A Texas appellate court recently addressed the applicability of Chapter 95 to protect a landowner from negligence claims brought by a contractor injured while working on-site, finding that a utility company owning an easement qualified as a landowner, and that plaintiff’s counsel had not established the landowner’s actual knowledge of the danger to avoid the protections of Chapter 95.

On August 7, 2025, the Court of Appeals for the First District of Texas issued its opinion in CenterPoint Energy Houston Electric, LLC v. Garett Wilder, No. 01-22-00853-CV, reversing the District Court’s entry of a jury verdict awarding plaintiff Garett Wilder nearly $15.5 million for the injuries he sustained in a 40’ fall from a utility pole owned by CenterPoint.

CenterPoint contracted with Wilder’s employer, L.E. Myers Co. to replace certain step-bolts on a concrete transmission pole located in a public utility easement owned by CenterPoint.  Wilder utilized safe climbing practices in his ascension of the pole, but the insert in the pole unexpectedly failed, causing the step-bolt to detach and Wilder to fall 40’ to the ground.  Wilder sued CenterPoint for damages in negligence, and was awarded $15,466,597 at trial by the jury.  CenterPoint appealed.

CenterPoint argued on appeal that Texas Civil Practice and Remedies Code Chapter 95 applied, and that Wilder did not overcome the presumptions of Chapter 95 necessary to support the jury’s verdict.

Chapter 95 limits a property owner’s liability for the personal injury, death or property damage claims of an independent contractor or its employee arising from the condition or use of an improvement to real property being constructed, repaired, renovated or modified by the contractor.[1]  The property owner has the burden of establishing that Chapter 95 applies.[2]  Once established, plaintiff must show that both of the exceptions to the protections of Chapter 95 exist: (1) the property owner retained control over the work; and (2) that the property owner had actual knowledge of the danger and failed to warn the subcontractor.[3]

Testimony from both parties’ witnesses at trial established there had been previous work done on the same transmission pole, and that the step-bolt and insert failure was sudden and unanticipated.  Nevertheless, the jury found in favor of Wilder on his negligence claim, specifically that CenterPoint had some control over the manner of his work other than the right to order the work to start or stop, to inspect progress or receive reports, and that CenterPoint was negligent in causing Wilder’s injury as (1) the condition of the step-bolts posed an unreasonable risk of harm; (2) CenterPoint knew or should have known of the dangers; and (3) CenterPoint failed to exercise ordinary care to protect Wilder from that danger.

The Court of Appeals first considered if Chapter 95 applied to the claim.  The parties agreed that it was a claim for damages caused by negligence leading to personal injury and that the claim was asserted by an employee of a contractor, but disagreed on whether or not CenterPoint, as the owner of a public utility easement, qualified as a property owner, and if Wilder’s claims arose form a condition or use of an improvement to real property.

The Court looked to the common, ordinary meaning of “real property,” including Black’s Law Dictionary’s definition of real property, which states “[r]eal property can be either corporeal (soil and buildings) or incorporeal (easements),” [4] and prior Texas rulings characterizing easements, concluding that CenterPoint qualified as a property owner under the statute by its ownership of a public utility easement.  Analyzing if Wilder’s claims arose from the condition or use of an improvement to real property, the court again looked to Black’s Law Dictionary and prior decisions to define “improvement.” The Court noted that the Texas Supreme Court previously encouraged a broad definition of the term,[5] which has included streets, sidewalks, and sewer utilities,[6] and found that the transmission pole in this instance was an improvement.

After determining that Chapter 95 did apply to the claims, the Court determined that, under the facts presented, Wilder failed to show that CenterPoint had actual knowledge of the danger that resulted in Wilder’s injuries.  As Wilder did not overcome the presumptions of Chapter 95, the Court reversed the judgment of the trial court and rendered a take-nothing judgment in CenterPoint’s favor.

Wilder filed a Petition for Review with the Supreme Court of Texas on August 26, 2025, briefing the sole issue that the Appellate Court erred in determining that CenterPoint’s ownership of an easement qualified it as a property owner under Chapter 95, and raising the unbriefed issues of whether the transmission pole was an improvement to real property and if the evidence conclusively established CenterPoint’s actual knowledge.  Responsive briefing is due September 25, 2025, and we will continue to monitor the matter and the applicability of Chapter 95 to these types of claims.

[1] Tex. Civ. Prac. & Rem. Code §§ 95.001, 95.002.

[2] Los Compadres Pescadores, L.L.C. v. Valdez, 608 S.W.3d 829, 834-35 (Tex. App.—Corpus Christi-Edinburg 2019), aff’d, 622 S.W.3d 771 (Tex. 2021).

[3] Tex. Civ. Prac. & Rem. Code § 95.003.

[4] Property, Black’s Law Dictionary (12^th ed. 2024).

[5] Ineos USA, LLC v. Elmgren, 505 S.W.3d 555, 568 (Tex. 2016).

[6] Mendoza v. Clingfost, No. 12-08-00315-CV, 2010 WL 827295, at *4