Opinion issued April 17, 2003
In The
Court of Appeals
For The
First District of Texas
NO. 01-01-01149-CV
FRANCISCO GONZALEZ, Appellant
V.
PIN OAK INTERESTS, L.L.C. AND
BAIAMONTE CUSTOM HOMES, INC., Appellees
On Appeal from the 270th District Court
Harris County, Texas
Trial Court Cause No. 2000-56703A
MEMORANDUM OPINION
Appellant, Francisco Gonzalez, appeals a summary judgment in favor of appellees, Pin Oak Interests, L.L.C. (“Pin Oak”) and Baiamonte Custom Homes, Inc. (“Baiamonte”). Gonzalez was paralyzed while working as a subcontractor on a framing project for construction of a town home project owned by appellees. Gonzalez sued appellees, alleging they were negligent and had a duty to use ordinary care and to protect, guard, and warn of unreasonably dangerous conditions on the premises.
Appellees each filed motions for summary judgment contending they owed Gonzalez no duty. The trial court granted both appellees’ motions.
In his sole point of error, appellant asserts that the trial court erred in granting summary judgment because appellees retained supervisory control and therefore had a duty to provide a safe work place.
We affirm.
Background
Appellant was permanently paralyzed on September 28, 2000, when he fell three stories through an unprotected window or door opening to the ground. The accident occurred at a construction site owned by Baiamonte and Pin Oak; both companies were participating in a joint venture to build town homes. In addition to owning the construction site, appellees also acted as the general contractor.
Appellees hired various subcontractors to handle portions of the building project. Chris Kuhasz Construction (Kuhasz) was hired to frame the town homes. In turn, Kuhasz hired Darren Dial and Noel Merino to work on the framing project. Appellant was an employee of Dial and Merino.
Standard of Review
A traditional summary judgment motion brought under Rule 166a(c) is proper only when the movant establishes that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c); Randall’s Food Mkts., Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex. 1995). In reviewing a summary judgment, we indulge every reasonable inference in favor of the non-movant and resolve any doubts in its favor. Johnson, 891 S.W.2d at 644; Lawson v. B Four Corp., 888 S.W.2d 31, 33 (Tex. App.—Houston [1st Dist.] 1994, writ denied). We take all evidence favorable to the non-movant as true. Johnson, 891 S.W.2d at 644; Lawson, 888 S.W.2d at 33. As movant, the defendant is entitled to summary judgment if the evidence disproves, as a matter of law, at least one element of each of the plaintiff’s causes of action or conclusively establishes each element of an affirmative defense. Friendswood Dev. Co. v. McDade & Co., 926 S.W.2d 280, 282 (Tex. 1996).Analysis
In his sole point of error, appellant asserts that the trial court erred in granting summary judgment because a fact issue exists as to whether appellees owed a duty to appellant to provide a safe work environment. Appellant contends that appellees did owe appellant such a duty because appellees retained actual and contractual supervisory control over the premises.
Whether appellees owed appellant a duty is governed by the law concerning a general contractor’s duties to a subcontractor’s employees. Koch Ref. Co. v. Chapa, 11 S.W.3d 153, 155 n. 1 (Tex. 1999) (“A general contractor owes the same duty as a premises owner to an independent contractor’s employee.”). In this context, there are two categories of premises defect cases: (1) defects existing on the premises when the independent contractor entered; and (2) defects the independent contractor created by its work activity. Coastal Marine Serv. of Tex., Inc. v. Lawrence, 988 S.W.2d 223, 225 (Tex. 1999). Appellant argues that appellees are subject to liability under the second category.
Generally, an owner or occupier does not have a duty to see that an independent contractor performs work in a safe manner. Hoechst-Celanese Corp. v. Mendez, 967 S.W.2d 354, 356 (Tex. 1998). However, a duty may arise when the general contractor retains some control over the manner in which the independent contractor performs the work. Id. For liability to attach, the employer’s role must be more than a general right to order the work to start or stop, to inspect progress or receive reports, to make suggestions or recommendations, or to prescribe alterations or deviations. Id. (citing Restatement (Second) of Torts § 414 cmt. c. (1965)).
The right to control can be proven by either (1) evidence of a contractual agreement that explicitly assigns the premises owner a right to control, or (2) evidence that the premises owner actually exercised control over the manner in which the independent contractor’s work was performed. Koch, 11 S.W.3d at 155. Appellant asserts that appellees retained the contractual right to control and that appellees actually exercised control over appellant.
A. Contractual Right to Control
A contract may impose control upon a party thereby creating a duty of care. Elliott-Williams Co. v. Diaz, 9 S.W.3d 801, 804 (Tex. 1999). Even when there is a contractual right to control, not exercising that right will not absolve the general contractor of liability. Id. A general contractor will be liable for its independent contractor’s acts when it retains the right to control the means, methods, or details of the independent contractor’s work. Id. The control must also relate to the injury the negligence causes, and the contract must grant the contractor at least the power to direct the order in which work is to be done. Id. Determining whether a contract gives a right of control is generally a question of law for the court. Lee Lewis Constr., Inc. v. Harrison, 70 S.W.3d 778, 783 (Tex. 2001).
In Dow Chemical Co. v. Bright, Bright, an independent contractor who was injured on the job, sued Dow claiming that Dow was negligent in providing safe work premises. 89 S.W.3d 602, 605 (Tex. 2002). Bright asserted that Dow owed a duty to provide safe work premises because Dow both retained a contractual right to control and exercised actual control over the premises. Id. Bright argued that Dow retained a contractual right to control the premises because Dow required its independent contractors to comply with Dow’s safety rules and regulations. Id. at 607. The construction contract required the contractor to take necessary precautions for the safety of its employees, to comply with Dow’s safety rules and regulations, and to comply with all applicable provisions of the federal, state and municipal safety laws and building codes. Id. at 606. The contract further stated that the contractor was an independent contractor, assuming all rights, obligations and liabilities applicable to it as an independent contractor. Id. at 606-07. It further provided that any contractual provisions which may have appeared to give Dow the right to direct the contractor as to details of doing the work or to exercise a measure of control over the work were to follow the desires of Dow in the results of the work only. Id. at 607.
The court held that these contract terms did not impose a duty of care upon Dow. Id. The contract did not delegate to Dow the right to control the means, methods, or details of contractor’s work, or grant Dow the power to direct the order in which contractor’s work should be done. Id. Therefore, there was no contractual right to control by Dow, imposing a duty of care.
Here, appellant contends that appellees contractually owed a duty to ensure that appellant performed his work in a safe manner because appellees required subcontractors to follow appellant’s safety rules and regulations, as well as state and federal regulations. Appellant quotes portions of paragraphs 7, 16, 19, and 35 of the base contract and paragraphs 1 and 7 of Attachment B to the contract in support of this contention. Additionally, appellant contends that the contract gives appellees a great amount of supervisory control over the subcontractor’s performance of work and implementation of safety regulations. Appellant quotes portions of paragraphs 3, 5, 12, 15, 30, 31, and 35 of the base contract, 16 and 25 of Attachment A, and 2, 3, and 11 of Attachment B in support of this contention.
After reviewing all of the aforementioned paragraphs, we find that, like the contract in Dow, the contract here did not delegate to appellees the right to control the means, methods, or details of appellant’s work, nor did it grant appellees the power to direct the order in which appellant’s work should be done. See Dow, 89 S.W.3d at 607.
B. Actual Exercise of Control
A premises owner who actually exercises control over a contractor’s work may be subject to direct liability for negligence. Koch, 11 S.W.3d at 155. However, “merely exercising or retaining a general right to recommend a safe manner for the independent contractor’s employees to perform their work is not enough to subject a premises owner to liability.” Id. (citing Restatement (Second) of Torts § 414 cmt. (1965)). The control must also relate to the injury that the negligence causes. Elliott-Williams, 9 S.W.3d at 804. Additionally, if a premises owner exercises control by requiring a subcontractor to comply with its safety regulations, the premises owner owes the subcontractor’s employees a narrow duty of care that its safety requirements and procedures do not unreasonably increase the probability and severity of injury. Hoechst-Celanese, 967 S.W.2d at 358.
In Dow, Bright asserted that Dow retained actual control. See Dow, 89 S.W.3d at 607. In support of this argument, Bright asserted that (1) Dow could have stopped Bright’s work if it had known of a safety hazard; (2) Dow should have refused to issue a safe work permit; (3) Dow should have issued a safety rule regarding securing the pipes; (4) Dow required contractors to report names of persons fired for safety infractions, required attendance at a safety meeting and had a Safety Incentive Program rewarding contractors; (5) Dow retained authority over the timing and sequence of work being done by independent contractors; and (6) Dow issued safety manuals and standards that contractors were required to read and follow. Id. at 607-10.
In holding that none of these arguments satisfied the requirement that Dow retained an actual right to control, the court found as follows. Id. at 611. It is not enough that the premises owner has merely a general right to order the work stopped. Id. at 607-08. Having a safe work permit system does not unreasonably increase the probability and severity of injury. Id. at 608. Failure to implement a safety rule is not actual control. Id. at 609. Requiring reports of contractors fired for safety infractions, requiring attendance at safety meetings, and having a safety incentive program do not constitute safety regulations that increase the risk or severity of injury. Id. There must be more than the retention of authority over the timing and sequence of work; there must be evidence that the general contractor actually controlled the timing and sequence of work. Id. Finally, mere promulgation of safety policies does not establish actual control. Id. at 611.
Appellant asserts that the deposition testimony of Guion Roberts, appellees’ superintendent, supports his contention that appellees had an actual right of control. Appellant points to testimony in which Roberts stated that (1) he thought he had the authority to fire subcontractors, including when the subcontractor was working unsafely, and (2) if he had seen unprotected openings, he might have mentioned to the foreman that a barricade was needed. Appellant also asserts that the affidavit of J. Roger Craddock, an expert in accident investigation matters, and the testimony of Kuhasz are evidence that appellees maintained supervisory control. Craddock’s conclusions that appellees had a responsibility to ensure that the construction site was safe and that appellees’ failure to do so directly caused appellant’s injuries are based on his review of the contract and Roberts’ testimony.
Determining whether a contract gives a right of control is generally a question of law for the court. Lee Lewis, 70 S.W.3d at 783. Kuhasz testified that he was not aware that safety was his sole responsibility and that if appellees had recommended he install a barrier, he would have done so. We do not agree with appellant that either Craddock’s or Kuhasz’s testimony supports his contention that appellees’ had actual control over the premises.
Appellant also asserts that appellees retained actual control based on the fact that appellees could have stopped appellant’s work had it known of the safety hazard. We disagree. It is not enough that the premises owner has merely a general right to order the work stopped. Dow, 89 S.W.3d at 607-08. In Dow, the court stated that “we have never concluded that a general contractor actually exercised control of a premises where . . . there was no prior knowledge of a dangerous condition and no specific approval of any dangerous act.” 89 S.W.3d at 609. Here, there is no evidence to indicate that appellees knew of the dangerous condition before appellant’s injury occurred or approved of acts that were dangerous or unsafe.
Appellant’s first point of error is overruled.
Conclusion
No fact issues exist about the extent of contractual or actual control retained by appellees. Accordingly, we affirm the judgment of the trial court.
Laura C. Higley
Justice
Panel consists of Justices Taft, Keyes, and Higley.