Occidental Chem. Corp. v. Jenkins, 478 S.W.3d 640 (Tex.

, 2016)

478 S.W.3d 640 erred in holding Occidental liable for the

dangerous condition and Jenkins’s injury.
Occidental Chemical Corporation,
Petitioner,
v. Christopher Patton, Richard A. Smith, Lynn
Jason Jenkins, Respondent Tillotson Pinker & Cox LLP, Dallas, for
Amicus Curiae Chamber of Commerce of the
No. 13–0961 United States of America

Supreme Court of Texas. Christopher Patton, Richard A. Smith,

Thomas C. Kirby, Washington, DC, for
Argued September 3, 2015 Amicus Curiae National Association of
OPINION DELIVERED: January 8, Manufacturers
2016
Wencong Fa, Sacramento, CA, for Amicus
Summaries: Curiae Pacific Legal Foundation

Source: Justia [478 S.W.3d 642]

In 2006, Jason Jenkins was injured while Martha Landwehr, Austin, for Amicus Curiae
using an acid-addition system at a chemical Texas Chemical Council
plant. The acid-addition was added to the
plant in 1992 by Occidental Chemical George S. Christian, Austin, for Amicus
Corporation. Occidental sold the plant to Curiae Texas Civil Justice League
Equistar chemicals, L.P., Jenkins’s employer,
in 1998. Jenkins sued Occidental, among Christopher Patton, Lynn Tillotson Pinker &
other defendants, alleging that Occidental’s Cox, LLP, Dallas, Richard A. Smith, for
negligent design of the acid-addition system Amicus Curiae The American Chemistry
caused his injuries. Occidental affirmatively Council
pled two statutes of repose. After a jury trial,
the trial court rendered judgment that Barry N. Beck, David Wayne Lauritzen, Rick
Jenkins take nothing, concluding that the G. Strange, Cotton Bledsoe Tighe & Dawson,
verdict supported at least one of Occidental’s P.C., Midland, Deborah G. Hankinson,
repose defenses. The court of appeals Joseph B. Morris, William Richard Thompson
reversed, concluding that Jenkins’s claim was II, Hankinson LLP, Dallas, for Petitioner
based on Occidental’s negligent design of the
acid-addition system, a theory that survived Charles Randall 'Chad' Flores, David M.
Occidental’s sale of the property and Gunn, Erin Hilary Huber, Russell S. Post,
continued independently of any premises- Beck Redden, LLP, Houston, Douglas W.
liability claim. The Supreme Court reversed, Alexander, Wallace B. Jefferson, Alexander
holding (1) a claim against a previous owner Dubose Jefferson & Townsend LLP, Austin,
for injury allegedly caused by a dangerous Jason A. Itkin, Cory D. Itkin, Kurt Brynilde
condition of real property is a premises- Arnold, Arnold & Itkin LLP, Houston, for
liability claim, regardless of the previous Respondent
property owner’s role in creating the
condition; and (2) because the previous Justice Devine delivered the opinion of the
owner sold the property several years before Court.
Plaintiff’s accident and did not otherwise owe
Plaintiff a duty of care, the court of appeals A claim against a property owner for injury
caused by a condition of real property
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 Occidental Chem. Corp. v. Jenkins, 478 S.W.3d 640 (Tex., 2016)

generally sounds in premises liability. That occurs in a large tank in which the TEG must
liability typically ends with the property's be maintained at a certain acidity.
sale. When the property's dangerous Technicians at the Bayport plant initially
condition is caused or created by another, an regulated the acidity by manually adding acid
independent claim against the other may lie or amine to the tank as necessary to adjust
in negligence and that claim, unlike the the pH level. A device for managing the tank's
premises-liability claim against the owner, pH level, referred to in this case as the acid-
does not necessarily end with the property's addition system, was later attached to the
sale. The issue in this cause is whether that tank because it was thought to be a safer
rule also applies to a property owner who process for adding acid. Ironically, this
creates the dangerous condition—that is, "improvement" caused Jenkins's injury.
whether the property owner owes both a duty
in premises liability to warn of the dangerous The acid-addition system was added to the
condition or make it safe and a duty in plant in 1992 by Occidental Chemical
negligence to use reasonable care not to Corporation. Occidental's employees used
create the dangerous condition in the first
place. [478 S.W.3d 643]

The court of appeals concluded that a the device for six years without incident. In
property owner who creates a dangerous 1998, Occidental sold the plant to Equistar
condition on its property may be held Chemicals, L.P., Jenkins's employer.
responsible for injuries under either liability Jenkins's injury occurred in 2006, eight years
theory, and that the negligence claim, unlike later. The acid-addition system was thus used
the premises-liability claim, remains viable by employees of Occidental and Equistar for
even after the property owner sells the fourteen years before Jenkins's injury.
property and relinquishes control over it. 415
S.W.3d 14, 28–31 (Tex.App.–Houston [1st The acid-addition system consists of several
Dist.] 2013). We conclude, however, that a components: a funnel, funnel cover, acid-
claim against a previous owner for injury addition pot, pressurized nitrogen system,
allegedly caused by a dangerous condition of several pipes, and three valves. The first of
real property remains a premises-liability these valves, the acid-inlet valve, connects the
claim, regardless of the previous property funnel to the acid-addition pot. The second
owner's role in creating the condition. valve connects the acid-addition pot to the
Because the previous owner sold the property pressurized nitrogen system. The third valve
several years before the plaintiff's accident connects the pot to the tank. To add acid to
and did not otherwise owe the plaintiff a duty the tank a technician removes the funnel's
of care apart from its ownership and control cover adding the desired amount of acid.
of the property, we reverse the court of Opening the first valve drains the acid into
appeals' judgment and render judgment that the pot. Closing the first valve and opening
the plaintiff take nothing. the second pressurizes the pot's contents.
Closing the second valve and opening the
I third forces the acid into the tank.

Jason Jenkins was injured in April 2006 On the day of the accident, Jenkins was asked
while using an acid-addition system at a to add acid to the tank. He had not performed
Bayport, Texas chemical plant. The Bayport this job before and therefore consulted the
plant produces triethylene glycol ("TEG"), a operating instructions before adding acid to
chemical compound with a variety of the system. He was asked later in the day to
industrial and commercial uses. Production adjust the pH level again because the tank
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 Occidental Chem. Corp. v. Jenkins, 478 S.W.3d 640 (Tex., 2016)

had still not reached the desired level. liability, a theory that no longer applied to
Unbeknownst to Jenkins, acid apparently Occidental as it did not own or control the
remained in the acid-addition system under premises at the time of Jenkins's accident.
pressure because when Jenkins opened the Again, the court disagreed, reasoning that
acid-inlet valve—the first of the system's three Jenkins's claim was based on Occidental's
valves—acid was expelled into his face, negligent
injuring his eyes.
[478 S.W.3d 644]
Jenkins sued Occidental, among others,1
alleging that Occidental's negligent design of design of the acid-addition system, a theory
the acid-addition system caused his injuries. that survived Occidental's sale of the property
Occidental generally denied Jenkins's and continued independently of any
allegations and affirmatively pled two statutes premises-liability claim. Id . at 28–31. The
of repose—one governing claims against court of appeals accordingly reversed and
registered or licensed professionals who remanded for the trial court to render
design, plan or inspect improvements to real judgment for Jenkins on the jury's liability
property, and one governing claims against and damages findings.
those who construct such improvements. See
TEX. CIV. PRAC. & REM. CODE §§ 16.008, II
.009.
Depending on the circumstances, a person
The case was tried to a jury. The jury found injured on another's property may have either
Occidental's design of, and operating a negligence claim or a premises-liability
instructions for, the acid-addition system claim against the property owner. Keetch v.
negligent and a proximate cause of Jenkins's Kroger Co., 845 S.W.2d 262, 264 (Tex.1992).
injury and determined Jenkins's damages. When the injury is the result of a
Regarding Occidental's statute-of-repose contemporaneous, negligent activity on the
defenses, the jury found that the acid- property, ordinary negligence principles
addition system was an improvement to real apply. Id . When the injury is the result of the
property that was designed under the property's condition rather than an activity,
supervision of, but not by, a registered or premises-liability principles apply. H.E. Butt
licensed professional. Both parties moved for Grocery Co. v. Warner, 845 S.W.2d 258, 259
judgment on the verdict. Concluding that the (Tex.1992). Although premises liability is
verdict supported at least one of Occidental's itself a branch of negligence law, it is a
repose defenses, the trial court rendered "special form" with different elements that
judgment that Jenkins take nothing. define a property owner or occupant's duty
with respect to those who enter the property.
The court of appeals, however, did not agree W. Invs., Inc. v. Urena, 162 S.W.3d 547, 550
that the verdict supported either of (Tex.2005). Under premises-liability
Occidental's statute-of-repose defenses. See principles, a property owner generally owes
415 S.W.3d 14, 19–28 (discussing sections those invited onto the property a duty to
16.008 and 16.009 of the Texas Civil Practice make the premises safe or to warn of
and Remedies Code ). Apart from repose, dangerous conditions as reasonably prudent
Occidental argued that the court of appeals under the circumstances. Corbin v. Safeway
should affirm the trial court's judgment Stores, Inc., 648 S.W.2d 292, 295 (Tex.1983)
because Occidental had not breached any ; Smith v. Henger, 148 Tex. 456, 226 S.W.2d
duty of care owed to Jenkins. Under this 425, 431 (1950). That duty generally runs
argument, Occidental maintained that with the ownership or control of the property
Jenkins's claim sounded solely in premises and upon a sale ordinarily passes to the new
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 Occidental Chem. Corp. v. Jenkins, 478 S.W.3d 640 (Tex., 2016)

owner. See RESTATEMENT (SECOND) OF [478 S.W.3d 645]

TORTS §§ 351 –54 (1965).
was no longer responsible for the property's
According to section 352 of the Second dangerous condition as owner, under the
Restatement of Torts, a vendor of land is not court's dual-role analysis, Occidental
ordinarily liable for injuries to a vendee or to remained responsible as its creator or
third persons caused by a pre-existing designer:
dangerous condition after the vendee takes
possession: Here, Occidental played two
distinct roles—the role of the
Except as stated in § 353,2 a designer of the faulty
vendor of land is not subject to improvement, who was subject
liability for physical harm to liability, and the role of the
caused to his vendee or others former premises owner, who
while upon the land after the was not subject to liability. But
vendee has taken possession by the jury's liability finding
any dangerous condition, against Occidental relies on the
whether natural or artificial, first role and not the second
which existed at the time that role. Thus, Occidental is subject
the vendee took possession. to liability only for its design
work.
Id. § 352. The court of appeals here accepted
this as a statement of the general rule. 415 We see no reason why the fact
S.W.3d at 31 (quoting Roberts v. that Occidental's acid addition
Friendswood Dev. Co., 886 S.W.2d 363, 367– system was annexed to real
68 (Tex.App.–Houston [1st Dist.] 1994, writ property would alleviate
denied) ); accord First Fin. Dev. Corp. v. Occidental from duties
Hughston, 797 S.W.2d 286, 291 (Tex.App.– otherwise owed with respect to
Corpus Christi 1990, writ denied) (citing the safety of the system's design.
section 352 of the Second Restatement); Beall
v. Lo–Vaca Gathering Co., 532 S.W.2d 362, Id. at 29–30 (footnote omitted). The court
365 (Tex.Civ.App.–Corpus Christi 1975, writ thus assumed that a property owner who
ref'd n.r.e.) (same). But the court also thought creates a dangerous condition on its property
that an exception should be made for has both a premises-liability duty to make
dangerous conditions created by the vendor. safe or warn about the dangerous condition
In this instance, the court reasoned that the and a distinct ordinary-negligence duty not to
conveyance ought not end the former owner's create the dangerous condition in the first
responsibility in the matter. 415 S.W.3d at place.
29–31.
Occidental argues that its only duty was in
Because Occidental designed and installed the premises liability (to make the chemical plant
acid-addition system, the court analyzed safe or warn of its dangers) and that duty
Occidental's duty with respect to this passed to Equistar with the plant's
improvement as two-pronged: (1) conveyance. Occidental submits further that,
Occidental's duty as the owner of the property because it did not own or control the property
on which the dangerous condition existed, at the time of Jenkins's injury, it had no
and (2) Occidental's duty as the creator or ability to warn of or remedy the dangerous
designer of the dangerous condition on the condition and, under premises-liability
property. Id . at 29. Although Occidental principles, no duty to do so. Finally,
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 Occidental Chem. Corp. v. Jenkins, 478 S.W.3d 640 (Tex., 2016)

Occidental contends that Jenkins cannot state § 385. Persons Creating

an ordinary-negligence claim against it as the Artificial Conditions on Land on
former owner because the improvement that Behalf of Possessor:
caused the injury was made by Occidental to
its own land for its own purpose. In other [478 S.W.3d 646]
words, Occidental contends that it did not act
as a design professional or a product Physical Harm Caused After
manufacturer, nor did it otherwise breach any Work has been Accepted
independent duty of care resulting in
Jenkins's injury. One who on behalf of the
possessor of land erects a
Jenkins responds that the court's dual-role structure or creates any other
analysis merely applies our decision in condition thereon is subject to
Strakos v. Gehring, which recognizes that the liability to others upon or
creator of a dangerous condition can remain outside of the land for physical
liable for the condition even after harm caused to them by the
relinquishing control of the property. 360 dangerous character of the
S.W.2d 787, 790 (Tex.1962). The dangerous structure or condition after his
condition in Strakos, however, was created by work has been accepted by the
an independent contractor, who maintained possessor, under the same rules
that it no longer had responsibility for the as those determining the
dangerous condition because the owner had liability of one who as
accepted its work. Id . at 788–89. The manufacturer or independent
accepted-work doctrine provided at the time contractor makes a chattel for
that a contractor owed no duty to the public the use of others.
for hazardous conditions the contractor
created once the property owner accepted its RESTATEMENT (SECOND) TORTS § 385
work. Id . at 789. Strakos rejected the (1965) ; see also Strakos, 360 S.W.2d at 792
doctrine as theoretically unsound and held (quoting section 385 of the First Restatement
that contractors could be liable in negligence of Torts). Under this provision, Jenkins
for creating the danger even after they argues, a former property owner (Occidental)
relinquished control.See id . at 790 ("The fact who improves real property ("erects a
that one who assumes control over a structure or creates any other condition") is
dangerous condition left by a contractor may liable for resulting injuries as though it were a
be liable for injuries resulting therefrom does "manufacturer or independent contractor"
not necessarily mean that he who creates the making a chattel for others.
danger should escape liability."). Jenkins
submits that the situation here is analogous, The court of appeals apparently agreed with
arguing that Occidental's sale of the property Jenkins because it cites both Strakos and
and concomitant loss of control is no more an section 385 as support for its dual-role
obstacle to Occidental's liability for creating analysis. 415 S.W.3d at 30–31. But section
the dangerous condition than the accepted- 385 plainly concerns only the liability of
work doctrine proved to be in Strakos . independent contractors and other third
parties who create dangerous conditions
Jenkins also maintains that we should look to while making improvements "on behalf of"
section 385 of the Second Restatement of property owners; it does not purport to apply
Torts for guidance here, instead of section to property owners themselves. See, e.g.,
352, because it also rejects the accepted-work Gresik v. PA Partners, L.P., 613 Pa. 303, 33
doctrine. It provides: A.3d 594, 599 & nn. 6–7 (Pa.2011) (noting
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 Occidental Chem. Corp. v. Jenkins, 478 S.W.3d 640 (Tex., 2016)

that section 385 pertains to the liability of owner's contractors or servants, may share
entities other than a possessor or vendor of that duty while they control the property, but,
land). Strakos also does not purport to as Strakos recognizes, the duty of these third
separate a property owner's responsibility for parties is not necessarily co-extensive with
dangerous property conditions from the that of the property owner because "the
owner's control over the property. Like modern approach is to place contractors on
section 385, Strakos speaks only to the the same footing as manufacturers of goods
actions of third parties, and we have and apply the same general principles of
consistently limited its application negligence even after the acceptance of the
accordingly. See, e.g., In re Weekley Homes, work." Strakos, 360 S.W.2d at 792. The
L.P., 180 S.W.3d 127, 132 (Tex.2005) (duty of contractor's duties are thus tied not only to its
contractor performing repairs); Lefmark control of the premises but also to the quality
Mgmt. Co. v. Old , 946 S.W.2d 52, 54 of its contracted work. This latter duty may be
(Tex.1997) (duty of former property judged under ordinary-negligence principles
manager); Science Spectrum, Inc. v. even after the contractor no longer controls
Martinez, 941 S.W.2d 910, 912 (Tex.1997) the premises. Id .
(duty of adjacent tenant); City of Denton v.
Page , 701 S.W.2d 831, 835 (Tex.1986) (duty Similar legal implications have not developed
of fire marshal). with respect to land conveyances, where the
deed has traditionally been viewed as the
To be sure, an owner may have responsibility parties' full agreement, excluding all other
for a dangerous condition on its property terms and liabilities. RESTATEMENT
whether created by the owner or others. But (SECOND) OF TORTS § 352 cmt. a. In this
to conclude that the property owner owes the area, "the ancient doctrine of caveat emptor"
same duty of care as an independent retains "much of its original force," requiring
contractor for the condition's creation is the vendee to make his own inspection of the
another matter because the respective duties property and relieving the vendor of
of contractor and property owner are not the responsibility for existing defects. Id . Hence,
same. the general rule is that "vendors of real
property are not liable for injuries caused by
An owner who creates a dangerous condition dangerous conditions on real property after
on its own property has breached no duty of conveyance." Roberts, 886 S.W.2d at 367–68.
care unless and until the owner exposes
certain people to the danger. The owner's The court of appeals recognized this general
duty in this instance is rooted in its control rule. 415 S.W.3d at 31 (quoting Roberts, 886
over the property, which is to say premises S.W.2d at 367–68 ). But the court also
liability. Such liability rests on two theoretical recognized a new exception for certain former
assumptions: (1) the property owner controls property owners4 who, like Occidental,
the premises and is therefore responsible for purportedly occupy dual roles as both owner
dangerous conditions on it, see Cnty. of and designer of the defective improvement.5
Cameron v. Brown, 80 S.W.3d 549, 556 The court concludes that in this latter role the
(Tex.2002), and (2) the property owner is in a property owner is similar to the independent
superior position to know of and remedy the contractor in Strakos and should have similar
dangerous condition, see Austin v. Kroger liability. Id . We, however, disagree.
Texas, L.P., 465 S.W.3d 193, 203 (Tex.2015).3
Third parties, such as the No Texas case supports the court's dual-role
analysis. Moreover, the weight of authority
[478 S.W.3d 647] elsewhere rejects

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 Occidental Chem. Corp. v. Jenkins, 478 S.W.3d 640 (Tex., 2016)

[478 S.W.3d 648] prevent his injury. Under these

circumstances, Occidental owed Jenkins no
the notion that a property owner acts in duty of care regarding
multiple capacities when making an
improvement to its property.6 We similarly [478 S.W.3d 649]
reject the notion that a property owner acts as
both owner and independent contractor when the property's condition as that duty had
improving its own property, subjecting itself passed to its vendee, Equistar, eight years
to either premises-liability or ordinary- before Jenkins's injury. The court of appeals
negligence principles depending on the accordingly erred in holding Occidental liable
injured party's pleadings. We hold instead for the dangerous condition and Jenkins's
that premises-liability principles apply to a injury.
property owner who creates a dangerous
condition on its property, and that the claim III
of a person injured by the condition remains a
premises-liability claim as to the owner- The court of appeals also held that
creator, regardless of how the injured party Occidental's circumstances did not qualify it
chooses to plead it. See, e.g., E.I. DuPont de for protection under either the ten-year
Nemours & Co. v. Roye, 447 S.W.3d 48, 57 statute of repose applicable to registered or
(Tex.App.–Houston [14th Dist.] 2014, pet. licensed professionals who design, plan, or
dism'd) ("Artful phrasing of the pleadings to inspect improvements to real property, TEX.
encompass alleged design defects or any other CIV. PRAC. & REM. CODE § 16.008,8 or the
theory of negligence does not affect the ten-year statute applicable to persons who
application of premises liability law."); accord construct or repair such improvements, id . §
Wyckoff v. George C. Fuller Contracting Co., 16.009.9 Occidental argues that the court has
357 S.W.3d 157, 163–64 (Tex.App.–Dallas misapplied these statutes, and several amici
2011, no pet.) ; Hughston , 797 S.W.2d at 291. join in that complaint.10 Because we have
And, if an injury should occur after the concluded that Occidental breached no duty
condition's creator has conveyed the of care to Jenkins, however, the statutes of
property, the premises-liability claim will, as repose are irrelevant to our decision. We
a general rule, lie against the property's new therefore do not decide whether the court of
owner, who ordinarily assumes responsibility appeals correctly applied either statute in this
for the property's condition with the case.
conveyance.7
***
The record here establishes that Occidental
The judgment of the court of appeals is
sold land and eight years later a condition on
reversed and judgment is rendered that
the property (the acid-addition system)
Jenkins take nothing.
injured Jenkins. Occidental retained no
control over the Bayport plant after the sale,
--------
much less the acid-addition system or the
plant's employees. Without ownership, Notes:
possession, or control of the plant, Occidental
could not assess the continued safety of the 1 Jenkins also sued his employer, Equistar,
acid-addition system or cure any deficiencies. which was severed from the suit after filing
Nor could it train or supervise the people for bankruptcy.
working with the system or provide
safeguards or warnings to them. Occidental
simply had no means to protect Jenkins or
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 Occidental Chem. Corp. v. Jenkins, 478 S.W.3d 640 (Tex., 2016)

2An exception exists when the vendor actively Dorman actually shares the court of appeals'
conceals or fails to disclose a known legal analysis, and that court observed that its
dangerous condition. Id. § 353. analysis was unique. See Dorman, 782 P.2d at
708 n. 3 (recognizing "that no court has
3 In Austin, we referenced a prior decision explained the applicability of § 352 [of the
discussing the landowner's superior position Second Restatement of Torts] as we do
to know of dangerous conditions and also here").
referenced the "Restatement (Third) of Torts:
Liab. for Physical & Emotional Harm § 51 6 See, e.g., Gresik, 33 A.3d at 599 & nn.6–7
cmt. t (2012) (addressing landowner's (declining to impose liability on a former steel
‘superior knowledge of the dangerous mill owner for a deadly explosion that
condition’)." Id. Although not previously occurred six years after the mill's sale and
briefed, Jenkins asserted during oral that resulted from the former owner's
argument that this reference to comment t to improvements); Conley v. Stollings, 223
section 51 constituted our acceptance of the W.Va. 762, 679 S.E.2d 594, 597–600 (2009)
Third Restatement's unitary duty of care and (holding former owners owed no duty to all-
an implicit abandonment of traditional terrain vehicle driver who was killed after
premises-liability principles. The collateral running into an unmarked steel cable
reference, however, will not bear that weight. installed by former owners because they sold
Its purpose was, as the parenthetical states, the property "almost two months before the
merely to highlight the law's assumption that accident occurred"); Papp v. Rocky Mountain
the landowner possesses superior knowledge Oil & Minerals, Inc., 236 Mont. 330, 769 P.2d
of premises defects. 1249, 1256–57 (1989) (holding former owners
who rebuilt an oil separator facility were not
4 The court indicated that the exception does liable for the death of the buyer's employee
not necessarily apply to "former home from an accidental gas release after they sold
owners" who create "a dangerous condition the facility and released control); Preston v.
through their design or construction work" Goldman, 42 Cal.3d 108, 227 Cal.Rptr. 817,
but only to "an industrial plant owner who 720 P.2d 476, 481 (1986) (rejecting plaintiff's
employed design professionals." 415 S.W.3d assertion that the former owners' liability
at 35 n. 27. should be evaluated based on "their roles as
designers and builders" and not upon their
5 The court of appeals cited three cases from
"status as landowners"); Century Display
other jurisdictions it found factually
Mfg. Corp. v. D.R. Wager Constr. Co., 71
analogous. 415 S.W.3d at 35 (citing Stone v.
Ill.2d 428, 17 Ill.Dec. 664, 376 N.E.2d 993,
United Eng'g, a Div. of Wean, Inc., 197 W.Va.
996–98 (1978) (holding former owner of
347, 475 S.E.2d 439, 443–44 (1996) (holding
manufacturing plant was not liable for fire
former plant owner liable for its negligent
when new plant owner had inspected the
design of conveyor belt); Dorman v. Swift &
property before purchase and had a
Co., 162 Ariz. 228, 782 P.2d 704, 706–08
"reasonable opportunity to discover the
(1989) (holding former plant owner liable for
dangerous condition complained of [i.e.,
negligent design of conveyor belt); and
tanks and pipes containing flammable
Carroll v. Dairy Farmers of Am., Inc., No. 2–
material] and to take the necessary
04–24, 2005 WL 405719, at *6 (Ohio Ct.App.
precautionary measures to protect against
Feb. 22, 2005) (not designated for
it"); Carlson v. Hampl, 284 Minn. 85, 169
publication) (finding fact issue as to whether
N.W.2d 56, 57 (1969) (holding former owner
former plant owner was negligent in its
was not liable for negligent construction of
design, fabrication, and installation of
stairway because he was no longer in control
support platform)). Of the three, only
of the property at the time of the injury and
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 Occidental Chem. Corp. v. Jenkins, 478 S.W.3d 640 (Tex., 2016)

"[t]he general rule is that a prior owner of real

estate is not liable for injury to a purchaser or
a third person caused by the condition of the
premises existing at the time the purchaser
took possession").

7 Exceptions to the general rule of no liability

may apply when, for example, a vendor
actively conceals or fails to disclose a
dangerous condition of which it is aware.
Restatement (Second) of Torts § 353 ; see also
Roberts, 886 S.W.2d at 368 (recognizing
these exceptions). While we agree that these
exceptions exist, they are not implicated here.
Jenkins does not claim that Occidental
withheld or concealed any information about
the acid-addition system. Moreover, the
evidence establishes that Occidental handed
over all plant records to Equistar with the sale
in 1998, and that, at the time of the transfer,
Occidental had used the acid-addition system
for six years without incident.

8 Section 16.008 provides that a suit "against

a registered or licensed architect, engineer,
interior designer, or landscape architect in
this state, who designs, plans, or inspects the
construction of an improvement to real
property or equipment attached to real
property," may not be brought more than ten
years after substantial completion of the
improvement or the beginning of operation of
the equipment.

9Section 16.009 provides that a suit "against

a person who constructs or repairs an
improvement to real property" may not be
brought more than ten years after substantial
completion of the improvement.

10The amici include the American Chemistry

Counsel & Chamber of Commerce of the USA,
the National Association of Manufacturers,
the Texas Chemical Council, and the Texas
Civil Justice League. The Pacific Legal
Foundation has also filed an amicus brief in
support of Occidental but confines its
argument to the common law.

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