A premises liability involving a fatality at a construction site is going back to the Dallas Court of Appeals for reconsideration in light of two recent SCOTX decisions. Weekley Homes, LLC v. John Paniagua; and Hermelinda Maravilla Corona, Jose Camerino Maravilla, Sr., and Margerita Maravilla, Individually, as Personal Representatives of the Estate of Jose Camerino Maravilla, Deceased, and as Next Friend of S.L.M.S., E.H., L.A.S., and J.J.M., Minors(21-0197) arose from the electrocution of two employees of an independent contractor hired by Weekley Homes to do framing and other work on Weekley’s new townhome construction project. While moving a metal scaffolding on a wet driveway, one worker was killed and the other injured by an electric shock, which plaintiffs allege was either caused by lightning or the proximity of the scaffolding to a T-pole that provided electricity to the site. Plaintiffs sued Weekley for negligence, gross negligence, and premises liability.

Weekley moved for summary judgment under Chapter 95, CPRC, which shields a property owner from claims for personal injury, death, or property damage by independent contractors and subcontractors arising from the condition or use of an improvement to real property where the contractor constructs, repairs, renovates, or modifies the improvement (Chapter 95 was a key part of the 1995 tort reform package of legislation). Weekley’s summary judgment motion relief on the plaintiffs’ live petition, which said only that the contractor’s crew “were working” at the driveway and townhome construction, to satisfy the “condition or use of an improvement to real property” prong of the Chapter 95 test (ownership is the other). The trial court granted Weekley’s summary judgment motion on all claims. The Dallas Court of Appeals affirmed as to the grow-negligence claims but reversed as to the negligence and premises liability claims on the basis that Weekley “had not conclusively established Chapter 95’s applicability” because it relied solely on statements in the plaintiffs’ pleading, which the court held were not evidence.

In a per curiam opinion, SCOTX reversed, holding that while pleadings do not generally constitute summary judgment evidence (and a party’s own pleadings never do), “courts may grant summary judgment based on deficiencies in an opposing party’s pleadings” [citations omitted]. Moreover, “[A] summary-judgment movant may also rely on allegations in a petition ‘as truthful judicial admissions’” as SCOTX held in Regency Field Servs., LLC v. Swift Energy Operating, LLC, 622 S.W.3d 807 (Tex. 2021). Weekley was thus entitled to rely on the plaintiffs’ live pleading to meet its initial evidentiary burden under Chapter 95. Since the court of appeals did not have the benefit of Regency, SCOTX sent the case back for reconsideration. It also pointed out that recent Chapter 95 precedent, specifically Energen Res. Corp v. Wallace, 642 S.W.3d 502 (Tex. 2022) (as case we reported on in March) and Los Compadres Pescadores, LLC v. Valdez, 622 S.W.3d 771 (Tex. 2021), should assist the court of appeals in resolving the substantive Chapter 95 issues as well.

We will keep an eye on this case to see what the Dallas Court of Appeals does on remand. The question will come down to the sufficiency of the evidence offered by plaintiffs to overcome Weekley’s assertion of the Chapter 95 defense (should, of course, the court of appeals find that plaintiffs’ pleadings made material admissions, as Weekley argues). To do so plaintiffs must establish that Weekley retained actual control of the contractor’s work or had actual knowledge of and failed to adequately warn of the danger or condition.

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