Reversed and Rendered and Majority and Dissenting Opinions filed August 

12, 2014.

In The

Fourteenth Court of Appeals

NO. 14-12-00740-CV

E. I. DU PONT DE NEMOURS AND COMPANY, Appellant

V.

ROBERT EARL ROYE AND DIANE ROYE, Appellees

On Appeal from the 165th District Court

Harris County, Texas

Trial Court Cause No. 2009-80504

DISSENTING OPINION

Appellee Robert Earl Roye suffered second and third degree burns over 75% 

of his body at the DuPont plant when the ground beneath a pallet he stepped upon 

to perform his work caved in, causing him to fall into a pool of 400-degree water 

up to his chest. Following a jury trial, the trial court entered judgment for the 

Royes on, inter alia, their premises liability claim against DuPont. The majority 

reverses, concluding as a matter of law that DuPont did not owe Roye any duty 
regarding the condition of the premises that caused his injuries. Because I 

disagree, I respectfully dissent. I would affirm the judgment. 

I agree with the majority’s characterization of the hazard or defect at issue. 

Specifically, I agree with the majority that the defect is not the steam trap on the 

elevated piping. The majority concludes that the pool of hot condensate was a 

defect, but a visible one. Again, I agree. The majority acknowledges that the 

hollowing of subsurface soil adjacent to the pool of hot condensate, which created 

a ledge, was the defect. This defect on the premises was concealed because the 

surface layer of clay looked stable.

I agree with the majority that there is no direct evidence that DuPont had 

actual knowledge that the subsurface soil had eroded to the point that it had 

become unstable. There is no evidence that anyone else had actual knowledge or 

could have perceived from merely looking that the pallet rested precariously on the 

surface layer of clay atop a cavern created by erosion of subsurface sand.

I disagree that there is no evidence of DuPont’s actual knowledge. The 

record contains direct evidence that DuPont created the hazardous premises 

condition which, under Texas law, creates an inference that DuPont had actual 

knowledge of the hazardous condition on its property. See Keetch v. Kroger Co., 

845 S.W.2d 262, 265 (Tex. 1992). Roye did not need evidence that DuPont could 

have discovered this defect through a reasonable inspection because DuPont 

created the defect. Because DuPont created the premises defect, DuPont’s 

knowledge became a question for the jury, and we must infer that DuPont had 

knowledge of that defect, consistent with the jury’s verdict. Id. Therefore, I also 

disagree with the majority’s (1) failure to analyze evidence of DuPont’s actual 

knowledge under Keetch and (2) legal conclusion that duty in this case is a 

question of law for this appellate court.

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A. Keetch v. Kroger controls this premises liability cause.

In 1992, the Texas Supreme Court decided Keetch v. Kroger Co. Appealing 

a take-nothing judgment, Keetch urged that because Kroger created the hazardous 

condition at issue it should be charged with knowledge of the defect, as a matter of 

law. The Keetch Court refused to deem an owner’s actual knowledge of the 

owner-created defect and held, instead, that “the fact that the owner or occupier of 

a premises created a condition that posed an unreasonable risk of harm may 

support an inference of knowledge.” Id.;

1 accord Coffee v. F.W. Woolworth Co., 

536 S.W.2d 539, 542 (Tex. 1976); see also Hall v. Sonic Drive-In of Angleton, 

Inc., 177 S.W.3d 636, 645 (Tex. App.—Houston [1st Dist.] 2005, pet. denied) 

(stating that the inference established by Keetch is well-settled). But, the Court 

further held, “the jury still must find that the owner or occupier knew or should

have known of the condition.” Keetch, 845 S.W.2d at 265. The majority takes 

Justice Hecht’s use of the word “may” out of context to suggest it somehow means 

that evidence that the owner created the defect might, in some case, be no 

evidence of duty. However, this construction places the majority opinion in direct 

conflict with our own precedent. We have previously held that duty becomes a 

question for the fact finder in an owner-created hazard because the inference arises. 

SeeGrayson v. Anselmo, No. 14-06-01073-CV, 2008 WL 660433, at *4 (Tex. 

App.—Houston [14th Dist.] Mar. 11, 2008, no pet.) (mem. op.) (“Coffee and 

Keetch stand for the proposition that a fact finder may, but need not, infer that a 

defendant had actual knowledge of a dangerous condition that it created. It is 

1 Justice Hecht’s concurring opinion in Keetch makes clear that nothing more than an 

inference arises in owner-created defects because “it often happens that a person who creates a 

condition knows it at the time . . . [b]ut this is not always so.” Keetch, 845 S.W.2d at 267 

(Hecht, J., concurring). Therefore, creating the condition should not amount to “notice of the 

condition as a matter of law.” Id. Here, upon evidence that DuPont created the condition, the 

trial court properly submitted the question of knowledge to the jury.

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within the fact finder’s province to decide whether the circumstances justify 

inferring actual knowledge against the creator of a dangerous condition.”).

The Keetch Court then provided definition to circumstances in which the 

owner has created the condition for purposes of inferring knowledge. Specifically, 

it isn’t enough that the owner simply created a condition that turned out to be 

hazardous. See Seideneck v. Cal Bayreuther Assocs., 451 S.W.2d 752, 754–55 

(Tex. 1970). The evidence must show that the owner created a condition “which 

poses an unreasonable risk of harm” in order to constitute circumstantial evidence 

of knowledge. Keetch, 845 S.W.2d at 266. An “unreasonable risk of harm” exists 

under Texas law if “there is a sufficient probability of a harmful event occurring 

that a reasonably prudent person would have foreseen it or some similar event as 

likely to happen.” Seideneck, 451 S.W.2d at 754. Therefore, where evidence 

establishes that an owner has created a condition that it could reasonably foresee 

poses an unreasonable risk of harm, such evidence creates a fact issue for the jury 

on actual knowledge. Hall, 177 S.W.3d at 645–46 (holding that because Hall 

adduced evidence that Sonic left a freezer cover in an exposed, dangerous, and 

unstable position where it was foreseeable that it would fall to the floor, summary 

judgment on actual knowledge of the hazardous condition was reversible error).

The majority does not analyze DuPont’s duty under Keetch. Instead, the 

majority focuses its duty analysis on the absence of evidence that DuPont had 

constructive knowledge of the ledge under the teachings of CMH Homes, Inc. v. 

Daenen, 15 S.W.3d 97 (Tex. 2000). CMH does not control this case because the 

defect alleged—unstable steps and platform—was a defect that developed over 

time “simply by virtue of its use.” Id. at 100–01. The CMH Court did not analyze 

or address defects created by the owner or the inference of actual knowledge that 

arises therefrom. Instead, finding no direct evidence of actual knowledge, the 

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CMH Court analyzed constructive knowledge—because CMH did not create 

defective steps. Id. (stating that the issue in the case is “what are the legal 

consequences if premises will become unsafe over time and the owner or occupier 

is aware of that fact”). But, here, DuPont did not buy a non-hazardous ledge that 

became hazardous simply by virtue of its use. 

We cannot construe CMH as applicable to owner-created, rather than usecreated, hazards without ignoring Keetch. First, CMH and Keetch address 

completely different theories of premises liability: Keetch addresses premises 

liability for hazards created by a property owner and asks (the jury) whether the 

property owner knew that the condition it created was unreasonably dangerous. In 

so doing, Keetch authorizes an inference of actual knowledge. CMH addresses 

premises liability for hazards the property owner could anticipate would develop 

over time and asks whether the property owner knew or, through reasonable 

inspection, should have known had developed. CMH analyzes constructive 

knowledge. Keetch owner-created premises defects arise from malfeasance; CMH 

owner-should-have-discovered-the-premises-defect claims arise from nonfeasance. 

See Del Lago Partners, Inc. v. Smith, 307 S.W.3d 762, 776 (Tex. 2013) (discussing 

the difference between premises liability claims in malfeasance and nonfeasance). 

CMH does not apply.

Second, Keetch does not contain a temporal limitation. However, the 

majority’s application of CMH to this case grafts a temporal limitation that does 

not exist for owner-created hazards. For example, in Corbin v. Safeway Stores, 

Inc., 648 S.W.2d 292 (Tex. 1983), the Texas Supreme Court did not ask whether 

the floor became dangerous at the instant an employee dropped the grape or after a 

person first stepped on the grape and made it gooey and slippery. CMH, as applied 

by the majority, would eliminate any duty owed by Safeway for the hazard it 

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created in the first place. Instead, in line with the post-CMH analysis we 

performed in Grayson v. Anselmo, we should confine our review of premises 

liability claims arising from owner-created hazards to Keetch and its progeny. See 

Grayson, 2008 WL 660433, at *3–4 (applying Keetch, without mention of CMH,

to premises liability injury that occurred when the railing became separated from 

an owner-constructed ramp).

Finally, neither Keetch, CMH, nor any other Texas Supreme Court authority 

articulates a public policy to protect property owners from liability for hazardous 

conditions that they create but that do not cause immediate injury. A party’s 

liability for affirmative acts of negligence or intentional conduct should not be 

eliminated by the fortuity of where the injury occurred. Stated differently, if a 

property owner lights a long fuse on the bomb he places on his property, he may be 

held liable for injuries when it ultimately explodes without the necessity of further 

inspection of the remaining length of the fuse.

The majority also urges that no Keetch analysis is necessary is this case 

because, unlike the allegation that the owner put the foreign substance on the floor 

in Keetch, there is no evidence here that DuPont dug the hole. See Majority Op. 

21–22. The majority’s analysis misses the mark. We have agreed that the 

premises defect in this case is the ledge that resulted from hollowing. As outlined 

below, there is evidence that DuPont created the ledge through its decision not to 

provide drainage for its high-pressure hot condensate. Further, there is evidence 

that DuPont should have reasonably foreseen that the undrained hot condensate 

posed an unreasonable risk of harm not only through the pooling of hot 

condensate, but also through differential erosion beneath the surface clay. DuPont 

did dig the hole; they just didn’t use a shovel.

We should affirm.

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B. There is evidence that DuPont created the condition.

DuPont created the condition, which is hollowing or erosion beneath the 

ledge that collapsed, throwing Roye into 400-degree condensate. The jury heard 

evidence that the ledge resulted from differential ground erosion at the point of 

condensate discharge from the steam trap near where Roye suffered his injury. 

The jury learned that discharging condensate is part of the design of the steam pipe 

system. The very purpose of the steam trap is to improve circulation of the 

valuable steam by eliminating unnecessary byproduct, condensate. So, the design 

includes several spring-loaded steam traps to discharge the condensate from the 

pipe. When the steam reaches 300 psi, the steam trap opens and condensate 

discharges downward at a temperature of 400 degrees and a pressure of 300 psi. 

The jury learned that there are three acceptable methods for hot-condensate 

disposal in the industry: (1) recirculate the condensate, (2) install a French drain, or 

(3) allow the condensate to discharge into a concrete-lined ditch. Dean Baker, an 

employee with DuPont at the La Porte facility at the time the piping was 

constructed, told the jury that the purpose of a French drain is to prevent ground 

degradation or erosion in the area. And, the jury saw D.B. Western’s original 

proposed design drawing for handling discharge, Plaintiff’s Exhibit 267—a French 

drain. 

Notwithstanding D.B. Western’s proposal, according to Oscar Gonzalez, “a 

conscious decision was made by DuPont’s design team to remove four of the six 

French drains.” According to Dennis Beatham, DuPont engineers vetoed his 

French Drain drawing. Thus, it was a DuPont decision to omit a French drain 

system to accommodate the 400-degree condensate emitting from the steam trap at 

300 psi. Ultimately, DuPont did not substitute one of the other two acceptable 

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drainage systems for the French drain. Thus, DuPont decided that no drainage 

system would be used. 

When DuPont omitted the French drain and substituted no drainage system 

whatsoever, it created the hollowing condition. Specifically, a French drain works 

like a gutter beneath a downspout, not only because it directs the flow of the hot 

water but also because it reduces the pressure at which the water hits the ground 

from approximately 300 psi to 0 psi. When hot condensate hits the ground at 300 

psi, it creates a hole. Had DuPont recirculated the hot condensate—there is no 

drainage and, therefore no hole. Had DuPont provided a concrete-lined pit, the 

hole and the pooling still exists, but the pressure is applied to concrete so there is 

no risk of ground degradation or erosion in the area. Without any drainage, the 

400-degree water hitting the ground at 300 psi created not only a pool of hot water, 

but also erosion of the soil beneath the steam trap. 

In this case, however, no drainage of hot condensate created a problem far 

larger than mere erosion of the soil because in this case there were different types 

of soil at different layers. The jury heard testimony about the top layer of soil –

clay. The jury also heard that lower levels of soil were silt or sand. Clay does not 

erode as easily as silt. Clay rooted with grass erodes even less. So, when hot 

condensate hits the soil of different types in layers, such as clay on top of silt, at 

300 psi, it does not merely create a hole straight down. Instead it causes erosion at 

different rates. As the hot condensate hits the soil and begins to create the hole, the 

clay, particularly clay rooted with grass, remains in place while the silt layers 

beneath erode. It’s called differential erosion. When the layer of clay remains and 

the layer of silt disappears, the condition of hollowing occurs and the ledge results. 

DuPont created the condition. DuPont did not use a shovel to create the hollowing 

of soil; it used un-drained and un-dissipated 400-degree, 300-psi condensate.

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C. There is evidence that there was a sufficient probability of a harmful 

event occurring that DuPont knew or should have known that the event, 

or some similar event, was likely to happen. 

As outlined above, the condition is the hollowing through erosion that 

created the ledge.

1. DuPont knew the event or a similar event was likely to happen.

With regard to the hazard of the condition, the jury first learned that the 

erosion of any soil caused by hot condensate exploding from a steam trap is a 

dangerous condition. Specifically, Dean Baker from DuPont told the jury that it is 

unsafe not to have anything for condensate disposal because if there isn’t anything 

to catch the condensate released at 300 pounds of pressure, it’s going to erode the 

ground. Baker’s testimony is supported by DuPont’s own written standard for 

condensate disposal. The standard directs, “Condensate shall not be discharged 

into open ditches, French drains, or sewers without approval of Design, Plant or 

Construction authority.” The same standard further directs that if the design 

contemplates an open discharge of condensate, the preferred method is to lower the 

temperature of the condensate to a safe level and then discharge it or to use “a 

suitable catch tank (see P12B) or a properly designed French drain (see P6D).” 

Thus, DuPont’s own standard forbids condensate disposal into an open pit, such as 

occurred where Roye was injured. Note that this standard requiring drainage is not 

a standard applicable solely to variable soil. It is the standard for all soil. Thus, 

there is some evidence that DuPont knew that the failure to supply a drainage 

system—any drainage system—not only violated its own standard but also was 

dangerous because of the effects of erosion. 

Significantly, the jury learned that DuPont did not merely miscalculate the 

need for a French drain; DuPont calculated the risk and accepted it. Specifically, 

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DuPont’s design engineers made the conscious decision to omit only four of the six 

French drains that were designed into the system. The sole reason that DuPont 

declined French drains in those four areas, though it was a departure from its own 

standard, was because those four areas did not have as much traffic— not as many 

people walking around. Stated differently, where DuPont knew many people 

would be walking around, it installed French drains. Where DuPont knew fewer 

people would be exposed to the hazard, it did not. Roye was one of the individuals 

for whom DuPont calculated and accepted the risks posed by no French drain. 

Standing alone, the above-outlined evidence that ordinary erosion is unsafe 

and DuPont created a circumstance of erosion at a location it knew workers would 

need to maintain the steam trap is sufficient to infer knowledge and submit the 

question to the jury. Specifically, 

(1) DuPont created the condition, hollowing from erosion;

(2) Erosion for failure of a condensate drainage system is an unsafe 

condition; 

(3) DuPont knew that it was a dangerous condition because the 

purpose of the industry-standard drainage is to prevent erosion; 

and 

(4) DuPont deliberately created the hazard only in areas not subject 

to high traffic because it was an extraordinary hazard.

This is circumstantial evidence of actual knowledge. See Keetch, 845 S.W.2d at 

266 (citing Coffee, 536 S.W.2d 539). 

2. DuPont should have known the event or a similar event was likely to 

happen.

The danger of erosion became even more dangerous because of the variable 

soil that turned ordinary erosion into differential erosion. And, DuPont knew 

about the variable soil in the area where Roye suffered injury. Specifically, the 

jury saw an October 2000 email from Donald Johnson, a DuPont geotechnical 

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consultant. Johnson evaluated boring and soil data in the same area where DuPont 

omitted the French drain. These soil borings were not conducted for purposes of 

deciding the appropriate hot-condensate drainage. DuPont conducted soil borings 

to determine the necessary depth of the drill shaft construction for the pipe rack 

support system. And, Johnson noted that most, but not all, of the borings showed 

clay “throughout the soil profile.” However, he warned that in one particular 

boring he found “sand below 8 feet.” He cautioned, “While the sand is acceptable 

for support, . . . it may create hole cave-in problems necessitating casing of the 

hole or slurry construction.” Finally, he warned, “Careful inspection is essential to 

detect stability problems and the need for special procedures.”

Although the soil data did not come to DuPont in connection with the 

drainage-system proposal, at least one DuPont representative should have known 

of the relationship between the boring data and the condensate drainage—John 

Ponder. In 2000, Ponder was serving as the liaison between D.B. Western, 

DuPont, and Harmony during the steam pipe construction. As a “first line 

supervisor,” Ponder was “very familiar with DuPont rules, procedures, and 

protocols.” During trial, Ponder acknowledged that he had reviewed the D.B. 

Western French drain design. His initials are on the design sketch. No more than 

one month later, a D.B. Western representative wrote to Ponder informing that 

D.B. Western needed Dupont’s decision on the drainage for the steam trap 

immediately. Specifically, the letter stated, “We need to know quickly if we have 

to drill these pits when we have drilling done for Bell Piles.” The Bell Piles are the 

piling referred to in the soil boring report from Johnson. D.B. Western was telling 

Ponder that it wanted, for efficiency reasons, to prepare the holes for rack 

support—which might need reinforcement due to sand—at the same time it dug a 

drainage system. Finally, Roye’s expert witness, James Knorpp of Knorpp Safety, 

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tied this evidence together for the jury. Knorpp is a retired, 30-year safety 

engineer for OSHA, who formed his own safety consulting firm in 1994; so he 

brought 50 years of experience to the jury. Based upon the documentation Knorpp 

reviewed, including the above referenced documents, he opined that

• “DuPont knew that the French drains should be under each of the six 

steam traps on the 300-pound line” and originally intended to install 

them;

• Without a French drain, hot condensate spitting out of the steam trap 

has a tendency to erode the soil where it hits and pool;

• Soil conditions must be considered with condensate drainage because 

the soil must be capable of absorbing the water;

• DuPont had information about the variable soil conditions in the area 

and should have considered it when making a decision whether to 

dispose of condensate directly to the ground;

• Under these circumstances, without a French drain, the hazard 

(hollowing under the top soil) could be reasonably expected to occur; 

and 

• “[T]he root cause [of Roye’s accident] was that there was a failure to 

install the safe — proper safety equipment — that is, French drain 

equipment or other collection media — at the time this equipment was 

designed and constructed and a failure to properly evaluate the hazard 

that could ultimately result.”

The majority notes that Johnson’s soil-borings email does not address steam 

traps or the necessity of a French drain. Lynn Ratcliff, DuPont’s expert, also 

concluded that the two issues were “totally unrelated” because Johnson’s caution 

meant that when the pilings were drilled there was a danger that the sand layer at 

eight feet might collapse. The jury was free to disregard Ratcliff’s testimony and 

accept Knorpp’s testimony and infer that DuPont should have recognized the 

relationship between the two issues inasmuch as D. B. Western wanted to dig the 

drainage pit at the same time it dug the hole for the supporting rack. See City of 

Keller v. Wilson, 168 S.W.3d 802, 822, 827 (Tex. 2005). DuPont had all that it 

12
needed to know that the dangerous condition caused by erosion was exacerbated 

by the variable soil. 

D. Conclusion

In summary, I respectfully dissent to the decision to reverse the jury’s 

verdict. Keetch v. Kroger is still Texas law. Owner-created conditions that pose 

an unreasonable risk of harm give rise to a jury question on knowledge—actual 

knowledge. CMH Homes, Inc. v. Daenen does not constitute a develops-over-time 

exception to Keetch.

The jury heard evidence that (1) DuPont created the condition and (2) there 

was a sufficient probability of a harmful event occurring that DuPont knew or 

should have known that the event, or some similar event, was likely to happen. 

DuPont deliberately departed from industry standards and created an unreasonable 

risk of harm to a few on its premises while shielding others from it. Roye was one 

of the few. The jury determined DuPont had knowledge and we should honor that 

decision.

/s/ Sharon McCally

Justice

Panel consists of Justices McCally and Busby and Former Justice Simmons.*

(Busby, J., Majority).

* Former Justice Rebecca Simmons, sitting by assignment.

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