Occidental Chem. Corp. v. Jenkins

• Decision Date: 08 January 2016
• Docket Number: No. 13–0961,13–0961
• Citation: 478 S.W.3d 640
• Parties: Occidental Chemical Corporation, Petitioner, v. Jason Jenkins, Respondent
• Court: Texas Supreme Court

478 S.W.3d 640

Occidental Chemical Corporation, Petitioner,

v.Jason Jenkins, Respondent

No. 13–0961

Supreme Court of Texas.

Argued September 3, 2015

OPINION DELIVERED: January 8, 2016

Christopher Patton, Richard A. Smith, Lynn Tillotson Pinker & Cox LLP, Dallas, for Amicus Curiae Chamber of Commerce of the United States of America

Christopher Patton, Richard A. Smith, Thomas C. Kirby, Washington, DC, for Amicus Curiae National Association of Manufacturers

Wencong Fa, Sacramento, CA, for Amicus Curiae Pacific Legal Foundation

Martha Landwehr, Austin, for Amicus Curiae Texas Chemical Council

George S. Christian, Austin, for Amicus Curiae Texas Civil Justice League

Christopher Patton, Lynn Tillotson Pinker & Cox, LLP, Dallas, Richard A. Smith, for Amicus Curiae The American Chemistry Council

Barry N. Beck, David Wayne Lauritzen, Rick G. Strange, Cotton Bledsoe Tighe & Dawson, P.C., Midland, Deborah G. Hankinson, Joseph B. Morris, William Richard Thompson II, Hankinson LLP, Dallas, for Petitioner

Charles Randall 'Chad' Flores, David M. Gunn, Erin Hilary Huber, Russell S. Post, Beck Redden, LLP, Houston, Douglas W. Alexander, Wallace B. Jefferson, Alexander Dubose Jefferson & Townsend LLP, Austin, Jason A. Itkin, Cory D. Itkin, Kurt Brynilde Arnold, Arnold & Itkin LLP, Houston, for Respondent

Justice Devine delivered the opinion of the Court.

A claim against a property owner for injury caused by a condition of real property generally sounds in premises liability. That liability typically ends with the property's sale. When the property's dangerous condition is caused or created by another, an independent claim against the other may lie in negligence and that claim, unlike the premises-liability claim against the owner, does not necessarily end with the property's sale. The issue in this cause is whether that rule also applies to a property owner who creates the dangerous condition—that is, whether the property owner owes both a duty in premises liability to warn of the dangerous condition or make it safe and a duty in negligence to use reasonable care not to create the dangerous condition in the first place.

The court of appeals concluded that a property owner who creates a dangerous condition on its property may be held responsible for injuries under either liability theory, and that the negligence claim, unlike the premises-liability claim, remains viable even after the property owner sells the property and relinquishes control over it. 415 S.W.3d 14, 28–31 (Tex.App.–Houston [1st Dist.] 2013). We conclude, however, that a claim against a previous owner for injury allegedly caused by a dangerous condition of real property remains a premises-liability claim, regardless of the previous property owner's role in creating the condition. Because the previous owner sold the property several years before the plaintiff's accident and did not otherwise owe the plaintiff a duty of care apart from its ownership and control of the property, we reverse the court of appeals' judgment and render judgment that the plaintiff take nothing.

I

Jason Jenkins was injured in April 2006 while using an acid-addition system at a Bayport, Texas chemical plant. The Bayport plant produces triethylene glycol ("TEG"), a chemical compound with a variety of industrial and commercial uses. Production occurs in a large tank in which the TEG must be maintained at a certain acidity. Technicians at the Bayport plant initially regulated the acidity by manually adding acid or amine to the tank as necessary to adjust the pH level. A device for managing the tank's pH level, referred to in this case as the acid-addition system, was later attached to the tank because it was thought to be a safer process for adding acid. Ironically, this "improvement" caused Jenkins's injury.

The acid-addition system was added to the plant in 1992 by Occidental Chemical Corporation. Occidental's employees used the device for six years without incident. In 1998, Occidental sold the plant to Equistar Chemicals, L.P., Jenkins's employer. Jenkins's injury occurred in 2006, eight years later. The acid-addition system was thus used by employees of Occidental and Equistar for fourteen years before Jenkins's injury.

The acid-addition system consists of several components: a funnel, funnel cover, acid-addition pot, pressurized nitrogen system, several pipes, and three valves. The first of these valves, the acid-inlet valve, connects the funnel to the acid-addition pot. The second valve connects the acid-addition pot to the pressurized nitrogen system. The third valve connects the pot to the tank. To add acid to the tank a technician removes the funnel's cover adding the desired amount of acid. Opening the first valve drains the acid into the pot. Closing the first valve and opening the second pressurizes the pot's contents. Closing the second valve and opening the third forces the acid into the tank.

On the day of the accident, Jenkins was asked to add acid to the tank. He had not performed this job before and therefore consulted the operating instructions before adding acid to the system. He was asked later in the day to adjust the pH level again because the tank had still not reached the desired level. Unbeknownst to Jenkins, acid apparently remained in the acid-addition system under pressure because when Jenkins opened the acid-inlet valve—the first of the system's three valves—acid was expelled into his face, injuring his eyes.

Jenkins sued Occidental, among others,¹ alleging that Occidental's negligent design of the acid-addition system caused his injuries. Occidental generally denied Jenkins's allegations and affirmatively pled two statutes of repose—one governing claims against registered or licensed professionals who design, plan or inspect improvements to real property, and one governing claims against those who construct such improvements. See TEX. CIV. PRAC. & REM. CODE §§ 16.008, .009.

The case was tried to a jury. The jury found Occidental's design of, and operating instructions for, the acid-addition system negligent and a proximate cause of Jenkins's injury and determined Jenkins's damages. Regarding Occidental's statute-of-repose defenses, the jury found that the acid-addition system was an improvement to real property that was designed under the supervision of, but not by, a registered or licensed professional. Both parties moved for judgment on the verdict. Concluding that the verdict supported at least one of Occidental's repose defenses, the trial court rendered judgment that Jenkins take nothing.

The court of appeals, however, did not agree that the verdict supported either of Occidental's statute-of-repose defenses. See 415 S.W.3d 14, 19–28 (discussing sections 16.008 and 16.009 of the Texas Civil Practice and Remedies Code ). Apart from repose, Occidental argued that the court of appeals should affirm the trial court's judgment because Occidental had not breached any duty of care owed to Jenkins. Under this argument, Occidental maintained that Jenkins's claim sounded solely in premises liability, a theory that no longer applied to Occidental as it did not own or control the premises at the time of Jenkins's accident. Again, the court disagreed, reasoning that Jenkins's claim was based on Occidental's negligent design of the acid-addition system, a theory that survived Occidental's sale of the property and continued independently of any premises-liability claim. Id . at 28–31. The court of appeals accordingly reversed and remanded for the trial court to render judgment for Jenkins on the jury's liability and damages findings.

II

Depending on the circumstances, a person injured on another's property may have either a negligence claim or a premises-liability claim against the property owner. Keetch v. Kroger Co., 845 S.W.2d 262, 264 (Tex.1992). When the injury is the result of a contemporaneous, negligent activity on the property, ordinary negligence principles apply. Id . When the injury is the result of the property's condition rather than an activity, premises-liability principles apply. H.E. Butt Grocery Co. v. Warner, 845 S.W.2d 258, 259 (Tex.1992). Although premises liability is itself a branch of negligence law, it is a "special form" with different elements that define a property owner or occupant's duty with respect to those who enter the property. W. Invs., Inc. v. Urena, 162 S.W.3d 547, 550 (Tex.2005). Under premises-liability principles, a property owner generally owes those invited onto the property a duty to make the premises safe or to warn of dangerous conditions as reasonably prudent under the circumstances. Corbin v. Safeway Stores, Inc., 648 S.W.2d 292, 295 (Tex.1983) ; Smith v. Henger, 148 Tex. 456, 226 S.W.2d 425, 431 (1950). That duty generally runs with the ownership or control of the property and upon a sale ordinarily passes to the new owner. See RESTATEMENT (SECOND) OF TORTS §§ 351 –54 (1965).

According to section 352 of the Second Restatement of Torts, a vendor of land is not ordinarily liable for injuries to a vendee or to third persons caused by a pre-existing dangerous condition after the vendee takes possession:

Except as stated in § 353,² a vendor of land is not subject to liability for physical harm caused to his vendee or others while upon the land after the vendee has taken possession by any dangerous condition, whether natural or artificial, which existed at the time that the vendee took possession.

Id. § 352. The court of appeals here accepted this as a statement of the general rule. 415 S.W.3d at 31 (quoting Roberts v. Friendswood Dev. Co., 886 S.W.2d 363, 367–68 (Tex.App.–Houston [1st Dist.] 1994, writ denied) ); accord First Fin. Dev. Corp. v. Hughston, 797 S.W.2d 286, 291 (Tex.App.–Corpus Christi 1990, writ denied) (citing section 352 of the Second Restatement); Beall v. Lo–Vaca Gathering Co., 532 S.W.2d 362, 365 (Tex.Civ.App.–Corpus Christi 1975, writ ref'd n.r.e.) (same). But the court also thought that an exception should be made for dangerous...