Paniagua v. Weekley Homes, LLC
Dallas Court of Appeals, No. 05-19-00439-CV (October 29, 2024)
Justices Molberg, Carlyle (Opinion, linked here), and Smith
Weekley Homes hired Leobardo Maravilla as an independent contractor to install siding on townhomes in Dallas. Leobardo’s crew included his brother, Jose Maravilla, and John Paniagua. On May 31, 2016, rain had been falling intermittently in the area and there had been lightning strikes nearby. Weekley’s builder, Holmes, allegedly told Leobardo that he needed to move aluminum scaffolding while it was raining. While moving the scaffolding on a rain-soaked driveway, Jose was electrocuted to death and Paniagua was injured by electric shock. Paniagua and the representatives of Jose’s estate sued Weekley.
Texas Civil Practice & Remedies Code § 95.003 provides that a property owner is not liable for the personal injury or death of a construction contractor or subcontractor’s employee unless (1) the owner either exercises or retains control over the work, and (2) as relevant here, the owner “had actual knowledge of the danger or condition resulting in the personal injury, death, or property damage and failed to adequately warn.” The trial court granted Weekley’s no-evidence motion for summary judgment, and the plaintiffs appealed.
The Dallas Court of Appeals twice reversed the trial court’s grant of summary judgment. Twice, the Supreme Court of Texas reversed the court of appeals in per curiam opinions and remanded for further proceedings.
In the most recent remand, the court of appeals addressed whether the trial court properly granted summary judgment on § 95.003’s “actual knowledge” requirement. In the first opinion issued by the court of appeals, although the court reversed summary judgment on the plaintiffs’ negligence claim, it affirmed summary judgment against the plaintiffs’ gross negligence claim. Per Civil Practice & Remedies Code § 41.001(11)(B), a plaintiff alleging gross negligence must prove, among other things, that a defendant had “actual, subjective awareness of the risk involved, but nevertheless proceed[ed] with conscious indifference to the rights, safety, or welfare of others.” In the first opinion, the court of appeals held that plaintiffs presented no evidence showing Weekley had “actual, subjective awareness” of the lightning. So, on the most recent remand, the court of appeals considered whether its holding on “actual, subjective awareness” for Chapter 41 was law of the case, which would govern the question of “actual knowledge” under Chapter 95.
The court of appeals answered this question in the negative. It noted that the Legislature adopted Chapters 41 and 95 in the same legislative session but chose to use different phrasing. “Actual, subjective awareness,” in the court’s view, set a higher bar than “actual knowledge.” Therefore, the law of the case doctrine did not preclude the court of appeals from examining whether the plaintiffs had created a fact issue on Chapter 95’s “actual knowledge” requirement.
Nevertheless, the court of appeals affirmed summary judgment. It explained that it stood by its statement in its prior opinion that Weekley was not aware of the thunder and lightning strikes in the area. It pointed to the fact that Weekley’s builder Holmes left before the electrocution and no evidence showed that he perceived anything other than rain.
