Commercial and industrial property owners in the Houston area rely on outside contractors every day. They hire roofers, electricians, pipefitters, maintenance crews, and renovation contractors. When one of those workers is seriously hurt, the worker's own employer is often protected from a negligence suit by the workers' compensation exclusive-remedy rule (Tex. Lab. Code § 408.001), as long as the employer carries coverage. That frequently makes the property owner the main target.
Texas law gives commercial property owners a significant defense in these cases: Chapter 95 of the Texas Civil Practice and Remedies Code. Owners and their insurers should understand when the statute applies and what can undermine it.
What Chapter 95 Says
Section 95.003 provides that a property owner is not liable for personal injury, death, or property damage to a contractor, subcontractor, or their employees who construct, repair, renovate, or modify an improvement to real property, including claims based on failure to provide a safe workplace, unless both of the following are true:
- The owner exercises or retains some control over the manner in which the work is performed, beyond the right to order the work to start or stop, to inspect progress, or to receive reports.
- The owner had actual knowledge of the danger or condition and failed to adequately warn.
Both elements are required. Constructive knowledge, meaning what the owner "should have known," isn't enough under the statute.
Who it protects
Chapter 95 protects a "property owner," which the statute defines as a person or entity that owns real property primarily used for commercial or business purposes. Under Section 95.002, it applies to claims that arise from the condition or use of an improvement to real property where the contractor or subcontractor constructs, repairs, renovates, or modifies that improvement.
How the Texas Supreme Court Has Applied It
Two Texas Supreme Court decisions frame most Chapter 95 disputes:
- Abutahoun v. Dow Chemical Co. (2015). The Court held that Chapter 95 applies to all of an independent contractor's negligence claims against a property owner when the statutory requirements are met. That includes claims based on the owner's own contemporaneous negligent activity, not just premises-condition claims.
- Ineos USA, LLC v. Elmgren (2016). The Court held that the injury must arise from the condition or use of the same improvement the contractor was working on, while recognizing that interconnected components can form a single improvement. The Court also held that Chapter 95 does not protect the owner's employees when they are sued individually.
These cases show that Chapter 95 is a strong defense, but whether it applies depends on the facts: what the worker was hired to do, what injured him, and who was named as a defendant.
Where Owners Get Into Trouble: Control and Knowledge
Control
Plaintiffs usually attack the first element by arguing that the owner controlled how the work was done. Evidence they look for includes:
- Contract language reserving the owner's right to direct means and methods
- Owner personnel giving step-by-step instructions to contractor crews
- Owner-issued work permits, lockout/tagout procedures, or safety rules that dictated how the specific task was performed
- Owner equipment or materials supplied for the task
Requiring contractors to follow general safety rules and keeping the right to stop unsafe work isn't necessarily the same as controlling how the work is done. Texas courts look closely at the specific facts. Contracts and site practices should be reviewed with that distinction in mind, before an incident happens.
Actual knowledge
The second element requires proof that the owner actually knew about the specific danger. Prior incident reports, work orders, internal emails, and safety audits can all become evidence of knowledge. Owners should keep accurate records, act on reported hazards, and give written warnings when they learn of a dangerous condition.
What to Do After a Contractor Injury
- Preserve the scene and records. Photograph the area, keep the equipment involved, and secure permits, job safety analyses, sign-in sheets, and communications about the job.
- Collect the contracts. Pull the master service agreement or purchase order, the scope of work, insurance certificates, and any additional insured endorsements.
- Tender promptly. Notify your liability carriers, and tender defense and indemnity to the contractor and its carriers under the contract. For construction contracts, Chapter 151 of the Texas Insurance Code limits some indemnity and additional insured provisions but generally preserves them for claims by the indemnitor's own employees.
- Plead Chapter 95 early. The owner bears the initial burden to show the chapter applies. Once it does, the plaintiff has to prove both control and actual knowledge. That framework often supports a motion for summary judgment.
- Be careful with statements. Internal incident reviews are important, but how they are prepared and shared should be coordinated with counsel.
How TMF & Associates Helps
The principals of TMF & Associates have handled many negligence cases as counsel retained by insurance carriers to represent their insureds, including premises liability, wrongful death, and complex multi-party litigation. We work with property owners, risk managers, and insurers to assess Chapter 95 defenses early, coordinate contractual tenders, and prepare each case for trial while keeping costs in mind. For premises claims involving customers rather than contractors, see our article on retail slip-and-fall claims in Texas.
Frequently Asked Questions
Does Chapter 95 apply to injuries to visitors or customers?
No. It applies to claims by contractors, subcontractors, and their employees that arise from work on an improvement. Claims by other visitors are governed by ordinary premises liability principles.
Does Chapter 95 protect a residential property owner?
The statutory definition is limited to owners of real property primarily used for commercial or business purposes.
Can our own plant supervisor be sued personally?
Yes. Under Ineos, Chapter 95 does not extend to the owner's employees, so their defense should be evaluated separately.
Talk With a Premises Liability Defense Lawyer
If a contractor injury has occurred at your facility, or your insured has been sued, call TMF & Associates at (281) 296-6500 or contact us through our contact page.
This article is for general information only and is not legal advice. Reading it or contacting our firm does not create an attorney-client relationship. Every matter depends on its own facts, and the law may change after publication. Consult a lawyer about your specific situation. Past results do not guarantee or predict a similar result in any future matter.