
without addressing actual knowledge). Section 95.003(2) requires the Elmgrens to
prove that Ineos had actual knowledge—as opposed to constructive knowledge—of the
alleged dangerous condition. See Ellwood, 214 S.W.3d at 700. Actual knowledge of a
dangerous condition is what a person actually knows, as distinguished from constructive
knowledge, or what a person should have known. See City of Corsicana v. Stewart, 249
S.W.3d 412, 414–15 (Tex. 2008) (per curiam) (“Actual knowledge requires knowledge
that the dangerous condition existed at the time of the accident, as opposed to
constructive knowledge which can be established by facts or inferences that a dangerous
condition could develop over time.”).

In its summary judgment motion, Ineos specifically argued there was no evidence

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Ineos had actual knowledge that gas existed in the pipe on which Joe was working at the
time of the accident. In addition to the line being LOTO and the sniff test performed
prior to the work resulting in zero, Ineos pointed to testimony from Joe that he did not
have any information from anyone indicating Ineos knew of any valves leaking gas
before his accident. Robin testified that no one from Ineos knew there was gas in the
line before Joe starting working on the valves, and that if anyone from Ineos knew gas
was present, Joe would not have been allowed to work on the line. Pavlovsky testified
that Ineos was not aware and did not have knowledge of any leaking valves at the time
of the accident. Rex Hill, day furnace operator for Ineos, testified that he was not aware
of anyone from Ineos knowing of any gas in the line before the accident. Rodney
Girlinghouse, senior site safety support manager for Zachry at Ineos’ plant, led the
investigation of Joe’s accident and was not aware of anyone at Ineos who had actual
knowledge of any gas in the line on which Joe was working that night.

The Elmgrens point to Pavlovsky’s testimony that he has heard that sometimes
de-coke gate valves leak even when they are new. Pavlovsky further clarified, however,
that he has never personally witnessed a new valve leaking. The Elmgrens further
suggest that Ineos knew of the hazardous condition of gas in the line because a similar
explosion occurred a few months earlier while Zachry employees were repairing a
flange on a pipe about one hundred feet from the Olefins #2 DDB 101B furnace. The
Elmgrens note that a fire watch was required pursuant to the work permit. They point to
testimony from Pierce that, after Joe’s accident, Ineos requires a full nitrogen purge
before changing valves. David Dworaczyk, unit engineer for Ineos, testified that the
better practice is to perform the sniff test closer in time to when the work begins.

However, even viewing the summary judgment record in the light most favorable
to the Elmgrens, none of this evidence indicates Ineos had actual knowledge of any
valve allegedly leaking gas into the line that resulted in Joe’s injuries at the time of the

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accident. The evidence does not show Pavlovsky was aware that any new gate valve at
Ineos’ plant was leaking. The evidence shows that there had previously been flammable
gas in a line during a prior repair and that there are arguably better methods for clearing
and checking a line for gas. See Echartea, 2011 WL 2684889, at *5 (finding no
evidence of actual knowledge of roadway hole or rut causing plaintiff’s injury despite
evidence that location had been previously cleared of ruts). At most, Ineos may have
had knowledge of a possibility that gas could exist in the line, but knowledge of a
potential danger or condition is not enough. See Bishop v. Nabisco, Inc., No. 14-03-
00639-CV, 2004 WL 832916, at *3 (Tex. App.—Houston [14th Dist.] Apr. 20, 2004, no
pet.) (mem. op.) (“Actual knowledge that the cover was dangerous is different than
knowing that the cover was potentially dangerous.”).

We conclude that the Elmgrens failed to meet their burden to raise a genuine fact
issue on Ineos’ actual knowledge pursuant to section 95.003(2). We overrule the
Elmgrens’ fourth issue. Because the Elmgrens failed in their burden regarding the
second prong of section 95.003, we need not and do not address the first prong on
control or their third issue, which addresses that prong. See Bartee, 2007 WL 2989614,
at *4 & n.3. Therefore, the trial court did not err in granting Ineos’ motion for summary
judgment as to the Elmgrens’ claims arising from the condition of the improvement
Zachry and Joe were repairing. See Echartea, 2011 WL 2684889, at *5.

C. The trial court erred in granting summary judgment pursuant to chapter 95 as
to Pavlovsky because he did not conclusively prove that chapter 95 applies to
him.

With respect to Pavlovsky, the Elmgrens argue that Pavlovsky did not
conclusively prove that chapter 95 applies to claims against him. Pavlovsky did not
submit any evidence that he was a property owner or contractor for purposes of chapter
95. Instead, Pavlovsky contends that he qualifies as such because he is an employee of

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Ineos, the property owner and contractor. We cannot agree. The plain language of
section 95.002(1) states that chapter 95 applies to claims “against a property owner,
contractor, or subcontractor”—not to claims against an “employee” of a property owner,
contractor, or subcontractor. See Tex. Civ. Prac. & Rem. Code § 95.002(1). Indeed, the
legislature could have included employees as a category of protected defendant but did
not. See id. (listing claims for “personal injury, death, or property damage to . . . an
employee of a contractor or subcontractor”). Pavlovsky relies on Fisher v. Lee &
Chang Partnership, 16 S.W.3d 198 (Tex. App.—Houston [1st Dist.] 2000, pet. denied),
for the proposition that “[a]gents, representatives, or employees of the property owner
and/or contractor enjoy the benefits of Chapter 95.” However, the precise holding of
our sister court in Fisher does not reach so broadly as to cover all employees of property
owners or contractors. In the specific situation where there was evidence that a
particular individual was an agent and property manager for the property owner and
“looked after the property,” the Fisher court held the liability protection in “sec. 95.003
applies to property owners and also to their agents who oversee their properties.” Id. at
202–03; see Echartea, 2011 WL 284889, at *3 n.1. In any event, Pavlovsky did not
argue, much less conclusively prove, that he was Ineos’ agent who oversees their
property. We sustain the Elmgrens’ first and second issues as to Pavlovsky.4

D. The trial court erred in granting summary judgment on the Elmgrens’
negligent-activity and negligent-undertaking claims.

Both Ineos and Pavlovsky moved for traditional summary judgment on the
ground that they were “not liable for the alleged personal injury sustained by [Joe]
under . . . section 95.003; thus, summary judgment is appropriate as a matter of law.”
We construe this as a global summary judgment ground that encompasses all claims for

4
We of course take no position at this time with regard to whether premises-liability claims
against Pavlovsky otherwise could withstand summary disposition.

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personal injury pleaded by the Elmgrens. See Nall v. Plunkett, 404 S.W.3d 552, 556
(Tex. 2013) (reversing appellate court and construing summary judgment ground that
did not expressly mention negligent undertaking as addressing such claim). Indeed, in
their summary-judgment response, the Elmgrens argued that chapter 95 did not apply in
this situation—i.e., their claims arising from Ineos’ direct role in informing Zachry and
Joe that “the system was safe to proceed.” The trial court granted Ineos and Pavlovsky
summary judgment, specifically finding that chapter 95 applies to the Elmgrens’
personal injury claims.

On appeal, in addition to the argument that chapter 95 does not apply because
Joe’s injuries did not arise from the condition of the specific improvement that he was
repairing, discussed and rejected above, the Elmgrens also assert that chapter 95 does
not bar their negligence claims based on the alternative theories of negligent activity and
negligent undertaking.5

We first consider what claims had been sufficiently pleaded by the Elmgrens at
the time of summary judgment. The Elmgrens pleaded premises liability. They alleged
that premises-owner Ineos failed with regard to its duty to provide “a safe place and
conditions for [Joe] and others to work.” As discussed, Chapter 95 appropriately
governs these claims as to Ineos. See Tex. Civ. Prac. & Rem. Code § 95.003; Bishop,
2004 WL 832916, at *3. In addition, the Elmgrens alleged negligence by Ineos and
Pavlovsky in various respects, including failures to timely inspect and to purge the line
for gas. The Elmgrens further alleged Ineos’ particular responsibility with regard to
clearing the line for Joe’s protection. At this stage, based on our review of the
pleadings, which we construe liberally in the absence of special exceptions, see Roark v.
Allen, 633 S.W.2d 804, 809 (Tex. 1982), and resolving any doubts against the motions
5
At argument, counsel for the Elmgrens presented this court with proposed jury questions that
particularly contemplated as to Ineos theories of negligent undertaking, general negligence, and
premises liability pursuant to chapter 95.

15
for summary judgment, see Echartea, 2011 WL 2684889, at *2, we agree with the
Elmgrens that their pleadings fairly encompass negligence claims potentially sounding
in negligent activity and negligent undertaking. See Horizon/CMS Healthcare Corp. v.
Auld, 34 S.W.3d 887, 896–97 (Tex. 2000) (describing “fair notice” standard for
pleading as whether opposing party can ascertain from the pleading basic nature of the
controversy, even if improperly named); Dodd v. Savino, —S.W.3d—, No. 14-12-
00555-CV, 2014 WL 242881, at *11 (Tex. App.—Houston [14th Dist.] Jan. 16, 2014,
no. pet. h.) (substitute op.) (“The case law is clear that a petition is sufficient if a cause
of action may reasonably be inferred from what is specifically stated in the petition,
even if an element of the cause of action is not specifically alleged.”) (internal quotation
marks omitted).

Premises liability is a special form of negligence where the duty owed to the
plaintiff depends on the plaintiff’s status at the time of the incident. W. Invs., Inc. v.
Urena, 162 S.W.3d 547, 550 (Tex. 2005). A premises owner has a duty to use
reasonable care to keep the premises under his control in a safe condition for business
invitees, such as independent contractors. See Redinger, 689 S.W.2d at 417. Premises-
liability claims are divided into two categories: (1) defects existing when an
independent contractor enters the premises and (2) defects created by the independent
contractor’s work activity. Dow Chem. Co. v. Bright, 89 S.W.3d 602, 606 (Tex. 2002)
(citing Coastal Marine Serv. of Tex., Inc. v. Lawrence, 988 S.W.2d 223, 225 (Tex.
1999)). With respect to pre-existing defects, a premises owner has a duty to inspect the
premises and warn of defects the owner knows or should have known about. Clayton
W. Williams, Jr., Inc. v. Olivo, 952 S.W.2d 523, 527 (Tex. 1997). With respect to
defects arising later, an owner generally has no duty unless it retains a right to or
exercises some control over the manner in which the contractor’s work is performed.
See Bright, 89 S.W.3d at 606; Redinger, 689 S.W.2d at 418. As indicated, the effect of

16
section 95.003 was to codify Redinger’s right-to-control requirement and to raise the
knowledge requirement to actual knowledge of the dangerous condition. See Ellwood,
214 S.W.3d at 700; Dyall, 152 S.W.3d at 699.

Whereas a premises-defect claim is based on the property itself being unsafe, a
negligent-activity claim requires that the plaintiff’s injury result from a
contemporaneous activity itself rather than from a condition created on the premises by
the activity. State v. Shumake, 199 S.W.3d 279, 284 (Tex. 2006); Timberwalk
Apartments, Partners, Inc., v. Cain, 972 S.W.2d 749, 753 (Tex. 1998); Keetch v. Kroger
Co., 845 S.W.2d 262, 264 (Tex. 1992); Mayer, 278 S.W.3d at 909. Negligent activity is
a general negligence cause of action and encompasses theories of malfeasance based on
affirmative, contemporaneous conduct by the property owner that caused the injury,
while premises liability encompasses theories of nonfeasance based on the owner’s
failure to take measures to make the property safe. Del Lago Partners, Inc. v. Smith,
307 S.W.3d 762, 776 (Tex. 2010). The duty inquiry in a negligent-activity claim does
not turn on whether a duty arose to take protective action based on special
circumstances or the parties’ relationship. See Custom Transit, L.P. v. Flatrolled Steel,
Inc., 375 S.W.3d 337, 364 (Tex. App.—Houston [14th Dist.] 2012, pet. denied).
“Instead, the duty inquiry focuses on injuries caused by contemporaneous actions or
omissions in [the owner’s] conduct.” Id.

For purposes of a negligent-undertaking claim, the “critical inquiry concerning
the duty element” is “whether a defendant acted in a way that requires the imposition of
a duty where one otherwise would not exist.” Nall, 404 S.W.3d at 555. Such a duty
may arise when a person particularly undertakes to provide services to another, either
gratuitously or for compensation, including undertaking to make the premises safe for
others. See Custom Transit, 375 S.W.3d at 361 (citing Torrington Co. v. Stutzman, 46
S.W.3d 829, 837 (Tex. 2000)). A jury presented with a negligent-undertaking claim

17
should be instructed that the defendant was negligent if: (1) the defendant undertook to
perform services that it knew or should have known were necessary for the plaintiff’s
protection; (2) the defendant failed to exercise reasonable care in performing those
services; and (3) either the plaintiff relied on the defendant’s performance, or the
defendant’s performance increased the plaintiff’s risk of harm. Id.

The Texas Supreme Court recognizes a distinction between the separate theories
of premises liability and negligent activity. Del Lago, 307 S.W.3d at 775 (“As to
landowners, we have recognized negligent-activity and premises-liability theories of
liability.”); Shumake, 199 S.W.3d at 284 (“We have rejected attempts to blur the
distinction between these two claims.”); Keetch, 845 S.W.2d at 264 (“We decline to
eliminate all distinction between premises conditions and negligent activities.”); see
Custom Transit, 375 S.W.3d at 361. Although the terms “negligent activity” and
“negligent undertaking” are sometimes used interchangeably, a negligent-undertaking
theory is separate and distinct from a negligent activity theory. See Custom Transit, 375
S.W.3d at 363. Moreover, as with negligent activity, the Texas Supreme Court
recognizes that negligent undertaking and premises liability, although similar in that the
plaintiff seeks to impose a duty to take protective action based on special circumstances
or the parties’ relationship, involve two different theories of recovery. See Nall, 404
S.W.3d at 555; Wilson v. Tex. Parks & Wildlife Dep’t, 8 S.W.3d 634, 635 (Tex. 1999)
(per curiam); Custom Transit, 375 S.W.3d at 361 (citing Torrington, 46 S.W.3d at 838).

Next, we must determine whether chapter 95 applies to automatically bar all such
negligence claims. In other words, whether chapter 95 as a matter of law provides the
Elmgrens’ exclusive remedy against Ineos here. We conclude that it does not. In Dyall,
albeit in dicta, our en banc court indicated that the intent of chapter 95 was not to bar all
negligence claims against property owners. See 152 S.W.3d at 708. There, we

18
considered chapter 95’s statement of legislative intent,6 found it to be entirely consistent
with the statute’s plain meaning, and specifically indicated that chapter 95 would not
preclude recovery in the following situations: “if [independent contractor employee] had
been injured by an unrelated explosion of the pine bleaching plant due to [mill owner’s]
negligence” and “if [mill owner] had negligently told [independent contractor
employee] that the pipe was empty, and [employee] had been injured due to his reliance
on that statement,” then “the statute would not preclude recovery.” Id. (concluding,
however, that neither scenario was at issue where mill owner specifically told
independent contractor employees pipe was not empty). Until now, this court has not
been directly presented with a case where the plaintiff alleged negligence claims against
a property owner arguably falling within a situation as described in Dyall. Cf.
Vanderbeek, 246 S.W.3d at 348–49, 351 (negligence claims covered by chapter 95
where plaintiff had alleged dangerous condition due to hospital’s negligence prior to
plaintiff’s work, but where no allegation of contemporaneous action or omission by

6
Representative Robert Junell, sponsor of the bill, stated that it was the authors’ intent that
chapter 95 “does not apply nor raise the burden of proof in situations where a property owner is
negligent, separate and apart from exercising or retaining control over the manner in which the work is
performed in a contract to construct, repair, renovate, or modify an improvement to real property.”
Dyall, 152 S.W.3d at 708 (citing H.J. of Tex., 74th Leg., R.S. 2611–12 (1995)). Representative Junell
offered two examples:
Example: Let’s say there is a concrete company supplying concrete to a plant and
because of premise owner’s negligence (such as failing to properly maintain their
pipelines, vessels or pressures), there is an explosion destroying the concrete truck and
injuring the driver. Nothing in this Chapter would raise the burden of proof on the
property owners negligence for recovery of the damages related to the truck or person.
Example: Likewise, if we have a maintenance contractor who gets a contract to perform
work at the plant, and the property owner informs the contractor that the lines are clear
and ready for welding, when in fact they are not, due to the property owner’s
negligence, and an employee of the maintenance contractor is injured by the release of
chemicals. Nothing in this chapter would change the burden of proof or the damages
recoverable.
Id. (citing same).
19
hospital or additional undertaking to protect plaintiff by hospital).7

Recently, in Oncor Electric Delivery Co., LLC v. Murillo, —S.W.3d—, 2013 WL
5372544 (Tex. App.—Houston [1st Dist.] Sept. 26, 2013, no pet.), our sister court
recognized that claims of negligent activity survive chapter 95. There, an employee of a
demolition contractor was electrocuted at a demolition site. Oncor was the easement
holder and electricity provider to the site that failed to de-energize the transformer at
issue. The jury found Oncor liable for general negligence and assessed damages. The
court rejected Oncor’s jury-charge challenge that the only viable claim against it and the
plaintiff’s exclusive remedy was for premises liability under chapter 95 arising from the
failure to provide a safe workplace. Id. at *7, *22.

In doing so, the Oncor court noted the Texas Supreme Court’s consistent
recognition “that negligent-activity claims and premises-defect claims involve two
independent theories of recovery . . . . although ‘[t]he lines between negligent activity
and premises liability are sometimes unclear,’ there is a recognized distinction between
the two theories.” Id. at *9 (quoting Del Lago, 307 S.W.3d at 776). As the Oncor court
explained:

An owner who performs an activity on the property has a duty to use
ordinary care with respect to that part of its work over which it exercises
control so that its activity does not proximately cause a foreseeable injury.
[citations omitted] This duty is separate from the duty of ordinary care
owed by a property owner to an invitee, licensee, or trespasser on the
property on a premises-defect theory.

Id. at *12–13 (emphasis in orig.) (where Oncor performed activity in disconnecting
electricity or otherwise controlling flow of electricity to property to permit safe
demolition, it owed duty to “workers on the site quite apart from the general duty it

7
The Dallas court of appeals declined to follow our dicta from Dyall in Dow Chemical Co. v.
Abutahoun, 395 S.W.3d 335, 347 n.5 (Tex. App.—Dallas 2013, pet. filed).

20
owed as the owner of the electricity easement on the property”). The Oncor court also
explained that a plaintiff may proceed on negligent activity, as opposed to premises
liability:

[W]here [the plaintiff] was not injured because a condition occurred as a
result of equipment failure, act of God, third party interference, or the non-
contemporaneous act of the easement owner—but by the negligent acts of
several defendants, including [the easement owner] . . . .

Id. at *17 (discussing Tex. Dep’t of Transp. v. Ramming, 861 S.W.2d 460 (Tex. App.—
Houston [14th Dist.] 1993, writ denied)). Ultimately, the Oncor court concluded that
the negligent activity was “Oncor’s failing to disconnect one of the cables it had been
charged with disconnecting and, instead, leaving live electricity flowing through that
cable to the demolition site during the on-going demolition, salvage, and utility removal
process” and the plaintiff’s injuries were “attributable to an ongoing activity [of] the
premises owner.” Id. at *17–18.

In light of the Texas Supreme Court’s continued recognition of the distinct nature
of premises-liability, negligent-activity, and negligent-undertaking theories of liability,
and in light of Dyall and Oncor, we conclude that chapter 95 defeats a premises-liability
claim if the statutory requisites are satisfied but does not as a matter of law reach
distinct claims for negligent activity and negligent undertaking.

Therefore, in these circumstances where the Elmgrens’ petition fairly included
negligent-activity and negligent-undertaking theories of liability, the trial court erred in
granting summary judgment insofar as its order operated to grant summary judgment
pursuant to chapter 95 on the Elmgrens’ claims for negligent activity and negligent
undertaking. We of course express no opinion as to whether the Elmgrens ultimately
could establish any negligence claims (aside from premises-liability claims) and
whether Ineos and Pavlovsky ultimately could be liable for any breaches of duty, if
owed.
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E. The trial court did not abuse its discretion in denying the Elmgrens’ motion to
compel.

In their fifth issue, the Elmgrens argue that the trial court erred in denying their
motion to compel responses to their 8th request for production, where they requested the
names and contact information for all process engineers on duty at Ineos’ plant within
three days of Joe’s accident. Ineos and Pavlovsky had objected on grounds that the
request was overly broad, unduly burdensome, vague, and ambiguous “as to what is
meant by process engineers.” In their motion, the Elmgrens pointed to Girlinghouse’s
testimony that, during Zachry’s investigation, “an Ineos engineer” who worked during
the day gave Girlinghouse information regarding leaking valves as the cause of the
accident. Girlinghouse did not write any names down and could not describe or
remember who told him that. Girlinghouse used the term “process engineer” when he
responds he is not a process engineer after being asked to explain “how this gas could
have gotten in the system.” The trial court denied the motion to compel.

Thereafter, the Elmgrens took the deposition of Ineos’ corporate representative
Randy Kay. The Elmgrens again moved to compel the identity of the process
engineers,8 pointing to Kay’s testimony regarding the term “process engineers” and his
identification of Dworaczyk as one of two process engineers who may have been
assigned to Olefins #2. Kay could not recall the name of the other process engineer; his
testimony indicated that one process engineer was assigned to Olefins #1 and one
process engineer was assigned to Olefins #2. The Elmgrens then took Dworaczyk’s
deposition one day before the summary judgment hearing. Dworaczyk testified that
“process engineer” is a “general term” and that at the time he served as the “unit
engineer” for Olefins #2. The Elmgrens included excerpts from Dworaczyk’s
deposition in their motion to reconsider and to allow new summary judgment evidence.

8
The record does not disclose a ruling on the Elmgrens’ second motion to compel.

22
The record indicates that the trial court considered the Dworaczyk excerpts when
denying the Elmgrens’ motion to reconsider summary judgment.

We review a trial court’s ruling on a motion to compel discovery under an abuse-
of-discretion standard. See Johnson v. Davis, 178 S.W.3d 230, 242 (Tex. App.—
Houston [14th Dist.] 2005, pet. denied). Trial courts have broad discretion in matters of
discovery. See id. We should reverse a trial court’s ruling on a motion to compel only
when the court acts in an arbitrary and unreasonable manner, without reference to any
guiding principles. Shanley v. First Horizon Home Loan Corp., No. 14-07-01023-CV,
2009 WL 4573582, at *3 (Tex. App.—Houston [14th Dist.] Dec. 8, 2009, no pet.)
(mem. op.).

The Elmgrens fail to show how the trial court abused its discretion by denying
their first motion to compel or by failing to rule on, or implicitly denying,9 their second
motion. The Elmgrens discovered who served as the Olefins #2 “process engineer” at
the time of Joe’s accident, deposed Dworaczyk, and utilized his testimony to defend
against summary judgment. We conclude that the trial court did not abuse its discretion.
See id. at *4.

We overrule the Elmgrens’ fifth issue.

IV. CONCLUSION

Based on the foregoing, we affirm in part and reverse and remand in part the trial
court’s summary judgment. With regard to the Elmgrens’ negligence claims based on a
premises-liability theory, we (1) affirm the trial court’s granting of summary judgment

9
See Shanley, 2009 WL 4573582, at *3 n.4 (finding it arguable that rendition of summary
judgment in favor of defendants implicitly overruled plaintiffs’ motion to compel discovery and thus
preserved error).

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pursuant to chapter 95 as to Ineos and (2) reverse the court’s granting of summary
judgment pursuant to chapter 95 as to Pavlovsky. With regard to the Elmgrens’
negligence claims based on negligent-activity and negligent-undertaking theories, we
reverse the trial court’s granting of summary judgment. In all other respects, we affirm
the summary judgment. We remand the case for proceedings consistent with this
opinion.

/s/ Marc W. Brown
Justice

Panel consists of Justices Boyce, Christopher, and Brown.

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