Spears, et al v. Crown Central Petro

United States Court of Appeals
Fifth Circuit
F I L E D
June 1, 2005
Charles R. Fulbruge III
Clerk
In the
United States Court of Appeals
for the Fifth Circuit
_______________
m 04-20686
Summary Calendar
_______________
MICHAEL SPEARS AND ANGELA SPEARS,
Plaintiffs-Appellants,
VERSUS
CROWN CENTRAL PETROLEUM CORPORATION,
Defendant-Appellee.
_________________________
Appeal from the United States District Court
for the Southern District of Texas
m 4:02-CV-3064
_________________________
Before DAVIS, SMITH, and DENNIS,
Circuit Judges.
PER CURIAM:*
I.
Michael Spears was working for Phillip
Service Corporation (“PSC”), a contractor
performing “turnaround” maintenance at the
refinery of Crown Central Petroleum (“Crown
Central”). Spears was assigned to work on a
heat exchanger in the fluid catalytic cracking
(“FCC”) unit of the refinery. After concluding
his work on the heat exchanger, Spears began
toting his tools to the PSC tool shed, located
south of the FCC unit. He tripped on steel-
* Pursuant to 5TH CIR. R. 47.5, the court has
determined that this opinion should not be published
and is not precedent except under the limited cir-
cumstances set forth in 5TH CIR. R. 47.5.4.

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braided hoses lying across his path and was
injured.
Spears and his wife sued Crown, alleging
state law causes of action; jurisdiction is based
on diversity of citizenship. Crown subsequently
moved for summary judgment, claiming that,
under chapter 95 of the Texas Civil Practice
and Remedies Code, it cannot be liable for any
injuries to Spears. The district court agreed.
II.
Enacted in 1995, chapter 95 reflects just one
aspect of the Texas legislature’s recent so-
called “tort reform” efforts. Generally, Texas
law imposed a duty on premises owners to
inspect their premises and warn invitees of
dangers that are not open and obvious. See
Coastal Mar. Serv. v. Lawrence, 988 S.W.2d
223, 225 (Tex. 1999). With the passage of
chapter 95, however, that duty is abrogated in
certain circumstances. According to the stat-
ute,
A property owner is not liable for personal
injury, death, or property damage to a con-
tractor, subcontractor, or an employee of a
contractor or subcontractor who constructs,
repairs, renovates, or modifies an improve-
ment to real property, including personal in-
jury, 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 man-
ner 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 condi-
tion resulting in the personal injury,
death, or property damage and
failed to adequately warn.
TEX. CIV. PRAC. REM. CODE § 95.003. Fur-
thermore, the code clarifies,
This chapter applies only to a claim:
(1) against a property owner, con-
tractor, or subcontractor for per-
sonal 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 improve-
ment.
TEX. CIV. PRAC. REM. CODE § 95.002
(emphasis added). It is the italicized portion
that is at issue in this case.
III.
Spears contends that chapter 95 is not
applicable here because his injury and claim
did not arise from the condition or use of the
improvement to real property on which he
worked. He does not deny that the heat
exchanger on which he was working is an
improvement for statutory purposes. Never-
theless, he posits that his injury and claim
arose from the hoses left on the pathway
outside the FCC unit in which the “improve-
ment” on which he was working was located.
Consequently, goes the argument, his claim
cannot have arose from the “condition or use
of” the improvement.

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At first blush, Spears’s argument is per-
suasive. Although Crown Central points to an
abundance of Texas cases concluding that any
injury relating to the work done on the premises
is covered under chapter 95,1 “relating to” is a
much broader proposition than is “arising from
the condition or use of the improvement.”
This case is illustrative. The injury
undoubtedly was related to the work Spears
was doing, because it occurred while he was
leaving his work site. Nevertheless, the alleged
cause of the injury (i.e., the hoses) was neither
a condition nor a use of the heat exchanger,
which was the improvement on which Spears
worked. The district court acknowledged as
much, noting that “the injury-producing defect,
a hose stretched across a walkway, was not the
object of [Spears’] toils.”
None of this is to say, however, that the dis-
trict court erred in concluding that chapter 95
shields Crown from liability. The Texas Su-
preme Court has yet to decide a case interpret-
ing the language of chapter 95 and elucidating
the extent of its limitations on premises liability.
The intermediate Texas courts, on the other
hand, have repeatedly concluded that claims
such as Spears’s are barred.
The best example is Fisher, on which the
district court substantially relied. In Fisher,
the court used legislative history to conclude
that where a defect in a ladder used to reach
an air conditioning unit that was the object of
the plaintiff’s work caused the injury, chapter
95 protected the premises owner. The ladder
“provided appellant a means to reach his work
site. It was not the object of his work. Never-
theless, appellant’s injuries arose from ‘the
failure to provide a safe workplace.’” Fisher,
16 S.W. 3d at 202 (quoting TEX. CIV. PRAC.
REM. CODE § 95.003).
In cases where federal jurisdiction is predi-
cated solely on diversity, we are charged with
making our best “Erie guess” and “determin-
[ing] as best as [we] can” what the Texas
Supreme Court would decide were the ques-
tion before it. Howe v. Scottsdale Ins. Co.,
204 F.3d 624, 627 (5th Cir. 2000). Where, as
here, the state’s highest civil court has yet to
rule on the question, we look to the decisions
of intermediate courts of appeals for guidance.
See id. Those decisions represent “dat[a] for
ascertaining state law which is not to be disre-
garded by a federal court unless it is convinced
by other persuasive data that the highest court
of the state would decide otherwise.” Id.
Given that the Texas intermediate courts of
appeals have unanimously2 construed chapter
95 broadly, to preclude liability in instances
such as this, we must respect those decisions
as the best, and only, indicator of how the
Texas Supreme Court would rule. Conse-
quently, summary judgment was appropriate.
1 See Francis v. Coastal Oil & Gas Corp., 130
S.W.3d 76, 83 (Tex. App.SSHouston [1st Dist.]
2002, pet. denied); Admire v. H.E. Butt Grocery
Co., No. 01-02-00060-CV, 2003 WL 203514, at *2
(Tex. App.SSHouston [1st Dist.] 2003, no pet.);
Fisher v. Lee Chang P’ship, 16 S.W.3d 198, 202
(Tex. App.SSHouston [1st Dist.] 2000, pet. denied).
Other courts, although not explicitly confronting the
argument Spears makes here, have similarly dis-
missed claims despite the fact that the alleged cause
of the worker’s injury was not the object of his toil.
See, e.g., Ashabranner v. Hydrochem Indus. Servs.,
Inc., No. 14-03-00762-CV, 2004 WL 613026 (Tex.
App.SSHouston [14th Dist.] 2004, no pet.); Wilson
v. Patel, No. 03-03-00275-CV, 2004 WL 579073,
at *2 (Tex. App.SSAustin 2004, no pet.). 2 See note 1, supra.

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AFFIRMED.

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