author: KEM THOMPSON FROST, Justice.

text:
    Tracey Dawn ALLEN, Appellant, v. Traci CONNOLLY d/b/a Traci Connolly Insurance, Appellee.
    No. 14-03-00622-CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    Jan. 27, 2005.

      David W. Showalter, Mark D. Wilson, Rodney James Miles, Bellaire, Jeffrey A. Hirt, Houston, for appellant.
    Jack McKinley, John Engvall Jr., Houston, for appellee.
    Panel consists of Chief Justice HEDGES and Justices FROST and GUZMAN.
   OPINION

KEM THOMPSON FROST, Justice.

In this summary-judgment case we address whether there was a foreseeable risk of harm giving rise to a duty by an employer to protect employees from the criminal acts of third parties. The employee, appellant/plaintiff Tracy Dawn Allen, challenges the trial court’s summary judgment in favor of her former employer, appel-lee/defendant Traci Connolly d/b/a Traci Connolly Insurance. Finding no foreseeable risk of harm that a violent criminal act might occur against the employee, we affirm the trial court’s judgment in favor of the employer.

I. Factual and Procedural Background

Tracy Dawn Allen worked for Traci Connolly d/b/a Traci Connolly Insurance, a State Farm insurance agency operating in the greater Houston area and located on leased premises in a suburb of Houston. While at work during regular business hours, Allen was robbed and sexually assaulted by an armed assailant. Myeong-Ja Jeong, the owner of a nearby Texaco gas station and a customer of Connolly’s insurance business, and Allen’s co-worker, Christine Howell, were also on the premises at the time of the robbery and sexual assault. Both Jeong and Howell also were robbed at gunpoint during this criminal episode. The assailant, Clarence Cerf, was apprehended, charged, and convicted of aggravated robbery and aggravated sexual assault. He was sentenced to thirty-five years’ confinement and is currently incarcerated.

Allen brought a negligence action against Connolly, seeking to recover damages for physical injuries, mental anguish, and past and future medical expenses she claims to have suffered as a result of the assault. Allen alleged Connolly failed to provide a safe work place for employees.

Connolly had purchased and installed an office security system as part of the start-up equipment she obtained from State Farm Insurance. The security system was equipped with a silent alarm feature that could be triggered by pressing panic buttons installed under certain desks and in the office copy room. Allen alleged Connolly failed to train employees in the proper use of the panic buttons and failed to implement proper safety procedures in the work place. Allen alleged that during the criminal episode, she had opportunities to press the panic buttons but did not do so because she did not know where all of the buttons were located and because she feared the alarm would sound and jeopardize her life or the lives of others. Allen alleged that, had Connolly provided proper instruction in the operation and location of the panic buttons, Allen would have known where they were located and would have been aware that the alarm would send only a silent signal. Allen alleges she thus would have been able to summon law enforcement, who would have responded to the silent alarm in a matter of minutes and prevented the sexual assault.

Connolly filed a no-evidence summary judgment motion. Relying on Timberwalk Apartments, Partners, Inc. v. Cain, 972 S.W.2d 749, 756 (Tex.1998), Connolly asserted that there is no evidence that she owed a duty to Allen because there is no evidence that other crimes of a similar nature had occurred at the location of the assault or in its immediate vicinity. The trial court granted the motion and signed a judgment in favor of Connolly.

II. Issue Presented

In a single issue, Allen asserts the trial court erred in granting summary judgment because (1) as Allen’s employer, Connolly owed Allen a non-delegable duty to provide a safe place to work; (2) there was evidence to demonstrate that Connolly was negligent and that this negligence was a proximate cause of Allen’s injuries; (3) the sexual assault was not only foreseeable but actually foreseen by Connolly; and (4) there was evidence of prior criminal activity at and near the business premises where the assault occurred.

III. Standard of Review

In reviewing a no-evidence motion for summary judgment, we ascertain whether the non-movant produced any evidence of probative force to raise a genuine issue of fact as to the essential elements attacked in the no-evidence motion. Dolcefino v. Randolph, 19 S.W.3d 906, 916 (Tex.App.-Houston [14th Dist.] 2000, pet. denied). We take as true all evidence favorable to the non-movant, and we make all reasonable inferences therefrom in the non-movant’s favor. Id. A no-evidence motion for summary judgment must be granted if the party opposing the motion does not respond with competent summary-judgment evidence that raises a genuine issue of material fact. Id. at 917.

IY. Analysis

In a typical negligence case, a plaintiff will prevail only if she can establish that the defendant owed her a duty of care that was breached as a result of the defendant’s acts or omissions and that the type of harm that resulted from those acts or omissions was caused by and reasonably foreseeable by the defendant. Allen’s appellate arguments center on foreseeability and the existence of a legal duty, if any. Allen argues that her claim is based upon Connolly’s failure to provide a safe work place and asserts that evidence of prior criminal conduct at or near the premises is not an element of that claim. As explained below, we conclude that the risk of criminal violence against employees, in a small office open to the public, is virtually identical to the risk of criminal violence there against invitees. Likewise, we conclude an employer’s duty to use reasonable care to provide a reasonably safe place to work is, with respect to the risk of violent crime, based upon the same considerations that determine whether a premises occupier must protect invitees against the same risk. Thus, we analyze this issue under Timberwalk.

Employers’ Negligence Duty to Protect Employees from Third-Party Criminal Acts

Employers are not insurers of their employees’ safety at work; however, employers have a duty to use reasonable care to provide them employees with a reasonably safe place to work. See Leitch v. Hornsby, 935 S.W.2d 114, 117 (Tex.1996) (stating that employers are not insurers of their employees’ safety at work but do have a duty to use ordinary care to provide a safe work place); Sears, Roebuck & Co. v. Robinson, 154 Tex. 336, 280 S.W.2d 238, 240 (1955) (stating an employer has a duty “to use reasonable care to provide his [employees] with a reasonably safe place to work”). Generally, a person has no legal duty to protect another from the criminal acts of a third person. Walker v. Harris, 924 S.W.2d 375, 377 (Tex.1996). However, in the context of a premises liability case, one who controls the premises has a duty to use ordinary care to protect invitees from criminal acts of third parties if she knows or has reason to know of an unreasonable and foreseeable risk of harm to the invitees. Timberwalk, 972 S.W.2d at 756. The duty does not arise in the absence of a foreseeable risk of harm. Id. at 756-59.

Connolly argued successfully in the trial court that no foreseeable risk of harm existed, and thus, under Timberwalk, she owed no duty to Allen. In response to Connolly’s summary-judgment motion and on appeal, Allen argues that the standard announced in Timbe'rwalk does not apply because it involves the landlord-tenant relationship and not the employer-employee relationship. However, nothing in Tim-berwalk indicates that it is limited to the landlord-tenant context. Indeed, the Texas Supreme Court in Timberwalk confirmed that the duty owed by the controller of the premises, if any, is owed to invitees. It has long been the law in Texas that employees of an owner or occupier of premises are considered invitees of the employer. Hernandez v. Heldenfels, 374 S.W.2d 196, 197 (Tex.1963). Although premises liability and employers’ liability are distinct fields of law, the Texas Supreme Court has noted that “the nature of the duty of the landowner to use reasonable care to make his premises reasonably safe for the use of his invitees may, in all material respects, be identical with the nature of the duty of the master to use reasonable care to provide his servant with a reasonably safe place to work....” Sears, Roebuck & Co., 280 S.W.2d at 240 (observing that a landowner’s negligence duty towards its invitees may be the same as an employer’s negligence duty to provide a safe place to work, but holding that a line of no-duty premises-liability cases should not be extended to the employers’ liability context because the Texas Supreme Court believed that such an extension would be contrary to the Texas Legislature’s intent, as expressed in the Workers’ Compensation Act, to take away affirmative defenses from nonsubscribing employers).

Allen asserts that Timberwalk does not apply because she is alleging a breach of Connolly’s negligence duty to provide a safe work place to her employees. We have found no Texas case that addresses whether Timberwalk applies to an employee’s claims against a nonsubscribing employer for alleged negligence in failing to protect the employee against the criminal acts of third parties. We note, however, that the incidence of violent crime in the area, the foreseeability (if any) of violent crime against employees and customers at Connolly’s place of business, and the preventative measures Connolly could or did implement in view of the risk of such crime were the same for Connolly in her capacity as employer as they were for Connolly in her capacity as premises occupier. In the context of this case, we find no sound basis to treat Connolly’s duty, as an employer, to exercise reasonable care to provide Allen with a reasonably safe place to work differently from Connolly’s duty, as premises occupier, to use ordinary care to protect invitees from criminal acts of third parties if Connolly knew or had reason to know of an unreasonable and foreseeable risk of harm to invitees. See id. We conclude that, because Allen asserts that Connolly breached her negligence duty as employer by failing to exercise reasonable care to protect Allen from third-party criminal acts, the Timberwalk analysis applies to determine whether Connolly owed a negligence duty to Allen under the facts of this case.

Foreseeability of Harm

In the alternative, Allen also argues that if Timberwalk does apply, the criminal act in this case was foreseeable, giving rise to a duty owed to her by Connolly. “Foreseeability requires only that the general danger, not the exact sequence of events that produced the harm, be foreseeable.” Walker, 924 S.W.2d at 377. ‘When general danger to invitees is the risk of injury from criminal activity by third parties, the evidence must reveal specific previous crimes on or near the premises in order to establish foreseeability of harm.” Timberwalk, 972 S.W.2d at 756. Our supreme court has explained that “criminal conduct of a specific nature at a particular location is never foreseeable merely because crime is increasingly random and violent and may possibly occur almost anywhere, especially in a large city.” Id. A negligence duty as to third-party criminal conduct exists only when the risk of criminal conduct is so great that it is both unreasonable and foreseeable. Id. Foreseeability is not determined with hindsight but rather in light of what Connolly knew or should have known before the criminal act occurred. See id. at 757. In determining whether Connolly should have foreseen the occurrence of the aggravated robbery and aggravated sexual assault in question, we consider whether any criminal conduct previously occurred, how often it occurred, how similar the conduct was to the conduct on the property, and what publicity was given the occurrences to indicate that Connolly knew or should have known about them. See id. “These factors — proximity, recency, frequency, similarity, and publicity — must be considered together in determining whether criminal conduct was foreseeable.” Id. In this case, the evidence demonstrates that Connolly and her other employees were unaware of any prior criminal activity of a similar nature occurring on or near Connolly’s business premises. The owner of a gas station on the same block was aware of some incidents of shoplifting, and Allen points to crime statistics that indicate some criminal activity in the area. Additionally, Allen argues that Connolly’s act of installing an alarm system itself indicates Connolly’s awareness that crimes were occurring in the area.

Allen’s evidence and arguments are unpersuasive. Only one of the prior criminal acts, an assault that occurred at the nearby gas station, is possibly comparable to the violent act committed by Cerf against Allen; however, the record is devoid of any evidence indicating the nature or severity of that assault or whether it was similar to the assault against Allen. Moreover, before the aggravated sexual assault on Allen, the assault at the gas station appears to have been an isolated incident. The evidence Allen produced does not indicate the kind of rampant, obvious, and violent criminal activity that would put Connolly on notice that her place of business was located in a dangerous area. Allen’s argument that the mere existence of crime in the vicinity is proof of foreseeability is not legally sound. See id. at 756. Looking to the factors of proximity, recen-cy, frequency, similarity, and publicity, the summary-judgment evidence must show that Connolly knew or had reason to know of similar crimes in the vicinity. See id. at 757. Applying this standard, Allen’s summary-judgment evidence of some criminal activity in the vicinity fails to establish foreseeability. See id. at 756; Walker, 924 S.W.2d at 377-78.

Allen’s argument that Connolly’s mere installation of a security and alarm system itself proves foreseeability is also unavailing. Installing an alarm system is not proof per se that Connolly was aware of any crimes occurring in the area. Connolly’s motivation for installing the security system is unclear, although arguably, she acted to prevent the possibility of future criminal acts. The mere act of taking preventative measures to protect against the possibility of future crime is not the same as foreseeing that criminal activity. We do not equate Connolly’s installation of a security system and the minimal criminal activity at or near her business premises with proof of foreseeability of aggravated robbery and aggravated sexual assault of Connolly’s employees. To hold otherwise would virtually eliminate the foreseeability requirement for a negligence claim against a person who installs a security system or takes other preventative measures to guard against crime.

The evidence in this case does not show that Connolly had any reason to foresee that a violent criminal act might occur on her business premises and injure one of her employees. Because the aggravated sexual assault on Allen was unforeseeable, Allen’s negligence claim against Connolly fads.

Y. Conclusion

We find no merit in Allen’s appellate arguments and no error in the trial court’s summary judgment in favor of Connolly. Accordingly, we overrule Allen’s sole issue on appeal and affirm the trial court’s judgment.

      . Connolly cited Cerf as a responsible third party and secured a default judgment against him for liability in this case.

      . Allen also sued several State Farm Insurance entities. After the trial court granted Connolly’s motion for summary judgment, Allen non-suited her claims against the State Farm defendants, making the summary judgment in favor of Connolly final.


source: Caselaw Access Project

author: LEE ANN DAUPHINOT, Justice.

license: Public Domain

text:
    The STATE of Texas, Appellant, v. J. Grady BROWN, Jr., Appellee.
    No. 2-04-035-CV.
    Court of Appeals of Texas, Fort Worth.
    Jan. 27, 2005.
    Rehearing En Banc Overruled Feb. 10, 2005.
    Rehearing Overruled March 10, 2005.
    See also 984 S.W.2d 348.
    Greg Abbott, Atty. Gen., Barry R. McBee, Edward D. Burbach, Grady Click, Sherry L. Peel, Asst. Atty’s Gen., Austin, for appellant.
    Richard H. Kelsey, John E. Kelsey, Lawrence C. Collister, Scott W. Hickey, Kelsey, Kelsey & Collister, Denton, for appellee.
    Panel A: LIVINGSTON, DAUPHINOT, and HOLMAN, JJ.

      . Id. at 350-51.

   OPINION

LEE ANN DAUPHINOT, Justice.

This case arises out of a condemnation proceeding filed December 23, 1993 in which the State acquired a portion of land owned by Appellee J. Grady Brown. The State appeals, arguing that the trial court abused its discretion by awarding attorney’s fees and expenses to Brown. Because we hold that the trial court did not abuse its discretion by awarding attorney’s fees and expenses under section 21.0195 of the Texas Property Code, we affirm the trial court’s judgment.

Brief Facts

In December 1993, the State filed a petition for condemnation seeking to condemn portions of two adjacent tracts of land owned by Brown. The State sought to condemn this property located at the intersection of Interstate Highway 35E and State Highway 121 to complete Texas Department of Transportation’s (TxDOT) plan for expansion of these highways. Pursuant to the Texas Property Code, the trial court appointed three disinterested special commissioners to assess the damages suffered by Brown as owner of the properties to be taken. The special commissioners determined that Brown’s damages from the State’s taking and injury to the remainder of property were $3,426,877.00. Both Brown and the State appealed the findings by objecting and demanding a jury trial.

Approximately ten days before trial, over Brown’s objection in the nature of a plea to the jurisdiction, the trial court granted the State leave to file its third amended petition. A jury trial was then held, and the jury awarded Brown $767,673.55. Brown appealed, complaining that the trial court abused its discretion by allowing the State to file a third amended petition of condemnation that sought to take more property than was set forth in the petition that was before the special commission. In that appeal, we held that the trial court lacked jurisdiction over the State’s third amended petition that expanded the nature of the taking from that considered by the special commissioners. We reversed and remanded the case for a new trial on the petition that was considered by the special commissioners.

Upon remand and pursuant to the trial court’s suggestion, the State filed a fourth amended petition that was identical to the petition considered by the special commissioners (with the exception of the legal description that had been previously amended to cure a typographical error). Thereafter, Brown filed a landowner’s motion to assess fees and costs, and the trial court entered an interlocutory order finding the State hable for payment of Brown’s fees and expenses under Texas Property Code sections 21.019 and 21.0195. Following the new trial and a final hearing on the interlocutory order, the trial court affirmed its interlocutory order in a final judgment.

Reflecting the jury verdict and the landowner’s fees and expenses, the final judgment awards (1) the State fee title to the property being condemned; (2) Brown’s damages ($586,040.00); and (3) judgment for Brown against the State for the amount of $413,040.52 for reasonable and necessary fees for attorneys, appraisers, photographers, and other expenses. The State now appeals.

Attorney’s Fees

In its sole issue, the State argues that the trial court abused its discretion by awarding Brown section 21.019 and 21.0195 reasonable and necessary attorney’s fees and litigation expenses in this condemnation proceeding because the case was not dismissed and no judgment was entered denying the right to condemn the property. We disagree.

Section 21.0195 states in relevant part:
(a) This section applies only to the dismissal of a condemnation proceeding that involves the Texas Department of Transportation.
(c) If a court dismisses a condemnation proceeding on the motion of the department or as a result of the failure of the department to bring the proceeding properly, the court shall make an allowance to the property owner for the value of the department’s use of the property while in possession of the property, any damage that the condemnation has caused to the property owner, and any expenses the property owner has incurred in connection with the condemnation, including reasonable and necessary fees for attorneys.

At trial, the trial court set forth in its ruling on the record a detailed analysis and explanation of the applicability of the Property Code’s attorney’s fees and expenses award provisions in this case. The trial court’s interlocutory ruling, adopted in the final ruling, and final ruling state in part:

I believe — well, first, I — there is— whether anyone likes, I think that analysis by the Court or not — probably neither party likes this analysis by the Court — 21.0195 does contain either a vagueness or an ambiguity on its face. Subparagraph A and subparagraph C, while I won’t say they’re in conflict, they create an ambiguity that requires the Court to construe that ambiguity. Sub-paragraph A says it applies only to the dismissal-and I agree with [Brown], This is one of those matters where people need to be more careful about what they write that becomes a statute. If what they meant to say was, these only apply to TxDOT cases, that isn’t what they said.
What they said was this only applies to the dismissal of a condemnation proceeding involving TxDOT, which doesn’t comport exactly with the language of subparagraph C which says if a court dismisses a condemnation proceeding on the motion of the department or as a result of the failure of the department to bring the proceeding properly the — I won’t say it’s a conflict, but the vagueness there is that a court can do things other than dismiss an entire proceeding that addresses the failure of a condem-nor to bring an action properly.
[Brown]’s argument is, he wants to say the court should address it from the effect on the landowner, I should look through that end of the scope, and the State would say, no, you should look at it through the acts of the State and [through that end] of the scope. Did the State dismiss the action as controlling, or did the landowner file a motion to dismiss which got granted because now that’s bilateral? But the State wants me to look at it from the end of the scope that analyzes the event through what did the State do.
The landowner wants me to turn it around and look at the — and analyze the statute under what is the impact or effect on the landowner regardless of the procedural description of what got done. If it is tantamount to causing the landowner to have to do everything over again because of acts attributable to the State, the landowner says the Court should construe that as triggering the effect of 21.0195.
Because of the language in Subpara-graph C of 21.0195 I believe the landowner’s correct about that, that the proper code construction of 21.0195, because of the existence of Paragraph C, is that the Court should analyze the applicability of 21.0195 on what the effect was on the landowner rather than the procedural posture of what actually was taken by the State, result being that at least the third amended petition was found to have been erroneously proceeded on. And that’s bad grammar, but it was found to have been improperly brought by the State.
The action by the State bringing the third amended petition resulted — resulted in a judgment which was reversed not because there was an appraisal valuation methodology, not for a failure of the greater weight and preponderance of the evidence, not because of an admission of evidence error, not because of a failure of proof or a variation between pleadings and proof or any of those kinds of things, but because the Court found that by the State’s volitional action it took additional land, thus depriving the Court of subject matter jurisdiction because it’s a derivative jurisdiction case and tried a different case than the case it took before the special commissioners.
Now, as a practical matter, the effect on the landowner is exactly the same as if there had been a finding at the trial court level of an additional take resulting in a dismissal, either on motion of the State or on motion of the landowner.
Accordingly, while I understand [the Statej’s arguments, the legislative history arguments and points about that, I believe that the existence of 21.0195C, commencing with the word “or” in the second line, “or as a result of,” triggers the applicability of this statute and entitles these landowners in the Brown case to their remedies that they seek subject to proof.
Now, the Court could look at the legislative history to try and aid me in determining whether my analysis and my applicability of the Code Construction Act and my determination under 21.0195C as to the import, the validity, the purpose, the reason, the correct construction of 21.0195C is being applied by the Court, and that would be — then I would look at the legislative history, of which there is none about Subparagraph C. So I am not aided or assisted, and I have only the case law, the G[ra]cia case, the statute itself, and the facts of this case and the code construction act to guide me in making these determinations.
Because I think and take the position and therefore rule that the matters result — that placed this case in the posture it’s in right now result from a volitional act by the State in the filing of, insistence upon and obtaining the ruling to go to trial on the third amended petition, thus injecting the jurisdictional defect into the case resulting in the adverse ruling to the State by the Court of Appeals that the landowner is now privileged to establish its fees and costs.... And I’ll better frame and better articulate that in the form of any findings and conclusions that anybody wants, but those are going to be my rulings in connection with the applicability of the statute, the application of the statute to the facts, the interpretation of 21.0195, the applicability of the G[ra]cia case to the facts of this case.
We’ll call that the liability finding; that is, that the State is in fact liable for damages under 21.0195_
In addition, the Court still believes that the statutory scheme enacted by the legislature, although the Court has been put to some inferences and some interpretations and had to consider the meaning or applicability, in light of some language that isn’t particularly helpful, of 21.019 and 21.0195, the Court believes that the attorney fee recovery statute applies to this case, either 21.019, 21.0195, or both. It’s not necessary for the Court to determine that, because here I am going to find, so that the record is complete, that the events in this case, the history of this case, the procedural and substantive history of this case is effectively the same, as if the proceeding were dismissed for defects in its original presentation by the condem-nor such that it triggers the policy behind the statute. And the policy behind the statute — in construing any code, I’m supposed to construe it in a way as not to reach an anomalous result. I’m supposed to construe it in a way that effectuates, to the extent I can know what it is, the legislative intent and purpose of the statute.
Here, the legislative intent and purpose of the statute, as the entire eminent domain statutory scheme and constitutional authority is based, operates or is designed to operate to favor the landowner on any close call. It’s designed to operate in such a manner that the State is held to a strict standard, is designed to prevent and prohibit the abuse of property owners through the filing-or the erroneous filing of condemnations or the filing of condemnation cases which are filed incorrectly and do not result in finality of judgment or do not result in the most efficient use of the condemnation authority and the most minimal invasion of the private property rights of the landowner.
Because I believe that to be the policy of the law, I’m going to construe the statute in that regard, and that’s the basis of my finding that the statute applies to this case. For the-anticipating it would be a State’s request, though, I’m also going to find that there was no motion to dismiss by that name, either by the landowner or the condemnor in this case, nor was there an order of dismissal in this case.
In addition, I’m going to find that the — that, frankly, a motion to dismiss— I guess I’m — just can’t resist adding it, that a motion to dismiss is a federal practice and probably wouldn’t have been applicable anyway-but to construe it in the light of this statute so that the Court of Appeals knows at least the basis on which the trial judge believes this case was postured, the pleadings by the condemnee did constitute a plea to the jurisdiction. They did raise the issue of lack of jurisdiction derivative into the trial court from the special commissioners because of the pleading amendment.
They did substantively raise the point that would have been raised, and the effective result was the reversal and remand of the case, which has the effect of accomplishing — or creating the same policy situation that the legislation, I believe, was designed to minimize, and that was the necessity to try two times a very, very expensive case because of an error in the bringing of the case by the condemnor, (emphasis added).

We agree with and adopt the trial court’s analysis and reasoning in this case. The effect of this court’s decision in the first Brown case was to dismiss the State’s third amended petition because of the State’s “failure ... to bring the proceeding properly.” Consequently, after review of the record under the appropriate standard of review, taking into account the principles of statutoiy construction, and recognizing that eminent domain statutes should be construed in favor of the landowner, we hold that the trial court did not abuse its discretion by awarding attorney’s fees and litigation expenses pursuant to section 21.0195. Because the award was correct under section 21.0195, we do not reach the sub-issue of whether it was also correct under section 21.019. We overrule the State’s issue.

Conclusion

Having held that the trial court did not abuse its discretion by awarding attorney’s fees and expenses, we affirm the trial court’s judgment.

      . Tex. Prop.Code Ann. § 21.0195 (Vernon 2004).

        . See id. § 21.014.

      . Brown v. State, 984 S.W.2d 348, 349 (Tex. App.-Fort Worth 1999, pet. denied).

      . Id. at 349-50.

      . Tex. Prop.Code Ann. § 21.0195.

      . See State v. PR Invs., 132 S.W.3d 55, 67 (Tex.App.-Houston [14th Dist.] 2004, pet. filed) (affirming award of attorney’s fees and expenses after dismissal on condemnee’s motion because the State filed an amended petition including plan not reviewed by the special commission); State v. Gracia, 56 S.W.3d 196, 199, 202 (Tex.App.-Fort Worth 2001, no pet.) (affirming award of attorney’s fees and expenses upon dismissal entered after State filed motion for dismissal and condemnee filed plea to the jurisdiction).

      . See Brown, 984 S.W.2d at 349-50; Tex. Prop.Code Ann. § 21.0195(c).

        .See Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.1985), cert. denied, 476 U.S. 1159, 106 S.Ct. 2279, 90 L.Ed.2d 721 (1986); State v. Southwestern Bell Tel. Co., 526 S.W.2d 526, 528 (Tex. 1975); In re Talco-Bogata Consol. Indep. Sch. Dist. Bond Election, 994 S.W.2d 343, 347 (Tex. App.-Texarkana 1999, no pet.).

      . Purdin v. Copperas Cove Econ. Dev. Corp., 143 S.W.3d 290, 294 (Tex.App.-Waco 2004, pet. dism’d).

      . Gracia, 56 S.W.3d at 199.


author: ADELE HEDGES, Chief Justice.

text:
    Deberah Ann ALLCOTT, Appellant, v. The STATE of Texas, Appellee.
    No. 14-04-00217-CR.
    Court of Appeals of Texas, Houston (14th Dist.).
    Feb. 1, 2005.
    John C. Osborne, Houston, for appellant.
    Lori Deangelo Fix, Houston, for appel-lee.
    Panel consists of Chief Justice HEDGES and Justices FOWLER and SEYMORE.
   OPINION

ADELE HEDGES, Chief Justice.

Appellant, Deberah Ann Allcott, appeals from her conviction for driving while intoxicated. A jury found her guilty, and the judge sentenced her to one year’s incarceration, suspended for two years, and a $500 fine. The court also suspended her driver’s license for two years. On appeal, appellant contends that the trial court erred in overruling her relevance objections to testimony regarding injuries sustained by motorists and passengers in other vehicles as a result of a collision involving appellant’s vehicle. We affirm.

Background

Appellant was arrested for DWI after the vehicle she was driving collided with another vehicle, causing a chain reaction involving a total of four cars. At trial, the State presented the testimony of Officer George Fickessen, who testified regarding appellant’s demeanor after the accident and her failure to pass certain field sobriety tests. Donald Worchesick testified that while he was stopped at a red light he saw a vehicle approach the intersection at “full acceleration” and “a high rate of speed” and hit another vehicle. He said that the driver of the first vehicle did not apply the vehicle’s brakes prior to the accident.

The State called two additional witnesses who testified regarding the accident and injuries that they and others received as a result. Jesse Carter testified that he was approaching a red light when he “heard a loud bang.” A split-second later he was hit from behind. When the prosecutor asked Carter what injuries he sustained in the accident, defense counsel objected on relevance grounds. The trial judge overruled the objection, and Carter stated that he had several muscle contusions and underwent physical therapy for two and a half months.

Cassandra Moctezuma testified that at the time of the accident she was in a vehicle with her husband and five-year-old daughter. They were stopped at a red light when they were hit from behind. She said that her head hit the dashboard causing her nose to bleed. She further stated that she and her husband were transported to the hospital on stretchers and that her daughter suffered a bruise across her neck from the seatbelt. Appellant objected to Moctezuma’s testimony on relevance grounds both before it began and when the subject of injuries arose. The trial court overruled the objections.

Tammy Young, a passenger in appellant’s vehicle at the time of the accident, testified for the defense that the accident occurred when they were proceeding through a green light and a car merged in front of them causing appellant to hit it. Appellant also presented the testimony of Dr. Louis Trane, who opined that appellant sustained a concussion during the accident and suggested that this might explain her difficulties performing field sobriety tests after the accident.

Analysis

In her first issue, appellant contends that the trial court erred in overruling her relevance objection to Moctezuma’s testimony. In her second issue, appellant contends the trial court erred in overruling her relevance objection to Carter’s testimony. We review a court’s rulings on the admission of evidence under an abuse of discretion standard and reverse only if the decision is not within the “zone of reasonable disagreement.” Torres v. State, 71 S.W.3d 758, 760 (Tex.Crim.App.2002). All relevant evidence is admissible, unless otherwise barred by constitution, statute, or the Texas Rules of Evidence. Tex.R. Evid. 402. On the other hand, irrelevant evidence is inadmissible. Id. The Rules define “relevant evidence” as “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Tex.R. Evid. 401. Appellant contends that because the evidence regarding injuries was not relevant to the question of whether she was driving while intoxicated, it was inadmissible under Rules 401 and 402.

The Court of Criminal Appeals has determined that, in a DWI prosecution, evidence of injuries sustained in an accident caused by the alleged drunken driver may be relevant to the question of whether the driver was intoxicated. Allen v. State, 149 Tex.Crim. 612, 197 S.W.2d 1013, 1015 (1946); see also Etheridge v. State, 903 S.W.2d 1, 14 (Tex.Crim.App.1994) (stating that the extent of a victim’s injuries is relevant if it is probative of an element of the offense); Atkinson v. State, 157 Tex. Crim. 556, 251 S.W.2d 401, 403 (1952) (following Allen). In Allen, the court explained that, by showing the effects of the collision, such evidence may shed light on the force of the collision as well as the speed and manner in which the defendant was driving. 197 S.W.2d at 1015; see also Massoletti v. State, 165 Tex.Crim. 120, 303 S.W.2d 412, 413 (1957) (suggesting further that evidence regarding injuries might be admissible as part of the res gestae of the offense that lead to the collision).

It is certainly within the “zone of reasonable disagreement” in the present case whether the evidence of injury was relevant to appellant’s manner of driving. See Torres, 71 S.W.3d at 760; Allen, 197 S.W.2d at 1015. In her defense, appellant presented testimony that the accident occurred because another driver merged in front of her. Evidence that appellant was driving at such a rate of speed and so recklessly that her vehicle caused injuries to people in two different vehicles could be seen as contradicting the claim that the accident was caused by another driver. The trial court did not abuse its discretion in admitting the evidence regarding injuries. It was relevant to the force of impact and the speed and manner in which appellant was driving and, thus, to the issue of whether she was driving while intoxicated. Accordingly, we overrule appellant’s two issues.

The trial court’s judgment is affirmed.

      . The Court of Criminal Appeals has cautioned, however, against the admission of the gory details of the injuries or of the pain and suffering caused thereby. See Massoletti, 303 S.W.2d at 413; Atkinson, 251 S.W.2d at 403; Allen, 197 S.W.2d at 1015. Appellant in the present case makes no complaint in this regard, and the testimony regarding the injuries was not particularly detailed.


author: WANDA McKEE FOWLER, Justice.

text:
    Michael Miller EULER, Appellant, v. The STATE of Texas, Appellee.
    No. 14-03-01456-CR.
    Court of Appeals of Texas, Houston (14th Dist.).
    Feb. 1, 2005.
    Rehearing Overruled Feb. 24, 2005.

      Don L. Hendrix, Houston, for appellant.
    Alan Curry, Houston, for appellee
    Panel consists of Chief Justice HEDGES and Justices WANDA McKEE FOWLER and SEYMORE.
   OPINION

WANDA McKEE FOWLER, Justice.

Appellant was sentenced to two years’ confinement in the Institutional Division of the Texas Department of Criminal Justice and assessed a $1,000.00 fine after the trial court found he had violated the terms and conditions of his community supervision. In a single point of error, appellant contends the trial court erred by refusing to hold a separate hearing on punishment and by denying appellant’s motion for new trial, in which he again urged the court to grant a separate hearing on punishment. We affirm.

Procedural Background

In November of 2000, appellant was sentenced to four years’ confinement, which was probated, and assessed a $1,000.00 fine after pleading guilty to the felony offense of bribery. In July of 2008, the State moved to revoke appellant’s community supervision and, in December of 2003, the State filed its first amended motion to revoke. The State alleged appellant violated the terms and conditions of his probation by using cocaine and operating a motor vehicle while intoxicated by alcohol. Appellant pleaded ‘not true’ and the trial court held a hearing on the motion. After the hearing, the trial court found appellant had violated the térms of his community supervision and imposed a two-year sentence and a $1,000.00 fine. At the hearing, appellant’s counsel asked the trial court to hold a separate punishment hearing, which the trial court refused. Later, appellant filed a motion for new trial, again requesting a separate hearing on punishment; the trial court denied this request as well.

Analysis

On appeal, appellant contends the trial court erred by refusing his requests for a separate hearing on the issue of punishment. Appellant argues that the trial court’s action in sentencing him without an opportunity to be heard violated his due process rights under the United States and Texas constitutions. Appellant relies primarily upon Issa v. State and Duhart v. State to establish his right to a separate punishment hearing. These cases, however, do not necessarily require a separate punishment hearing when a trial court revokes community supervision. Rather, under Pearson v. State, appellant received all that he was entitled to because he had the opportunity to, and did, present mitigating evidence during the proceedings.

1. Duhart v. State

In Duhart, the Texas Court of Criminal Appeals stated that “[Qairness would dictate that a defendant be accorded an opportunity to offer appropriate evidence in mitigation of punishment after the revocation of ‘probation’ and the adjudication of guilt and before the assessment of punishment if such evidence has not already been elicited during the proceedings, particularly if the defendant requests the opportunity.” Duhart v. State, 668 S.W.2d 384, 387 (Tex.Crim.App.1984) (en banc) (emphasis added). Thus, Duhart requires only that a defendant have the opportunity to present evidence to mitigate punishment; it does not require a separate punishment hearing after a defendant’s community supervision is revoked.

In this case, appellant had the opportunity to, and did, in fact, offer evidence in mitigation of his punishment. In his motion for new trial, appellant asserted that he would have presented the following mitigating evidence in a separate punishment hearing:

• appellant was diagnosed by reputable physicians with continuing neurological disorders, which cause him slurred speech, short-term memory loss, and bouts of depression, and
• appellant was still under the care of physicians who treat and monitor him, and adjust the frequency and dosage of his medications.

Our review of the record reveals appellant already presented similar' evidence during the proceeding to revoke his community supervision. Because appellant elicited this mitigating evidence during the proceedings, Duhart did not require a separate punishment hearing.

2. Issa v. State

Later, in Issa, the Texas Court of Criminal Appeals determined that a punishment hearing was required when the trial court finds a defendant violated the terms and conditions of his or her ‘deferred adjudication’ probation. Issa v. State, 826 S.W.2d 159, 161 (Tex.1992) (en banc). When a defendant’s adjudication is deferred and the State moves to revoke the defendant’s probation, the trial court must first adjudicate the defendant’s guilt. Id. Once the trial court has adjudicated the defendant’s guilt, Issa requires the trial court to conduct a second phase to determine punishment. Id. This case, however, is distinguishable from Issa because appellant’s guilt had already been adjudicated. Appellant pled guilty to the bribery charge and was placed on community supervision. The present appeal involves only the revocation of his community supervision. See Moore v. State, 11 S.W.3d 495, 499 (Tex. App.-Houston [14th Dist.] 2000, no pet.) (finding a defendant’s guilt is not at issue in a revocation proceeding because the only question is whether the defendant broke the contract he made with the court after the guilt determination). Issa did not address, and therefore could not require, a separate punishment hearing when one’s guilt has already been adjudicated and the sole issue is whether to revoke community supervision.

3. Pearson v. State

Finally, our decision in appellant’s case is controlled by Pearson v. State, a ease the Texas Court of Criminal Appeals decided after Duhart and Issa. 994 S.W.2d 176 (Tex.Crim.App.1999) (en banc). In Pearson, the court reaffirmed its decision in Issa, stating that the appellant in that case had preserved error and was entitled to a separate punishment hearing when he had “neither the opportunity to present punishment evidence nor the opportunity to object to the trial court’s action.” Id. at 178. The court then distinguished Pearson’s situation because he “not only had the opportunity to, but did present punishment evidence.” Id. at 179. The court found it “immaterial” that the opportunity to present evidence came before the trial court revoked appellant’s probation. According to the court, “[ajppellant had the opportunity to present evidence during the proceedings ” and “[tjhat is all that is required.” Id. In this case, appellant was also able to present evidence in mitigation of his punishment, even though this did not occur during a separate punishment hearing. Because appellant already presented mitigating evidence during the proceedings, the trial court did not err in denying appellant’s requests for a separate punishment hearing. See Hardeman v. State, 1 S.W.3d at 689, 690-91 (Tex.Crim. App.1999) (finding Issa does not stand for a defendant’s absolute right to a separate punishment hearing, but only requires an opportunity for the defendant to present mitigating evidence if that right was not afforded during the adjudication). We have no doubt that the trial court considered the evidence, though not presented in a separate punishment hearing, particularly since appellant received a two-year sentence rather than the four-year sentence the original trial court found was appropriate. We overrule appellant’s sole point of error and affirm.

      . Appellant’s former attorney testified that appellant suffered from a neurological disorder and was prescribed medication for depression. A former interpreter for the hearing and speech impaired who knew appellant socially also testified. She testified that appellant’s neurological problems rendered him unable to speak clearly. Appellant testified that he was continuing to take medication. Finally, appellant introduced a letter from his doctor. In the letter, the doctor stated appellant had problems with his speech, anger control and depression after his head injury in 1998. The doctor also stated he had recommended appellant begin taking Depakote for his depression. In addition to the type of mitigating evidence appellant cited in his motion for new trial, appellant was able to offer the following mitigating evidence. Appellant testified that he was participating in an alcoholics anonymous program and working as an environmental consultant in an environmental agency.


author: BOB PEMBERTON, Justice.

text:
    GYM-N-I PLAYGROUNDS, INC., Appellant v. Ron SNIDER, Appellee.
    No. 03-03-00694-CV.
    Court of Appeals of Texas, Austin.
    Feb. 3, 2005.

      Christopher A. Fusselman, The Fussel-man Law Firm, P.C., Gus D. Oppermann, Y, Folger, Wheat & Oppermann, L.L.P., Houston, for Appellant.
    Ryan G. Anderson, William H. Ford, Cathleen M. Stryker, Bill Robert Foster, Ball & Weed, P.C., San Antonio, for Appel-lee.
    Before Chief Justice LAW, Justices B.A. SMITH and PEMBERTON.

      .Gym-N-I’s suit originated as a third-party action in a subrogation suit. In the aftermath of the fire, Gym-N-I contacted Snider proposing more than $193,000 to settle what it owed Snider under the lease and other equipment rental agreements. Snider acknowledged receipt of all obligations owed and executed a release and indemnity provision. Snider then received an additional $422,221.81 in insurance proceeds from American Economy Insurance Company. American Economy thereafter filed a subrogation suit against Gym-N-I to recover the money American Economy had paid to Snider. American Economy claimed that flammable materials stored by Gym-N-I were at least a partial cause of the fire and the resulting damages. Gym-N-I filed its third-party action against Snider in response to American Economy's subrogation action. A number of other parties were named as defendants or third-party defendants, but this appeal concerns only Gym-N-I’s claims against Snider.

   OPINION

BOB PEMBERTON, Justice.

This case centers on the applicability and effect of an “as is” clause in a commercial lease. Gym-N-I Playgrounds, Inc., leased a building from Ron Snider. Under the terms of the lease, Gym-N-I agreed to accept the building “as is” and disclaimed reliance on warranties and representations. After the building was destroyed by fire, Gym-N-I sued Snider, asserting various claims relating to the condition of the building. Relying in part on the “as is” clause, Snider moved for summary judgment, which the district court granted. On appeal, Gym-N-I argues that summary judgment was improper because the lease containing the “as is” provision had expired and that the provision was otherwise unenforceable. For the reasons stated below, we affirm the district court’s grant of summary judgment.

BACKGROUND

The following facts are not in dispute. Snider originally owned both Gym-N-I, a playground equipment manufacturing company, and the building in which Gym-N-I was located. Patrick Finn and Bonnie Caddell had both worked in the building for several years as Gym-N-I employees. Starting in 1987, Finn performed numerous tasks for Gym-N-I, including installing playground equipment, purchasing materials, maintaining mechanical equipment, looking after human resources concerns, and performing other odd jobs. Caddell performed bookkeeping services for the company, first as an independent contractor from 1984 to 1987, then continuing as a Gym-N-I employee for another six years.

Snider’s approximately 20,075-square-foot building was slightly over the threshold triggering the fee sprinkler requirement under the City of New Braunfels Code of Ordinances. The New Braunfels fee marshal, Elroy Friesenhahn, communicated this fact to Snider. Although Friesenhahn recommended that Snider install a fee sprinkler system, he did not require it because the building was only 75 square feet over the square-footage threshold and because he was . uncertain whether hazardous materials were stored in the building. Snider considered installing a sprinkler system but ultimately chose not to do so.

Finn and Caddell bought the Gym-N-I business from Snider on September 30, 1993, and entered into a commercial lease of the building with Snider. The lease contained the following provision:

Tenant [Gym-N-I] accepts the Premises “as is.” Landlord [Snider] has not made and does not make any representations as to the commercial suitability, physical condition, layout, footage, expenses, operation or any other matter affecting or relating to the premises and this agreement, except as herein specifically set forth or referred to and Tenant hereby expressly acknowledges that no such representations have been made. Landlord makes no other warranties, express or implied, of merchantability, marketability, fitness or suitability for a [document not legible]. Any implied warranties are expressly disclaimed and excluded.

On January 31, 1995, Gym-N-I and Snider executed an amendment to the lease. The amendment provided that, upon 90-day advance written notice, Gym-N-I would have, the option of renewing the lease for three two-year terms. The amendment further provided that the terms and conditions of the original lease would apply to the renewal term, except that rent during this period would be determined by mutual agreement of the parties.

The term of the original lease expired on September 30, 1996, without Gym-N-I having exercised the renewal option. However, for nearly four years thereafter Gym-N-I continued to pay, and Snider continued to accept, rent each month. Other than the unexercised renewal option, the sole written instrument in the record contemplating a continuation of the original lease was a holdover clause.

On-August 10, 2000, a fee completely destroyed the building and its contents. Gym-N-I sued Snider, asserting claims of negligence, fraud under the Deceptive Trade Practices Act (“DTPA”), and breach of the implied warranty of suitability. Specifically, Gym-N-I argued that Snider’s failure to install a sprinkler system as required by the City of New Braunfels Code of Ordinances constituted gross negligence and negligence per se and that leasing the premises in such a condition violated the DTPA and breached the implied warranty of suitability. Gym-N-I also argued that Snider negligently failed to inform it of an overloaded electrical system and other wiring problems in the building.

Snider filed a traditional motion for summary judgment asserting that all of Gym-N-I’s claims were barred by the “as is” clause and by a valid waiver-of-subro-gation clause. Snider further argued that the lease contained other valid waivers of express and implied warranties that barred certain claims and that Gym-N-I had admitted that no misrepresentations had been made by Snider. See Tex.R. Civ. P. 166a(c). The district court granted partial summary judgment in favor of Snider, which was later merged into a final judgment. This appeal followed.

DISCUSSION

Gym-N-I brings two issues on appeal. First, it contends that the “as is” clause was not carried over in the holdover period of the lease. Second, Gym-N-I contends that, on various other grounds, the “as is” clause is unenforceable against its claims.

Standard of review

Because the propriety of a summary judgment is a question of law, we review the district court’s decision de novo. Nati-vidad v. Alexsis, Inc., 875 S.W.2d 695, 699 (Tex.1994). Summary judgment is proper if there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law. Tex.R. Civ. P. 166a(c); American Tobacco Co., Inc. v. Grinnell, 951 S.W.2d 420, 425 (Tex.1997); Cincinnati Life Ins. Co. v. Cates, 927 S.W.2d 623, 625 (Tex.1996); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex.1985). We affirm if summary judgment is warranted on any ground asserted to the trial court. Tex.R. Civ. P. 166a(c); Cincinnati Life Ins. Co., 927 S.W.2d at 625. In deciding whether there is a disputed material fact issue, we take evidence favorable to the nonmovant as true and indulge every reasonable inference and resolve any doubts in the nonmovant’s favor. American Tobacco Co., 951 S.W.2d at 425; Nixon, 690 S.W.2d at 548-49.

Whether the “as is” clause remained in effect

In its first issue, Gym-N-I asserts that the “as is” clause in the original lease did not survive during the month-to-month tenancy under which it was leasing the property at the time of the fire. The original lease term ran from September 30, 1993, until midnight on September 29, 1996. The fire occurred almost four years later. Gym-N-I concedes that, at the time of the fire, the holdover provision of the original lease applied. That provision states:

13. HOLDING OVER: In the event of holding over by Tenant after expiration or other termination of this lease.... No holding over by Tenant after the expiration of the term of this Lease shall be construed to extend the term of this Lease.... Any holding over without written consent of Landlord shall constitute a lease from month-to-month, under the terms and provisions of this lease to the extent applicable to a tenancy from month-to-month....

Gym-N-I had continued to pay monthly rent to Snider during that time.

Gym-N-I asserts that the holdover provision failed to incorporate the “as is” clause and that only a formal, written, lease extension or renewal could carry that provision beyond the term of the original lease. We disagree.

We construe an unambiguous contract as a matter of law, enforce the unambiguous language as written, and give the terms their plain, ordinary, and generally accepted meaning. Gulf Ins. Co. v. Burns Motors, Inc., 22 S.W.3d 417, 424 (Tex.2000); Heritage Res., Inc. v. Nations-Bank, 939 S.W.2d 118, 121 (Tex.1996); Sun Oil Co. v. Madeley, 626 S.W.2d 726, 728 (Tex.1981). It is assumed that every clause is intended to have some effect. Heritage Res., 939 S.W.2d at 121; Ogden v. Dickinson State Bank, 662 S.W.2d 330, 332 (Tex.1983).

The lease’s holdover provision states that “[a]ny holding over ... shall constitute a lease from month-to-month, under the terms and conditions of this lease to the extent applicable to a tenancy from month-to-month.... ” (Emphasis added.) We are bound to give this provision its plain, ordinary, and generally accepted meaning. See Gulf Ins. Co., 22 S.W.3d at 424; Heritage Res., 939 S.W.2d at 121; Sun Oil Co., 626 S.W.2d at 728. The parties clearly intended to create a month-to-month tenancy at the expiration of the lease and to include all terms of the original lease not directly related to the duration of the original lease. We accordingly hold that the “as is” clause from the original lease was incorporated into the holdover lease and was applicable at the time of the fire. To do otherwise would be to give the phrase “under the terms and conditions of this lease” no meaning or effect. See id. Therefore, the district court appropriately relied on the leases’s waiver terms when it granted summary judgment in favor of Snider. We overrule Gym-N-I’s first issue.

Whether the “as is” clause is enforceable

In its second issue, Gym-N-I argues that the “as is” clause is unenforceable as against some or all of its claims. Moreover, Gym-N-I contends that summary judgment is insupportable in this case because the record contains unopposed evidence of negligence, breach of warranty, and fraud. We disagree.

“As is” clauses generally

By agreeing to purchase commercial property “as is,” a buyer agrees to make its own appraisal of the bargain and accepts the risks of the agreement. Prudential Ins. Co. of Am. v. Jefferson Assocs., Ltd,., 896 S.W.2d 156, 161 (Tex.1995). In Prudential, the supreme court approved the enforcement of “as is” clauses under certain circumstances. As long as the buyer is not induced by fraud into accepting the “as is” provision, the legal effect of the provision is to negate the causation element essential to recovery on claims associated with the physical condition of the property. Prudential, 896 S.W.2d at 161; Lee v. Perez, 120 S.W.3d 463, 467-68 (Tex.App.-Houston [14th Dist.] 2003, no pet.). As the court explained, contractual disavowal of reliance upon any representation is an important element of an arm’s-length transaction and is binding unless set aside. Prudential, 896 S.W.2d at 161. Finally, an “as is” agreement negates the causation element essential to recovery on DTPA theories, fraud (excluding, of course, fraud in the inducement of the “as is” agreement), negligence, and breach of the duty of good faith and fair dealing. Id.

When considering the enforceability of an “as is” clause, we consider five factors: (1) the sophistication of the parties, (2) the terms of the “as is” agreement, (3) whether the “as is” agreement was freely negotiated, (4) whether the agreement was an arm’s length transaction, and (5) whether there was a knowing misrepresentation or concealment of a known fact. Procter III v. RMC Capital Corp., 47 S.W.3d 828, 833 (Tex.App.-Beaumont 2001, no pet.) (distilling Prudential into five-factor test). Although not an independent factor, whether the buyer was represented by counsel is also important. See id. at 833-34. Overall, we apply the factors to determine whether the “as is” clause in this case meets the “letter and spirit” of Prudential and should be held valid. See id. at 833.

Applicability of “as is” clause to a lease

Gym-N-I does not allege that it was fraudulently induced to enter into the lease. In fact, Finn and Caddell both testified that they were not fraudulently induced. Instead, Gym-N-I first argues that Prudential applies only to the sale of property, not a lease, and should thus be distinguished on that basis. However, although most Texas case law concerns “as is” clauses in the context of commercial property sales, see, e.g., Prudential, 896 S.W.2d at 156, “as is” clauses can also apply to leases of commercial property. See Lee, 120 S.W.3d at 467-68 (in which court considered applicability of “as is” provision in context of commercial lease and held that provision would waive physical defects of property but did not waive deed restriction); see also Hou-Tex, Inc. v. Landmark Graphics, 26 S.W.3d 103, 110-11 (Tex.App.-Houston [14th Dist.] 2000, no pet.) (“as is” provisions valid in lease of computer software). We see no meaningful distinction between sales contracts and leases for purposes of determining the enforceability of “as is” clauses.

Application of Prudential to this lease

Gym-N-I next argues that the “as is” clause cannot be enforced under the standards set forth in Prudential and its progeny. Applying the Prudential factors, as set forth above, it is undisputed that Finn and Caddell were familiar with the building space they were leasing and with the needs of their business. In addition, Finn had been present when the fire marshal discussed the installation of a sprinkler system with Snider. Moreover, before they signed the lease, both Finn and Caddell knew that Snider had received bids for sprinkler systems but had ultimately decided not to install one. Finn and Caddell were represented by counsel when they signed the lease. Their deposition statements indicate that each was aware that the “as is” provision was in the lease and each understood what it meant. Finally, as previously discussed, Finn and Caddell admit that Snider did not commit .knowing misrepresentation, concealment, or fraud. Based on these uncontested facts, we hold that the Prudential factors are satisfied.

Effect of “as is” clause on claims associated with physical condition of property

We now turn to Gym-N-I’s contention that summary judgment was improper because evidence in the record supports claims of negligence, breach of warranty, and fraud under the DTPA. A valid “as is” clause, like the one here, negates the causation element essential to recovery on claims associated with the physical condition of the property. See Prudential Ins. Co., 896 S.W.2d at 161; Lee, 120 S.W.3d at 467-68. “As is” clauses have been held applicable in the context of causes of action based on fraud, negligence, breach of duty, and the DTPA. Prudential Ins. Co., 896 S.W.2d at 160-61 (where asbestos was discovered in commercial building, claims of fraud, negligence, breach of duty of good faith and fair dealing, and violations of DTPA could not be sustained because building was purchased “as is”); Larsen v. Carlene Lang-ford & Assocs., Inc., 41 S.W.3d 245, 249-50, 253 (Tex.App.-Waco 2001, pet. denied) (in residential purchase, claims of common law and statutory fraud, negligent misrepresentation, and violations of DTPA were precluded because “as is” clause conclusively negated reliance element essential to recovery).

Gym-N-I’s claims focus on Snider’s failure to install a fire sprinkler system, a potentially defective fire alarm system, and the building’s wiring. All of these alleged defects relate to the physical condition of the property before the lease was signed. Thus, as a matter of law, the “as is” provision negated causation in each of the claims asserted against Snider by Gym-N-I. See Prudential Ins. Co., 896 S.W.2d at 161. Put another way, Gym-N-I’s agreement to accept the premises “as is” effectively supercedes any fault of Snider’s. See id. A defendant who negates at least one of the elements of a cause of action is entitled to summary judgment. Randall’s Food Mkts., Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex.1995). We find, therefore, that there were no issues of genuine material fact regarding Gym-NI’s claims.

Implied warranty of suitability

Next, Gym-N-I attempts to distinguish its claim for breach of the implied warranty of suitability on the basis that, as a matter of law, only an express agreement that the tenant will repair certain defects can waive that warranty. See Davidow v. Inwood N. Prof'l Group-Phase I, 747 S.W.2d 373, 377 (Tex.1988). The supreme court first adopted the implied warranty of suitability in Davidow. 747 S.W.2d at 377. The implied warranty of suitability is an extension to commercial leases of the implied warranty of habitability, which only applies to residential property. See id. (citing Kamarath v. Bennett, 568 S.W.2d 658 (Tex.1978) (comparing residential lease objective of providing quarters suitable for living purposes with commercial lease objective of providing premises suitable for desired commercial use)). The supreme court held that, unless the warranty is waived, a landlord in a commercial lease impliedly warrants that facilities vital to the use of the premises for their intended commercial purpose are free from latent defects and will remain in suitable condition. Id. at 377.

Assuming that Gym-N-I’s breach-of-warranty claim contains a causation element, under Prudential, the “as is” clause would foreclose that claim. In addition, under Davidow, the “as is” clause negates the implied warranty of suitability itself. Davidow predates Prudential, and we see nothing in either case that would limit the effect of the “as is” clause in the manner Gym-N-I suggests. While the supreme court in Davidow approved one means of waiving the implied warranty of suitability — if “the parties to a lease expressly agree that the tenant will repair certain defects, then the provisions of the lease will control” — it did not state that this is the only method by which the implied warranty of suitability can be waived. See id., 747 S.W.2d at 377. Rather, the supreme court explicitly stated that determination of whether there has been an actionable breach of the implied warranty of suitability depends on the particular circumstances of the case. Id. One of the factors to be considered in that analysis is “whether the tenant waived the defects.” Id. Among other factors a court may consider are: (1) the nature of the defect; (2) its effect on the tenant’s use of the premises; (3) the length of time the defect persisted; (4) the age of the structure; (5) the amount of the rent; (6) the area in which the premises are located; and (7) whether the defect resulted from any unusual or abnormal use by the tenant. Id. In short, Davidow indicates that there is more than one way to override or waive the implied warranty of suitability. See id.

We find this interpretation of Davidow to be consistent with other areas of our law of implied warranties. For example, the legislature has adopted the Uniform Commercial Code (“U.C.C.”), including the U.C.C.’s implied warranties of “merchantability” and “fitness for a particular purpose” provisions. See Tex. Bus. & Com. Code Ann. §§ 2.314-.315 (West 1994). These implied warranties may be excluded or modified by conspicuous written language mentioning the implied warranty or even by an “as is” clause that makes plain that there is no implied warranty. Id. §§ 2.316(b), (c)(1) (“unless the circumstances indicate otherwise, all implied warranties are excluded in expressions like ‘as is,’ ‘with all faults’ or other language ... [which] makes plain that there is no implied warranty"’)- The implied warranty of good workmanship may also be waived contractually. See Centex Homes v. Buecher, 95 S.W.3d 266, 274-75 (Tex.2002) (implied warranty of good workmanship can be disclaimed when agreement provides for manner of performance or quality of construction).

We are mindful that the implied warranty of habitability generally cannot be waived. See id. at 274 (implied warranty of habitability may only be waived by disclosure of defects). Although the implied warranty of suitability has its legal roots in the implied warranty of habitability, they are not identical legal concepts. In 2002, the supreme court outlined the policy concerns associated with the sale of a residential home that support the implied warranty of habitability. See Centex, 95 S.W.3d at 269-75. The court noted that “purchase of a [new] home is ... in many instances the most important transaction of a lifetime.” Id. at 269 (quoting Humber v. Morton, 426 S.W.2d 554, 555 (Tex. 1968)). The court also noted that the implied warranty of habitability protects “the average homebuyer who lacks the ability and expertise to discover defects in a new house.” Id. at 274. Such considerations, although not wholly without application, are less persuasive in the context of commercial leases and the implied warranty of suitability. See Davidow, 747 S.W.2d at 376-77. In any event, as we have already noted, the supreme court has squarely ruled that the implied warranty of suitability may be contractually waived. See id. at 377. Thus, it is clear that the two warranties are not identical. Compare Centex, 95 S.W.3d at 275, with Davidow, 747 S.W.2d at 377.

In this case, we must decide whether this particular “as is” clause was sufficient to waive the implied warranty of suitability. The lease in this case explicitly mentions that Snider made no warranties, including the implied warranty of suitability. The “as is” provision was even underlined and set in all-capitals for emphasis. See Procter, 47 S.W.3d at 834 (where court noted that release language was capitalized so that there could be no confusion as to far-reaching extent of release of liability). In addition, both Finn and Caddell testified in depositions that they realized the “as is” provision was in the lease, were told by counsel that it highly favored Snider, and understood the provision’s intent and scope. Finally, as noted above, it is undisputed that Finn and Caddell knew of the building’s condition, including the absence of a sprinkler system and the fact that the fire code issues had been a concern. Consequently, we find that the implied warranty of suitability was waived in this case by the “as is” clause and that the district court acted appropriately in granting summary judgment for Snider on Gym-N-I’s breach of the implied warranty of suitability claim.

Having rejected all of Gym-N-I’s arguments concerning the “as is” clause as a bar to its claims, we overrule Gym-N-I’s second issue.

CONCLUSION

Having found that waiver provisions of the original lease were incorporated into the holdover lease, that the “as is” waiver provision of the lease was valid, that the “as is” provision waived the implied warranty of suitability, and that there were no genuine issues of material fact preventing application of the “as is” clause, we have determined that the district court could have appropriately relied on that clause to grant summary judgment in favor of Snider. We affirm the judgment of the district court.

      . Section 54-86(a) of the City of New Braun-fels Code of Ordinances adopted “The Standard Fire [Prevention] Code” published by the Southern Building Code Congress International, Inc. Section 3605 of the Standard Fire Prevention Code contains requirements for when an automatic fire extinguishing system would be required. Buildings over 20,-000 square feet that stored only moderately combustible materials would require such a system.

      . Friesenhahn explained that he compromised and only required installation of a four-foot fire curtain on one of the walls. He also testified that Snider met this requirement.

      . The trial court granted partial summary judgment on all but the breach-of-contract claim, which Gym-N-I and Snider later settled.

      . Gym-N-I also attacks Snider’s reliance on the waiver of subrogation provision. Because our disposition rests on our application of the "as is’’ clause, we need not reach this argument.

      . The lease term provision reads as follows:
      2. TERM: Subject to and upon the terms and conditions as set forth herein, or in any exhibit or addendum hereto, this lease shall continue in full force and effect for a term of 36 months beginning on the 30th day of September, 1993 ... and ending at midnight on the 29th day of September 1996, unless sooner terminated or extended to a later date under any other term or provision hereof.

      . For example, whether there was legal representation is pertinent to an assessment of the "sophistication of the parties” and whether the agreement was "freely negotiated.”

      . We note that our holding today conflicts with holdings of our sister courts in Houston and Corpus Christi. See Parts Indus. Corp. v. A.V.A. Servs., Inc., 104 S.W.3d 671 (Tex.App.Corpus Christi 2003, no pet.); Gober v. Wright, 838 S.W.2d 794 (Tex.App.-Houston [1st Dist.] 1992, writ denied). In Gober, which involved the lease of a commercial building and damages caused by a leaking roof, the Houston court stated that the supreme court "intended to except from the lessor’s responsibility only those repairs the lessee willingly accepted as part of the bargain.” Gober, 838 S.W.2d at 798. The court further stated that, "As a matter of law, the landlord’s implied warranty of suitability for commercial purposes is limited only by those specific terms in a commercial lease whereby a tenant expressly agrees to repair certain defects.” Id. The Corpus Christi court cited Gober for this same exact language in holding that a tenant who had not expressly agreed to repair the roof of a commercial rental property had not waived the implied warranty of suitability. Parts Indus., 104 S.W.3d at 680-81. We decline to interpret Davidow so narrowly. Compare Davidow v. Inwood N. Prof l Group-Phase I, 747 S.W.2d 373, 377 (Tex. 1988), with Gober, 838 S.W.2d at 798, and Parts Indus. Corp., 104 S.W.3d at 680-81.


author: BEA ANN SMITH, Justice.

text:
    SKILLED CRAFTSMEN OF TEXAS, INC., Appellant, v. TEXAS WORKERS’ COMPENSATION COMMISSION and Richard F. Reynolds, Executive Director, Appellees.
    No. 03-04-00073-CV.
    Court of Appeals of Texas, Austin.
    Feb. 3, 2005.

      Jane Lipscomb Stone, Erin Hacker Shanley, Stone, Loughlin & Swanson, LLP, Austin, for appellant.
    Brenda E. Brockner, Don Walker, Assistant Attorneys General, Administrative Law Division, Austin, for appellees.
    Before Chief Justice LAW, Justices B.A. SMITH and PEMBERTON.
   OPINION

BEA ANN SMITH, Justice.

The issue in this case is whether portions of the Texas Hazardous Employer Program (the Program) that call for the designation of hazardous private employers are preempted by the federal Occupational Safety and Health Act (OSH Act). Appellant, Skilled Craftsmen, argues that the Program is preempted because it allows appellee, Texas Workers’ Compensation Commission (the Commission), to implicitly regulate occupational health and safety standards already addressed by the OSH Act. The district court held that the Program is not preempted by federal law and that it is administered pursuant to valid rules. Because we agree with Skilled Craftsmen, we reverse the district court’s ruling and render judgment that the Program is preempted by the federal law.

BACKGROUND

The Hazardous Employer Program

The Workers’ Health and Safety Division (the Division) of the Commission is statutorily directed to develop a program that identifies hazardous employers and analyzes injury frequency. Tex. Lab.Code Ann. § 411.041(b) (West Supp.2004-05). The Division determines that an employer is hazardous when its rate of workplace injuries exceeds the rate reasonably expected for its business or industry. See 28 Tex. Admin. Code § 164.1 (2004). To effectively identify hazardous employers, the Division developed a formula that compares an employer’s normalized injury rate with the expected injury rate for that type of employer; if the ratio of normalized to expected injuries exceeds a pre-deter-mined threshold ratio, the employer is designated hazardous. Id. § 164.1(c).

Once the Division designates an employer as hazardous, it notifies the employer and its workers’ compensation insurance carrier. Tex. Lab.Code Ann. § 411.042 (West Supp.2004-05); 28 Tex. Admin. Code § 164.2(a) (2004). The notice must inform the employer (1) of the facts giving rise to the designation, (2) of any actions that must be taken as a result of the designation, (3) that an administrative review by the Division may be requested, and (4) that any information or documents provided by the employer are subject to disclosure under the Open Records Act. 28 Tex. Admin. Code § 164.2(b). An employer may also request a full hearing before an administrative law judge to contest a hazardous designation. Id. § 164.2(b)(5).

In 1996, we held that the Program, as it was then administered, was preempted because it regulated workplace safety issues already addressed by the OSH Act. Ben Robinson Co. v. Texas Workers’ Comp. Comm’n, 934 S.W.2d 149, 158 (Tex.App.Austin 1996, writ denied). In response, the legislature amended the program by deleting all portions that contained occupational and health standards for which a federal standard was in effect. See House Comm. on Bus. & Indus., Tex. H.B. 2514, 76th Leg., R.S. (1999). Because the OSH Act applies only to private employers, the amendments and new rules established different guidelines for private employers while the Program remained essentially the same for public employers. Under the amended Program, private employers were still identified as hazardous but were no longer required to develop accident prevention plans. The Commission’s intent was to comply with both Ben Robinson and the legislative directive to develop a system of identifying hazardous employers. See Tex. Lab.Code Ann. § 411.041 (West Supp.2004-05); see also 23 Tex. Reg. 11812 (1998) (to be codified as amendment to 28 Tex. Admin. Code §§ 164.1-.18) (proposed August 21, 1998).

Skilled Craftsmen

Skilled Craftsmen is an agency that supplies temporary help to the manufacturing and industrial trades, such as electronics, welding, assembly, and machinists. Persons placed by Skilled Craftsmen remain its employees while they are working at a client company’s work site. Thus, these employees are covered under Skilled Craftsmen’s workers’ compensation insurance. Between April 1, 2000, and March 31, 2001, the applicable audit period designated by the Commission for identifying hazardous employers, three of Skilled Craftsmen’s employees suffered injuries that resulted in more than seven days of lost time. As a result of these three injuries, Skilled Craftsmen was identified as a hazardous employer.

Skilled Craftsmen appealed the designation to the State Office of Administrative Hearings. Before its administrative hearing, Skilled Craftsmen filed suit in district court seeking a declaration that identifying and labeling private employers as hazardous under the current Program is preempted by the OSH Act. Alternatively, Skilled Craftsmen argued that the formula used to identify hazardous employers is invalid as applied to a temporary help agency. Specifically, Skilled Craftsmen claimed that the results of the formula are arbitrary and unreasonable (1) because it fails to address the differences between employers with static and dynamic workforces, (2) because the Standard Industrial Classification code (SIC code) assigned to Skilled Craftsmen is too broad, and (3) because none of the client companies for whom the employees were working when they were injured was designated hazardous.

In order to better understand Skilled Craftsmen’s as-applied challenge, a brief explanation of the formula used to identify hazardous employers is helpful. As we stated above, the formula compares an employer’s normalized injury rate with the expected injury rate for that type of employment; if the ratio of normalized to expected injuries exceeds a pre-deter-mined threshold ratio, the employer is designated hazardous. An employer’s injury rate is determined by dividing the total number of injuries by the highest employment during any one pay period and then multiplying that figure by one hundred. An employer’s expected injury rate is determined by the Bureau of Labor Statistics based on the SIC code assigned to the employer by the Texas Workforce Commission. Skilled Craftsmen was assigned SIC code 7363, entitled Help Supply Services, which includes all establishments primarily engaged in supplying temporary or continuing help on a contract or fee basis. Other types of businesses included in SIC code 7363 are employee leasing services, fashion show model supply services, other modeling services, manpower pools, office help supply services, and usher services.

Skilled Craftsmen argued to the district court that the formula is based on assumptions that do not apply to a temporary help agency. For example, Skilled Craftsmen claimed that the formula fails to take into account its dynamic work force. During the twelve-month period used by the Commission to identify hazardous employers, Skilled Craftsmen employed a total of 414 people. However, the most people it employed in any one pay period was 89. Skilled Craftsmen contends that the formula should take into account the total number of employees that were exposed to possible injury rather than those employed during a single pay period. Skilled Craftsmen avers that the formula functions adequately for most employers because the number of employees remains relatively constant between pay periods. However, a temporary help agency’s workforce is highly variable. If the Division had used all 414 employees instead of 89, the formula would not have identified Skilled Craftsmen as hazardous.

Skilled Craftsmen further argued that the SIC code and its corresponding expected injury rate inadequately describe what it does as an employer. The SIC code assumes that Skilled Craftsmen only places employees in clerical or office positions, when in fact its employees are placed in industrial labor positions for client companies that are assigned SIC codes with significantly higher expected injury rates. In this case, two of the three injured employees were working as general shop helpers, while the third was working as a pipe cutter. The three employees were working at two separate job sites. The SIC codes for these work sites were 3498, for Fabricated Pipe and Pipe Fittings, and 3533, for Oil and Gas Field Machinery and Equipment. The expected injury rate for SIC code 3498 was 5 injuries per 100 employees at the time Skilled Craftsmen was designated hazardous. The expected injury rate for SIC code 3533 was 1.4 injuries per 100 employees. The expected injury rate for Skilled Craftmen’s SIC code 7363, is 1 injury per 100 employees. Had the Division used the expected injury rates for the work sites where the Skilled Craftsmen’s employees were injured, the formula would not have identified Skilled Craftsmen as a hazardous employer.

The Commission contended that the Program, as it pertains to private employers, is not preempted because (1) there is no federal standard for identifying hazardous employers, and (2) the Program does not actually regulate occupational health and safety issues since it does not require an identified private employer to take any action to alleviate the source of the hazard. The district court held that the Program is not preempted by federal law and is being administered pursuant to valid rules. This appeal followed.

Standard of Review

In this case, we must determine whether the Commission’s Program is preempted by federal law. Because this determination is a pure question of law, we review the trial court’s decision de novo. See State v. Heal, 917 S.W.2d 6, 9 (Tex. 1996) (stating that questions of law are reviewed without deference to lower court’s conclusion).

DISCUSSION

Federal preemption of state law is grounded in the Supremacy Clause of the United States Constitution, which provides that “the Law of the United States ... shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, and any Thing in the Constitution or Laws of and State to the Contrary notwithstanding.” U.S. Const, art. VI, cl. 2. Under the Supremacy Clause, if a state law conflicts with federal law, the state law is preempted and “without effect.” Maryland v. Louisiana, 451 U.S. 725, 746, 101 S.Ct. 2114, 68 L.Ed.2d 576 (1981). Preemption can take one of several forms. A federal law may preempt a state law expressly. Great Dane Trailers, Inc. v. Estate of Wells, 52 S.W.3d 737, 743 (Tex.2001). It may also preempt a state law impliedly, either (1) when the scheme of federal regulation is sufficiently comprehensive to support a reasonable inference that Congress left no room for supplementary state regulation or (2) if the state law actually conflicts with federal regulations. Id. A state law presents an actual conflict when a party cannot comply with both state and federal regulations or when the state law would obstruct Congress’ purposes and objectives. Id.

“The purpose of Congress is the ultimate touchstone” in every preemption case. Retail Clerks Int'l Ass’n v. Schermerhorn, 375 U.S. 96, 103, 84 S.Ct. 219, 11 L.Ed.2d 179 (1963). Congressional intent is discerned primarily from the statute’s language and structure. Medtronic, Inc. v. Lohr, 518 U.S. 470, 486, 116 S.Ct. 2240, 135 L.Ed.2d 700 (1996). Also relevant is the purpose of the statute as a whole, which is revealed through “the reviewing court’s reasoned understanding of the way in which Congress intended the statute and its surrounding regulatory scheme to affect business, consumers, and the law.” Id.

The OSH Act authorizes the U.S. Secretary of Labor to promulgate federal occupational safety and health standards. 29 U.S.C. § 655 (West 1999). In the Act, Congress endeavored “to assure so far as possible every working man and woman in the Nation safe and healthful working conditions.” Id. § 651(b) (West 1999). By applying these standards to all businesses affecting interstate commerce, Congress brought the federal government into a field that traditionally had been occupied by the states. However, federal regulation of the workplace was not intended to be all encompassing. Congress expressly stated that the Act does not “prevent any State agency or court from asserting jurisdiction under State law over any occupational safety or health issue with respect to which no federal standard is in effect.” Id, § 667(a) (West 1999). In addition to reserving certain areas to state regulation, Congress also gave the states the option of displacing federal regulation by submitting for approval a state plan developing and enforcing its own occupational safety and health standards. Id. § 667(b).

The Supreme Court has stated, “the Act as a whole evidences Congress’ intent to avoid subjecting workers and employers to duplicative regulation; a State may develop an occupational safety and health program tailored to its own needs, but only if it is willing to completely displace the applicable federal regulations.” Gade v. National Solid Wastes Mgmt., 505 U.S. 88, 100, 112 S.Ct. 2374, 120 L.Ed.2d 73 (1992). In Gade, the Supreme Court held that non-approved state regulation of occupational safety and health issues for which a federal standard is in effect is impliedly preempted as in conflict with the full purposes and objectives of the Act, even if it merely supplements the federal standard. Id. at 98-100, 112 S.Ct. 2374. The Court further asserted, “A state law that expressly declares a legislative purpose of regulating occupational health and safety would, in the absence of an approved state plan, be preempted by an OSH Act standard regulating the same subject matter.” Id. at 105, 112 S.Ct. 2374. Essentially, the Court held that if a state wishes to regulate an issue of worker safety for which a federal standard is in effect, its only option is to obtain the prior approval of the Secretary of Labor, as described in section 667 of the Act. Id. at 103-04,112 S.Ct. 2374.

Despite Gade, the Commission argues that the OSH Act does not preempt the Texas Program for two reasons. First, there is no federal standard for identifying hazardous employers. Second, the Program does not actually regulate occupational safety and health issues because identified private employers are not required to take any action to alleviate the source of the hazard. Therefore, the Commission contends that federal approval is unnecessary because it has complied with section 667 of OSH Act. Because we hold that the practical effect of the Program is the regulation of occupational safety and health issues- for which federal standards do exist, we reject the Commission’s position.

In the letter notifying Skilled Craftsmen that it had been designatéd a hazardous employer, Robert Giacomazza — the Chief of Inspections, Consultations, and Reviews — stated that the explicit goal of the Program is to provide a safer and more healthful workplace for the workers of Texas. Likewise, the Commission claims that the Program’s express purpose is to reduce injuries by promoting workplace safety. The Commission avers that the identification of hazardous employers increases awareness of occupational health and safety issues and consequently it could reduce the number of workplace injuries. We find it doubtful that the knowledge that one employer has been identified as hazardous would, by itself, spur another employer to address occupational health and safety issues. Instead, it is more likely that the potential threat of being labeled hazardous- compels employers to tailor their operations to avoid being identified by the Commission.

The Commission’s contention is that for preemption purposes, it is irrelevant why an employer changes its behavior as long as it was not required to do so. This belief is grounded in the notion that a hazardous employer designation has no actual effect other than notifying an employer that its workplace injury rate exceeds the rate reasonably expected for that employer’s business or industry. A letter would merely inform the employer of the problem. However, the Commission also notifies the employer’s workers’ compensation insurance carrier and makes the identities of designated employers available to the public. As we noted in Ben Robinson, a hazardous designation can have a detrimental impact on a company’s business affairs. Ben Robinson, 934 S.W.2d at 152 (asserting that designation may provide current and future customers reason to do business elsewhere and may also diminish overall value of company). Jerry Temple-ton, President of Skilled Craftsmen, testified at trial that a hazardous designation would severely impair his ability to attract the type of employees necessary to continue to operate his business and that, due to the competitiveness of the market, his competitors would surely use the designation as way to market their services.

It appears clear that the disparaging label, “hazardous employer,” is designed to make an example out of an employer in order to coerce a change in the conduct of both the labeled employer and other employers who wish to avoid such a stigma. We find it telling that the hazardous designation remains effective for a year, regardless of any curative action taken by the employer. In the preamble to the amended rules, the Commission explains that a year “allows sufficient time for an identified employer to take action before the next audit period.” 23 Tex. Reg. 11812 (1998) (to be codified as amendment to 28 Tex. Admin. Code §§ 164.1 — .18) (proposed August 21, 1998). This explanation evidences the Commission’s intent to effect a change in the behavior of an identified employer. Furthermore, the fact that the designation remains effective for a year, even if the identified employer has sufficiently alleviated the hazard, is evidence that the label is punitive and designed to deter similar behavior of non-identified employers.

The Commission uses the hazardous employer designation as a stick to compel private employers to change their behavior even if the employer is fully complying with relevant OSH Act standards. Accordingly, it is possible for an employer to be designated hazardous by the Commission without ever violating the OSH Act. The formula used by the Commission to identify a hazardous employer is not tied to the violation of any particular OSH Act standard. The formula only states that an employer’s injury rate exceeds industry expectations; it does not inquire into the causes of the injuries. However, since removal of a hazardous designation requires an employer to take action to reduce the number of injuries, the Commission is implicitly regulating the causes of the injuries. Because OSH Act standards cover such a wide spectrum of occupational health and safety issues, it is difficult to envision how an identified employer could take action to reduce workplace injuries without addressing an area for which a federal standard exists. While an action taken in response to a hazardous designation by the Commission might not contravene any OSH Act standard, the Program is not saved from preemption because it supplements rather than contradicts OSH Act standards. Gade, 505 U.S. at 100, 112 5.Ct. 2374. The Supreme Court has held that Congress intended to avoid subjecting workers and employers to duplicative regulation. Id.

Although the Commission contends that the Program merely identifies hazardous private employers, its purpose and intent is to implicitly regulate occupational health and safety issues. The Program intimidates and coerces private employers to take action to correct occupational health and safety issues in order to reduce workplace injuries. As a result, private employers are placed in the unsettling position of having to comply with the OSH Act while also providing a workplace in which the number of injuries will be less than industry expectations within the state. This is exactly the type of du-plicative regulation that Congress sought to avoid when it enacted the OSH Act. Because the Program effectively obligates private employers, under penalty of being publicly labeled as hazardous, to take action to reduce workplace injuries, it essentially regulates occupational safety and health issues addressed by federal law. Therefore, the Program identifying hazardous private employers is preempted by the OSH Act. Because we hold that the Program is preempted by federal law, we do not address Skilled Craftsmen’s alternative argument that the rule used to determine whether an employer will be designated hazardous is arbitrary and capricious as applied to this employer.

CONCLUSION

Although the Program likely, supplements rather than contradicts existing federal standards, it is preempted because it implicitly regulates workplace safety issues, thereby subjecting employers to du-plicative regulation. Accordingly, we reverse the ruling of the district court and render judgment that the Program is preempted by the OSH Act.

      . An employer’s total number of injuries includes: lost time injuries, occupational diseases, and fatalities. 28 Tex. Admin. Code § 164.1(b)(5) (West 2004).

      . The administrative hearing has been abated pending the outcome of Skilled Craftsmen’s declaratory action.

      . Section 667(b) of the Act states that “Any State which, at any time, desires to assume responsibility for development and enforcement therein of occupational safety and health standards relating to any occupational safety or health issue with respect to which a Federal standard has been promulgated shall submit a State plan for the development of such standards and their enforcement.” 29 U.S.C. § 667(b) (West 1999).

      . When assessing the purpose of a challenged statute, we look beyond the name, description, or characterization given it and also consider the practical impact of the law. Gade v. National Solid Wastes Mgmt., 505 U.S. 88, 105-06, 112 S.Ct. 2374, 120 L.Ed.2d 73 (1992).

      . However, a hazardous designation may be removed if it is found by administrative review that the employer was erroneously identified. 28 Tex. Admin. Code § 164.16 (West 2004).

      . The OSH Act has standards that address: walking and working surfaces; exit routes, emergency action plans, and fire prevention plans; powered platforms, manlifts, and vehicle-mounted work platforms; occupational health and environmental controls; hazardous materials; personal protective equipment; general environmental controls; medical and first aid; fire protection; compressed gas and compressed air equipment; materials handling and storage; machinery and machine guarding; hand and portable powered tools and other hand-held equipment; welding, cutting, and brazing; special industries; electrical issues; commercial diving operations; and toxic and hazardous substances. See 29 C.F.R. § 1910, subparts (D)-(T), (Z) (2004).