Motion to Strike Initial Pleading in EARMON LOVERN vs. EAGLERIDGE OPERATING, LLC, et al| Trellis.Law

On April 24, 2018 a Motion-Secondary was filed involving a dispute between Lovern, Earmon, Lovern, Lacey, Lovern, Peggy, Lovern, Stormy, and Eagleridge Operating, Llc, Usg Properties Barnett Ii, Llc, for OTHER PERSONAL INJURY in the District Court of Dallas County.

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FILED
DALLAS COUNTY
8/22/2019 3:21PM
FELICIA PITRE
DISTRICT CLERK

CAUSE NO. DC-18-05402 Cassandra WaIker

EARMON LOVERN, § IN THE DISTRICT COURT OF
§
Plaintiff, §
§
V. § DALLAS COUNTY, TEXAS
§
EAGLERIDGE OPERATING, LLC, §
USG PROPERTIES BARNETT II, LLC, §
§
Defendants. § 192ND JUDICIAL DISTRICT

DEFENDANT EAGLERIDGE OPERATING, LLC’S SUPPLEMENTAL RESPONSE TO
PLAINTIFFS’ MOTION TO STRIKE RESPONSIBLE THIRD PARTY, MOTION FOR
PARTIAL SUMMARY JUDGMENT, AND NO-EVIDENCE MOTION FOR SUMMARY
ON THIRD PARTIES’ NEGLIGENCE
TO THE HONORABLE JUDGE OF SAID COURT:

COMES NOW, Eagleridge Operating, LLC (“Eagleridge”), a Defendant herein, and

ﬁles this Supplemental Responsel t0 Plaintiffs’ Motion t0 Strike Aruba as a Responsible Third

Party, Motion for Partial Summary Judgment, and No-Evidence Motion for Summary Judgment

0n Third Parties” Negligence. In support thereof, Eagleridge would respectfully show the Court

the following:

I. ADDITIONAL EVIDENCE

Eagleridge hereby provides its statement 0f intent t0 rely 0n the following exhibits as

evidence. These exhibits are incorporated by reference as if fully set forth herein:

Exhibit A Afﬁdavit and report of Andrew Stringer;
Exhibit B Plaintiffs’ Notice of Intention to Resume Deposition 0f USG’S Designated
Corporate Representative, Jose Monro;
Exhibit C Plaintiffs’ Notice 0f Deposition of Matt Shafer;
Exhibit D Plaintiffs’ Notice 0f Deposition 0f Christina Akly;
Exhibit E Plaintiffs’ Notice 0f Deposition of Andrew Stringer;

1
On August 8, 2019, the Court heard Plaintiffs’ motion and Eagleridge’s Motion for Continuance. Due t0 the fact
that there were multiple depositions outstanding, the Court granted Eagleridge’s Continuance and requested
additional brieﬁng by August 22, 2019.

DEFENDANT EAGLERIDGE OPERATING, LLC’S SUPPLEMENTAL RESPONSE TO PLAINTIFFS’
MOTIONS ON RESPONSIBLE THIRD PARTIES Page 1
Exhibit F Excerpts from deposition of Kelly Walker With Exhibit 31 to the
deposition;
Exhibit G Excerpts from deposition of Jose Monro, individually;
Exhibit H Excerpts from deposition of Jose Monro, as corporate representative;
ExhibitI Afﬁdavit of J.J. Knauff;
Exhibit J Excerpts from deposition 0f Jose Monro, USG corporate representativef
Exhibit K Courtesy copy 0f Occidental Chemical Corporation v. Jenkins, 478
S.W.3d 640 (Tex. 2016);
Exhibit L Courtesy copy ofArredondo v. Techserv Consulting & Training, Ltd, 567
S.W.3d 383 (Tex. App.—San Antonio 2018, pet. ﬁled).

Eagleridge further intends t0 rely upon all pleadings and attachments thereto in the Court’s ﬁle

for this case pursuant to Rule 201 of the Texas Rules of Evidence. Barnard v. Barnard, 133

S.W.3d 782, 789 (Tex. App.—F0rt Worth 2004, pet. denied).

II. RELEVANT FACTS

Plaintiff alleges he was injured when a buried gas line burst 0n August 24, 2017 at the

Donnell #2 well site located near Bridgeport, Wise County, Texas. He asserted the well and all

pumping equipment on the site were owned by USG Properties Barnett II, LLC (“USG”), and

USG hired Eagleridge t0 serve as the operator in charge 0f the well and ongoing production.

Plaintiff was working as a pumper/lease operator for J&C Energy, Inc. (“J&C”), a subcontractor

t0 Eagleridge, When he was injured by the ruptured hot gas line. On April 5, 2019, Eagleridge

designated Aruba Petroleum, Inc. (“Aruba”) as a responsible third party. Aruba was the previous

contract operator 0f the Donnell #2H and chose the materials and installed the subject line in the

manner in which it was conﬁgured at the time of the incident. A11 of the work performed by

Aruba 0n the Donnell #2H was performed by Aruba as a contract operator of record and Aruba

was paid for itswork as a contract operator of record.

2
Exhibits A-I are attached t0 Eagleridge’s Motion for Continuance and Response to Plaintiffs”Motion to Strike
Aruba as a Responsible Third Party, Motion for Partial Summary Judgment, and No-Evidence Motion for Summary
Judgment on Third Parties’ Negligence. These exhibits are incorporated by reference as if fully set forth herein.

DEFENDANT EAGLERIDGE OPERATING, LLC’S SUPPLEMENTAL RESPONSE TO PLAINTIFFS’
MOTIONS ON RESPONSIBLE THIRD PARTIES Page 2
The foregoing is established by the deposition testimony of Jose Monro, USG’s corporate

representative. He testiﬁed as follows:

Okay. Do you know what a Facility Construction Plan is?
I can infer What is it, yes.

@PCPO What is it?

A plan on how to construct a facility.
Does USG itself 0r through any contractors 0r third-party vendors
typically put together a Facility Construction Plan for new tank batteries?
N0, it’s part 0f the operator task.

PO? The operator’s task?
Yes, sir.

(Ex. J, p. 387/3—25).

Q. (BY MR. KNAUFF) Okay. At least from the time that this compressor
was put on there in September of 2013 until May 0f 2017, Aruba was the
operator of record. You understand that, correct?
Yes.
.0?
And then at some point before September of 2013, I think when this well
was drilled, it was also drilled by Aruba as the operator of record. D0 you
understand that?
Okay, yes.
.0?
So would you expect them, being Aruba, at the time that the well was
drilled and that you were going to be bringing hydrocarbons online, t0
have done a Facility Construction Plan?
A. Yes, sir.

(Ex. J, p. 388/5—19).

Q. (BY MR. KNAUFF) Okay. And When Aruba would d0 a Facility
Construction Plan for the Donnell 2, would that be something that they
would be doing in their role as having been hired as operator 0f record by
USG?
A. Yes.

(EX. J, p. 389/13-18) (objections omitted).

Q. Okay. In this case we have -- Aruba has kind 0f a dual -- they’re operator
0f record, --

Right.
.0? -- correct? So they’ve been hired by USG to operate the various Aruba
assets, correct?
Yes.
.0?
And they’re paid a fee by USG t0 operate those various assets, correct?

DEFENDANT EAGLERIDGE OPERATING, LLC’S SUPPLEMENTAL RESPONSE TO PLAINTIFFS’
MOTIONS ON RESPONSIBLE THIRD PARTIES Page 3
Yes.
.0?
And then separately they are a working interest owner in certain wells. I

don’t know Which wells, but in -- in some wells, correct?
Uh-huh, yes.
.0?
So when Aruba would do a Facility Construction Plan for the building of
the battery at the Donnell 2, would that be done in their capacity as the
contract operator of record --
(BY MR. KNAUFF) -- or in their capacity as a working interest?

CPO No, as a contract operator 0f record.
(BY MR. KNAUFF) Okay. And similarly, When Aruba would d0
maintenance on wells like the Donnell No. 2, it was doing that
maintenance in its capacity as the contract operator, correct?
Yes, sir.
.0?
(BY MR. KNAUFF) And when it would perform any type 0f services on
wells like the Donnell 2, it was doing that in its contract operator 0f record
capacity?
A. As the operator 0f record, yes.
Q. (BY MR. KNAUFF) Not as a working interest owner, right?
A. Yes.

(EX. J, p. 391/1-392/13) (objections omitted).

When Aruba was the operator of record for the —
Yes.
OPOPO
-- Donnell N0. 2, they would do JIBS and send them t0 USG for approval?
Yes.
And those JIBs would be for any services that were provided 0n that well,
correct?
Yes.
.0?
A11 right. And they were paid an operation fee as operator 0f record,
correct?
Yes.
.0?
And then Whatever their portion 0f a working interest was in that JIB, then
they would go ahead and pay that portion out 0f the JIB based on their
percentage, correct?
A. Yes.

(Ex. J, p. 391/24-392/15).

Q. They’re responsible for a portion 0f that cost as a working interest owner,
but the preparation 0f that JIB and all the services that went into that
operation 0f that well by Aruba were done not as the working interest
owner but as the contract -- 0r sorry — the operator of record?
Ibelieve that’s the case.

DEFENDANT EAGLERIDGE OPERATING, LLC’S SUPPLEMENTAL RESPONSE TO PLAINTIFFS’
MOTIONS ON RESPONSIBLE THIRD PARTIES Page 4
Q. (BY MR. KNAUFF) Okay. And so Aruba would submit the JIB and they
would be paid back or reimbursed by USG for any of the work that was 0n
there pursuant to the amount 0f interest that USG had?
A. Yes.

(EX. J, p. 392/24-393/1 1)(objections omitted).

III. RESPONSE

A. Legal Analysis

i. Responsible Third Party Designation Standard

A defendant may seek to designate a person as a responsible third party by ﬁling a

motion for leave to designate that person as a responsible third party. TEX. CIV. PRAC. & REM.
CODE § 33.004(a). A “responsible third party” means any person Who is alleged t0 have caused

0r contributed to cause in any way the harm for which recovery of damages is sought, whether

by negligent act 0r omission 0r by other conduct 0r activity that violates an applicable legal

standard. TEX. CIV. PRAC. & REM. CODE 33.01 1(6). After adequate time for discovery, a party

may move t0 strike the designation 0n the ground that there isno evidence that the designated

party is responsible for any portion of the claimant’s alleged injury or damages. TEX. CIV. PRAC.

& REM. CODE § 33.0040). The court shall grant the motion to strike unless a defendant produces

sufﬁcient evidence t0 raise a genuine issue 0f fact regarding the designated party’s responsibility

for the claimant’s injury or damage. Id.

The standard of review under section 33.0040) mirrors the standard of review for a no-

evidence summary judgment. Ham v. Equity Residential Prop. Mgmt. Servs., Corp, 315 S.W.3d

627, 631 (Tex. App.—Dallas 2010, pet. denied) (citing Flack v. Hanke, 334 S.W.3d 251, 261-62

(Tex. App.—San Antonio 2010, pet. denied). The evidence presented by the non-movant is

Viewed in the light most favorable t0 the non-movant, and all contrary evidence and inferences

are t0 be disregarded. Rayon v. Energy Specialties, Ina, 121 S.W.3d 7, 12 (TeX. App.—

DEFENDANT EAGLERIDGE OPERATING, LLC’S SUPPLEMENTAL RESPONSE TO PLAINTIFFS’
MOTIONS ON RESPONSIBLE THIRD PARTIES Page 5
Texarkana 2002, n0 pet); Lehrer v. Zwernemann, 14 S.W.3d 775, 775 (Tex. App.—Houston [1“

Dist] 2000, pet. denied). T0 defeat a movant’s motion, the nonmovant “is not required to

marshal its proof; its response need only point out evidence that raises a fact issue on the

challenged elements.” Cracker v.Paulyne’s Nursing Home, 95 S.W.3d 416, 419 (Tex. App.—

Dallas 2002, no pet). If the non-movant presents more than a scintilla of probative evidence that

raises a genuine issue of material fact, then the no-evidence motion should be denied. Forbes v.

Granada Biosciences, 124 S.W.3d 167, 172 (TeX. 2003); Hess v. McLean Feedyard, Ina, 59

S.W.3d 679, 687 (Tex. App.—Amarillo 2000, pet. denied). More than a scintilla of evidence is

presented if it would enable reasonable and fair-minded people t0 differ in their conclusions.

Forbes, 124 S.W.3d at 172.

ii. Summary Judgment Standard

A party is entitled to a summary judgment unless the non-movant can either (1) identify a
fact issue in the negated elements, 0r (2) create a fact issue by producing controverting evidence

that raises a fact issue 0n one 0f the negated elements. Centeg thy., Inc. v. Siegler, 899 S.W.2d

195, 197 (Tex. 1995) (raise fact issue); Prescott v. CSPH, Ina, 878 S.W.2d 692, 693-94 (TeX.

App.—Amarillo 1994, writ denied) (create fact issue). In deciding whether there is a disputed

material fact issue precluding summary judgment, evidence favorable t0 the non-movant must be

taken as true, and every reasonable inference must be indulged in favor 0f the non-movant, and

all doubts must be resolved in the non-movant’s favor. See, e.g., Nixon v. Prop. Mgmt. C0., Ina,

690 S.W.2d 546, 548-49 (Tex. 1985).

iii. Occidental/Arredondo

Plaintiffs have Cited Occidental Chemical Corporation v.Jenkins, 478 S.W.3d 640 (Tex.

2016) for the proposition that claims against Aruba sound strictly in premises liability and not

DEFENDANT EAGLERIDGE OPERATING, LLC’S SUPPLEMENTAL RESPONSE TO PLAINTIFFS’
MOTIONS ON RESPONSIBLE THIRD PARTIES Page 6
negligence such that Aruba cannot be liable since ithad sold its interest in the Aruba assets prior

t0 Mr. Lovem’s injury (Plaintiffs’ Reply p. 5). Aruba did own a small working interest in the

subject well understood to be 1%; however, Aruba’s role in designing the facility, choosing the

materials, installing the materials, and maintaining the facility were completed not as an owner

but as a contractor hired by USG, the majority interest owner in the Donnell #2H.

In Occidental, Occidental was the owner of a plant and itutilized its own staff to design

an acid facility that was defective. Occidental sold the plant and eight years later a worker was

injured by the defectively designed acid facility. The Supreme Court 0f Texas determined that

the claims against Occidental sounded in premises liability but noted, “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.” Id. at 642.

Occidental is distinguishable because in that case Occidental was completing the designs

0f the acid facility in its capacity as an owner 0f the property and did not hire a third party 0r

contractor to complete the design work. Here, Aruba did not complete the design, installation,

and/or maintenance of the Donnell 2 in itscapacity as an owner of the property. Instead, Aruba

was hired separately by USG t0 act as the Railroad Commission operator of record, and Aruba

was paid for the design, installation, and maintenance of the Donnell 2 as a contractor.

The facts of this case appear to be 0f ﬁrst impression; however, one case, Arredondo v.

Techserv Consulting & Training, Ltd., 567 S.W.3d 383, 392 (Tex. App.—San Antonio 2018, pet.

ﬁled), appears t0 be most analogous. In Arredondo, T&D was a contractor hired by AEP to

remove a utility pole and T&D completed itsremoval on December 2, 2013 but failed to ﬁll in

the hole Where the pole was originally placed. On July 30, 2014, Arredondo was walking 0n the

DEFENDANT EAGLERIDGE OPERATING, LLC’S SUPPLEMENTAL RESPONSE TO PLAINTIFFS’
MOTIONS ON RESPONSIBLE THIRD PARTIES Page 7
property, stepped in the hole, and was injured. Arredondo sued AEP and T&D, among others,

for negligence per se and negligence. T&D ﬁled summary judgment alleging the allegations

sounded in premises liability because “[t]he claim of a person injured by the condition 0n

property is a premises—liability claim.” Arredondo, 567 S.W.3d at 391. The trial court agreed,

granted summary judgment, and an appeal followed. In the appeal, the Arredondo cited Section

385 of the Second Restatement of Torts, which states:

One Who 0n behalf 0f the possessor 0f land erects a structure 0r creates any other
condition thereon is subject to liability to others upon 0r outside of the land for
physical harm caused t0 them by the dangerous character of the structure or
condition after his work has been accepted by the possessor, under the same rules
as those determining the liability of one who as manufacturer or independent
contractor makes a chattel for the use 0f others.

Id. at 392 (citing RESTATEMENT (SECOND) TORTs § 385 (1965), Occidental, 478 S.W.3d at 646)).

Thereafter, the Arredondo court concluded the case sounded in negligence and not premises

liability by holding “[b]ecause the record shows T&D did not have control over the property

when Arredondo was injured and T&D removed the pole as a contractor for AEP, thereby

creating a dangerous condition, we conclude Arredondo's claim against T&D for creating the

hole and failing to ﬁll it or warn of its existence sounds in ordinary negligence, not premises

liability.” Id. at 393.

Arredondo is analogous t0 this case because Aruba did not have control over the property

at the time 0f the accident3 and Aruba designed, installed, and maintained the subject line and

facility as a paid contractor for USG (EX. J, p. 391/1-392/13). Based upon the foregoing facts,

the claim against Aruba “sounds in ordinary negligence.” See id.

3
“with no ownership and with no operational control over the premises, Aruba was
Plaintiffs argue in their Reply:
not an owner, occupier, possessor, manager, or otherwise in control of the premises” (Reply p. 13).

DEFENDANT EAGLERIDGE OPERATING, LLC’S SUPPLEMENTAL RESPONSE TO PLAINTIFFS’
MOTIONS ON RESPONSIBLE THIRD PARTIES Page 8
B. Application 0f Law t0 Facts

There is a material fact issue precluding Plaintiffs’ motion to strike and summary

judgment because there is testimony from Kelly Walker and Jose Monro, witnesses for USG,

that USG owned the subject compressor and complained-of piping and Aruba was a contract

operator. Further, Andrew Stringer has attested that the acts and/or omissions 0f Aruba caused

and/or contributed t0 the accident. Thus, the motions should be denied.

Andrew Stringer is a Professional Engineer Who has opined, among other things, that (i)

“Mr. Lovern was injured due t0 the failure of . . . Aruba to properly install and maintain its

compressor and associated piping on the Donnell Well No. 2H;” (ii)“Mr. Lovern was injured

due t0 the failure 0f . . . Aruba t0 warn of the improper installation 0f its compressor and

associated piping 0n the Donnell Well N0. 2H;” and (iii)“Mr. Lovem was injured by a pre-

existing condition perpetuated by .. . Aruba” (EX. A). Stringer attested that the “installation of

the compressor and compressor piping 0n the Donnell Well N0. 2H was designed and engineered

by . .. Aruba” and installed by Aruba 0n September 4, 2013 (EX. A, report p. 6, 10-1 1). Stringer

further opined that Aruba failed to inform Eagleridge of the results of its audits and inspections

that took place prior t0 Eagleridge becoming the contract operator and Aruba failed to warn that

the buried line was corroded (EX. A, report p. 10). Stringer also took issue With Aruba’s failure

to warn Eagleridge of the manner in Which the buried pipe was installed (i.e., coated, wrapped,

etc.) (EX. A, report p. 14, 17) and the pipe’s failure was not foreseeable to Eagleridge since the

pipe was not Visible and “Aruba failed t0 warn Eagleridge 0f the installation of the hot gas line

with no protection” (EX. A, report p. 15). Stringer was also critical of Aruba for failing t0

inform Eagleridge of any problems on the Donnell 2H or disclose any information to Eagleridge

DEFENDANT EAGLERIDGE OPERATING, LLC’S SUPPLEMENTAL RESPONSE TO PLAINTIFFS’
MOTIONS ON RESPONSIBLE THIRD PARTIES Page 9
regarding the installation of the piping prior to Eagleridge’s take over as contract operator on or

about May 1, 2017 (EX. A, report p. 18).

This appears t0 be a case of ﬁrst impression; however, the facts 0f the subject case are

distinguishable from the cases cited by Plaintiffs because Aruba was the contract lease operator

Who owned a minor interest (1%) in various wells but the majority owner, USG (99%), remained

owner before the transfer of operator’s duties and afterward (Plaintiff EX. B p. 105/23-106/13).

Aruba’s role as contract operator was separate and apart from any role as a 1% interest owner.

As the contract operator 0f record hired by USG, Aruba was paid a fee by USG t0 operate the

wells, including the Donnell #2H (EX. J, p.391/1-392/13); Aruba was tasked with completing the

Facility Construction Plan for the design and installation of the Donnell #ZH (EX. J,p. 389/13-

18); and Aruba was responsible for maintaining and servicing the Donnell #2H (EX. J, p. 391/1-

392/13). A11 of the foregoing were done in Aruba’s role as the contract operator of record and

not as a property owner (EX. J, 389/13-18, p. 391/1-392/13).

Jose Monro, in his individual capacity, also testiﬁed the contract operator, not owner, is

the one Who makes sure that the proper equipment isplaced 0n a wellsite (EX. G p. 122/ 1-9), and

he believed itwas the contract operator’s role t0 determine whether buried pipe is coated or

wrapped (EX. G p. 123/2-16; EX. H p. 33/19-25). Monro also testiﬁed it isthe contract operator

Who is “making those calls [0]n behalf 0f everyone 0f -- of the owner” (EX. G p. 123/21-124/5).

Taking the foregoing evidence as true and indulging every reasonable inference in favor

0f Eagleridge, an issue of material fact exists such that a motion t0 strike and/or summary

judgment in favor 0f Plaintiffs isprecluded. Therefore, Plaintiffs’ motion to strike and summary

judgment motion should be in all things denied.

DEFENDANT EAGLERIDGE OPERATING, LLC’S SUPPLEMENTAL RESPONSE TO PLAINTIFFS’
MOTIONS ON RESPONSIBLE THIRD PARTIES Page 10
WHEREFORE, PREMISES CONSIDERED, Defendant Eagleridge Operating, LLC,

prays that all relief prayed for by Plaintiff be denied, and for such other and further relief as may

be deemed necessary and appropriate under the facts and circumstances and applicable law.

Respectfully Submitted,

/s/J.J. Knauff

J.J.KNAUFF
State Bar N0. 240325 1 7
jknauﬂ@tmlﬁac.com
THE MILLER LAW FIRM
1950 Turtle Creek Center
3811 Turtle Creek Boulevard
Dallas, Texas 752 1 9
(469) 9 1 6-2552
(469) 916-2555 fax

ATTORNEYS FOR DEFENDANT
EAGLERIDGE OPERATING, LLC

CERTIFICATE OF SERVICE

I certify that true copies of this Response were served on allknown counsel 0f record as

indicated below on the 22nd day 0f August 2019.

Jason B. Stephens
Seth M. Anderson
John M. Cummings
B. Adam Drawhorn
Stephens, Anderson & Cummings, LLP
4200 West Vickery Blvd.
Fort Worth, Texas 76107
Counselfor Plaintiﬂ

/s/J.J. Knauff
J.J. KNAUFF

DEFENDANT EAGLERIDGE OPERATING, LLC’S SUPPLEMENTAL RESPONSE TO PLAINTIFFS’
MOTIONS ON RESPONSIBLE THIRD PARTIES Page 11
EXHIBITI

6" LexisNexis:

User Name: Jerry Knauf‘f

Date and Time: Thursday, August 22, 2019 1:21 :00 PM EDT
Job Number: 95596839

Document (1)

1.Occidental Chem. Corp. v.Jenkins, 478 S.W.3d 640
CIienthatter: -None-

Search Terms: 478 S.W.3d 640
Search Type: Natural Language
Narrowed by:

Content Type Narrowed by
Cases -None-

Jerry Knauff
EXHIBIT |

0
As
Positive
of:August 22, 2019 5:21PM Z

Occidental Chem. Corp. v. Jenkins

Supreme Court of Texas

September 3, 2015, Argued; January 8, 2016, Opinion Delivered

NO. 13-0961

Reporter
478 S.W.3d 640 *; 2016 Tex. LEXIS 5 **; 59 Tex. Sup. J. 196
did not control the property at the time of the
OCCIDENTAL CHEMICAL CORPORATION,
employee's injury, it had no ability to warn of or
PETITIONER, V. JASON JENKINS,
remedy the dangerous condition; [4]-Vendors of
RESPONDENT
real property are not liable for injuries caused by
Prior History: [**1] ON PETITION FOR dangerous conditions on real property after

REVIEW FROM THE COURT OF APPEALS conveyance; [5]—The court of appeals erred by
FOR THE FIRST DISTRICT OF TEXAS. recognizing a new exception t0 the general rule for
former property owners who occupied dual roles as
both owner and designer of the defective
Jenkins v. Occidental Chem. Com, 415 S. W.3d I4, improvement.
2013 Tex. App. LEXIS 8101 (Tex. App. Houston [st

Dist., 20132 Outcome
Reversed and rendered.
Core Terms
LexisNexis® Headnotes
dangerous condition, property owner, acid—addition,
plant, premises—liability, acid, court 0f appeals,
contractor, valve, tank, principles, property's,
designer, premises, creates, vendor, independent
contractor, premises liability, real property, parties,
Torts > Premises & Property
vendee, former owner, general rule, no duty,
Liability > General Premises
manufacturer, condition’s, chemical, injuries, warn,
Liability > Dangerous Conditions
pot

Torts > Negligence
Case Summary
Real Property Law > Purchase & Sale

Overview HNI [i] Dangerous Conditions
HOLDINGS: [1]—In a premises liability case, the
former owner of a chemical plant owed an injured A claim against a property owner for injury caused
employee n0 duty of care regarding the property's by a condition of real property generally sounds in
condition because that duty had passed to its premises liability. That liability typically ends With
vendee eight years before the employee's injury; the property's sale. When the property's dangerous
[2]—The court of appeals erred in holding the former condition is caused or created by another, an
owner liable for the dangerous condition and the independent claim against the other may lie in
employee's injury; [3]—Because the former owner negligence and that claim, unlike the premises-

Jerry Knauff
Page 2 of 10
EXHIBIT |

478 S.W.3d 640, *640; 2016 Tex. LEXIS **1
5,

liability claim against the owner, does not Premises > Invitees
necessarily end with the property's sale.
Torts > > Duties 0f Care > Duty On
Premises > Reasonable Care

Torts > Premises & Property
HN4[$] Duty t0 Warn
Liability > General Premises
Liability > Dangerous Conditions
Under premises—liability principles, a property
owner generally owes those invited onto the
HN2[$] Dangerous Conditions
property a duty to make the premises safe or to

A claim against a previous owner for
warn of dangerous conditions as reasonably prudent
injury
under the circumstances. That duty generally runs
allegedly caused by a dangerous condition of real
With the ownership 0r control 0f the property and
property remains a premises—liability claim,
regardless of the previous property owner's role in
upon a sale ordinarily passes to the new owner.
creating the condition.

Torts > Premises & Property
> > General Premises Liability > General Premises
Torts
> Duties of Care > Duty On Premises Liability > Dangerous Conditions
Liability

Torts > Premises & Property HN5[$] Dangerous Conditions

Liability > General Premises Liability
A vendor of land is not ordinarily liable for injuries
> Negligence to a vendee or to third persons caused by a pre-
Torts
existing dangerous condition after the vendee takes

HN3[$] Duty On Premises possession. A vendor of land is not subject to

liability for physical harm caused to his vendee or
Depending 0n the circumstances, a person injured others while upon the land after the vendee has
on another's property may have either a negligence taken possession by any dangerous condition,
claim 0r a premises—liability claim against the Whether natural 0r artiﬁcial, which existed at the
property owner. When the injury is the result of a time that the vendee took possession.
contemporaneous, negligent activity on the
property, ordinary negligence principles apply.
When the injury is the result 0f the property's Torts > Premises & Property
condition rather than an activity, premises-liability Liability > General Premises
principles apply. Although premises liability is
Liability > Dangerous Conditions
itself a branch of negligence law, it is a special
form with different elements that deﬁne a property Torts > > Duties of Care > Duty On
owner or occupant's duty with respect t0 those Who Premises > Reasonable Care
enter the property.
Torts > > General Premises
Liability > Defenses > Independent Contractors

Torts > > General Premises
Torts > Negligence
Liability > Dangerous Conditions > Duty to
Warn HN6[$] Dangerous Conditions

Torts > > Duties 0f Care > Duty On

Jerry Knauff
Page 3 of 10
EXHIBIT |

478 S.W.3d 640, *640; 2016 Tex. LEXIS **1
5,

An owner Who creates a dangerous condition on its HN8[$] Dangerous Conditions
own property has breached n0 duty of care unless
and until the owner exposes certain people t0 the N0 Texas case supports a dual-role analysis for

danger. The owner's duty in this instance is rooted former property owners sued for premises liability.

in its control over the property, which is to say Moreover, the weight 0f authority rejects the notion
premises liability. Such liability rests on two that a property owner acts in multiple capacities

theoretical assumptions: (1) the property owner when

Case Info

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WILLIAMS, KRISTINA M Track Judge’s New Case

Case No.

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Document Filed Date

August 22, 2019

Case Filing Date

April 24, 2018

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Parties

ANDERSON, SETH Attorney for the Plaintiff
BRIAN, CATHEY J. Attorney for the Defendant
CUMMINGS, JOHN M Attorney for the Plaintiff
DE LA GARZA, LELAND C Attorney for the Defendant
DONATO, RANDY G Attorney for the Defendant
DRAWHORN, B ADAM Attorney for the Plaintiff
EAGLERIDGE OPERATING, LLC Defendant
FLETCHER, DOUGLAS D Attorney for the Defendant
HOLLENBECK, R. RUSSELL Attorney for the Defendant
KLAES, CHAZ D Attorney for the Defendant
KNAUFF, JERRY JOE Attorney for the Defendant
LEVY, DANA Attorney for the Plaintiff
LOVERN, EARMON Plaintiff
LOVERN, LACEY Plaintiff
LOVERN, PEGGY Plaintiff
LOVERN, STORMY Plaintiff
PICKERING, MARK Attorney for the Defendant
PITTARD, KIRK Attorney for the Plaintiff
ROBB, KEITH A Attorney for the Defendant
SPRINGER, STEVEN A Attorney for the Defendant
STEPHENS, JASON Attorney for the Plaintiff
STEPHENS, JASON B Attorney for the Plaintiff
USG PROPERTIES BARNETT II, LLC Defendant
Bradley Drawhorn Attorneys for Plaintiffs
Steven Engelhardt Attorney
John Johnson Attorney
Lauren Lopez Attorney
David Hammack Attorneys for Defendants
William Gardner Attorney
Trenton Gray Attorney
Tara Sohlman Attorneys for Defendants
Julie Shehane Attorneys for Defendants

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Motion-Secondary: EARMON LOVERN vs. EAGLERIDGE OPERATING, LLC, et al

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