ABC Greater Houston Chapter - Build Houston Magazine, October/November 2021

October/November 2021 BuildHoustonOnline.com 19 Background JLB Builders was the general contractor on a high- rise construction project, and subcontracted the concrete work to a subcontractor who employed Jose Hernandez. After Hernandez was injured in a jobsite accident involving the collapse of a rebar tower, he sued the general contractor and others bringing negligence and gross negligence claims. The general contractor moved for traditional and no-evidence summary judgment, arguing among other things that it owed no duty to Hernandez as an employee of an independent contractor because the general contractor neither exercised actual nor contractual control over the means, methods, and details of the subcontractor’s work. Hernandez responded to the general contractor’s motion by offering “evidence that [the general contractor’s] supervisors were on-site at all times (though none were in the area where Hernandez was injured when the accident occurred), conducted daily safety inspections, inspected [the subcontractor’s] work, and had the authority and responsibility to require subcontractors to modify practices [the general contractor] believed to be unsafe.” 2 The trial court granted summary judgment for the general contractor, but the Dallas Court of Appeals reversed, finding fact issues “regarding whether (1) [the general contractor] exercised actual control and thus owed Hernandez a duty, (2) [the general contractor] breached that duty, and (3) [the general contractor’s] breach proximately caused Hernandez’s injuries.” 3 The Texas Supreme Court’s Decision Reversing the Dallas Court of Appeals, the Texas Court of Appeals upheld the trial court ’s summary judgment dismissing Hernandez’s negligence claims against the general contractor. The Court reiterated that under Texas law, while ordinarily “one who employs an independent contractor has no duty to ensure that the contractor safely performs its work,” there is an exception when “the employer retains some control over the manner in which the contractor performs the work that causes the damage.” 4 The Court stated that an employee of a subcontractor like Hernandez “can prove the requisite control by establishing that the general contractor either [1] actually controlled the manner in which the subcontractor performed its work or [2] had a contractual right to do so.” 5 On the issue of whether the general contractor actually controlled the subcontractor’s employees’ work, the Court held that no evidence indicated that the general contractor exercised actual control over the details of the injury-causing work. In so holding, the Court reasoned that the following did not qualify as actual control by the general contractor over the injury-causing work: o The general contractor’s control over the overall timing and sequence of work being performed by its various independent subcontractors; oT he presence of the general contractor’s safety employees and supervisors at the work site; o The general contractor’s requirements that workers at the project use safety harnesses; oH aving the opportunity to observe the safety hazard that led to the employee’s injury without evidence that the general contractor’s employees actually were aware of the safety hazard. Although not necessary for the disposition of the case, the Court also concluded that the general contractor did not have the contractual right to control the subcontractor’s injury-causing work. In reaching this conclusion, the Court noted the following terms of the subcontract with Hernandez’s employer and found that these provisions did not give rise to contractual control over the injury-causing work: In a recent case, the Texas Supreme Court addressed the scope of the general contractor’s duty of care to its subcontractors’ employees on the project site. In JLB Builders, L.L.C. v. Hernandez, 1 the Court upheld the trial court’s summary judgment in the general contractor’s favor and dismissed the negligence claims of an injured subcontractor employee on the grounds that the general contractor did not retain actual or contractual control over the injured subcontractor employee’s work.

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