Jeremy Souders v. Exxon Mobil Corporation (No. 01-21-00593-CV; April 1, 2024) arose from an accident at Exxon’s Baytown refinery in which Plaintiff was injured when he became pinned between two 30,000-pound heat exchanger bundles. Plaintiff was employed by an independent contractor retained by Exxon to perform crane and rigging operations. On this occasion, Plaintiff was serving as a rigger in a crew assigned by the contractor to move a heat exchanger bundle from a holding yard to a wash slab for cleaning. Plaintiff was injured when the crane operator began the lift before Plaintiff had exited the area. The load swung toward Plaintiff, pinning him against another bundle and causing serious lower body injuries. Plaintiff sued Exxon for negligence, negligence per se, and gross negligence. A jury awarded $60,000 in damages for past loss of earning capacity, finding Exxon negligent and assigning 30% of the responsibility to Exxon. The jury awarded no other damages, and the trial court rendered judgment on the verdict. Both parties appealed.
In an opinion by Justice Goodman, the court of appeals reversed and rendered a take-nothing judgment in favor of Exxon. Exxon raised three issues on appeal, but the court only considered the dispositive one: that there was no evidence to support to support the trial court’s conclusion that Exxon owed a duty to Plaintiff or the jury’s finding of breach and proximate cause. Generally, the court began, “[u]nder the common law, a property owner does not owe a duty to ensure an independent contractor performs work on the property in a safe manner” (citations omitted). The exception to the rule is “when the owner exercises some control over the work and either knows or should have known of the danger” (citation omitted). Chapter 95, CPRC, modified the common law to require that the property owner both exercise some control and have actual knowledge of the danger or condition resulting in the injury and fail to warn of the danger. § 95.002, CPRC. A plaintiff must therefore prove that the property owner “knows of the specific factors that caused the injury, not just that a potentially dangerous condition or activity existed at the time of the injury.
Here the jury charge asked whether the crane operations in the holding yard posed an unreasonable risk of harm and, if so, did Exxon have actual knowledge of the risk and fail to warn Plaintiff. Exxon argued that Plaintiff offered no evidence that crane operations in the yard posed an unreasonable risk of harm and that Exxon had no actual knowledge of the danger or condition that resulted in the injury (the crane operator moved the load before Plaintiff exited the area). Plaintiff argued that Exxon knew of the danger because it knew that not all contractors and supervisors had been trained on new safety measures and that some contractors operated without complying with those measures. The court held that although Plaintiff had been trained on the new procedures and the rest of the crew had not, there was no evidence that the training gap was the danger that resulted in Plaintiff’s injury. Plaintiff never identified “which part of [the training], if it had been followed, would have prevented his injury.” Instead, “both Exxon’s investigator and [Plaintiff’s] safety expert offered their opinion that if the crew had effectively managed the exclusion zones, appointed a lift director, or completed a lift plan, the accident should not have happened.” This was true under both the old and new training regimes, and there was no dispute that the entire crew had been trained under the older procedures. Additionally, there was no evidnece that lack of training was unreasonably dangerous because “Exxon required independent contractor crane operators and riggers to have national certifications” and “[P]laintiff and his crew were certified to safely perform crane and rigging operations before Exxon chose to implement [the new safety training].” Even so, at most the evidence showed that “Exxon had knowledge of a ‘potentially dangerous’ condition or activity, but not actual knowledge as required” (citation omitted).
Plaintiff alleged further that Exxon knew that the lift in question was a “complex lift” as opposed to a “basic lift.” The court brushed this argument aside, holding that even if the lift were complex (which Plaintiff did not prove), it didn’t make any difference because “there [was] no evidence the complexity of the lift was the ‘danger or condition resulting in’ [Plaintiff’s] injury.” Moreover, Plaintiff offered no evidence that “a complex lift itself is unreasonably dangerous,” and, in any event, Plaintiff’s employer, an independent contractor, arranged the details of the lift, not Exxon. Plaintiff thus failed to carry his burden under Chapter 95.
Justice Kelly concurred in the result but took issue with the relevant precedents’ failure to distinguish between “actual knowledge,” as used in § 95.002, and “actual, subjective knowledge,” as used in Chapter 41 as the standard for an award of punitive damages. he argued that under Texas common law “actual knowledge” includes “implied actual knowledge, which means that a defendant cannot escape liability if its lack of actual knowledge is caused by its own negligent ignorance” (citations omitted). Although most of the precedents cited by Justice Kelly date from the 1960s or earlier, he asserts that the Legislature knew about the common law rule when it enacted Chapter 95 and chose not to use a different term in the statute. In other words, in a Chapter 95 analysis a court should ask “why a premises owner is unaware of a particular hazard; if this persists, premises owners will be able to avoid liability for their negligent acts by remaining negligently or wilfully ignorant.”
In our view, there are at least two problems with Justice Kelly’s analysis. First, it assumes that a property owner “exercises or retains some control over the mannder in which the work is performed” by the independent contractor. If the owner does not (that, after all, is why owners retain independent contractors in the first place), the nuances of “actual knowledge” don’t make any difference anyway. Justice Kelly asserts that if courts properly construed “actual knowledge” to include “implied knowledge” and “negligent ignorance,” everything would be different: discovery, the trial, and the jury charge. But would it? In this case, Exxon had no control and thus no duty. The majority and concurring opinions focused on the second prong of the Chapter 95 test as if they assumed Exxon exercised some control. That doesn’t appear to have been the case here, and we’re a bit mystified as to why the court engaged in the “actual knowledge” analysis if it didn’t have to. Perhaps this has something to do with the jury charge, which Exxon likewise challenged but the court did not reach. In any event, Justice Kelly’s critique appears somewhat irrelevant to this particular case.
Second, Justice Kelly’s analysis seems academic, to say the least, because SCOTX has already resolved the question of “actual knowledge” in a Chapter 95 case. As the majority opinion points out, Chapter 95 is an exception from ordinary negligence and requires a much more specific nexus between the condition or activity that caused the harm and the owner’s actual knowledge of the condition or activity at the time the injury occurred. In this case, Plaintiff never even came close to proving such a nexus. The injury resulted from the crane operator initiating the lift before Plaintiff cleared the area. It had nothing to do with the size of the holding hard or whether the crane operator or other crew members had the most recent training (since their existing training covered the lift in any event). The kind of “implied actual knowledge” or “negligent ignorance” of a potentially dangerous condition advocated by Justice Kelly would simply eviscerate Chapter 95 and make the property owner the guarantor of the independent contractor’s work. There will always be an argument that at some point in an extended chain of causation the property owner might be characterized as “negligently ignorant.” Chapter 95 was intended to provide a bright line rule that would dispose of these types of actions at the summary judgment stage. Justice Kelly’s “remedy” would undermine that purpose altogether.
