Our firm’s handling of a refinery explosion reignited old concerns about the application of a law known as Chapter 95 (C.P.R.C. § 95), and its protection of property owners from liability. The Texas legislature and courts have been spent the last 20 years successfully taking away workers’ rights when they are injured on the job, even when workers are hurt or killed by the property owner’s actions or by unsafe conditions on the property that the owner either negligently created or should have known about.
In our case, we represented five Wilbros contractors injured at Invista’s Victoria plant when a heat exchanger exploded in a unit where our clients were building a storage tank. Chapter 95 issues were strongly contested throughout the case, which was brought in federal court in Galveston.
Chapter 95, the Law
Chapter 95 was enacted in 1995 to shield property owners from tort liability when independent contractors are harmed by contractor conduct on the improvement (an improvement is anything affixed to the land) that they are working on. Chapter 95 now grants extensive protection to property owners where a contractor is injured as a result of the condition or use of any improvement on the property.
First, appellate courts have repeatedly held that Chapter 95 applies when a contractor is injured by any improvement on the property, not just the improvement they are working on, despite legislative history making it clear that Chapter 95 was not intended to apply to incidents unrelated to the work being done by a contractor. Second, a 2015 Supreme Court decision held that a property owner is not liable for a contractor’s injuries even when the owner’s own negligent acts were the cause of the injuries. Third, a 2016 Houston case extended that negligence holding to actual knowledge requirements, overturning a verdict for the Plaintiffs – the Court held that because the property owners did not know that specific molecules of gas remained in a pipeline, the owner that negligently failed to to clear the pipeline of gas was not liable to a deceased welder.
Further complicating potential Chapter 95 cases – beyond the likelihood of a defense victory at the summary judgment stage – is the fact that it can also be raised for the first time on appeal. A Chapter 95 defense is not something that must be raised and proved by the defendant. A plaintiff’s failure to properly establish the elements of Chapter 95 at trial leaves open the possibility of a being thrown out on appeal – as happened in the 2016 Houston case where a $21,000,000 verdict was reversed and rendered for the Defendant.
Our clients faced Chapter 95 obstacles from the outset. We quickly identified the issues involved with arguing that Chapter 95 did not apply and, alternatively, establishing that the facts in our case allowed recovery under Chapter 95. We conducted thorough discovery raising disputes as to whether the storage tank in question qualified as an improvement and as to ownership of the property. Additionally, we conducted voluminous discovery regarding the heat exchanger in question, the storage tank that brought our clients to the site, and the relationship between the two and between the unit in question and the building site where our clients worked. Various fact witness and corporate representative depositions were outstanding when the case was resolved through mediation.
It is not impossible to recover for plaintiffs injured in workplace accidents – Burwell Nebout does not hesitate to bring cases on behalf of clients injured in refineries and petrochemical plants. But, like many other areas that have been successfully attacked through tort reform efforts in Texas, the rules have changed and there are more hurdles than in the past. After the recent cases mentioned above, it is more important than ever to perform a proper investigation of claims with potential Chapter 95 issues and, if an injured person was working on an instrument, to perform proper discovery in order to establish every element of Chapter 95 – something we are prepared to do better than anybody. If you are hurt on the job, it is important to get your own investigation moving as soon as possible. Give us a call to discuss whether you might have a case, and if so, the next steps to ensure a successful recovery.
 Petri v. Kestrel Oil & Gas Properties, L.P., 878 F. Supp. 2d 744, 771 n.20 (S.D. Tex. 2012, appeal dismissed).
 Abutahoun v. Dow Chem Co., 463 S.W.3d 42 (Tex. 2015).
 Oiltanking Houston, L.P. v. Delgado, 2016 Tex. App. LEXIS 886 (Houston [14th Dist.] Jan. 28, 2016)