Distinctions, distinctions….

There was a day when the best possible thing you could be in the United States was a landowner.  Landowners had all the rights.  There was all that stuff about property in the Constitution, and you had to own land in order to vote, too.  Being a landowner was being at the top of the pecking order, politically, commercially, and socially.  And, judging by the latest out of the Texas Supreme Court, that’s still the case and now it’s good to get you out of multiple species of liability, too.

Some years ago, the Texas Legislature passed what became Chapter 95 of the Texas Civil Practice & Remedies Code.  It was designed as a practical measure to protect landowners when a contractor came onto their property and performed negligently.  This makes some sense.  Contractors are specialists, whether they are electricians, plumbers, or roofers.  They probably know more about the particular property feature they are working on than does the average joe, and that average joe might well include the property owner.  But what happens when a property owner does his own repairs or actually builds the property fixture that turns out to be a premises defect?  Well, according to the Texas Supreme Court, as long as he’s dumped it off on someone else, he walks, liability free.

In Occidental Chemical Corp. v. Jenkins, the Court considered the case of Jason Jenkins, an Equistar Chemicals employee, injured by an allegedly defective fixture built by Occidental, the prior owner of Equistar’s facility.  Jenkins suffered chemical burns to his face from an acid-addition system that was built by Occidental. The system was used without incident by Occidental’s employees for about six years before it sold the property to Jenkins’s employer and again for eight years as an Equistar property.  Justice Devine, writing for the Court, thus pointedly noted that the equipment was used safely by employees for some 14 years before Jenkins’s injury–a matter that was wholly irrelevant to anything, but why let that spoil the party?

Jenkins sued Occidental for negligently designing the acid-addition system, and Occidental–in addition to generally denying the allegations–pled two statutes of repose.  After a jury returned a verdict against Occidental, the trial court held that one of those statutes was supported by the facts and granted judgment notwithstanding to Occidental.  On appeal, the First Court of Appeals reversed, holding that neither statute was supported and rejecting Occidental’s argument that, because it no longer owned the premises, it could no longer be liable for a premises defect.  The appellate court held that the jury found Occidental liable for negligently designing the property improvement, not for being the owner of a defective premises.

But the Texas Supreme Court reversed again, holding that Jenkins take nothing.  It rejected the analysis that the Court of Appeals employed, holding that Jenkins’s only claim against Occidental was in premises liability and, since Occidental didn’t own the property at the time he was injured, there could be no liability.  The Court observed that no Texas case supported the Court of Appeals “dual-role analysis,” which is kind of unsurprising being that it’s the job of the Texas Supreme Court to rule on this sort of thing and it had never done it before.

There is very little doubt that Occidental could have been liable to Jenkins if it had been a contractor installing the very same equipment on someone else’s property. As the Court’s opinion observed, the arc of the law is to view contractors in a similar light to product manufacturers.  Even after work is accepted, the contractor can be liable for defective design and workmanship.  But, because Occidental owned the land where the equipment was installed, it could be liable only during its ownership, and it didn’t matter what the jury thought.  Because laws and stuff.

So, once again, our Texas Supreme Court ensures that all litigants are treated equally.  Some, just a little bit more equally than others.