Texas Court of Appeals Addresses Issue of Control of Property Owner Under Chapter 95February 26, 2020 – Article
On December 19, 2019, the Thirteenth Court of Appeals overruled Union Carbide’s first issue on appeal in Union Carbide Corp. v. Torres, No. 13-10-00325-CV (Tex. App. Dec. 19, 2019), holding that there was more than a scintilla of evidence supporting the jury’s finding that appellant Union Carbide exercised some control over the means, methods, and details of Torres’ work. The ruling is significant for property owners because it broadly construes a property owner’s “control” under Chapter 95 of the Texas Civil Practice and Remedies Code, which establishes limitations on a property owner’s liability for personal injury, death, or property damage to independent contractors. The Appellate Court also overruled Union Carbide’s third issue on appeal, holding that the evidence was legally sufficient to establish specific causation because Torres only suffered occupational exposure to asbestos at Union Carbide’s Brownsville plant. The Court applied the substantial factor causation test to Garlock but applied a different test to Union Carbide because Torres’ exposure to asbestos-containing gaskets and asbestos-containing insulation occurred on Union Carbide’s premises. The outcome of this analysis in applying Bostic to the product defendant is encouraging for other similarly situated product defendants where a plaintiff may be exposed to multiple products at one location. However, the application of a different standard to the premises defendant with no requirement of a showing of dose may be a problematic precedent.
In Torres, Oscar Torres was diagnosed with mesothelioma in 2009. He sued approximately 19 defendants alleging causes of action for premises liability, products liability, negligence, and fraud. However, Union Carbide and Garlock were the only two defendants left at trial. Torres worked as a pipefitter at Union Carbide’s Brownsville chemical plant between 1975 and 1977 and was allegedly exposed to pipe insulation containing amosite fibers, as well as Garlock’s asbestos-containing gaskets. Brown & Root (B&R) employed Torres, an independent contractor hired by Union Carbide, to perform maintenance and repair at Union Carbide’s Brownsville plant. He routinely assembled, disassembled, fabricated, removed, and installed pipes at the plant.
Chapter 95 and “Control”
In their brief to the Thirteenth Court of Appeals, Union Carbide pointed to a case with similar facts in which the First Court of Appeals, applying Chapter 95, had reversed a judgment against Union Carbide. Union Carbide Corp. v. Smith, 313 S.W.3d 370 (Tex. App.—Houston [1st Dist.] 2009, pet. denied). The Smith court found there was no evidence Union Carbide directly employed insulators or other employees who worked in the vicinity of plaintiff and exposed plaintiff to asbestos to the extent that such evidence was relevant to the issue concerning how plaintiff performed his work. Smith, 313 S.W.3d at 377. Second, the fact that Union Carbide provided certain specifications and asbestos-containing materials for the projects to be completed on its premises did not constitute evidence that Union Carbide retained or exercised any control over how plaintiff performed his work. Even though Union Carbide employees testified that contractors, in general, did not have the discretion to deviate from UCC specifications. Id. Lastly, the court found Union Carbide’s manual for contractors, which implemented and required plaintiff’s employer to follow certain safety rules to be insufficient evidence to impose liability on Union Carbide. Smith, 313 S.W.3d at 378.
However, Union Carbide’s argument and the ruling in Smith did not influence the Appellate Court. The Court found that Union Carbide’s reliance primarily on evidence that Torres and other B&R workers received their instructions from a B&R foreman to be unpersuasive and not dispositive of Union Carbide’s control. Torres, No. 13-10-00325-CV, at *16. Most damaging for Union Carbide was testimony from Union Carbide’s senior engineer stating that B&R supervisors were “puppets” of Union Carbide. Id. The Court went on to find Union Carbide retained control by instructing B&R pipefitters how to do repairs—including how to tighten a bolt on a flange and which gasket to use; being present during repairs, inspecting B&R’s work when finished, and if not done satisfactorily, instructing B&R workers to correct it; requiring B&R workers to use only the tools and supplies that Union Carbide provided; and lastly, controlling the sequence and timing of maintenance work such that it controlled the proximity of the workers to each other, exposing Torres to asbestos dust. Id at *17.
This ruling in Torres creates a split in the courts regarding a property owner’s “control” under Chapter 95. Torres’ broad interpretation of “control” implies property owners cannot provide stipulations about suitable materials to use or require a subcontractor’s employees to do their job to satisfaction (i.e., conforming to specifications) without amounting to controlling of the operative details of how the employees accomplish the work. Moreover, under Torres, a property owner may be liable if the property owner controls the scheduling of those working in the vicinity of plaintiff who has potentially exposed him to asbestos.
Substantial Factor Causation
Further, the Thirteenth Court of Appeals applied the substantial factor causation test found in Flores and Bostic to Garlock but not to Union Carbide. A plaintiff may satisfy the requirements of substantial factor causation “by demonstrating that the plaintiff's exposure to defendant's asbestos-containing product in reasonable medical probability was a substantial factor in contributing to the aggregate dose of asbestos the plaintiff or decedent inhaled or ingested, and hence to the risk of developing asbestos-related cancer.” Bostic v. Georgia-Pac. Corp., 439 S.W.3d 332, 377-78(Tex. 2014) (quoting Borg-Warner Corp. v. Flores, 232 S.W.3d 765, 773 (Tex. 2007)).
The Appellate Court held that because there was no evidence that Torres suffered occupational exposure to asbestos at any other location than Union Carbide’s Brownsville plant, the Torreses did not need to quantify the exposure to gasket-originated asbestos separately from insulation-originated asbestos. The Court interpreted the substantial factor causation test to only apply to cases where the plaintiff is exposed to multiple sources to mean exposure at multiple locations. The Appellate Court reasoned that this was the possibility discussed in Bostic, that a plaintiff could establish direct proof causation with reliable expert testimony that the plaintiff’s exposure to a particular toxin is the only possible cause of his disease and the only possible source of the toxin is the defendant’s premises. Id. at 352. This interpretation diverges from the holding in Flores and Bostic that state the plaintiff must sufficiently demonstrate what dose of fibers plaintiff was exposed to and that the exposure was a substantial factor in bringing about the disease to demonstrate causation. Bostic and Flores rejected the “any exposure theory,” stating that any exposure alone will not suffice to establish causation. Both courts required “[d]efendant-specific evidence relating to the approximate dose to which the plaintiff was exposed, coupled with evidence that the dose was a substantial factor in causing the asbestos-related disease.” Bostic, 439 S.W.3d at 338 (quoting Flores, 232 S.W.3d at 773).
In contrast, Garlock’s gasket was one of many asbestos products that Torres was exposed to at the Brownsville plant. Here, the Court held Torres was required to meet the substantial factor causation test for multiple exposure cases found in Flores and Bostic. The Court applied the defendant-specific dose evidence requirement and found while there was evidence demonstrating a dose attributable solely to Garlock gaskets, there was no evidence showing that such a dose more than doubled Torres’ risk of developing mesothelioma. Bostic requires that more than doubling of the risk be shown through reliable expert testimony that is based on epidemiological studies or similarly reliable scientific testimony. The Court held the Torresses failed to produce such evidence.
The causation analysis in Torres leaves premises liability defendants vulnerable where plaintiff may have been exposed to multiple asbestos-containing products at one location. Under this analysis, premises liability defendants will be held liable if all possible sources of asbestos exposure occurred on the defendant’s premises.
The Impact of Torres
Whether Union Carbide will appeal the Torres decision remains to be seen. Moving forward, premises liability defendants will need to make clear fact distinctions from Torres. Further, premises liability defendants should provide more evidence beyond the fact that plaintiff received their instructions from plaintiff’s employer.