NUMBER 13-17-00446-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
HOMER HERNANDEZ, Appellant,
v.
DRISCOLL CHILDREN’S
HOSPITAL, Appellee.
On appeal from the 347th District Court
of Nueces County, Texas.
MEMORANDUM OPINION
Before Chief Justice Contreras and Justices Benavides and Longoria
Memorandum Opinion by Justice Benavides
By one issue, appellant Homer Hernandez appeals the trial court’s summary
judgment in favor of appellee, Driscoll Children’s Hospital (the Hospital). We affirm.
I. BACKGROUND
The Hospital hired J.R. Electric, a contractor, to perform the work necessary to
install an MRI scanner. Hernandez, an employee of J.R. Electric, was electrocuted and
injured while working on an electrical breaker box at the Hospital. Hernandez sued the
Hospital for negligence, gross negligence, and premises liability.
The Hospital filed a motion for traditional summary judgment claiming it was not
liable for Hernandez’s injury pursuant to § 95.003 of the Texas Civil Practices and
Remedies Code. See TEX. CIV. PRAC. & REM. CODE ANN. § 95.003. Hernandez filed a
response and two supplemental responses.
The trial court denied the Hospital’s motion for summary judgment, and the
Hospital filed a motion for reconsideration. In its motion for reconsideration, the Hospital
argued that Hernandez did not (1) respond to its Chapter 95 argument, (2) submit any
evidence or argue that the Hospital retained any control of the work performed by a
contractor, or (3) argue or submit any evidence that the Hospital had actual knowledge of
the alleged dangerous condition. See id. Hernandez filed a response and supplemental
response to the motion for reconsideration generally stating that his exhibits showed that
“the evidence of [the Hospital’s] control is overwhelming and conclusive.” After holding a
hearing, the trial court granted the Hospital’s motion for reconsideration and motion for
summary judgment. This appeal followed. 1
1 In his summary of the argument section of his brief, Hernandez states the following:
Appellant further contends that, as a preliminary and perhaps, a dispositive matter,
Judge Ables Assignment-procured by violations of the Texas Rules of Civil Procedure and
Tex. Gov’t Code statutes governing assignments and objections thereto, all render Judge
Ables disqualified, ab initio, and thus, render all action taken by Judge Ables, including his
Order granting Defendant Driscoll Hospital's Motion for Summary Judgment void.
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II. STANDARD OF REVIEW
In a traditional motion for summary judgment, the movant has the burden of
showing that no genuine issue of material fact exists and that it is entitled to judgment as
a matter of law. TEX. R. CIV. P. 166a; Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548
(Tex. 1985). If the movant’s motion and summary judgment proof facially establish a right
to judgment as a matter of law, the burden shifts to the non-movant to raise a material
fact issue sufficient to defeat summary judgment. Centeq Realty, Inc. v. Siegler, 899
S.W.2d 195, 197 (Tex. 1995). A defendant seeking a traditional motion for summary
judgment must either conclusively disprove at least one element of each of the plaintiff’s
causes of action or plead and conclusively establish each essential element of an
affirmative defense. Cathey v. Booth, 900 S.W.2d 339, 341 (Tex. 1995) (per curiam). We
review a summary judgment de novo to determine whether a party’s right to prevail is
established as a matter of law. Dickey v. Club Corp. of Am., 12 S.W.3d 172, 175 (Tex.
App.—Dallas 2000, pet. denied).
In our de novo review of a trial court’s summary judgment, we consider all the
evidence in the light most favorable to the nonmovant, crediting evidence favorable to the
nonmovant if reasonable jurors could and disregarding contrary evidence unless
reasonable jurors could not. Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex.
To the extent that Hernandez argues that the Honorable Stephan B. Ables was without authority to
hear the case, we disagree. The Honorable Missy Medary, the Presiding Judge of the Fifth Administrative
Judicial Region, signed an order of assignment assigning the case to Judge Ables on March 12, 2017, and
on April 10, 2017, she held a hearing wherein she advised all parties of the assignment of the case to Judge
Ables. Accordingly, the record reflects that Judge Medary provided actual notice to Hernandez of the
assignment of the case to Judge Ables. See TEX. GOV’T CODE ANN. § 74.053(c). In addition, although
Hernandez filed an objection to the assignment of the case to Judge Ables on May 8, 2017, it was untimely
as it was filed more than seven days after Hernandez received notice of the assignment. See id. (providing
that a party has seven days to object to assignment of judge).
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2006). The evidence raises a genuine issue of fact if reasonable and fair-minded jurors
could differ in their conclusions in light of all of the summary judgment evidence.
Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, 755–56 (Tex. 2007).
III. CHAPTER 95
“Chapter 95 enunciates a general rule of non-liability for property owners when a
contractor or subcontractor or an employee of a contractor or subcontractor is injured
while performing repairs or construction.” Rosa v. Mestena Operating, LLC, 461 S.W.3d
181, 182–87 (Tex. App.—San Antonio 2014, pet. denied). Under Chapter 95, the
property owner is not liable for a plaintiff’s injuries if the claim is for personal injury 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” unless the
plaintiff establishes that the property owner (1) exercised or retained some control over
the manner in which the work was performed, other than the right to order the work to
start or stop or to inspect progress or receive reports; and (2) had actual knowledge of
the danger or condition resulting in the personal injury, death, or property damage and
failed to adequately warn the plaintiff of that danger or condition. TEX. CIV. PRAC. & REM.
CODE ANN. § 95.003. The property owner has the initial burden to establish that Chapter
95’s general rule applies to the plaintiff’s claim. Montoya v. Nichirin–Flex U.S.A., Inc.,
417 S.W.3d 507, 511 (Tex. App.—El Paso 2013, no pet.). The burden then shifts to the
plaintiff to establish control and knowledge. See id.
Thus, as applicable here, the Hospital had the initial burden of conclusively
establishing (1) it is a property owner, (2) Hernandez alleged that the Hospital is liable for
Hernandez’s personal injury, (3) Hernandez was an employee of a contractor, and (4)
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Hernandez’s claim arises from a condition or use of an improvement to the Hospital’s
property where J.L. Electric was constructing, repairing, renovating, or modifying the
improvement. See id.; see also TEX. CIV. PRAC. & REM. CODE ANN. § 95.003. Once the
Hospital met its burden, the burden then shifted to Hernandez to establish that the
Hospital (1) exercised or retained some control over the manner in which the work was
performed, other than the right to order the work to start or stop or to inspect progress or
receive reports; and (2) had actual knowledge of the danger or condition resulting in the
personal injury, death, or property damage and failed to adequately warn the plaintiff of
that danger or condition. See Montoya, 417 S.W.3d at 511; see also TEX. CIV. PRAC. &
REM. CODE ANN. § 95.003.
III. DISCUSSION
A. Same Improvement
By his first issue, Hernandez contends that the Hospital did not meet its initial
burden of conclusively establishing that his claim arises from a condition or use of an
improvement to the Hospital’s property where J.L. Electric was constructing, repairing,
renovating, or modifying such improvement. 2 See Montoya, 417 S.W.3d at 511. Citing
Hernandez v. Brinker International, Inc., Hernandez claims that the improvement he was
hired to repair (the MRI machine) is not the complained-of condition (the breaker box)
that caused his injury. See 285 S.W.3d 152, 155 (Tex. App.—Houston [14th Dist.] 2009,
no pet.).
In Brinker, the appellant was hired to fix an air conditioning unit (the improvement),
2 It is undisputed that the Hospital met its initial burden to conclusively establish that (1) it is a
property owner, (2) Hernandez alleges that the Hospital is liable for personal injury, and (3) Hernandez was
an employee of a contractor. Therefore, we need not address those elements. See TEX. R. APP. P. 47.1.
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and while he carried a compressor, either walking to the unit or away from it, the roof
where the unit was located (the condition that caused the injury) collapsed, causing the
appellant’s injury. Id. at 154. The property owner filed a motion for summary judgment
claiming that Chapter 95 barred the appellant’s recovery because the property owner
exercised no control over his work. Id. The trial court granted the summary judgment
motion. Id.
On appeal, the appellant in Brinker argued that Chapter 95 only applied if his claim
arose from the condition or use of the improvement he was repairing (the air conditioning
unit), but because his claim arose from the condition of a different improvement (the roof),
Chapter 95 did not apply. Id. at 155. The property owner conceded the injury resulted
from the use of the roof and not from the condition or use of the air conditioning system;
however, the property owner argued that the entire building was the “improvement,” and
the air conditioning unit was a mere “fixture” to the building. Id. The Houston Court of
Appeals agreed with the appellant and held that the roof and the air conditioning unit were
separate improvements to real property. Id. The Brinker court concluded that Chapter
95 only applies to a claim that involves an injury caused by the same improvement for
which the contractor was hired to repair. Id. at 158. The Texas Supreme Court has since
agreed. Ineos USA, L.L.C. v. Elmgren, 505 S.W.3d 555, 567 (Tex. 2016) (holding 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).
Here, in its motion for summary judgment, the Hospital attached the affidavit of Joe
Martinez, the Hospital’s director of its engineering department, stating that the Hospital
hired J.R. Electric to perform two tasks: (1) install an MRI scanner and (2) “repair and
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modify the electrical system of the [H]ospital to allow for the installation . . . ” of the MRI
scanner (emphasis added). Martinez said, “This work included the installation of new
wiring in a breaker box [permanently] attached to the [H]ospital.” According to Martinez,
the MRI machine could not have been installed without repairing and modifying the
breaker box. Thus, unlike Brinker, where the improvement being repaired (the air
conditioning unit) did not cause the injury, the Hospital’s summary judgment evidence
shows that one of the improvements it hired J.L. Electric to repair (the breaker box)
caused Hernandez’s injury. Accordingly, the summary judgment evidence conclusively
established that Hernandez’s injury resulted from a condition or use of the same
improvement that J.L. Electric was hired to perform when he was injured. See Ineos USA,
505 S.W.3d at 567; Brinker, 285 S.W.3d at 155.
In his response, Hernandez did not present any evidence contradicting the
Hospital’s summary judgment evidence that it hired J.R. Electric in part to install new
wiring in the breaker box, and we find none. See Montoya, 417 S.W.3d at 511; Nichols
v. Smith, 489 S.W.2d 719, 723–24 (Tex.—Fort Worth 1973) aff’d, 507 S.W.2d 518 (Tex.
1974) (providing that once the defendant established its defense as a matter of law by
summary judgment evidence, the defendant is entitled to summary judgment unless the
plaintiff provides legitimate summary judgment evidence showing that a fact issue exists);
see also TEX. R. CIV. P. 166a(c). Thus, considering all the evidence in the light most
favorable to Hernandez, we conclude that the Hospital met its initial burden of establishing
that Chapter 95 applies, and Hernandez did not raise a material fact issue sufficient to
defeat summary judgment on that basis. See Centeq Realty, Inc., 899 S.W.2d at 197.
B. Exceptions to Chapter 95
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Next, Hernandez argues that summary judgment was improper because he
provided evidence which raises a material question of fact regarding whether the Hospital
(1) exercised or retained some control over the manner in which the work was performed,
other than the right to order the work to start or stop or to inspect progress or receive
reports and (2) had actual knowledge of the danger or condition resulting in his personal
injury and failed to adequately warn him of that danger or condition. See TEX. CIV. PRAC.
& REM. CODE ANN. § 95.003.
A plaintiff may prove control by either showing there is a contractual right of control
or the property owner exercised actual control. Ellwood Tex. Forge Corp. v. Jones, 214
S.W.3d 693, 700 (Tex. App.—Houston [14th Dist.] 2007, pet. denied) (citing Dow Chem.
Co. v. Bright, 89 S.W.3d 602, 606 (Tex. 2002); Elliott–Williams Co. v. Diaz, 9 S.W.3d 801,
804 (Tex. 1999); Chi Energy, Inc. v. Urias, 156 S.W.3d 873, 879 (Tex. App.—El Paso
2005, pet. denied)). “The owner, to be liable, must have the right to control the means,
methods, or details of the independent contractor’s work to the extent that the
independent contractor is not entirely free to do the work his own way.” Id. The property
owner must have the right to control the “operative detail of the contractor’s work.” Id.
The property owner must have more than a general right to inspect the progress, receive
reports, or tell the worker to start and stop. Chi Energy, Inc., 156 S.W.3d at 879.
In his summary judgment pleadings, Hernandez did not provide argument
concerning control. Instead, he generally cited his exhibits, which include approximately
100 pages of, among other things, deposition testimony, pictures, and manuals. In fact,
at the motion for summary judgment hearing, Hernandez argued that Chapter 95 does
not apply because this is a common law negligence case. He did not argue or provide
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summary judgment evidence that the Hospital controlled the methods or details of his
work to the extent that he was not entirely free to do the work his own way. 3 Instead,
Hernandez argued that the Hospital controlled the breaker box by changing the lock and
leaving the breaker box on. On appeal, Hernandez states that the Hospital exercised or
retained control of “the lock-out/tag-out,” “the training of all employees of contractors on
lock-out/tag-out procedures,” and the Hospital’s locks, keys, and master keys. However,
he points to no evidence supporting these assertions.
Hernandez does not explain what the lockout/tagout procedures entail, or how the
above-stated allegations relate to whether the Hospital retained some control over the
“operative detail” of his work. However, the summary judgment evidence established that
lockout/tagout procedures are implemented by electricians and mechanics when working
on a breaker box as a safety measure. As Martinez explained at his deposition, per the
safety standards, an electrician will shut off the breaker box, log that he is working on the
breaker box on a tag on a padlock, and then lock the breaker box to ensure his safety. 4
On appeal, Hernandez claims that the Hospital removed the padlock that his
employer (J.L. Electric) placed on the breaker box, then replaced the lock “with [its] own
lock and turned on the electric . . . thereby [e]nsuring a massive electric shock to
Hernandez.” As we understand it, Hernandez complains that the Hospital controlled the
breaker box and caused his injury when it violated its lockout/tagout safety measures
3 We note that at the summary judgment hearing, Hernandez repeatedly stated that there was
summary judgment evidence that the Hospital retained control over his work. However, Hernandez did not
cite any such evidence and continued to argue that Chapter 95 was inapplicable because this case involves
negligence unrelated to Hernandez’s work.
4 Martinez explained that the electrician working on a breaker box puts his name, the date, and the
time when he locks out the breaker box on a tag which is located on a padlock. According to Martinez,
while the padlock is in place, the breaker box cannot be turned on and remains shut off.
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when it replaced J.L. Electric’s lock with its own. However, whether the Hospital acted
negligently does not pertain to whether the Hospital maintained control over Hernandez’s
work. Thus, even assuming, without deciding that the Hospital did what Hernandez
alleges, that evidence does not support a conclusion that the Hospital retained control
over the methods, or details of his work to the extent that he was not entirely free to do
the work his own way as required by Chapter 95. See Ellwood Tex. Forge Corp., 214
S.W.3d at 700.
Martinez stated in his affidavit that
[n]o one from [the Hospital] was assisting or directing the work performed
by J.R. Electric. J.R. Electric maintained control of the electrical work
associated with the installation of the MRI scanner. J.R. Electric, as an
independent contractor, provided all of the labor, tools and equipment
necessary to complete modification of the breaker box associated with the
MRI replacement project. [The] Hospital did not have any control over the
hiring or direction of Mr. Hernandez.
Hernandez has pointed to no evidence, and we find none, controverting Martinez’s
affidavit or supporting a conclusion that the Hospital had the right to control the method,
manner, means, and operative details of his work. Thus, the undisputed evidence
establishes that the Hospital did not maintain any control over Hernandez’s work as a
matter of law. Having examined the summary judgment record de novo, we conclude
that the Hospital conclusively established, as a matter of law, that it neither exercised nor
retained control over the manner in which Hernandez performed his work. See TEX. R.
CIV. P. 166a; Nixon, 690 S.W.2d at 548. Thus, the trial court properly granted summary
judgment in favor of the Hospital. Accordingly, we overrule Hernandez’s sole issue. 5
5 We need not address Hernandez’s argument that he provided evidence raising a question of
material fact that the Hospital had actual knowledge of the danger or condition that caused his injury
because, to show that Chapter 95’s exception applies, Hernandez was also required to raise a material fact
issue regarding whether the Hospital controlled the manner in which the work was performed, and we have
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IV. CONCLUSION
We affirm the trial court’s judgment.
GINA M. BENAVIDES,
Justice
Delivered and filed the
15th day of August, 2019.
concluded that he did not do so. See TEX. CIV. PRAC. & REM. CODE ANN. § 95.003; Centeq Realty, Inc. v.
Siegler, 899 S.W.2d 195, 197 (Tex. 1995); see also TEX. R. APP. P. 47.1.
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