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Those That Can, Usually Can’t Sue

On Behalf of | Sep 27, 2013 | Firm News

Can contractors sue property owners for personal injury when they are injured by the same object they were hired to repair? Please read this entry to learn how a recent El Paso, Texas, case interpreting Chapter 95 of the Texas Civil Practice & Remedies Code may affect your future claims.

The Case:

Montoya v. Nichirin-Flex U.S.A., Inc. (Tex. App.El Paso Aug. 7, 2013).

The Facts:

Nichirin owned a facility in El Paso, Texas, that had a leaky roof. Nichirin could not repair the roof so it hired SPF Foam Roofing to fix the leak. Jessica Montoya worked for SPF Foam Roofing and was cleaning the area near the leak when she fell through a corroded area of the roof and died.

Jessica’s mother filed a premises liability suit against Nichirin because of the corroded roof. Nichirin filed for summary judgment based on Chapter 95 of the Texas Civil Practice and Remedies Code. That motion for summary judgment was granted and then appealed.

The El Paso Court of Appeals Affirmed:

The El Paso Court of Appeals first explained that Chapter 95 of the Texas Civil Practice and Remedies Code bars personal injury claims against a property owner that arise from the repair of an improvement to real property. The court also explained the exception to this rule is where the property owner (1) exercises control over the work and (2) has actual knowledge of the dangerous condition that causes the harm.

The El Paso Court first found that Jessica Montoya was “repairing” the roof (not defined by the statute) because she was restoring the primary function of the roof to keep out water and other elements. The court next found that Jessica Montoya died repairing the improvement she was hired to repair, namely the roof. The court rejected the argument that Chapter 95 would only apply if a defendant demonstrated that a plaintiff was killed repairing the exact portion of the improvement that caused the plaintiff’s death.

What to Take Away:

Chapter 95 applies in situations where a contractor is injured or killed repairing the object they are hired to repair. Here, that object was the roof. But, for example, if they are injured or killed by a defective roof while working to repair an air conditioner, Chapter 95 does not apply.


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