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Dec 20, 2023

Chapter 95: “Owning” Recent Applications of a Defense Bar Favorite

By: Andrew Gardner

One of the most useful tools in defending claims on behalf of property owners is Chapter 95 of the Texas Civil Practices and Remedies Code.  Acting as a strong shield to liability for negligence, Chapter 95 affords limitations on a landowner’s duties under the common law.  Given both its usefulness as a bar to recovery and its wide application to many types of negligence claims, it is unsurprising that this area of law has evolved greatly over the years since its enactment in the mid-1990s.  Two 2022 Texas Supreme Court opinions issued by the Court on the same day demonstrate the changing nature of the statute.

In Sandridge Energy, Inc. v. Barfield, 642 S.W.3d 560 (Tex. 2022), a lineman contractor was working to de-energize an energized power line and transformer when he was injured by the energized power line.  A lawsuit followed and the property owner filed a summary judgment based on the application of Chapter 95. 

After some discussion of the legislative history of Chapter 95, the Texas Supreme Court noted that, while a landowner has some duty to warn an invitee of a dangerous condition present on its property “…when an invitee has ‘knowledge and full appreciation of the nature and extent of the danger,’ such that ‘knowledge and appreciation of the danger are considered proved as a matter of law,’ then the landowner has no duty to warn of it.”  With that in mind, a key issue at play in Sandridge was the experience the contractor had at that specific property, and to what extent that contractor knew of any dangerous condition on the property.

The Court noted that the contractor knew the supply line was energized, knew that it posed a danger, and that “…[h]e was in the process of de-energizing an energized circuit at the time he was injured and had done so hundreds of times.”  This knowledge possessed by the contractor “could not be improved by a warning from [the property owner],” and, therefore, the property owner did not fail to adequately warn the contractor.  The court ultimately found that, “…[b]ecause the evidence conclusively establishes that [the lineman] was fully aware of the dangerous condition that caused his injury, the trial court properly granted summary judgment.”  Obviously, this was a favorable finding for the property owner.

In Energen Resources Corp. v. Wallace, 642 S.W.3d 502 (Tex. 2022), the Texas Supreme Court considered the question of whether a negligence claim can arise from the condition or use of an improvement even when negligence elsewhere is alleged to have contributed to the plaintiff’s injuries.  This case involved an explosion at a well site, where contractors were working on a water well near an oil well from which natural gas leaked, causing the explosion. 

The focus of the Court’s analysis was on the fourth element of a Chapter 95 defense relating to negligence and damages that “…arise[] from the condition or use of an improvement to real property where the contractor or subcontractors constructs, repairs, renovates, or modifies the improvement.”  Despite that the natural gas leaked from the nearby oil well into the water well, the Court concluded that Chapter 95 applied, and that the plaintiff “alleged negligence regarding a dangerous condition of the water well in which they were working.” 

Further, the Court concluded that, based on the facts, the property owner did not retain control or actually exercise control over the injury-producing work, and, thus, could not be liable for this reason, too.  Having met the requirements of Chapter 95, the Court held that the property owner was not liable for the damages the plaintiffs sustained in the explosion.  Again, another successful outcome for the property owner.

Chapter 95 remains a strong tool in defending property owners, and cases like Sandridge and Energen only expand on its already strong utility.  Meeting the requirements, asserting this statutory defense, and resolving claims early via a dispositive motion can save your property-owner client both time and money.  Chapter 95 is here to stay.