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Click here for the full text of this decision FACTS:Angelia Stewart died when she fell from scaffolding on a worksite. Charles Phillips, who contended that he was Stewart’s husband, asserted wrongful-death claims on his own behalf and a survival claim on behalf of Stewart’s estate. Jim Stewart, Stewart’s father, also sought recovery for wrongful death and as a bystander, due to his presence when she was injured. Randy and Teresa Stephens, guardians of Stewart’s minor daughter, also asserted wrongful-death claims. The appeal in Cause No. 01-03-00107-CV challenges the summary judgment rendered against all appellants in favor of Dow Chemical Co. (Dow), the owner of the premises where Stewart was working. Dow prevailed on its claim that it owed no duty to Stewart as a matter of law, because Dow neither retained nor exercised a right of control over her work. The remaining appeals concern Phillips’s standing to assert claims against any of the defendants. HOLDING:Affirmed. Phillips’s single issue in Cause No. 01-03-00451-CV and appellants’ second, third, and fourth issues in Cause No. 01-03-00107-CV challenge rendition of summary judgment in favor of appellees on the grounds that Phillips lacked standing under the wrongful death and survival statutes because he was not Stewart’s surviving spouse as a matter of law. The record thus demonstrates that Phillips mistakenly believed that he was divorced in 1994, when he entered into what he contends that both he and Stewart understood to be, and desired to be, a common-law marriage relationship. But, because Phillips’ prior marriage had not been terminated before his relationship with Stewart began and did not terminate until July 9, 2001, almost one year after Stewart died on Aug. 19, 2000, their relationship could not, as a matter of law, constitute a common-law marriage between 1994 and Aug. 19, 2000. Appellees established the absence of any genuine issues of material fact concerning Phillips’ lack of standing to pursue a remedy under the wrongful-death statute and conclusively established that Phillips was not Stewart’s husband as a matter of law. Accordingly, they were entitled to summary judgment on that claim as to Phillips, both individually and as administrator of Stewart’s estate. In Cause No. 01-03-00107-CV, all appellants assert that the trial court erred by granting Dow’s traditional and no-evidence motions for summary judgment. The order rendering summary judgment in favor of Dow recites the trial court’s conclusion that Dow “did not retain any right of control over the general contractor’s or the subcontractors’ work sufficient to impose any duty of care.” In rendering summary judgment on this basis, the trial court granted Dow’s motion for traditional summary judgment. From the plain meaning of the statute, chapter 95 applies to appellants’ claims. Appellants’ pleadings allege that Stewart was injured while on the job at a worksite defined as Dow’s Freeport plant. It is undisputed that Dow owns this premises, that this premises is real property, that Dow uses this premises for commercial or business purposes, and that Dow was sued in those capacities. Texas Civil Practice & Remedies Code �95.001(3). Appellants further alleged that Dow was “charged with the duty of reasonable, or ordinary, care in being sure that the premises upon which Angelia Stewart was working and the equipment Plaintiff [sic] was using were reasonably safe.” Similarly, appellants claim “damages,” for Stewart’s “personal injure[ies]” and “ death,” allegedly caused by negligence (and gross negligence) “arising from” Dow’s “failure to provide a safe workplace.” The court holds that appellants alleged claims within Chapter 95, which pre-empted their common-law claims, that Dow relied on Chapter 95 in seeking summary judgment, and that the trial court’s ruling is premised on Chapter 95. Appellants alternatively contend that if chapter 95 applies, their summary-judgment evidence raised fact issues concerning Dow’s actual knowledge of the dangerousness of the scaffolding equipment and, in addition, concerning Dow’s control over both scaffolding and fall restraints at the worksite. Dow responds that the trial court properly rendered summary judgment in Dow’s favor because appellants did not raise material fact issues concerning whether Dow 1. had a right to control how the work was performed and 2. had actual knowledge of the dangerous condition that resulted in Stewart’s injury. As Dow emphasized in moving for traditional summary judgment, �95.003(2) elevated the alternative, common law, “should have known” test of the premises owner’s knowledge of a dangerous condition, to an “actual knowledge” requirement. Because Dow’s motion for summary judgment established that Chapter 95 applies to appellants’ claims, appellants had to present evidence demonstrating triable issues of fact concerning both required elements of �95.003 to overcome that statute’s general rule of non-liability. Having examined the summary judgment record de novo, the court concludes that Dow conclusively established, as a matter of law, that it neither exercised nor retained control over the manner in which the work was performed to a sufficient degree to give rise to a triable issue of fact concerning the first condition of �95.003(1). The court further concludes that appellants did not present summary-judgment evidence sufficient to defeat Dow’s motion. Because both elements of �95.003 must be present for potential premises-owner liability, and because Dow negated the control element of �95.003(1), Dow also negated any exception to �95.003′s general rule of nonliability and was, therefore, entitled to prevail as a matter of law on appellants’ survival and death claims against Dow. OPINION:Alcala, J.; Radack, C.J., Keyes and Alcala, JJ.

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