Vanderbeek v. San Jacinto Methodist Hosp., 246 S.W.3d 346 (Tex. App. 2008)
A plumber working on a remodel project for San Jacinto Methodist Hospital cut and capped a drainage pipe from a sink in an adjacent room. Although he instructed a hospital employee that the sink was out of order and should not be used, hospital employees poured a drain cleaner into the sink when it wouldn’t drain. When the plumber returned to remove the drainage line cap, a caustic liquid came out of the pipe, causing him chemical burns. He sued the hospital for negligence for allowing caustic drain cleaner into the sink when he had given notice it was not to be used.
The hospital moved for summary judgment arguing that Chapter 95 of the Texas Civil Practice and Remedies Code barred the plaintiff’s claim. That statute provides that property owners are not liable for negligence claims for personal injury to a contractor arising from the condition or use of an improvement to real property where the contractor constructs, repairs, renovates or modifies the improvement. The plaintiff argued that the statute should not bar his claim because he met two exceptions:
1. The property owner retained some control over the manner in which the work was performed, other than the right to order the work to start or stop or inspect the progress or receive reports, and
2. The property owner had actual knowledge of the danger or condition resulting in the personal injury and failed to adequately warn.
The court found that, although the evidence established that the hospital had control of the facility, it did not have control over the manner in which plaintiff performed his job as required by the statute. It thus upheld summary judgment of no liability for the hospital.