Ball v. PPG Industries, Inc.
Filing
29
MEMORANDUM AND ORDER denying 23 Motion for Summary Judgment.(Signed by Judge Nancy F. Atlas) Parties notified.(TDR)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
JERRY BALL,
Plaintiff,
v.
PPG INDUSTRIES, INC.,
Defendant.
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CIVIL ACTION NO. H-10-4523
MEMORANDUM AND ORDER
This case is before the Court on the Motion for Summary Judgment (“Motion”)
[Doc. # 23] filed by Defendant PPG Industries, Inc. (“PPG”), to which Plaintiff Jerry
Ball filed a Response [Doc. # 25], and PPG filed a Reply [Doc. # 27]. Having
reviewed the full record and the applicable legal authorities, the Court denies the
Motion for Summary Judgment.
I.
BACKGROUND
Plaintiff was a boilermaker employed by Turner Industries, Inc. (“Turner”). In
December 2008, Plaintiff was working at a chemical processing facility owned by
PPG. Plaintiff was rolling the bell head of the RX 100 vertical heat exchanger back
into place after performing maintenance, cleaning, and hydro-testing work on the heat
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exchanger.1 The bell head fell onto Plaintiff’s foot, crushing it and allegedly causing
Complex Regional Pain Syndrome.
Plaintiff filed this lawsuit against PPG, alleging that PPG failed to have “safety
clips” on the RX 100 to prevent the bell head from falling. After an adequate time to
complete discovery, PPG moved for summary judgment. PPG asserts that Chapter 95
of the Texas Civil Practice and Remedies Code shields it from liability for Plaintiff’s
personal injury claim. The Motion has been fully briefed and is now ripe for decision.
II.
STANDARD FOR SUMMARY JUDGMENT
Summary judgment is proper only if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with any affidavits filed in support
of the motion, show that there is no genuine issue as to any material fact, and that the
moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56(a). The
moving party bears the burden of demonstrating that there is no evidence to support
the nonmoving party’s case. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986); Nat’l
Union Fire Ins. Co. v. Puget Plastics Corp., 532 F.3d 398, 401 (5th Cir. 2008). If the
moving party meets this initial burden, the burden shifts to the nonmovant to set forth
1
PPG Maintenance Engineer Hans Vidrine testified that the device is used to
“condense product. . . . Vent gas goes through the top, and it basically chills it and
turns that vent gas into a liquid” that is then used to manufacture the chemicals. See
Vitrine Depo., Exh. C to Response, pp. 35-36.
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specific facts showing the existence of a genuine issue for trial. See Hines v. Henson,
293 F. App’x 261, 262 (5th Cir. 2008) (citing Pegram v. Honeywell, Inc., 361 F.3d
272, 278 (5th Cir. 2004)). The Court construes all facts and considers all evidence in
the light most favorable to the nonmoving party. Nat’l Union, 532 F.3d at 401.
III.
CHAPTER 95 ANALYSIS
Chapter 95 of the Texas Civil Practice and Remedies Code preempts certain
common law claims. See Abarca v. Scott Morgan Residential, Inc., 305 S.W.3d 110,
126 (Tex. App. – Houston [1st Dist.] 2009, review denied) (citing Phillips v. Dow
Chem. Co., 186 S.W.3d 121, 131-32 (Tex. App. – Houston [1st Dist.] 2005, no pet.);
Dyall v. Simpson Pasadena Paper Co., 152 S.W.3d 688, 710 (Tex. App. – Houston
[14th Dist.] 2004, pet. denied)). Chapter 95 provides as follows:
A property owner is not liable for personal injury, death, or property
damage to a contractor, subcontractor, or an employee of a contractor or
subcontractor who constructs, repairs, renovates, or modifies an
improvement to real property, including personal injury, death, or
property damage arising from the failure to provide a safe workplace
unless:
(1) the property owner exercises or retains some control
over the manner in which the work is performed, other than
the right to order the work to start or stop or to inspect
progress or receive reports; and
(2) the property owner had actual knowledge of the danger
or condition resulting in the personal injury, death, or
property damage and failed to adequately warn.
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TEX. CIV. PRAC. & REM. CODE § 95.003; see also Gorman v. Ngo H. Meng, 335
S.W.3d 797, 802 (Tex. App. – Dallas 2011, no pet.); Abarca v. Scott Morgan
Residential, Inc., 305 S.W.3d 110, 122 (Tex. App. – Houston [1st Dist.] 2009, review
denied). In this case, it is uncontested that Chapter 95 applies. Therefore, Plaintiff
has the burden to establish “(1) that the property owner exercised or retained some
control over the manner in which the work was performed and (2) that the property
owner had actual knowledge of the danger and did not adequately warn of that
danger.” Gorman, 335 S.W.3d at 802-03 (quoting Rueda v. Paschal, 178 S.W.3d 107,
111 (Tex. App. – Houston [1st Dist.] 2005, no pet.)).
A.
Control
Control can be contractual or actual. Abarca, 305 S.W.3d at 122 (citing
Ellwood Tex. Forge Corp. v. Jones, 214 S.W.3d 693, 700 (Tex. App. – Houston [14th
Dist.] 2007, pet. denied) (citing Dow Chem. Co. v. Bright, 89 S.W.3d 602, 606 (Tex.
2002))). To exercise actual control, the property owner “must have the right to control
the means, methods, or details of the independent contractor’s work to the extent that
the independent contractor is not entirely free to do the work his own way.” Abarca,
305 S.W.3d at 123. “It is not enough that the owner has the right to order the work
to stop and start or to inspect progress or receive reports.” Id. “Nor is it enough to
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recommend a safe manner for the independent contractor’s employees to perform the
work.” Id.
In this case, Plaintiff has presented evidence that, when viewed in the light most
favorable to him as the non-movant, raises a genuine issue of material fact regarding
whether PPG exercised some actual control over Plaintiff’s work on the RX 100. The
Work Order PPG issued to Turner specifically identified the steps or “tasks” that were
to be undertaken in inspecting the heat exchanger. See Work Order, Exh. D to
Response. The Work Order described distinct tasks such as “visually inspect tube
bundle for corrosion,” “clean bundle using pressurized water,” “conduct pressure
test,” “report results of pressure test,” and “clean up area.” Id. PPG Maintenance
Engineer Hans Vidrine testified in his deposition that he was directly involved in
overseeing the process. See Vidrine Deposition, Exh. C to Response, p. 74. Vidrine
testified that the contract workers were not “just doing anything they want here” and
were “not just doing their own thing here.” See id. Vidrine testified also that PPG
dictates how many workers are used and their daily schedule. See id. at 75-76.
This evidence, viewed in the light most favorable to Plaintiff, the non-movant,
is sufficient for a reasonable jury to find that PPG controlled some details of Turner’s
(and Plaintiff’s) work such that Plaintiff was not “entirely free to do the work his own
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way.” Plaintiff has presented evidence that raises a genuine issue of material fact on
the Chapter 95 issue of actual control.
B.
Actual Knowledge and Failure to Warn
To avoid summary judgment, Plaintiff must present evidence that raises a
genuine issue of material fact that PPG had “actual knowledge of the danger or
condition resulting in the personal injury . . . and failed to adequately warn.” Abarca,
305 S.W.3d at 122 (quoting TEX. CIV. PRAC. & REM. CODE § 95.003). For purposes
of Chapter 95, a property owner owes a duty to warn of known dangers. See Painter
v. Momentum Energy Corp., 271 S.W.3d 388, 401 (Tex. App. – El Paso 2008, review
denied), and cases cited therein. There is no evidence that PPG warned Turner or
Plaintiff that the RX 100 did not have “safety clips.”
Plaintiff has presented evidence which, when viewed in his favor as the nonmovant, raises a genuine issue of material fact regarding PPG’s actual knowledge “of
the danger or condition” that allegedly caused Plaintiff’s injury. PPG Maintenance
Engineer Vidrine testified that the other two heat exchangers, RX 600 and RX 900,
had either safety clips or “lugs” that would prevent the bell head from falling, and that
the clips or lugs were installed after the exchangers were delivered to PPG in 1996.
See Vidrine Depo., pp. 10-11, 42, 62-63. PPG Corporate Representative Thomas
Narbit testified in deposition that the RX 600 and the RX 900 did not have safety clips
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or lugs originally and, therefore, “someone said that they needed to make the change.”
See Narbit Depo., Exh. E to Response, p. 33. No safety clips were installed on the
RX 100 on which Plaintiff was working at the time of his injury. See Vidrine Depo.,
p. 11.
Vidrine also testified about photographs of the RX 100 that were taken before
the accident. See id. at 43. The photographs were in PPG’s files and show that there
were no safety clips on the bell head of the RX 100. See id. at 44. PPG required such
photographs to be taken during an inspection, and Vidrine would review the
inspection report, including the photographs. See id. at 49. This evidence, viewed in
the light most favorable to the non-movant, raises a genuine issue of material fact
regarding whether PPG had actual knowledge that the RX 100 did not have safety
clips or lugs similar to those installed by PPG on the other two heat exchangers, the
RX 600 and the RX 900.
Additionally, the installation of the safety clips or lugs on the other two heat
exchangers is evidence that PPG had actual knowledge that the presence of safety
clips or lugs to prevent the bell head from falling was a safety-related improvement
to the heat exchangers. Indeed, PPG Corporate Representative Narbit testified that the
safety clips or lugs “are additional safety measures.” See Narbit Depo., p. 34.
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Plaintiff has presented evidence to raise a genuine fact dispute regarding the
second requirement for Chapter 95's exception to its general rule precluding liability.
IV.
CONCLUSION AND ORDER
Plaintiff has presented evidence that raises a genuine issue of material fact
regarding PPG’s potential liability under the exception contained in Chapter 95.2
Accordingly, it is hereby
ORDERED that PPG’s Motion for Summary Judgment [Doc. # 23] is
DENIED. The case remains scheduled for docket call on July 31, 2012, unless
settled prior to that date.
SIGNED at Houston, Texas, this 27th day of June, 2012.
2
The Court’s ruling that Plaintiff has presented sufficient evidence to raise a genuine
issue of material fact and avoid summary judgment is not intended to express any
opinion regarding whether Plaintiff will be able to satisfy his burden to prove the
Chapter 95 requirements at trial, or be able to prove that the absence of the safety
clips caused his injury, or be able to prove his alleged damages to the satisfaction of
the jury.
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