Opinion issued June 25, 2013

In The

Court of Appeals 

For The 

First District of Texas 

————————————

NO. 01-12-00054-CV

———————————

ISRAEL SANCHEZ, Appellant

V.

BP PRODUCTS NORTH AMERICA, INC., Appellee

On Appeal from the 10th District Court

Galveston County, Texas

Trial Court Case No. 09-CV0224-A

MEMORANDUM OPINION

Israel Sanchez was injured when he fell from scaffolding on a worksite. He 

filed a negligence suit against the premises owner, BP Products North America, 

Inc., and the contractor that built the scaffolding, Miken Specialties, Ltd. BP filed 
2

a combined traditional and no-evidence motion for summary judgment on the

grounds that chapter 95 of the Texas Civil Practice and Remedies Code barred 

Sanchez’s claims. The trial court granted summary judgment and severed the 

claims against BP from the suit. On appeal, Sanchez argues that the trial court 

erred in granting summary judgment because chapter 95 does not apply to his 

claims, BP did not carry its burden to prove that chapter 95 applies, and material 

fact issues preclude the granting of summary judgment. We affirm.

Background

A refinery periodically ceases operations for a “turnaround,” during which 

time maintenance and renovations are completed. In 2008 BP performed a 

turnaround at its Texas City facility that included an alkylation unit called “Alky 

3.” To accomplish the maintenance and renovations scheduled for the turnaround, 

BP contracted with JV Industrial Companies, Ltd. to provide mechanical and 

piping services and with Miken Specialties, Ltd. to construct the scaffolding that 

would enable the workers to access the overhead pipes and equipment. 

OSHA regulations and BP policies require that scaffolding be inspected and 

certified by a competent person prior to use. To accomplish this, color-coded tags

were affixed to the ground-level ladder on the scaffolding. Red tags indicated a 

hazard and that the scaffolding was not fit for use, green tags indicated that the 

scaffolding was fit for use, and yellow tags disclosed hazards that had been 
3

observed and identified specific precautions to be taken when using the 

scaffolding. For example, a cautionary instruction could direct the worker to use 

“100% tie-off,” a fall-protection method in which the worker affixes to the 

scaffolding a lanyard, which is connected to a body harness and is designed to 

prevent him from falling to the ground. In addition, JV employees were required 

to get work permits from a BP operator before beginning their jobs. The BP 

operator would walk through the work area and inspect for hazards—including a 

red tag on scaffolding—before issuing the work permit.

Israel Sanchez was working for JV at Alky 3 during the 2008 turnaround. 

He reported to Julian Flores, who was a piping supervisor for JV. Flores had 

instructed the scaffold builders to remove some of the boards on the second level

of the scaffolding so that JV workers could position a pipe for installation. 

Sanchez testified that when he ascended the scaffolding, he saw a tag that indicated 

there was a hole in the deck and that 100% tie-off was required. However, 

Sanchez was not tied off when he descended from the third level of the scaffolding 

to the second level. He lost his balance and fell through the open deck to the 

ground beneath.1

 Sanchez was injured and taken to the hospital, where 

 1 The summary-judgment evidence conflicts as to whether Sanchez descended 

by using a ladder that was provided for that purpose and that became 

detached from the scaffolding poles, or whether he climbed over handrails to 

get to the second level. The deposition testimony of Sanchez, his coworkers, 

and his supervisor centered on Sanchez’s fault in causing the injury by 
4

emergency-room doctors diagnosed him with a deep bruise on his hip. In his 

deposition, Sanchez described additional injuries resulting from the fall.

Sanchez sued BP and Miken alleging, among other acts of negligence, the 

failure to provide a safe workplace. BP moved for summary judgment, arguing 

that under chapter 95 of the Civil Practice and Remedies Code it did not owe a 

duty to provide a safe workplace to Sanchez. The trial court granted summary 

judgment, and Sanchez appealed.

Analysis

We review de novo the trial court’s ruling on a motion for summary 

judgment. Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 

844, 848 (Tex. 2009). A party may combine in a single motion a request for 

summary judgment under both the no-evidence and traditional standards. Binur v. 

Jacobo, 135 S.W.3d 646, 650–51 (Tex. 2004). A party seeking summary 

judgment under the no-evidence standard must assert that there is no evidence of 

one or more essential elements of a claim or defense on which the nonmovant 

would have the burden of proof at trial. TEX. R. CIV. P. 166a(i). In addition, the 

movant must specify the elements as to which he contends there is no evidence. 

 

failing to follow safety procedures. However, the summary-judgment 

motion was based on the application of chapter 95 of the Civil Practice and 

Remedies Code, and therefore Sanchez’s contributory negligence, if any, is 

not relevant to this appeal.
5

Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 581 (Tex. 2006). The burden shifts 

to the nonmovant to present evidence as to the elements identified in the motion. 

Id. at 582. A genuine issue of material fact exists if the nonmovant produces 

evidence that would enable reasonable and fair-minded jurors to differ in their 

conclusions. Hamilton v. Wilson, 249 S.W.3d 425, 426 (Tex. 2008) (citing City of 

Keller v. Wilson, 168 S.W.3d 802, 816 (Tex. 2005)).

A party seeking summary judgment under the traditional standard bears the 

burden of showing that no genuine issue of material fact exists and that it is 

entitled to judgment as a matter of law. TEX. R. CIV. P. 166a(c); see also Provident 

Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215–16 (Tex. 2003). A 

defendant moving for summary judgment must conclusively negate at least one 

essential element of each of the plaintiff’s causes of action or conclusively 

establish each element of an affirmative defense. Sci. Spectrum, Inc. v. Martinez,

941 S.W.2d 910, 911 (Tex. 1997).

I. Chapter 95

In his first issue, Sanchez argues that BP has not carried its burden of proof 

to show that chapter 95 applies. He reasons that BP’s motion for summary 

judgment did not specifically identify evidence showing that it is the property 

owner and that his claim “arises from the condition or use of an improvement to 

real property where the contractor or subcontractor constructs, repairs, renovates, 
6

or modifies the improvement.” See TEX. CIV. PRAC. & REM. CODE § 95.002 (West 

2011). In his second, third, and fourth issues, Sanchez alternatively argues that 

chapter 95 does not apply and that genuine issues of material fact exist as to its 

applicability. He argues that his injury arose from scaffolding, which he contends

is not an improvement to real property. He also argues he was not renovating the 

scaffolding as he was merely using it to reach his work site.

a. Statutory framework

“In a negligence action, a plaintiff must show that (1) the defendant owed a 

duty to the plaintiff, (2) the defendant breached that duty, and (3) the breach 

proximately caused the plaintiff’s injuries.” Abarca v. Scott Morgan Residential, 

Inc., 305 S.W.3d 110, 121 (Tex. App.—Houston [1st Dist.] 2009, no pet.). 

“Whether a duty exists is a question of law for the court.” Texas Home Mgmt, Inc. 

v. Peavy, 89 S.W.3d 30, 33 (Tex. 2002) 

Chapter 95 codified the general common-law rule that “an owner or occupier 

does not have a duty to see that an independent contractor performs work in a safe 

manner.” Redinger v. Living, Inc., 689 S.W.2d 415, 418 (Tex. 1985); see TEX.

CIV. PRAC. & REM. CODE ANN. §§ 95.001–.004 (West 2012). Section 95.003 

provides:

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 
7

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.

TEX. CIV. PRAC. & REM. CODE ANN. § 95.003. “Both conditions of section 95.003 

must be met before chapter 95’s exception to the general rule of nonliability for a 

premises owner will be imposed.” Phillips v. Dow Chem. Co., 186 S.W.3d 121, 

132–33 (Tex. App.—Houston [1st Dist.] 2005, no pet.). “[T]he second condition 

requires actual, rather than merely constructive, knowledge by the premises owner 

concerning the allegedly dangerous condition.” Id. at 132. 

Under the first condition, “[t]he requisite control can be contractual or 

actual.” Union Carbide Corp. v. Smith, 313 S.W.3d 370, 375 (Tex. App.—

Houston [1st Dist.] 2009, pet. denied). When a contract gives the premises owner 

“the right to control the means, methods, or details of the independent contractor’s 

work to the extent that the independent contractor is not entirely free to do the 

work his own way,” the contract may impose a duty of care. Abarca, 305 S.W.3d 
8

at 123 (citing Dow Chem. Co v. Bright, 89 S.W.3d 602, 606 (Tex. 2002)).2

“[W]hether a contract gives a right of control is generally a question of law.” Id.

(citing Bright, 89 S.W.3d at 606).

In order to have actual control, a property owner must have the right to 

control the method, manner, means, and operative detail of the contractor’s work. 

Id. The control must be such that the “contractor is not entirely free to do the work 

his own way.” Id. at 124. In addition, the control must relate to the injury the 

negligence causes. Id. “It is not enough that the owner has the right to order the 

work to stop and start or to inspect progress or receive reports. Nor is it enough to 

recommend a safe manner for the independent contractor’s employees to perform 

the work.” Id. In regard to safety regulation or supervision, a premises owner 

does not exercise actual control by requiring contractors to follow its safety rules 

and regulations unless doing so increases the risk of harm. See Union Carbide 

Corp., 313 S.W.3d at 378; Dyall v. Simpson Pasadena Paper Co., 152 S.W.3d 688, 

701 (Tex. App.—Houston [14th Dist.] 2004, pet. denied); see also Bright, 89 S.W. 

3d at 607–08. 

Chapter 95 applies “only” to a claim:

 2 Because section 95.003(1) codified the common-law holding of Redinger v. 

Living, Inc., 689 S.W.2d 415, 418 (Tex. 1985), this court has held that prechapter 95 case law regarding premises liability for worksite injuries is 

relevant to chapter 95 cases. See Phillips v. Dow Chem. Co., 186 S.W.3d 

121, 132–35 nn. 4 & 5 (Tex. App.—Houston [1st Dist.] 2005, no pet.).
9

(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.

Id. § 95.002. Under section 95.002, the improvement to real property that is the 

object of the contractor’s work need not, itself, be the injury-producing premises 

defect. Fisher v. Lee & Chang P’ship, 16 S.W.3d 198, 201–02 (Tex. App.—

Houston [1st Dist.] 2000, pet. denied) (holding that chapter 95 barred recovery 

when contractor fell from ladder he was using to access roof-mounted air 

conditioning units he was tasked to repair); see Phillips, 186 S.W.3d at 131–32

(holding that chapter 95 barred recovery when decedent fell from scaffolding she 

used to access location from which she acted as “holewatch and firewatch”). The 

defendant has the burden to show that chapter 95 applies to the claim, and having 

done so, the burden of proof shifts to the plaintiff to establish both that (1) the 

property owner exercised or retained some control over the manner in which the 

work was performed, and (2) the property owner had actual knowledge of the 

danger and did not adequately warn of that danger. Rueda v. Paschal, 178 S.W.3d 

107, 111 (Tex. App.—Houston [1st Dist.] 2005, no pet.); TEX. CIV. PRAC. & REM.

CODE ANN. § 95.003. Sanchez’s first issue erroneously characterizes chapter 95 as 
10

an affirmative defense that BP carries the burden to prove. We overrule Sanchez’s 

first issue.

b. Applicability of chapter 95 to Sanchez’s claims against BP

The original petition filed in the trial court alleged, “The incident made the 

basis of this lawsuit occurred inside BP’s refinery in Texas City, Galveston 

County, Texas.” BP’s summary-judgment evidence supports this allegation. BP 

offered the deposition testimony of Sanchez and of Eulan Armour, a contract 

safety supervisor who worked during the Alky 3 turnaround. Both depositions 

reflect that Sanchez’s injury occurred at a BP facility, Alky 3, which was shut 

down for a turnaround. And Sanchez testified that he was working with pipe on a 

job that involved grinding and welding and required him to use scaffolding to 

access the specific location of his job assignment.

In Fisher v. Lee & Chang Partnership, 16 S.W.3d 198 (Tex. App.—Houston 

[1st Dist.] 2000, pet. denied), the plaintiff sued for failure to provide a safe 

workplace, alleging that he was injured when he fell from a ladder while repairing 

a roof-mounted air-conditioning unit. 16 S.W.3d at 200. This court held that 

chapter 95 barred his claims against the property owner:

Sec. 95.003 provides that a property owner is not liable for “. . . injury 

. . . arising from the failure to provide a safe workplace . . . .” The 

ladder was an unsafe part of appellant’s workplace, and his injury 

arose from the failure to provide a safe workplace. The statute does 

not require that the defective condition be the object of the 

contractor’s work. Therefore, by affording the statute its common 
11

meaning, secs. 95.002 and 95.003 are consistent and may both be read 

to provide protection from liability if the injury arose from the 

contractor’s work on an improvement to real property. Here, it did. 

Appellant used the ladder to reach the roof to perform his job, the 

repair of air conditioning units.

Id. at 201. This court also noted that scaffolding used to reach a work site would 

be considered “a tool used for construction, not an improvement that was being 

repaired or modified itself.” Id. at 202.

More recently, in Phillips v. Dow Chemical Co., 186 S.W.3d 121 (Tex. 

App.—Houston [1st Dist.] 2005, no pet.), a contractor died when she fell from 

scaffolding on a worksite. 186 S.W.3d at 124. Her husband filed a wrongful death 

and survival suit. Id. The court held that chapter 95 applied to his claim. Id. at 

132. The decedent had been using the scaffolding to access her worksite, where 

she worked as “holewatch and firewatch” for cleanup, repair, and renovation to the 

chemical plant. Id. This court held that “the scaffolding from which [she] fell was 

sufficiently related to [her] injuries to bring Dow within the protections of chapter 

95.” Id. 

Sanchez’s pleadings allege that he was injured while on the job at a worksite 

defined as BP’s refinery in Texas City. It is undisputed that BP owns this 

premises, that this premises is real property, that BP uses this premises for 

commercial or business purposes, and that BP was sued in those capacities. See 

TEX. CIV. PRAC. & REM. CODE ANN. § 95.001(3) (defining “property owner” as 
12

“person or entity that owns real property primarily used for commercial or business 

purposes”). BP’s summary-judgment evidence shows that Sanchez was repairing 

or renovating the Alky 3 unit, an improvement to real property, by doing a job that 

involved grinding or welding a piece of pipe. It further shows that Sanchez was 

using the scaffolding to reach his work site. We hold that chapter 95 applies to this 

claim. See Phillips, 186 S.W.3d at 132; Fisher, 16 S.W.3d at 202. Sanchez urges 

this court to adopt the reasoning in Hernandez v. Brinker International, Inc., 285 

S.W.3d 152, 157–58 (Tex. App.—Houston [14th Dist.] 2009, no pet.),

3 but we are 

constrained to follow our own court’s controlling authority in Fisher. We overrule 

Sanchez’s second, third, and fourth issues.

 3 The lead opinion in Hernandez concluded that “Chapter 95 does not apply to 

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

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

to address at the time of the injury.” 285 S.W.3d at 157–58. A concurring 

justice agreed with the outcome, but explained that he would reach the same 

result because the appellee failed to establish all the elements of his defense, 

specifically that the appellee was the property owner. Id. at 162–64 

(Anderson, J., concurring). The third member of the panel dissented, 

rejecting “the plurality’s narrow interpretation of the concept of 

improvement that rejects the idea of a building or overall structure as an 

improvement,” and noting that she “would merely hold in this case, 

Hernandez’s injury from falling through the roof in the course of performing 

work that must be done on the roof is sufficiently related to his reason for 

being on the premise to be covered by chapter 95.” Id. at 164–66 (Yates, J., 

dissenting). 
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II. Exceptions to Chapter 95

Having concluded that chapter 95 applies to Sanchez’s claim, we turn to his 

remaining issues regarding the applicability of the statutory exception in section 

95.003. Sanchez argues that genuine issues of material fact exist both as to 

whether BP controlled Sanchez’s work and as to whether BP was actually aware of 

the dangerous condition. We consider the question of control first because it is 

dispositive of this appeal.

Because Sanchez had the burden of proof on this issue, to be entitled to 

summary judgment, BP had to conclusively negate control or prevail on a noevidence challenge. See Rueda, 178 S.W.3d at 111. BP’s motion for summary 

judgment argued that there was no evidence that it controlled the work of JV’s 

employees, and in the alternative, that the evidence conclusively negated control 

under section 95.003(1). As to its argument for summary judgment under the 

traditional standard, BP relied solely on Sanchez’s testimony identifying his 

immediate supervisor on the job site:

Q. Okay. Who did you report to at JV? Who was your immediate 

supervisor?

A. Julian Flores.

. . . .

Q. If you had any questions about your job, Little Sumo, or his 

supervisor—and Little Sumo is Mr. Flores—that’s who you 

would get—who you would go to as far as any questions you 

had about your work. Right?

A. Yes, sir.
14

Q. If you had—someone was giving you instructions about what to 

do or how to perform your job, it was going to be Little Sumo 

or his supervisor. Correct?

A. Yes, sir.

In response to the motion, Sanchez argued that the contract between BP and 

JV established BP’s right of control, based on provisions in the contract that 

generally gave it a right to start and stop the work, receive progress reports, and 

require that JV conform to BP’s internal regulations. Sanchez also argued that BP 

exercised actual control through its direct provision of safety supervision to JV 

employees and through the work permitting system.

As we have noted, control may be established by the parties’ contract or by 

evidence that the premises owner actually controlled the contractor’s work. See

Smith, 313 S.W.3d at 375. Sanchez argues that the contract between BP and JV is 

evidence of control because it gave BP the following rights:

• the right to require the removal from the work site of an 

employee that BP deems objectionable;

• the right to periodic reviews of the work;

• the right to change the scope of the work;

• the right to require that JV perform the work in a manner that 

minimizes interference with BP’s operations;

• the right to direct JV to schedule the order of its work to avoid 

interference with the work of others;

• the right to perform collateral work with its own workforce; and

• the right to require strict compliance with BP’s rules.

All of these rights are “broadly supervisory” and do not show the kind of control 

the statute requires to impose a duty on the premises owner. Victoria Elec. Co-op., 
15

Inc. v. Williams, 100 S.W.3d 323, 328 (Tex. App.—San Antonio 2002, pet. 

denied); see Abarca, 305 S.W.3d at 123. The statute specifies that the rights to 

order the work to start or stop, to inspect progress, and to receive reports are not 

the type of control that would be sufficient to impose liability on the premises 

owner. See TEX. CIV. PRAC. & REM. CODE ANN. § 95.003(1). Therefore, the 

statute excludes “the right to periodic reviews of the work” and “the right to direct 

JV to schedule the order of its work to avoid interference with BP’s operations” as

factors that could establish control. See id. Similarly the right to change the scope 

of the work is akin to the right to start or stop the work and to ensure work is done 

in accordance with construction specifications. As such, it is not evidence of 

control because it did not indicate that BP retained the right to control the operative 

details of JV’s work. See Victoria Elec. Co-op., 100 S.W.3d at 328–29. In 

addition, although requiring JV’s employees to comply with BP’s rules and 

reserving the right to require the removal of objectionable employees may create a 

limited duty to ensure that the company’s rules were not unsafe, these actions do 

not establish that the property owner generally exercised or retained control over 

the manner in which the work was performed. See Arias v. MHI P’ship, Ltd., 978 

S.W.2d 660, 664–65 (Tex. App.—Corpus Christi 1998, pet. denied). Finally, BP 

also reserved the right to perform collateral work with its own workforce and to 

require JV to perform its work in a manner than minimizes interference with BP’s 
16

work. “Every premises owner must have some latitude to tell its independent 

contractors what to do, in general terms, and may do so without becoming subject 

to liability.” Koch Refining Co. v. Chapa, 11 S.W.3d 153, 156 (Tex. 1999). And 

the presence of company employees carrying out company functions does not 

demonstrate that the company exercised control of the manner in which the 

contract employees did their jobs. See id. Therefore, reserving the right to

perform additional work with BP’s employees or to require JV to work in a way 

that minimizes interference with BP’s work was not evidence that BP exercised the 

kind of control necessary for the law to impose a duty on the premises owner. See 

id.

Moreover, Sanchez’s argument misleadingly fails to disclose other parts of 

the contract, the plain language of which specifically negated BP’s right to control 

the work of JV employees:

ARTICLE 5: RELATIONSHIP OF PARTIES

5.01 Contractor shall assume all its duties under this Contract as an 

independent contractor and shall not be deemed for any purpose 

to be an agent, servant, or representative of Company. 

Company shall have no direct control of Contractor, its agents, 

or subcontractors in the performance of the Work hereunder. 

Contractor shall be solely responsible for performance of and 

shall control all of the details necessary to comply with its 

obligations under this Contract in a manner consistent with all 

applicable safety, health, environmental and industry practices 

and procedures. Nothing contained herein shall be construed to 

be inconsistent with such independent contractor relationship, 
17

and Company shall have no control over Contractor or its 

personnel’s manner or method of performing the Work.

As to BP’s right to demand removal of an objectionable employee, the 

contract states that JV “shall nevertheless retain all authority and control over its 

employees.” 

ARTICLE 7: CONTRACTOR’S PERSONNEL

. . . .

7.03 Any employee of Contractor deemed by Company, in their sole 

judgment, to be objectionable shall be removed from the Work 

site immediately upon Company request and shall be promptly 

replaced by Contractor at no extra expense to Company. 

Contractor shall nevertheless retain all authority and control 

over its employees, including responsibility for all costs arising 

from providing reasonable accommodations for its employees.

Affording BP limited rights to receive periodic reports on the progress of the 

work, to determine the scope of the work that JV performed, to require that the 

work be done in a safe and efficient manner, and to require the replacement of 

objectionable employees is not the same as controlling “the means, methods, or 

details of the independent contractor’s work to the extent that the independent 

contractor is not entirely free to do the work his own way.” Abarca, 305 S.W.3d at 

123. The contract itself provides that JV has the right to control its employees and 

BP does not have the right to control its employees. Thus, we conclude that the 

contract is no evidence that BP had a right of control sufficient to satisfy section 

95.003(1). See Hamilton, 249 S.W.3d at 426.
18

Sanchez further argues his summary-judgment evidence created a fact 

question as to whether BP exercised actual control. In its motion for summary 

judgment, BP relied on Sanchez’s testimony that his supervisor gave him 

instructions about what to do or how to perform his job. In response to the motion, 

Sanchez produced evidence of BP’s safety oversight and inspection. For example, 

Sanchez testified that he reported safety concerns both to his supervisor and to BP 

operators.

Sanchez also relied on testimony from Eulan Armour, the safety supervisor, 

who testified that BP’s safety representatives answered questions when needed.

But Sanchez did not produce any evidence that BP’s safety oversight or rules 

increased the risk of his injury. A premises owner does not incur a duty to 

independent contractors by “placing a safety employee on the work site,” Koch 

Refining, 11 S.W.3d at 157, or by “promulgat[ing] safety standards and regulations 

. . . unless there is also proof that they increased, rather than decreased, the 

possibility of severe injury.” Phillips, 186 S.W.3d at 136. A premises owner does 

not exercise actual control by requiring contractors to follow its safety rules and 

regulations unless doing so increases the risk of harm. Smith, 313 S.W.3d at 378; 

see Dyall 152 S.W.3d at 701. Thus, Sanchez’s summary-judgment evidence as to 

BP’s safety supervision, oversight, and requirements is no evidence that BP 

controlled the work of JV’s employees.
19

Sanchez also produced evidence of the work permitting system that BP used, 

including deposition testimony from one of his coworkers who explained that no 

work could begin until a BP operator issued a work permit. But the use of a work

permitting system is not evidence of control. See Bright, 89 S.W.3d at 609 

(“Dow’s general right under the safe work permit system to preclude work from 

beginning in the first instance is insufficient to establish actual control.”). 

Sanchez’s summary-judgment evidence regarding BP’s work permitting system is 

also no evidence that BP actually controlled the work of JV’s employees. We 

conclude that Sanchez’s evidence did not create a question of fact as to control. 

See Hamilton, 249 S.W.3d 426. We overrule Sanchez’s fifth issue. 

Because both elements of section 95.003 must be present for potential 

premises-owner liability, we hold that the trial court could have properly granted 

BP’s no-evidence motion for summary judgment based on Sanchez’s failure to 

produce some evidence that BP exercised contractual or actual control over his 

work. We hold that the trial court properly granted summary judgment in this 

case. Accordingly, we need not address Sanchez’s sixth issue.
20

Conclusion

We affirm the judgment of the trial court.

Michael Massengale

Justice 

Panel consists of Justices Keyes, Massengale, and Brown.