The Supreme Court of Texas, interpreting Chapter 95 of the Texas Civil Practices & Remedies Code, affirmed that business property owners have broad protections against suits for injuries claimed by contractors, subcontractors or employees of contractors and subcontractors.  In Abutahoun v. The Dow Chemical Company, issued May 8, 2015, the Court held that Chapter 95 provides protections to business property owners whenever “the contractor or subcontractor constructs, repairs, renovates, or modifies” an improvement on the property.

The legislature passed Chapter 95 ten years ago; cases involving Chapter 95 have led to intermediate appellate courts disagreeing as to the extent of its applicability.  In Abutahoun, the Texas Supreme Court made clear that Chapter 95 has broad applicability.

The plaintiffs in Abutahoun were survivors of a mesothelioma decedent, who alleged asbestos exposure while the decedent worked for a contractor at a Dow manufacturing facility.  The plaintiffs alleged that Dow employees, working near the decedent, had created an asbestos cloud that exposed him, and that Dow was negligent in allowing its employees to create such a hazard.  The plaintiffs argued that their claims did not trigger Chapter 95 because the claimed exposure came from Dow’s acts, not from the work of the contractor that employed the decedent.

The Texas Supreme Court disagreed with the plaintiffs and with those lower court opinions that narrowed the scope of Chapter 95.  The Court stated that as long as the party asserting the claim was allegedly injured while the injured party or party’s employer was performing construction, repair, renovation, or modification, then Chapter 95 applies, even if the owner or another contractor actually created the conditions alleged to have caused the injury.  The Court made this determination based on a strict reading of the text of Chapter 95, and despite Chapter 95’s title: “Property Owner’s Liability for Acts of Independent Contractors and Amount of Recovery.”

In Abutahoun, the plaintiffs apparently conceded that if Chapter 95 applied even when the owner created the dangerous condition, they could not prevail.  Thus, this case did not give the Texas Supreme Court the opportunity to interpret other parts of Chapter 95.  Notably, Chapter 95 precludes liability to property owners unless: 1) the owner retains control over the work; 2) the owner had actual knowledge of the danger; and 3) the owner failed to adequately warn.  While lower court opinions discuss these issues, the Texas Supreme Court has not yet given its view of what evidence is needed to allow a jury to determine if the owner retained sufficient control, if the owner had actual knowledge, or if the owner failed to adequately warn.

For a copy of the opinion click here.