On May 3, 2019, the Texas Supreme Court ruled that Chapter 95 of the Texas Civil Practices and Remedies Code applies to claims for negligent hiring. In Endeavor Energy Resources, L.P. v. Cuevas, the issue was whether a cause of action for negligent hiring was subject to Chapter 95’s requirement that a claimant show the property owner had “actual knowledge of the danger or condition resulting in personal injury.”
Endeavor hired Big Dog Drilling to drill a well on its mineral lease. Big Dog’s employee was working on the well when a rope carrying a pipe caught on a mechanical pulley causing the pipe to jerk and strike the employee in the head. The employee’s descendants sued Endeavor claiming Endeavor’s negligent hiring of Big Dog caused the employee’s death. Endeavor moved for summary judgment, arguing that descendants were required to show that Endeavor had actual knowledge of the dangerous condition. In response, the descendants argued that a claim for negligent hiring does not fall under Chapter 95.
Chapter 95 of the Code applies to a claim “(1) against a property owner, contractor, or subcontractor for personal injury, death or property damage (2) that arises from the condition or use of an improvement to real property.”Claim is defined as a “claim for damages caused by negligence.”The Chapter limits a property owner’s liability for the negligence of a contractor unless the (1) “property owner exercises or retains some control over the manner in which the work is performed,” (2) “had actual knowledge of the danger or condition resulting in the personal injury,” and (3) “failed to adequately warn” of the danger or condition.
The Supreme Court, in the opinion authored by Judge Boyd, first observed that negligent hiring was a “claim” for purposes of Chapter 95.001(1) because it sounds in negligence.The Court then reasoned that a negligent hiring claim was similar to a negligent entrustment claim because both causes of action require proving the negligence of two parties (the employer’s negligence in hiring and employee’s negligent conduct).Finally, the Court observed that section 95.002(2) requires that a claim “arise from the condition or use of the improvement to real property.”In this case, Judge Boyd found that the employee’s death arose from the use of the improvement to the real property because the negligent conduct (the rope striking the pulley) occurred contemporaneously with the use of the improvement to the property (the digging of the well).
Justice Boyd did not end there, however, because there was second layer of negligence to consider—Endeavor’s alleged negligent hiring of Big Dog. For this, the Court reasoned that section 95.002 “requires only that the claim arise from the use of an improvement to the property, not that the property owner’s negligence involve the use of the improvement, or that the use of the improvement be the onlycause of the injury.”Instead, “[w]hen one of the negligent acts involves the contemporaneous use of an improvement to real property, the claim arises from that act, regardless of when the other negligent act occurred or whether it involved the use of an improvement.”In other words, so long as the conduct that caused the injury, in part, arose from the condition or use of an improvement to real property, Chapter 95 was applicable. Ultimately, the Court ruled that Chapter 95 was applicable to negligent hiring and that a claimant must show that the property owner exercised or retained some control over the manner in which the work was performed on the improvement to real property and had actual knowledge of a dangerous condition that ultimately causes injury.
The Endeavor case is favorable to property owners because it makes it quite difficult for a claimant to successfully prosecute a negligent hiring claim. Descendants in Endeavor were attuned to this fact when they argued that the Court’s decision effectively bars all negligent hiring claims.Yet, the Court explained that when the property owner negligently hires an employee and that employee later creates a risk of injury the property owner knows about, the property owner may be liable.
However, under Texas law, a claim for negligent hiring requires proof that the conduct caused the injury complained of. Causation requires proof of cause in fact and foreseeability. “The test for cause in fact is whether the negligent ‘act or omission was a substantial factor in bringing about injury,’ without which the harm would not have occurred.”“Cause in fact is not shown if the defendant’s negligence did no more than furnish a condition which made the injury possible.”“In other words, even if the injury would not have happened but for the defendant’s conduct, the connection between the defendant and the plaintiff’s injuries simply may be too attenuated to constitute legal cause.”
Foreseeability “requires that a person of ordinary intelligence should have anticipated the danger created by a negligent act or omission.”An injury is foreseeable if its “general character … might reasonably have been anticipated.”The question of foreseeability, and proximate cause generally, involves a practical inquiry based on “common experience applied to human conduct.”It asks whether the injury “might reasonably have been contemplated” as a result of the defendant’s conduct.
With this, now consider the same fact pattern in the Endeavorcase with these added dimensions. First, consider that Endeavor had worked with Big Dog for many years and over that time period Big Dog had diligently maintained its state mandated licenses and certificates. Now presume that Bog Dog let its license lapse days before Endeavor hired it for the job. Arguably, Endeavor had an obligation to confirm Big Dog was properly licensed but failed to revisit its documents since it had worked with Big Dog for years without issue. At the property site, Big Dog’s employee is injured in the same manner explained in Endeavor. Presuming Endeavor retained control over the job and found out the second day on the job that Big Dog’s license lapsed, could Endeavor be responsible for the employee’s injury? Meaning, did Endeavor’s negligence in failing to notice that Big Dog’s license had lapsed before the job started cause, or partially cause, the injury, and therefore subjected Endeavor to Chapter 95?
The Texas Supreme Court left this open. Possibly, the Court would conduct a causation analysis to determine if Endeavor was liable but would that put Endeavor under Chapter 95’s gamete since it does not follow that a license lapse alone was a substantial factor in causing the employee’s injury. In any event, Endeavormakes it more difficult for plaintiff’s to succeed on negligent hiring claims where Chapter 95 is implicated.
SeeTex. Civ. Prac. & Rem. Code § 95.002; Endeavor Energy Res., L.P. v. Evelyn Cuevas, et. al., — S.W.3d —, 2009 WL 1966625 at *1 (Tex. May 3, 2019).
Endeavor, 2009 WL 1966625 at *1.
Tex. Civ. Prac. & Rem. Code § 95.002.
Id. at § 95.001.
Id. at § 95.003.
Endeavor, 2009 WL 1966625 at *2.
Id. at *2-3.
Tex. Civ. Prac. & Rem. Code § 95.002.
Endeavor, 2009 WL 1966625 at *3.
Id. at *3.
Doe v. Boys Clubs of Greater Dallas, Inc., 907 S.W.2d 472, 477 (Tex. 1995) (quoting Prudential Inc. Co. v. Jefferson Assoc., Ltd., 896 S.W.2d 156, 161 (Tex. 1995)).
Id. (citing Bell v. Campbell, 434 S.W.2d 117, 120 (Tex. 1968)).
Id. (citing Union Pump Co. v. Allbritton, 898 S.W.2d 773, 776 (Tex. 1995)).
Id. at 478.
Nixon v. Mr. Property Mgmt. Co., 690 S.W.2d 546, 551 (Tex. 1985).
City of Gladewater v. Pike, 727 S.W.2d 514, 518 (Tex.1987) (quoting Cook Consultants, Inc. v. Larson, 700 S.W.2d 231, 236 (Tex. App.—Dallas 1985, writ ref’d n.r.e.)).
Boys Clubs of Greater Dallas, Inc., 907 S.W.2d at 478 (quoting McClure v. Allied Stores of Tex., Inc., 608 S.W.2d 901, 903 (Tex. 1980)).