On Friday the Texas Supreme Court granted review in SandRidge Energy, Inc. v. Barfield (No. 20-0369). On appeal from the El Paso Court of Appeals, the case involves several issues arising under Chapter 95, CPRC, which generally absolves a property owner from liability for an injury to a contractor, subcontractor, or employee of either arising from a condition or use of an improvement to real property where the contractor or subcontractor constructs, repairs, renovates, or modifies an improvement. Chapter 95 does, however, provide the injured contractor a remedy against the owner if the contractor can establish that: (1) the owner exercised or retained some control over the manner of the work performed, other than the rist to order the work to start or stop or to inspect progress or receive reports; and (2) the owner had actual knowledge of the danger or condition resulting in the injury and failed to give adequate warning. The Legislature enacted Chapter 95 as part of the 1995 tort reform package of bills.
Barfield, a lineman employed by an electrical contractor, was severely burned while working on a distribution line owned by SandRidge, resulting in the amputation of both arms. The line provided power to oil and gas wells on a SandRidge lease in Andrews County. Barfield sued SandRidge and SandRidge’s employee electrical engineer (“SandRidge”) who supervised the work alleging that his injuries occurred because SandRidge did not de-energize their lines before electrical work was performed. He further alleged that SandRidge required the contractor to work on and around live energy source in violation of safe work practices and regulatory requirements applicable to both SandRidge and the contractor. Barfield asserted that SandRidge was liable under Chapter 95 because it exercised control over the manner in which the work was performed on its property and that it had actual knowledge of a dangerous condition on the proper and failed to adequately warn.
SandRidge filed both traditional and no-evidence summary judgment motions. It asserted that: (1) SandRidge owed no duty to Barfield because both the contractor and Barfield knew of the condition; (2) even if it owed a duty to Barfield, SandRidge gave adequate warning of the condition; (3) SandRidge had no actual knowledge of any other condition on the property that could have caused Barfield’s injuries; and (4) SandRidge did not exercise or retain control over the manner in which Barfield or the contractor performed the work. The trial court granted SandRidge’s motion for summary judgment. Barfield appealed.
The El Paso Court of Appeals split 2-1 in reversing and remanding the trial court’s grant of summary judgment in favor of SandRidge. On appeal Barfield asserted that SandRidge owed a duty to Barfield based on actual knowledge of the hazardous condition of the energized power line, that it failed to provide adequate warning, and that it exercised “some control” over the manner in which Barfield and the contractor performed the work. Upon evaluation of Barfield’s evidence, which included testimony from SandRidge’s engineer, risk manager, and vice-president of power operations, the majority concluded that it raised a fact issue on whether SandRidge exercised some control over Barfield’s work and whether SandRidge refused the contractor’s request to de-energize the line or otherwise required the contractor to work in close proximity to hot lines without allowing him to isolate or de-energize them in compliance with applicable safety practices.
The court likewise found that SandRidge had actual knowledge of the dangerous condition at the time of the injury. SandRidge basically conceded this point but argued that even though it had actual knowledge, it had no duty to warn because the danger was open and obvious. The majority rejected this argument, holding that §95.003(2) does not incorporate the general common law rule that a property owner need not warn of an open and obvious danger on the premises. It then found that a genuine fact issue existed as to SandRidge’s conduct with respect to the provision of an adequate warning or a safe workplace.The court based this finding on the failure to SandRidge’s employee supervisor to hold a coordinated meeting with the contractor to inform workers of existing hazards and the proper use of protective equipment and implementation of safety practices. As the court of appeals stated, “Barfield’s awareness of the danger is not relevant to the question of whether SandRidge failed to provide an adequate warning of the danger it had actual knowledge of even though Barfield’s own knowledge may otherwise be relevant to his proportionate responsibility, if any, over injuries he claimed.”
In a dissenting opinion, Chief Justice Alley disagreed with the majority on the duty to warn issue. Noting that both the contractor and Barfield knew about the proximity of the hot lines and had worked around them before, Justice Alley would apply SCOTX’s holding in Austin v. Kroger Texas, L.P., 465 S.W.3d 193 (Tex. 2015) that an “employee generally cannot recover against a non-subscribing employer for an injury caused by a premises defect of which the employee is fully aware but that his job duties required him to remedy.” The majority opinion’s reading of Chapter 95, he argues, would require landowners “to mechanically issue warnings about every conceivable hazard governed by Chapter 95, even those that skilled workers or people of ordinary common-sense would already know.” For Justice Alley, this interpretation would produce an absurd or nonsensical result, which the Legislature could not have intended. He further finds the majority’s reliance on the failure of SandRidge’s engineer to conduct a coordinating meeting with the contractor and Barfield does not reflect on anyone’s actual knowledge of the hazard or the existence of an adequate warning, reminding that a “general contractor does not owe a duty to ensure that an independent contractor performs its work in a safe manner” [citations].
SCOTX scheduled oral arguments on January 11.