UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-40733
Summary Calendar
CRISOFORO CASTRO, Individually and as Next Friends of Lorena
Castro, Magnolia Castro, Christian Castro, Jose Armando Castro,
Minors; YOLANDA CASTRO, Individually and as Next Friends of
Lorena Castro, Magnolia Castro, Christian Castro, Jose Armando
Castro, Minors,
Plaintiffs-Appellants,
versus
HERMANOS MORALES RANCH; ET AL.,
Defendants,
J. RICK DAY,
Defendant-Appellee.
_________________________________________________________________
Appeal from the United States District Court
for the Southern District of Texas
(L-98-CV-103)
_________________________________________________________________
November 26, 2001
Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Claiming Defendant J. Rick Day negligently hired and
supervised the independent contractor for whom Plaintiff Crisoforo
Castro worked, Plaintiffs contest the summary judgments awarded
Day. AFFIRMED.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
I.
Castro was employed by Matias Serrata, who had been hired by
Day to build a fence on property Day was leasing for grazing.
While working on the fence, Castro’s shoelace became caught in an
auger being used to drill fence post holes, and his leg was
injured. Subsequently, Castro’s leg had to be amputated at the
knee.
Plaintiffs’ action claimed, inter alia: Day was negligent in
hiring Serrata; and Day negligently supervised Serrata. Summary
judgments were granted Day on each claim.
For the negligent supervision claim, the district court ruled:
Serrata was an independent contractor; and Day did not exercise the
requisite control over Serrata necessary to create liability on the
part of Day. Castro v. Serrata, 145 F. Supp. 2d 829, 832-33 (S.D.
Tex. 2000). In regard to the negligent hiring claim, the district
court ruled that, under Texas law, the employee of an independent
contractor is not a “third person” in the contemplation of
Restatement of Torts (Second) § 411, which recognizes that an
employer is liable to third parties for the negligent hiring of a
contractor who performs any duty which that employer owes to a
third person. Castro v. Serrata, 145 F. Supp. 2d 835, 837 (S.D.
Tex. 2001).
II.
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We must determine whether: (1) an employee of an independent
contractor is a third person under Texas law to whom the party
employing the independent contractor can be liable for negligently
hiring the independent contractor; and (2) Day exercised the
requisite control over the fence project to subject him to
liability for any negligent supervision of the independent
contractor.
A summary judgment is reviewed de novo applying the identical
standard used by the district court. E.g., Stewart v. Murphy, 174
F.3d 530, 533 (5th Cir.), cert. denied, 528 U.S. 906 (1999). Such
judgment should be granted if “the pleadings, depositions, answers
to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment
as a matter of law.” FED. R. CIV. P. 56(c). “We view the pleadings
and summary judgment evidence in the light most favorable to the
nonmovant.” Stewart, 174 F.3d at 533.
A.
Plaintiffs contend that the case law relied upon by the
district court in ruling on the negligent hiring claim is outdated,
and ask this court to look instead to other jurisdictions to hold
that Day can be liable for the alleged negligent hiring of Serrata.
Alternatively, Plaintiffs request that the question be certified to
the Texas Supreme Court.
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In granting summary judgment on this issue, the district court
cited Simonton v. Perry et al., 62 S.W. 1090, 1091 (Tex. Civ. App.
1901, no writ), which unequivocally holds that an employee of an
independent contractor is not a third person to whom the party
employing the independent contractor is liable for the negligent
hiring of the contractor. Our court has recognized that this is
the law of Texas. See Sword v. Gulf Oil Corp., 251 F.2d 829, 836
(5th Cir.) (“rule that an employer of an independent contractor is
liable to third persons for negligence of the independent
contractor in the performance of work inherently dangerous does not
extend to employees of the independent contractor”), cert. denied,
358 U.S. 824 (1958). Plaintiffs, however, contend that, because
Texas now follows the Restatement (Second) of Torts, the result
should be different. Texas does follow Restatement (Second) of
Torts § 411, see MBank El Paso, N.A. v. Sanchez, 836 S.W.2d 151,
156 (Tex. 1992), which provides:
An employer is subject to liability for
physical harm to third persons caused by his
failure to exercise reasonable care to employ
a competent and careful contractor
(a) to do work which will involve a risk
of physical harm unless it is skillfully and
carefully done, or
(b) to perform any duty which the
employer owes to third persons.
The district court correctly observed, however, that Texas law
continues to recognize that, under situations analogous to those
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contemplated in § 411, an employee of an independent contractor is
not a third person. For example, in both Hammack v. Conoco, Inc.,
902 S.W.2d 127, 131 (Tex. App. - Houston [1st Dist.] 1995, writ
denied), and Gray v. Baker & Taylor Drilling Co., 602 S.W.2d 64, 67
(Tex. Civ. App. - Amarillo 1980, writ ref’d n.r.e.), Texas courts
determined that, while an independent contractor who is hired to
perform inherently dangerous work is liable to third persons for
injuries resulting from such activities, employees of independent
contractors are not third persons. In fact, the Court of Appeals
of Texas has expressly held, albeit in an unpublished,
nonprecedential decision, that, under Texas law, the employee of an
independent contractor is not considered a third person under §
411. See Rogers v. Pro-Tec Installations, Inc., No. 05-96-00049-
CV, 1997 WL 412090, at *9 (Tex. App. - Dallas 1997) (“Texas law
clearly holds that a subcontractor’s employee is not a third party
as that phrase is used in the strict liability cases.... We see no
reason why the phrase ‘third party’ should be interpreted
differently under section 411”).
Accordingly, we reject Plaintiffs’ contention that, under the
law of Texas, an employee of an independent contractor is a third
person under § 411. Accordingly, summary judgment was correctly
awarded Day on Plaintiffs’ negligent hiring claim. Concomitantly,
we deny the alternative, certified-question relief sought by
Plaintiffs.
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B.
Plaintiffs next contend that genuine issues of material fact
preclude summary judgment on the negligent supervision claim.
Generally, the owner or occupier of land “does not have a duty to
see that an independent contractor performs work in a safe manner”.
Redinger v. Living, Inc., 689 S.W.2d 415, 418 (Tex. 1985). In some
situations, however, the party employing an independent contractor
“does have a duty to warn an independent contractor’s employees of
any dangerous conditions arising out of the independent
contractor’s work”. Clayton W. Williams, Jr., Inc. v. Olivo, 952
S.W.2d 523, 528 (Tex. 1997). Such a duty arises where: the
employing party retains some control over the work to be performed
by the independent contractor; the employing party did not exercise
reasonable care in overseeing the independent contractor’s
activities; and the injury sustained by the plaintiff is
proximately caused by the breach of that duty. See Olivo, 952
S.W.2d at 528 (citing Restatement (Second) of Torts § 414);
Redinger, 689 S.W.2d at 418 (“when the general contractor exercises
some control over a subcontractor’s work he may be liable unless he
exercises reasonable care in supervising the subcontractor’s
activity”). The control exercised by the party employing the
independent contractor, however, “must be more than a general right
to order the work to start or stop, to inspect progress or receive
reports”. Redinger, 689 S.W.2d at 418. Obviously, a premises
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owner or occupier, such as Day, “must have some latitude to tell
its independent contractors what to do, in general terms, and may
do so without becoming subject to liability”. Koch Ref. Co. v.
Chapa, 11 S.W.3d 153, 156 (Tex. 1999).
Plaintiffs assert there are material fact issues on whether
Day retained some control over the fence project because Day’s
employee, Gonzales, visited the work site on a daily basis and gave
instructions to Serrata or Serrata’s employees regarding the
placement of the fence. Such instructions, however, are of the
general nature contemplated by Koch that do not expose Day to
liability. Theoretically, if entities such as Day are exposed to
liability for such rudimentary instructions to the independent
contractors they employ, Day would become liable for any
instructions beyond informing Serrata that he wanted him to build
a fence. Accordingly, the district court did not err in granting
summary judgment to Day as to this claim.
III.
For the foregoing reasons, the judgment is
AFFIRMED.
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