IN THE
TENTH COURT OF APPEALS
No. 10-05-00063-CV
Joyce Shelby,
Appellant
v.
Granbury Care Center,
Appellee
From the 236th District Court
Tarrant County, Texas
Trial Court No. 236-203080-03
MEMORANDUM Opinion
Appellant Joyce Shelby brings this appeal contesting the trial court’s granting of summary judgment in favor of Appellee Creative Solutions in Healthcare d/b/a Granbury Care Center (Granbury).
We will affirm the judgment of the trial court.
BACKGROUND
In November of 2002, Granbury entered into a contract with Vitas Healthcare of Texas, L.P. (Vitas) in which Vitas agreed to provide nursing services for Granbury’s hospice patients. Shelby was employed by Vitas to provide nursing services at Granbury. On February 7, 2003, Shelby was injured at Granbury while attempting to transfer a patient, who weighed over 300 pounds, from his bed to a wheelchair. Shelby requested that a Granbury employee assist her in transferring the patient, but she did not receive any assistance.
Shelby filed suit, claiming Granbury was negligent in failing to assist her in transferring the patient and in failing to provide adequate employees to take care of Granbury patients. Granbury moved for summary judgment, asserting that it did not owe a duty to Shelby. The trial court granted the motion, and Shelby appeals that judgment. The issue on appeal is whether a premises owner owes a duty of care to an independent contractor’s employee.
STANDARD OF REVIEW
We review the decision to grant or deny a summary-judgment motion de novo. See Provident Life & Accident Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003). The standards for reviewing a traditional motion for summary judgment are well established. Nixon v. Mr. Property Mgmt. Co., 690 S.W.2d 546, 548 (Tex. 1985). The movant has the burden of showing that no genuine issue of material fact exists and that it is entitled to summary judgment as a matter of law. American Tobacco Co. v. Grinnell, 951 S.W.2d 420, 425 (Tex. 1997); Ash v. Hack Branch Distributing Co., 54 S.W.3d 401, 413 (Tex. App.—Waco 2001, pet. denied). The reviewing court must accept all evidence favorable to the non-movant as true. Nixon, 690 S.W.2d at 549; Ash, 54 S.W.3d at 413. Every reasonable inference must be indulged in favor of the non-movant and all doubts resolved in her favor. American Tobacco, 951 S.W.2d at 425; Ash, 54 S.W.3d at 413. A defendant who conclusively negates at least one of the essential elements of a cause of action is entitled to a summary judgment as to that cause of action. Randall's Food Mkts., Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex. 1995) (citing Wornick Co. v. Casas, 856 S.W.2d 732, 733 (Tex. 1993), and Gibbs v. General Motors Corp., 450 S.W.2d 827, 828 (Tex. 1970)).
APPLICABLE LAW
As a general rule, a premises owner does not have a duty to ensure that an independent contractor performs work in a safe manner.[1] See Elliott-Williams Co., Inc. v. Diaz, 9 S.W.3d 801, 803 (Tex. 1999); Redinger v. Living, Inc., 689 S.W.2d 415, 418 (Tex. 1985); Abalos v. Oil Dev. Co., 544 S.W.2d 627, 631 (Tex. 1976). However, a duty may arise when the premises owner retains some control over the independent contractor’s work. Redinger, 689 S.W.2d at 418; Restatement (Second) of Torts § 414 (1965). “Right to control may be shown by explicit contractual assignment or actual exercise of control.” Shell Oil Co. v. Khan, 138 S.W.3d 288, 292 (Tex. 2004). “Generally, the former is a question of law for the court and the latter a question of fact for the jury.” Id.
Contractual Right to Control
“A contract may impose control upon a party thereby creating a duty of care.” Elliott-Williams, 9 S.W.3d at 804. The fact that actual control was not exercised will not preclude liability on the part of the premises owner if a contract provides for his control over the independent contractor’s work. See id. To establish that a premises owner retained control over an independent contractor’s work pursuant to a contract, the contract must dictate the means, methods, or details of the independent contractor's work. See id. Further, the comments to Section 414 of the Restatement (Second) of Torts state that for one to impose its control such that it owes a duty of care to others: “[i]t is not enough that he has merely a general right to order the work stopped or resumed, to inspect its progress or to receive reports, to make suggestions or recommendations which need not necessarily be followed, or to prescribe alterations and deviations.” Restatement (Second) of Torts § 414 (1965). Rather, the premises owner must retain such control over the work that the independent contractor is not “entirely free to do the work in his own way.” Id.
The contract between Granbury and Vitas stated that Vitas would provide Facility Room and Board Services to Granbury’s hospice patients. The contract further provided that the parties would “cooperate with each other in reviewing the quality and appropriateness of ... Facility Room and Board Services.” The contract defined “Facility Room and Board Services” as personal care services for hospice patients including, but not limited to, assisting in activities of daily living such as mobility, ambulation, and transferring. This is the only mention in the contract of transferring or moving patients. Granbury did not prescribe the means, methods, or details of how Vitas would transfer patients or perform other services within the contract. We therefore hold that the contract between Granbury and Vitas does not create a duty on the part of Granbury.
Actual Exercise of Control
A premises owner who actually exercises control over the independent contractor's work may be subject to direct liability for negligence. Koch Ref. Co. v. Chapa, 11 S.W.3d 153, 155 (Tex. 1999). Liability will be imposed when the premises owner undertakes control over the specific activity that caused the injury. See Lee Lewis Constr., Inc. v. Harrison, 70 S.W.3d 778, 783 (Tex. 2001). General safety guidelines imposed by the premises owner or the fact that he has inspected the work in the past does not create a duty. See Dow Chemical Co. v. Bright, 89 S.W.3d 602, 611 (Tex. 2002); Restatement (Second) of Torts § 414, Comment c. Again, the plaintiff must show that the premises owner retained control over the manner in which the independent contractor’s work is performed. See Lee Lewis, 70 S.W.3d at 783; Elliott-Williams, 9 S.W.3d at 803.
In Lee Lewis, the court held that the general contractor exercised the right to control the independent contractor’s work in that it routinely inspected the independent contractor’s employees to see that they properly utilized safety equipment and it approved the means of performing the job. However, in this case, the only evidence offered by Shelby to show that Granbury exercised control is testimony that Granbury employees assisted her in transferring patients in the past and that Granbury employees were responsible for providing other basic services to hospice patients. However, Shelby did not show that Granbury ever approved Vitas’s safety policies or implemented its own policies for Vitas to follow. The summary judgment evidence does not raise a fact issue that Granbury exercised control over Vitas’s transfer of patients because it does not show that Granbury sought to control the means, methods, or details of Vitas’s work. Finding that Shelby failed to produce evidence raising a fact issue that Granbury exercised the right to control Vitas’s work, we hold that summary judgment was proper.
CONCLUSION
Having overruled Appellant’s sole issue, we affirm the judgment.
BILL VANCE
Justice
Before Chief Justice Gray,
Justice Vance, and
Justice Reyna
(Chief Justice Gray dissenting)
Affirmed
Opinion delivered and filed December 21, 2005
[CV06]
[1] This case involves a premises owner’s duty to an employee of an independent contractor. A premises owner owes the same duty as a general contractor to an employee of an independent contractor. See Koch Ref. Co. v. Chapa, 11 S.W.3d 153, 155 n.1 (Tex. 1999). Cases involving the duty of premises owners and general contractors are used interchangeably. Id.