Supreme Court Find No General Contractor Liability for Mesothelioma

On May 8, 2015 the Texas Supreme Court decided an important case regarding general contractor liability. In Magdalena Adrienna Abutahoun, et al. v. Dow Chemical Co. (No. 13-0175), the principal issue was whether Dow, a premises owner, is shielded from liability from the claim of an employee of an independent contractor whose work Dow did not control or supervise. While the employee was working for the independent contractor, he was exposed to asbestos from work performed by Dow employees.

Henderson, working as Dow’s contractor, sued Dow, attributing his cancer in part to asbestos fibers Dow’s employees negligently released as they worked on insulated pipes in the same area. Dow argued that section 95.002(2) of the Texas Civil Practice and Remedies Code protected it from Henderson’s claim. The trial court disagreed, denying the company’s summary-judgment motion. A jury found Dow 30 percent responsible for Henderson’s cancer. The Dallas court of appeals reversed, holding that the statutory protection applied to bar a claim based on Dow’s negligence. The Supreme Court originally denied Henderson’s petition for review. But on motion for rehearing, the court granted the petition and set the case for argument.

The court’s opinion observes that the Legislature had not distinguished between negligence claims based on contemporaneous activity or otherwise. It held that Section 95.002(2) provides that chapter 95 applies to a negligence claim that “arises from,” or is caused by, condition or use of an improvement to real property where the “contractor or subcontractor . . . modifies the improvement.” The Legislature intended for chapter 95 to apply to all negligence claims that arise from either a premises defect or the negligent activity of a property owner or its employees by virtue of the “condition or use” language in section 95.002(2). Further, the court held that the Henderson heirs had failed to challenge the appeals court’s conclusions that (1) their specific claims against Dow, as pleaded and applied, fell within chapter 95 and (2) their claims were barred by chapter 95 because the Hendersons did not establish Dow’s liability under section 95.003 (that Dow’s liability might be established by a right of control over a contractor and its knowledge of a danger or condition). Unchallenged, these conclusions were not properly before the Court.