Chapter 95 The owner’s shield.

You worked for a contractor, and you were hurt at a plant, a refinery, or a job site that belongs to someone else. The owner is not your employer. Texas protects it with a statute written for exactly this: Chapter 95 of the Civil Practice and Remedies Code. When Chapter 95 applies, the owner answers only if it controlled how the work was done and actually knew of the danger and failed to adequately warn. That is a high bar. It is not a wall.

Expect the owner to raise Chapter 95 early. The case turns on what comes next: whether the statute applies at all, and if it does, what the evidence shows about control and about knowledge.

What the statute says.

Two requirements, joined by and. The worker has to prove both. When Chapter 95 applies, the Texas Supreme Court has said, satisfying section 95.003 is the worker’s “sole means of recovery” against the owner (Dow Chemical, 2015). And when it applies, it reaches every kind of negligence claim against the owner: a dangerous condition of the property, and the negligent activity of the owner or its employees (Dow Chemical; Ineos, 2016).

When Chapter 95 applies.

Only when four things are true. The Texas Supreme Court lists them this way: the claim is for damages caused by negligence; it is made against a person or entity that owns real property primarily used for commercial or business purposes; it is made by an owner, a contractor, a subcontractor, or an employee of a contractor or subcontractor; and it “arises from the condition or use of an improvement to real property where the contractor or subcontractor constructs, repairs, renovates, or modifies the improvement” (Los Compadres, 2021).

The fourth is where these cases are fought. An improvement is broad: “all additions to the freehold except for trade fixtures [that] can be removed without injury to the property” (Dow Chemical). A pipe system, a furnace, a piling, a building. But the statute asks about the improvement you were working on. In the Court’s words, “Chapter 95 only applies when the injury results from a condition or use of the same improvement on which the contractor (or its employee) is working when the injury occurs” (Ineos, 2016).

How big is the improvement? In Ineos, a boilermaker replacing a valve on a furnace header at a petrochemical plant was burned when gas burst from the pipe. The leak was at a valve near a different, connected furnace about 200 feet away. The Court treated the connected furnaces as one improvement, a “single processing system within a single plant,” and Chapter 95 applied. In Los Compadres the Court drew the other edge: the improvement is not the whole workplace. “For chapter 95 to apply, it is not enough that a dangerous condition existed on the premises on which the claimant was working or created an ‘unsafe workplace.’”

A danger near your work can still count. When a hazard, “by reason of its proximity to an improvement, creates a probability of harm” to someone building or repairing that improvement in the ordinary way, the Court treats it as a condition of the improvement itself. An energized power line hanging near the piling a drilling crew was building was a condition of the piling (Los Compadres). An electrified driveway, wet from rain and beside a temporary power pole, that a framing crew had to cross with metal scaffolding was a condition of the townhome they were building (Weekley Homes, 2024).

Two more reaches. Chapter 95 covers a claim that the owner negligently hired the contractor, when one of the negligent acts involves the contemporaneous use of the improvement (Endeavor, 2019). And the negligence tied to the improvement does not have to be the only cause of the injury, as long as it is a cause (Energen, 2022).

When it does not apply.

Claims against the contractors. Section 95.003 limits only the property owner’s liability. A claim against a general contractor or another subcontractor on the site goes forward under ordinary negligence law (Dow Chemical).

Claims against the owner’s employees. The statute’s property owner is the person or entity that owns the property. The Court held that Chapter 95 does not apply to claims against an employee or agent of a property owner (Ineos).

A different improvement, or only the workplace. When the claim does not arise from a condition or use of the improvement you were working on, Chapter 95 does not apply, and the ordinary rules for owners and the contractors they hire govern instead (Dow Chemical; Los Compadres).

Property not used for business. The statute protects an owner of “real property primarily used for commercial or business purposes” (section 95.001(3)). An owner outside that definition is not a property owner under Chapter 95.

And one question comes before all of this: did the owner buy the workers’ compensation coverage for the contractors on its site? If it did, it may stand where your employer stands, and the fight is a different one. That is in One Word: Statutory Employer.

Control: more than start, stop, and reports.

The first requirement is control over “the manner in which the work is performed.” The statute sets aside the right to order the work to start or stop, to inspect progress, and to receive reports. The Court says control can be shown two ways: a contract that assigned control to the owner, or proof that the owner actually exercised control over how the work was done. Either way, it has to reach “the means, methods, or details” of the contractor’s work, so that the contractor “is not entirely free to do the work in his own way” (Energen, 2022).

Suggestions or recommendations that need not be followed are not control. Neither is directing when and where the work will be done (Energen). In Los Compadres, the owner’s project manager told the driller to start at the front of the lot because of the overhead line, and then to keep working in the back while he knew the line was still energized. The Court held that the evidence of control was conclusive.

So control is proven with the paper and the people: the contract, the permits and the job plan, and what the owner’s own people told the crew to do, and how, in the hours before the injury.

Actual knowledge: what the owner knew.

The second requirement is that the owner “had actual knowledge of the danger or condition” and “failed to adequately warn.” The Court’s definition: “Actual knowledge requires knowledge that the dangerous condition existed at the time of the accident, as opposed to constructive knowledge[,] which can be established by facts or inferences that a dangerous condition could develop over time” (Ineos, quoted in Los Compadres).

Should have known is not enough. That is where Chapter 95 is hardest, and where the documents matter most: gas tests and work permits, alarm and maintenance logs, earlier incident reports, the emails and texts between the owner’s people and the contractor. In Los Compadres, the driller had told the owner’s project manager weeks earlier that the line was too close, and on the day of the injury the manager told him the line was still energized and to go forward anyway. The manager was the owner’s agent, so what he knew, the owner knew.

One more lesson from that case. The jury there was asked whether the owner knew “or reasonably should have known.” Under Chapter 95 that question falls short, and the workers kept their judgment only because the evidence of actual knowledge was conclusive. When Chapter 95 applies, the jury has to be asked the right question.

Power lines: the six-foot rule.

Texas has a separate statute for work near high-voltage lines, and in a power-line case it sits right next to Chapter 95.

In Los Compadres the owner argued that the line was open and obvious. The Court agreed that its presence was, and held that the fact it was energized was not: the workers could reasonably assume that whoever was responsible for the work had done what chapter 752 requires (sections 752.003 and 752.004).

Workers’ compensation and the owner’s case.

Chapter 95 has one more rule, about benefits already paid. In a trial against an owner, a contractor, or a subcontractor over an injury covered by the chapter, the judge, outside the jury’s presence, receives evidence of the workers’ compensation benefits paid and deducts them from the damages. But the deduction does not apply unless the comp carrier’s subrogation rights have been waived (section 95.004). If the carrier kept its right to be repaid out of your recovery, nothing is deducted.

What I look for first.

Which improvement you were working on, and what hurt you. Who owns the property, and what it is used for. Who bought the comp coverage. The contract between the owner and the contractor, and what the owner’s people actually told the crew. What the owner knew on the day, and what it said about it. And every other company on the site, because Chapter 95 protects only the owner: read Third-Party Claims.

One caution about the lawsuit itself. What the petition says can decide whether Chapter 95 applies: the Court has held that an owner may rely on the injured worker’s own pleadings to prove it (Energen; Weekley Homes). A case against a plant owner has to be pleaded with the statute in mind from the first page.

Chapter 95 is a shield with two straps: control and actual knowledge. Prove both, and it comes down.