Henry Rawson Jr. and Susan Rawson v. Oxea Corporation, Dashiell Corporation, and Mundy Maintenance and Services LLC

Opinion issued December 22, 2016

In The

Court of Appeals
For The

First District of Texas
————————————
NO. 01-15-01005-CV
———————————
HENRY RAWSON JR. AND SUSAN RAWSON, Appellants
V.
OXEA CORPORATION, DASHIELL CORPORATION, AND MUNDY
MAINTENANCE AND SERVICES LLC, Appellees

On Appeal from the 190th District Court
Harris County, Texas
Trial Court Case No. 2015-07842

MEMORANDUM OPINION

In this appeal, we determine whether the trial court correctly granted

summary judgment to Oxea Corporation based on the protections afforded under

Chapter 95 of the Civil Practice and Remedies Code, which shields property
owners from liability to contractors, subcontractors, and their employees in certain

circumstances. The summary judgment disposed of the negligence claims brought

by Henry Rawson Jr., a contractor’s employee, who was injured while working on

Oxea’s property.1 The summary judgment also disposed of a loss-of-consortium

claim asserted by Rawson’s wife, Susan. On appeal, the Rawsons identify seven

issues, attacking different aspects of the trial court’s summary-judgment. Because

Oxea carried its summary-judgment burden of establishing that the protections of

Chapter 95 apply to Henry Rawson’s claims, and Rawson did not meet his

summary-judgment burden of offering evidence sufficient to raise a genuine issue

of material fact regarding the exception to Chapter 95’s protections, we affirm the

trial court’s judgment.

Background

Oxea owns a chemical plant in Baytown, Texas. It also owns an electrical

substation located across the road that supplies power to the plant. The chemical

plant acquired the substation from the power company in 2003. The substation is a

structure comprised of steel beams, attached to a concrete foundation, and contains

electrical equipment. The substation has two transformers: Transformer One and

Transformer Two. Each transformer supplies electricity to different parts of the

1
Rawson also sued Dashiell Corporation and Mundy Maintenance and Services
LLC. After this appeal was filed, the Rawsons settled their claims with Dashiell
Corporation and Mundy Maintenance. This Court granted the Rawsons’ motions
to dismiss their appeal against Dashiell and Mundy Maintenance.

2
plant. Power comes into the substation through transmission lines at 138,000 volts.

The transformers then reduce the power to 12,470 volts for distribution into the

plant through other lines running from the substation. Two power lines run to the

plant from Transformer One and two lines run to the plant from Transformer Two.

On Saturday, June 9, 2012, a raccoon entered the substation and caused an

electrical short, tripping breakers and shutting off power to the part of the plant

powered by Transformer One. The short circuit also damaged two insulators in the

substation. The insulators attach bare metal electrical conductors, individually

known as a “bus” or a “bus bar,” to the steel beam support structure that runs into

the concrete foundation. The insulators also prevent electricity from flowing from

the electrically-charge busses into the steel support-beam structure and down into

the ground.

Alvin Kocurek, an Oxea employee, was called to the plant to address the

power outage. At that time, Kocurek had worked at the plant for 37 years. He was

a journeyman electrician and “point person” for the substation. It was determined

that, if power was turned back on to the plant from Transformer One without

replacing the insulators, power would flow into the substation’s steel support

structure and down to the ground, causing severe damage to the substation.

Because Oxea had a formal policy prohibiting its employees from working

on electrical equipment with a voltage exceeding 600 volts, Oxea personnel could

3
not replace the insulators. The insulators needed to be replaced by an outside

contractor with the necessary skills to work on high-voltage lines.

While waiting for the insulators to be replaced, power needed to be restored

to the entire plant. The plant had been designed so that it could be powered by

only one of the transformers. This could be accomplished by tying the electrical

lines that ran from Transformer Two to the lines inside the plant that normally

received power from Transformer One. Kocurek and a team, which included other

Oxea employees, met to devise a procedure to tie the lines together and to switch

the power from Transformer Two to energize the lines within the plant that were

normally powered by Transformer One. However, in devising the procedure, Oxea

also needed to “isolate” the work area, where the insulators would be replaced,

from the energy source. In other words, the procedure for switching the power in

the plant also needed to prevent the area where the work on the insulators would be

performed from being energized with electricity.

Kocurek prepared a hand-written procedure for switching the power from

Transformer Two to the lines inside the plant that were normally energized by

Transformer One. He also intended for the procedure to isolate the work area from

being energized on the Transformer One side where the insulators would be

replaced. In preparing the switching procedure, Kocurek consulted the plant’s

4
“one-line diagram,” which shows all the electrical circuits coming to and going

from different apparatuses in the plant.

Kocurek would later explain in his affidavit how the power switch was

accomplished:

14. The plant was designed so that, if necessary, it could run off of a
single transformer. The plant had several areas that needed to be
energized from Transformer No. 2 once Transformer No. 1 shut
down. In order to energize these areas, it was necessary to close
various switches inside of the plant to tie these areas together. This is
mainly conducted through switch gear located inside of block houses.

15. Inside of the Oxea plant, we had four blockhouses. We checked
the breakers in all four block houses so we could assess the condition
of the plant. We determined that we would need to conduct switching
at two of these block houses, the Area 2 and the VA Cooling Tower
block houses. This would allow us to tie together power lines to
restore electricity to the portions of the plant which had lost power.
The switch gear in the block houses are sometimes referred to a “line
switch.” The switch gear are housed inside of large cubicles inside of
the block house that permit them to be safely operated from a handle
outside of the enclosure without exposing the operator to direct
contact with the switch gear mechanism or energized lines or
equipment. This switch gear allowed us to switch the flow of power
to different areas of the plant. . . .

....

21. In the substation, we had opened up all the knife switches located
in the substructure that normally received power from the No. 1
transformer. . . .

Even though power was restored to the plant, the insulators still needed to be

replaced before Transformer One could be re-energized. Since acquiring the

substation, Oxea had used a contractor, Dashiel Corporation, and its subsidiary,

5
Dacon Corporation, to work on the high-voltage equipment at the facility. Henry

Rawson was employed by Dacon as a high-voltage lineman. When Dacon

received the request from Oxea, Rawson agreed to go to the substation to replace

the insulators.

After arriving at the substation, Kocurek reviewed with Rawson what Oxea

had done to switch the power and isolate the work area. Before beginning his

work, Rawson used a voltmeter, which measures electrical current in a line, to test

the circuits where he would be working to ensure they were not energized.

Rawson’s testing showed that the area was not energized. Nonetheless, as he was

in the process of replacing the insulators, Rawson was injured when he contacted a

bus bar while it was carrying high-voltage electricity. Rawson claimed that the bus

bar was not energized when he initially touched it but had become energized while

his hand was on it.

After the accident, Oxea conducted an investigation. Kocurek discovered

that the bus bar involved in Rawson’s accident had become energized by a

condition known as “backfeed,” which occurs when power flows in the direction

opposite its usual route. Here, under normal conditions, the power from the two

transformers flowed from the substation into the plant. After Rawson’s accident,

Kocurek realized that, because the lines had been tied together to power the whole

plant from Transformer Two, power from the plant had flowed in the wrong

6
direction back up lines on the Transformer One side and had energized the bus bar

where Rawson was working. In other words, Kocurek realized that backfeeding

had energized the bus bar.

Following the accident, Kocurek also realized that, had he closed “pole top

switches,” which were located inside the fence of the plant, approximately 1,000

feet away from the substation, the backfeeding of the power to the substation

would not have occurred. The pole top switches are normally kept open, allowing

power to flow through them. Had the pole top switches been closed, the

backfeeding of power to Transformer One would have been prevented.

Rawson and his wife, Susan, filed suit against Oxea. Rawson sued for

negligence and gross negligence, and Susan asserted a claim for loss of

consortium. In their amended petition, the Rawsons assert that Kocurek “knew

that the particular substation was configured such that, when isolating for work

inside the substation, [it] created a dangerous condition called backfeeding.

Kocurek [was] well aware of this condition, [was] aware that it was dangerous, and

knew how to eliminate it[.] [Kocurek] just forgot to do so[.]” The Rawsons

alleged, “[A]lthough he was fully aware of the backfeed condition, Kocurek . . .

forgot to pull [the pole top] switches to eliminate it[.]” They further averred that

“Kocurek advised Henry Rawson that [Kocurek] had personally pulled all of the

necessary switches in order to completely isolate the work area[.]” The Rawsons

7
alleged that Henry had “asked [Kocurek] for the one-line diagram, which would

show the lineup of every electrical line and every switch, so that Rawson could

verify what Kocurek had done.” They claimed that Kocurek had told Rawson

there was no one-line diagram available and assured him that he “had nothing to

worry about.” The Rawsons also alleged that Kocurek had not followed Oxea’s

company policies when conducting the isolation and power-switching procedure,

claiming that Kocurek was in a hurry to get the work done. For example, the

Rawsons pointed out that Kocurek’s hand-written procedure for switching the

power and isolating Rawson’s work area had not complied with company policy.

They alleged, “although [Oxea’s] policy requires a documented switching

procedure verified and documented, Kocurek, according to him, did not have the

time to complete one[.]”

The Rawsons claimed that Oxea owed Rawson a duty of care and had

breached that duty. They alleged that Oxea’s following acts and omissions had

proximately caused the Rawson’s injuries:

1) Contributing to an unsafe work site;
2) Creating an unsafe work condition;
3) Failing to identify and remediate an unsafe work condition;
4) Participating in and contributing to acts that caused the incident in
question;
5) Failing to provide timely assistance, or to ensure other protections
were in place;
6) Failing to ensure a proper and comprehensive job safety analysis
was completed that identified and addressed all hazards;
7) Failing to warn of a known hazard and dangerous condition;

8
 8) Failing to read, understand, and follow published safe work policies
and procedures;
9) Promulgating and following unsafe work policies;
10) Creating latent dangers, but failing to warn of same;
11) Creating the unsafe design of a substation;
12) Failing to provide adequate and competent personnel and
supervisory personnel as promised; and
13) Failing to ensure a safe work area, as promised

Oxea filed a hybrid motion for summary judgment, asserting that Chapter 95

of the Texas Civil Practice and Remedies Code protected it from liability on all of

the Rawsons’ claims. Oxea also asserted that, should it not be protected by

Chapter 95, the Rawsons’ claims fail as a matter of law. In response, the Rawsons

claimed (1) Chapter 95 does not apply to their claims, (2) their evidence

established Oxea’s liability even if Chapter 95 applies, and (3) should Chapter 95

not apply, there are genuine issues of material fact regarding their negligence

claims. Without specifying the reason, the trial court granted summary judgment

in Oxea’s favor.

The Rawsons now appeal, asserting that the trial court erred by granting

summary judgment in Oxea’s favor. The Rawsons present seven issues,

challenging the various grounds on which Oxea pursued summary judgment and

challenging two evidentiary rulings of the trial court.

Summary-Judgment Evidence

In their third and fourth issues, the Rawsons contend that the trial court erred

when it sustained Oxea’s objections to certain evidence offered in support of their

9
response. The evidence was offered to support the Rawsons’ theory that the bus

bar was not already energized when Rawson began his work on the substation.

Rather, they claim that the bus bar became energized after Rawson made contact

with it.

We review a trial court’s decision to admit or exclude summary judgment

evidence for an abuse of discretion. Highland Capital Mgmt., L.P. v. Ryder Scott

Co., 402 S.W.3d 719, 747 (Tex. App.—Houston [1st Dist.] 2012, no pet.) (citing

K–Mart Corp. v. Honeycutt, 24 S.W.3d 357, 360 (Tex. 2000)). The Rawsons first

assert that the trial court abused its discretion in sustaining Oxea’s objection that

the following portion of Rawson’s summary-judgment affidavit was conclusory:

“Shortly after that, I heard a buzz that indicated to me that one of the lines had

become energized which had not been energized before. I believe that someone

operated a switch or flipped a breaker which caused the line to become energized.”

The Rawsons also assert that the trial court erred by sustaining Oxea’s

objection that an excerpt from the deposition of Oxea’s expert, J. Dagenhart, had

assumed facts in evidence and called for speculation and conjecture. In the

excerpt, the Rawsons’ attorney had asked Dagenhart whether it was possible that

the line on which Rawson was working had become energized when someone in

the plant closed a breaker to re-energize the telephone system. Dagenhart said that

he “could see . . . situations where that might be the case.” Oxea asserted that this

10
was an improper hypothetical because it was not based on the facts of the case.

Oxea also objected that the Rawsons had not included Dagenhart’s errata sheet

with the deposition excerpt. In his errata sheet, Dagenhart stated that he had

reviewed additional materials and had learned that there was no need to switch

power for the telephone system at the time Rawson was at the facility because the

telephones were already on line at that point.

To obtain a reversal on the trial court’s exclusion of evidence, an appellant

must establish the error was harmful and was calculated to cause and probably did

cause the rendition of an improper judgment. TEX. R. APP. P. 44.1(a). To meet

that burden, an appellant must show the erroneously excluded evidence was

controlling on a material issue dispositive of the case, the evidence was not

cumulative, and its absence resulted in an improper judgment. See Tex. Dep’t of

Transp. v. Able, 35 S.W.3d 608, 617 (Tex. 2000). Generally, errors relating to the

admission or exclusion of evidence will not entitle an appellant to reversal unless

the appellant can show the entire case turns on the complained of evidence. In re

Estate of Denman, 362 S.W.3d 134, 141 (Tex. App.—San Antonio 2011, no pet.).

Here, the Rawsons have not shown that they were unable to defend against Oxea’s

motion for summary judgment without the excluded evidence. Nor have the

Rawsons shown that the evidence was not cumulative of other evidence. To the

contrary, the Rawsons indicate that other evidence—such as Rawson’s testimony

11
that his testing with the voltmeter showed that the work area was not energized—

demonstrated that the area was not energized when he began his work and supports

his theory that it became energized from backfeed while he was installing the

insulators.

We overrule the Rawsons’ third and fourth issues.

Summary Judgment

In their first and second issues, the Rawsons assert that Oxea did not prove

its right to summary judgment because Chapter 95 does not apply to their claims,

and, even if it does apply, their summary-judgment evidence raised fact issues

regarding whether the exception to Chapter 95’s protection applies.

A. Chapter 95

Chapter 95 of the Texas Civil Practice & Remedies Code applies 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 ANN. § 95.002 (Vernon 2011).

When Chapter 95 applies, Section 95.003 confers liability protection to

property owners as follows:

A property owner is not liable for personal injury, death, or property
damage to a contractor, subcontractor, or an employee of a contractor

12
 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, 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 (Vernon 2011).

When Chapter 95 does not apply, and an independent contractor’s employee

sues a property owner for negligence, the common law requires the plaintiff to

show that the owner exercised some control over the relevant work and either

knew or reasonably should have known of the risk or danger. Ineos USA, LLC v.

Elmgren, No. 14–0507, 2016 WL 3382144, at *2 (Tex. June 17, 2016) (citing

Redinger v. Living, Inc., 689 S.W.2d 415, 418 (Tex. 1985); CMH Homes, Inc. v.

Daenen, 15 S.W.3d 97, 101 (Tex. 2000)). But, when it does apply, Chapter 95

“grants the property owner additional protection by requiring the plaintiff to prove

that the owner ‘had actual knowledge of the danger or condition,’ so the owner is

not liable based merely on what it reasonably should have known.” Id. (quoting

TEX. CIV. PRAC. & REM. CODE § 95.003(2)). And, if it applies, Chapter 95 is the

plaintiff’s sole means of recovery for all negligence claims that arise from either a

13
premises defect or the negligent activity of a property owner. Id. at *2–*3 (citing

Abutahoun v. Dow Chemical Co., 463 S.W.3d 42, 50–51 (Tex. 2015)).

A property owner, such as Oxea, has the burden of establishing Chapter 95’s

application to a plaintiff’s claims. See Cox v. Air Liquide America, LP, No. 14–

15–00600–CV, 2016 WL 3703199, at *2 (Tex. App.—Houston [14th Dist.] July

12, 2016, no pet.) (citing Rueda v. Paschal, 178 S.W.3d 107, 111 (Tex. App.—

Houston [1st Dist.] 2005, no pet.)). Once the property owner has met its burden of

establishing Chapter 95’s application, the burden then shifts to the plaintiff to

establish the requirements of Section 92.003—control, actual knowledge, and

inadequate warning—in order to trigger the exception to Chapter 95’s liability

protections. Ineos, 2016 WL 3382144, at *8 (citing Vanderbeek v. San Jacinto

Methodist Hosp., 246 S.W.3d 346, 352 (Tex. App.—Houston [14th Dist.] 2008, no

pet.) (stating that, once defendant proves the applicability of Chapter 95, burden

shifts to plaintiff to fulfill requirements of section 95.003)).

Among its arguments for traditional summary judgment, Oxea contended

that Chapter 95 applied to the Rawsons’ claims. Because it had the burden of

proof on the issue, Oxea needed to establish its right to summary judgment by

conclusively proving application of all the elements of Chapter 95 to Rawson’s

claims. Rhone Poulenc, Inc. v. Steel, 997 S.W.2d 217, 223 (Tex. 1999); Anglo–

Dutch Petroleum Int’l, Inc. v. Haskell, 193 S.W.3d 87, 95 (Tex. App.—Houston

14
[1st Dist.] 2006, pet. denied). Oxea also asserted that its summary-judgment

evidence conclusively negated the essential Section 95.003 requirements of

control, actual knowledge, and inadequate warning that Rawson needed to trigger

the exception to Chapter 95’s liability protection.

B. Traditional Summary Judgment Standard of Review

We review a summary judgment de novo. Travelers Ins. Co. v. Joachim,

315 S.W.3d 860, 862 (Tex. 2010). When, as here, the trial court does not specify

the grounds for its grant of summary judgment, we must affirm the summary

judgment if any of the theories presented to the court and preserved for appeal are

meritorious. See Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 216

(Tex. 2003).

A party moving for traditional summary judgment has the burden to prove

that there is no genuine issue of material fact and that it is entitled to judgment as a

matter of law. TEX. R. CIV. P. 166a(c); SeaBright Ins. Co. v. Lopez, 465 S.W.3d

637, 641 (Tex. 2015). When a plaintiff moves for summary judgment on its claim,

it must establish its right to summary judgment by conclusively proving all the

elements of its cause of action as a matter of law. Rhone Poulenc, 997 S.W.2d at

223; Anglo–Dutch Petroleum Int’l, 193 S.W.3d at 95. A matter is conclusively

established if reasonable people could not differ as to the conclusion to be drawn

from the evidence. See City of Keller v. Wilson, 168 S.W.3d 802, 815 (Tex. 2005).

15
Conversely, a defendant is entitled to summary judgment if it disproves at least one

element of the plaintiff’s cause of action as a matter of law. Doe v. Boys Clubs of

Greater Dall., Inc., 907 S.W.2d 472, 476–77 (Tex. 1995).

If a summary-judgment movant meets its burden, the burden then shifts to

the nonmovant to raise a genuine issue of material fact precluding summary

judgment. See Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995).

To determine if a fact issue exists, we must consider whether reasonable and fair-

minded jurors could differ in their conclusions in light of all the evidence

presented. Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, 755 (Tex.

2007). We review summary-judgment evidence in the light most favorable to the

party against whom the summary judgment was rendered, crediting evidence

favorable to that party if reasonable jurors could and disregarding contrary

evidence unless reasonable jurors could not. SeaBright Ins. Co., 465 S.W.3d at

641.

C. Chapter 95’s Application to the Rawsons’ Claims

1. Condition or use

Section 95.002(2) provides that Chapter 95 applies to a claim “that arises

from the condition or use of an improvement to real property where the

contractor . . . constructs, repairs, renovates, or modifies the improvement.” TEX.

CIV. PRAC. & REM. CODE ANN. § 95.002(2). The Rawsons first contend that Oxea

16
did not prove the “condition” or “use” requirement. The Rawsons acknowledge

that the Supreme Court of Texas has interpreted the condition or use requirement

to mean that Chapter 95 applies to all negligence claims that arise from either a

premises defect (a “condition”) or a property owner’s negligent activity (a “use”).

See Abutahoun, 463 S.W.3d at 50–51.

Relying on Abutahoun’s holding, Oxea pointed out that, regardless of

whether they are based on premises liability or negligent activity, the Rawsons’

claims arise from a condition or use for purposes of Chapter 95. In Abutahoun, the

supreme court reiterated that “‘negligent activity encompasses a malfeasance

theory based on affirmative, contemporaneous conduct by the owner that caused

the injury, while premises liability encompasses a nonfeasance theory based on the

owner’s failure to take measures to make the property safe.’” Id. at 50 (quoting

Del Lago Partners, Inc. v. Smith, 307 S.W.3d 762, 776 (Tex. 2010)). In its motion

for summary judgment, Oxea asserted that, if the Rawsons’ claims can be

interpreted as arising from a bus bar that was already energized when he touched it,

that is, from a nonfeasance theory that Oxea failed to make his work area safe, then

the Rawsons’ claims arise from a premises defect. See Oncor Elec. Delivery Co.,

LLC v. Murillo, 449 S.W.3d 583, 593–94 (Tex. App.—Houston [1st Dist.] 2014,

pet. denied) (discussing distinction between premises liability and general

negligence). Oxea further points out that, to the extent the Rawsons allege that

17
Rawson’s injury arose from the bus bar becoming energized while he was touching

it—that is, from contemporaneous conduct by Oxea—such claims could be

interpreted as arising from a negligent activity. See id. Either way, the claims

arise from a condition or use of the improvement. See Abutahoun, 463 S.W.3d at

50.

On appeal, the Rawsons assert that Oxea’s “failure to provide [Rawson] with

information by which he could have discovered the backfeed condition and

[Oxea’s] misrepresentation that no backfeed existed . . . were neither the

‘contemporaneous activities’ required for a negligent activity claim nor an

‘intentional or inadvertent state of being,’ the definition of a ‘condition.’” In

Abutahoun, the supreme court stated: “We can only conclude that the Legislature

intended for Chapter 95 to apply to all negligence claims that arise from either a

premises defect or the negligent activity of a property owner or its employees by

virtue of the ‘condition or use’ language in section 95.002(2).” Id. (emphasis

added). We interpret this language as being broad enough to encompass all of the

Rawsons’ negligence claims, including their claim that Oxea failed to provide

Rawson with sufficient information to discover the premises defect and their claim

that Oxea misrepresented the condition of the property. See id.; see also

Oiltanking Houston, L.P. v. Delgado, No. 14–14–00158–CV, 2016 WL 4145997,

at *5 (Tex. App.—Houston [14th Dist.] Aug. 4, 2016, pet. filed) (holding that

18
Abutahoun’s language “sweeps broadly enough to encompass all flavors of

negligence,” including a claim for negligent undertaking).2

We hold Oxea conclusively established that the Rawsons’ claims arose from

a condition or use for purposes of Chapter 95.

2. Same improvement

The Supreme Court of Texas recently held that “Chapter 95 only applies

when the injury results from a condition or use of the same improvement on which

the contractor (or its employee) is working when the injury occurs.” Ineos, 2016

WL 3382144, at *7. The Rawsons contend that Chapter 95 does not apply to their

claims because Oxea failed to prove that Rawson’s injuries arose from a condition

or use of the “same improvement” on which he was working when he was injured.

The Rawsons point out that Rawson was replacing an insulator when he was

injured and that he was not injured by an insulator. In its motion for summary

judgment, Oxea asserted that the “improvement” to real property on which Rawson

was working was not the insulators he was replacing, rather it was the electrical

system of the substation.

2
We also note that, in their response to Oxea’s motion for summary judgment, the
Rawsons represented that their negligence claims “encompass a negligent activity,
negligent undertaking and premises liability theory.” Chapter 95 has been held to
apply to such claims. See Abutahoun v. Dow Chemical Co., 463 S.W.3d 42, 50
(Tex. 2015); Oiltanking Houston, L.P. v. Delgado, No. 14-14-00158-CV, 2016
WL 4145997, at *5 (Tex. App.—Houston [14th Dist.] Aug. 4, 2016, pet. filed).

19
 Oxea’s position is supported by Ineos. There, the supreme court adopted a

“broad” definition of the term “improvement,” which for purposes of Chapter 95,

includes “all additions to the freehold except for trade fixtures that can be removed

without injury to the property.” Id. at *8 (citing Abutahoun, 463 S.W.3d at 49).

In Ineos, the plaintiff, Elgrem, was replacing a valve on a furnace when a

valve near another furnace, several hundred feet away, exploded, injuring him. See

id. at *1, 8. Elgrem argued that “each furnace in the plant was a separate

‘improvement’ even though all of the furnaces were connected.” Id. at *8. The

supreme court disagreed with Elgrem, reasoning that the evidence showed that

“[t]he valves and furnaces, though perhaps ‘separate’ in a most technical sense,

were all part of a single processing system within a single plant on Ineos’

property.” Id. The court held that “the evidence conclusively establishe[d] that the

entire system was a single ‘improvement’ under Chapter 95.” Id.

Applying the analysis in Ineos, the summary-judgment record shows that the

improvement on which Rawson was working was the electrical substation. In his

affidavit, offered in support of Oxea’s motion for summary judgment, Kocurek

testified as follows with regard to the substation:

3. . . . The electrical transformers and the supporting steel beams for
the substructure at the substation are attached to the ground through
concrete foundations.

....

20
 7. The electrical lines are attached to the steel I-beams that make up
the distribution side structure of the substation. Insulators are used to
hold the bare metal electrical lines in place and to insulate them from
the steel I-beams. The bare metal electrical lines ore also sometimes
referred to as a “bus bar” or as a “bus.”

....

13. Transformer No. 1 supplied power to the plant through overhead
electrical lines. These overhead electrical lines were attached to
electrical busses located in the superstructure of the distribution side
of the substation. There were two sets of lines that ran out from the
distribution side of the substation over into the main Oxea plant. . . . .

Applying the broad definition of “improvement” adopted by Ineos, the

summary-judgment record conclusively shows that the electrical substation was a

single improvement under Chapter 95. See id. The electrical lines, the bus bars,

and the insulators were all vital, integrated components of that single improvement

and were not separate, discrete improvements. 3

3. Repairing the improvement

The Rawsons further assert that Oxea failed to show that Rawson was

constructing, repairing, renovating, or modifying an improvement, as required for

Chapter 95 to apply to their claims. Instead, the Rawsons contend that Rawson

3
On appeal, the Rawsons also assert, “Rawson’s injuries also arose from the
dangerous backfeed condition created by Oxea. Backfeed likewise is not a
condition or use of an ‘improvement to real property.’” They aver, “Electricity is
a subtle, invisible, and mysterious force,” not an improvement to real property. As
discussed infra, Oxea conclusively showed that the substation, housing the
electrical system, was a single improvement to real property. The electricity
flowing through the improvement did not exist in an independent state at the time
of Rawson’s injury and was not a separate “improvement.” See Ineos USA, LLC
v. Elmgren, No. 14–0507, 2016 WL 3382144, at *8 (Tex. June 17, 2016).

21
was at the substation “to replace insulators.” However, as discussed, the

“improvement” on which Rawson was working was the electrical substation; the

insulators were only a component of that improvement.

In his summary-judgment affidavit, Kocurek explained that “[i]nsulators are

used to hold the bare metal electrical lines [the busses] in place and to insulate

them from the steel I-beams” of the substation that run to the ground. With regard

to what caused the damage to the substation, Kocurek testified:

8. [A] raccoon entered the steel substructure on the distribution side of
the substation and caused a ground fault (meaning that the raccoon
contacted an energized electrical bus while on [a] live metal beam,
thereby causing, a short circuit when the electricity flowed through its
body to the steel beam). This ground fault damaged two insulators
and cut off power to a portion of the plant.

9. Once the insulators are damaged, the substation must be repaired by
replacing the insulators so that when turned back on the power will
not ground out to the steel beams. If the insulators were not replaced,
it could result in a severe electrical fault and cause severe damage to
the substation. We, therefore, could not operate our No. 1 transformer
without these repairs being conducted.

Chapter 95 does not define the term “repairs.” However, one court, adopting

a dictionary definition, has defined repair, for Chapter 95 purposes, to mean “to

restore to a good or sound condition after decay or damage; mend; . . . to restore or

renew by any process of making good, strengthening, etc. . . .” Montoya v.

Nichirin-Flex U.S.A., Inc., 417 S.W.3d 507, 512 (Tex. App.—El Paso 2013, no

pet.) (citing Webster’s New Universal Unabridged Dictionary 1632 (2003)).

22
 Kocurek’s affidavit testimony shows that the substation could not be fully

operational without replacing the damaged insulators. It is not in dispute that

Rawson was replacing the damaged insulators when he was injured. And, as

discussed, the insulators were a component of the substation, which was the

“improvement” for purposes of Chapter 95. Thus, when the insulators were

damaged, the substation itself was damaged, and replacing the insulators served “to

restore [the substation] to a good or sound condition after [it was] damage[d].” See

id. In other words, when he replaced the insulators, Rawson was repairing the

improvement for purposes of Chapter 95.

We hold that Oxea conclusively proved that Chapter 95 applies to the

Rawsons’ claims.4 Next, we examine the summary-judgment record to determine

if Oxea disproved as a matter of law the application of Section 95.003’s exception

to Chapter 95’s liability protections or whether a genuine issue of material fact

exists regarding the liability exception’s application.

4
On appeal, the Rawsons also assert that the legislative history of Chapter 95 does
not support its applicability to the Rawsons’ claims. However, the Rawsons do
not direct us to where they raised this argument in the trial court, and it cannot be
raised for the first time on appeal to defeat summary judgment. See McConnell v.
Southside Indep. Sch. Dist., 858 S.W.2d 337, 341 (Tex. 1993) (“[I]ssues a non-
movant contends avoid the movant’s entitlement to summary judgment must be
expressly presented by written answer to the motion or by other written response
to the motion and are not expressly presented by mere reference to summary
judgment evidence.”).

23
D. Actual Knowledge

On appeal, the Rawsons contend that they raised a fact issue as to whether

Oxea had “actual knowledge” of the danger or condition that resulted in the injury.

TEX. CIV. PRAC. & REM. CODE § 95.003(2) (providing that property owner is not

liable “unless . . . the property owner had actual knowledge of the danger or

condition resulting in the personal injury . . . and failed to adequately warn”).

“Actual knowledge requires knowledge that the dangerous condition existed at the

time of the accident[.]” City of Corsicana v. Stewart, 249 S.W.3d 412, 414–15

(Tex. 2008). Actual knowledge of a dangerous condition is what a person actually

knows, as distinguished from constructive or imputed knowledge, or what a

reasonably prudent person should have known or should have foreseen. Tex. S.

Univ. v. Gilford, 277 S.W.3d 65, 70 (Tex. App.—Houston [1st Dist.] 2009, pet.

denied); see also Kelly v. LIN Television of Tex., L.P., 27 S.W.3d 564, 572 (Tex.

App.—Eastland 2000, pet. denied) (holding that evidence of negligent failure to

inspect for stress fractures and metal fatigue does not show actual knowledge of

danger of tower collapse due to stress fractures). As we have recognized,

“[S]ection 95.003(2) elevated the alternative, common law, ‘should have known’

test of the premises owner’s knowledge of a dangerous condition to an ‘actual

knowledge’ requirement.” Phillips v. Dow Chem. Co., 186 S.W.3d 121, 133 (Tex.

App.—Houston [1st Dist.] 2005, no pet.). Circumstantial evidence establishes

24
actual knowledge only when it ‘either directly or by reasonable inference’ supports

that conclusion.” Stewart, 249 S.W.3d at 415 (quoting State v. Gonzalez, 82

S.W.3d 322, 330 (Tex. 2002)).

In its summary-judgment motion, Oxea asserted that, at the time of the

injury, it lacked actual knowledge of the danger or condition of backfeeding of

power from the plant up the line to the substation where Rawson was working.

Among its summary-judgment evidence, Oxea offered Kocurek’s affidavit. In

addition to describing the procedure that was followed to switch the power and

isolate Rawson’s work area, Kocurek also provided the following relevant

testimony in his affidavit:

16. I had never been involved in a situation before where we had to
isolate the No. 1 transformer for electrical repairs inside of the
substation.

....

18. Inside of the plant, we had some pole top switches that were
normally in a closed position, which would allow power to flow
through them into the plant from the substation. These pole top
switches were located some distance from the remote electrical
substation that provided power to the plant. The two pole top
switches on the poles for lines 8660 and 940 could be opened if we
ever needed to perform preventive maintenance in certain areas inside
of the plant. During the 37 year period that I worked at the plant
before Mr. Rawson’s accident, I’ve only had to open the switches on a
couple of occasions. Those occasions involved preventive
maintenance work inside of the plant so it was desirable to cut off all
power coming from Transformer No. 1 into certain areas of the
Oxea/Celanese plant.

25
 ....

28. Since 2003 when we became owners of the distribution side of the
substation, we have never had to run the entire plant off of
Transformer No. 2 alone. Therefore, I did not realize power was
going to be able to come back out and run into the part of the
substation where Transformer No. 1 was located.

29. It wasn’t until sometime after the accident had occurred that I
realized that backfeed had allowed some of the bus in the Transformer
No. 1 side of the substation structure to remain energized once we had
finished our switching procedures earlier that morning some hours
before Mr. Rawson arrived to perform the repair work at the
substation.

30. At the time Mr. Rawson began his repair job in the substation, I
did not know that there were any energized lines in the area where he
would be performing his work.

Oxea also offered Kocurek’s deposition testimony in support of its

summary-judgment motion. At the beginning of the deposition, on page 7,

Rawsons’ attorney asked Kocurek: “You knew that there was a potential of

backfeed didn’t you?” Kocurek replied, “No. sir, I did not.” A few questions later

the attorney asked: “You knew that the backfeed condition existed at that plant,

didn’t you?” Kocurek responded, “No. sir.” Shortly after this, on page 10,

Kocurek was then asked: “[Y]ou knew the backfeed condition existed, didn’t

you?” Kocurek answered, “[N]ot that day, no sir.”

In addition, Oxea pointed to Rawson’s deposition testimony in which he

stated that he had tested the area where he would be working and had determined

that the area was not energized. Kocurek testified that he had believed on that day

26
the area was not energized. When asked, “So, as far as you knew and as far as he

knew, he was working in an unenergized area?” Kocurek said, “That’s correct.”

Kocurek also testified that it was after Rawson was injured that he realized

that the work area had become energized by a backfeeding of power from the plant

to the substation. This was also when Kocurek realized that the pole top switches

should have been opened to prevent the backfeeding of power. In his affidavit,

Kocurek testified,

23. After the accident and after observing the bus that Mr. Rawson
had touched, we were able to trace the overhead line back into the
plant. We determined that, evidently, power had come back out of the
plant going in the wrong direction (not the normal direction) and was
coming back into the substation being fed by the power from
Transformer No. 2.

....

25. Since the pole top switches for Lines 8660 and 940 are always in
the closed and locked position, we then realized after the accident that
is . . . how power was able to flow back out of the plant and into the
power lines that terminated at the Transformer No. 1 side of the
substation. This was a condition that normally would not exist at the
plant/substation.

In their response to Oxea’s motion for summary judgment, the Rawsons

asserted, “The evidence shows that Kocurek, and other Oxea representatives, knew

about backfeed, knew of its danger, [and] knew how to prevent it.” On appeal, the

Rawsons point to portions of Kocurek’s deposition in which he testified that he had

been aware of the potential for the “backfeed condition” to occur at the plant, that

27
he had used the pole top switches to prevent backfeed in the past, and that he had

forgotten to open the pole top switches on the day of the accident. Among the

evidence cited by the Rawsons is the following exchange between their attorney

and Kocurek found on page 43 of Kocurek’s deposition:

Q. You’ve already told us you were aware there was this . . . backfeed
condition, right?

A. Yes.

The Rawsons also cite the following exchange from page 94 of Kocurek’s

deposition:

Q. You would say to me “[] I had knowledge of the backfeed
condition. I had knowledge that those switches should be opened; I
just forgot about it, man, because we rarely do that,” correct?

A. That’s correct.

Reviewing it in the light most favorable to them—and in isolation—the

evidence cited by the Rawsons arguably raises a fact question regarding whether

Oxea had actual knowledge, at the time of Rawson’s injury, that a backfeed of

power could potentially occur. However, when reviewing a summary judgment,

“[we] must consider whether reasonable and fair-minded jurors could differ in their

conclusions in light of all the evidence presented.” Mayes, 236 S.W.3d at 755

(emphasis added). We are to review the entire record and, at times, consider

contrary evidence. Am. Dream Team, Inc. v. Citizens State Bank, 481 S.W.3d 725,

28
738 (Tex. App.—Tyler 2015, pet. denied) (citing City of Keller, 168 S.W.3d at

811–12).

Kocurek testified that he was aware of the backfeed condition only after he

had indicated three times, at the beginning of his deposition, that he was not aware

of a potential for backfeeding. When Kocurek stated for the third time, on page 10

of deposition, that he was not aware of a potential for backfeed on the day of the

accident, the Rawsons’ attorney said, “I’m not asking about that day. Whether you

forgot about it or whatnot, you knew there was a potential of backfeed because

you’ve used those switches before, haven’t you?” (Emphasis added.) Kocurek

responded, “That’s correct.” In other words, the Rawsons’ attorney asked Kocurek

to confirm that he had knowledge in the past about potential backfeeding under the

circumstances in which he had used the pole top switches to prevent backfeeding.

Thereafter, Kocurek’s answers to the questions regarding his knowledge about

backfeeding were being asked and answered within this framework.

To provide an understanding of the context in which he had used the pole

top switches, Kocurek explained as follows in his affidavit:

During the 37 year period that I worked at the plant before Mr.
Rawson’s accident, I’ve only had to open the switches on a couple of
occasions. Those occasions involved preventive maintenance work
inside of the plant so it was desirable to cut off all power coming from
Transformer No. 1 into certain areas of the Oxea/Celanese plant.

29
 Thus, when Kocurek testified that he had used the pole top switches to

prevent potential backfeeding, it was within the context of conducting preventive

maintenance inside the plant. It was not within the context of isolating a portion of

the substation for repairs to be done on the power system nor was it in the context

of switching power to run the whole plant from Transformer Two. This was

confirmed by Kocurek in his affidavit:

16. I had never been involved in a situation before where we had to
isolate the No. 1 transformer for electrical repairs inside of the
substation.

....

28. Since 2003 when we became owners of the distribution side of the
substation, we have never had to run the entire plant off of
Transformer No. 2 alone. Therefore, I did not realize power was
going to be able to come back out and run into the part of the
substation where Transformer No. 1 was located.

Whether Kocurek, based on his limited past experiences of using the pole

top switches as part of a different procedure, should have extrapolated that

backfeeding might occur in the context of the power switching procedure involved

here is not at issue. What is at issue is whether Kocurek had actual knowledge of

the danger of backfeeding at the time of the accident. While it might support a

reasonable inference that Kocurek should have known about the potential for

backfeeding, the summary-judgment evidence, when considered altogether, does

not support a reasonable inference that Oxea had actual knowledge of the danger of

30
backfeeding when the accident occurred, even when viewed in the light most

favorable to the Rawsons.

Lastly, the Rawsons point out that, even though Kocurek denies mentioning

backfeeding on the day of the accident, Rawson testified that Kocurek assured him

there was no danger of backfeeding. The Rawsons assert that this supports an

actual-knowledge inference because it shows that backfeeding was a “concern”

that day. In contrast, Oxea contends that this evidence further supports its position

that Kocurek did not have actual knowledge of the potential for backfeeding at the

time of the accident. We find that Rawson’s claim regarding Kocurek’s assurance

could give rise to either inference, neither more probable than the other. See

Lozano v. Lozano, 52 S.W.3d 141, 148 (Tex. 2001) (“The equal inference rule

provides that a jury may not reasonably infer an ultimate fact from meager

circumstantial evidence which could give rise to any number of inferences, none

more probable than another.”).

We conclude that Oxea met its summary-judgment burden to conclusively

show that Chapter 95 applies to the Rawsons’ claims. See TEX. CIV. PRAC. & REM.

CODE ANN. § 95.002. Oxea also disproved the actual-knowledge element of the

exception to Chapter 95’s liability protection as a matter of law. See id. § 95.003.

We further conclude that the Rawsons failed to offer sufficient evidence to raise a

31
genuine issue of material fact on these issues. We hold that the trial court properly

granted summary judgment on Henry’s Rawson’s claims.

We overrule the Rawsons’ first and second issues.5

Loss-of-Consortium Claim

In their seventh issue, the Rawsons assert that the trial court erred when it

granted summary judgment on Susan Rawson’s loss-of-consortium claim. We

have determined that the trial court correctly granted summary judgment on Henry

Rawson’s claims under Chapter 95. Because her claim is derivative of her

husband’s claim, the trial court also correctly granted summary judgment on

Susan’s loss-of-consortium claim. See Reed Tool Co. v. Copelin, 610 S.W.2d 736,

738–39 (Tex. 1980) (holding tortfeasor’s liability for husband’s physical injuries

must be established as prerequisite to recovery of derivative claims such as wife’s

loss-of-consortium claim).

We overrule the Rawsons’ seventh issue.

5
Because of our disposition of these issues, we need not reach the Rawsons’
remaining two issues, challenging the summary judgment.

32
 Conclusion

We affirm the judgment of the trial court.

Laura Carter Higley
Justice

Panel consists of Chief Justice Radack and Justices Higley and Huddle.

33