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Click here for the full text of this decision FACTS:Industrial Pipe and Plastic employee Wallace Dyall was sent to Simpson Pasadena Paper Company to repair a pinhole leak in a pipe that supplied the plant with chlorine dioxide. Dyall was called in after Bruce Stiles, a Simpson supervisor, noticed the leak. Stiles called for the plant to be shut down while the pipe was purged, and after the purge, he noticed that the leak had diminished in capacity. Dyall and his supervisor, Joey Carter, arrived at Simpson the next day. A Simpson employee, Jerry Elleven, told them there was a problem with a flange, and to replace the flange, the plant would have to be shut down, so it would be better if the pair could repair the flange instead of replacing it. Dyall did not recall getting a safety warning from anyone, or even if he had been told that the flange connected a pipe that contained chlorine dioxide. Nonetheless, a large sign near the pipe warned of the presence of chlorine dioxide. The sign also recommended using chemical goggles, a face shield, a scuba gas respirator and ventilation. Smoking was also discourage. Elleven asked Carter and Dyall if they had “full air packs,” which have a clear face shield and an air tank similar to scuba gear. Carter and Dyall said they had full air packs “back at the shop.” Elleven said they likely wouldn’t need the full air packs, but instructed them to get “throw-down packs” emergency packs with nose clips and tubes to breathe filtered air until a person can get to safety from the safety office. In addition to the throw-down packs they got from the safety director, Carter and Dyall also had half-face respirators in their truck. These respirators covered the mouth and nose area and were usually used in conjunction with goggles. The safety director told Carter and Dyall that if they smelled any unknown odor, they should immediately put on their escape respirators and leave the area. Once at the site of the leaking flange, Carter and Dyall asked if they needed boots to traverse the foam that a Simpson employee was washing down a drain. They were told they did not need boots. Carter noticed that Simpson employees in the area were not wearing protective gear, so he and Dyall left their half-face respirators in the truck. They wore only gloves and goggles while they worked. Dyall claimed he got some of the liquid on his hands, arms, legs and knees. While working on the leak, which had no discernible odor, the pair used what was known as a Hydro-plug mixture. Dyall began coughing and choking on the Hydro-plug mixture, and Carter admitted that they should have worn their half-face respirators just to deal with the Hydro-plug mixture. Carter and Dyall could not fix the leak with the Hydro-plug mixture after more than an hour of trying. They said they would have to get a flange plug. Meanwhile, the plant was shut down. As they left the area, both men became nauseous and vomited. They returned to their own shop to get a new flange, and Dyall vomited again. This time, before entering the area, the pair put on their half-face respirators and worked with Simpson employees to fix the flange, though the Simpson employees did not use protective gear. The next day, Dyall was not feeling well. He complained to a company physician that he had been having severe respiratory problems since his exposure to the leaking flange. Dyall and his wife sued Simpson for negligence, gross negligence and negligence per se. Simpson filed for summary judgment, arguing that it did not exercise control over the repairs. Thus, under Civil Practice & Remedies Code Ch. 95, it was not liable. The trial court granted a take-nothing judgment for Simpson. On original submission to a panel of this court, the trial court judgment was affirmed in a divided opinion. The case is now before the entire court. HOLDING:Affirmed. The court observes that even before the passage of Ch. 95, which addresses liability of property owners for injuries occurring on their property, there was a well-established rule that the owner or occupier of property was not an insurer. The court acknowledges two exceptions to the general rule � dangers arising from an activity on the premises, and those arising from a premises defect � but laments the conflicting opinions Texas appellate courts rendered in applying these exceptions. The court reviews several of these cases, noting that some of them resulted in it being more advantageous to the property owner not to establish safety precautions at all, and some that favored a public policy of protecting workers. The court notes that cases that subject employers to liability for injuries sustained by independent contractors is inconsistent with the modern workers’ compensation scheme. Chapter 95 rectified many of these problems, the court says, so now the burden rests with a plaintiff to show both control and actual knowledge of the danger. Showing one without the other will not suffice. As to control, the court finds that the existence of a safety regulation does not automatically establish control. “In other words, unless the owner’s”safety’ regulation unwisely imperils the contractor, its imposition and observance must be encouraged, not discouraged, and cannot reasonably be considered the type of control the legislature envisioned as coming within the ambit of the statute.” The only safety regulation here was that Carter and Dyall carry emergency escape respirators, which did not imperil either man and was not the cause of Dyall’s alleged injuries. The court finds Dyall’s assertion that he was told the safety equipment was unnecessary to be unsupported by the summary judgment evidence. Dyall argues that because Simpson insisted he carry an emergency escape respirator, he assumed he was in no danger of exposure to toxic fumes. However, notwithstanding Dyall’s testimony that he did not know why he was required to carry an escape respirator, the very fact that Simpson insisted that he carry such a device indicates the site was potentially hazardous. The court goes through more than a dozen instances that Dyall says indicated Simpson exercised control. The court rejects them all as either unsupported by the record, distortions of the record or just incorrect interpretations of what actually does constitute control. “After considering all of Dyall’s proposed examples of evidence of”control,’” the court states, “we find none can reasonably be characterized as”control over the manner in which the work is performed.’” The court also rejects Dyall’s assertion that to hold that Simpson was not responsible would be to thwart legislative intent. The court finds the statement of legislative intent Dyall states actually does not support his argument. Finally, the court rejects Dyall’s suggestion that because Simpson was aware of the danger and failed to adequately warn of the same, it necessarily exercised”control’ over the manner in which the work was performed. OPINION:Hudson, J.; en banc. DISSENT:Fowler, J. “The first two problems [with the majority opinion] relate to the nature of this appeal, an appeal of a summary judgment. First, the majority improperly expands the scope of the motion to include knowledge of a dangerous condition, even though the motion was based only on control over the work being performed. Second, the majority applies the wrong standard of review. Instead of looking at the evidence in the light most favorable to Dyall, the non-movant, the majority views the evidence in the light most unfavorable to Dyall. “The third and fourth problems stem from the majority’s reliance on legislative history to conclude that the scope of section 95.003 is so narrow it excludes all safety issues even when a premises owner at a plant with dangerous chemicals informs a maintenance worker that he can proceed safely with his work without any breathing equipment. This conclusion directly contradicts the plain wording of the statute and one of the two examples the sponsoring senator gave to illustrate what situations the section does not cover.”

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