Beaumont Lines up with Majority of Contractor Injury Workplace Condition Cases

Newtron Group, Inc. was hired to repair electrical equipment at the ExxonMobil chemical plant in Beaumont damaged by Hurricane Ike. Calvin Clary was a Newtron employee working on junction boxes outside of a building there called "switchgear 2", which he went into through a door that was the main access to the building to get a work permit signed. When he left, the glass-paneled door fell apart, cutting his hand. He sued two ExxonMobil corporations for the injury.
ExxonMobil argued that they were protected by Texas Civil Practice and Remedies Code, Title 4, Chapter 95 which limits a property owner's liability to independent contractors.  Clary said Chapter 95 did not apply, citing the Beaumont Court to Hernandez v. Brinker Int'l, Inc., 285 S.W.3d 152 (Tex. App. Houston [14th Dist. 2009, no pet.) Hernandez's facts were that he fell through the roof of a Chili's Restaurant when he was working on an air conditioner there. The trial court poured him out, saying that his case was barred by Chapter 95.
Collyn Peddie, a prominent plaintiff's personal injury lawyer, represented Hernandez, Brinker was represented by the estimable Doug Gosda, who I remember from my days in Houston. It appears that there was oral argument- I bet it was quite a thing to see. Anyway, the three justices in Hernandez  produced three different opinions- Jeffrey V. Brown held that 95 didn't apply because Hernandez's injury did not come from the a/c unit, but from Brinker's roof. John S. Anderson concurred because Brinker had not proved that it was the owner of the restaurant, that everybody just assumed that, but it had to be proved. Leslie Yates dissented: Hernandez was an independent contractor injured working on Brinker's property- none of the exceptions to 95 applied.
In Clary, Beaumont Justice David Gaultney writing for himself, Chief Justice McKeithen and Justice Kreger, held that Hernandez was the minority view on the question of whether Chapter 95 applied to contractors' right to sue property owners for property defects other than from that thing that the contractor was repairing. Gaultney cited many opinions from other Courts of Appeal conflicting with Hernandez. He also held that Chapter 95 barred this suit- ExxonMobil did not supervise the job so closely as to become responsible for Clary's injuries, and ExxonMobil did not have the requisite knowledge of the door's defect to make it responsible that way.
I bet that this case won't go up to the Texas Supremes. Clary has no reason to think that the pro-defense SCOTX would rule for him, and ExxonMobil would have no interest to take it up- it's won everything it wanted.
Clary v. ExxonMobil, ___ S.W.3d ___, No. 09-12-00060-CV, (Sept. 5, 2013, Tex. App-- Beaumont, no pet. h.)
 Hat tip to the Southeast Texas Legal Record for hipping me to this case.