The opinion
Case: 25-40286 Document: 95-1 Page: 1 Date Filed: 07/09/2026
United States Court of Appeals
for the Fifth Circuit
____________
United States Court of Appeals
Fifth Circuit
No. 25-40286
____________ FILED
July 9, 2026
James George, Lyle W. Cayce
Clerk
Plaintiff—Appellant,
versus
SI Group, Incorporated, doing business as Schenectady
International, Incorporated; Brenner Tank Services,
L.L.C.; Bulk Solutions, L.L.C.,
Defendants—Appellees.
______________________________
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 3:16-CV-360
______________________________
Before Haynes, Higginson, and Ho, Circuit Judges.
Per Curiam: *
This case arises out of an accident that resulted in severe burns to
James George when a tanker trailer full of scalding water tipped over and
poured water into the cab of the truck in which George had been sitting.
George brought claims against SI Group, Inc. (“SI Group”), the owner of
the premises on which the accident occurred; Bulk Solutions, L.L.C.
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*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
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(“Bulk”), the distributor of the trailer; and Brenner Tank Services, L.L.C.
(“Brenner”), one of the designers of the trailer. The district court granted
summary judgment in favor of each of these defendants. Finding no error, we
AFFIRM. 1
I. Background
In August 2016, an employee of Veolia, James George suffered severe
burns over much of his body resulting from a hot water tanker trailer tipping
over and spilling water into the cab of the truck in which he was sitting. SI
Group had hired Veolia to perform a hot water wash on one of SI Group’s
chemical tanks. This process required the use of several trailers full of hot
water, referred to as tanker trailers, and one vacuum truck. To perform the
hot water wash, Veolia would pump hot water out of a tanker trailer, spray it
into the storage tank, test the water, then pump the contaminated water back
out with a vacuum truck. Eventually the vacuum truck would fill with water
and need to be emptied, and the empty tanker trailer would need to be
refilled.
On the day of the accident, George and the other Veolia workers went
to the SI Group permit shack to receive their permit. Reginald “TK” Hall,
an SI Group employee, issued the permit, which covered the scope of the
job. While walking the jobsite before the permit was issued, SI Group
employees directed Veolia contractors to park the tanker trailer and vacuum
truck in the staging area. SI Group maintains that the scope of Veolia’s work
did not require it to disconnect any tanker trailers from the tractor that pulled
them anywhere other than the paved refilling area where it swapped out the
tanker trailers.
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1
Judge Higginson concurs in the judgment only.
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Prior to the accident, the tanker trailer next to the vacuum truck ran
out of water, and Veolia employees switched out the empty trailer for a full
one. After an air bag in the tractor pulling the tanker trailer blew while backing
in with the new hot water trailer, Joe Armstrong, the Veolia employee driving
the tractor, and Michael Munoz, another Veolia employee, called a
supervisor, who told them to disconnect the tractor from the tanker trailer
and wait for the mechanic. George helped Armstrong disconnect hoses from
the tanker trailer and climbed into the passenger seat of the vacuum truck,
which had the windows open, to wait while Armstrong moved the tractor.
The Veolia crew left the tanker trailer on the gravel on its landing gear a few
feet from the vacuum truck in which George was sitting, without putting
down any mats under the landing gear or closing the hatch on top of the
trailer, which was full of 200-degree water. The tanker trailer at issue was
manufactured by Bulk Tank International (“BTI”), a Mexican corporation,
designed in part by Brenner, and distributed by Bulk.
Within minutes of the tanker trailer being set down, one of the legs of
its landing gear sank into the gravel and the trailer tipped over, dumping
scalding water through the open window of the vacuum truck. George
jumped out of the window and was taken to the safety shower and then to the
hospital.
After the accident, George sued several companies in state court, and
SI Group removed the lawsuit to federal court based on diversity
jurisdiction. George brought a premises-liability claim against SI Group and
products-liability claims against Bulk, BTI, and Brenner. 2 The district court
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2
George also brought a products-liability claim against Evergreen Tank, the owner
of the tanker trailer who leased it to SI Group, which was dismissed by the district court
and affirmed by our court on the basis that it was immunized as a non-manufacturing seller
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initially dismissed George’s claims against Bulk, BTI, 3 and Brenner, and it
granted SI Group’s motion for summary judgment. George appealed. In
2022, our court reversed the district court’s dismissal of the claims against
Bulk, BTI, and Brenner. George v. SI Grp., Inc., 36 F.4th 611, 623–24 (5th
Cir. 2022). It also reversed the grant of summary judgment for SI Group,
which had been based on the application of Chapter 95 of the Texas Civil
Practice and Remedies Code, and remanded the claim to the district court
“with instructions to analyze George’s premises-defect claim under Texas
common law.” Id. at 624. The district court then dismissed George’s
manufacturing-defect claims against Bulk and Brenner, concluded that
George adequately pleaded his warning-defect and design-defect claims
against them, and denied SI Group’s motion for summary judgment on
George’s premises-liability claim. The case was then reassigned to Judge
Drew B. Tipton and, after additional discovery, SI Group moved for
reconsideration of summary judgment and for summary judgment on
additional grounds. The district court granted both motions.
Bulk independently moved for summary judgment on George’s
products-liability claims based on its status as a non-manufacturing seller,
and Brenner and Bulk jointly moved for summary judgment on George’s
products-liability claims. The district court granted both motions. In addition
to these dispositive motions, the district court granted SI Group’s motion to
exclude George’s expert Benjamin Gibson’s opinions regarding SI Group’s
knowledge of a dangerous condition. The district court entered final
judgment and George timely appealed.
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under Tex. Civ. Prac. & Rem. Code § 82.003(1). See George v. SI Grp., Inc., 36 F.4th
611, 620–21 (5th Cir. 2022).
3
BTI was served but did not answer or appear; it is not in play here. George, 36
F.4th at 615.
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II. Jurisdiction & Standard of Review
The district court had jurisdiction under 28 U.S.C. §§ 1441 and 1332.
We have appellate jurisdiction under 28 U.S.C. § 1291.
We review a grant of summary judgment de novo, applying the same
standards as the district court. See Guillory v. Domtar Indus. Inc., 95 F.3d
1320, 1326 (5th Cir. 1996). Summary judgment is appropriate if “there is no
genuine dispute as to any material fact and the movant is entitled to judgment
as a matter of law.” Fed. R. Civ. P. 56(a). “Summary judgment should be
granted where critical evidence is so weak or tenuous on an essential fact that
it could not support a judgment in favor of the nonmovant.” In re Deepwater
Horizon, 48 F.4th 378, 382 (5th Cir. 2022) (citation modified). On summary
judgment, we “view[] all evidence in the light most favorable to the
nonmoving party and draw[] all reasonable inferences in that party’s favor.”
Pierce v. Dep’t of U.S. Air Force, 512 F.3d 184, 186 (5th Cir. 2007).
We review a district court’s exclusion of expert testimony for abuse of
discretion. In re Complaint of C.F. Bean L.L.C., 841 F.3d 365, 369 (5th Cir.
2016). “Wide latitude is granted to what the trial court decides. That
discretion will not be disturbed on appeal unless it is manifestly erroneous.”
Roman v. W. Mfg., Inc., 691 F.3d 686, 692 (5th Cir. 2012) (citation modified).
III. Discussion
George takes issue on appeal with the district court’s analysis of both
his premises liability and products liability claims. We address each in turn.
A. Premises Liability
George’s premises liability claims are relevant only to SI Group which
filed a summary judgment on these claims. “There are two types of premises
defects for which an independent contractor’s employee may seek to hold
the general contractor liable.” Clayton W. Williams, Jr., Inc. v. Olivo, 952
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S.W.2d 523, 527 (Tex. 1997). The first type (“Type 1”) “are those defects
that exist on the premises . . . or that are created through some means
unrelated to the activity of the injured employee or his employer,” in which
case “the general contractor has a duty to inspect the premises and warn the
invitee of those dangerous conditions of which the general contractor knows
or should know.” Id. The second type (“Type 2”) “are those defects the
independent contractor (or its injured employee) created by its work
activity,” id., in which case the general contractor must warn about such
defects only if it retains supervisory control “relate[d] to the condition or
activity that caused the injury,” id. at 528, or the right to control the
contractor’s work, see id. “If there is no contractual right to control, however,
the general contractor can be liable if it actually exercised control, contrary
to the contract’s terms.” Id. 4
George contends that the district court erred in its analysis of his Type
1 and Type 2 claims.
First, with respect to the Type 1 claim, following the accident, SI
Group and Veolia investigated the cause. George cites SI Group’s post-
accident investigative report and Veolia’s post-accident report as evidence
that SI Group had actual knowledge of the unstable ground before the
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4
The district court incorrectly identified the first type as the “premises condition
theory” and the second as the “negligent activity theory.” Under Texas law, a negligent
activity claim is distinct from a premises defect claim. See, e.g., Olivo, 952 S.W.2d at 528
(distinguishing between the two types of claims); Sampson v. Univ. of Tex. at Aus., 500
S.W.3d 380, 388 (Tex. 2016) (same). George did not assert a negligent activity claim. See
George, 36 F.4th at 618 (“George alleged a premises-defect claim against SI Group and
products-liability claims against Bulk Tank International, Bulk Solutions, Brenner Tank,
and Evergreen Tank.”). Insofar as there is overlap between negligent activity and Type 2
premises-defect claims in that the “right to control” rule applies in both types of claims,
see Olivo, 952 S.W.2d at 528, we analyze the district court’s analysis and George’s
arguments on this point in the context of a Type 2 claim.
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accident. George maintains that the district court erred in declining to
consider whether the reports created a fact question as to whether SI Group
should have known of the condition, and he suggests that the observation in
SI Group’s post-accident report that “fire monitors allow some water to leak
into the ground during operation” is evidence that SI Group had
constructive knowledge of a dangerous condition. We disagree. As the
district court correctly pointed out, these post-accident reports are not
evidence that SI Group knew or should have known of any unsafe condition
prior to the accident.
George also relies on Michael Munoz’s testimony that, after the
accident, he overheard two SI Group employees talking about a leak, and that
he thought they were talking about a leak from before the accident, to suggest
that there was evidence that SI Group had actual or constructive knowledge
of an unsafe condition. In addition to being inadmissible hearsay, see George,
36 F.4th at 625–26 (Haynes, J., concurring in the judgment in part and
dissenting in part), this testimony does not create a genuine dispute of fact as
to whether SI Group knew or should have known of a dangerous condition
prior to the accident. As the district court noted, Munoz admitted that the
SI Group employees did not mention when the leak occurred or when the
fire monitor was out of service, and his mere speculation that they were
talking about the period before the accident is not evidence that SI Group
knew of a dangerous condition before the accident.
Finally, George contends that the district court failed to engage with
the testimony of TK Hall, an SI Group employee, which he maintains
created an issue of fact as to whether SI Group exercised ordinary care during
its inspection the morning of the accident. The cited evidence, however, does
no such thing. George notes that Hall testified that a SI Group “safety and
maintenance” entity checks how solid the ground is prior to the work
beginning and that it should have been discussed with SI Group’s “safety”
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entity that a trailer could tip over if uncoupled on the gravel. He also notes
that Hall testified that he knew the trailer would tip over if uncoupled on the
gravel. George suggests that this shows actual and constructive knowledge of
a dangerous condition. To the contrary, although George states in his brief
that Hall testified that the hazard should have been identified and SI Group
should have checked to ensure that the staging area was safe, the evidence he
cites for that proposition states that a SI Group “safety and maintenance”
entity does check the ground where the tanker trailers are staged. This is
therefore not evidence that SI Group did not take reasonable care, and the
district court did not err in granting summary judgment for SI Group on the
basis that it lacked knowledge of an unsafe condition.
George also maintains that the district court erred by excluding the
opinion of his expert, Benjamin Gibson, as to SI Group’s knowledge of a
dangerous condition. Again, we disagree.
Per Federal Rule of Evidence 702, a witness “qualified as an expert by
knowledge, skill, experience, training, or education” may give opinion
testimony if it will “help the trier of fact to understand the evidence or to
determine a fact in issue,” is “based on sufficient facts or data,” is “the
product of reliable principles and methods,” and “reflects a reliable
application of the principles and methods to the facts of the case.” Fed. R.
Evid. 702. Before admitting an expert’s testimony, “the court must also
gauge whether the witness’s qualifying training or experience, and resultant
specialized knowledge, are sufficiently related to the issues and evidence
before the trier of fact that the witness’s proposed testimony will help the
trier of fact.” United States v. Wen Chyu Liu, 716 F.3d 159, 167 (5th Cir. 2013)
(citation modified).
The district court concluded that Gibson had no expertise or specific
knowledge that shed light on the issue of whether SI Group had actual or
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constructive knowledge of a dangerous condition. Specifically, it noted that
Gibson “merely evaluates the evidence discussed above and draws his own
conclusions without relying on any specialized education and expertise.”
This was not an abuse of discretion.
We next turn to George’s Type 2 claim. First, insofar as this type of
premises defect claim pertains to a condition created by the independent
contractor’s work, as opposed to a distinct negligent activity claim, see Olivo,
952 S.W.2d at 528, George does not identify what condition was created by
the independent contractor’s work that caused his injury. He instead argues
only that SI Group had control over the activity that caused his injuries. He
therefore has not produced evidence sufficient to support a Type 2 claim.
Further, there is no indication that SI Group controlled the safety
practices of the Veolia workers. The contractor agreement between the
parties stated that Veolia “shall take all necessary precautions for safety of,
and the prevention of injury, loss and damage to, persons and property on or
about or adjacent to premises where the Work is being performed and which
may result from Work being performed,” and that Veolia “acknowledges and
accepts full responsibility for inspecting and determining the adequacy of any
equipment used while performing Work.” SI Group therefore did not retain
contractual authority to control the safety practices of the Veolia workers.
George maintains that the testimony of TK Hall, SI Group’s permit issuer,
that Veolia would have to use matting if SI Group required it creates a fact
issue as to whether Veolia had the right to control the work that resulted in
George’s injury. This cannot be the case. As the Supreme Court of Texas
noted in Olivo, “[i]f there is no contractual right to control, . . . the general
contractor can be liable if it actually exercised control, contrary to the
contract’s terms.” 952 S.W.2d at 528. Hall’s testimony is not evidence that
SI Group actually exercised control. To the contrary, although Hall posits
that SI Group could have forced Veolia to use matting, it clearly did not do
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so. As such, it is not apparent that SI Group exercised control over the work
performed.
B. Products Liability
George’s products liability claims are relevant only to the Bulk and
Brenner entities which filed a summary judgment on these claims. First,
George does not challenge the conclusion that Bulk was entitled to summary
judgment as a non-manufacturing seller under Chapter 82 of the Texas Civil
Practice and Remedies Code, and thus summary judgment in favor of Bulk is
affirmed on this basis. See Rollins v. Home Depot USA, 8 F.4th 393, 397 (5th
Cir. 2021) (“A party forfeits an argument . . . by failing to adequately brief
the argument on appeal.”).
Turning to Brenner, George contends that the district court erred
when concluding that Brenner was entitled to summary judgment on both
George’s marketing defect/failure-to-warn claim and his design defect claim.
As to the marketing defect/failure-to-warn claim, the district court
concluded that the summary judgment evidence established that foreseeable
users of the tanker trailer would have special training and knowledge about
the risks of unhooking the trailer on an unlevel surface and thus no warning
was necessary. As to the design defect claim, the district court concluded that
Armstrong’s failure to use matting when uncoupling the trailer on an unlevel
surface was the but-for or producing cause of George’s injuries, rather than
the design of the trailer itself.
George maintains that there were issues of fact as to both claims. As
to the marketing defect/failure-to-warn claim, he argues that there were fact
issues because he submitted expert opinions stating that the existing
warnings on the product were insufficient to warn users. As to the design
defect claim, he maintains that there were fact issues because he submitted
evidence that the trailer had defects making it unreasonably dangerous for its
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foreseeable use—namely, that its landing gear’s pads were too small and that
its landing gear was too narrow.
We start with the marketing defect/failure-to-warn claim. “A
defendant’s failure to warn of a product’s potential dangers when warnings
are required is a type of marketing defect.” Am. Tobacco Co., Inc. v. Grinnell,
951 S.W.2d 420, 426 (Tex. 1997). “The existence of a duty to warn of dangers
or instruct as to the proper use of a product is a question of law.” Id. Under
Texas law, “[a] supplier has no duty to warn of risks involved in a product’s
use that are commonly known to foreseeable users, even if some users are not
aware of them.” Humble Sand & Gravel, Inc. v. Gomez, 146 S.W.3d 170, 183
(Tex. 2004). “When the foreseeable users of a product have special training,
a supplier has no duty to warn of risks that should be obvious to them, even
if persons without such training would not appreciate the risks.” Id.; see also
Sauder Custom Fabrication, Inc. v. Boyd, 967 S.W.2d 349, 351 (Tex. 1998) (per
curiam) (“No ordinary person trained to do the work Boyd and his crew were
doing could have failed to appreciate the obvious risk of falling. Thus, as a
matter of law, Sauder had no duty to warn of the risk.”).
The record shows that the risk of dropping the tanker trailer on its
landing gear on a gravel surface without any sort of stabilizing matting would
be commonly known and obvious to foreseeable users. Joe Armstrong, the
Veolia employee who unhitched the trailer, received his commercial driver’s
license (“CDL”) in December 2015. Under Texas law, a CDL is required
to drive a commercial motor vehicle (“CMV”). See Tex. Transp. Code
§ 522.011(a). The Texas Commercial Motor Vehicle Drivers Handbook, of
which Armstrong “read every single chapter and every single section,” 5
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5
Although whether there was a duty to warn turns on what was obvious to the
average user of a product, see Boyd, 967 S.W.2d at 349, and not necessarily whether the
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instructs users that, before uncoupling tractor-semitrailers, they must
“[m]ake sure surface of parking area can support weight of trailer.”
According to Veolia’s former safety manager, drivers are taught to lay down
mats if they must uncouple a loaded trailer on a surface other than concrete.
The record evidence also reflects that using mats when decoupling a trailer
was standard practice for CMV drivers.
Given the record evidence that foreseeable users of the tanker trailer
would be required to receive special training and to receive a special license
in order to operate such trailers, and that the risk of dropping the tanker
trailer on its landing gear on a gravel surface without any sort of stabilizing
matting would be commonly known and obvious to such users, the district
court did not err in concluding that there was no duty to warn of the danger
of dropping the trailer on a gravel surface without mats. Summary judgment
for Brenner on this claim was therefore proper.
We now turn to the design defect claim. To succeed on a design defect
claim, “a plaintiff must prove that (1) the product was defectively designed
so as to render it unreasonably dangerous; (2) a safer alternative design
existed; and (3) the defect was a producing cause of the injury for which the
plaintiff seeks recovery.” Timpte Indus., Inc. v. Gish, 286 S.W.3d 306, 311
(Tex. 2009). To be a “producing cause” of a plaintiff’s injuries, “(1) the
cause must be a substantial cause of the event in issue and (2) it must be a
but-for cause, namely one without which the event would not have
occurred.” Ford Motor Co. v. Ledesma, 242 S.W.3d 32, 46 (Tex. 2007).
“[T]here may be more than one producing cause of an event.” Id. at 45.
“Causation generally is a question of fact for the jury,” but, “if all the facts
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specific user knew of the risk, this is still evidence of what the average users of the tanker
trailer, CMV drivers, would know.
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and inferences point so strongly against causation that no reasonable jury
could find causation,” then it may be decided as a matter of law. Goodner v.
Hyundai Motor Co., Ltd., 650 F.3d 1034, 1044 (5th Cir. 2011) (citation
modified).
The district court concluded that, “even if the trailer’s design was
defective, it was not the producing cause of George’s injuries.” Rather, it
concluded that it was undisputed that the producing cause of George’s
injuries “was Armstrong’s failure to use matting when uncoupling the trailer
on an unlevel surface, and not the design of the trailer itself.” The district
court’s analysis suggests that the fact that Armstrong’s actions were “the”
producing cause necessarily means that the design of the trailer was not a
producing cause. It is arguable that even if Armstrong’s failure to use matting
to stabilize the trailer was a producing cause, if the trailer had been
defectively designed, that too could have been a substantial cause of the event
at issue and a cause without which the event would not have occurred. See
Ford Motor Co., 242 S.W.3d at 46. That would question the district court’s
analysis on this point.
But even if so, “[w]e may affirm a summary judgment on any ground
supported by the record, even if it is different from that relied on by the
district court.” Holtzclaw v. DSC Commc’ns Corp., 255 F.3d 254, 258 (5th
Cir. 2001). The record shows that George did not produce sufficient
evidence to raise a genuine dispute of fact as to whether the tanker trailer
“was defectively designed so as to render it unreasonably dangerous.”
Timpte Indus., Inc., 286 S.W.3d at 311. To determine whether a product was
defectively designed so as to be rendered unreasonably dangerous, Texas
courts apply a risk-utility analysis requiring consideration of the following
factors:
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(1) the utility of the product to the user and to the public as a
whole weighed against the gravity and likelihood of injury from
its use; (2) the availability of a substitute product which would
meet the same need and not be unsafe or unreasonably
expensive; (3) the manufacturer’s ability to eliminate the
unsafe character of the product without seriously impairing its
usefulness or significantly increasing its costs; (4) the user’s
anticipated awareness of the dangers inherent in the product
and their avoidability because of general public knowledge of
the obvious condition of the product, or of the existence of
suitable warnings or instructions; and (5) the expectations of
the ordinary consumer.
Id. (citation modified). Courts are to apply this analysis “in the context of the
product’s intended use and its intended users.” Id. at 312.
None of these factors weigh in George’s favor. First, George
identified no evidence that the risk and gravity of his injury outweighed the
likelihood of injury from its use. To the contrary, given the fact that ordinary
users of such a tanker trailer would know not to stand it on its landing gear on
gravel without mats or alternative stabilizing support, the risk of someone
being injured as George was does not outweigh the utility of the trailer to the
user and to the public. As to the second and third considerations, George’s
experts identify two safer alternative designs: landing gear with larger feet
and wider landing gear. One of George’s experts notes, without explanation
or support, that larger feet are “readily-available,” but George identifies no
evidence that these larger feet would not be unsafe, unreasonably expensive,
or that using larger feet would not seriously impair the usefulness of the
tanker trailer. Similarly, there is no evidence that a wider landing gear would
not be unsafe or unreasonably expensive, or that it could be implemented
without impairing the usefulness of the tanker trailer or significantly
increasing its cost. As to the fourth and fifth considerations, users of the
trailer would know about the dangers inherent in dropping it on gravel and
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that they may be avoided by using mats when placing the landing gear on such
uneven surfaces. Because all the risk-utility analysis considerations plainly
weigh in favor of the conclusion that the design was not unreasonably
dangerous, as a matter of law, the tanker trailer was not unreasonably
dangerous because of a defective design. See Hernandez v. Tokai Corp., 2
S.W.3d 251, 260–61 (Tex. 1999). Summary judgment for Brenner is therefore
proper on this basis.
IV. Conclusion
The district court did not err in concluding that SI Group, Bulk, and
Brenner were entitled to summary judgment on George’s claims, and it did
not abuse its discretion in excluding Benjamin Gibson’s expert opinion as to
SI Group’s knowledge of a dangerous condition. Accordingly, we
AFFIRM.
15