|
In Mendoza v. Hacienda Services, Inc., a recent decision from the Houston First District Court of Appeals, the court affirmed the trial court’s summary judgment in favor of the Defendant, holding that the plaintiff (subcontractor) failed to show that defendant (property owner) had control over Plaintiff’s work or actual knowledge of a dangerous condition. Under Chapter 95 of the Texas Civil Practice and Remedies Code, a property owner is not liable for a personal injury claim brought by a contractor, subcontractor, or employee who constructs, repairs, renovates, or modifies an improvement to real property, unless the property owner exercises or retains some control over the manner in which the work is performed, and had actual knowledge of the danger or condition that caused the injury, and failed to warn of it.
Background
Defendant Hacienda Services, a residential homebuilder, hired Plaintiff Angel Mendoza and his painting business to paint and perform handyman tasks on houses in its new housing development. While standing on a ladder painting the roof of a one-story house, Plaintiff fell and suffered serious injuries. Plaintiff brought claims for negligence and premises liability, claiming that the roof shingles were loose and that Defendant did not provide training or equipment or instructions on how to do his work.
Summary Judgment
Defendant filed for summary judgment, arguing that Chapter 95 applied, and that the exceptions did not apply as Defendant did not retain control over the manner in which Plaintiff worked and that there was no duty to warn or make safe the open and obvious condition of the height of the roof. The trial court granted the motions for summary judgment and Plaintiff appealed.
The Ruling
The court of appeals affirmed the trial court’s grant of summary judgment, holding that Plaintiff did not raise a genuine issue of material fact regarding the control or actual knowledge elements to invoke the exception to Chapter 95.
First, Chapter 95 applied to Plaintiff’s claims as he was a subcontractor working on an improvement to real property (i.e., painting a house) and his claims arose from that improvement.
Second, Plaintiff did not produce any evidence that Defendant exercised control over the means, methods, or details of his work. Defendant did not provide Plaintiff any equipment and did not supervise his tasks. In fact, Plaintiff testified that he was not given instructions on how to do his work. To establish “control,” a property owner’s right to order work to start and stop, or to inspect progress, is insufficient. “Control” must extend to the means, methods, or details of the contractor’s work such that they are unable to freely do their work their own way.
Finally, despite pleading that there was a defect with the roof shingles, Plaintiff did not make any claims that Defendant had actual knowledge of a defect in the roof. Additionally, Plaintiff argued that Defendant had actual knowledge that he did not use fall protection because he had worked without fall protection in the past. However, the court found that this only amounted to constructive knowledge, not actual knowledge.
| 
