Background Facts
OTI Energy Services was retained by Sandridge Energy to modify electrical distribution lines related to its operations in oil and gas. John Barfield worked for OTI as a power lineman and was responsible for adding neutral lines to existing poles carrying energized overhead lines. Barfield testified that Sandridge refused to allow OTI to de-energize the overhead supply lines while the crew performed its work bringing them unnecessarily close to live lines. Barfield was injured at work while working on the lines. He suffered an electrical shock which knocked him unconscious and caused him to suffer severe burns to 15% of his body. As a result of the electrical shock, his left arm had to be amputated at the shoulder and his right arm at the elbow.
Barfield brought an action against Sandridge alleging negligence claiming that Sandridge breached its duty of care when it had control over the manner in which the work was performed, was aware of the dangerous condition and failed to adequately warn Barfield of the danger. Sandridge moved for summary judgment arguing that Barfield was fully aware that the supply lines were energized when he was conducting his work on the day of the injury. Sandridge moved for summary judgment, which the trial court granted. The court of appeals reversed and the defendants appealed to the Texas Supreme Court.
Did Sandridge Fail to Adequately Warn Barfield of the Danger Posed By the Energized Line?
At common law the landowner was required to give a warning sufficient to provide the invitee with the information necessary to make an intelligent decision as to whether or not they chose to enter and risk the danger. The warning was also meant to allow the invitee to take such precautions as they deemed necessary to protect themselves. The law presumes that invitees will take reasonable measures to keep themselves safe from known dangers and risks. If the danger is known to the invitee the property owner has no duty to warn. “When an invitee has knowledge and appreciation of the danger, then the landowner has no duty to warn of it.” Austin v. Kroger Tex., 465 S.W.3d 193, 203 (Tex. 2015).
Texas Civil Practice & Remedies Code Chapter 95 (Chapter 95) Tex. Civ. Prac. & Rem. Code § 95.003(2).applies to claims brought by contractors claiming personal injury or property damage against a landowner. The claim must arise from, “the condition or use of an improvement to real property where the contractor constructs, repairs, renovates, or modifies the improvement.” According to Chapter 95, a premises owner is not liable for property damage or personal injury unless:
- The property owner exercises or retains some control over the manner in which the work is performed, and
- The owner had actual knowledge of the danger or condition resulting in personal injury, and failed to adequately warn of it.
The term “adequate warning” is not defined in Chapter 95, but it is clear that the law intends the liability of landowners to be limited in cases where contractors and their employees had actual knowledge of the danger, or the dangerous condition was open and obvious.
In Ineos USA, LLC v. Elmgren,505 S.W.3d 555, 568 (Tex. 2016), a property owner was not liable for injuries caused by flammable gases on his property because the worker had knowledge of the danger. More recently, in Los Compadres the landowner was not required to warn of a danger when an objective observer would reasonably observe an open and obvious danger. A dangerous condition that is undisputedly open and obvious raises no obligation to warn as a matter of law. In such cases, an invitee exercising ordinary care would have “knowledge and full appreciation of the nature and extent of danger.” Los Compadres Pescadores, L.L.C. v. Valdez, 622 S.W.3d 771, 788 (Tex. 2021).
In Los Compadres, the jury reasonably could have determined that the danger was not open and obvious. In the current matter, however, it is undisputed that Barfield was fully aware of and appreciated the dangerous condition caused by the energized power line and transformer he was working to de-energize at the time he was injured. In fact, he admitted that his work involved de-energizing charged circuits and that he had performed this type of work hundreds of times before the incident. A warning from Sandridge would not have provided any added protection or safety to the situation Barfield willingly placed himself in as part of his employment. He was fully aware and cognizant of the risk. It was a danger he understood and appreciated. Therefore, the court determined that under Chapter 95, the defendant did not fail to adequately warn Barfield of the danger.
Necessary Use Exception: Does it Apply Here?
The necessary-use exception requires a landowner to make the premises safe when, despite the invitee’s knowledge of the danger, it is necessary that the invitee use the dangerous premises and the landowner should have anticipated that the invitee would be unable to take reasonable measures to keep themselves safe. Basically, this exception acknowledges the fact that in some unreasonably dangerous circumstances, no warning could ever be adequate.
Previous decisions on this issue illustrate the court’s reluctance to apply this doctrine to independent contractors. In General Electric v. Moritz, 257 S.W.3d 211, 216 (Tex. 2008) the court found that “one who hires an independent contractor generally expects the contractor to take into account any open and obvious premises defects in deciding how the work should be done, what equipment to use in doing it, and whether its workers need any warnings.”
Barfield argues that Sandridge knew that he could not avoid the danger of energized lines, and presented as evidence Sandridge’s safety policies. The policies state that “Live parts to which an individual may be exposed must be de-energized before the person works on or near them, unless it can be shown that de-energizing . . . is infeasible due to equipment design or operational limitations.” The policies also describes safety measures that should be utilized when lines are energized, including limiting the work to “Qualified Persons” using “suitable work practices.”
Contrary to Barfield’s contention, the safety policies contemplate that the only individuals working near the energized lines would be qualified professionals utilizing best practices and industry safety measures. For the exception to apply, a party must show that “the landowner would anticipate that the invitee is unable to take measures to avoid the risk.” Austin, 465 S.W.3d at 208.
Barfield worked near the energized lines for at least six months before he was injured. He had performed this work hundreds of times under the same dangerous circumstances on each occasion. Commonsense tells the court that Sandridge reasonably believed that Barfield appreciated and understood this open and obvious risk that was part of his work. The defendants also reasonably assumed that Barfield would take all reasonable measures to avoid injury. Thus, the court found that the necessary use exception was not applicable in this case.
Barfield was fully aware of and appreciated the risk involved with his work and ultimately caused his injuries. Due to this fact, the court found that the trial court correctly granted summary judgment in favor of the defendants.