IN THE SUPREME COURT OF TEXAS
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NO . 15-0172
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FIRST TEXAS BANK, PETITIONER,
v.
CHRIS CARPENTER, RESPONDENT
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ON PETITION FOR REVIEW FROM THE
COURT OF APPEALS FOR THE THIRD DISTRICT OF TEXAS
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Argued February 9, 2016
CHIEF JUSTICE HECHT delivered the opinion of the Court.
Chapter 95 of the Texas Civil Practice and Remedies Code limits a property owner’s liability
for injuries to a contractor “who constructs, repairs, renovates, or modifies an improvement to real
property”.1 The court of appeals held that a person cannot be a contractor without an “actual”
contract to perform specific work for stated compensation.2 We disagree. In the context of Chapter
95, a contractor is simply someone who works on an improvement to real property. Here, however,
the contractor was not engaged in the work covered by the statute. Accordingly, we affirm the court
of appeals’ judgment but for different reasons.
1
T EX . C IV . P RAC . & R EM . C O D E § 95.003.
2
___ S.W .3d ___ (Tex. App.— Austin 2014) (mem. op.).
First Texas Bank asked Chris Carpenter to investigate a leak in the Bank’s roof. For years,
Carpenter was the Bank’s “go-to guy” for roof repairs. Carpenter reported that the roof had hail
damage. The Bank decided to make an insurance claim and use the proceeds to repair the damage,
and possibly make other repairs as well. The Bank asked Carpenter to show the insurance adjuster
the damage. As Carpenter later testified:
Q. So the general plan was to make an insurance claim, get the adjuster
out there, point out to him all the damages and at least make the immediate hail-
related damage repairs, and if possible, make some of these [other repairs] that you
had previously proposed?
A. Possibly take—right, maybe take the insurance proceeds. They may
kick in more money to get the roofs completely redone.
Q. And it was your understanding you were going to be the guy to be
making those repairs. That’s why they had you up there, correct?
A. That made sense, yes, sir.
The Bank’s roof has two tiers. Carpenter and the adjuster climbed to the first tier using
Carpenter’s ladder, then used a ladder the Bank had stored there to climb to the second tier. While
descending from the second tier, Carpenter fell, crushing two vertebrae.
Carpenter sued the Bank, alleging that its ladder was defective. The Bank invoked Chapter
95, which “applies only to a claim: (1) against a property owner . . . for personal injury . . . to . . . a
contractor . . . ; and (2) that arises from the condition or use of an improvement to real property
where the contractor . . . constructs, repairs, renovates, or modifies the improvement.”3 Section
95.003 provides in part:
3
T EX . C IV . P RAC . & R EM . C O D E § 95.002.
2
A property owner is not liable for personal injury . . . to a contractor,
subcontractor, or an employee of a contractor or subcontractor who constructs,
repairs, renovates, or modifies an improvement to real property . . . unless:
(1) the property owner exercises or retains some control over the manner in
which the work is performed . . . ; and
(2) the property owner had actual knowledge of the danger or condition . . .
and failed to adequately warn.4
The Bank contended that it could not be liable for Carpenter’s injuries because it did not control his
work or know of any defect in its ladder. In response, Carpenter argued that Chapter 95 is
inapplicable because he had no contract with the Bank and was therefore not its contractor, and
because he was not engaged in the work described by the statute at the time he was injured. The trial
court granted summary judgment for the Bank.
The court of appeals reversed, holding that “Carpenter was not a ‘contractor’ as contemplated
by the statute.”5 The court reasoned that “the ordinary meaning of ‘contractor’ requires that there be
an actual contract under which one party (the contractor) has agreed to perform a specific kind of
work or task and be compensated therefor by another party.”6 The record did not establish, the court
continued,
that the parties had entered into a contract for Carpenter to make any particular
repairs or perform any work on the roof, whether to repair the leak Carpenter initially
identified or to repair the hail damage Carpenter discovered while investigating the
leak. In fact, Carpenter testified that in discussing with Bank personnel a “plan” to
file an insurance claim to fund the roof repairs, it was left undetermined whether the
4
Id. § 95.003.
5
___ S.W .3d at ___.
6
Id.
3
roof would be completely redone, depending on the amount of insurance proceeds
received. Although Carpenter testified that he believed he would be the person to
make whatever repairs the Bank decided to undertake, the parties had not yet gotten
to the point of specifying what those repairs would entail, whether Carpenter would
indeed be the person to do them, and what the terms of compensation would be.7
The court did not reach Carpenter’s argument that Chapter 95 is also inapplicable because he was
not injured while performing any of the work described in the statute.8 The court remanded for
further proceedings.
We granted the Bank’s petition for review.9
Chapter 95 does not define “contractor”, so we give the word its ordinary meaning unless a
more precise meaning is apparent from the context of the statute.10 Black’s Law Dictionary defines
“contractor” generally as “[a] party to a contract”, supporting the court of appeals’ conclusion and
Carpenter’s argument, but then adds, “[m]ore specif., one who contracts to do work for or supply
goods to another . . . ”, supporting the Bank’s argument.11 Other dictionaries
give the same general and more specific definitions.12
7
Id. at ___.
8
Id. at ___ n.4.
9
59 Tex. Sup. Ct. J. 163 (Dec. 18, 2015).
10
Thompson v. Tex. Dep’t of Licensing & Regulation, 455 S.W .3d 569, 571 (Tex. 2014) (“[I]f an undefined
term has multiple common meanings, it is not necessarily ambiguous; rather, we will apply the definition most consistent
with the context of the statutory scheme.”); TGS-NOPEC Geophysical Co. v. Combs, 340 S.W .3d 432, 439 (Tex. 2011)
(“Undefined terms in a statute are typically given their ordinary meaning, but if a different or more precise definition is
apparent from the term’s use in the context of the statute, we apply that meaning.”).
11
B LACK ’S L AW D IC TIO N ARY 400 (10th ed. 2014).
12
The Oxford English Dictionary defines “contractor” as “[o]ne who enters into a contract or agreement; a
contracting party. . . . spec. [o]ne who contracts or undertakes to supply certain articles, or to perform any work or service
. . . at a certain price or rate; in the building and related trades, one who is prepared to undertake work by contract.” 3
4
Chapter 95 is not a statute regulating contracting in general but one prescribing the conditions
under which an owner is liable to someone working on improvements to real property. Its
applicability turns on the kind of work being done, not on whether an agreement for the work to be
done is written, or formal, or detailed. Many agreements for such work are informal. In Carpenter’s
words, he was a “handshake guy” and worked for the Bank without “16 pages of contracts to paint
or fix something.” The statute covers not only contractors who have agreements with owners, but
their employees, subcontractors, and their subcontractors’ employees, none of whom would
ordinarily have a contract with the owner. The statute cannot fairly be read to cover only contractors
with formal written contracts, but still cover subcontractors and employees with no contracts at all
with the owner.
As used in Chapter 95, a “contractor” is someone who makes improvements to real property.
Carpenter was, by his own admission, the Bank’s roofing contractor. As a matter of law, he was a
“contractor” under Chapter 95. The court of appeals erred in concluding that Chapter 95 was, for that
reason, inapplicable.
But Chapter 95 does not cover everyone injured while working on real property; it expressly
covers only contractors, subcontractors, and their employees “who construct[], repair[], renovate[],
T H E O XFO RD E N GLIS H D ICTIO N ARY 837 (2d ed. 1989). Webster’s Third New International Dictionary defines
“contractor” as “one that contracts : a party to a bargain : one that formally undertakes to do something for another [:]
one who contracts on predetermined terms to provide labor and materials and to be responsible for the performance of
a construction job in accordance with established specifications or plans — called also building contractor”. W EBSTER ’S
T H IR D N EW I N T ’L D IC TIO N ARY 495 (1961).
5
or modif[y] an improvement to real property”.13 The statute does not apply to one injured apart from
such work.
The evidence before us does not establish that Carpenter’s injury occurred while he was
performing work described by Chapter 95. The Bank initially requested that Carpenter investigate
a leak, and then when he found hail damage, asked him to show the insurance adjuster. In his
original petition, Carpenter pleaded that “it was [his] understanding that he was to perform the
needed repairs to the roof”, not that the Bank had the same understanding. Carpenter testified only
that “the general plan” was “possibly”, “maybe”, to use insurance proceeds to repair the hail
damages, and “if possible”, make other repairs to the roof, and that it “made sense” that he would
get the job.
The Bank argues that roof repairs are a process, and that Carpenter was well into the work
when he was injured. The Bank points to Gorman v. Meng, a case involving the electrocution death
of a worker asked by a convenience store owner to investigate why customers were suffering
electrical shocks when touching the doors to a walk-in cooler.14 The trial court applied Chapter 95,
and after trial to the bench, rendered judgment for the defendant.15 The trial court found that the store
owner had asked the decedent “‘if he would be willing to look at the walk-in cooler’”, and the
decedent had “agreed to ‘see if he could diagnose the electrical problem.’”16 On appeal, the plaintiffs
13
T EX . C IV . P RAC . & R EM . C O D E § 95.003.
14
335 S.W .3d 797, 800–801 (Tex. App.— Dallas 2011, no pet.).
15
Id. at 801–802.
16
Id. at 805.
6
made the same argument Carpenter makes here, that Chapter 95 was inapplicable because the
decedent was not engaged in work covered by the statute. The court of appeals rejected the argument,
concluding that, based on the trial court’s findings, the decedent “was on the property for the purpose
of determining what was causing the electrical shock to customers of the store coming in contact
with the walk-in cooler, the first step of the repair process.”17
We disagree that the findings on which the Gorman court relied supported its conclusion that
the decedent’s work was covered by Chapter 95. The diagnosis the decedent was asked to make
could have been the first step of the repair process, as one might easily expect, but it need not have
been. The present case is clearer. Had the Bank hired Carpenter to fix the roof, and a necessary first
step was demonstrating hail damage to the adjuster and obtaining insurance proceeds, then he would
have been engaged in repairing or modifying the roof, an improvement to real property. But the
evidence does not come close to establishing those things. Rather, the evidence fairly shows that the
Bank had never fully decided what, if any, repairs to make to the roof before Carpenter was injured.
Had the insurance claim been denied, the Bank might have decided not to make any roof repairs.
Carpenter might well have expected to get the job, if one was let, as he had before, but there is no
evidence that the Bank had decided whom to hire.
17
Id.
7
The record does not establish that the Bank had retained Carpenter to perform work covered
by Chapter 95 at the time he was injured. Whether Chapter 95 applies remains in dispute, and the
trial court erred in granting summary judgment for the Bank. For these reasons, the case must be
remanded to the trial court for further proceedings. The judgment of the court of appeals is therefore
Affirmed.
Nathan L. Hecht
Chief Justice
Opinion delivered: June 10, 2016
8