Actual knowledge is a prerequisite to liability: Houston Appeals Court reiterates Chapter 95’s central role in suits against property owners

Litigation Alert


The Fourteenth Court of Appeals in Oiltanking Houston, L.P. v. Delgado, No. 14-14-00158-CV, 2016 WL 354439 (Tex. App.—Houston [14th Dist.] Jan. 28, 2016, no pet. h.) has reversed a $21 million verdict against a property owner because the plaintiffs failed to comply with the requirements of Chapter 95 of the Texas Civil Practice and Remedies Code.

The decision underscores the need for property owners to be familiar with Chapter 95 when defending wrongful death and personal injury cases.

In Oiltanking, plaintiffs were family members of a contractor who was killed in an explosion while working at an oil storage facility. The plaintiff brought claims for wrongful death against the property owner. The jury found in favor of the plaintiffs and the property owner appealed, alleging that the plaintiffs had failed to satisfy Chapter 95.

Chapter 95 applies to a claim (1) against a property owner, contractor, or subcontractor for personal injury, death, or property damage to an owner, a contractor, or a subcontractor, or an employee of a contractor or a subcontractor; and (2) 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 Chapter 95, a property owner is not liable for personal injury, death, or property damage to a contractor, subcontractor, or an employee of a subcontractor or contractor who constructs, repairs, renovates, or modifies an improvement to real property, including personal injury, death, or property damage arising from the failure to provide a safe workplace unless: (1) the property owner exercises or retains some control over the manner in which the work is performed, other than the right to order the work to start or stop or to inspect progress or receive report; and (2) the property owner had actual knowledge of the danger or condition resulting in the personal injury, death, or property damage and failed to adequately warn. 

Thus, under Chapter 95, actual knowledge of the danger or condition that causes the injury, death, or property damage, as well as the failure to adequately warn of that condition, are both prerequisites to liability.

Writing for the Fourteenth Court, Justice Bill Boyce first explained that the Texas Supreme Court’s recent decision in Abutahoun v. Dow Chem. Co., 463 S.W.3d 42 (Tex. 2015) clarified that Chapter 95 applies to any type of negligence case asserted by a contractor against a property owner “regardless of the negligence theory being invoked by the claimants.” Thus, Chapter 95 applied to the wrongful death claims brought by the plaintiffs under any of their various theories.

The court also explained that general knowledge that the property may be dangerous − such as general knowledge of the presence of flammable vapors − does not satisfy the knowledge requirement of Chapter 95. Instead, the property owner must have had actual knowledge of the specific danger or condition resulting in the personal injury.

Because the plaintiffs failed to present legally sufficient evidence on that issue, the court reversed and rendered a take-nothing judgment in favor of the property owner.

As this case and the Texas Supreme Court’s holding last year in Abutahoun highlight, Chapter 95 provides extensive protection for property owners from claims arising from injuries on their property. Thus, it should be carefully studied and considered by property owners in defending such claims.

Find out more about this decision and its meaning for your business by contacting the authors.