Opinion
13-94-272-CV
April 30, 1997.
On appeal from the 197th District Court of Cameron County, Texas.
Before Justices DORSEY, YAÑEZ and CHAVEZ.
OPINION
This is an appeal of a judgment for the plaintiff, Jose Luis Reyna, who slipped and fell in the restroom of an office leased by his employer, the Immigration and Naturalization Service (INS). The appellant, Hawaii Properties, Inc., is the manager of the property where the fall occurred as well as the leasing agent for the landlord-owner, Southmost Savings and Loan (Southmost). The jury found substantial damages suffered by Mr. Reyna, and determined that appellant was 50% negligent, INS 34% negligent, Mr. Reyna 16% negligent and Southmost 0% negligent. We reverse and render. Mr. Reyna is an INS field investigator, who in December 1989 worked out of the INS office in Harlingen, Texas. Around 2:30 on the afternoon of December 1, 1989, he returned to the office, entered the bathroom and slipped and fell on his right side and arm. He testified the floor appeared damp and filmy. The floor had recently been mopped by an employee of Pioneer Janitorial Service. Immediately after the fall Mr. Reyna's supervisor, Barry Dixon, came in and helped him to his feet. Mr. Reyna's hands were wet and slimy and he had wet spots on his pants. There were no signs warning of the wet floor. The premises in which Mr. Reyna fell was known as the Harlingen Professional Plaza, and was owned by Southmost. Southmost entered into an agreement with Hawaii Properties to manage and lease several properties, including Harlingen Professional Plaza, in 1988. In 1989 Hawaii Properties, on behalf of Southmost, leased all of the commercial suites in the building to the INS. The lease provided that the landlord would provide cleaning services, which included weekly damp mopping and spray buffing of restroom floors. The lease provided a list of cleaning jobs to be furnished by the landlord. Hawaii Properties contracted with a cleaning service, "To The Rescue," to clean the INS suites and provided the service with a list of things to be done as specified in the lease. The INS specified that all cleaning was to be done during office hours for security purposes. Elaborate security systems were installed by the INS leaving the landlord without access to the premises. The jury was asked if the negligence of any of the parties proximately caused Mr. Reyna's injuries and, if so, what was each party's percentage of contribution. Although a general negligence question was asked, the jury was instructed as to the meaning of negligence in the context of an occupier of the premises. Appellant's first point of error is that there is no evidence that Hawaii Properties actually or constructively knew of the premises condition or that it was an owner or occupier who controlled the INS premises. The elements of a premises liability cause of action are:
1. Actual or constructive knowledge of some condition on the premises by the owner/operator;
2. That the condition posed an unreasonable risk of harm;
3. That the owner/operator did not exercise reasonable care to reduce or eliminate the risk; and
4. That the owner/operator's failure to use such care proximately caused the plaintiffs injuries.Keetch v. Kroger Co., 845 S.W.2d 262, 264 (Tex. 1992) (citing Corbin v. Safeway Stores, Inc., 648 S.W.2d 292, 296 (Tex. 1983)). Although Mr. Reyna pled a negligent activity theory as well as a premises condition theory of recovery, only a premises condition theory is justified under the evidence. To qualify as a negligent activity cause of action, the injury must be a contemporaneous result of the activity rather than a condition created by the activity. Keetch, 845 S.W.2d at 264. Because the action is one about a hazardous condition of the premises, the status of appellant Hawaii Properties becomes an issue, as duties are owed by owners or occupiers of land to their visitors. Hawaii Properties is not an owner or occupier, but is the agent of the owner, Southmost, who is the lessor. As a general rule, a lessor has no duty to tenants or their invitees for dangerous conditions on the leased premises. Johnson County Sheriff's Posse, Inc. v. Endsley, 926 S. W.2d 284, 285 (Tex. 1996); Brownsville Navigation Dist. v. Izaguirre, 829 S.W.2d 159, 160 (Tex. 1992) (citing RESTATEMENT (SECOND) OF TORTS § 356 (1965)). This stems from the fact that a lessor relinquishes possession or occupancy of the premises to the lessee. Endsley, 926 S.W.2d at 285. The Texas Supreme Court has recognized several exceptions to this rule. One exception occurs when the lessor negligently makes repairs and the faulty repairs cause injuries. See Flynn v. Pan Am Hotel Co., 183 S. W.2d 446, 448 (Tex. 1944). Another exception occurs when the lessor conceals defects on the leased premises of which the lessor is aware. See Morton v. Burton-Lingo Co., 136 Tex. 263, 150 S.W.2d 239, 240 (1941). Or, a lessor may be liable for injuries caused by a defect on a portion of the premises that remain under the lessor's control. See Parker v. Highland Park, Inc., 565 S.W.2d 512, 514-15 (Tex. 1978); see also RESTATEMENT (SECOND) OF TORTS §§ 357, 360, 361 (1965). However, such exceptions are not present here. Appellee argues that because Hawaii Properties undertook the responsibility to provide cleaning and janitorial services, and had the right of control over those contractors, the rule of Redinger v. Living, Inc., 689 S.W.2d 415, 418 (Tex. 1985), applies. The rule adopted by the court in Redinger is from the Restatement, and provides that:
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.Id. (quoting RESTATEMENT (SECOND) OF TORTS § 414 (1977)). In Redinger, a general contractor had control over a construction site and the activities of its subcontractors. A representative of the general contractor instructed a subcontractor to move several piles of dirt. Redinger, an employee of another subcontractor, was working near the piles of dirt to be moved. While moving the dirt, an employee of the first subcontrator crushed Redinger's finger with the blade of his bulldozer. The court held the general contractor could be liable for failing to adequately control the activities of the subcontractors, in that it should not have ordered heavy machinery into operation in close proximity to men at work on the ground. Redinger, 689 S.W.2d at 418. The negligence of the contractor was the failure to exercise his control over the subcontractors with reasonable care. See id. This negligence and the actions of the subcontractor caused the injury in Redinger, not the condition of the premises. The right of control of a subcontractor's actions is inapplicable to an analysis of the present case, because the jury was not asked if Hawaii Properties or Southmost was negligent in its failure to control the activity of the subcontractor. Rather, the jury was instructed that
"NEGLIGENCE" if any, when used with respect to Southmost, HPI [Hawaii Properties, Inc] and/or INS means failure to use ordinary care to reduce or eliminate an unreasonable risk of harm created by a premises condition that a party knows about or in the exercise of ordinary care should know about.Accordingly, we will restrict our analysis to whether there is any evidence that Hawaii Properties knew or should have known of the hazardous condition: the slippery floor. Hawaii Properties hired a local janitorial services contractor, "To The Rescue," to do the cleaning as provided for in the lease. That cleaning service was not provided with any cleaning supplies or equipment by Hawaii Properties, and it was not given a key to the premises. The INS required that the cleaning be done only during regular business hours. Pamela McCaa of "To The Rescue" testified that this was the first time she had been required to work during business hours. McCaa was paid by Hawaii Properties directly and no taxes were withheld from the check. "To The Rescue" subcontracted the cleaning to Antonio Estrada, who was doing business as Pioneer Janitorial Service. Estrada testified he never met anyone from Hawaii Properties and did not know of its existence until trial. At first, Estrada and his wife would arrive at the INS office between 2 and 3 p.m., but later they began arriving earlier, around lunch time. Estrada said the only cleaner he used was water. On the one occasion his wife used Murphy's Oil Soap, he was told by an INS supervisor not to use it again, and Estrada complied. The only other person that would tell him what to do or how to do it was a woman employed by the INS. There is no evidence that Hawaii Properties knew 1) that Estrada mopped the floor on the day Reyna fell, 2) what the floor was mopped with, or 3) that Estrada failed to put up warning signs that the floor was wet. Hawaii Properties is not responsible for the negligence of an independent contractor. Duran v. Furr's Supermarkets, Inc., 921 S.W.2d 778, 786-87 (Tex.App.-E1 Paso 1996, no writ); Ross v. Texas One Partnership, 796 S. W.2d 206, 209 (Tex.App.-Dallas 1990), writ denied
The jury was instructed as follows: "`NEGLIGENCE', if any, when used with respect to Southmost, [Hawaii Properties] and/or INS means failure to use ordinary care to reduce or eliminate an unreasonable risk of harm created by a premises condition that a party knows about or in the exercise of ordinary care should know about."