Dissenting.
I respectfully dissent to the disposition of point of error one. The majority concludes that Chapa’s evidence raises two fact issues precluding summary judgment for Koch. The first fact issue is “whether Koch, through its on-site safety man, retained control over the safety requirements of its independent contractor.” The second is “whether Koch’s apparent acquiescence to the independent contractor’s order to perform an unsafe operation was sufficient to compel Koch to take corrective action as required under Tovar.” Because I conclude that the evidence does not show that Koch owed a duty to Chapa, I would hold that the trial court did not err by granting summary judgment for Koch.
The issues for consideration are whether Koch, as a general contractor, owed a duty to Chapa, the injured employee of an independent contractor, H & S, and, if so, whether there is evidence in the record to show that Koch breached this duty. A general contractor on a construction site, who is in control of the premises, is charged with the duty to use reasonable care to keep the premises under its control in a safe condition. Redinger v. Living, Inc., 689 S.W.2d 415, 417 (Tex.1985). This duty may subject the general contractor to liability for negligence in two situations: (1) those arising from a premises defect; and (2) those arising from an activity or instrumentality. Redinger, 689 S.W.2d at 417; see Shell Chem. Co. v. Lamb, 493 S.W.2d 742, 746 (Tex.1973).
The facts in the instant case show that Chapa received his injury due to an activity on the premises while working for an independent contractor. Generally an owner or occupier of land does not owe any duty to ensure that an independent contractor performs its work in a safe manner. Abalos v. Oil Dev. Co., 544 S.W.2d 627, 631 (Tex.1976). However a duty may arise when the employer retains “some control over the manner in which the independent contractor’s work is performed.” Redinger, 689 S.W.2d at 418.
Redinger is a case in which the supreme court held an employer of an independent contractor liable because the employer retained a right of control over the contractor’s work and did not use reasonable care in exercising that control. In that case Living, Inc. (Living) was the general contractor on a construction site. Bobby Baird was a subcontractor, and Louis Redinger was an employee of a plumbing subcontractor. Living’s superintendent, David Yargo, was preparing the site for a subcontractor to pour concrete. When the concrete arrived piles of dirt placed by Baird blocked the route to the work area. Yargo ordered Baird to move the dirt. As he was moving the dirt the blade of his tractor crushed Redinger’s finger. Redinger sued Living and Baird for damages resulting from the injury. The trial court rendered judgment for Redinger based on jury findings that Baird was fifty percent negligent and that Living was fifty percent negligent in allowing Baird to operate his tractor while Redinger was working in the area and also for failing to warn. The court of appeals reversed because of jury misconduct, and remanded the cause for a new trial. On appeal to the supreme court Living argued that because it was a general contractor it did not have a duty to Redinger, an employee of a subcontractor. The supreme court adopted the rule enunciated in the Restatement (Second) of Torts, which states:
One who entrusts work to an independent contractor, but who retains the control of any part of the work, is subject to liability for physical harm to others for whose safety the employer owes a duty to exercise reasonable care, which is caused by his failure to exercise his control with reasonable care.
*164RESTATEMENT (SECOND) OF TORTS § 414 (1977), quoted in Redinger, 689 S.W.2d at 418. Quoting the Restatement the Redinger court stated
This rule applies when the employer re^ tains some control over the manner in which the independent contractor’s work is performed, but does not retain the degree of control which would subject him to liability as a master. Restatement (Seoond) of Torts § 414, comment a (1965). 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. Id., comment c (1965). He may retain only the power to direct the order in which the work shall be done, or to forbid its being done in a manner likely to be dangerous to himself or others. Such a supervisory control may not subject him to liability under the principles of Agency, but he may be liable under the rule stated in this Section unless he exercises his supervisory control with reasonable care so as to prevent the work which he has ordered to be done from causing injury to others. Id, comment a (1965).
Redinger, 689 S.W.2d at 418.
The court held that Living owed a duty to Redinger to exercise supervisory control in a reasonable manner because it retained the power to direct the order in which the work was to be done and to forbid the work from being done in a dangerous manner. Redinger, 689 S.W.2d at 418. Living, through its superintendent, Yargo, ordered a subcontractor, Baird, to move the dirt. Yargo’s command showed that Living retained control over the subcontractor, who injured Redinger.
The crux of Chapa’s suit is that Koch, by having a safety man on the job site, assumed a duty of care to the employees of its subcontractor, H & S, and that it breached that duty. My disposition of this assertion is guided by the rules announced in Redinger along with the Texas Supreme Court’s recent decision in Hoechst-Celanese Corp. v. Mendez, 967 S.W.2d 354 (Tex.1998) (per curiam). In that case Celanese hired a subcontractor, Mundy, to do work at a Celanese facility. Jesse Mendez, a Mundy employee, climbed over a tool box to position himself on the floor between the tool box and a wall to help his co-workers remove conduit from a Cela-nese facility. After he completed the task he stepped on the tool box shelves to climb back over the tool box. He lost his footing and fell to the floor. Celanese contractually required Mundy to train its employees in Cela-nese’s safety-related rules and regulations, observe federal safety practices and regulations, and take all necessary precautions to keep its work areas free of safety hazards. The contract further provided that Celanese had the right to inspect Mundy’s facilities and operations at all times to ensure compliance with Celanese’s safety-related requirements. Mendez sued Celanese for negligence relating to his injuries, and the trial court granted summary judgment for Cela-nese. The appellate court reversed, and Ce-lanese appealed to the Texas Supreme Court. Mendez argued to the supreme court that Celanese, through its safety regulations, retained enough control over the manner and means by which Mundy employees performed their maintenance services to incur a duty to use reasonable care under section 414 of the Restatement.
The supreme court specifically addressed what duty, if any, is owed by a general contractor that promulgates, and retains the right to ensure compliance with, general safety guidelines. The Mendez court cited numerous appellate decisions which have held an employer does not incur a duty of care by requiring its contractor to comply with the employer’s standard safety practices and applicable laws. Contrary to these opinions the supreme court concluded that a general contractor which promulgates safety rules and requirements does assume a narrow duty of care, but that duty is commensurate with the control it retains over the independent contractor. Mendez, 967 S.W.2d at 357 (Emphasis added). The court further noted the importance of a nexus between an employer’s retained supervisory control and the condition or activity that caused the injury. Mendez, 967 S.W.2d at 357 (citing Clayton W. Williams, Jr., Inc. v. Olivo, 952 S.W.2d 523 (Tex.1997)). The scope of the duty is limited to the scope of the employer’s *165retained supervisory control. Mendez, 967 S.W.2d at 357. Applying this rule to the facts before it the Mendez court found that there was no evidence that the rules or requirements themselves unreasonably increased the probability and severity of injury, and, consequently, there was no basis for liability as a matter of law.
Thus the rule announced by the Mendez court is that when a general contractor/employer promulgates a safety rule or regime it assumes a narrow duty that any safety requirements and procedures it promulgated did not unreasonably increase, rather than decrease, the probability and severity of injury. Mendez, 967 S.W.2d at 357-58. If the rales or regulations do not unreasonably increase the probability and severity of injury no duty is violated. If, however, the general contractor is aware that a subcontractor is ignoring safety guidelines, or if the general contractor is involved in giving on-site orders or directing the manner of performance, then it may be charged with a heightened duty of care, to either take corrective measures or otherwise protect workers from hazards associated with their job. Mendez, 967 S.W.2d at 357 (citing Tovar v. Amarillo Oil Co., 692 S.W.2d 469, 470 (Tex.1985) (per curiam); Enserch Corp. v. Parker, 794 S.W.2d 2, 6 (Tex.1990); and Redinger, 689 S.W.2d at 418).
In the instant case Chapa argues Koch did not produce any summaiy judgment evidence to show it did not have the power to forbid work from being done in a dangerous manner. I disagree with this assertion. Koch’s evidence included the affidavit of John Mi-neo, its contract administrator. Mineo stated that Chapa was an employee of H & S. On the date Chapa was injured the work being performed by H & S on Koch’s premises was pursuant to a Field Service Contract. The work being performed by Chapa, as an H & 5 employee, was controlled and directed by H&S.
The Field Service Contract provided, in relevant part: “At all times the contractor [H 6 S] shall perform as an independent contractor and will assume sole responsibility for any action whatsoever of his employees.... ” At least one court has treated similar clauses as conclusive evidence that a general contractor did not retain control. See Hammock v. Conoco, 902 S.W.2d 127,130 n .1 (Tex.App.—Houston [1st Dist.] 1995, writ denied).
Chapa’s deposition testimony showed that any direction or control he received on the date he was injured when lifting the pipe came from an H & S foreman.
The majority relies on the following deposition testimony of Chapa and a co-worker, Les Fitch, to create fact issues in this ease. Chapa testified by deposition that the Koch “safety man” was on the job site to “tell us if we were to do something wrong, not to do it like that — not to go about it that way, to go about it a different way.” Chapa stated on the day he injured himself he asked his foreman whether it was safe to pick up the pipe with the intention that Koch’s on-site safety man would tell him that it would be unsafe to perform the questioned activity. Les Fitch testified that a Koch safety man was on-site to intervene if and when an independent contractor’s employees were not dong their job right.
I believe that Chapa’s and Fitch’s statements do not show a degree of control exercised or retained by Koch necessary to create any liability on its part for Chapa’s injuries. Even if Chapa is correct that Koch owed him a duty of care his evidence only showed, at most, that Koch had assumed the narrow duty articulated by the supreme court in Mendez■ — a duty that any safety requirements and procedures it promulgated did not unreasonably increase, rather than decrease, the probability and severity of injury. See Mendez, 967 S.W.2d at 357-58. Had Koch, for instance, assumed the duty to train and actually supervise H&S’ employees Koch may have assumed a heightened duty of care. Chapa’s and Fitch’s testimony is not evidence of an exercise of control over their work. Their comments are vague and do not indicate that Koch ever told them what to do, or that Koch had anything to do with the performance of particulars of Chapa’s contracted-for work. According to Redinger every general contractor has to tell the subcontractor what to do, in general terms, and may do so without subjecting itself to liability. Redinger, 689 S.W.2d at 418. This right does not create a duty, nor expand the scope of *166the duty beyond that as expressed in Mendez.
Chapa’s and Fitch’s comments that Koch would give instructions about how they should perform the work are likewise insufficient to create a fact issue. Chapa did not present any evidence establishing a nexus between any alleged instruction given by Koch, or any of Koch’s rules, and his injury. Therefore he failed to. establish evidence of a causal relationship between any occasional instruction and his injuries. In other words he did not present any evidence which showed that any of Koch’s rules, regulations, or procedures purportedly in effect at the time he received his injury, contributed in any way to his injury. There is no evidence to show that Koch ever sought to control those aspects of job performance on a day-today basis. No evidence showed Chapa’s task of lifting the pipe was an obvious danger which Koch had the right to control. Also, there is no evidence showing that any Koch employee ordered Chapa to lift the pipe which led to his injury.
The majority relies on Tovar v. Amarillo Oil Co., 692 S.W.2d 469, 470 (Tex.1985) (per curiam). In that case the supreme court held that an oil company breached a duty of care to a drilling contractor employee by not exercising its contractual right to suspend drilling operations when it became aware that the drilling contractor was violating a specific, critical safety provision in the drilling contract. See Tovar, 692 S.W.2d at 470. In the instant case Chapa offered no evidence to show that Koch was aware that H & S was violating any safety provision when he allegedly received his injury.
I would hold that Koch’s act of having a safety man on the premises did not impose a duty of care on itself to ensure that Chapa did nothing unsafe. Thus as a matter of law there is no basis for the majority to impose liability on Koch for the injury Chapa sustained. I would overrule point one and affirm the trial court’s grant of summary judgment for Koch.