Motion for Rehearing Denied; Affirmed in part; and Reversed and Remanded 

in part; Opinion filed March 20, 2014 Withdrawn; and Substitute Opinion 

filed April 17, 2014.

In the

Fourteenth Court of Appeals

NO. 14-13-00044-CV

JOHANNES “JOE” ELMGREN AND VALARIE ELMGREN, 

INDIVIDUALLY AND AS NEXT FRIENDS OF THEIR MINOR 

CHILDREN, Appellants

V.

INEOS USA, LLC F/K/A INNOVENE USA, LLC, INEOS POLYMERS, 

INC., A/K/A INEOS OLEFINS, INEOS OLEFINS & POLYMERS USA, A 

DIVISION OF INEOS USA, LLC, AND JONATHAN “BUBBA”

PAVLOVSKY, Appellees

On Appeal from the 412th District Court

Brazoria County, Texas

Trial Court Cause No. 61,590

SUBSTITUTE OPINION

Appellants Johannes “Joe” Elmgren and Valarie Elmgren, both individually 

and as next friends for their minor children (collectively, the “Elmgrens”), appeal
the trial court’s summary judgment in favor of appellees, Ineos USA, LLC f/k/a 

Innovene USA, LLC, Ineos Polymers, Inc., a/k/a Ineos Olefins, Ineos Olefins & 

Polymers USA, a division of Ineos USA, LLC (collectively, “Ineos”), and 

Jonathan “Bubba” Pavlovsky, on all its claims. Joe was working for Ineos’ 

subcontractor pursuant to a maintenance services contract. While replacing valves 

on a de-coke header system at Ineos’ plant, Joe suffered burns from an explosion 

and release of super-heated gas. The Elmgrens present five issues, four of which 

relate to chapter 95 of the Texas Civil Practice and Remedies Code: (1) whether 

chapter 95 applies at all; (2) whether Ineos and Pavlovsky conclusively proved 

chapter 95 applies; (3) whether there is a fact issue on Ineos’ and Pavlovsky’s 

control over the work being performed; and (4) whether there is a fact issue on 

Ineos’ and Pavlovsky’s actual knowledge of the danger or condition resulting in 

Joe’s injuries. The Elmgrens also argue that the trial court erred in denying their 

motion to compel responses to a production request for the names of Ineos’ process 

engineers. Although we deny Ineos’ and Pavlovsky’s motion for rehearing, we 

withdraw the opinion issued in this case on March 20, 2014, and issue this 

substitute opinion. We affirm in part, and reverse and remand in part.

I. FACTUAL AND PROCEDURAL BACKGROUND

Appellant Johannes “Joe” Elmgren was employed as a boilermaker by 

Zachry Industrial, Inc. Zachry had contracted with Ineos Olefins & Polymers 

USA, a division of Ineos USA, LLC, to perform maintenance services at Ineos’ 

plant. Joe reported to work at the plant at approximately 7:00 p.m. on June 22, 

2010. Joe’s task was to replace valves on a de-coke header on the Olefins #2 DDB 

101B furnace. Joe’s Zachry supervisor, David Robin, and Ineos’ operator, Clint 

Pierce, conducted a lock out tag out (LOTO) procedure to ensure there was no gas 

present in the line. A sniff test for gas was performed at approximately 8:30 p.m. 

2
with a zero result. Ineos issued the work permit for the valve replacement. At 

approximately 3:00 a.m., during the process of removing the second valve, superheated gas was released in an explosion that resulted in burns to Joe’s torso, neck, 

and jaw line.

The Elmgrens brought claims against Ineos and Pavlovsky for negligence

and wrongful termination. The Elmgrens also sought exemplary damages. 

Pavlovsky is the working team leader over furnace maintenance at Ineos. Ineos 

and Pavlovsky filed traditional and no-evidence motions for summary judgment. 

Under their traditional motions, they argued that they qualified for protection from 

liability under chapter 95; they were not liable as a matter of law because they did 

not exercise or retain control, either contractually or actually, over the manner in 

which Joe’s work was performed; and they were not liable as a matter of law 

because they had no actual knowledge of the danger or condition resulting in Joe’s 

injuries. Under their no-evidence motions, Ineos and Pavlovsky argued that the 

Elmgrens produced no evidence of control over the work performed by Joe and no 

evidence of actual knowledge as required by chapter 95. The Elmgrens responded 

that chapter 95 did not apply to Pavlovsky because he is not a property owner,

Ineos retained contractual and actual control over Joe’s work, and Ineos had actual 

knowledge of the danger or condition resulting in Joe’s injuries. The Elmgrens

also argued that chapter 95 does not apply to their claims in this situation because 

they “arise from Ineos’ direct role in informing Zachry’s crew that the system was 

safe to proceed.”1

1 Ineos and Pavlovsky also moved for traditional summary judgment as to the Elmgrens’

wrongful termination claim and for no-evidence summary judgment as to the Elmgrens’ claims 

for wrongful termination and exemplary damages. The Elmgrens responded to these grounds in 

the trial court but have not raised, much less presented any argument or authority on, the granting 

of summary judgment on these claims on appeal. Therefore, they have abandoned these claims 

and we do not address summary judgment as to these claims. See Duerr v. Brown, 262 S.W.3d

3

 
The parties filed various other motions, including the Elmgrens’ motion to 

compel the identity of Ineos’ process engineers. The Elmgrens took additional 

depositions. Ultimately, after an oral hearing, the trial court granted Ineos’ and 

Pavlovsky’s motions for summary judgment. The trial court expressly found that 

chapter 95 applied to the Elmgrens’ claims for personal injury; there was no 

genuine issue as to any material fact, and Ineos and Pavlovsky were entitled to 

judgment as a matter of law on all of the Elmgrens’ claims; and Ineos and 

Pavlovsky did not exercise or retain control over Joe’s work, and did not have 

actual knowledge of the danger or condition resulting in his injuries and fail to 

adequately warn. The judgment stated that it finally disposed of all of the 

Elmgrens’ claims. The Elmgrens timely appealed.

II. SUMMARY JUDGMENT STANDARDS

We review the trial court’s granting of summary judgment de novo. 

Ferguson v. Bldg. Materials Corp. of Am., 295 S.W.3d 642, 644 (Tex. 2009) (per 

curiam) (citation omitted). Ineos’ and Pavlovsky’s motions for summary judgment 

are hybrid traditional and no-evidence motions. See Tex. R. Civ. P. 166a(c), (i). 

To the extent necessary, we therefore apply the established standards of review for 

each. Brockert v. Wyeth Pharm., Inc., 287 S.W.3d 760, 764 (Tex. App.—Houston

[14th Dist.] 2009, no pet.). To be entitled to summary judgment under rule 

166a(c), a movant must establish that there is no genuine issue of material fact so 

that the movant is entitled to judgment as a matter of law. Mann Frankfort Stein & 

Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). If the movant’s 

motion and summary judgment evidence facially establish its right to judgment as 

a matter of law, the burden shifts to the nonmovant to raise a genuine, material fact 

issue sufficient to defeat summary judgment. See M.D. Anderson Hosp. & Tumor 

63, 69 (Tex. App.—Houston [14th Dist.] 2008, no pet.).

4

 
Inst. v. Willrich, 28 S.W.3d 22, 23 (Tex. 2000) (per curiam). A genuine issue of 

material fact exists if more than a scintilla of evidence establishing the existence of 

the challenged element is produced. Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 

600 (Tex. 2004) (citation omitted).

A no-evidence motion for summary judgment must be granted if: (1) the 

moving party asserts that there is no evidence of one or more specified elements of 

a claim or defense on which the adverse party would have the burden of proof at 

trial and (2) the respondent produces no summary judgment evidence raising a 

genuine issue of material fact on those elements. See Tex. R. Civ. P. 166a(i); 

Mayer v. Willowbrook Plaza Ltd. P’ship, 278 S.W.3d 901, 908 (Tex. App.—

Houston [14th Dist.] 2009, no pet.). We sustain a no-evidence summary judgment 

where: (1) there is a complete absence of evidence of a vital fact, (2) the court is 

barred by rules of law or of evidence from giving weight to the only evidence 

offered to prove a vital fact, (3) the evidence offered to prove a vital fact is no 

more than a mere scintilla, or (4) the evidence conclusively establishes the opposite 

of the vital fact. Lowe’s Home Ctrs., Inc. v. GSW Mktg, Inc., 293 S.W.3d 283, 

287–88 (Tex. App.—Houston [14th Dist.] 2009, pet. denied) (citing Merrell Dow 

Pharm., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997)). “Evidence does not 

exceed a scintilla if it is ‘so weak as to do no more than create a mere surmise or 

suspicion’” that the challenged fact exists. Akin, Gump, Strauss, Hauer & Feld, 

L.L.P. v. Nat’l Dev. & Research Corp., 299 S.W.3d 106, 115 (Tex. 2009) (quoting 

Kroger Tex. Ltd. P’ship v. Suberu, 216 S.W.3d 788, 793 (Tex. 2006)).

In reviewing the granting of either type of summary judgment motion, we 

indulge every reasonable inference in favor of the nonmovant, resolve any doubts 

arising in its favor, and take as true all evidence favorable to it. Echartea v. 

Calpine Corp., No. 14-10-00019-CV, 2011 WL 2684889, at *2 (Tex. App.—

5
Houston [14th Dist.] July 12, 2011, no pet.) (mem. op.) (citation omitted). 

Ordinarily, we first review the no-evidence summary judgment, then, if necessary, 

the traditional summary judgment as to the Elmgrens’ claims. See Ford Motor 

Co., 135 S.W.3d at 600. Here, we review the traditional summary judgment 

because the burden does not shift to the Elmgrens on the elements of control and 

actual knowledge unless and until Ineos and Pavlovsky conclusively establish that 

chapter 95 applies. See Vanderbeek v. San Jacinto Methodist Hosp., 246 S.W.3d 

346, 352 (Tex. App.—Houston [14th Dist.] 2008, no pet.).

III. ANALYSIS

A. Applicability of chapter 95

Chapter 95 of the Texas Civil Practice and Remedies Code was enacted in 

1996 as part of a sweeping tort-reform package. Ellwood Tex. Forge Corp. v. 

Jones, 214 S.W.3d 693, 699 (Tex. App.—Houston [14th Dist.] 2007, pet. denied)

(citing Dyall v. Simpson Pasadena Paper Co., 152 S.W.3d 688, 699 (Tex. App.—

Houston [14th Dist.] 2006, pet. denied) (en banc)). “It was enacted because the 

legislature recognized that property owners often want to hire someone with 

expertise to repair or renovate some improvement on their property.” Dyall, 152 

S.W.3d at 699. Chapter 95 applies only 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 § 95.002 (West 2011) (titled “Applicability”). 

“Claim” is defined in chapter 95 as “a claim for damages caused by negligence.”

6
Id. § 95.001(1). “Property owner” is defined as “a person or entity that owns real 

property primarily used for commercial or business purposes.” Id. § 95.001(3).

Under chapter 95:

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

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

contractor or subcontractor who constructs, repairs, renovates, or 

modifies an improvement to real property, including personal injury, 

death, or property damage arising from the failure to provide a safe 

workplace 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 (titled “Liability for Acts of Independent Contractors”). Section

95.003(1) served to codify the Texas Supreme Court’s holding in Redinger v. 

Living, Inc., 689 S.W.2d 415 (Tex. 1985), which adopted section 414 and the 

accompanying comments of the Restatement (Second) of Torts.

2

 See Ellwood, 214 

S.W.3d at 700; Dyall, 152 S.W.3d at 699. Section 95.003(2) further limited a 

premises owner’s liability by requiring a plaintiff to prove that the owner had 

actual, not merely constructive, knowledge of a dangerous condition on the 

premises. See Ellwood, 214 S.W.3d at 700; Dyall, 152 S.W.3d at 699.

2 The Redinger court held that, while in general a premises owner does not have a duty to 

see that an independent contractor performs its work in a safe manner, the owner may be liable if

it retains some control over the manner in which the contractor’s work is performed. 689 

S.W.2d at 418.

7

 
B. The trial court did not err in granting summary judgment pursuant to 

chapter 95 as to negligence claims against Ineos arising from the condition 

of the improvement Zachry was repairing.

1. Zachry and Joe were repairing the “gas process” improvement.

In their related first and second issues, the Elmgrens do not dispute that the 

facts at issue fall within subsection (1) of section 95.002 with respect to Ineos. The 

Elmgrens brought a claim for damages caused by negligence against a property 

owner or contractor (Ineos) for personal injury to an employee (Joe) of a 

subcontractor (Zachry). See id. § 95.002(1).3

 The Elmgrens instead assert that 

chapter 95 is inapplicable to their claims because Joe’s injuries arose from the 

defective condition of the operation of the plant’s gas process, which Ineos 

separately and solely controlled, rather than from any work being done by Joe to 

replace the de-coke header valves. See id. § 95.002(2). In other words, they 

contend Ineos did not prove Joe was working on the same improvement that 

resulted in his injuries.

The Elmgrens primarily rely on this court’s plurality opinion in Hernandez 

v. Brinker International, Inc., 285 S.W.3d 152 (Tex. App.—Houston [14th Dist.] 

2009, no pet.) (plurality op.). There, the plaintiff, a subcontractor employee, was 

hired to maintain and make repairs to a restaurant’s air-conditioning system, which 

was located on the roof of the restaurant. That particular day, the plaintiff was 

supposed to replace a compressor motor. As he was walking to or from the air 

conditioner with the old or new motor, he fell through the roof. The Hernandez

3 The Elmgrens’ live pleadings, attached to Ineos’ and Pavlovsky’s summary judgment 

motions, alleged that Joe was an employee of Zachry and that “all Corporate Defendants were 

the owners of the premises” at issue in Alvin, Texas. Ineos and Pavlovsky also attached to their 

summary judgment motions the maintenance services contract between Ineos and Zachry, and an 

affidavit from Ineos’ corporate deputy secretary Paul Capuzzi wherein he avers that the 

corporate Ineos defendants own the Alvin chemical plant.

8

 
plurality concluded that section 95.002(2) did not apply in such a situation: 

The roof and the air-conditioning system are separate improvements 

to real property. Section 95.002(2) states that Chapter 95 applies only 

to a claim “that arises from the condition or use of an improvement to 

real property where the contractor or subcontractor [repairs or 

modifies] the improvement.” Therefore, pursuant to the plain 

language of section 95.002(2), Chapter 95 does not apply to a 

contractor’s employee’s claim against a property owner when the 

improvement the condition or use of which gives rise to the injury 

claim is not the same improvement the contractor was at the premise 

to address at the time of injury.

285 S.W.3d at 157–58 (alterations in orig.). The plurality concluded:

“Hernandez’s claim arises from the condition of the roof, but Hernandez did not 

repair or modify the roof. Hernandez repaired the air-conditioning system. Thus, 

under the plain language of section 95.002(2), Chapter 95 does not apply to 

Hernandez's claims.” Id. at 161.

Ineos relies on cases where this court has concluded that the plaintiff’s 

injuries did arise from the condition or use of the improvement the plaintiff was 

repairing or modifying. For example, in Vanderbeek, a hospital engaged a

contractor for plumbing work necessary to remodel the emergency room. The 

plaintiff, a plumber who worked for the contractor, suffered chemical burns when a 

caustic liquid came out of a drainage pipe that he had previously capped. We 

concluded that section 95.002(2) applied and affirmed a take-nothing summary 

judgment for the hospital. 246 S.W.3d at 350–51, 353 (“Vanderbeek’s negligence 

claim arises from the condition or use of the Hospital building, which is an 

improvement to real property. . . . The contractor (Humphrey Plumbing) repaired, 

renovated, or modified the Hospital building.”). 

Likewise, in Dyall, without specifically discussing the applicability of 

section 95.002(2), this court sitting en banc affirmed a take-nothing summary 

9
judgment in favor of a paper mill owner in an action by an independent

contractor’s employees for respiratory injuries relating to the inhalation of toxic 

gases released from a pipe while they were repairing a leaking flange. 152 S.W.3d 

at 693–96, 710. 

The plurality in Hernandez, however, did not take issue with Vanderbeek

and Dyall because in those cases the facts supported that “the employee’s injury 

was caused by a condition or the use of the improvement he was repairing or 

modifying.” 285 S.W.3d at 161 (discussing Vanderbeek, 246 S.W.3d at 348–49; 

Dyall, 152 S.W.3d at 695–96).

Under the plain language of section 95.002(2), to meet their burden on 

summary judgment to show that chapter 95 applies to the Elmgrens’ claims, Ineos 

and Pavlovsky must facially establish that the claims “arise[] from the condition or 

use of an improvement to real property where [Zachry] constructs, repairs, 

renovates, or modifies the improvement.” See Tex. Civ. Prac. & Rem. Code 

§ 95.002(2). As alleged, Zachry and Joe were working on repairing valves on the 

“common header system and specifically on a de-coke header” on the Olefins #2 

DDB 101B furnace at Ineos’ plant. The Elmgrens also alleged that Joe was 

severely injured by a “sonic boom type super heated explosion of gases” and that 

his injuries resulted from a “super heated gas leak” “into the line upon which he

was working.” The Elmgrens described this leak as “an unreasonably dangerous 

condition.” They do not argue that the common header system and the de-coke 

header are not an improvement to real property, but rather that the particular 

LOTO line and valves Joe was working on do not qualify as the same 

improvement as the rest of the “gas process.” Essentially, what the Elmgrens

would have us do is to attempt to divide the plant’s “gas process” system of 

furnaces and headers valve-by-valve or line-by-line into separate, discreet 

10
improvements. However, neither section 95.002(2) nor our case law, including the 

plurality in Hernandez, precludes us from determining these particular alleged 

facts indicate that the Elmgrens’ claims arise from the condition of the “gas 

process” system improvement and that Zachry and Joe were repairing or modifying 

such improvement. Rather, such a result is consistent with the plain language of 

section 95.002(2). See Tex. Civ. Prac. & Rem. Code § 95.002(2). In addition, this 

result is consistent with the outcomes in Vanderbeek and Dyall, and 

distinguishable from the Hernandez plurality.

We therefore conclude Ineos has conclusively proven that chapter 95 

applies, and we overrule the Elmgrens’ first and second issues as to Ineos—to the 

extent the Elmgrens alleged negligence claims arising from the condition of the 

improvement Zachry and Joe were repairing. See Vanderbeek, 246 S.W.3d at 351.

2. There is no genuine fact issue on Ineos’ actual knowledge.

In their third issue, the Elmgrens argue that, to the extent chapter 95 applies, 

they raised a genuine fact issue that Ineos exercised or retained control over 

Zachry’s and Joe’s work. See Tex. Civ. Prac. & Rem. Code § 95.003(1). 

Likewise, in their fourth issue, the Elmgrens argue that they raised a fact issue that 

Ineos had actual knowledge of the danger or condition resulting in Joe’s burns and 

failed to adequately warn. See id. § 95.003(2).

Both of these independent and necessary conditions of section 95.003 must 

be met before liability will be imposed upon the property owner. See id. § 95.003; 

Vanderbeek, 246 S.W.3d at 352; Ellwood, 214 S.W.3d at 700; Dyall, 152 S.W.3d 

at 699. Ineos moved for both traditional and no-evidence summary judgment on 

both prongs of section 95.003. We already have determined that Ineos 

conclusively established that chapter 95 applies to claims against them to the 

extent they arise from the condition of the improvement Zachry and Joe were 

11
repairing, so the trial court properly shifted the burden on summary judgment to 

the Elmgrens. See Vanderbeek, 246 S.W.3d at 352. Thus, under chapter 95, they 

had the burden to raise a fact issue on both the control and actual knowledge 

prongs in order to withstand summary judgment. See Tex. Civ. Prac. & Rem. 

Code § 95.003; Ellwood, 214 S.W.3d at 700 (“An owner may be aware of the 

danger, but exercise no control, or he may exercise control and have no actual 

knowledge of the danger; in either instance, the owner is statutorily shielded from 

liability.”); Dyall, 152 S.W.3d at 699 (“The burden now rests upon the plaintiff to 

show both (1) control and (2) actual knowledge of the danger.” (emphasis in 

orig.)).

Where the summary judgment evidence fails to raise a fact issue on one 

prong of section 95.003, we need not address the other prong. See Bartee v. Baylor 

Coll. of Med., No. 14-06-00324-CV, 2007 WL 2989614, at *4 & n.3 (Tex. App.—

Houston [14th Dist.] Oct. 16, 2007, no pet.) (mem. op.) (concluding trial court 

correctly granted summary judgment based upon section 95.003 where no fact 

issue raised as to control without addressing actual knowledge). Section 95.003(2) 

requires the Elmgrens to prove that Ineos had actual knowledge—as opposed to 

constructive knowledge—of the alleged dangerous condition. See Ellwood, 214 

S.W.3d at 700. Actual knowledge of a dangerous condition is what a person 

actually knows, as distinguished from constructive knowledge, or what a person 

should have known. See City of Corsicana v. Stewart, 249 S.W.3d 412, 414–15 

(Tex. 2008) (per curiam) (“Actual knowledge requires knowledge that the 

dangerous condition existed at the time of the accident, as opposed to constructive 

knowledge which can be established by facts or inferences that a dangerous 

condition could develop over time.”).

12
In its summary judgment motion, Ineos specifically argued there was no 

evidence Ineos had actual knowledge that gas existed in the pipe on which Joe was 

working at the time of the accident. In addition to the line being LOTO and the 

sniff test performed prior to the work resulting in zero, Ineos pointed to testimony 

from Joe that he did not have any information from anyone indicating Ineos knew 

of any valves leaking gas before his accident. Robin testified that no one from 

Ineos knew there was gas in the line before Joe starting working on the valves, and 

that if anyone from Ineos knew gas was present, Joe would not have been allowed 

to work on the line. Pavlovsky testified that Ineos was not aware and did not have 

knowledge of any leaking valves at the time of the accident. Rex Hill, day furnace 

operator for Ineos, testified that he was not aware of anyone from Ineos knowing 

of any gas in the line before the accident. Rodney Girlinghouse, senior site safety 

support manager for Zachry at Ineos’ plant, led the investigation of Joe’s accident 

and was not aware of anyone at Ineos who had actual knowledge of any gas in the 

line on which Joe was working that night.

The Elmgrens point to Pavlovsky’s testimony that he has heard that 

sometimes de-coke gate valves leak even when they are new. Pavlovsky further 

clarified, however, that he has never personally witnessed a new valve leaking. 

The Elmgrens further suggest that Ineos knew of the hazardous condition of gas in 

the line because a similar explosion occurred a few months earlier while Zachry 

employees were repairing a flange on a pipe about one hundred feet from the 

Olefins #2 DDB 101B furnace. The Elmgrens note that a fire watch was required 

pursuant to the work permit. They point to testimony from Pierce that, after Joe’s

accident, Ineos requires a full nitrogen purge before changing valves. David 

Dworaczyk, unit engineer for Ineos, testified that the better practice is to perform 

the sniff test closer in time to when the work begins. 

13
However, even viewing the summary judgment record in the light most 

favorable to the Elmgrens, none of this evidence indicates Ineos had actual 

knowledge of any valve allegedly leaking gas into the line that resulted in Joe’s 

injuries at the time of the accident. The evidence does not show Pavlovsky was 

aware that any new gate valve at Ineos’ plant was leaking. The evidence shows 

that there had previously been flammable gas in a line during a prior repair and that 

there are arguably better methods for clearing and checking a line for gas. See 

Echartea, 2011 WL 2684889, at *5 (finding no evidence of actual knowledge of 

roadway hole or rut causing plaintiff’s injury despite evidence that location had 

been previously cleared of ruts). At most, Ineos may have had knowledge of a 

possibility that gas could exist in the line, but knowledge of a potential danger or 

condition is not enough. See Bishop v. Nabisco, Inc., No. 14-03-00639-CV, 2004 

WL 832916, at *3 (Tex. App.—Houston [14th Dist.] Apr. 20, 2004, no pet.) (mem. 

op.) (“Actual knowledge that the cover was dangerous is different than knowing 

that the cover was potentially dangerous.”).

We conclude that the Elmgrens failed to meet their burden to raise a genuine 

fact issue on Ineos’ actual knowledge pursuant to section 95.003(2). We overrule 

the Elmgrens’ fourth issue. Because the Elmgrens failed in their burden regarding 

the second prong of section 95.003, we need not and do not address the first prong 

on control or their third issue, which addresses that prong. See Bartee, 2007 WL 

2989614, at *4 & n.3. Therefore, the trial court did not err in granting Ineos’ 

motion for summary judgment as to the Elmgrens’ claims arising from the 

condition of the improvement Zachry and Joe were repairing. See Echartea, 2011 

WL 2684889, at *5.

C. The trial court erred in granting summary judgment pursuant to chapter 

95 as to Pavlovsky because he did not conclusively prove that chapter 95 

applies to him.

14
With respect to Pavlovsky, the Elmgrens argue that Pavlovsky did not 

conclusively prove that chapter 95 applies to claims against him. Pavlovsky did 

not submit any evidence that he was a property owner or contractor for purposes of 

chapter 95. Instead, Pavlovsky contends that he qualifies as such because he is an 

employee of Ineos, the property owner and contractor. We cannot agree. The 

plain language of section 95.002(1) states that chapter 95 applies to claims “against 

a property owner, contractor, or subcontractor”—not to claims against an 

“employee” of a property owner, contractor, or subcontractor. See Tex. Civ. Prac. 

& Rem. Code § 95.002(1). Indeed, the legislature could have included employees

as a category of protected defendant but did not. See id. (listing claims for 

“personal injury, death, or property damage to . . . an employee of a contractor or 

subcontractor”). Pavlovsky relies on Fisher v. Lee & Chang Partnership, 16 

S.W.3d 198 (Tex. App.—Houston [1st Dist.] 2000, pet. denied), for the proposition 

that “[a]gents, representatives, or employees of the property owner and/or 

contractor enjoy the benefits of Chapter 95.” However, the precise holding of our 

sister court in Fisher does not reach so broadly as to cover all employees of 

property owners or contractors. In the specific situation where there was evidence 

that a particular individual was an agent and property manager for the property 

owner and “looked after the property,” the Fisher court held the liability protection 

in “sec. 95.003 applies to property owners and also to their agents who oversee 

their properties.” Id. at 202–03; see Echartea, 2011 WL 284889, at *3 n.1. In any 

event, Pavlovsky did not argue, much less conclusively prove, that he was Ineos’ 

agent who oversees their property. We sustain the Elmgrens’ first and second 

issues as to Pavlovsky.4

4 We of course take no position at this time with regard to whether premises-liability 

claims against Pavlovsky otherwise could withstand summary disposition.

15

 
D. The trial court erred in granting summary judgment on the Elmgrens’

negligent-activity and negligent-undertaking claims.

Both Ineos and Pavlovsky moved for traditional summary judgment on the 

ground that they were “not liable for the alleged personal injury sustained by [Joe] 

under . . . section 95.003; thus, summary judgment is appropriate as a matter of 

law.” We construe this as a global summary judgment ground that encompasses 

all claims for personal injury pleaded by the Elmgrens. See Nall v. Plunkett, 404 

S.W.3d 552, 556 (Tex. 2013) (reversing appellate court and construing summary 

judgment ground that did not expressly mention negligent undertaking as 

addressing such claim). Indeed, in their summary-judgment response, the 

Elmgrens argued that chapter 95 did not apply in this situation—i.e., their claims 

arising from Ineos’ direct role in informing Zachry and Joe that “the system was 

safe to proceed.” The trial court granted Ineos and Pavlovsky summary judgment, 

specifically finding that chapter 95 applies to the Elmgrens’ personal injury claims.

On appeal, in addition to the argument that chapter 95 does not apply 

because Joe’s injuries did not arise from the condition of the specific improvement 

that he was repairing, discussed and rejected above, the Elmgrens also assert that 

chapter 95 does not bar their negligence claims based on the alternative theories of

negligent activity and negligent undertaking.

5

We first consider what claims had been sufficiently pleaded by the Elmgrens 

at the time of summary judgment. The Elmgrens pleaded premises liability. They 

alleged that premises-owner Ineos failed with regard to its duty to provide “a safe 

place and conditions for [Joe] and others to work.” As discussed, Chapter 95 

appropriately governs these claims as to Ineos. See Tex. Civ. Prac. & Rem. Code 

5 At argument, counsel for the Elmgrens presented this court with proposed jury 

questions that particularly contemplated as to Ineos theories of negligent undertaking, general 

negligence, and premises liability pursuant to chapter 95.

16

 
§ 95.003; Bishop, 2004 WL 832916, at *3. In addition, the Elmgrens alleged 

negligence by Ineos and Pavlovsky in various respects, including failures to timely 

inspect and to purge the line for gas. The Elmgrens further alleged Ineos’ 

particular responsibility with regard to clearing the line for Joe’s protection. At 

this stage, based on our review of the pleadings, which we construe liberally in the 

absence of special exceptions, see Roark v. Allen, 633 S.W.2d 804, 809 (Tex. 

1982), and resolving any doubts against the motions for summary judgment, see 

Echartea, 2011 WL 2684889, at *2, we agree with the Elmgrens that their

pleadings fairly encompass negligence claims potentially sounding in negligent 

activity and negligent undertaking. See Horizon/CMS Healthcare Corp. v. Auld, 

34 S.W.3d 887, 896–97 (Tex. 2000) (describing “fair notice” standard for pleading 

as whether opposing party can ascertain from the pleading basic nature of the 

controversy, even if improperly named); Dodd v. Savino, —S.W.3d—, No. 14-12-

00555-CV, 2014 WL 242881, at *11 (Tex. App.—Houston [14th Dist.] Jan. 16, 

2014, no. pet. h.) (substitute op.) (“The case law is clear that a petition is sufficient 

if a cause of action may reasonably be inferred from what is specifically stated in 

the petition, even if an element of the cause of action is not specifically alleged.”) 

(internal quotation marks omitted). 

Premises liability is a special form of negligence where the duty owed to the 

plaintiff depends on the plaintiff’s status at the time of the incident. W. Invs., Inc. 

v. Urena, 162 S.W.3d 547, 550 (Tex. 2005). A premises owner has a duty to use 

reasonable care to keep the premises under his control in a safe condition for 

business invitees, such as independent contractors. See Redinger, 689 S.W.2d at 

417. Premises-liability claims are divided into two categories: (1) defects existing 

when an independent contractor enters the premises and (2) defects created by the 

independent contractor’s work activity. Dow Chem. Co. v. Bright, 89 S.W.3d 602, 

17
606 (Tex. 2002) (citing Coastal Marine Serv. of Tex., Inc. v. Lawrence, 988 

S.W.2d 223, 225 (Tex. 1999)). With respect to pre-existing defects, a premises

owner has a duty to inspect the premises and warn of defects the owner knows or 

should have known about. Clayton W. Williams, Jr., Inc. v. Olivo, 952 S.W.2d 

523, 527 (Tex. 1997). With respect to defects arising later, an owner generally has 

no duty unless it retains a right to or exercises some control over the manner in 

which the contractor’s work is performed. See Bright, 89 S.W.3d at 606;

Redinger, 689 S.W.2d at 418. As indicated, the effect of section 95.003 was to 

codify Redinger’s right-to-control requirement and to raise the knowledge 

requirement to actual knowledge of the dangerous condition. See Ellwood, 214 

S.W.3d at 700; Dyall, 152 S.W.3d at 699.

Whereas a premises-defect claim is based on the property itself being 

unsafe, a negligent-activity claim requires that the plaintiff’s injury result from a 

contemporaneous activity itself rather than from a condition created on the 

premises by the activity. State v. Shumake, 199 S.W.3d 279, 284 (Tex. 2006); 

Timberwalk Apartments, Partners, Inc., v. Cain, 972 S.W.2d 749, 753 (Tex. 1998); 

Keetch v. Kroger Co., 845 S.W.2d 262, 264 (Tex. 1992); Mayer, 278 S.W.3d at

909. Negligent activity is a general negligence cause of action and encompasses 

theories of malfeasance based on affirmative, contemporaneous conduct by the 

property owner that caused the injury, while premises liability encompasses 

theories of nonfeasance based on the owner’s failure to take measures to make the 

property safe. Del Lago Partners, Inc. v. Smith, 307 S.W.3d 762, 776 (Tex. 2010). 

The duty inquiry in a negligent-activity claim does not turn on whether a duty 

arose to take protective action based on special circumstances or the parties’ 

relationship. See Custom Transit, L.P. v. Flatrolled Steel, Inc., 375 S.W.3d 337, 

364 (Tex. App.—Houston [14th Dist.] 2012, pet. denied). “Instead, the duty 

18
inquiry focuses on injuries caused by contemporaneous actions or omissions in [the 

owner’s] conduct.” Id.

For purposes of a negligent-undertaking claim, the “critical inquiry

concerning the duty element” is “whether a defendant acted in a way that requires 

the imposition of a duty where one otherwise would not exist.” Nall, 404 S.W.3d 

at 555. Such a duty may arise when a person particularly undertakes to provide 

services to another, either gratuitously or for compensation, including undertaking

to make the premises safe for others. See Custom Transit, 375 S.W.3d at 361

(citing Torrington Co. v. Stutzman, 46 S.W.3d 829, 837 (Tex. 2000)). A jury 

presented with a negligent-undertaking claim should be instructed that the 

defendant was negligent if: (1) the defendant undertook to perform services that it 

knew or should have known were necessary for the plaintiff’s protection; (2) the 

defendant failed to exercise reasonable care in performing those services; and (3) 

either the plaintiff relied on the defendant’s performance, or the defendant’s 

performance increased the plaintiff’s risk of harm. Id.

The Texas Supreme Court recognizes a distinction between the separate 

theories of premises liability and negligent activity. Del Lago, 307 S.W.3d at 775

(“As to landowners, we have recognized negligent-activity and premises-liability 

theories of liability.”); Shumake, 199 S.W.3d at 284 (“We have rejected attempts to 

blur the distinction between these two claims.”); Keetch, 845 S.W.2d at 264 (“We 

decline to eliminate all distinction between premises conditions and negligent 

activities.”); see Custom Transit, 375 S.W.3d at 361. Although the terms 

“negligent activity” and “negligent undertaking” are sometimes used 

interchangeably, a negligent-undertaking theory is separate and distinct from a 

negligent activity theory. See Custom Transit, 375 S.W.3d at 363. Moreover, as 

with negligent activity, the Texas Supreme Court recognizes that negligent 

19
undertaking and premises liability, although similar in that the plaintiff seeks to 

impose a duty to take protective action based on special circumstances or the 

parties’ relationship, involve two different theories of recovery. See Nall, 404 

S.W.3d at 555; Wilson v. Tex. Parks & Wildlife Dep’t, 8 S.W.3d 634, 635 (Tex. 

1999) (per curiam); Custom Transit, 375 S.W.3d at 361 (citing Torrington, 46 

S.W.3d at 838).

Next, we must determine whether chapter 95 applies to automatically bar all 

such negligence claims. In other words, whether chapter 95 as a matter of law 

provides the Elmgrens’ exclusive remedy against Ineos here. We conclude that it 

does not. In Dyall, albeit in dicta, our en banc court indicated that the intent of 

chapter 95 was not to bar all negligence claims against property owners. See 152 

S.W.3d at 708. There, we considered chapter 95’s statement of legislative intent,6

found it to be entirely consistent with the statute’s plain meaning, and specifically 

indicated that chapter 95 would not preclude recovery in the following situations:

6 Representative Robert Junell, sponsor of the bill, stated that it was the authors’ intent 

that chapter 95 “does not apply nor raise the burden of proof in situations where a property 

owner is negligent, separate and apart from exercising or retaining control over the manner in 

which the work is performed in a contract to construct, repair, renovate, or modify an 

improvement to real property.” Dyall, 152 S.W.3d at 708 (citing H.J. of Tex., 74th Leg., R.S. 

2611–12 (1995)). Representative Junell offered two examples: 

Example: Let’s say there is a concrete company supplying concrete to a plant and 

because of premise owner’s negligence (such as failing to properly maintain their 

pipelines, vessels or pressures), there is an explosion destroying the concrete truck 

and injuring the driver. Nothing in this Chapter would raise the burden of proof 

on the property owners negligence for recovery of the damages related to the 

truck or person.

Example: Likewise, if we have a maintenance contractor who gets a contract to 

perform work at the plant, and the property owner informs the contractor that the 

lines are clear and ready for welding, when in fact they are not, due to the 

property owner’s negligence, and an employee of the maintenance contractor is 

injured by the release of chemicals. Nothing in this chapter would change the 

burden of proof or the damages recoverable.

Id. (citing same).

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“if [independent contractor employee] had been injured by an unrelated explosion 

of the pine bleaching plant due to [mill owner’s] negligence” and “if [mill owner]

had negligently told [independent contractor employee] that the pipe was empty, 

and [employee] had been injured due to his reliance on that statement,” then “the 

statute would not preclude recovery.” Id. (concluding, however, that neither

scenario was at issue where mill owner specifically told independent contractor

employees pipe was not empty). Until now, this court has not been directly 

presented with a case where the plaintiff alleged negligence claims against a 

property owner arguably falling within a situation as described in Dyall. Cf.

Vanderbeek, 246 S.W.3d at 348–49, 351 (negligence claims covered by chapter 95

where plaintiff had alleged dangerous condition due to hospital’s negligence prior 

to plaintiff’s work, but where no allegation of contemporaneous action or omission

by hospital or additional undertaking to protect plaintiff by hospital).7

Recently, in Oncor Electric Delivery Co., LLC v. Murillo, —S.W.3d—, 

2014 WL 1056471 (Tex. App.—Houston [1st Dist.] Mar. 18, 2014, no pet. h.) (op. 

on reh’g), our sister court recognized that claims of negligent activity survive 

chapter 95. There, an employee of a demolition contractor was electrocuted at a 

demolition site. Oncor was the easement holder and electricity provider to the site

that failed to de-energize the transformer at issue. The jury found Oncor liable for 

general negligence and assessed damages. The court rejected Oncor’s jury-charge 

challenge that the only viable claim against it and the plaintiff’s exclusive remedy 

was for premises liability under chapter 95 arising from the failure to provide a 

safe workplace. Id. at *8, *19.

7 The Dallas court of appeals declined to follow our dicta from Dyall in Dow Chemical 

Co. v. Abutahoun, 395 S.W.3d 335, 347 n.5 (Tex. App.—Dallas 2013, pet. filed).

21

 
In doing so, the Oncor court noted the Texas Supreme Court’s consistent 

recognition “that negligent-activity claims and premises-defect claims involve two 

independent theories of recovery . . . . although ‘[t]he lines between negligent 

activity and premises liability are sometimes unclear,’ there is a recognized 

distinction between the two theories.” Id. at *8 (quoting Del Lago, 307 S.W.3d at

776). “Premises defect and negligent activity are two separate theories.” Id. at 

*13. As the Oncor court explained, just because Oncor also may have owed “the

duty of a property owner to use ordinary care to reduce or eliminate an 

unreasonable risk of harm created by some condition on the premises,” where 

Oncor performed its own activity on the property, “it had a duty to use ordinary 

care in the performance of that activity so that its activity would not proximately 

cause a foreseeable injury to workers on the site.” Id. at *13 (where Oncor 

performed activity in disconnecting electricity or otherwise controlling flow of 

electricity to property to permit safe demolition, it owed duty to “workers on the 

site quite apart from the general duty it owed as the owner of the electricity 

easement on the property”). The Oncor court also explained that a plaintiff may 

proceed on negligent activity, as opposed to premises liability:

[W]here [the plaintiff] was not injured because a condition occurred 

as a result of equipment failure, act of God, third party interference, or 

the non-contemporaneous act of the easement owner—but by the 

negligent acts of several defendants, including [the easement owner] . 

. . .

Id. at *10 (discussing Tex. Dep’t of Transp. v. Ramming, 861 S.W.2d 460 (Tex.

App.—Houston [14th Dist.] 1993, writ denied)). Ultimately, the Oncor court 

concluded that the negligent activity was “Oncor’s failing to disconnect one of the 

cables it had been charged with disconnecting and, instead, leaving live electricity 

flowing through that cable to the demolition site during the on-going demolition, 

22
salvage, and utility removal process” and the plaintiff’s injuries were “attributable 

to an ongoing activity [of] the premises owner.” Id. at *10–11.

In light of the Texas Supreme Court’s continued recognition of the distinct 

nature of premises-liability, negligent-activity, and negligent-undertaking theories 

of liability, and in light of Dyall and Oncor, we conclude that chapter 95 defeats a 

premises-liability claim if the statutory requisites are satisfied but does not as a 

matter of law reach distinct claims for negligent activity and negligent undertaking.

Therefore, in these circumstances where the Elmgrens’ petition fairly 

included negligent-activity and negligent-undertaking theories of liability, the trial 

court erred in granting summary judgment insofar as its order operated to grant 

summary judgment pursuant to chapter 95 on the Elmgrens’ claims for negligent 

activity and negligent undertaking. We of course express no opinion as to whether 

the Elmgrens ultimately could establish any negligence claims (aside from 

premises-liability claims) and whether Ineos and Pavlovsky ultimately could be 

liable for any breaches of duty, if owed.

E. The trial court did not abuse its discretion in denying the Elmgrens’

motion to compel.

In their fifth issue, the Elmgrens argue that the trial court erred in denying 

their motion to compel responses to their 8th request for production, where they 

requested the names and contact information for all process engineers on duty at 

Ineos’ plant within three days of Joe’s accident. Ineos and Pavlovsky had objected 

on grounds that the request was overly broad, unduly burdensome, vague, and 

ambiguous “as to what is meant by process engineers.” In their motion, the 

Elmgrens pointed to Girlinghouse’s testimony that, during Zachry’s investigation, 

“an Ineos engineer” who worked during the day gave Girlinghouse information 

regarding leaking valves as the cause of the accident. Girlinghouse did not write 

23
any names down and could not describe or remember who told him that. 

Girlinghouse used the term “process engineer” when he responds he is not a 

process engineer after being asked to explain “how this gas could have gotten in 

the system.” The trial court denied the motion to compel. 

Thereafter, the Elmgrens took the deposition of Ineos’ corporate 

representative Randy Kay. The Elmgrens again moved to compel the identity of 

the process engineers,8 pointing to Kay’s testimony regarding the term “process 

engineers” and his identification of Dworaczyk as one of two process engineers 

who may have been assigned to Olefins #2. Kay could not recall the name of the 

other process engineer; his testimony indicated that one process engineer was 

assigned to Olefins #1 and one process engineer was assigned to Olefins #2. The 

Elmgrens then took Dworaczyk’s deposition one day before the summary 

judgment hearing. Dworaczyk testified that “process engineer” is a “general term” 

and that at the time he served as the “unit engineer” for Olefins #2. The Elmgrens

included excerpts from Dworaczyk’s deposition in their motion to reconsider and 

to allow new summary judgment evidence. The record indicates that the trial court

considered the Dworaczyk excerpts when denying the Elmgrens’ motion to 

reconsider summary judgment.

We review a trial court’s ruling on a motion to compel discovery under an 

abuse-of-discretion standard. See Johnson v. Davis, 178 S.W.3d 230, 242 (Tex.

App.—Houston [14th Dist.] 2005, pet. denied). Trial courts have broad discretion 

in matters of discovery. See id. We should reverse a trial court’s ruling on a 

motion to compel only when the court acts in an arbitrary and unreasonable 

manner, without reference to any guiding principles. Shanley v. First Horizon 

Home Loan Corp., No. 14-07-01023-CV, 2009 WL 4573582, at *3 (Tex. App.—

8 The record does not disclose a ruling on the Elmgrens’ second motion to compel.

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Houston [14th Dist.] Dec. 8, 2009, no pet.) (mem. op.).

The Elmgrens fail to show how the trial court abused its discretion by 

denying their first motion to compel or by failing to rule on, or implicitly denying,9

their second motion. The Elmgrens discovered who served as the Olefins #2 

“process engineer” at the time of Joe’s accident, deposed Dworaczyk, and utilized 

his testimony to defend against summary judgment. We conclude that the trial 

court did not abuse its discretion. See id. at *4.

 We overrule the Elmgrens’ fifth issue.

IV. CONCLUSION

Based on the foregoing, we affirm in part and reverse and remand in part the 

trial court’s summary judgment. With regard to the Elmgrens’ negligence claims 

based on a premises-liability theory, we (1) affirm the trial court’s granting of 

summary judgment pursuant to chapter 95 as to Ineos and (2) reverse the court’s 

granting of summary judgment pursuant to chapter 95 as to Pavlovsky. With 

regard to the Elmgrens’ negligence claims based on negligent-activity and 

negligent-undertaking theories, we reverse the trial court’s granting of summary 

judgment. In all other respects, we affirm the summary judgment. We remand the 

case for proceedings consistent with this opinion.

/s/ Marc W. Brown

Justice

Panel consists of Justices Boyce, Christopher, and Brown.

9 See Shanley, 2009 WL 4573582, at *3 n.4 (finding it arguable that rendition of 

summary judgment in favor of defendants implicitly overruled plaintiffs’ motion to compel 

discovery and thus preserved error).

25