Opinion filed March 23 , 20 2 3



### In The 

# Eleventh Court of Appeals

__________ No. 11

- 21

- 00064

- CV

__________
GERARDO LUNA , Appellant
V. ENDEAVOR ENERGY RESOURCES, L.P. , Appellee

On Appeal from the 142 nd District Court Midland County , Texas Trial Court Cause No. CV

- 51,513

M E M O R A N D U M O P I N I O N
This is an appeal from a summary judgment

. Endeavor Energy Resources,
L

. P

. (Endeavor) is an oil and gas operator based in Midland. G erardo Luna asserts that he was injured while working on a drilling rig at a well site owned by Endeavor. The trial court granted a take

- nothing summary judgment in favor of Endeavor

. We
reverse and remand.2 Background Facts
Luna alleges that he was injured o n August 31, 2013, while he was employed as a derrick hand by Acme Energy Services, Inc. , which does business as Big Dog Drilling (Big Dog)

. Big Dog had been hired by Endeavor to drill a well known as
Guitar 1

- 4 #1H, near Big Spring. The contract between Big Dog and Endeavor contemplated that Big Dog would provide a drilling rig for the operatio n. The agreement also anticipate d that eventually the Big Dog equipment would be “rigged
down” and removed from t he premises

. At the time of the incident, Big Dog’s crew was in the process of drilling the
well. However, a problem had developed where a mixture of “soil, rock, dirt, sand, water, and other materials” k ept collaps ing into the wellbore before a dditional pipe
could be inserted into the well

. Luna alleges tha t, at the time of the incident, he was working approximately 100 feet above the derrick floor

. In order to lower pipe into the well, h e was pulling o n a rope that was tied to the elevator ears on the rig

. The rope broke twice , causing him to fall and injure himself on each occasion.
Luna filed suit against Endeavor in July 2015. The trial court granted Endeavor’s motion for summary judgment and this appeal followed. Analysis Luna raises two issues on appeal. In his first issue, Luna asserts that the trial court erred when it overruled several objections that he filed in connection with the summary judgment motion and evidence proffered by Endeav or. 1 In his second issue, Luna contends that the trial court erred in granting Endeavor’s motion for summary judgment. Because our ruling on the second issue disposes of the need to

1 Luna’s first issue also includes a challenge to Endeavor’s evidentiary support relating to the applicability of Chapter 95 of the Texas Civil Practice and Remedies Code. This argument is more appropriately considered in connection with Luna’s second issue , and we will do so below.3 resolve the issue of Luna’s objections, we limit our discussion to the question of whether the trial court properly granted Endeavor’s motion for summary judgment

. We review the trial court ’ s grant of summary judgment de novo. Lujan v. Navistar, Inc. , 555 S.W.3d 79, 84 (Tex. 2018) (citing Provident Life & Accident Ins.
Co. v . Knott , 128 S.W.3d 211, 215 (Tex. 2003)). When the trial court’s order does not specify the grounds for its summary judgment, we will affirm the summary judgment if any of the theories are meritorious. Knott , 128 S.W.3d at 216. Usually, when a party mo ves for both a traditional and no

- evidence summary judgment, we
first review the no

- evidence summary judgment. See Lightning Oil Co. v. Anadarko E&P Onshore, LLC , 520 S.W.3d 39, 45 (Tex. 2017). “However, this rule is not
absolute.” Neurodiagnostic Tex, L.L.C. v. Pierce , 506 S.W.3d 153, 163 (Tex. App.

— Tyler 2016, no pet.). After an adequate time for discovery, a party may move for summary judgment on the ground that there is no evidence of one or more essential elements
of a claim or defense on which an a dverse party would have the burden of proof at
trial. T EX

. R. C IV

. P. 166a(i). We review a no

- evidence motion for summary judgment under the same legal sufficiency standard as a directed verdict.
Merriman v. XTO Energy, Inc. , 407 S.W.3d 244, 248 (Tex. 2 013). Under this standard, the nonmovant has the burden to produce more than a scintilla of evidence to support each challenged element of its claims. Id

. Evidence is no more than a
scintilla if it is “so weak as to do no more than create a mere surmise or suspicion”
of a fact. King Ranch, Inc. v. Chapman , 118 S.W.3d 742, 751 (Tex. 2003) (quoting Kindred v. Con/Chem, Inc. , 650 S.W.2d 61, 63 (Tex. 1983)). A party moving for traditional summary judgment bears the burden of proving that there is no genuine issue of material fact and that it is entitled to judgment as a
matter of law. T EX

. R. C IV

. P. 166a(c); Nassar v. Liberty Mut. Fire Ins. Co. , 5084 S.W.3d 2 54, 257 (Tex. 2017). To be entitled to a traditional summary judgment, a defendant must conclusively negate at least one essential element of the cause of action being asserted or conclusively establish each element of an affirmative
defense. Sci. Spectr um, Inc. v. Martinez , 941 S.W.2d 910, 911 (Tex. 1997). “Evidence is conclusive only if reasonable people could not differ in their
conclusions.” City of Keller v. Wilson , 168 S.W.3d 802, 816 (Tex. 2005). If the movant initially establishes a right to su mmary judgment on the issues expressly presented in the motion, then the burden shifts to the nonmovant to present to the trial court any issues or evidence that would preclude summary judgment. See City of Houston v. Clear Creek Basin Auth. , 589 S.W.2d 6 71, 678

– 79 (Tex. 1979). In reviewing both traditional and no

- evidence summary judgments, we consider the evidence in the light most favorable to the nonmovant, indulging every reasonable inference in favor of the nonmovant and resolving any doubts against the movant.
Merriman , 407 S.W.3d at 248; City of Keller , 168 S.W.3d at 824. We Assume that Chapter 95 is Applicable As a preliminary matter, Endeavor contends that Chapter 95 of the Texas Civil Practice and Remedies Code applies to Luna’s claims

. “ When Chapter 95 applies , it limits a real property owner’s liability for common

- law negligence claims that arise out of a contractor’s or subcontractor’s work on an improvement to the property.” Energen Res. Corp. v. Wallace , 642 S.W.3d 502, 509 (Tex. 2022)

. When a defendant establishes that Chapter 95 is applicable, the plaintiff must demonstrate that the property owner (1) “exercise[d] or retain[ed] some control over the manner in which the work [was] performed” and (2) “had actual knowledge of the danger or condition resulting in the .

. . personal injury .

. . or property damage and failed to adequately warn.” Id

. at 514 (quoting T EX

. C IV

. P RAC

. & R EM

. C ODE A NN

. § 95.003 (West 2019 ) )

.5 Th e Chapter 95 standard is more restrictive than the common law negligence
standard. Under the common law , an owner does not generally have an obligation to see that an independent contractor performs work in a safe manner. Redinger v. Living, Inc. , 689 S.W.2d 415, 418 (Tex. 1985). However, if the owner retains or exercises “supervisory control,” it can be liable for negligence in exercising or failing to exerci se control over the part of the independent contractor’s work that created the dangerous condition. Clayton W. Williams, Jr., Inc. v. Oli vo , 952 S.W.2d 523, 528 (Tex. 1997). Chapter 95 preserves the common law control requirement but narrows liability by adding the requirements that (1) the owner have actual knowledge of the condition and (2) failed to adequately warn. Energen , 642 S.W.3d
at 511 n.6.
Endeavor characterizes its motion as a combined traditi onal and no

- evidence motion for summary judgment. With respect to its traditional motion for summary judgment, Endeavor asserts that Chapter 95 of the Texas Civil Practice and Remedies Code is applicable to Luna’s claim. It does so by asserting that “[h] ere, Luna was working on the rig, which is an improvement to real property

. ” Endeavor does not cite any authority for the proposition that a drilling rig, in and of itself, is an improvement to real property. In this regard, Endeavor does not assert that a drilling rig is an improvement by virtue of its role in drilling an oil and gas well on the property. Because the disposition of this case would be the same irrespective of whether Chapter 95 applies, we will assume for the purpose of our analysis tha t Chapter 95 applies to Luna’s claims. But before addressing the merits of the summary judgment in this case, we note that there is split of authority among the courts of appeals as to whether a drilling rig constitutes an improvement to real property und er Chapter 95.6 Chapter 95 does not define “improvement,” but the Texas Supreme Court has “broadly defined an ‘improvement’ to include ‘all additions to the freehold except for trade fixtures [that] can be removed without injury to the property.’” Ineos USA, LLC v. Elmgren , 505 S.W.3d 555, 568 (Tex. 2016) (quoting Abutahoun v. Dow
Chem. Co

. , 463 S.W.3d 42, 49 (Tex. 2015))

. In Abutahoun , the court utilized the definition of “improvement” from Sonnier v. Chisholm

– Ryder Company : “all additions to the freehold except for trade fixtures [that] can be removed without injury to the property.” Abutahoun , 463 S.W.3d at 49 (quoting Sonnier v. Chisholm

– Ryder Co. , 909 S.W.2d 475, 479 (Tex. 1995)).
In Lopez v. Ensign U.S. Southern Dril ling, LLC , the Fourteenth Court of Appeals cited Sonnier to determine that a drilling rig does not constitute an improvement under Chapter 95. 524 S.W.3d 836, 844

– 45 (Tex. App.

— Houston [14th Dist.] 2017, no pet.). The plaintiff in Lopez was a mud logger employed by a third party that was injured when he fell down a stairway on a drilling rig during the drilling process. Id

. at 840. The court conclud ed that the rig was not an improvement
because it would be moved to another site after the well was drille d

— without injury
to the well and th us was not “permanently annexed to the [w] ell such that it was transformed into an improvement to realty.” 2 Id

. at 844.
The court in Lopez acknowledged that the El Paso Court of Appeals reached
a different result in Painter v. Momentum Energy Corporation

. Id

. at 845 (citing Painter v. Momentum Energy Corp. , 271 S.W.3d 388, 39 9 (Tex. App.

— El Paso 2008, pet. denied) ). Painter involved employee s of a drilling c ompany injured by a falling piece of equipment on a drilling rig during the disassembly of the rig from

2 The court in Lopez assumed that an oil and gas well is an improvement to realty. 524 S.W.3d at 844 ; see Francis v. Coastal Oil & Gas Corp. , 130 S.W.3d 76, 85 (Tex. App.

— Houston [1st Dist.] 2003, no pet.) (finding that a well was an “improvement” for purposes of Chapter 95)

.7 the completed well. 2 71 S.W.3d at 392. The El Paso Court of Appeals concluded that, because the drilling of the well was an integral, essential part o f the well’s construction, Chapter 95 applies to a person injured during the drilling process. Id

. at 399. The court in Painter determined that a completed well is an improvement, and thus, the claimants “were involved in the construction of an improveme nt to real property

. ” Id

. The court in Lopez declined to follow Painter on the basis that its holding is inconsistent with the determination in Ineos that , in order for Chapter 95 to apply, the claimant must be working on the same improvement by which he was injured. Lopez , 524 S.W.3d at 844

– 45, n.7 (citing Ineos , 505 S.W.3d at 567

– 68)

. Endeavor’s briefing does not characterize the well as the improvement at issue, nor does Endeavor argue th at the well and rig were part of the same improvement. But under the holding in Lopez , this contention by Endeavor , if asserted, would not be successful. See 524 S.W.3d at 844

– 45 (finding that a well and rig are not a part of the same improvement for pur poses of Chapter 95)

. We further note that t he Ineos/ Abutahoun/Sonnier definition of improvement excepts trade fixtures. The term “trade fixture” is most commonly encountered in
the context of the landlord/tenant relationship and has been defined many t imes as follows: It is now well settled that, as between a landlord and his tenant, the term “ trade fixtures ” refers to and means such articles as may be annexed to the realty by the tenant to enable him properly or efficiently to carry on the trade, profession, or enterprise contemplated by the tenancy contract or in which he is engaged while occupying the premi ses, and which can be removed without material or permanent injury to the freehold. Boyett v. Boegner , 746 S.W.2d 25, 27 (Tex. App.

— Houston [1st Dist.] 1988, no writ) (quoting Granberry v. Tex. Pub. Serv. Co

. , 171 S.W.2d 184, 186 (Tex. App.

—8 Amarillo 1943, no writ)); see also C.W. 100 Louis Henna, Ltd. v. El Chico Rests

. of Tex., L.P

. , 295 S.W.3d 748, 754

– 55 (Tex. App.

— Austin 2009, no pet.)

. This court addressed the question of whether equipment related to an oil and gas lease constitutes a tr ade fixture in Brazos River Conservation & Reclamation
Dist rict v. Adkisson , 173 S.W.2d 294, 298 (Tex. App.

— Eastland 1943, writ ref’d).
In Brazos River , a conservation and reclamation district brought a condemnation action against an oil and gas leasehold estate that was held by Adkisson

. 173 S.W.2d
at 295. The district argued that mechanical equipment that was located on the estate

was not an improvement, but w as instead a set of trade fixtures that could not be
included as an element of damages. Id. at 297. We agreed with the district’s characterization of the equipment and h eld that “casing in wells, derricks, engines, and other machinery and appliances placed upon the land by the lessee for testing, developing and operating the land f or oil and gas purposes are trade fixtures.” Id. at 298 (quoting S UMMERS ON O IL & G AS , P ERM

. E D ., V OL

. 3, p. 214, § 526).
I n Cuevas v. Endeavor Energy Resources, L.P

. , we seemingly reached a
different result than did the court in Lopez

. Cuevas v. Endeavo r Energy Res., L.P., 531 S.W.3d 375 (Tex. App.

— Eastland 2017), rev’d in part , 593 S.W.3d 307 (Tex. 2019). Cuevas involved a claimant that was working in the substructure area of the rig known as the cellar. 3 531 S.W.3d at 378. The claimant suffered a fatal injury when the catline rope became caught in the cathead pulley system. Id. We assumed that Chapter 95 applied to the claims in Cuevas . However, the parties in Cuevas agreed that Chapter 95 applied to the plaintiffs’ claims. Id

. at 37 9 ( “ We note at the outset that the parties agree that Chapter 95 applies to Appellants ’ original premises

3 We note that in Vela v. Murphy Exploration & Production Company

- USA , the San Antonio Court of Appeals determined that a well is an improvement and that the cellar is a part of the well. No. 04

- 18

- 008 30

- CV, 2019 WL 7196603, at *3

– 4 (Tex. App.

— San Antonio Dec. 27, 2019, no pet.) (mem. op.).9 liability and negligence claims as alleged in Plaintiffs ’ Original Petition .”)

. Accordingly, we did not analyze the question of whether a drilling ri g constitutes an improvement for purposes of Chapter 95. Suffice it to say, there is a question among the intermediate courts of appeals as to whether a drilling rig is an improvement for purposes of Chapter 95. But
because the result would be the same in this case irrespective of whether Chapter 95 applies, it is not necessary for us to answer this question in this case

— we will assume that Chapter 95 applies to Luna’s claims.
No

- Evidence Analysis
We now turn to the no
- evidence challenges in Endeavor’s motion. Endeavor
contends that (1) there is no evidence that it owed a duty to Luna and (2) there is no evidence that its conduct was a proximate cause of Luna’s injuries. Endeavor also

a sserts that Luna’s affidavit, which was offered as summary judgment evidence in support of each of these issues, is inadmissible. Endeavor objected to Luna’s
affidavit while its motion was pending before the trial court. However, the trial court
never ruled on the objections. As such, we will consider the affidavit as a part of the summary judgment record. See Seim v. Allstate Tex. Lloyds , 551 S.W.3d 161, 164 (Tex. 2018) (even if a party objects to an opponent’s summary judgment evidence, it remains a part of the summary judgment proof unless an order sustaining the objection is reduced to writing, signed, and entered of record). With respect the issue of duty , Endeavor is liable for its acts of negligence as a property owner under Chapter 95 if it (1) exercis e d or retained some control over
the manner in which the work was performed and (2) had actual knowledge of the danger or condition resulting in the personal injury and failed to adequately warn of
it. See Energen , 642 S.W.3d at 5 14. Endeavor premises its no

- duty argument on10 the assertion that there is no evidence that E.J. Grillo’s alleged conduct was within the course and scope of his employment as Endeavor’s field superintendent. An employer is liable for the acts of its employee if, at the time of the negligent conduct, the employee was acting in the course and scope of their employment.
Cameron Int ’ l Corp. v. Martinez , No. 21

- 0614, 2022 WL 17998214, at *2 (Tex. 2022) ; Painter v. Amerimex Drilling I, Ltd

. , 561 S.W.3d 125, 131 (Tex. 2018) ( P ainter II ) ; Wheeler v. Free , 638 S.W.3d 731, 737 (Tex. App.

— Eastland 2021, pet. denied). The question of course and scope “hinges on an objective assessment of whether the employee was doing his job when he committed a tortious act.” Painter
II , 561 S.W.3d at 132 ; see also Wheeler , 638 S.W.3d at 737 (quoting Painter II ).
Where employees act “ in furtherance of the employer’s business and for the accomplishment of the object for which the employee was hired , ” they are acting in the course and scope of their employment. Painter II , 561 S.W.3d at 131 ( quoting Goodyear Tire & Rubber Co. v. Mayes , 236 S.W.3d 754, 757 (Tex. 2007))

. Endeavor’s interrogatory responses state that Grillo was on duty as its f ield

s uperintendent at the time of the incident. Lun a’s affidavit lik e wise indicates that
Gr illo was an employee of Endeavor. Luna’s affidavit further states that Grillo was “clearly supervising all of our work and in control of what we were doing and when
and how we were each doing our work there.” The affidavit then indicates that, because of the problems the crew had encountered in completing the well , Grillo was “emphasizing to all of us how quickly we needed to work

. . . otherwise, we were never going to get that well dr illed and completed.” Luna state d in his affidavit
that he was then directed two times by Grillo to use the rope in question to pull on
the ears of the elevator.
We conclude that Luna’s affidavit, in combination with Endeavor’s interrogatory response s , r aises more than a scintilla of evidence as to whether Grillo11 was acting in the course and scope of his employment for Endeavor at the time of
the incident

. Specifically, t he evidence demonstrates that Grillo, a cting as a field superintendent for Endeavor, was attempting to further the business of Endeavor as
the crew attempted to work through a problem that related to the completion of
Endeavor’s well

. Hence, Grillo , by his conduct, exercised at least some control over the manner in which the crew was attempting to rectify this problem.
T here is also summary judgment evidence that raises an issue concerning Endeavor’s actual knowledge of the risk of harm that resulte d in Luna’s injuries. According to Luna’s affidavit, Grillo was directing the pace of work and the methods that were being utilized by the crew as they attempted to complete the well. With respect to the risk of danger , Luna’s affidavit indicates t he f ollowing:

• When Luna was instructed to pull on the rope, Luna indicated to Grillo that t he crew should be tying “sash cord or cinch rope” to the elevator ear instead, since those types of rope would be more likely to withstand the pressure being exerted on them.

• A t the direction of Grillo, Luna then pulled on the rope , causing the rope to break

.

• Luna then fell back into a section of drill pipe, injuring his elbow

.

• Grillo saw “that the rope had so easily broken or torn and [the] resulting injury , ” but instruc ted Luna to continue working.

• Luna then pulled on the rope a second time , which tore again , causing Luna to fall to the metal diving board and injure his left knee and back.
This summary judgment evidence likewise raises more than a scintilla of evidence
that Grillo knew of a risk of harm w hen he instructed Luna, for a second time , to pull on the elevator ears with the rope. For purposes of Chapter 95, Luna’s affidavit i s evidence of Endeavor’s
control over the worksite and knowledge of the risk of harm. See C IV

. P RAC

. & R EM

. § 95.003 ; Energen , 642 S.W.3d at 511 n.6. Chapter 95 also requires Luna to prove12 that Endeavor failed to adequately warn him of the risk of harm. C IV

. P RAC

. & R EM

. § 95.0 03 (2). We conclude that Luna’s affidavit, which states that Grillo was insisting that he proceed with, rather than cease, the dangerous activity in question, was also sufficient to support this element. Endeavor maintains that, even if it owed a duty as a premises owner, it did not owe a duty to Luna under these circumstances because Luna was already aware of
the risk. In Texas, a landowner’s duty to its invitees regarding a defect o n the premises can be satisfied by either (1) making the defect safe or ( 2) warning against any condition that is concealed and unreasonably dangerous. Austin v. Kroger Tex.,
L.P

. , 465 S.W.3d 193, 203 (Tex. 2015). However, there is no need to warn if the invitee is already aware of the condition. Id. This is because “the law presumes that invitees will take reasonable measures to protect themselves against known risks

. ”
Id. Endeavor reasons that, since Luna admits that he was aware of the risks that
came from exerting force on the rope, the premises were “reasonably safe as a matter of law and no warning was required.” In response, Luna asserts that the “necessary

- use” exception applies. Under the necessary use exception, a landowner remains liable for a premises defect if an invitee “ necessarily must use the unreasonably dangerous premises, and despite the
invitee ’ s awareness and appreciation of the dangers, the invitee is incapable of taking precautions that will adequately reduce the risk.” Austin , 465 S.W.3d at 204 ; see also Parker v. Highland Park, Inc

. , 565 S.W.2d 512 (Tex. 1978)

. We first note that, u nder the facts presented by this appeal, Luna is not restricted to relying on the necessary use exception to establish liability on the part
of Endeavor. Lu na’s theories of recovery are based on more than an allegation that Endeavor failed to warn him of a danger of a premises defect or to make the premises safe. To the contrary, Luna asserts t hat Endeavor, by and through Grillo, committed13 acts and omissions that constituted a negligent activity

. See United Scaffolding,
Inc. v. Levine , 537 S.W .3d 463, 470

– 73 (Tex. 2017) (examining the differences between a negligent activity claim and a premise s liability claim)

. To the extent that Luna relies on the necessary use exception, t he Texas Supreme Court has “expressed doubt that the necessary

- use exception applies to independent contractors.” SandRidge Energy, Inc. v. Barfield , 642 S.W.3d 560, 568 (Tex. 2022) (citing Gen. Elec. Co. v. Moritz , 257 S.W.3d 211, 215

– 16 (Tex. 2008)). However, the facts presented here are appropriate for the necessary use exception to apply. Taken in a light most favorable to Luna, the summary ju dgment evidence
show s that, in the process of controlling the work that was performed by Luna, Grillo
was a witness to an incident that illustrated the risk that was posed by the dangerous
condition . Grillo disregard ed that risk by explicitly instruct ing Luna to continue use of the dangerous condition in an unsafe manner. Furthermore, Luna specifically requested that he be allowed to use a stronger type of rope , and Grillo refused to
allow him to do so. Under these circumstances, we cannot conclude that Luna could
have taken “reasonable measures to protect himself against known risks ” as the general rule presumes. Austin , 465 S.W.3d at 203

. Therefore, w e hold that, where

an owner seeks to control the work of an independent contractor by expressly requiring the contractor to make use of the premises in a manner that it knows to be dangerous, the necessary use exception applies. Finally, Endeavor a sserts that Luna has failed to provide evidence that
Endeavor’s conduct was the proximate cause of Luna’s injury

. “ The two elements of proximate cause are cause in fact and foreseeability. ” Nixon v. Mr. Prop. Mgmt.
Co. , 690 S.W.2d 546, 549 (Tex. 1985). Endeavor argues that there is no evidence of foreseeability because Endeavor could not have foreseen that Big Dog, its14 independent contractor, would provide unsafe materials. This argument ignores the
affidavit of Luna that is described above, in which Luna specifically informed Grillo that the rope was unsafe. It also ignores Luna’s testimony that Grillo had seen the rope break under str ess before instructing Luna to continue work ing

. B ecause Luna has raised more than a scintilla of ev idence as to each of the
elements that are challenged in Endeavor’s no
- evidence motion for summary judgment , we sustain Luna’s second issue. This Court’s Ruling
W e reverse the judgment of the trial court and remand this cause for further proceedings.

JOH N M. BAILEY
CHIEF JUSTICE

March 23 , 20 2 3
Panel consists of: Bailey , C.J., Trotter , J

. , a nd Williams , J.