By Judith A. Meyer

Texas law protects property owners from personal injury suits by the employees of independent contractors and subcontractors hired by the property owner to work on an improvement on their property. The Texas Supreme Court is considering whether this protection includes claims for the property owner’s negligent hiring of the contractor or subcontractor.

In certain circumstances, Chapter 95 of the Texas Civil Practice and Remedies Code Texas law protects property owners from liability for personal injury to the employee of a contractor or subcontractor who constructs, repairs, renovates, or modifies an improvement to real property when the claims arise from the condition or use of that improvement. Tex Civ. Prac. & Rem. Code §§ 95.002 – .003.  Currently before the Texas Supreme Court is the question of whether Chapter 95 covers the property owner’s negligent hiring of the contractor or subcontractor.

In Cuevas v. Endeavor Energy Res., L.P., 531 S.W.3d 375, 378 (Tex.App.–Eastland 2017, pet. granted), an employee of an independent contractor who was hired by the property owner to drill a well was killed while preparing the rig for drilling operations. The employee’s family sued the property owner, asserting a premises liability claim and adding claims for the owner’s negligent hiring, training, supervision and retention of the contractor. Id. The trial court granted the owner’s motion for summary judgment under Chapter 95 on all of the plaintiffs’ claims. Id. The appellate court reversed on the claim of negligent hiring. The court held that Chapter 95 applies to contemporaneous negligent acts of the property owner, which it defined as acts that occur on the premises at the time the claimant is injured. Id. at 382. The appellate court held that negligent supervision and retention were such contemporaneous acts, but negligent hiring presented a claim for acts that occurred prior to injury, and thus were not covered by Chapter 95. Id.

The appellate court cited the Texas Supreme Court decision in Abutahoun v. Dow Chemical, 463 S.W.3d 42 (Tex. 2015), as support for its decision. Abutahoun did use the word “contemporaneous” in holding that Chapter 95 covers two different types of claims, claims based on a premises defect, which “encompass[s] a nonfeasance theory based on the owner’s failure to take measures to make the property safe, and claims based on negligent activities, which “encompass[s] a malfeasance theory based on affirmative, contemporaneous conduct by the owner that caused the injury.” Abutahoun, 463 S.W.3d at 50 (citation omitted). The appellate court did not examine the “arising from” language of Chapter 95, which Abutahoun stated “captured causation,” 463 S.W.3d at 48, or how this affects the analysis of a negligent hiring claim.

The property owner appealed. The case has been briefed, and oral argument was heard by the Texas Supreme Court last month. This case presents the Supreme Court with the opportunity to decide an important issue—Can a plaintiff evade the protection provided by Chapter 95 by pleading the property owner’s negligent hiring?—and to provide further analysis of the language and intent of Chapter 95.   Watch this space for an update.