George v. SI Grp., Inc.

36 F.4th 611

James GEORGE, Plaintiff—Appellant,

v.SI GROUP, INCORPORATED, doing business as Schenectady International, Incorporated; Evergreen Tank Solutions, Incorporated; Bulk Tank International; Brenner Tank Services, L.L.C.; Walker Group Holdings, L.L.C.; Bulk Solutions, L.L.C., Defendants—Appellees.

No. 20-40427

United States Court of Appeals, Fifth Circuit.

FILED June 3, 2022

Russell S. Post, Owen Joseph McGovern, Beck Redden, L.L.P., Houston, TX, Micajah Boatright, Arnold & Itkin, L.L.P., Houston, TX, for Plaintiff—Appellant.

Timothy F. Lee, Paul William Smith, Ware Jackson Lee O'Neill Smith & Barrow, L.L.P., Houston, TX, Brendan Patrick Doherty, Esq., Gieger, Laborde & Laperouse, L.L.C., Houston, TX, for Defendant—Appellee SI Group, Incorporated, doing business as Schenectady International, Incorporated.

Karen Renee Bennett, Kelli Burris Smith, Germer, P.L.L.C., Beaumont, TX, Gregory Christopher Rota, Horne Rota Moos, L.L.P., Houston, TX, Jennifer Wright Schick, Attorney, Ansa Assuncao, L.L.P., for Defendant—Appellee Evergreen Tank Solutions, Incorporated.

Graham D. Baker, Esq., Lynn Layne Rada, Espey & Associates, P.C., San Antonio, TX, for Defendants—Appellees Bulk Tank International, Brenner Tank Services, L.L.C., Walker Group Holdings, L.L.C., Bulk Solutions, L.L.C.

Before Jolly, Haynes, and Oldham, Circuit Judges.

E. Grady Jolly, Circuit Judge:

James George suffered severe burns when one "leg" of the landing gear on a tanker-trailer, detached from its tractor and sank into a gravel surface, causing the tanker-trailer, filled with scalding water, to tip over and to spill its contents on him. George brought a premises-defect claim against the owner of the property. He also asserted products-liability claims against the owner of the tanker-trailer and three companies involved in designing, distributing, or manufacturing the tanker-trailer. The district court dismissed his products-liability claims on the pleadings and his premises-defect claim on summary judgment. George has appealed. Because the district court did not apply the proper standard for evaluating the plausibility of George's pleadings under Federal Rule of Civil Procedure 12(b)(6), and because the district court erroneously concluded that Chapter 95 of the Texas Civil Practice & Remedies Code governed George's premises-defect claim, we AFFIRM IN PART and REVERSE IN PART its dismissal orders, VACATE its judgment, and REMAND for further proceedings not inconsistent with this opinion.

I

The district court, as noted, dismissed George's products-liability claims on the pleadings and his premises-defect claim on summary judgment. Because the dismissals occurred at different stages, we examine the facts separately as they relate to the products-liability and premises-defect claims.

A

Regarding the products-liability claims, we accept as true the well-pleaded factual allegations in George's operative complaint. See Ashcroft v. Iqbal , 556 U.S. 662, 679–81, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009).

According to the complaint, James George was working for Veolia Environmental Services on August 15, 2016, at SI Group's Freeport, Texas facility. SI Group had hired Veolia to provide pressure washing and cleaning services. George and the other Veolia contractors used tanker-trailers equipped with coils capable of heating water to 200°F.

SI Group provided the tanker-trailers that the Veolia crew needed to complete the job. Evergreen Tank Solutions owned the tanker-trailers and leased them to SI Group. Bulk Tank International, Bulk Solutions, and Brenner Tank Services "were involved with the manufacture, marketing, and distribution" of the tanker-trailers. More specifically, Bulk Tank International, a Mexican corporation that had been served but had not answered or appeared, manufactured the tanker-trailers. Bulk Solutions served as one of Bulk Tank International's United States-based distributors. And Brenner Tank Services "participated in the design" of the tanker-trailers. Additionally, "Bulk Tank, Bulk Solutions, and Brenner Tank ... designed, tested, assembled, manufactured, marketed, distributed, and/or sold the tanker trailer that injured Plaintiff."

SI Group directed the Veolia crew to park the tanker-trailer and a vacuum truck on unpaved gravel at the end of a long alleyway. (The tanker-trailer and vacuum truck had to be parked close to the site of the pressure washing.) The crew then backed the vacuum truck and tanker-trailer down the alleyway, parking them both on the gravel.

George was sitting in the cab of the vacuum truck. He "heard a screeching noise and turned to see the tanker[-]trailer tipping over towards" him. As the tanker-trailer tipped over, the manway opened, pouring 200° F water into the cab of the truck and onto George, who suffered second-and third-degree burns.

According to George's complaint, the tanker-trailer suffered from a marketing defect. As the companies that had "designed, tested, assembled, manufactured, marketed, distributed, and/or sold the tanker trailer that injured [George]," Bulk Tank International, Bulk Solutions, and Brenner Tank should have warned users against detaching the trailer "unless there [was] a concrete slab (or other level foundation) to support the feet of the trailer." Those warnings should have appeared "on the front, back, sides, and specifically in the areas where users of the trailer would work when detaching the trailer from the tractor (at or around the feet of the trailer)." Without those warnings, "it [was] reasonably foreseeable that users w[ould] park the trailers (both full or empty) on dirt, gravel, or other unpaved surfaces."

The tanker-trailer was also defectively designed, according to the complaint. First, each "foot" or "pad" of the landing gear "should have been designed with a greater surface area that better distributed the load weight and made the trailer more stable." This design was "feasible to accomplish," "would not have made the trailer materially more expensive to design," and "would also not [have] affected the utility of the landing gear pads to work properly." Second, the legs of the landing gear "should also have been designed to be wider, or stated differently, further apart from one another." Bulk Tank International, Bulk Solutions, and Brenner Tank "had the ability to create wider landing gear, and doing so would not have made the trailer materially more expensive."

Evergreen Tank Solutions also bore some responsibility for George's burns, according to the complaint. "As the owner of the trailer," Evergreen Tank Solutions "should have warned SI Group of the hazards associated with parking the trailer while full on unpaved or unstable surfaces." But it did not do so. Had it so warned, "SI Group could have directed the Veolia crew to park the trailer on a stable or paved surface, which would have avoided this incident."

B

Regarding the premises-defect claims, we take the relevant facts from the summary judgment record, construed in favor of the nonmovant, George. See Morrow v. Meachum , 917 F.3d 870, 874 (5th Cir. 2019).

SI Group is a chemical manufacturer that owns a plant in Freeport, Texas, where it stores chemicals in tanks. Occasionally, SI Group needs to change the chemicals stored inside a particular tank. But the "new" chemical is not introduced until the "old" chemical is fully removed. To remove the residue of the outgoing chemical, SI Group hires a contractor to conduct a "hot-water wash" of the tank's interior.

In 2016, SI Group hired an industrial cleaning contractor, Veolia, to conduct a hot-water wash of its F-741 tank. The wash allows SI Group to transfer the tank to a "different product." SI Group supplied the equipment for the job, including a vacuum truck and two tanker-trailers. The tanker-trailers store the hot water used to wash the tank; each one is equipped with coils designed to heat the water to 200°F. A hose runs from the back of the tanker-trailer to a pressure-washer-like device that is used to spray the inside of the tank. The vacuum truck extracts the dirty water that builds up inside the tank during the wash.

Although a hot-water wash can span weeks, the process is straightforward. A Veolia technician washes the tank "[n]onstop," until the first tanker-trailer empties or the vacuum truck fills. When the first tanker-trailer runs out of water, a Veolia employee pulls it to the front of the plant using a tractor, unhitches it from the tractor, drops it on cement pavement, and leaves it resting on its legs. After dropping the empty tanker-trailer, a Veolia employee hitches the full tanker-trailer to the tractor. The driver then pulls the full tanker-trailer to a gravel "staging area" near the tank to continue the wash. The empty tanker-trailer is refilled with water and left to steam overnight while resting on its legs.

James George, a technician, was part of a four-man Veolia crew conducting the hot-water wash of SI Group's F-741 tank on August 15, 2016. George arrived at the plant around six or six thirty that morning. To start the day, the Veolia crew met with SI Group's permitting representative and walked the site. The representative told the Veolia crew to park the vacuum truck and tanker-trailer in a gravel area near the F-741 tank. During the walkthrough, George saw a tanker-trailer—unhitched, filled with water, and dropped on its legs—in the same gravel area. The Veolia crew and SI Group's permitting representative did not discuss whether the tanker-trailer should be unhitched from the tractor and left resting on its legs in the gravel staging area. According to George, "it was normal procedure" for Veolia to unhitch the tanker-trailer from the tractor and to rest it on its legs. Indeed, George had washed tanks at the same facility at least twice before; both times his crew had unhitched the tanker-trailer and dropped it on its legs in the same area.

The gravel surface appeared firm. George did not notice any ruts or divots; it "looked like...