Again, the Read case imposed on the employer of an independent contractor liability to a "third person," not to the independent contractor's employee. More recently, another Texas court of appeals has declined to adopt the "peculiar risk" exception in § 413. Arlen v. The Hearst Corp., 4 S.W.3d 326, 328 (Tex.App.-Houston [1st Dist.] 1999, writ denied). The Court finds no other Texas case applying the "peculiar risk" doctrine, nor do Plaintiffs cite any. While Texas does recognize the "inherently dangerous" exception to the rule of employer non-liability, another Texas appeals court has expressed the view that the employee of an independent contractor could not recover even in that context.
Haji's testimony offers no evidence that the Valentine defendants controlled any more than the right to order Arabu's work to start and stop, to inspect progress, or receive reports. See Bell v. VPSI, Inc., 205 S.W.3d 706, 715 (Tex. App.—Fort Worth 2006, no pet.) (stating that terms of independent contractor agreement that required contractor to keep leased van clean and maintained were not "inconsistent with the express provision that he [was] not an agent, servant, employee or co-employee" of the appellee company); Arlen v. Hearst Corp., 4 S.W.3d 326, 327-28 (Tex. App.—Houston [1st Dist.] 1999, pet. denied) (holding that employer did not have sufficient control over contractor newspaper deliverer when it "could only order that the work be started and stopped at a particular time, inspect the progress of the deliveries, and receive reports about the deliveries" and did not control how contractor delivered papers). Haji failed to produce summary judgment evidence that raises a genuine issue of material fact regarding the existence of a duty owed by the Valentine defendants to Arabu.
Thus, by neglecting to show how any control retained by Kirby led to the alleged injury-producing activity, vis a vis Rodriguez's comments and actions, Johnson failed to prove that Kirby owed her a duty. See Arlen v. Hearst Corp., 4 S.W.3d 326, 327 (Tex.App.-Houston [1st Dist.] 1999, pet. denied) (holding that Chronicle did not have type of specific control required to impose a duty under Redinger where Chronicle did not control how its independent contractor's employees delivered newspapers). Rodriguez did not sign a distributor agreement with Kirby.
Considering relevant case law, we decline to hold that the transportation of utility poles is a "peculiarly risky" or "inherently dangerous activity." Arlen v. The Hearst Corp., 4 S.W.3d 326, 328 (Tex.App.-Houston [1st Dist.] 1999, pet. denied) (declining to recognize the "peculiar risk" doctrine); Burton-Lingo Co. v. Armstrong, 116 S.W.2d 791, 796 (Tex.Civ.App.-Amarillo 1938, writ ref'd) (stating the hauling of "lumber and material with a motortruck is not intrinsically dangerous"). Further, Victoria Electric could not have reasonably contemplated the new risk created by the actions of Urban and Baze that was not inherent had the poles been transported in the "ordinary or prescribed way."
Considering relevant case law, we decline to hold that the transportation of utility poles is a "peculiarly risky" or "inherently dangerous activity." Arlen v. The Hearst Corp., 4 S.W.3d 326, 328 (Tex.App.-Houston [1st Dist.] 1999, pet. denied) (declining to recognize the "peculiar risk" doctrine); Burton-Lingo Co. v. Armstrong, 116 S.W.2d 791, 796 (Tex.Civ.App.-Amarillo 1938, writ ref'd) (stating the hauling of "lumber and material with a motortruck is not intrinsically dangerous"). Further, Victoria Electric could not have reasonably contemplated the new risk created by the actions of Urban and Baze that was not inherent had the poles been transported in the "ordinary or prescribed way."