Texas Civil Practice & Remedies Code Chapter 95 – The Entire Workplace Cannot Be An “Improvement”

In Texas, a landowning defendant sued under a premises liability theory of negligence is afforded a particularly stalwart affirmative defense pursuant to Texas Civil Practice and Remedies Code Chapter 95. Referred to commonly as simply “Chapter 95,” it “applies to a claim, counterclaim, cross-claim, or third-party claim (1) for damages caused by negligence resulting in personal injury, death, or property damage, (2) asserted against a person or entity that owns real property primarily used for commercial or business purposes (a property owner), (3) asserted by an owner, contractor, or subcontractor or an employee of a contractor or subcontractor, and (4) that arises from the condition or use of an improvement to real property where the contractor or subcontractor constructs, repairs, renovates or modifies the improvement. Under Texas law, a defendant who seeks the protection of Chapter 95 must demonstrate with proof that each of the elements are met; if they are, the landowning defendant is granted immunity from liability.

In 2021 the Texas Supreme Court issued an opinion in Los Compadres Pescadores, LLC v. Valdez, which clarified how and when Chapter 95’s fourth prong is satisfied. In that case, Los Compadres first argued that the fourth requirement was met because the power line was a dangerous condition of the “workplace.” From this, Los Compadres argued: that because the power line existed in that workplace, and the pilings were a part of the workplace where the lines overhung, the harm resulted from a condition of the same improvement on which Plaintiffs were working.

However, the Court disagreed:

[C]hapter 95 applies only when the workplace is made unsafe by the condition (or use) of an improvement to the real property where the contractor or subcontractor constructs, repairs, renovates or modifies the improvement . . . For chapter 95 to apply, it is not enough that a dangerous condition existed on the premises on which the claimant was working or created an “unsafe workplace.” Instead, the danger must arise from the condition (or use) of “an improvement” within the workplace in which the claimant was working.

The Court continued, positing that “[d]efining ‘improvement’ to include the entire workplace would negate the statute’s explicit, limited applicability to injuries ‘that arise[] form the condition or use of an improvement to real property.’” More importantly, the Court reasoned that the entire workplace itself could not be the improvement—as the workplace itself cannot be the addition to property. This ruling and commentary on Chapter 95’s fourth prong are important, as it served to clarify an area oft-fought about during the course of a premises liability lawsuit.

If you or someone you know has been injured or killed while at the workplace or on another’s property, please contact the office of Ben Agosto III at Abraham, Watkins, Nichols, Agosto, Aziz & Stogner, at (713) 222-7211; toll-free at 1-800-594-4884; or by email at [email protected].