Opinion issued December 22, 2016

In The

Court of Appeals 

For The 

First District of Texas 

————————————

NO. 01-15-01005-CV

———————————

HENRY RAWSON JR. AND SUSAN RAWSON, Appellants

V.

OXEA CORPORATION, DASHIELL CORPORATION, AND MUNDY

MAINTENANCE AND SERVICES LLC, Appellees

On Appeal from the 190th District Court

Harris County, Texas

Trial Court Case No. 2015-07842

MEMORANDUM OPINION

In this appeal, we determine whether the trial court correctly granted 

summary judgment to Oxea Corporation based on the protections afforded under 

Chapter 95 of the Civil Practice and Remedies Code, which shields property 
2

owners from liability to contractors, subcontractors, and their employees in certain 

circumstances. The summary judgment disposed of the negligence claims brought 

by Henry Rawson Jr., a contractor’s employee, who was injured while working on 

Oxea’s property.1 The summary judgment also disposed of a loss-of-consortium 

claim asserted by Rawson’s wife, Susan. On appeal, the Rawsons identify seven 

issues, attacking different aspects of the trial court’s summary-judgment. Because 

Oxea carried its summary-judgment burden of establishing that the protections of 

Chapter 95 apply to Henry Rawson’s claims, and Rawson did not meet his 

summary-judgment burden of offering evidence sufficient to raise a genuine issue 

of material fact regarding the exception to Chapter 95’s protections, we affirm the 

trial court’s judgment.

Background

Oxea owns a chemical plant in Baytown, Texas. It also owns an electrical 

substation located across the road that supplies power to the plant. The chemical 

plant acquired the substation from the power company in 2003. The substation is a 

structure comprised of steel beams, attached to a concrete foundation, and contains 

electrical equipment. The substation has two transformers: Transformer One and 

Transformer Two. Each transformer supplies electricity to different parts of the 

 

1 Rawson also sued Dashiell Corporation and Mundy Maintenance and Services 

LLC. After this appeal was filed, the Rawsons settled their claims with Dashiell 

Corporation and Mundy Maintenance. This Court granted the Rawsons’ motions 

to dismiss their appeal against Dashiell and Mundy Maintenance. 
3

plant. Power comes into the substation through transmission lines at 138,000 volts. 

The transformers then reduce the power to 12,470 volts for distribution into the 

plant through other lines running from the substation. Two power lines run to the 

plant from Transformer One and two lines run to the plant from Transformer Two. 

On Saturday, June 9, 2012, a raccoon entered the substation and caused an 

electrical short, tripping breakers and shutting off power to the part of the plant 

powered by Transformer One. The short circuit also damaged two insulators in the 

substation. The insulators attach bare metal electrical conductors, individually 

known as a “bus” or a “bus bar,” to the steel beam support structure that runs into 

the concrete foundation. The insulators also prevent electricity from flowing from 

the electrically-charge busses into the steel support-beam structure and down into 

the ground. 

Alvin Kocurek, an Oxea employee, was called to the plant to address the 

power outage. At that time, Kocurek had worked at the plant for 37 years. He was 

a journeyman electrician and “point person” for the substation. It was determined 

that, if power was turned back on to the plant from Transformer One without 

replacing the insulators, power would flow into the substation’s steel support 

structure and down to the ground, causing severe damage to the substation. 

Because Oxea had a formal policy prohibiting its employees from working 

on electrical equipment with a voltage exceeding 600 volts, Oxea personnel could 
4

not replace the insulators. The insulators needed to be replaced by an outside 

contractor with the necessary skills to work on high-voltage lines. 

While waiting for the insulators to be replaced, power needed to be restored 

to the entire plant. The plant had been designed so that it could be powered by 

only one of the transformers. This could be accomplished by tying the electrical 

lines that ran from Transformer Two to the lines inside the plant that normally 

received power from Transformer One. Kocurek and a team, which included other 

Oxea employees, met to devise a procedure to tie the lines together and to switch 

the power from Transformer Two to energize the lines within the plant that were 

normally powered by Transformer One. However, in devising the procedure, Oxea 

also needed to “isolate” the work area, where the insulators would be replaced,

from the energy source. In other words, the procedure for switching the power in 

the plant also needed to prevent the area where the work on the insulators would be 

performed from being energized with electricity. 

Kocurek prepared a hand-written procedure for switching the power from 

Transformer Two to the lines inside the plant that were normally energized by 

Transformer One. He also intended for the procedure to isolate the work area from 

being energized on the Transformer One side where the insulators would be 

replaced. In preparing the switching procedure, Kocurek consulted the plant’s 
5

“one-line diagram,” which shows all the electrical circuits coming to and going 

from different apparatuses in the plant.

Kocurek would later explain in his affidavit how the power switch was 

accomplished:

14. The plant was designed so that, if necessary, it could run off of a 

single transformer. The plant had several areas that needed to be 

energized from Transformer No. 2 once Transformer No. 1 shut 

down. In order to energize these areas, it was necessary to close 

various switches inside of the plant to tie these areas together. This is 

mainly conducted through switch gear located inside of block houses.

15. Inside of the Oxea plant, we had four blockhouses. We checked 

the breakers in all four block houses so we could assess the condition 

of the plant. We determined that we would need to conduct switching 

at two of these block houses, the Area 2 and the VA Cooling Tower

block houses. This would allow us to tie together power lines to 

restore electricity to the portions of the plant which had lost power. 

The switch gear in the block houses are sometimes referred to a “line 

switch.” The switch gear are housed inside of large cubicles inside of 

the block house that permit them to be safely operated from a handle 

outside of the enclosure without exposing the operator to direct 

contact with the switch gear mechanism or energized lines or 

equipment. This switch gear allowed us to switch the flow of power 

to different areas of the plant. . . .

. . . .

21. In the substation, we had opened up all the knife switches located 

in the substructure that normally received power from the No. 1 

transformer. . . .

Even though power was restored to the plant, the insulators still needed to be 

replaced before Transformer One could be re-energized. Since acquiring the 

substation, Oxea had used a contractor, Dashiel Corporation, and its subsidiary, 
6

Dacon Corporation, to work on the high-voltage equipment at the facility. Henry 

Rawson was employed by Dacon as a high-voltage lineman. When Dacon 

received the request from Oxea, Rawson agreed to go to the substation to replace 

the insulators. 

After arriving at the substation, Kocurek reviewed with Rawson what Oxea 

had done to switch the power and isolate the work area. Before beginning his 

work, Rawson used a voltmeter, which measures electrical current in a line, to test 

the circuits where he would be working to ensure they were not energized. 

Rawson’s testing showed that the area was not energized. Nonetheless, as he was 

in the process of replacing the insulators, Rawson was injured when he contacted a 

bus bar while it was carrying high-voltage electricity. Rawson claimed that the bus 

bar was not energized when he initially touched it but had become energized while 

his hand was on it. 

After the accident, Oxea conducted an investigation. Kocurek discovered 

that the bus bar involved in Rawson’s accident had become energized by a 

condition known as “backfeed,” which occurs when power flows in the direction 

opposite its usual route. Here, under normal conditions, the power from the two 

transformers flowed from the substation into the plant. After Rawson’s accident, 

Kocurek realized that, because the lines had been tied together to power the whole 

plant from Transformer Two, power from the plant had flowed in the wrong 
7

direction back up lines on the Transformer One side and had energized the bus bar 

where Rawson was working. In other words, Kocurek realized that backfeeding 

had energized the bus bar. 

Following the accident, Kocurek also realized that, had he closed “pole top 

switches,” which were located inside the fence of the plant, approximately 1,000 

feet away from the substation, the backfeeding of the power to the substation 

would not have occurred. The pole top switches are normally kept open, allowing 

power to flow through them. Had the pole top switches been closed, the 

backfeeding of power to Transformer One would have been prevented. 

Rawson and his wife, Susan, filed suit against Oxea. Rawson sued for 

negligence and gross negligence, and Susan asserted a claim for loss of 

consortium. In their amended petition, the Rawsons assert that Kocurek “knew 

that the particular substation was configured such that, when isolating for work 

inside the substation, [it] created a dangerous condition called backfeeding. 

Kocurek [was] well aware of this condition, [was] aware that it was dangerous, and 

knew how to eliminate it[.] [Kocurek] just forgot to do so[.]” The Rawsons 

alleged, “[A]lthough he was fully aware of the backfeed condition, Kocurek . . .

forgot to pull [the pole top] switches to eliminate it[.]” They further averred that 

“Kocurek advised Henry Rawson that [Kocurek] had personally pulled all of the 

necessary switches in order to completely isolate the work area[.]” The Rawsons 
8

alleged that Henry had “asked [Kocurek] for the one-line diagram, which would 

show the lineup of every electrical line and every switch, so that Rawson could 

verify what Kocurek had done.” They claimed that Kocurek had told Rawson 

there was no one-line diagram available and assured him that he “had nothing to 

worry about.” The Rawsons also alleged that Kocurek had not followed Oxea’s 

company policies when conducting the isolation and power-switching procedure, 

claiming that Kocurek was in a hurry to get the work done. For example, the 

Rawsons pointed out that Kocurek’s hand-written procedure for switching the 

power and isolating Rawson’s work area had not complied with company policy. 

They alleged, “although [Oxea’s] policy requires a documented switching 

procedure verified and documented, Kocurek, according to him, did not have the 

time to complete one[.]” 

The Rawsons claimed that Oxea owed Rawson a duty of care and had 

breached that duty. They alleged that Oxea’s following acts and omissions had 

proximately caused the Rawson’s injuries:

1) Contributing to an unsafe work site;

2) Creating an unsafe work condition;

3) Failing to identify and remediate an unsafe work condition;

4) Participating in and contributing to acts that caused the incident in 

question;

5) Failing to provide timely assistance, or to ensure other protections 

were in place;

6) Failing to ensure a proper and comprehensive job safety analysis 

was completed that identified and addressed all hazards;

7) Failing to warn of a known hazard and dangerous condition;
9

8) Failing to read, understand, and follow published safe work policies 

and procedures;

9) Promulgating and following unsafe work policies;

10) Creating latent dangers, but failing to warn of same;

11) Creating the unsafe design of a substation;

12) Failing to provide adequate and competent personnel and 

supervisory personnel as promised; and

13) Failing to ensure a safe work area, as promised

Oxea filed a hybrid motion for summary judgment, asserting that Chapter 95 

of the Texas Civil Practice and Remedies Code protected it from liability on all of 

the Rawsons’ claims. Oxea also asserted that, should it not be protected by 

Chapter 95, the Rawsons’ claims fail as a matter of law. In response, the Rawsons

claimed (1) Chapter 95 does not apply to their claims, (2) their evidence 

established Oxea’s liability even if Chapter 95 applies, and (3) should Chapter 95 

not apply, there are genuine issues of material fact regarding their negligence 

claims. Without specifying the reason, the trial court granted summary judgment 

in Oxea’s favor.

The Rawsons now appeal, asserting that the trial court erred by granting 

summary judgment in Oxea’s favor. The Rawsons present seven issues, 

challenging the various grounds on which Oxea pursued summary judgment and 

challenging two evidentiary rulings of the trial court. 

Summary-Judgment Evidence 

In their third and fourth issues, the Rawsons contend that the trial court erred 

when it sustained Oxea’s objections to certain evidence offered in support of their 
10

response. The evidence was offered to support the Rawsons’ theory that the bus 

bar was not already energized when Rawson began his work on the substation. 

Rather, they claim that the bus bar became energized after Rawson made contact 

with it. 

We review a trial court’s decision to admit or exclude summary judgment 

evidence for an abuse of discretion. Highland Capital Mgmt., L.P. v. Ryder Scott 

Co., 402 S.W.3d 719, 747 (Tex. App.—Houston [1st Dist.] 2012, no pet.) (citing 

K–Mart Corp. v. Honeycutt, 24 S.W.3d 357, 360 (Tex. 2000)). The Rawsons first 

assert that the trial court abused its discretion in sustaining Oxea’s objection that 

the following portion of Rawson’s summary-judgment affidavit was conclusory: 

“Shortly after that, I heard a buzz that indicated to me that one of the lines had 

become energized which had not been energized before. I believe that someone 

operated a switch or flipped a breaker which caused the line to become energized.” 

The Rawsons also assert that the trial court erred by sustaining Oxea’s 

objection that an excerpt from the deposition of Oxea’s expert, J. Dagenhart, had 

assumed facts in evidence and called for speculation and conjecture. In the 

excerpt, the Rawsons’ attorney had asked Dagenhart whether it was possible that 

the line on which Rawson was working had become energized when someone in 

the plant closed a breaker to re-energize the telephone system. Dagenhart said that 

he “could see . . . situations where that might be the case.” Oxea asserted that this 
11

was an improper hypothetical because it was not based on the facts of the case. 

Oxea also objected that the Rawsons had not included Dagenhart’s errata sheet 

with the deposition excerpt. In his errata sheet, Dagenhart stated that he had 

reviewed additional materials and had learned that there was no need to switch 

power for the telephone system at the time Rawson was at the facility because the 

telephones were already on line at that point.

To obtain a reversal on the trial court’s exclusion of evidence, an appellant 

must establish the error was harmful and was calculated to cause and probably did 

cause the rendition of an improper judgment. TEX. R. APP. P. 44.1(a). To meet 

that burden, an appellant must show the erroneously excluded evidence was 

controlling on a material issue dispositive of the case, the evidence was not 

cumulative, and its absence resulted in an improper judgment. See Tex. Dep’t of 

Transp. v. Able, 35 S.W.3d 608, 617 (Tex. 2000). Generally, errors relating to the 

admission or exclusion of evidence will not entitle an appellant to reversal unless 

the appellant can show the entire case turns on the complained of evidence. In re

Estate of Denman, 362 S.W.3d 134, 141 (Tex. App.—San Antonio 2011, no pet.). 

Here, the Rawsons have not shown that they were unable to defend against Oxea’s 

motion for summary judgment without the excluded evidence. Nor have the 

Rawsons shown that the evidence was not cumulative of other evidence. To the 

contrary, the Rawsons indicate that other evidence—such as Rawson’s testimony 
12

that his testing with the voltmeter showed that the work area was not energized—

demonstrated that the area was not energized when he began his work and supports 

his theory that it became energized from backfeed while he was installing the 

insulators. 

We overrule the Rawsons’ third and fourth issues.

Summary Judgment 

In their first and second issues, the Rawsons assert that Oxea did not prove 

its right to summary judgment because Chapter 95 does not apply to their claims, 

and, even if it does apply, their summary-judgment evidence raised fact issues 

regarding whether the exception to Chapter 95’s protection applies. 

A. Chapter 95

Chapter 95 of the Texas Civil Practice & Remedies Code applies to a claim:

(1) against a property owner, contractor, or subcontractor for personal 

injury, death, or property damage to an owner, a contractor, or a 

subcontractor or an employee of a contractor or subcontractor; and

(2) that arises from the condition or use of an improvement to real 

property where the contractor or subcontractor constructs, repairs, 

renovates, or modifies the improvement.

TEX. CIV. PRAC. & REM. CODE ANN. § 95.002 (Vernon 2011).

When Chapter 95 applies, Section 95.003 confers liability protection to 

property owners as follows:

A property owner is not liable for personal injury, death, or property 

damage to a contractor, subcontractor, or an employee of a contractor 
13

or subcontractor who constructs, repairs, renovates, or modifies an 

improvement to real property . . . unless:

(1) the property owner exercises or retains some control over the 

manner in which the work is performed, other than the right to 

order the work to start or stop or to inspect progress or receive 

reports; and

(2) the property owner had actual knowledge of the danger or 

condition resulting in the personal injury, death, or property 

damage and failed to adequately warn.

Id. § 95.003 (Vernon 2011).

When Chapter 95 does not apply, and an independent contractor’s employee 

sues a property owner for negligence, the common law requires the plaintiff to 

show that the owner exercised some control over the relevant work and either 

knew or reasonably should have known of the risk or danger. Ineos USA, LLC v. 

Elmgren, No. 14–0507, 2016 WL 3382144, at *2 (Tex. June 17, 2016) (citing 

Redinger v. Living, Inc., 689 S.W.2d 415, 418 (Tex. 1985); CMH Homes, Inc. v. 

Daenen, 15 S.W.3d 97, 101 (Tex. 2000)). But, when it does apply, Chapter 95 

“grants the property owner additional protection by requiring the plaintiff to prove 

that the owner ‘had actual knowledge of the danger or condition,’ so the owner is 

not liable based merely on what it reasonably should have known.” Id. (quoting 

TEX. CIV. PRAC. & REM. CODE § 95.003(2)). And, if it applies, Chapter 95 is the 

plaintiff’s sole means of recovery for all negligence claims that arise from either a 
14

premises defect or the negligent activity of a property owner. Id. at *2–*3 (citing 

Abutahoun v. Dow Chemical Co., 463 S.W.3d 42, 50–51 (Tex. 2015)).

A property owner, such as Oxea, has the burden of establishing Chapter 95’s 

application to a plaintiff’s claims. See Cox v. Air Liquide America, LP, No. 14–

15–00600–CV, 2016 WL 3703199, at *2 (Tex. App.—Houston [14th Dist.] July 

12, 2016, no pet.) (citing Rueda v. Paschal, 178 S.W.3d 107, 111 (Tex. App.—

Houston [1st Dist.] 2005, no pet.)). Once the property owner has met its burden of 

establishing Chapter 95’s application, the burden then shifts to the plaintiff to 

establish the requirements of Section 92.003—control, actual knowledge, and 

inadequate warning—in order to trigger the exception to Chapter 95’s liability 

protections. Ineos, 2016 WL 3382144, at *8 (citing Vanderbeek v. San Jacinto 

Methodist Hosp., 246 S.W.3d 346, 352 (Tex. App.—Houston [14th Dist.] 2008, no 

pet.) (stating that, once defendant proves the applicability of Chapter 95, burden 

shifts to plaintiff to fulfill requirements of section 95.003)).

Among its arguments for traditional summary judgment, Oxea contended 

that Chapter 95 applied to the Rawsons’ claims. Because it had the burden of 

proof on the issue, Oxea needed to establish its right to summary judgment by 

conclusively proving application of all the elements of Chapter 95 to Rawson’s 

claims. Rhone Poulenc, Inc. v. Steel, 997 S.W.2d 217, 223 (Tex. 1999); Anglo–

Dutch Petroleum Int’l, Inc. v. Haskell, 193 S.W.3d 87, 95 (Tex. App.—Houston 
15

[1st Dist.] 2006, pet. denied). Oxea also asserted that its summary-judgment 

evidence conclusively negated the essential Section 95.003 requirements of 

control, actual knowledge, and inadequate warning that Rawson needed to trigger 

the exception to Chapter 95’s liability protection. 

B. Traditional Summary Judgment Standard of Review

We review a summary judgment de novo. Travelers Ins. Co. v. Joachim, 

315 S.W.3d 860, 862 (Tex. 2010). When, as here, the trial court does not specify 

the grounds for its grant of summary judgment, we must affirm the summary 

judgment if any of the theories presented to the court and preserved for appeal are 

meritorious. See Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 216 

(Tex. 2003). 

A party moving for traditional summary judgment has the burden to prove 

that there is no genuine issue of material fact and that it is entitled to judgment as a 

matter of law. TEX. R. CIV. P. 166a(c); SeaBright Ins. Co. v. Lopez, 465 S.W.3d 

637, 641 (Tex. 2015). When a plaintiff moves for summary judgment on its claim, 

it must establish its right to summary judgment by conclusively proving all the 

elements of its cause of action as a matter of law. Rhone Poulenc, 997 S.W.2d at

223; Anglo–Dutch Petroleum Int’l, 193 S.W.3d at 95. A matter is conclusively 

established if reasonable people could not differ as to the conclusion to be drawn 

from the evidence. See City of Keller v. Wilson, 168 S.W.3d 802, 815 (Tex. 2005). 
16

Conversely, a defendant is entitled to summary judgment if it disproves at least one 

element of the plaintiff’s cause of action as a matter of law. Doe v. Boys Clubs of 

Greater Dall., Inc., 907 S.W.2d 472, 476–77 (Tex. 1995).

If a summary-judgment movant meets its burden, the burden then shifts to 

the nonmovant to raise a genuine issue of material fact precluding summary 

judgment. See Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995). 

To determine if a fact issue exists, we must consider whether reasonable and fairminded jurors could differ in their conclusions in light of all the evidence 

presented. Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, 755 (Tex.

2007). We review summary-judgment evidence in the light most favorable to the 

party against whom the summary judgment was rendered, crediting evidence 

favorable to that party if reasonable jurors could and disregarding contrary 

evidence unless reasonable jurors could not. SeaBright Ins. Co., 465 S.W.3d at 

641. 

C. Chapter 95’s Application to the Rawsons’ Claims

1. Condition or use

Section 95.002(2) provides that Chapter 95 applies to a claim “that arises 

from the condition or use of an improvement to real property where the 

contractor . . . constructs, repairs, renovates, or modifies the improvement.” TEX.

CIV. PRAC. & REM. CODE ANN. § 95.002(2). The Rawsons first contend that Oxea 
17

did not prove the “condition” or “use” requirement. The Rawsons acknowledge 

that the Supreme Court of Texas has interpreted the condition or use requirement 

to mean that Chapter 95 applies to all negligence claims that arise from either a 

premises defect (a “condition”) or a property owner’s negligent activity (a “use”). 

See Abutahoun, 463 S.W.3d at 50–51. 

Relying on Abutahoun’s holding, Oxea pointed out that, regardless of 

whether they are based on premises liability or negligent activity, the Rawsons’ 

claims arise from a condition or use for purposes of Chapter 95. In Abutahoun, the 

supreme court reiterated that “‘negligent activity encompasses a malfeasance 

theory based on affirmative, contemporaneous conduct by the owner that caused 

the injury, while premises liability encompasses a nonfeasance theory based on the 

owner’s failure to take measures to make the property safe.’” Id. at 50 (quoting 

Del Lago Partners, Inc. v. Smith, 307 S.W.3d 762, 776 (Tex. 2010)). In its motion 

for summary judgment, Oxea asserted that, if the Rawsons’ claims can be 

interpreted as arising from a bus bar that was already energized when he touched it, 

that is, from a nonfeasance theory that Oxea failed to make his work area safe, then 

the Rawsons’ claims arise from a premises defect. See Oncor Elec. Delivery Co., 

LLC v. Murillo, 449 S.W.3d 583, 593–94 (Tex. App.—Houston [1st Dist.] 2014, 

pet. denied) (discussing distinction between premises liability and general 

negligence). Oxea further points out that, to the extent the Rawsons allege that 
18

Rawson’s injury arose from the bus bar becoming energized while he was touching 

it—that is, from contemporaneous conduct by Oxea—such claims could be 

interpreted as arising from a negligent activity. See id. Either way, the claims 

arise from a condition or use of the improvement. See Abutahoun, 463 S.W.3d at 

50.

On appeal, the Rawsons assert that Oxea’s “failure to provide [Rawson] with 

information by which he could have discovered the backfeed condition and 

[Oxea’s] misrepresentation that no backfeed existed . . . were neither the

‘contemporaneous activities’ required for a negligent activity claim nor an

‘intentional or inadvertent state of being,’ the definition of a ‘condition.’” In 

Abutahoun, the supreme court stated: “We can only conclude that the Legislature 

intended for Chapter 95 to apply to all negligence claims that arise from either a 

premises defect or the negligent activity of a property owner or its employees by 

virtue of the ‘condition or use’ language in section 95.002(2).” Id. (emphasis 

added). We interpret this language as being broad enough to encompass all of the 

Rawsons’ negligence claims, including their claim that Oxea failed to provide 

Rawson with sufficient information to discover the premises defect and their claim 

that Oxea misrepresented the condition of the property. See id.; see also 

Oiltanking Houston, L.P. v. Delgado, No. 14–14–00158–CV, 2016 WL 4145997, 

at *5 (Tex. App.—Houston [14th Dist.] Aug. 4, 2016, pet. filed) (holding that 
19

Abutahoun’s language “sweeps broadly enough to encompass all flavors of 

negligence,” including a claim for negligent undertaking).2 

We hold Oxea conclusively established that the Rawsons’ claims arose from 

a condition or use for purposes of Chapter 95.

2. Same improvement

The Supreme Court of Texas recently held that “Chapter 95 only applies 

when the injury results from a condition or use of the same improvement on which 

the contractor (or its employee) is working when the injury occurs.” Ineos, 2016 

WL 3382144, at *7. The Rawsons contend that Chapter 95 does not apply to their

claims because Oxea failed to prove that Rawson’s injuries arose from a condition 

or use of the “same improvement” on which he was working when he was injured. 

The Rawsons point out that Rawson was replacing an insulator when he was 

injured and that he was not injured by an insulator. In its motion for summary 

judgment, Oxea asserted that the “improvement” to real property on which Rawson 

was working was not the insulators he was replacing, rather it was the electrical 

system of the substation. 

 

2 We also note that, in their response to Oxea’s motion for summary judgment, the 

Rawsons represented that their negligence claims “encompass a negligent activity, 

negligent undertaking and premises liability theory.” Chapter 95 has been held to 

apply to such claims. See Abutahoun v. Dow Chemical Co., 463 S.W.3d 42, 50 

(Tex. 2015); Oiltanking Houston, L.P. v. Delgado, No. 14-14-00158-CV, 2016 

WL 4145997, at *5 (Tex. App.—Houston [14th Dist.] Aug. 4, 2016, pet. filed).
20

Oxea’s position is supported by Ineos. There, the supreme court adopted a 

“broad” definition of the term “improvement,” which for purposes of Chapter 95, 

includes “all additions to the freehold except for trade fixtures that can be removed 

without injury to the property.” Id. at *8 (citing Abutahoun, 463 S.W.3d at 49). 

In Ineos, the plaintiff, Elgrem, was replacing a valve on a furnace when a 

valve near another furnace, several hundred feet away, exploded, injuring him. See 

id. at *1, 8. Elgrem argued that “each furnace in the plant was a separate 

‘improvement’ even though all of the furnaces were connected.” Id. at *8. The 

supreme court disagreed with Elgrem, reasoning that the evidence showed that 

“[t]he valves and furnaces, though perhaps ‘separate’ in a most technical sense, 

were all part of a single processing system within a single plant on Ineos’ 

property.” Id. The court held that “the evidence conclusively establishe[d] that the 

entire system was a single ‘improvement’ under Chapter 95.” Id.

Applying the analysis in Ineos, the summary-judgment record shows that the 

improvement on which Rawson was working was the electrical substation. In his 

affidavit, offered in support of Oxea’s motion for summary judgment, Kocurek 

testified as follows with regard to the substation:

3. . . . The electrical transformers and the supporting steel beams for 

the substructure at the substation are attached to the ground through 

concrete foundations.

. . . .
21

7. The electrical lines are attached to the steel I-beams that make up 

the distribution side structure of the substation. Insulators are used to 

hold the bare metal electrical lines in place and to insulate them from 

the steel I-beams. The bare metal electrical lines ore also sometimes 

referred to as a “bus bar” or as a “bus.”

. . . .

13. Transformer No. 1 supplied power to the plant through overhead 

electrical lines. These overhead electrical lines were attached to 

electrical busses located in the superstructure of the distribution side 

of the substation. There were two sets of lines that ran out from the 

distribution side of the substation over into the main Oxea plant. . . . . 

Applying the broad definition of “improvement” adopted by Ineos, the 

summary-judgment record conclusively shows that the electrical substation was a 

single improvement under Chapter 95. See id. The electrical lines, the bus bars, 

and the insulators were all vital, integrated components of that single improvement 

and were not separate, discrete improvements. 3 

3. Repairing the improvement

The Rawsons further assert that Oxea failed to show that Rawson was 

constructing, repairing, renovating, or modifying an improvement, as required for 

Chapter 95 to apply to their claims. Instead, the Rawsons contend that Rawson 

 

3 On appeal, the Rawsons also assert, “Rawson’s injuries also arose from the 

dangerous backfeed condition created by Oxea. Backfeed likewise is not a 

condition or use of an ‘improvement to real property.’” They aver, “Electricity is 

a subtle, invisible, and mysterious force,” not an improvement to real property. As 

discussed infra, Oxea conclusively showed that the substation, housing the 

electrical system, was a single improvement to real property. The electricity 

flowing through the improvement did not exist in an independent state at the time 

of Rawson’s injury and was not a separate “improvement.” See Ineos USA, LLC 

v. Elmgren, No. 14–0507, 2016 WL 3382144, at *8 (Tex. June 17, 2016).
22

was at the substation “to replace insulators.” However, as discussed, the 

“improvement” on which Rawson was working was the electrical substation; the 

insulators were only a component of that improvement. 

In his summary-judgment affidavit, Kocurek explained that “[i]nsulators are

used to hold the bare metal electrical lines [the busses] in place and to insulate 

them from the steel I-beams” of the substation that run to the ground. With regard 

to what caused the damage to the substation, Kocurek testified:

8. [A] raccoon entered the steel substructure on the distribution side of 

the substation and caused a ground fault (meaning that the raccoon 

contacted an energized electrical bus while on [a] live metal beam, 

thereby causing, a short circuit when the electricity flowed through its 

body to the steel beam). This ground fault damaged two insulators 

and cut off power to a portion of the plant.

9. Once the insulators are damaged, the substation must be repaired by 

replacing the insulators so that when turned back on the power will 

not ground out to the steel beams. If the insulators were not replaced, 

it could result in a severe electrical fault and cause severe damage to 

the substation. We, therefore, could not operate our No. 1 transformer 

without these repairs being conducted.

Chapter 95 does not define the term “repairs.” However, one court, adopting 

a dictionary definition, has defined repair, for Chapter 95 purposes, to mean “to 

restore to a good or sound condition after decay or damage; mend; . . . to restore or 

renew by any process of making good, strengthening, etc. . . .” Montoya v. 

Nichirin-Flex U.S.A., Inc., 417 S.W.3d 507, 512 (Tex. App.—El Paso 2013, no 

pet.) (citing Webster’s New Universal Unabridged Dictionary 1632 (2003)). 
23

Kocurek’s affidavit testimony shows that the substation could not be fully 

operational without replacing the damaged insulators. It is not in dispute that 

Rawson was replacing the damaged insulators when he was injured. And, as 

discussed, the insulators were a component of the substation, which was the 

“improvement” for purposes of Chapter 95. Thus, when the insulators were 

damaged, the substation itself was damaged, and replacing the insulators served “to 

restore [the substation] to a good or sound condition after [it was] damage[d].” See

id. In other words, when he replaced the insulators, Rawson was repairing the 

improvement for purposes of Chapter 95. 

We hold that Oxea conclusively proved that Chapter 95 applies to the 

Rawsons’ claims.4 Next, we examine the summary-judgment record to determine 

if Oxea disproved as a matter of law the application of Section 95.003’s exception 

to Chapter 95’s liability protections or whether a genuine issue of material fact 

exists regarding the liability exception’s application.

 

4 On appeal, the Rawsons also assert that the legislative history of Chapter 95 does 

not support its applicability to the Rawsons’ claims. However, the Rawsons do 

not direct us to where they raised this argument in the trial court, and it cannot be 

raised for the first time on appeal to defeat summary judgment. See McConnell v. 

Southside Indep. Sch. Dist., 858 S.W.2d 337, 341 (Tex. 1993) (“[I]ssues a nonmovant contends avoid the movant’s entitlement to summary judgment must be 

expressly presented by written answer to the motion or by other written response 

to the motion and are not expressly presented by mere reference to summary 

judgment evidence.”).
24

D. Actual Knowledge

On appeal, the Rawsons contend that they raised a fact issue as to whether 

Oxea had “actual knowledge” of the danger or condition that resulted in the injury. 

TEX. CIV. PRAC. & REM. CODE § 95.003(2) (providing that property owner is not 

liable “unless . . . the property owner had actual knowledge of the danger or 

condition resulting in the personal injury . . . and failed to adequately warn”). 

“Actual knowledge requires knowledge that the dangerous condition existed at the 

time of the accident[.]” City of Corsicana v. Stewart, 249 S.W.3d 412, 414–15 

(Tex. 2008). Actual knowledge of a dangerous condition is what a person actually 

knows, as distinguished from constructive or imputed knowledge, or what a 

reasonably prudent person should have known or should have foreseen. Tex. S. 

Univ. v. Gilford, 277 S.W.3d 65, 70 (Tex. App.—Houston [1st Dist.] 2009, pet.

denied); see also Kelly v. LIN Television of Tex., L.P., 27 S.W.3d 564, 572 (Tex.

App.—Eastland 2000, pet. denied) (holding that evidence of negligent failure to 

inspect for stress fractures and metal fatigue does not show actual knowledge of 

danger of tower collapse due to stress fractures). As we have recognized, 

“[S]ection 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.” Phillips v. Dow Chem. Co., 186 S.W.3d 121, 133 (Tex. 

App.—Houston [1st Dist.] 2005, no pet.). Circumstantial evidence establishes 
25

actual knowledge only when it ‘either directly or by reasonable inference’ supports 

that conclusion.” Stewart, 249 S.W.3d at 415 (quoting State v. Gonzalez, 82 

S.W.3d 322, 330 (Tex. 2002)). 

In its summary-judgment motion, Oxea asserted that, at the time of the 

injury, it lacked actual knowledge of the danger or condition of backfeeding of 

power from the plant up the line to the substation where Rawson was working. 

Among its summary-judgment evidence, Oxea offered Kocurek’s affidavit. In 

addition to describing the procedure that was followed to switch the power and 

isolate Rawson’s work area, Kocurek also provided the following relevant 

testimony in his affidavit:

16. I had never been involved in a situation before where we had to 

isolate the No. 1 transformer for electrical repairs inside of the 

substation.

. . . .

18. Inside of the plant, we had some pole top switches that were 

normally in a closed position, which would allow power to flow 

through them into the plant from the substation. These pole top 

switches were located some distance from the remote electrical 

substation that provided power to the plant. The two pole top 

switches on the poles for lines 8660 and 940 could be opened if we 

ever needed to perform preventive maintenance in certain areas inside 

of the plant. During the 37 year period that I worked at the plant 

before Mr. Rawson’s accident, I’ve only had to open the switches on a 

couple of occasions. Those occasions involved preventive 

maintenance work inside of the plant so it was desirable to cut off all

power coming from Transformer No. 1 into certain areas of the 

Oxea/Celanese plant.
26

. . . .

28. Since 2003 when we became owners of the distribution side of the 

substation, we have never had to run the entire plant off of 

Transformer No. 2 alone. Therefore, I did not realize power was 

going to be able to come back out and run into the part of the 

substation where Transformer No. 1 was located.

29. It wasn’t until sometime after the accident had occurred that I

realized that backfeed had allowed some of the bus in the Transformer 

No. 1 side of the substation structure to remain energized once we had 

finished our switching procedures earlier that morning some hours 

before Mr. Rawson arrived to perform the repair work at the 

substation.

30. At the time Mr. Rawson began his repair job in the substation, I 

did not know that there were any energized lines in the area where he 

would be performing his work.

Oxea also offered Kocurek’s deposition testimony in support of its 

summary-judgment motion. At the beginning of the deposition, on page 7, 

Rawsons’ attorney asked Kocurek: “You knew that there was a potential of

backfeed didn’t you?” Kocurek replied, “No. sir, I did not.” A few questions later 

the attorney asked: “You knew that the backfeed condition existed at that plant, 

didn’t you?” Kocurek responded, “No. sir.” Shortly after this, on page 10, 

Kocurek was then asked: “[Y]ou knew the backfeed condition existed, didn’t 

you?” Kocurek answered, “[N]ot that day, no sir.” 

In addition, Oxea pointed to Rawson’s deposition testimony in which he 

stated that he had tested the area where he would be working and had determined 

that the area was not energized. Kocurek testified that he had believed on that day 
27

the area was not energized. When asked, “So, as far as you knew and as far as he 

knew, he was working in an unenergized area?” Kocurek said, “That’s correct.” 

Kocurek also testified that it was after Rawson was injured that he realized 

that the work area had become energized by a backfeeding of power from the plant 

to the substation. This was also when Kocurek realized that the pole top switches 

should have been opened to prevent the backfeeding of power. In his affidavit, 

Kocurek testified, 

23. After the accident and after observing the bus that Mr. Rawson 

had touched, we were able to trace the overhead line back into the 

plant. We determined that, evidently, power had come back out of the 

plant going in the wrong direction (not the normal direction) and was

coming back into the substation being fed by the power from 

Transformer No. 2.

. . . .

25. Since the pole top switches for Lines 8660 and 940 are always in 

the closed and locked position, we then realized after the accident that 

is . . . how power was able to flow back out of the plant and into the 

power lines that terminated at the Transformer No. 1 side of the

substation. This was a condition that normally would not exist at the 

plant/substation.

In their response to Oxea’s motion for summary judgment, the Rawsons 

asserted, “The evidence shows that Kocurek, and other Oxea representatives, knew 

about backfeed, knew of its danger, [and] knew how to prevent it.” On appeal, the 

Rawsons point to portions of Kocurek’s deposition in which he testified that he had 

been aware of the potential for the “backfeed condition” to occur at the plant, that 
28

he had used the pole top switches to prevent backfeed in the past, and that he had 

forgotten to open the pole top switches on the day of the accident. Among the 

evidence cited by the Rawsons is the following exchange between their attorney 

and Kocurek found on page 43 of Kocurek’s deposition: 

Q. You’ve already told us you were aware there was this . . . backfeed 

condition, right? 

A. Yes.

The Rawsons also cite the following exchange from page 94 of Kocurek’s 

deposition:

Q. You would say to me “[] I had knowledge of the backfeed 

condition. I had knowledge that those switches should be opened; I 

just forgot about it, man, because we rarely do that,” correct?

A. That’s correct.

Reviewing it in the light most favorable to them—and in isolation—the 

evidence cited by the Rawsons arguably raises a fact question regarding whether

Oxea had actual knowledge, at the time of Rawson’s injury, that a backfeed of 

power could potentially occur. However, when reviewing a summary judgment, 

“[we] must consider whether reasonable and fair-minded jurors could differ in their 

conclusions in light of all the evidence presented.” Mayes, 236 S.W.3d at 755

(emphasis added). We are to review the entire record and, at times, consider 

contrary evidence. Am. Dream Team, Inc. v. Citizens State Bank, 481 S.W.3d 725, 
29

738 (Tex. App.—Tyler 2015, pet. denied) (citing City of Keller, 168 S.W.3d at 

811–12).

Kocurek testified that he was aware of the backfeed condition only after he 

had indicated three times, at the beginning of his deposition, that he was not aware 

of a potential for backfeeding. When Kocurek stated for the third time, on page 10 

of deposition, that he was not aware of a potential for backfeed on the day of the 

accident, the Rawsons’ attorney said, “I’m not asking about that day. Whether you 

forgot about it or whatnot, you knew there was a potential of backfeed because 

you’ve used those switches before, haven’t you?” (Emphasis added.) Kocurek 

responded, “That’s correct.” In other words, the Rawsons’ attorney asked Kocurek 

to confirm that he had knowledge in the past about potential backfeeding under the 

circumstances in which he had used the pole top switches to prevent backfeeding. 

Thereafter, Kocurek’s answers to the questions regarding his knowledge about 

backfeeding were being asked and answered within this framework. 

To provide an understanding of the context in which he had used the pole 

top switches, Kocurek explained as follows in his affidavit:

During the 37 year period that I worked at the plant before Mr.

Rawson’s accident, I’ve only had to open the switches on a couple of 

occasions. Those occasions involved preventive maintenance work 

inside of the plant so it was desirable to cut off all power coming from 

Transformer No. 1 into certain areas of the Oxea/Celanese plant.
30

Thus, when Kocurek testified that he had used the pole top switches to 

prevent potential backfeeding, it was within the context of conducting preventive 

maintenance inside the plant. It was not within the context of isolating a portion of 

the substation for repairs to be done on the power system nor was it in the context 

of switching power to run the whole plant from Transformer Two. This was 

confirmed by Kocurek in his affidavit:

16. I had never been involved in a situation before where we had to 

isolate the No. 1 transformer for electrical repairs inside of the 

substation.

. . . .

28. Since 2003 when we became owners of the distribution side of the 

substation, we have never had to run the entire plant off of 

Transformer No. 2 alone. Therefore, I did not realize power was 

going to be able to come back out and run into the part of the 

substation where Transformer No. 1 was located.

Whether Kocurek, based on his limited past experiences of using the pole

top switches as part of a different procedure, should have extrapolated that 

backfeeding might occur in the context of the power switching procedure involved 

here is not at issue. What is at issue is whether Kocurek had actual knowledge of 

the danger of backfeeding at the time of the accident. While it might support a 

reasonable inference that Kocurek should have known about the potential for 

backfeeding, the summary-judgment evidence, when considered altogether, does 

not support a reasonable inference that Oxea had actual knowledge of the danger of 
31

backfeeding when the accident occurred, even when viewed in the light most 

favorable to the Rawsons. 

Lastly, the Rawsons point out that, even though Kocurek denies mentioning 

backfeeding on the day of the accident, Rawson testified that Kocurek assured him 

there was no danger of backfeeding. The Rawsons assert that this supports an 

actual-knowledge inference because it shows that backfeeding was a “concern” 

that day. In contrast, Oxea contends that this evidence further supports its position 

that Kocurek did not have actual knowledge of the potential for backfeeding at the 

time of the accident. We find that Rawson’s claim regarding Kocurek’s assurance

could give rise to either inference, neither more probable than the other. See 

Lozano v. Lozano, 52 S.W.3d 141, 148 (Tex. 2001) (“The equal inference rule 

provides that a jury may not reasonably infer an ultimate fact from meager 

circumstantial evidence which could give rise to any number of inferences, none 

more probable than another.”).

We conclude that Oxea met its summary-judgment burden to conclusively 

show that Chapter 95 applies to the Rawsons’ claims. See TEX. CIV. PRAC. & REM.

CODE ANN. § 95.002. Oxea also disproved the actual-knowledge element of the 

exception to Chapter 95’s liability protection as a matter of law. See id. § 95.003. 

We further conclude that the Rawsons failed to offer sufficient evidence to raise a 
32

genuine issue of material fact on these issues. We hold that the trial court properly 

granted summary judgment on Henry’s Rawson’s claims. 

We overrule the Rawsons’ first and second issues.5

Loss-of-Consortium Claim

In their seventh issue, the Rawsons assert that the trial court erred when it 

granted summary judgment on Susan Rawson’s loss-of-consortium claim. We 

have determined that the trial court correctly granted summary judgment on Henry 

Rawson’s claims under Chapter 95. Because her claim is derivative of her 

husband’s claim, the trial court also correctly granted summary judgment on 

Susan’s loss-of-consortium claim. See Reed Tool Co. v. Copelin, 610 S.W.2d 736, 

738–39 (Tex. 1980) (holding tortfeasor’s liability for husband’s physical injuries 

must be established as prerequisite to recovery of derivative claims such as wife’s 

loss-of-consortium claim).

We overrule the Rawsons’ seventh issue. 

 

5 Because of our disposition of these issues, we need not reach the Rawsons’ 

remaining two issues, challenging the summary judgment. 
33

Conclusion

We affirm the judgment of the trial court. 

Laura Carter Higley

Justice

Panel consists of Chief Justice Radack and Justices Higley and Huddle.