Torres v. Pasadena Refining Systems, Inc., No. 01-18-00638-CV, __ S.W.3d __, 2022 WL 17684333 (Tex. App.—Houston [1st Dist.] Dec. 15, 2022, no pet. h.) (en banc)

This en banc opinion and the panel opinion are a fascinating read for any serious students of the Restatement (Second) of Torts and Texas tort law.

Although the en banc opinion withdraws and vacates the panel opinion, all the majority and dissenting opinions involved demonstrate how there are still disagreements about an area of law that has already resulted in a lot of prior case law.

The en banc opinion has produced two dissenting opinions. The panel opinion itself was a split decision and featured a vigorous dissent. See e.g. Torres v. Pasadena Refining Sys., Inc., No. 01-18-00638-CV, 2022 WL 1467374 (Tex. App.—Houston [1st Dist.] May 10, 2022).

A personal injury claimant, Michael Torres, sued Pasadena Refining Systems, Inc. (“PRSI”) and National Plant Services, LLC (“NPS”).

PRSI retained 3-J Ryan, Inc. (“Ryan”) as an independent contractor to perform turnaround work at its refinery. In turn, Ryan hired NPS to build the scaffold needed for the work.

Torres was an employee of Ryan—meaning that neither PRSI nor NPS owed him any duties under the employer-employee relationship. Torres slipped and fell while he was on the scaffold attempting to latch his safety lanyard. Torres alleged that, among other things, the scaffold was dangerous because it lacked the proper fall protection—either a self-retracting lifeline or a ladder cage.

The trial court granted summary judgment to both PRSI and NPS on the basis that there was no duty owed to Torres. The panel issued a split decision. The panel majority reversed summary judgment as to both PRSI and NPS. The en banc opinion affirmed summary judgment in favor of PRSI, but reversed summary judgment in favor of NPS.

The en banc opinion has a comprehensive summary of the current state of the law regarding the duty owed by a premises owner or general contractor when a dangerous condition arises from the work of an independent contractor.

The scope of this duty has been explored at length by the Texas Supreme Court starting in Redinger v. Living, Inc., 689 S.W.2d 415 (Tex. 1985), and in many subsequent decisions. See, e.g., Koch Ref. Co. v. Chapa, 11 S.W.3d 153 (Tex. 1999); Lee Lewis Constr., Inc. v. Harrison, 70 S.W.3d 778 (Tex. 2001); Dow Chem. Co. v. Bright, 89 S.W.3d 602 (Tex. 2002); JLB Builders, L.L.C. v. Hernandez, 622 S.W.3d 860 (Tex. 2021).

The basic principle is found in Restatement (Second) of Torts § 414:

One who entrusts work to an independent contractor, but who retains the control of any part of the work, is subject to liability for physical harm to others for whose safety the employer owes a duty to exercise reasonable care, which is caused by his failure to exercise his control with reasonable care.
Restatement (Second) of Torts § 414.

As to PRSI, the en banc court held that there was no evidence of retained control or actual control.

Examining the contract between PRSI and Ryan, the en banc court found that none of the provisions allowed the kind of control that would give rise to a duty. At most, the contract gave PRSI a right to inspect the worksite and the right to stop work. This was not enough. In reaching this conclusion, the en banc court found no right to control in the following provision:

Correction of Deficiencies. When . . . PRSI notifies [Ryan], either verbally or in writing, that [Ryan] is not complying with a safety and health requirement either set forth in this Contract or incorporated by reference, [Ryan] shall correct the deficiency immediately.

2022 WL 17684333, at *9 (emphasis in original). The panel majority had found this provision dispositive in holding that PRSI retained a right to control. The en banc court disagreed.

Turning to actual control, the en banc court found no evidence of control actually being exercised on the worksite. The court searched the record for evidence that PRSI had prior knowledge of a dangerous condition with respect to the safety of the scaffold or that PRSI specifically approved a dangerous act. It found none.

As to NPS, both the en banc and panel majority agreed that there was a duty based on actual control. NPS built and maintained the scaffold, inspected the scaffold daily, and would assign the appropriate safety tag for the scaffold indicating whether it could be used.

Thus, the en banc court affirmed the grant of summary judgment in favor of PRSI, but reversed the grant of summary judgment in favor of NPS.

City of Houston v. McGriff, No. 01-21-00487-CV, __ S.W.3d __, 2022 WL 17684046 (Tex. App.—Houston [1st Dist.] Dec. 15, 2022, no pet. h.)

In this interlocutory appeal, the City of Houston appealed the denial of its combined plea to the jurisdiction and summary judgment motion asserting governmental immunity. The court of appeals affirmed the denial.

The opinion stands out for its discussion of the “sudden emergency” defense—a unique defense that is not frequently litigated.

Among other things, the Texas Tort Claims Act (“TTCA”) waives immunity for personal injuries proximately caused by the negligence of a governmental employee acting in the scope of his employment if the injuries arise from the operation or use of a motor-driven vehicle and if the governmental employee would be personally liable to the plaintiff under Texas law.

In this case, the plaintiff was injured while driving a bus when a City employee driving a freightliner and towing a trailer veered into the plaintiff’s lane and crashed into the bus.

Thus, under ordinary TTCA principles, governmental immunity should have been waived. The City employee was acting in the scope of his employment, the injuries arose from the operation or use of a motor-driven vehicle, and the employee was likely liable to the plaintiff under Texas law.

But the City employee claimed that his actions were necessitated by the reckless driving of a third party who fled the scene.

Thus, the City argued that the sudden emergency defense applied, and thereby prevented the plaintiff from establishing breach of any negligence duty. The sudden emergency defense is an inferential rebuttal defense, and like any inferential rebuttal, it operates to rebut an essential element of the plaintiff’s case.

The sudden emergency defense applies when (1) an emergency situation arises suddenly and unexpectedly, (2) the emergency situation was not proximately caused by the negligent act or omission of the person whose conduct is under inquiry, and (3) after the emergency situation arose that to a reasonable person would have required immediate action without time for deliberation, the person acted as a person of ordinary prudence would have acted under the same or similar circumstances.

The City as the party relying on the inferential rebuttal had the burden to establish the defense as a matter of law.

But the court of appeals found that the evidence did not conclusively establish this defense. Specifically, the court found that the evidence did not conclusively establish that the sudden emergency was not proximately caused by the City employee’s negligence. As a result, the trial court was correct in denying the plea to the jurisdiction and the motion for summary judgment.