Understanding Chapter 95 – Does It Apply to My Case?

Attorneys at Morrow & Sheppard LLP have worked with many injured parties that have placed in harm’s way.  Occasionally, we get a call from a worker who has been injured by a falling object or exploding equipment while working on the job.

Due to the laws in Texas (and most other states) injured workers covered by a Workers’ Compensation insurance policy often cannot sue their employers directly for their negligence (see our blog on Workers’ Compensation).  In recent years, property owners have been making arguments that they cannot be sued by contractors and subcontractors injured on the job because of Chapter 95 of the Texas Civil Practice and Remedies Code (“Chapter 95”).

When certain conditions are met, Chapter 95 is a statute that allows property owners to escape liability from personal injury suits brought by employees of contractors and subcontractors against property owners.  Chapter 95 is a statute that alters the common law and imposes “more onerous evidence requirements to establish entitlement to recovery” in negligence claims.  Lopez v. Ensign U.S. Southern Drilling LLC, 524 S.W.3d 836, 842 (Tex. App.—Houston [14th Dist.] 2017, no pet.).  The property owner bears the “burden to establish Chapter 95’s applicability.”  Lopez v. Ensign U.S. Southern Drilling LLC, 524 S.W.3d 836, 842 (Tex. App.—Houston [14th Dist.] 2017, no pet.)

The Texas Supreme Court Expressly Limited the Applicability of Chapter 95 to Property Owners

“Chapter 95 applies only to a claim against a property owner for personal injury to an employee of a contractor or subcontractor…”  Lopez v. Ensign U.S. Southern Drilling LLC, 524 S.W.3d 836, 842-843 (Tex. App.—Houston [14th Dist.] 2017, no pet.)(emphasis added).

Property ownership does not extend to agents of a property owner.  In 2016, the Texas Supreme Court ruled that Chapter 95 applies only to actual owners, not “agents” of owners of real property, and the Texas Supreme Court overruled any cases holding otherwise.  See Ineos USA LLC v. Elmgren, 505 S.W.3d 555, 565 (Tex. 2016).  The Ineos court held:

Chapter 95’s definition of “property owner” contains no language including agents who act on behalf of or hold themselves out as the property owner… In the absence of such language, we must conclude that Chapter 95 does not protect a property owner’s agents, and we disapprove of those decisions holding otherwise.

Id. at 565 (emphasis added).

Chapter 95 is Further Limited to Injuries that Resulted from The Condition or Use of an Improvement to Real Property

The property owner is “required to show…the alleged injury arose from a condition or use of an improvement to real property, which the contractor’s employee was constructing, repairing, renovating, or modifying when the injury occurred” in order for Chapter 95 to apply.  Lopez v. Ensign U.S. Southern Drilling LLC, 524 S.W.3d 836, 842-843 (Tex. App.—Houston [14th Dist.] 2017, no pet.); see also Ineos USA LLC v. Elmgren, 505 S.W.3d 555, 567 (Tex. 2016) (“The Elmgrens contend, and we agree, 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.”).

Improvements to real property are fixtures that are permanently attached to real property and which cannot be removed without injury to the property.  Sonnier v. Chishold-Ryder Co. Inc., 909 S.W.2d 475, 479 (Tex. 1995).  Property that is designed to be unattached and/or moved to another location and which is not permanently attached does not meet the definition of an improvement to real property.  Lopez v. Ensign U.S. Southern Drilling LLC, 524 S.W.3d 836, 844-845 (Tex. App.—Houston [14th Dist.] 2017, no pet.) (mobile drilling rig attached to oil well was not improvement to real property under Chapter 95).

Retention of Control and Actual Knowledge of the Danger or Condition Causing Injury and Death Can Render Chapter 95 Inapplicable

Chapter 95 does not apply if (a) 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 (b) 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.  See Tex. Civ. Prac. & Rem. 95.003.

If you are injured in an accident at work due a dangerous condition on somebody else’s property, contact a work injury attorney at Morrow & Sheppard LLP for a free, confidential consultation to evaluate your legal status and avenues for recovery.