Opinion filed March 23, 2023

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 142nd 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. Gerardo 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 on 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 operation. The 

agreement also anticipated that eventually the Big Dog equipment would be “rigged 

down” and removed from the 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” kept collapsing into the wellbore before additional pipe 

could be inserted into the well. Luna alleges that, at the time of the incident, he was 

working approximately 100 feet above the derrick floor. In order to lower pipe into 

the well, he was pulling on 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 Endeavor.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 moves 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 adverse party would have the burden of proof at 

trial. TEX. R. CIV. 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. 2013). 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. TEX. R. CIV. P. 166a(c); Nassar v. Liberty Mut. Fire Ins. Co., 508 
4

S.W.3d 254, 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. Spectrum, 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 summary 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 671, 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 TEX. CIV. PRAC. & REM. CODE ANN. § 95.003

(West 2019)).
5

The 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 exercise control over the part of the independent contractor’s work that 

created the dangerous condition. Clayton W. Williams, Jr., Inc. v. Olivo, 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 traditional 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 that 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 under 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 Drilling, 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 concluded that the rig was not an improvement 

because it would be moved to another site after the well was drilled—without injury 

to the well and thus 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, 399 (Tex. App.—El Paso 

2008, pet. denied)). Painter involved employees of a drilling company 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. 271 S.W.3d at 392. The El Paso Court of Appeals concluded 

that, because the drilling of the well was an integral, essential part of 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 improvement 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 that 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 purposes of Chapter 95). 

We further note that the 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 times 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 

premises, 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 trade fixture in Brazos River Conservation & Reclamation 

District 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 was 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 held 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 for oil and gas purposes are trade fixtures.” Id. at 

298 (quoting SUMMERS ON OIL & GAS, PERM. ED., VOL. 3, p. 214, § 526).

In Cuevas v. Endeavor Energy Resources, L.P., we seemingly reached a 

different result than did the court in Lopez. Cuevas v. Endeavor 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 379 (“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-

00830-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 rig 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 

asserts 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) exercised 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 514. Endeavor premises its no-duty argument on 
10

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 isliable 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)

(Painter 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 field 

superintendent at the time of the incident. Luna’s affidavit likewise indicates that 

Grillo 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 drilled and completed.” Luna stated 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 responses, raises more than a scintilla of evidence as to whether Grillo 
11

was acting in the course and scope of his employment for Endeavor at the time of 

the incident. Specifically, the evidence demonstrates that Grillo, acting 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.

There is also summary judgment evidence that raises an issue concerning 

Endeavor’s actual knowledge of the risk of harm that resulted 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 the following:

• When Luna was instructed to pull on the rope, Luna indicated to Grillo that 

the 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.

• At 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 instructed 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 when he instructed Luna, for a second time, to 

pull on the elevator ears with the rope.

For purposes of Chapter 95, Luna’s affidavit is evidence of Endeavor’s 

control over the worksite and knowledge of the risk of harm. See CIV. PRAC. & REM.

§ 95.003; Energen, 642 S.W.3d at 511 n.6. Chapter 95 also requires Luna to prove 
12

that Endeavor failed to adequately warn him of the risk of harm. CIV. PRAC. & REM.

§ 95.003(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 on 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, under 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. Luna’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 that Endeavor, by and through Grillo, committed 
13

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 premises liability claim). 

To the extent that Luna relies on the necessary use exception, the 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 judgment evidence 

showsthat, 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 disregarded that risk by explicitly instructing 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, we 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 asserts 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, its 
14

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 stress before instructing Luna to continue working.

Because Luna has raised more than a scintilla of evidence 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

We reverse the judgment of the trial court and remand this cause for further 

proceedings.

JOHN M. BAILEY

CHIEF JUSTICE

March 23, 2023

Panel consists of: Bailey, C.J., 

Trotter, J., and Williams, J.