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Mar 16, 2021 | Lara Albright

Do I Have a Duty to Ensure Safe Performance of My Independent Contractor’s Work?

By: Lara Albright

Like the answer to most legal questions, it depends.  In November 2020, just before the holiday season, the Texas Supreme Court was presented with issue of whether, in the personal injury context, an electric utility owed a duty to ensure the safe performance of its independent contractor’s work.  In AEP Texas Central Company and T&D Solutions, LLC v. Marta Arredondo, ___ S.W.3d ___, No. 19-0045, 2020 WL 6811465 (Tex. Nov. 20, 2020), the Court held that “the utility did not retain control over the pertinent details of the contractor’s work and thus owed no duty that would otherwise flow from such control.”

In the case, an electric utility, AEP Texas Central Company (“AEP”), entered into a two-year contract with T&D Solutions, LLC (“T&D”), wherein T&D was to supply AEP “all supervision, labor, equipment and specified materials necessary to perform underground distribution line construction and/or maintenance services, underground distribution line construction and/or maintenance bid projects, and storm restoration services” on an as-needed basis.  The contract designated T&D as “an independent contractor solely responsible for the supervision, direction, and control of its employees and Subcontractors.”  AEP also entered into a contract with TechServ Consulting and Training Ltd. (“TechServ”) to inspect the work of AEP’s contractors, which included T&D. 

Pursuant to their contract, AEP issued a work order that instructed T&D to remove a stub pole located in a municipal right-of-way on the edge of Plaintiff Marta Arredondo’s property.  The Court described the stub pole as “a utility pole from which electric wires have been removed and the top portion cut off.”  The removal of the stub pole included “pulling it out of the ground and returning it back to the yard, and filing the hole up with dirt.”  T&D removed the stub pole and certified the job was complete on December 2, 2013.  About a week later, TechServ also certified the job was complete.

Over seven months later, on July 30, 2014, the plaintiff was injured while mowing her lawn “when she stepped into a hole approximately two-and-a-half feet deep in the area where the pole had been removed.”  The plaintiff claimed the grass in that area had grown tall because the stub pole had been left on the ground for some period of time before being hauled away.

Plaintiff sued AEP and T&D asserted causes of action for negligence, negligence per se, and gross negligence.  AEP filed a motion for summary judgment arguing that it owed not duty to ensure that T&D performed its work in a safe manner.  The plaintiff responded, claiming AEP owed her a duty in light of AEP’s contractual right to control T&D and the inherently dangerous nature of the work T&D contracted to perform.

The Supreme Court held that AEP owed no duty to ensure that T&D performed its work in a safe manner.  The Court reiterated the general rule:  “one who employs an independent contractor has no duty to ensure that the contractor performs its work in a safe manner.”  However, there are exceptions to this rule.  In particular, the Court looked at its adoption of Section 414 of 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.

Section 414 duty arises when the right to control the independent contractor’s action extends to the means, methods, or details of the independent contractor’s work, such that the independent contractor is not entirely free to do the work in his own manner.  Additionally, the right to control must relate to the condition or activity that caused the plaintiff’s injury. 

In keeping with these concepts, the Texas Supreme Court recognizes no duty of care by virtue of the employer’s general right to order the work started and stopped; to direct when and where the work was done; to require that work be done by a certain time; or to control activities that had nothing to do with the resulting injury.

In this case, the plaintiff argued two provisions in AEP’s contract with T&D gave AEP the right to control T&D’s work and triggered a duty for AEP to use reasonable care in exercising control.  First, plaintiff relied upon a contract provision that stated:  “T&D shall have an authorized representative at the Site to whom AEP may give instructions at all times when Work is being performed.”  However, the Court concluded this provision set forth no requirements as to the means, methods, or details of T&D’s work; therefore, it did give not rise to a duty for AEP to ensure T&D performed its work in a safe manner.

Second, plaintiff relied upon a contract provision that stated:  “[W]hen Work is performed on private property, T&D shall use its best efforts to arrange for the completion of Work to be with the least inconvenience practicable to the owner.  Work performance on private property shall be done as expeditiously as possible and the premises restored immediately.”  As with the first provision, the Court concluded this provision did not give rise to a duty.  It acknowledged the provision related to T&D’s scope of work when private property is involved and required a particular result; but, the Court again focused on the fact that the provision did not indicate how T&D should accomplish that result (such as using a particular type of fill, equipment, or technique).  Thus, the general rule applied, and AEP did not owe a duty.

The plaintiff also argued AEP owed a duty with respect to T&D’s work because of the inherently dangerous nature of T&D’s work.  In this context, an inherently dangerous activity is “one in which the danger stems from the activity itself rather than the manner of performance” or activities that are “dangerous in their normal, nondefective state.”  The Court held that, although some electrical work can qualify as inherently dangerous, T&D’s work that allegedly caused the plaintiff’s injury did not fall into that category.  It noted that T&D’s scope of work was to remove a stub pole and restore the property.  The danger to third persons stemmed, not from the nature of the work itself, but from its improper performance.  Thus, no duty arose.

The takeaway for contractors is to continue being cognizant of the degree of control that it has and and that it asserts over its independent contractors’ means, methods, or details of the work (whether exhibited in practice and/or authorized via contract) and whether the nature of the work is inherently dangerous.  These aspects can create liability for the contractor unintentionally.