Opinion
No. 05-17-00719-CV
03-26-2020
Jose HERNANDEZ, Appellant v. SUN CRANE AND HOIST, INC.; JLB Partners, L.P.; JLB Builders, L.L.C.; Auger Drilling, Inc. ; and D'Ambra Construction Corporation, Appellees
EN BANC OPINION
Jose Hernandez appeals the trial court's order granting summary judgment in favor of appellee JLB Builders, L.L.C. ("JLB") and ordering that Hernandez take nothing on his personal injury claims against JLB. On November 1, 2018, a panel of this court affirmed the trial court's judgment. Hernandez filed a timely motion for rehearing, which this court denied. Then, Hernandez filed a motion for en banc reconsideration.
Although the trial court's order also granted summary judgment in favor of defendant JLB Partners, L.P., Hernandez asserts in his appellate brief that he appeals "only the summary judgment rendered in favor of JLB Builders, L.L.C." The trial court's rulings regarding Hernandez's claims against the other defendants in this case are not at issue in this appeal.
Sitting en banc, we withdraw this court's November 1, 2018 opinion and vacate the judgment of that date. This en banc opinion is now the opinion of the court. We reverse the trial court's order, in part; otherwise affirm the trial court's order; and remand this case to the trial court for further proceedings. I. Background
At this court's request, the parties addressed the issue of this court's jurisdiction regarding en banc reconsideration during oral argument on Hernandez's en banc reconsideration motion. We conclude this court has jurisdiction to reconsider this case en banc. See Cruz v. Ghani , 593 S.W.3d 376, 382-83 (Tex. App.—Dallas 2019, order).
In October 2013, JLB entered into a "Subcontract Agreement" with Capform, Inc. regarding a Dallas construction project. In the Subcontract, JLB was described as "Contractor" and Capform was described as "Subcontractor." The Subcontract stated "[Capform], at its expense, shall furnish all of the supervision, labor, material, tools, equipment, insurance, services, shop drawings, samples, protection, hoisting, scaffolding, supplies, warrantees and all permits ... necessary to perform, construct, and complete, in the manner set out in the Contract Documents (defined below), the work described in ... this Agreement (the ‘Work’)" and is "solely responsible for the acts and omissions of its employees, agents and suppliers and for the acts and omissions of its sub-subcontractors and their employees, agents and suppliers."
The Subcontract provided (1) "[JLB] has no authority to direct, supervise or control the means, manner or method of construction of the Work"; (2) "[Capform] is responsible for the manner and means of accomplishing the Work"; (3) "[i]n the event of a conflict between the terms of this Agreement and other Contract Documents, [Capform] shall be governed by the provisions imposing the greatest duty on [Capform]"; (4) Capform "shall keep a representative on the job site at all times when [Capform's] work is in progress"; and (5) JLB "shall not issue or give any instructions, order or directions directly to employees or workers of [Capform] other than to the persons designated as the authorized representatives of [Capform]." Under the heading "Schedules," the Subcontract stated "[JLB] may, from time to time, provide work schedules or directions to [Capform], which work schedules or directions may from time to time be changed or modified in whole or in part by [JLB], and [Capform] agrees to comply with and perform according to the requirements of any then current work schedules or directions."
The parties attached the initial work schedule as Exhibit D to the Subcontract. That detailed schedule provided piecemeal, day-by-day timelines for completing the work. The next subsection under "Schedules" obligated Capform to check the work schedules and directions posted "on the punch-list board at the Project [site] ... on a daily basis and conform the Work according to the current work schedules or directions." And the Subcontract required that Capform "shall make [a] crane available at specific times designated by [JLB] for other trades which shall be placed on a schedule in the construction trailer by [JLB]. [JLB] shall not schedule crane at such times as to hamper [Capform's] scope and flow; however, no reasonable request for crane usage may be denied [JLB] from [Capform]. If there ever should be a question as to the validity of a ‘reasonable request,’ [JLB] shall dictate."
We note that JLB did not attach Exhibit D to its summary judgment evidence when it purported to attach the "[r]elevant excerpts from the contract." Hernandez attached the Subcontract and all exhibits thereto to his response.
Also, the Subcontract required Capform to submit and comply with an accident prevention and safety program addressing specified safety issues, including fall hazards. Exhibit K to the Subcontract, a three-page document titled "Safety Requirements," contained general safety requirements and obligated Capform to follow established law, but it also contained certain job-specific requirements, such as, "Subcontractor shall specifically abide by and strictly comply with the following: ... Use safety harnesses when working in areas not protected by handrails."
Under the heading "Safety," the Subcontract stated,
(1) Compliance. [Capform] shall fully comply with all laws, orders, citations, rules, regulations, standards and statutes with respect to occupational health and safety, accident prevention, and safety equipment and practices, including without limitation, OSHA standards and any accident prevention and safety program sponsored by Owner or [JLB]. Without limiting the foregoing, simultaneous with the execution hereof, Subcontractor shall complete, execute and deliver to [JLB] an Accident Prevention Plan in the form set forth on EXHIBIT J attached hereto, and shall at all times comply with the requirements of EXHIBIT J and EXHIBIT K attached hereto.
(2) Precautions and Programs.
(a) [Capform] shall be responsible for initiating, maintaining and supervising all safety precautions and programs in its Work and shall conduct inspections to determine that safe working conditions and equipment exist.
(b) [Capform] accepts sole responsibility for providing a safe place to work for its employees and for the employees of its sub-subcontractors and suppliers, and for the adequacy and required use of all safety equipment.
(c) Prior to the commencement of the Work, [Capform] shall submit its site specific safety program to [JLB]. [Capform's] safety program must specifically address, among other safety issues, scaffolding, fall hazards, trenching and shoring, as may be applicable.
JLB failed to attach Exhibit K to its summary judgment motion but Hernandez submitted it with his response.
On December 5, 2013, Hernandez was a member of a Capform work crew supervised by Capform foreman Alejandro Molina. Hernandez was injured on the project site when he fell from a "rebar cage" while attempting to place on the cage a concrete form suspended from a crane. He filed negligence and gross negligence claims against JLB.
JLB filed a traditional and no-evidence motion for summary judgment on both claims. JLB's motion stated it was based on two grounds: (1) JLB owed no duty to Hernandez because he was an employee of an independent contractor and JLB did not exercise actual control over his work or have a contractual right to control the means, methods, or details of his work, and (2) JLB did not proximately cause Hernandez's alleged injuries. The evidence attached to JLB's motion included excerpts from the Subcontract and depositions of Hernandez and Capform superintendent Juan Gutierrez, Molina's supervisor.
Additionally, in the argument section of its summary judgment motion, JLB asserted, "Plaintiff cannot provide any evidence to support the negligence elements of duty, breach, and causation." On appeal, JLB does not address the element of breach.
In those deposition excerpts, Gutierrez testified (1) he is "the one who's in charge of what work that Capform employees are doing on a daily basis"; (2) no one from JLB told him "how to install the braces" on the rebar cage that fell; and (3) "no one from JLB has to tell us how to do the job." Hernandez testified (1) on the day of the accident, Molina told Hernandez he would be setting the form on the cage; (2) it was not "windy" that day; (3) JLB did not give Hernandez any instructions regarding how to set the form or tell Hernandez to get up on the cage that fell; and (4) he did not see anyone from JLB "on this job on the day of the accident before it occurred." Also, Hernandez replied "I don't know" in response to questions regarding whether anyone from JLB knew bracing for the rebar cage had been attached to the ground with nails instead of rebar, whether Hernandez had any reason to believe JLB caused the accident, and whether Capform installed the braces on the cage.
Hernandez filed a response to JLB's summary judgment motion in which he asserted (1) the day of the accident "was a windy day"; (2) "[t]he windy conditions were not ideal for either working on the double stack tower, or for lowering the concrete form by crane"; (3) "[JLB's] supervisors were onsite and knew of the hazards which workers were facing"; (4) "the subcontractor had been instructed by the General Contractor, JLB Builders, to go ahead with efforts to get the rebar tower and concrete form in place in order to be able to pour concrete later that day"; (5) "[a]s the crane lowered the concrete form onto the tower, the tower either swayed, or was contacted by the concrete form" and "it was evident that none of the bracing ... could keep the double size rebar tower in place"; and (6) as the cage began to fall, Hernandez "scrambled desperately to jump free of the tower as it fell, but it landed on his legs, causing multiple fractures." Hernandez contended JLB "exercised full control of the schedule, including its decision to schedule the crane for different phases of the project," "had contractual authority to control the details of Capform's work, including accident prevention and safety," and "breached its duty to assure safe working conditions for Mr. Hernandez," which "lead directly" to his injuries. The evidence attached to Hernandez's summary judgment response included (1) affidavits of Hernandez and Molina; (2) the Subcontract; (3) JLB Partners, L.P.’s 170-page "Health & Safety Manual"; and (4) excerpts from depositions of Gutierrez and JLB corporate representative Paul Johnston.
Specifically, Hernandez contended in his summary judgment response,
[JLB] was the general contractor and controlling employer for work on the site, and was in charge not only of scheduling, and work progress at the site, but contractually required Capform and Mr. Hernandez to follow the safety rules and procedures in the JLB Health and Safety Manual. JLB Builders also required Capform to submit a separate safety program for JLB Builders’ approval, which JLB mandated include a "fall hazard" component. JLB Builders followed up on its contractual authority by instructing Capform at times concerning its work methods, conducting daily site inspections, conducting regular safety meetings that Capform was required to attend, and also attending Capform's meetings. JLB Builders also contracted with an outside provider to perform regular safety audits of the site, covering the smallest details of the project, and following up to instruct subcontractors such as Capform to make changes based on the audits.
....
Mr. Hernandez presented ample evidence that the JLB Defendants breached their standard of care by: failing to assure that the rebar tower was properly braced; failure to assure that proper braces were not [sic] used; insisting that work continue despite the presence of high winds, or failing to stop the work despite the presence of high winds; failing to warn Mr. Hernandez of the hazards associated with the inadequate bracing and high winds. There is also ample record evidence that the failure to adequately brace the tower was a contributing cause of the accident, and that requiring the work to continue in the high winds was a cause of the accident.
Johnston testified in his deposition (1) on the day of the injury, JLB supervisory employees were on the site; (2) JLB's supervisory employees "were aware that these towers could be knocked over or fall over if not properly braced or if a big, strong wind came along or if the crane hit them"; (3) JLB "inspects for safety every day"; and (4) JLB had "the authority to correct any unsafe condition," "the responsibility to enforce subcontractors’ compliance with safety and health requirements," and "an obligation to exercise reasonable care to prevent and detect violations at its construction sites" and "implement an effective system for promptly correcting hazards." Gutierrez testified in his deposition (1) he made the decision that "the form should be lifted and lowered to the cage and closed by [crew members]" rather than being placed on the cage by some other method; (2) he believes a "brace" on the rebar cage "came loose" from the ground because "a correct bracing was not used" by the foreman, Molina; and (3) he "explained to the foreman to use rebar," rather than nails, to brace the cage, but "they didn't do what I told them." Also, Gutierrez stated,
Q. Would it have been possible for the form to have been stood up, lifted just a short distance off the ground, then closed, then lifted and placed around the cage?
A. Yes. It's possible. And we tried to do that. But on windy days, it's difficult to place the cage over the rebar. There's a greater risk of knocking the rebar over.
....
Q. Did anyone you spoke to tell you it was too windy to place the form around the rebar while it was closed?
A. No.
....
Q. And isn't it true that if the form is open there is more surface that the wind can catch and—and blow on?
A. Correct.
....
Q. And it's—it's fair to say that no one from JLB told you how to install the braces?
A. No. As I said awhile ago, JLB has no reason to tell us how, unless they see something that's unsafe. They can tell me.
....
Q. And I think we've established that you weren't aware that nails were used to install the braces, right?
A. Correct.
Q. So if you didn't know, there would be no reason for JLB to know that?
A. Correct.
....
Q. Do you recall that it was windy that day?
A. I—I don't remember very well, but it's possible that there was some wind.
Q. If wind was making it difficult to set the column, is that something that either you or Mr. Molina had the right to stop until it was safer?
A. We could have, but—but I don't know if it was a wind that was over 45 miles an hour. And even the [crane] operator has the right to say no.
Q. In your experience, how does wind affect a crew's ability to set a column?
A. Well it affects it, as I said, if it's above 20, 25 miles an hour. If it's less, it affects something, but it's—but we can—have to continue work.
Hernandez stated in his affidavit (1) "JLB observed how we did our work in the days before I was injured" and (2) "[i]n the days before my injuries, I saw JLB supervisors looking at ... the wooden supports (or legs)" on the rebar cage in question.
Molina stated in his affidavit,
The bottoms of the bracing for the rebar cage that fell over were secured by driving long nails through the bottom into the ground. That is a normal and acceptable method of securing the bottom of the bracing, and one that we and other Capform personnel had used in other situations and on other jobsites.
....
On the day Mr. Hernandez was injured, it was windy. The wind speed, in my estimation was about 15–25 miles per hour. I personally saw the whole operation and what happened when the rebar cage fell. After the carpenters,
including Mr. Hernandez, opened the form, the crane operator moved the form toward the rebar cage. The momentum of the concrete form caused by the crane operator made the form strike the rebar cage and cause it to start falling over.... I yelled to the carpenters to jump off, but it was too late. They were tied onto the rebar cage with their safety harnesses.
II. Summary judgment
In two issues, Hernandez asserts the trial court erred by granting no-evidence and traditional summary judgment on his negligence claim against JLB. We agree.
Although the trial court's summary judgment addressed "all" of Hernandez's claims against JLB, Hernandez asserts no error on appeal regarding his gross negligence claim. Therefore, the issue of whether summary judgment was proper as to that claim presents nothing for this court's review. See Tex. R. App. P. 38.1(f), (i).
A. Standard of review
We review a trial court's decision to grant summary judgment de novo. Tarr v. Timberwood Park Owners Ass'n, Inc., 556 S.W.3d 274, 278 (Tex. 2018). To prevail on a traditional motion for summary judgment, the movant must show that no genuine issue of material fact exists and it is entitled to judgment as a matter of law. Id. ; TEX. R. CIV. P. 166a(c). The evidence raises a genuine issue of fact if reasonable and fair-minded jurors could differ in their conclusions in light of all the summary judgment evidence. Lam v. Phuong Nguyen , 335 S.W.3d 786, 789 (Tex. App.—Dallas 2011, pet. denied) ; Top Cat Ready Mix, LLC v. Alliance Trucking, L.P. , No. 05-18-00175-CV, 2019 WL 275880, at *2 (Tex. App.—Dallas Jan. 22, 2019, no pet.) (mem. op.). A defendant is entitled to summary judgment on a plaintiff's claim if it conclusively negates at least one element of the cause of action. See Sw. Elec. Power Co. v. Grant , 73 S.W.3d 211, 215 (Tex. 2002) ; see also Lam , 335 S.W.3d at 789 (explaining matter is conclusively established if reasonable people could not differ as to conclusion to be drawn from evidence).
A party seeking a no-evidence summary judgment must assert that no evidence exists as to one or more essential elements of the nonmovant's claim on which the nonmovant would have the burden of proof at trial. TEX. R. CIV. P. 166a(i). The burden then shifts to the nonmovant to raise a fact issue on the challenged elements. Id. We review a no-evidence summary judgment under the same legal sufficiency standard used to review a directed verdict. See id. ; Flood v. Katz , 294 S.W.3d 756, 762 (Tex. App.—Dallas 2009, pet. denied). A no-evidence motion for summary judgment is improperly granted if the nonmovant presented more than a scintilla of probative evidence to raise a genuine issue of material fact on the challenged elements. Ford Motor Co. v. Ridgway , 135 S.W.3d 598, 600 (Tex. 2004). More than a scintilla of evidence exists if the evidence "rises to a level that would enable reasonable, fair-minded persons to differ in their conclusions." Id. at 601. "[W]hen the evidence offered to prove a vital fact is so weak as to do no more than create a mere surmise or suspicion of its existence, the evidence is no more than a scintilla and, in legal effect, is no evidence." Id.
In reviewing a summary judgment of either type, we consider the evidence "in the light most favorable to the nonmovant, indulging every reasonable inference and resolving any doubts against the motion." Sudan v. Sudan , 199 S.W.3d 291, 292 (Tex. 2006) (per curiam) (quoting City of Keller v. Wilson , 168 S.W.3d 802, 823 (Tex. 2005) ). If a no-evidence motion for summary judgment and a traditional motion for summary judgment are filed that respectively assert the plaintiff has no evidence of an element of its claim and alternatively assert the movant has conclusively negated that same element of the claim, we address the no-evidence motion for summary judgment first. Ford Motor Co. , 135 S.W.3d at 600. Where, as here, the trial court's order granting summary judgment does not specify the grounds relied on, we must affirm if any of the summary judgment grounds are meritorious. Cunningham v. Tarski , 365 S.W.3d 179, 186 (Tex. App.—Dallas 2012, pet. denied).
B. Applicable law
To prevail on a negligence claim, a plaintiff must establish a legal duty, a breach of that duty, and damages proximately caused by the breach. See Bustamante v. Ponte , 529 S.W.3d 447, 456 (Tex. 2017). Ordinarily, a general contractor does not owe a duty to ensure that an independent contractor performs its work in a safe manner. Lee Lewis Constr., Inc. v. Harrison , 70 S.W.3d 778, 783 (Tex. 2001). However, when the general contractor exercises some control over the manner in which the subcontractor's work is performed, he may be liable unless he exercises reasonable care in supervising the subcontractor's activity. Id. ; see also Redinger v. Living, Inc. , 689 S.W.2d 415, 418 (Tex. 1985). The general contractor's duty of care is commensurate with the control it retains over the independent contractor's work. Lee Lewis Constr. , 70 S.W.3d at 783. A general contractor can retain the right to control an aspect of an independent contractor's work or project so as to give rise to a duty of care to that independent contractor's employees in two ways: by contract or by actual exercise of control. Id.
General supervisory control that does not relate to the activity causing the injury is not sufficient to create a duty. Gonzalez v. VATR Constr. LLC , 418 S.W.3d 777, 785 (Tex. App.—Dallas 2013, no pet.). Thus, merely exercising or retaining a general right to recommend a safe manner for the independent contractor's employees to perform their work is not enough to impose a duty. Id. ; see also Dow Chem. Co. v. Bright , 89 S.W.3d 602, 611 (Tex. 2002) ("[M]ere promulgation of safety policies does not establish actual control."); Koch Refining Co. v. Chapa , 11 S.W.3d 153, 156 (Tex. 1999) (per curiam) (explaining that requiring independent contractor to "observe and promote compliance with federal laws, general safety guidelines, and other standard safety precautions [does] not impose an unqualified duty of care on [an employer] to ensure that [an independent contractor's employees do] nothing unsafe"). In addition, there must be a nexus between a general contractor's retained supervisory control and the condition or activity that caused the injury. Hoechst-Celanese Corp. v. Mendez , 967 S.W.2d 354, 357–58 (Tex. 1998) (per curiam). The right to control must be more than a general right to order work to stop and start, or to inspect progress. Coastal Marine Serv. of Tex., Inc. v. Lawrence , 988 S.W.2d 223, 226 (Tex. 1999) (per curiam). The supervisory control must relate to the activity that actually caused the injury and grant the general contractor at least the power to direct the order in which work is to be done or the power to forbid it being done in an unsafe manner. Id.
In order to have actual control, a general contractor "must have the right to control the means, methods, or details of the independent contractor's work to the extent that the independent contractor is not entirely free to do the work his own way," and the "right to control the work must extend to the ‘operative detail’ of the contractor's work." Union Carbide Corp. v. Smith , 313 S.W.3d 370, 375 (Tex. App.—Houston [1st Dist.] 2009, pet. denied) (quoting Ellwood Tex. Forge Corp. v. Jones , 214 S.W.3d 693, 700 (Tex. App.—Houston [14th Dist.] 2007, pet. denied) ). "A possibility of control is not evidence of a ‘right to control’ actually retained or exercised." Hernandez v. Hammond Homes, Ltd. , 345 S.W.3d 150, 155 (Tex. App.—Dallas 2011, pet. denied) (quoting Coastal Marine , 988 S.W.2d at 226 (explaining that evidence plaintiff would have followed safety measures and avoided injury if defendant had required them was no evidence of actual control)). A general contractor has actually exercised control of a premises when the general contractor knew of a dangerous condition before an injury occurred and approved acts that were dangerous and unsafe. Dow Chem. , 89 S.W.3d at 609 (citing Lee Lewis Constr. , 70 S.W.3d at 784 ).
The two elements of proximate cause are cause in fact and foreseeability. Bustamante , 529 S.W.3d at 456. Cause in fact is established when the act or omission was a substantial factor in bringing about the injuries and, without it, the harm would not have occurred. Id. Harm is foreseeable if a person of ordinary intelligence should have anticipated the danger created by an act or omission. Bos v. Smith , 556 S.W.3d 293, 303 (Tex. 2018). The exact sequence of events need not be foreseeable, but the conduct must be sufficiently similar to give the defendant notice of the general nature of the danger. Id.
C. Analysis
Hernandez contends the trial court erred by granting no-evidence and traditional summary judgment on his negligence claim because the evidence shows JLB owed a duty to keep him safe, breached that duty by "permitting and instructing Capform to work under dangerous conditions," and thereby proximately caused his injuries. Hernandez argues JLB's duty was based on both contractual control and the exercise of actual control. Additionally, as he had in his motion for panel rehearing, Hernandez notes in his motion for reconsideration en banc that this court's November 1, 2018 opinion failed to address two cases pertaining to subcontractor control and predating that opinion: Arredondo v. Techserv Consulting & Training, Ltd. , 567 S.W.3d 383 (Tex. App.—San Antonio 2018, pet. pending), and Morales v. Alcoa World Alumina L.L.C. , No. 13-17-00101-CV, 2018 WL 2252901 (Tex. App.—Corpus Christi–Edinburg May 17, 2018, pet. denied) (mem. op.). 1. Duty based on actual exercise of control
Although Arredondo and Morales involved the same legal principles applicable in this case and support our conclusions below, neither this opinion nor our decision to reconsider this case en banc is dependent on those cases. In determining whether en banc reconsideration is warranted, we are not limited to considering only the bases urged by appellant's en banc reconsideration motion. See Tex. R. App. P . 49.7 ("While the court has plenary power, a majority of the en banc court may, with or without a motion, order en banc reconsideration of a panel's decision."). The original panel's analysis omits any mention of (1) the Subcontract provisions described above regarding schedule control and mandatory safety harness use; (2) Johnston's testimony that JLB supervisory employees were on-site on the day of the accident and knew the cage could fall over in the event of strong wind or improper bracing; (3) Hernandez's testimony that he saw JLB supervisors looking at the cage's bracing prior to the accident; and (4) Molina's statements that the wind speed was 15–25 miles per hour on the day of the accident and Hernandez was told to jump, but was tethered to the cage by his safety harness.
Those omissions demonstrate that the original panel's opinion represents a serious departure from precedent in the review of no-evidence summary judgment cases and therefore warrants en banc review under Texas Rule of Appellate Procedure 41.2 to "secure or maintain uniformity of the court's decisions." Tex. R. App. P. 41.2 ; see In re V.V. , 349 S.W.3d 548, 606 (Tex. App.—Houston [1st Dist.] 2010, pet. denied) ; see also Kennamer v. Estate of Noblitt , 332 S.W.3d 559, 571 (Tex. App.—Houston [1st Dist.] 2009, pet. denied) (Keyes, J., dissenting) (stating en banc review was warranted because the panel "reads City of Keller as requiring it to weigh the evidence for itself and to determine whether reasonable people could differ with its own judgment," "misapplies the summary judgment rule in a way that ... distorts summary judgment practice within the jurisdiction of this Court," and "wrongfully encourages parties to file summary judgment motions on fact issues as to which there is conflicting evidence in the hope that this Court, following its own precedent, will determine that no reasonable person could disagree with its own determination of disputed facts, transforming summary judgment practice from a means of disposing of cases that present only legal issues to a means of trying material fact issues by selected proofs submitted to the court").
Hernandez contends JLB owed him a safety duty based on actual control because JLB exercised "precisely the type of detailed, hands-on control contemplated" in Lee Lewis Construction and Morales . JLB responds,
[T]o establish actual control, the evidence must be such that the general contractor or property owner was so involved in the work being performed that it can be said to have approved the dangerous act leading to injury.... There is no such evidence here. In fact, Capform's supervisor specifically testified that JLB did not tell him how to brace the tower the day of Appellant's injury and did not approve the way in which it was done. Appellant Hernandez himself testified that JLB did not give him any instructions on how he was to set the form or platform on the day of the accident, and could not even identify any way in which JLB, who did not even have anyone present the day of the accident, was negligent in connection with the accident.
(citations omitted).
In Lee Lewis Construction, the supreme court upheld a jury's finding that a general contractor was liable for the death of an independent contractor's employee who fell from a ten-story building when his safety support system failed. Lee Lewis Constr. , 70 S.W.3d at 782. The supreme court focused on the evidence showing the general contractor assigned a superintendent "the responsibility to routinely inspect the ninth and tenth floor addition to the south tower to see to it that the subcontractors and their employees properly utilized fall protection equipment." Id. at 784. Further, the supreme court noted the evidence demonstrating the superintendent personally witnessed and approved of the specific fall-protection systems used by the independent contractor. Id. In that case, the supreme court concluded the evidence was "more than scintilla of evidence that [the general contractor] retained the right to control fall-protection systems on the job site." Id.
Morales involved a plaintiff injured in an industrial accident while employed by a contractor, Turner. See Morales , 2018 WL 2252901, at *1. Turner was under contract with Alcoa to provide maintenance and repair services at an Alcoa alumina refining facility. Morales contended Alcoa negligently failed to ensure that all of the "process liquor," a chemical solution, was cleared out of a pipe, called a "riser," before giving the Turner crew orders to begin their work. Also, Morales alleged Alcoa had actual knowledge that the riser "was not isolated" from the liquor flow. Id. When Turner employees began their work, hot liquor sprayed out of the riser, burning Morales. Id. The trial court granted summary judgment in favor of Alcoa on Morales's negligence claims and Morales appealed. The court of appeals reversed, concluding the evidence raised a fact issue concerning whether Alcoa exercised control over the manner in which the work was performed. The court stated (1) the work Turner was hired to do "necessarily entails the unbolting of flanges"; (2) the evidence showed Alcoa required Turner to perform that task according to instructions contained in the "Standard Work Instruction form," a twelve-page Alcoa document containing detailed guidelines on "how Alcoa's contractors must perform flange breaks,"; (3) "[m]oreover, it is undisputed that [Alcoa] exercised actual and exclusive control over the verification process, including the proper flushing and draining of the risers, and that the Turner crew relied on [Alcoa's] performance of this activity"; and (4) "[a]ccordingly [Alcoa] exercised ‘some control’ over the ‘operative details’ of ‘the work.’ " Id. at *10 ; see also Enserch Corp. v. Parker , 794 S.W.2d 2, 6 (Tex. 1990) (concluding fact question regarding control was raised where contract gave general contractor "the right to order work changes in the nature of additions, deletions, or modifications" and general contractor provided specific procedure manual, frequently visited site, and supervised subcontractor's employees).
Here, we are presented a different cluster of factors but one that reveals a fact issue nonetheless. In this case, JLB's Johnston testified (1) JLB "inspects for safety every day"; (2) on the day Hernandez was injured, JLB supervisory employees were on the site; and (3) JLB's supervisory employees "were aware that these towers could be knocked over or fall over if not properly braced or if a big, strong wind came along or if the crane hit them." The mere presence of a JLB safety employee (or employees) would not create sufficient control for JLB to have owed a duty. See Koch , 11 S.W.3d at 157 ("We conclude that a premises owner, merely by placing a safety employee on the work site, does not incur a duty to an independent contractor's employees to intervene and ensure that they safely perform their work."). But there is evidence JLB retained control over the daily schedule, the order in which the work was to be done, the mandatory use of safety harnesses, and when the crane would be on-site. And some evidence suggests there was sufficient wind that day to have made the work more dangerous and JLB knew of the wind and the increased danger. Thus, we conclude there is more than a scintilla of evidence that JLB owed Hernandez a duty arising from actual exercise of control. See Lee Lewis Constr. , 70 S.W.3d at 784 (concluding evidence supported actual control where onsite superintendent overseeing mandatory use of fall-protection equipment witnessed and approved of contractor's fall-protection systems); Morales , 2018 WL 2252901, at *10 (concluding evidence raised fact issue regarding duty where owner provided performance guidelines and controlled draining process necessary to contractor's work); see also Hoechst-Celanese , 967 S.W.2d at 357–58. Additionally, we conclude reasonable and fair-minded jurors could differ in their conclusions regarding JLB's actual exercise of control. See Lee Lewis Constr. , 70 S.W.3d at 782–84 ; Morales , 2018 WL 2252901, at *10 ; Hoechst-Celanese , 967 S.W.2d at 357–58 ; see also Lam , 335 S.W.3d at 789. Therefore, the trial court erred to the extent it granted summary judgment in JLB's favor based on lack of duty arising from actual exercise of control. In light of that conclusion, we need not address contractual control.
We reject Justice Bridges's suggestions that this opinion will encourage general contractors to "completely distance themselves from any efforts to assure safety on their work sites." We do no more than address "all" admitted evidence and conclude the trial court—on these specific, unique facts—incorrectly granted summary judgment. See City of Keller , 168 S.W.3d at 810–11 (beginning with the propositions that the relevant inquiry is "fact specific" and is based on the evidence jurors heard).
2. Breach and proximate cause
Hernandez contends JLB breached its duty of care to him because it "did not exercise reasonable care in supervising the subcontractor's activity" and "[i]n fact, ... insisted on Capform employees continuing to conduct a dangerous activity in dangerous conditions." Also, he asserts there was "ample evidence in the record demonstrating that [JLB's] decisions were an actual and foreseeable cause of the incident." He argues (1) "[b]ut for JLB's insistence that work continue under dangerously windy conditions, [he] would not have fallen"; (2) "[a]s a result of [JLB's] negligence, [he] fell from the tower and sustained serious injuries"; and (3) he "attempted to jump free of the tower as it fell, but it landed on his legs."
Based on the same evidence described in the duty analysis above, we conclude there is more than a scintilla of evidence that (1) JLB breached its duty of care by not exercising reasonable care in supervising Capform's activity, see Lee Lewis Constr. , 70 S.W.3d at 783 (stating that when general contractor exercises some control over manner in which subcontractor's work is performed, he may be liable unless he exercises reasonable care in supervising subcontractor's activity), and (2) JLB's act or omission proximately caused Hernandez's injury; see Guevara v. Ferrer , 247 S.W.3d 662, 666–67 (Tex. 2007) (explaining that evidence establishing sequence of events that provides strong, logically traceable connection between event and condition suffices to support causation finding). Additionally, under the traditional summary judgment standard of review described above, we conclude reasonable and fair-minded jurors could differ in their conclusions regarding breach and proximate cause. See Lee Lewis Constr. , 70 S.W.3d at 783 ; Guevara , 247 S.W.3d at 667. Therefore, the trial court erred to the extent it granted summary judgment in JLB's favor based on lack of breach or proximate cause. See Lam , 335 S.W.3d at 789 ; Ford Motor Co. , 135 S.W.3d at 601.
III. Conclusion
We decide Hernandez's two issues in his favor. We reverse the portion of the trial court's order granting summary judgment in favor of JLB on Hernandez's negligence claim, otherwise affirm the trial court's order, and remand this case to the trial court for further proceedings consistent with this opinion.
Although the dissent addresses the evidence omitted from the original panel's opinion, the dissent's analysis in reaching its "no-evidence" conclusions disregards our obligation under the applicable standard of review to consider the evidence "in the light most favorable to the nonmovant, indulging every reasonable inference and resolving any doubts against the [summary judgment] motion." Sudan , 199 S.W.3d at 292 (quoting City of Keller , 168 S.W.3d at 823 ). The inferences indulged in this opinion's analysis are proper and cannot be rejected merely because they conflict with the dissent's own determination of disputed facts. See id.
Bridges, J., dissenting joined by Myers, Whitehill, Schenck, and Evans, JJ.
Whitehill, J., dissenting from en banc reconsideration joined by Bridges, Myers, Schenck, and Evans, JJ. DISSENTING OPINION
Dissenting Opinion by Justice Whitehill
I agree with and join Justice Bridges's dissenting opinion. I write separately because the case was not enbancworthy in the first place.
I. THE EN BANC CRITERIA
Rule 41.2(c) succinctly states Texas's judicial policy regarding en banc consideration: "[it] is not favored and should not be ordered unless necessary to secure or maintain uniformity of the court's decisions or unless extraordinary circumstances require en banc consideration." TEX. R. APP. P. 41.2(c).
Hernandez's motion doesn't mention the Rule 41.2(c) en banc standard, much less attempt to satisfy it. He argues only that the panel erred, and for support he relies on two unremarkable and highly distinguishable cases from sister courts. (Justice Bridges's dissent gives those two opinions, Arredondo and Morales , the attention they deserve.) Alleged conflicts with sister courts meet neither en banc criterion.
I agree with the majority that we are not bound by a movant's failure to address the Rule 41.2(c) criteria. But such a failure can be, and often is, a sign that the criteria are absent. And those criteria are absent in this dispute over whether a general contractor owed a legal duty to its independent subcontractor's injured employee.
The majority opinion posits that the panel opinion represented a "serious departure" from unspecified "precedent" governing review in no-evidence summary judgment appeals. But the majority identifies no conflict between the panel opinion's statement of the law and any prior precedent from this Court, nor does it contend that the panel opinion erroneously stated the applicable substantive law. Instead, the majority concludes that the panel erred by holding that Hernandez adduced no evidence of the essential element of duty. That is merely a disagreement over whether certain pieces of evidence raise a genuine issue of material fact—the very definition of error correction not rising to the level of extraordinary circumstances that would warrant en banc consideration.
Granting en banc reconsideration here for no apparent reason consistent with the en banc standard will encourage other litigants to file en banc motions in disregard of Rule 41.2(c) when they don't like panel opinions or the denial of their panel rehearing motions. See Cruz v. Ghani , 593 S.W.3d 376 (Tex. App.—Dallas 2019, pet. denied) (en banc). But setting pragmatic considerations aside, we should apply Rule 41.2(c) according to its plain language and deny Hernandez's en banc motion.
II. CONCLUSION
Because we shouldn't have granted en banc reconsideration in this case, I respectfully dissent from the majority's contrary decision.
Bridges, Myers, Schenck, and Evans, JJ., join this dissenting opinion.
DISSENTING OPINION
Dissenting Opinion by Justice Bridges
I respectfully dissent from the Court's en banc opinion and judgment because application of controlling and long-standing precedent confirms that the trial court did not err in granting the traditional and no-evidence summary judgment motion of Sun Crane and Hoist, Inc., JLB Partners L.P., and JLB Builders, L.L.C., and ordering that Hernandez take nothing on his claims.
As the majority points out, there must be a nexus between a general contractor's retained supervisory control and the condition or activity that caused an injury. Hoechst-Celanese Corp. v. Mendez , 967 S.W.2d 354, 357–58 (Tex. 1998). Despite this acknowledgement, the majority then retreats from any effort to anchor the claim in this case to any act of the general contractor. Instead, it eliminates the nexus requirement altogether; abandoning any analysis of contractual control, it fashions a new argument even the appellant is unwilling to make—that a "cluster of factors" signals "actual" control of the manner and means of the work Hernandez performed and thus constituted the means of his injury. Ignoring that neither the "cluster" nor any of its constituent parts have any demonstrable place in the proximate cause of Hernandez' injury, the majority cites a series of cases that reject both the majority's reasoning and its result.
In support of its actual control analysis, the majority cites not a single case that supports its position and cites only cases supporting this dissent. The majority opinion abandons the issue of contractual control and concludes a fact issue as to JLB's actual control is raised by JLB's retention of control over (1) the daily schedule, (2) the order in which work was to be done, (3) the mandatory use of safety harnesses, and (4) the timing of a crane's presence on-site. However, the majority makes no attempt to show the nexus between JLB's retention of control and Hernandez' injury. See id. The majority simply makes Hernandez' argument for him, asserting without support that its "cluster of factors" relate to Hernandez' injury and establish even a scintilla of evidence.
There is no argument or legal analysis regarding scheduling in Hernandez' original brief or in his motion for rehearing.
The majority opinion throws in "safety harness" language despite the fact that any discussion of safety harnesses would be appropriate only under a contractual-control analysis. There is no evidence of JLB's actual control relative to Hernandez' use of a safety harness on the day of the accident. Under supreme court precedent, a contractual requirement that the subcontractor must comply with specific safety procedures gives rise to only a narrow duty of care—"a duty that any safety requirements and procedures it promulgated did not unreasonably increase, rather than decrease, the probability and severity of injury." Hoechst-Celanese Corp. v. Mendez , 967 S.W.2d 354, 358 (Tex. 1998) (per curiam). There is no evidence that requiring the use of safety harnesses unreasonably increased the probability and severity of injury. On its face, requiring the use of "safety harnesses" seems unlikely to make construction work more dangerous. But more to the point, the majority cites no evidence that this contractual requirement unreasonably increased the probability and severity of injury to Capform's workers generally or Hernandez in particular. The only possibly relevant evidence mentioned in the opinion is Molina's affidavit testimony: "I yelled to the carpenters to jump off, but it was too late. They were tied onto the rebar cage with their safety harnesses." But that doesn't show that the safety-harness requirement unreasonably increased the probability and severity of injury to Capform's workers. See McGill v. Minyard's Food Stores, Inc. , 417 S.W.2d 309, 312 (Tex. App.—Dallas 1967, writ ref'd n.r.e.) ("[T]he mere happening of an accident is no evidence at all of negligence or proximate cause."). It doesn't even show that Hernandez' harness caused or worsened his specific injury, since there's nothing to show that he would not have suffered similar (or worse) injuries had he not been wearing a harness. There is no evidence that any party's safety procedures required a jump from a falling rebar tower.
The majority's argument is, at each step, in direct conflict with Texas Supreme Court authority. In particular, the Texas Supreme Court has long held that neither a property owner nor a general contractor takes on the liability for injuries to a subcontractor's employee by insisting that the subcontractor adhere to safety protocols meant to reduce the risk of injuries to that subcontractor's employees. See Dow Chem. Co. v. Bright , 89 S.W.3d 602, 611 (Tex. 2002) ; Mendez , 967 S.W.2d at 357–58. It has also held that neither a property owner nor a general contractor becomes liable in respondeat superior for "actually" controlling the manner and means by which work is done by being present at a job site or, while present, expressing concern about a possible safety risk to a subcontractor. See Dow , 89 S.W.3d at 608 ; Koch Ref. Co. v. Chapa , 11 S.W.3d 153, 156 (Tex. 1999) (per curiam). Any contrary rule would increase workplace injuries and serve only to increase resulting litigation. Despite this supreme court precedent, a majority of this Court now holds that general contractors are liable for generally requiring that their subcontractors follow a safety protocol. General contractors may read this opinion as leaving them no option but to completely distance themselves from any efforts to assure safety on their work sites and wash their hands of safety standards altogether.
Whether we frame the issue in this case in terms of whether JLB exercised contractual or actual control over the work performed by Hernandez, this case is controlled by the Texas Supreme Court's decisions in Dow Chemical Co. v. Bright , 89 S.W.3d 602 (Tex. 2002) and Hoechst-Celanese Corp. v. Mendez , 967 S.W.2d 354 (Tex. 1998) (per curiam).
The majority takes umbrage at our panel opinion for failing to address two cases that were not cited in any brief on original submission: Arredondo v. Techserv Consulting & Training, Ltd. , 567 S.W.3d 383 (Tex. App.—San Antonio 2018, pet. pending), and Morales v. Alcoa World Alumina L.L.C. , No. 13-17-00101-CV, 2018 WL 2252901 (Tex. App.—Corpus Christi–Edinburg May 17, 2018, pet. denied) (mem. op.). These cases formed the basis of appellant's motion for en banc rehearing. The majority then goes on to state that neither its opinion nor the decision to reconsider this case en banc depended on those cases.
Dow forecloses any possible basis for the claims in this case that appellants might be held liable under a theory of actual control merely because they directed the schedule and sequence by which the subcontractor's work was to be done. In Dow , an employee of an independent contractor hired to perform construction work for Dow attempted to hold Dow liable for injuries sustained on the job site. Dow , 89 S.W.3d at 605. The employee asserted that Dow exercised actual control by retaining authority over the timing and sequence of work being done by the various independent contractors. Id. at 609. The court concluded there was no evidence in the record that Dow was involved in any manner with controlling the timing and sequence of the employee's work and deciding which of the independent contractor's employees should perform what task and at what point in time. Id. The employee did present evidence that the timing and sequence of the independent contractor's work was indicated on a job efficiency matrix prepared and submitted by the independent contractor and that, should the need arise, Dow and the independent contractor could mutually agree to a modification. Id. However, the court concluded this was not evidence that Dow controlled the timing and sequence of the erection of the pipe at issue and the employee's carpentry work in the area that resulted in the injury at issue. Id. The court concluded, therefore, that Dow did not exercise actual control. Id.
Likewise, Mendez forecloses any claim in this case based on any claim that appellants were actually controlling the details of the work. In Mendez , an employee of an independent contractor hired to perform various maintenance services at the Celanese plants sustained serious injuries when he fell from the shelf of a large metal tool box he was using as a ladder. Mendez , 967 S.W.2d at 355. The employee presented expert deposition testimony that, under the specific circumstances giving rise to his injury, the use of a ladder would have been safer and more appropriate than a toolbox. Id. at 358. However, the court determined this was no evidence that Celanese's requirement that tools and implements be used in the manner for which they were intended was generally dangerous or unreasonable. Id. In conclusion, the court determined there was no evidence that Celanese exercised unreasonable care in insisting that the independent contractor comply with its safety standards. Id.
In this case, none of the so-called "cluster of factors" related to JLB's involvement in scheduling work, prioritizing work, or determining when equipment would be available establishes JLB controlled the timing and sequence of the events that caused Hernandez's injury or that JLB's actual control played any role in causing his injuries. See Dow , 89 S.W.3d at 609. Controlling precedent likewise confirms that an obligation to perform work according to a general schedule does not make the general contractor liable for injuries to a subcontractor's employees.
BACKGROUND
In October 2013, JLB entered into a Subcontract Agreement with Capform, Inc. regarding a construction project in Dallas. The subcontract provided JLB would pay Capform $11,583,000 for the work. On December 5, 2013, Alejandro Molina was Capform's foreman and Hernandez was a member of the work crew under Molina's supervision. Hernandez was injured when he fell from a "rebar cage" while attempting to place on the cage a concrete form suspended from a crane. According to Molina's affidavit, the crane operator "made the form strike the rebar cage and cause[d] it to start falling over." Hernandez was injured in the fall, and he later sued JLB and asserted negligence claims.
In the Subcontract, JLB was listed as "Contractor," and Capform was listed as "Subcontractor." Among other things, the Subcontract provided the following:
[Capform], at its expense, shall furnish all of the supervision, labor, material, tools, equipment, insurance, services, shop drawings, samples, protection, hoisting, scaffolding, supplies, warrantees and all permits, licenses and fees (as applicable) necessary to perform, construct, and complete, in the manner set out in the Contract Documents (defined below), the work described in EXHIBIT A of this Agreement (the "Work").
The Subcontract further provided that Capform was responsible for furnishing all equipment required to perform the Work including, but not limited to, ramps, ladders, scaffolds, hoisting and other equipment. An entire subsection of the Subcontract related to "Safety" and provided, among other things, the following:
(1) Compliance. [Capform] shall fully comply with all laws, orders, citations, rules, regulations, standards and statutes with respect to occupational health and safety, accident prevention, and safety equipment and practices, including without limitation, OSHA standards and any accident prevention and safety program sponsored by Owner or [JLB]. Without limiting the foregoing, simultaneous with the execution hereof, Subcontractor shall complete, execute and deliver to [JLB] an Accident Prevention Plan in the form set forth on EXHIBIT J attached hereto, and shall at all times comply with the requirements of EXHIBIT J and EXHIBIT K attached hereto.
(2) Precautions and Programs.
(a) [Capform] shall be responsible for initiating, maintaining and supervising all safety precautions and programs in its Work and shall conduct inspections to determine that safe working conditions and equipment exist.
(b) [Capform] accepts sole responsibility for providing a safe place to work for its employees and for the employees of its sub-subcontractors and suppliers, and for the adequacy and required use of all safety equipment.
(c) Prior to the commencement of the Work, [Capform] shall submit its site specific safety program to [JLB]. [Capform's] safety program must specifically address, among other safety issues, scaffolding, fall hazards, trenching and shoring, as may be applicable.
Regarding "Staffing," the Subcontract provided that Capform was "solely responsible for the acts and omissions of its employees, agents and suppliers and for the acts and omissions of its sub-subcontractors and their employees, agents and suppliers." The Subcontract further required Capform to keep a representative on the job site at all times when the work was in progress and provided that JLB "shall not issue or give any instructions, orders or directions directly to employees or workers of [Capform] other than to the persons designated as the authorized representatives of [Capform]."
Also, as the majority points out, the subcontract contained a production schedule set out in Exhibit D. Exhibit D contains a detailed description of the proposed work and allocates a number of days to each aspect of the work. The production schedule lists a series of steps in the construction process such as "Columns to B2" and assigns "12 days" to complete that step. All steps are given a range from one to thirty-one days. Nothing in the schedule assigns a timeframe for completion of less than a day. A series of lines beneath a calendar heading graphically represent the timeline of the proposed production schedule.
JLB filed a traditional and no-evidence motion for summary judgment in which it argued JLB did not owe a duty to Hernandez because he was an employee of an independent contractor and JLB did not have control over Hernandez. In particular, JLB argued it did not have a contractual right to control the means, methods, or details of Hernandez' work and did not exercise actual control over Hernandez' work. In support of its motion, JLB provided excerpts of the deposition of Juan Gutierrez, Capform's superintendent, who testified "no one from JLB has to tell us how to do the job," and Gutierrez is "the one who's in charge of what work that Capform employees are doing on a daily basis." Gutierrez testified he would have stopped the work if he thought anything was unsafe.
JLB also attached to its motion excerpts from Hernandez' deposition in which Hernandez testified JLB did not give him any instructions on how to set the form or the platform on the day of the accident. Hernandez testified Gutierrez was "supervisor," Molina was the foreman of the crew, and both Gutierrez and Molina worked for Capform. Molina told Hernandez he would be setting the platform on the day of the accident. Hernandez testified JLB did not tell him to set the platform or to get up on the tower that fell. Hernandez testified Molina taught him how to set the form or platform on the day of the accident, and JLB had no involvement in teaching him how to set the forms or platforms. Hernandez testified he did not see anyone from JLB "on this job on the day of the accident before it occurred." Hernandez replied, "I don't know" when asked whether he had any reason to believe JLB caused the accident. When asked what the weather was like on the day of the accident, Hernandez said, "It was cloudy" and, when asked if it was windy, Hernandez answered, "No."
Attached to the response was the transcript of the deposition of Paul Johnston, JLB's chief operating officer. Johnston testified there were JLB employees "on the site on the day that [Hernandez] was injured, but there was no one there in the area where [Hernandez] was injured." Johnston agreed that JLB's employees who were of a supervisory level "were aware that these towers could be knocked over or fall over if not properly braced or if a big, strong wind came along or if the crane hit them."
This statement was a response to a hypothetical posed by Hernandez' counsel and not testimony of actual facts surrounding the underlying accident.
The question is whether the evidence created a genuine fact issue as to whether JLB owed a duty to Hernandez to keep him safe and breached that duty by permitting and instructing Capform to work under dangerous conditions.
Our review of the evidence concerning negligence begins with duty. Lee Lewis Constr., Inc. v. Harrison , 70 S.W.3d 778, 783 (Tex. 2001). Ordinarily, a general contractor does not owe a duty to ensure that an independent contractor performs its work in a safe manner. Id. (citing Elliott–Williams Co. v. Diaz , 9 S.W.3d 801, 803 (Tex. 1999) ). A duty does arise, however, if the general contractor retains some control over the manner in which the independent contractor performs its work. Id. The general contractor's duty of care is commensurate with the control it retains over the independent contractor's work. Id. A general contractor can retain the right to control an aspect of an independent contractor's work or project so as to give rise to a duty of care to that independent contractor's employees in two ways: by contract or by actual exercise of control. Id. The majority concludes the record contains sufficient evidence JLB exercised actual control to defeat summary judgment. I disagree.
A contractor may assume a duty to its subcontractor's employees by actually exercising control over the subcontractor's work. See Coastal Marine Serv. of Tex. v. Lawrence , 988 S.W.2d 223, 226 (Tex. 1999). That means controlling the manner in which the work is done, such that the contractor is not entirely free to do the work its own way. Koch Ref. Co. , 11 S.W.3d at 155–56. But there is no evidence JLB actually controlled Capform's work on this occasion.
As the majority notes, a general contractor, "merely by placing a safety employee on the work site, does not incur a duty to an independent contractor's employees to intervene and ensure that they safely perform their work." Id. at 157. There must be an actual exercise of control, and that control "must relate to the condition or activity that caused the injury." Clayton W. Williams, Jr. v. Olivo , 952 S.W.2d 523, 528 (Tex. 1997).
The majority concludes that the record raises a fact issue on actual control in two ways. First, it says, "there is evidence JLB retained control over the daily schedule, the order in which the work was to be done, the mandatory use of safety harnesses, and when the crane would be on-site." But these matters all concern JLB's supposed contractual right of control of when, not how, work was done. They provide no support for the premise that JLB personnel were that day actually controlling Capform's work activities at all, let alone the specific activities that led to Hernandez' accident. Second, the majority asserts that "some evidence suggests there was sufficient wind that day to have made the work more dangerous and JLB knew of the wind and the increased danger." This is stretching the facts to make an argument for appellant. The majority uses the wind as a factor in reversing the trial court, but the facts before the trial court were as follows: JLB Partners' chief operating officer, Paul Johnston, was asked by Hernandez' counsel if JLB's supervisory employees "were aware that these towers could be knocked over or fall over if not properly braced or if a big, strong wind came along or if the crane hit them." Johnston answered, "Yes." Hernandez, in his response to JLB's motion for summary judgment, made frequent reference to "high winds," citing Johnston's quoted testimony.
We must look at what evidence was actually presented to the trial court. There is no evidence that JLB personnel knew either that it was windy or, more importantly, that the wind was exposing Capform's workers to increased danger. There was no evidence JLB knew of a "strong wind" at the time of the accident or that JLB supervisors ordered any specific work to be performed. Instead, this testimony was entirely hypothetical and would have been the same if JLB's officer had been asked whether earthquake, tornado, or other overwhelming force had been applied to make the rebar tower fall. Further, there is no evidence that JLB employees were present when this work was going on or knew that wind was making the work unusually hazardous. Indeed, the evidence suggests it was not wind but an impact with a crane that caused the tower to fall.
There was no evidence that the wind caused the crane to hit the rebar tower or that JLB required Capform to work in windy conditions. In fact, Gutierrez testified it "was possible there was some wind" on the day of the accident; he did not know "if it was a wind that was over 45 miles an hour"; the wind would affect a crew's ability to set a column if it was "above 20, 25 miles an hour"; but "[i]f it's less, it affects something, but it's – but we can – have to continue to work." There is no evidence JLB required the work to continue in windy conditions or that JLB was the party making the crew "have to continue to work." Thus, Gutierrez's testimony was that Capform would continue to work when winds were twenty-five miles per hour or less. Further, Hernandez himself, when asked at his deposition if it was windy on the day of the accident, answered "No." When Hernandez' affidavit was filed, there was no mention of wind in the affidavit.
As the majority acknowledges, actual exercise of control over safety can be shown with evidence that the general contractor personally witnessed and approved the safety procedures used by the subcontractor's employees. See Lee Lewis Constr., Inc. , 70 S.W.3d at 783–84. But there is no such evidence in this case. Nor is there evidence that JLB controlled the methods or operative details of Capform's work. See Koch Ref. Co. , 11 S.W.3d at 155. Here, there is simply no evidence that JLB had any actual control over preparing the worksite for the job Capform's work crew was doing when Hernandez was injured. Moreover, there is no evidence that any JLB employee told Capform or Hernandez how to do the task that Capform was doing when Hernandez got hurt.
The evidence showed Hernandez and Gutierrez, both Capform employees, testified JLB did not tell them how to perform any of the work that led to the rebar cage accident. Instead, Capform supervisor Gutierrez testified, "[N]o one from JLB has to tell us how to do the job." Hernandez testified JLB did not give him any instructions on how to set the form on the platform on the day of the accident.
Hernandez testified Gutierrez was "supervisor," and Molina was the foreman of the crew, they both worked for Capform, and Molina told him he would be setting the platform on the day of the accident. Hernandez testified JLB did not tell him to set the platform or to get up on the tower that fell. Hernandez testified he did not see anyone from JLB "on this job on the day of the accident before it occurred." Thus, there was no evidence that JLB exercised actual control that related to the injury the alleged negligence caused or that JLB specifically approved the dangerous act. See Dow , 89 S.W.3d at 607–09. Under the facts and circumstances of this case, I would conclude the trial court did not err in granting summary judgment for JLB.
Accordingly, I would not reach the breach and proximate cause issues addressed by the majority.
Myers, Whitehill, Schenck, and Evans, JJ., join this dissenting opinion.