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Jun 14, 2021

Texas Supreme Court Revisits Legal Duty and Right of Control in Construction Context

By: Michelle Robberson

The Texas Supreme Court recently considered the existence of legal duty in a construction injury case—that is, whether the general contractor on a construction project owed such a duty to a concrete subcontractor’s employee who was injured on the job.  JLB Builders, L.L.C. v. Hernandez, __ S.W.3d __, 2021 WL 1822947 (Tex., May 7, 2021).  The Court held that the GC did not exercise actual control over the subcontractor’s work and that the contract between the GC and subcontractor did not grant the GC any retained right of control.  Thus, the GC owed no legal duty, and it was entitled to summary judgment.

As a general rule, a general contractor has no duty to ensure that its independent contractor safely performs its work.  However, Texas courts recognize an exception to this rule when the GC retains some control by contract or actually exercises control over the manner in which the contractor performs the work that causes the damage.  In either case, the control must relate to the condition or activity that caused the injury, and it must extend to the means, methods, or details of the independent contractor’s work.

JLB Builders, L.L.C. was the GC on a high-rise construction project, and it subcontracted the concrete work to Capform, Inc. through a contract executed in October 2013.  Jose Hernandez, a Capform employee, was injured on the job on December 5, 2013.

Hernandez was erecting a concrete column at the time of the accident.  He was standing on a “rebar tower” to guide the placement of a concrete form, which was suspended from a crane and being lifted over and placed around the tower.  Either from wind or from the concrete form’s contact, the tower detached from the ground and fell, landing on Hernandez’s legs as he tried to jump off.  At the time of the accident, Hernandez was supervised by Molina, a Capform foreman, and a Capform superintendent, Gutierrez, also was present at the site when Hernandez was injured.

The trial court granted summary judgment to JLB on grounds it did not retain or exercise control and did not owe a legal duty.  The Dallas Court of Appeals, sitting en banc, reversed the summary judgment, finding a fact issue existed on actual exercise of control.

The Texas Supreme Court reversed the Court of Appeals, concluding no fact issues existed.  As to actual exercise of control, the Court of Appeals held that Hernandez raised a fact issue because of evidence that JLB controlled Capform’s daily schedule and the order in which the work was to be done, required use of safety harnesses, and dictated when the crane would be on-site.  The Court of Appeals also relied on testimony from JLB’s chief operating officer that JLB inspects for safety every day, JLB supervisors were on-site the day of the accident, JLB supervisors were aware that the towers could fall over if they were improperly braced, hit by a strong wind, or hit by a crane, and there was sufficient wind on that day to have made the work more dangerous and JLB knew of the wind and the increased danger.

The Texas Supreme Court held this evidence was not sufficient to show JLB exercised any control over the timing or sequence of Capform’s employees’ work.  Indeed, the superintendent testified that Capform had complete control over its employees and that JLB gave them no instructions on how to do the job.  Hernandez testified that Capform’s foreman told him what work to do and how to do it on the day of the accident, and no one from JLB gave him any instructions that day.  The Court found no evidence that JLB provided any instructions regarding the placement of the concrete form or securing the rebar tower. 

Also, JLB’s having safety requirements and a supervisor on-site was not enough to trigger a duty.  The evidence showed the JLB personnel were not in the area of Capform’s work, and Hernandez testified he saw no JLB employees that day.  JLB’s requirement for safety harnesses could not be said to increase the probability or severity of injury—in fact, the converse was true.  And Hernandez did not challenge the efficacy of the harnesses themselves.  Thus, even viewing the plaintiff’s evidence in its most favorable light, it was legally insufficient to raise a fact issue on actual exercise of control.  As a result, JLB did not owe Hernandez any legal duty under this theory.

As to retaining a contractual right of control, the Court of Appeals had not addressed the issue in light of its ruling on actual exercise of control; the Texas Supreme Court addressed the issue in the interest of judicial economy. 

The contract required Capform to furnish all supervision of its employees and designated Capform “solely responsible for the acts and omissions of its employees.”  The contract provided JLB had “no authority to direct, supervise or control the means, manner or method of construction of the Work” and that Capform was “responsible for the manner and means of accomplishing the Work.”  The Court said, “these provisions clearly do not confer a right to control.”

The contract further made Capform “responsible for initiating, maintaining and supervising all safety precautions and programs in its Work,” obligated Capform to “conduct inspections to determine that safe working conditions and equipment exist,” and provided that Capform “accepts sole responsibility for providing a safe place to work for its employees.”  That JLB required certain safety practices, including a fall protection program, safety certifications, and safety plan for the crane, did not give rise to a duty from JLB to Capform’s employees unless those procedures “unreasonably increase, rather than decrease, the probability and severity of injury.”  Hernandez failed to explain how these procedures increased the probability and severity of injury to him.

Hernandez could not identify any contractual provisions governing how Capform should perform the work relating to placement of the concrete form, including securing the rebar tower.  Thus, the Court saw no indication that JLB’s supervisory control extended to the means and methods of Capform’s work or related to the condition or activity that caused the injury.  Accordingly, as a matter of law, JLB’s contract did not provide a basis for imposing a duty of care on JLB to ensure the safe performance of Capform’s work.  The Court reversed the Court of Appeals and reinstated the summary judgment in favor of JLB.