Opinion
No. 01-03-00806-CV
Opinion issued August 31, 2006.
On Appeal from Probate Court No. 2, Harris County, Texas, Trial Court Cause No. 321,751-401.
Panel consists of Justices NUCHIA, JENNINGS, and HIGLEY.
MEMORANDUM OPINION
Marco Antonio Deleon Molina ("Molina") was accidently killed while working at a construction site. Molina was an employee of a subcontractor at the site, Hernandez Concrete, Inc. Molina's estate and his parents ("appellants") filed a wrongful death and survival action against numerous defendants with connections to the construction project. Appellants now appeal summary judgments rendered by the trial court in favor of the site's general contractor, Donald Wesley Sowell Construction, Inc. d/b/a DWS Construction Inc. ("DWS"); the premises owner, Three Properties, Ltd.; and other affiliated entities and individuals.
The arguments raised by appellants on appeal can be reduced to the following dispositive issues: (1) whether appellants offered more than a scintilla of evidence to show that DWS, as a general contractor, owed a duty of care to Molina, (2) whether Texas Civil Practice and Remedies Code section 95.003 is preempted by federal law, (3) whether a no-evidence summary judgment was properly granted pursuant to section 95.003 in favor of Three Properties, and (4) whether the summary judgments granted in favor of several other appellees were appropriately granted.
Tex. Civ. Prac. Rem. Code Ann. § 95.003 (Vernon 2005).
We affirm.
Factual and Procedural Background
Three Properties owned a 565-unit apartment complex in Houston. It hired DWS, as the general contractor, for a "rehab" construction project at the complex. In turn, DWS subcontracted with Hernandez Concrete to do concrete repair at the site. Molina was an employee of Hernandez Concrete. While working at the construction site, Molina's head was crushed by the front loader that he was operating. Molina died from his injuries the following day.
Alleging negligence, Molina's estate and his parents — who are the appellants in this case — sued Francisco Hernandez, individually and d/b/a The Hernandez Concrete Company, DWS, Three Properties, DSD Development, Inc. ("DSD"), and other affiliated corporate entities. As part of their claims, appellants asserted that DWS and Three Properties "conducted their work at the project in a negligent manner because they violated the duties which they owed [Molina] to exercise the proper level of care in their performance of the work which constituted the project and to provide [Molina] a safe workplace." Appellants alleged that Three Properties's and DWS's "violations of OSHA rules and regulations" constituted negligence per se. To support its claim for exemplary damages, appellants asserted a claim of gross negligence. Appellants also claimed that the corporate defendants were liable for the actions of one another based on the theory of joint enterprise.
The record indicates that Hernandez Concrete did not carry workers' compensation insurance. Appellants non-suited Hernandez and his company, and no appellate issues are raised with regard to those defendants.
Appellants also sued DWS Construction Company, Inc. and DWS Construction Inc. Although they listed these entities as appellees, appellants raise no appellate arguments with respect to either of them.
"OSHA" is the acronym for Occupational Safety and Health Administration.
Additionally, appellants sued Donald Sowell and his wife Beatrice Sowell. The Sowells own all shares of DSD, the general partner of Three Properties, and of Platinum S, L.L.C, its limited partner. Appellants also sued Michael Sowell, who with his father Donald, owns DWS. Appellants alleged that the three Sowells were individually liable based on theories of fraud and alter ego.
DWS filed a motion for summary judgment asserting that it could not be held liable for Molina's death because, inter alia, it had no right to control Hernandez Concrete's work. Appellants responded by offering the contract between DWS and Three Properties to show that DWS had the contractual right to control Hernandez Concrete's work.
DSD and Michael Sowell also sought summary judgment, pointing out that, as pled by appellants, their liability was dependent on the other corporate defendants' liability. DSD and Michael asserted that, because the corporate defendants were entitled to summary judgment, they likewise were entitled to summary judgment. Additionally, the motion for summary judgment contained a no-evidence challenge to appellants' fraud claim.
Three Properties filed a no-evidence summary judgment, asserting that, as the property owner, it was not liable as a matter of law pursuant to section 95.003. In their response to Three Properties's motion for summary judgment, appellants contended that section 95.003 is preempted by federal law, "including OSHA requirements," in this case. In support of this contention, appellants offered a loan agreement between Three Properties and the City of Houston showing that Three Properties had obtained a loan from the city to purchase the apartment complex where Molina was injured. The loan agreement provided that funding was through a federal community development grant program and required Three Properties to abide by federal law. Appellants contended that federal law required Three Properties to retain control of the construction work at the site and to insure the workers' safety.
The trial court granted the motions for summary judgment of Three Properties, DSD, Michael Sowell, DWS, and its affiliated entities. Following the granting of these motions, Donald and Beatrice Sowell filed a motion for summary judgment. The Sowells asserted that no evidence existed as to appellants' fraud and alter ego claims on which appellants sought to hold them individually liable. Alternatively, the Sowells argued that the alter ego claim was "moot" because the corporate defendants had been previously dismissed or non-suited. The trial court also granted the Sowells' motion for summary judgment. The trial court later signed a judgment making all orders for summary judgment final.
Appellants seek reversal of the summary judgments.
DWS's Motion for Summary Judgment
In their first issue, appellants contend that the trial court erred in granting DWS's motion for summary judgment on the ground that DWS had no right of control over Hernandez Concrete's work. Before we delve into the issue of DWS's control, however, we first must determine what type of motion for summary judgment DWS filed with respect to this issue.
A. Type of Motion for Summary Judgment
DWS did not express in its motion for summary judgment whether it was seeking a traditional summary judgment or a no-evidence summary judgment. On appeal, DWS contends that it filed a traditional motion for summary judgment. In contrast, appellants contend that DWS filed a no-evidence motion for summary judgment. Determining the type of motion filed is critical because the two forms of summary judgment are distinct, entail different burdens, and invoke different standards of review. Compare Tex. R. Civ. P. 166a(c), with Tex. R. Civ. P. 166a(i). A party moving for a traditional motion for summary judgment under rule 166a(c) has the burden to show that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c). A traditional movant also has the burden to prove all essential elements of its cause of action or defense as a matter of law. Id. By contrast, when a party moves for a no-evidence motion for summary judgment under rule 166a(i), the party must assert that there is no evidence of one or more essential elements of a claim or defense on which the nonmovant bears the burden of proof at trial. See Tex. R. Civ. P. 166a(i). The movant must specifically identify the elements as to which it claims there is no evidence. See id. The burden then shifts to the non-movant to produce evidence raising a genuine issue of material fact on the challenged element(s). See id.
DWS, DSD, Michael Sowell, and other defendants not part of this appeal, filed their respective motions for summary judgment in one instrument. For the analysis of appellants' first issue, we focus on that part of that instrument pertaining to DWS's motion for summary judgment on the issue of control to determine the type of motion filed by DWS.
Here, DWS's motion for summary judgment does not delineate whether it is a no-evidence or a traditional motion for summary judgment. The motion is unrevealing on its face, citing neither to rule of civil procedure 166a(c) nor to rule 166a(i). An initial reading of the motion reveals an amalgam of traditional and no-evidence language and argument.
The motion for summary judgment acknowledged that appellants claimed in their petition that DWS had a right to control the work of Hernandez Concrete. In this regard, the motion stated, "[T]here is no evidence to support the allegation that DWS had the right to control Hernandez [sic] work." The remainder of the motion read as though DWS intended the motion to present only a traditional summary judgment argument. Though it is peppered with the phrase "no evidence," a deeper reading of the motion, in conjunction with rule 166a, reveals that DWS also assumed the burden of proving, as a matter of law, that it owed no duty to Molina because it neither contractually nor actually controlled the subcontractor's work at the construction site. Thus, out of an abundance of caution, we will interpret the motion as presenting both no-evidence and traditional summary judgment arguments.
When a party moves for summary judgment under both rules 166a(c) and 166a(i), we first review the trial court's judgment under the no-evidence standard of rule 166a(i). Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004). Under that standard, appellants were required to produce summary judgment evidence raising a genuine issue of material fact to defeat the summary judgment. See Tex. R. Civ. P. 166a(i). A no-evidence summary judgment is improper if the respondent brings forth more than a scintilla of probative evidence to raise a genuine issue of material fact. Id.; Forbes Inc. v. Granada Biosciences, Inc., 124 S.W.3d 167, 172 (Tex. 2003). Less than a scintilla of evidence exists when the evidence is so weak as to do no more than create a mere surmise or suspicion of a fact. Forbes, 124 S.W.3d at 172. More than a scintilla of evidence exists if it would allow reasonable and fair-minded people to differ in their conclusions. Id. If appellants produced more than a scintilla of evidence that DWS had a right of control, only then do we analyze whether DWS's proof satisfied its Rule 166a(c) burden. See Ridgway, 135 S.W.3d at 600.
B. DWS's No-Evidence Motion for Summary Judgment
1. General Principles Governing Duty
To successfully prosecute a negligence cause of action, a plaintiff must show (1) a legal duty owed by the defendant to the plaintiff, (2) a breach of that duty, and (3) damages proximately caused by the breach. Lee Lewis Constr., Inc. v. Harrison, 70 S.W.3d 778, 782 (Tex. 2001). In most circumstances, a general contractor does not owe a duty to ensure that an independent contractor performs its work in a safe manner. Id. at 783; Elliott-Williams Co. v. Diaz, 9 S.W.3d 801, 803 (Tex. 1999). A duty may arise, however, when a general contractor retains some control over the manner in which the subcontractor's work is performed. Lee Lewis Const., 70 S.W.3d at 783; Elliott-Williams, 9 S.W.3d at 803. This principle is explained in section 414 of the Restatement (Second) of Torts, which the Supreme Court of Texas adopted in Redinger v. Living, Inc., 689 S.W.2d 415, 418 (Tex. 1985). Section 414 provides as follows:
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.
Restatement (Second) of Torts § 414 (1965).
In Lee Lewis Construction, the supreme court recognized that "[u]nder our decision in Redinger, a general contractor may owe a duty of reasonable care to a subcontractor's employee, and consequently may be liable for injury to that employee, if the general contractor retains control over part of the work to be performed. . . ." Lee Lewis Const., 70 S.W.3d at 783 (citing Redinger, 689 S.W.2d at 418). A party can prove a right to control by evidence of a contractual agreement that explicitly assigns the general contractor a right to control. See Dow Chem. Co. v. Bright, 89 S.W.3d 602, 606 (Tex. 2002). That is, a contract may impose control on a general contractor thereby creating a duty of care. Elliott-Williams, 9 S.W.3d at 804.
A general contractor's duty of care is commensurate with the control it possesses over the contractor's work. Lee Lewis Const., 70 S.W.3d at 783; Elliott-Williams, 9 S.W.3d at 803. More particularly, a general contractor may be liable for its independent contractor's acts if it has the right to control the means, methods, or details of the independent contractor's work. Elliott-Williams, 9 S.W.3d at 804. The right of control must extend to the "operative detail" of the independent contractor's work so that it is not free to do the work in its own way. Hoechst-Celanese Corp. v. Mendez, 967 S.W.2d 354, 356 (Tex. 1998). The control must relate to the injury that the negligence causes, and the contract must grant the contractor at least the power to direct the order in which work is to be done. Elliott-Williams, 9 S.W.3d at 804. It is not enough that the general contractor has the right to order work to stop and start, to inspect progress, or to recommend a safe manner for the independent contractor's employees to perform their work. See Bright, 89 S.W.3d at 607-08. "[M]erely 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 subject the [general contractor] to liability." Koch Refining Co. v. Chapa, 11 S.W.3d 153, 155 (Tex. 1999). That is, the retained right of control must be more than general or supervisory for liability to attach. Mendez, 967 S.W.2d at 356.
As recognized by the Elliott-Williams court, comment c to section 414 expounds on the degree of retained control required to create a duty:
[T]he employer must have retained at least some degree of control over the manner in which the work is done. It is not enough that he has merely a general right to order the work stopped or resumed, to inspect its progress or to receive reports, to make suggestions or recommendations which need not necessarily be followed, or to prescribe alterations and deviations. Such a general right is usually reserved to employers, but it does not mean that the contractor is controlled as to his methods of work or as to operative detail. There must be such a retention of a right of supervision that the contractor is not entirely free to do the work in his own way.
Restatement (Second) of Torts § 414 cmt. c (1965); Elliott-Williams, 9 S.W.3d at 804.
2. The Prime Contract
In response to DWS's motion for summary judgment, appellants contended that DWS owed Molina a duty of care because it had a contractual obligation to control Hernandez Concrete's work at the construction site. Specifically, appellants asserted that DWS had a contractual right of control that was derived from the prime contract between DWS and Three Properties, which appellants attached to its response.
Control may be proven in two ways: (1) a contractual right of control or (2) an exercise of actual control. Dow Chem. Co. v. Bright, 89 S.W.3d 602, 606 (Tex. 2002). Appellants did not allege that DWS had exercised an actual right of control.
We note that DWS attached evidence to its motion for summary judgment, including a copy of the subcontract between DWS and Hernandez Concrete. However, we do not consider evidence attached to a no-evidence motion for summary judgment unless it creates a fact issue. See Binur v. Jacobo, 135 S.W.3d 646, 651 (Tex. 2004); Scurlock v. Pennell, 177 S.W.3d 222, 113 (Tex.App.-Houston [1st Dist.] 2005, no pet).
The prime contract contained standard form provisions published by the American Institute of Architects. Appellants pointed to the following provisions as evidence that DWS possessed the requisite contractual control over Hernandez Concrete's work:
ARTICLE 3 CONTRACTOR
. . . .
3.3.1 [DWS] shall supervise and direct the Work using [its] best skill and attention. [DWS] shall be solely responsible for all construction means, methods, techniques, sequences and procedures and for coordinating all portions of the Work under the Contract,. . . .
The term "Work" was defined in the prime contract as follows:
[T]he construction and services required by the Contract Documents, whether completed or partially completed, and includes all other labor, materials, equipment and services provided or to be provided by the Contractor to fulfill the Contractor's obligations. The Work may constitute the whole or a part of the Project.
The term "Work" was defined in the prime contract as follows:
[T]he construction and services required by the Contract Documents, whether completed or partially completed, and includes all other labor, materials, equipment and services provided or to be provided by the Contractor to fulfill the Contractor's obligations. The Work may constitute the whole or a part of the Project.
3.3.2 [DWS] shall be responsible to [Three Properties] for acts and omissions of [its] employees, Subcontractors and their agents and employees, and other persons or entities performing portions of the Work for or on behalf of [DWS] or any of its Subcontractors.
. . . .
3.4.2 [DWS] shall enforce strict discipline and good order among [its] employees and other persons carrying out the Contract. [DWS] shall not permit employment of unfit persons or persons not skilled in tasks assigned to them.
. . . .
3.7.2 [DWS] shall comply with and give notices required by laws, ordinances, rules, regulations and lawful orders of public authority applicable to performance of the Work.
. . . .
ARTICLE 10 PROTECTION OF PERSONS AND PROPERTY
10.1.1 [DWS] shall be responsible for initiating, maintaining and supervising all safety precautions and programs in connection with the performance of the Contract.
10.2.1 [DWS] shall take all reasonable precautions for the safety of, and shall provide all reasonable protection to prevent damage, injury or loss to:
.1 employees on the Work and all other persons who may be affected thereby. . . .
Whether there is a contractual right of control is generally a question of law for the court. Elliott-Williams, 9 S.W.3d at 803. Our primary consideration when interpreting a contract is the parties' intent as expressed in the instrument. Id. As with any contract interpretation, we must not view these provisions in isolation, but consider them in the context of the contract as a whole. See Provident Life Accident Ins. Co. v. Knott, 128 S.W.3d 211, 216 (Tex. 2003). Viewing the contract in its entirety furthers the objective of giving effect to the written expression of the parties' intent. See Forbau v. Aetna Life Ins. Co., 876 S.W.2d 132, 133 (Tex. 1994). Thus, it is imperative to examine all provisions of the prime contract to place those provisions cited by appellants in proper context and to give effect to the intent of DWS and Three Properties when they entered into the agreement.
Here, the prime contract provides that it "shall not be construed to create a contractual relationship of any kind . . . between any persons or entities other than [Three Properties] and [DWS]." The contract required DWS to indemnify Three Properties for, inter alia, personal injury claims resulting from performance of "the Work" to the extent that such claims were caused by the negligence of DWS or its subcontractors. The prime contract also contemplated that DWS would enter into separate contracts with its subcontractors and directed DWS to require its subcontractors "to assume toward [DWS] all the obligations and responsibilities, including the responsibility for safety of the Subcontractor's work," which DWS had assumed toward Three Properties.
Considering them in the context of the prime contract as a whole, the provisions cited by appellants did not impose a contractual duty of care as claimed by appellants. The express language of the contract made clear that it governed only the relationship between DWS and Three Properties and served to allocate the rights and responsibilities between them exclusively. In this regard, the overarching purpose of the contract is revealed: to insulate Three Properties from tort liability and to create a duty of fiscal responsibility flowing from DWS to Three Properties for claims arising from the construction project.
When read in context, the cited provisions did not require DWS to retain control over the means, methods, or details of any subcontractor's work. Rather, they (1) required DWS to be responsible to Three Properties for Hernandez Concrete's work or its actions and (2) required DWS to exercise broad, supervisory powers over the work at the site. See Legros v. Lone Star Striping and Paving, LLC, No. 14-05-00088-CV, 2005 WL 3359740, at *2 (Tex.App.-Houston [14th Dist.] Dec. 6, 2005, no pet.) (mem. op.) (interpreting similar contract language not to establish contractual right of control over subcontractor's work, but, rather as establishing rights between premises owner and general contractor only); see also Elliott-Williams, 9 S.W.3d at 806 (concluding no contractual control created by prime contract because parties intended only to create financial responsibility flowing from general contractor to military and did not intend to impose control over subcontractor's work).
We recognize that the cited provisions found in article 10 are particularly salient because they pertain to control over safety practices for work performed on the construction project. The language found in these provisions required broad supervision of workplace safety and demanded only that DWS set minimum safety standards. "[T]he retention of a general right to recommend a safe manner for employees to perform their work does not create liability. To hold otherwise would work against public policy by discouraging owners and general contractors from implementing any safety regulations for fear of incurring liability." Legros, 2005 WL 3359740, at *3 (internal citation omitted).
"For the general contractor to be liable for negligence, its supervisory control must relate to the condition or activity that caused the injury." Clayton W. Williams, Jr., Inc. v. Olivo, 952 S.W.2d 523, 528 (Tex. 1997); see Exxon v. Tidwell, 867 S.W.2d 19, 23 (Tex. 1993) (emphasizing that "[t]he focus should be on whether Exxon had the right to control the alleged security defects that led to Tidwell's injury"). "This emphasis on the nexus between an employer's retained supervisory control and the condition or activity that caused the injury" results in the scope of the general contractor's duty toward a subcontractor's employee being limited to the scope of the general contractor's retained supervisory control. Mendez, 967 S.W.2d at 357 (emphasis omitted). "In sum, the employer's duty of care is commensurate with the control it retains over the contractor's work." Id.
Here, appellants alleged that DWS breached its duty of care to Molina by failing to do the following: (1) properly train Molina, or insure that he was already properly trained, in the safe operation of the front loader; (2) properly supervise Molina to insure that he was operating the front loader safely; (3) inspect the front loader to determine its safety; (4) prevent Molina from operating the front loader without assistance, including changing an attachment on the equipment; (5) stop or prevent a "dangerous activity in which Molina was engaged," i.e., the operation of the front loader; and (6) require Molina to wear a hard hat or other headgear.
The provisions found in article 10 of the prime contract imposed a broad duty on DWS to supervise safety and required only that DWS promulgate and enforce minimum safety standards. Such general safety requirements did not impose an unqualified duty of care on DWS to ensure that Hernandez Concrete employees did nothing unsafe. See id. at 357-58. That is, the record reveals no nexus between the broad duties imposed on DWS by the prime contract and appellants' specific allegations of negligence against DWS regarding Molina's operation of the front loader. Appellants have not alleged or shown that DWS implemented safety measures that caused Molina's injuries nor have they alleged or shown that DWS was aware that Hernandez Concrete engaged in unsafe practices. See Lee Lewis Constr., 70 S.W.3d at 784 (holding that general contractor has actually exercised control of premises when general contractor knew of dangerous condition before injury occurred and approved acts that were dangerous and unsafe); Mendez, 967 S.W.2d at 358 ("[A]n employer who is aware that its contractor routinely ignores applicable federal guidelines and standard company policies related to safety may owe a duty to require corrective measures to be taken or to cancel the contract."); Enserch Corp. v. Parker, 794 S.W.2d 2, 6 (Tex. 1990) (holding that Enserch's providing of book detailing exact procedures to be followed while working on pipeline and frequent visitation and supervision of contractor's employees by Enserch representatives created fact question about Enserch's right to control work); Redinger, 689 S.W.2d at 418 (holding general contractor liable who was present to observe danger and gave order causing plaintiff's injury).
In sum, because the prime contract, as a matter of law, did not require DWS to control the means, methods, or details of how Hernandez Concrete performed the work, the prime contract constituted no evidence that DWS owed Molina a duty to ensure that Molina's operation of the front loader was safe. 3. Conclusion Regarding DWS's Motion for Summary Judgment
In addition to the prime contract, appellants offered the deposition testimony of Michael Sowell, DWS's vice president, and John Webster, DWS's project manager. According to appellants, Sowell and Webster each testified that DWS had the right to control Hernandez Concrete's work. A review of the cited deposition testimony reveals that Sowell and Webster testified that DWS had a general right of control. Neither testified that DWS had the right to control the means, methods, or details of Hernandez Concrete's work. See Elliott-Williams Co. v. Diaz, 9 S.W.3d 801, 804 (Tex. 1999). Moreover, the subjective opinions of Sowell and Webster, without more, are not evidence that DWS had control over Hernandez Concrete's work. Appellants also offered the loan agreement between Three Properties and the City of Houston. In their reply brief, appellants clarified that the loan agreement was not offered to prove DWS's duty of care; rather, appellants offered it to show the standard of care owed by DWS.
Based on the summary judgment record and the applicable legal principles governing general contractor liability, we conclude that appellants did not offer more than a scintilla of evidence to show that DWS had a right to control Hernandez Concrete's work. We hold that the trial court properly granted DWS's no-evidence motion for summary judgment.
The trial court did not identify in its order the basis for granting DWS's motion for summary judgment. Because appellants did not produce more than a scintilla of evidence to show that DWS had a right of control, we need not analyze whether DWS successfully brought a traditional motion for summary judgment. See Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004).
We overrule appellants' first issue.
Negligence Per Se and Gross Negligence Claims Against DWS
DWS's summary judgment also applied to appellants' negligence per se claims, which were based on DWS alleged violations of federal law, including OSHA regulations, and to appellants' exemplary damages claim, which were based on alleged gross negligence. Appellants do not raise an issue on appeal as to the trial court's granting of summary judgment on the negligence per se or gross negligence claims, or otherwise specifically brief those issues. Thus, appellants waived any error with regard to those claims. See Jacobs v. Satterwhite, 65 S.W.3d 653, 655 (Tex. 2001) (citing San Jacinto River Auth. v. Duke, 783 S.W.2d 209, 209-10 (Tex. 1990)). To the extent that appellants assert that challenges to those claims are contained in their arguments relating to whether DWS owed a duty to Molina, they are inadequately briefed. See Tex.R.App.P. 38.1(h).
Three Properties's Motion for Summary Judgment
In their second and third issues, appellants challenge the trial court's granting of summary judgment in favor of Three Properties based on section 95.003 of the Civil Practice and Remedies Code. See Tex. Civ. Prac. Rem. Code Ann. § 95.003 (Vernon 2005). Section 95.003 provides as follows:
A property owner is not liable for personal injury, death, or property damage to a contractor, subcontractor, or an employee of a contractor or subcontractor who constructs, repairs, renovates, or modifies an improvement to real property, including personal injury, death, or property damage arising from the failure to provide a safe workplace unless:
(1) the property owner exercises or retains some control over the manner in which the work is performed, other than the right to order the work to start or stop or to inspect progress or receive reports; and
(2) the property owner had actual knowledge of the danger or condition resulting in the personal injury, death, or property damage and failed to adequately warn.
Id. A. Preemption by Federal Law
In their third issue, appellants assert that section 95.003(2), providing that "the property owner had actual knowledge of the danger or condition resulting in the personal injury, death, or property damage and failed to adequately warn" is preempted by federal law. See id. Appellants contend that Three Properties was required to comply with "all federal laws, rules and regulations applicable to the construction project" because Three Properties had obtained "federal financial assistance" for the project and had contractually agreed to be bound by applicable federal law. We conclude that appellants' preemption claim is without merit.
If a state law conflicts with federal law, it is preempted and has no effect." Great Dane Trailers, Inc. v. Estate of Wells, 52 S.W.3d 737, 743 (Tex. 2001); see also U.S. Const. art. VI, Clarendon. 2 ("The laws of the United States are the `supreme Law of the Land . . . any Thing in the Constitution or Laws of any State to the Contrary notwithstanding'"). Federal law may impliedly preempt state law if it is impossible for a private party to comply with both state and federal requirements or if state law obstructs accomplishing and executing Congress's full purposes and objectives. Great Dane Trailers, 52 S.W.3d at 743.
Here, appellants contend that federal law and regulations pertaining to workplace safety in the construction industry impliedly preempt section 95.003(2). Specifically, appellants claim that section 95.003(2) is impliedly preempted by provisions of OSHA regulations, found in 29 C.F.R. part 1926, and with the Contract Work Hours and Safety Standards Act ("the CWHSSA"), which appellants allege apply to Three Properties and pertain to regulation of workplace safety in the construction industry. Appellants contend that section 95.003(2) conflicts with the CWHSSA and 29 C.F.R. part 1926.
40 U.S.C.S. §§ 3701- 3708 (Law. Co-op. 2003 Supp. 2005).
We express no opinion on the applicability of these provisions to Three Properties or the subcontractor's work at the construction site.
In their brief, appellants explain the "conflict" as follows:
The requirement in § 95.003(2), that a property owner can be liable for the death of an employee of a subcontractor due to an unsafe workplace only if he had actual knowledge of the danger or condition resulting in the death and failed to give adequate warning, has no counterpart in the above referenced federal standards to which Three Properties became bound in the Loan Agreement. It is not a precondition for holding affected parties accountable for violations of OSHA, the CWHSSA, or other health and safety requirements in 29 C.F.R. pt. 1926, that the party first must have had actual knowledge of danger and must have failed to give an adequate warning about it. Since these preconditions under state law for liability conflict with the applicable federal requirements, they are preempted and cannot be used to preclude the pending action against Three Properties.
To the extent that appellants contend that section 95.003(2) prevents them from asserting tort claims against Three Properties, which they would otherwise be entitled to assert under either OSHA regulations or the CWHSSA, appellants' contention does not succeed. Regulations promulgated under the OSHA statute neither create an implied cause of action nor establish negligence per se. McClure v. Denham, 162 S.W.3d 346, 353 (Tex.App.-Fort Worth 2005, no pet.) (citing Melerine v. Avondale Shipyards, Inc., 659 F.2d 706, 707 (5th Cir. 1981) (recognizing that OSHA was adopted to assure safe and healthful working conditions)). Likewise, the provisions of the CWHSSA do not provide for a private right of action. See 40 U.S.C.S. §§ 3701- 3708 (Law. Co-op. 2003 Supp. 2005).
Appellants also have not shown that section 95.003(2) in any manner obstructs the administrative enforcement of either the cited OSHA regulations or the CWHSSA by the assigned federal regulating agency. Appellants have not demonstrated that section 95.003(2) frustrates the envisioned Congressional purposes or objectives of the cited OSHA regulations or the CWHSSA and has not shown that section 95.003(2) relieves Three Properties of any obligations it may have under the cited federal authorities. Nor have appellants demonstrated that section 95.003(2) makes it impossible for Three Properties to comply with the referenced federal authorities. Thus, appellants' preemption argument does not succeed.
We overrule appellants' third issue.
B. No Appellate Challenge to Claim of No-Evidence of Actual Knowledge As gleaned from the "issues presented" section of their brief, we read appellants second issue to assert that the trial court erred in granting summary judgment because Three Properties possessed the requisite control over the work at the construction site. Both conditions of section 95.003, control and knowledge, must be met, however, before liability will be imposed upon the property owner. Francis v. Coastal Oil Gas Corp., 130 S.W.3d 76, 83 (Tex.App.-Houston [1st Dist.] 2003, no pet.). It is the plaintiff's burden to prove both prongs of section 95.003. Id.
In the trial court, Three Properties filed a no-evidence motion for summary judgment, asserting that no evidence existed as to either control or knowledge. Appellants responded, addressing both prongs. The trial court granted summary judgment to Three Properties without stating its reason in the order or the final judgment.
Appellants do not contend on appeal that they met their summary judgment burden in the trial court as to the actual knowledge requirement. When, as here, a summary judgment does not state the specific grounds on which it was granted, a party appealing from the judgment must show that each of the independent arguments alleged in the motion is insufficient to support the judgment. Star-Telegram, Inc. v. Doe, 915 S.W.2d 471, 473 (Tex. 1995); see Wrenn v. G.A.T.X. Logistics, Inc., 73 S.W.3d 489, 493 (Tex.App.-Fort Worth 2002, no pet.) (holding that, when summary judgment rests on more than one ground, appellant must challenge each ground on appeal, or judgment will be affirmed on ground about which no complaint is made). Because appellants do not challenge the no-evidence ground regarding the actual knowledge requirement, we must affirm summary judgment in Three Properties's favor. See Ellis v. Precision Engine Rebuilders, Inc., 68 S.W.3d 894, 898 (Tex.App.-Houston [1st Dist.] 2002, no pet.); Zapata v. ACF Indus., Inc., 43 S.W.3d 584, 586 (Tex.App.-Houston [1st Dist.] 2001, no pet.).
We overrule appellants' second issue.
Granting of Motions for Summary Judgments of Remaining Defendants
We liberally construe the fourth issue stated in appellants' "issues presented" section of their brief as complaining of the summary judgments granted to the three Sowell individuals (Michael, Donald Wesley, and Beatrice) and to DSD. Appellants' fourth issue, however, appears only in the "issues presented" portion of their brief. There are no supporting arguments for these issues in the argument section of the appellants' brief, as required by appellate rule of procedure 38.1(h). See Tex.R.App.P. 38.1(h). Appellees point out the deficiencies in appellants' briefing.
In their "issues presented" portion, appellants frame their fourth issue as follows: "Was the summary judgment against the remaining entities and parties proper?"
Appellants made some effort to explain the lack of briefing in their reply brief with regard to the three Sowell individuals (but not with regard to DSD). However, appellants provide no substantive, legal analysis of the issues involved nor citation to any authority. See id. Accordingly, appellants present nothing for review with respect to their challenge to the granting of the motions for summary judgment of the remaining appellees. See Palais Royal, Inc. v. Gunnels, 976 S.W.2d 837, 854 (Tex.App.-Houston [1st Dist.] 1998, pet. dism'd by agr.) (holding that points or issues lacking supporting argument present nothing for review).
Briefing deficiencies aside, appellants acknowledge in their reply brief that their claims against the Sowell individuals were derivative of their primary claims against DWS and Three Properties. Though not mentioned in the briefing, appellants' claims against DSD were also derivative of their primary claims. We have held that summary judgment was appropriate on appellants' claims against DWS and Three Properties. Thus, summary judgment was also appropriate in favor of the three Sowells and DSD.
We overrule appellants' fourth issue.
Conclusion
We affirm the judgment of the trial court.