Opinion
01-18-00638-CV
05-10-2022
MICHAEL TORRES AND ENEDINA TORRES, Appellants v. PASADENA REFINING SYSTEMS, INC. AND NATIONAL PLANT SERVICES, LLC, Appellees
On Appeal from the 269th District Court Harris County, Texas Trial Court Case No. 2016-27805
Panel consists of Chief Justice Radack and Justices Kelly and Goodman.
MEMORANDUM OPINION
PETER KELLY JUSTICE
Appellant, Michael Torres ("Torres"), was injured at a refinery owned by appellee, Pasadena Refining Systems, Inc. ("PRSI"), when he fell from a scaffold constructed by appellee, National Plant Services, LLC ("NPS"). Torres and his wife, appellant Enedina Torres, brought premises liability claims against PRSI and NPS. PRSI and NPS filed motions for summary judgment, which the trial court granted, ordering that appellants take nothing by their claims. In six issues, appellants contend that the trial court erred in rendering summary judgment because they presented evidence raising genuine issues of material fact.
We reverse the trial court's summary judgment and remand for further proceedings in accordance with this opinion.
Background
On December 22, 2014, PRSI retained an independent contractor, 3-J Ryan, Inc. ("Ryan"), to perform turnaround work at PRSI's refinery in Pasadena, Texas. Ryan then hired NPS to construct the scaffolding necessary to perform the work.
Ryan is not a party to this appeal.
In the weeks preceding the incident at issue, heavy rains fell at the PRSI facility. On the morning of March 18, 2015, Torres, a Ryan employee who had been working as a welder on the turnaround project for approximately 80 days, waited in his truck for the rain to stop and for direction regarding whether the day's work would proceed.
At around 11:30 a.m., Torres learned that work at the facility would proceed after lunch. At 2:00 p.m., a Ryan pipefitter, "Chavez," asked Torres to go up on a scaffold with him and perform a "hot tap." The procedure, which involved creating a connection into a pressurized system, was considered dangerous. Torres noted that Ryan had "safety men" on site, had safety meetings at the beginning of each shift, and supplied the safety harness that Torres wore. PRSI also had personnel on site.
At some point that Torres did not see, Chavez ascended the scaffold ladder and entered the "hooch"-an area on the scaffold platform lined with fire blankets and covered with a tarp to protect the work from wind and contamination. Although Torres, who stood in mud at the base of the ladder, saw that the tarp was draping over and partially blocking the entry gate to the scaffold platform, he noted that it did not look unusually dangerous. Rather, it looked like a "normal hooch." And, the scaffold builder, NPS, who inspected the scaffolds every day, had "green tagged it," which meant that it was "safe." He expected to "go up and move the tarp and go in and latch [his lanyard] and go to work."
Torres ascended the ladder and, when he arrived at the top and at the entry gate to the scaffold platform, he "noticed that the hinge [of the gate] was on the right and not the left," which would require him to lean over to the left side of the gate to latch his safety lanyard. He noted that he could not "latch on where the hinge [was] because [he] would have gotten entangled." Trying to find a place to latch onto, he tried to move the tarp. Torres testified that he tried to "throw [the tarp] over," not realizing that it was tightly secured underneath. The tension on the tarp "pulled" him to the left, and his muddy feet slipped off the ladder. Torres fell 13 feet to the mud and concrete below, fracturing his neck, an arm, and a rib and dislocating his shoulder.
(Image Omitted)
Torres attributed his fall and injuries to his muddy feet, the placement of the access gate, the tarp impeding his access to the scaffold platform, and a lack of proper safety equipment, i.e., a self-retracting lifeline, or "yoyo, " or ladder cage on the scaffold.
Ryan safety supervisor, Lance Harp, testified that a "yoyo" is "similar to a seat belt, whereas you have a body harness on and then the yoyo's attached to the top side of the scaffold or onto a structure adjacent to, has a cable inside of it with a spring mechanism." And, "[a]s you're climbing the ladder, if something happens and you slip, and fall, the yoyo will act like a seat belt and grab you. It won't let you fall." Ryan safety manager, Craig Houghton, testified that a safety "lanyard," unlike a yoyo, is simply a "static line with shock absorbing capabilities."
PRSI concluded in its Incident Investigation as follows, in pertinent part:
- [Torres] stated he noticed the [doorway] to the scaffold was obstructed by a blue tarp and fire blanket. He then tried to move them out of the way, but they were too tight. When he then tried to see where the tarp was tied, he slipped and fell.
- It was later explained that while the tarp was draped over to prevent rain and wind, it was also tied off at the pole to the left of the swing gate opening,
- Swing gate was observed swinging open from the left and hinged to the right. It is suspected that [Torres] had to reach 3 feet to try and open the gate. Then had to reach 4 ft to left to try and see where the tarp was tied.
- It is believed that [Torres] became top heavy and off balance when reaching to the left. With the combination of reaching left and possibly in a downward motion. When [Torres] was leaning to the left and over reached, trying to see where the tarp was tied, he then lost grip with the one remaining right hand hold on the ladder.
. . . .
14- Important Investigation[] Details
1. Swing Gate Position - pivot point was on the right
- [C]reating a longer reach to [Torres's] left, away from the ladder.
. . . .
3. Third Party Review of Scaffold
- 3rd Party Competent Person looked over scaffold.
- While not out of compliance, they would have added an upright at left end of gate for existing set up.
- Viewed opening was missing upright at Swing Gate opening (Left).
- Referenced they would not position opening of swing gate away from ladder. Not compliance issue, but best practice.
4. PRSI Standards - Fall Protection
- When working at elevations (higher than 6 feet above grade) other than on an approved platform, a full body harness with shock-absorbing lanyard shall be used.
. . . .
16- Root Causes
1. Supervision/Task Planning Deficient
- Absence of effective scaffold building & Supervision by contractor
2. Design/Construction of Scaffolding
- Swing gate while compliant was not best practice
PRSI's "HSE Standards Fall Protection" provides, in pertinent part, as follows:
When working at elevations (higher than 6 feet above grade) other than on an approved platform, a full body harness with shock-absorbing lanyard shall be used. . . .
. . . .
Other forms of fall protection that may be required in some circumstances are:
Retractable lifelines are required where tie-off points are limited and mobility of the worker is needed or where climbing long runs of ladder (24 foot fall potential) are not protected by a cage.
NPS's "Scaffold Policy" provides, in pertinent part:
B. Each employee on a scaffold more than six (6) feet above a lower level shall be protected from falling to that lower level.
. . . .
G. For all scaffolds not otherwise specified, each employee shall be protected by the use of personal fall arrest systems or guardrail systems.
Appellants sued PRSI and the scaffold builder and inspector, NPS. Appellants brought a premises liability claim against PRSI, alleging that PRSI owed certain duties to Torres, which it breached, as follows:
Although appellants also brought negligence and gross negligence claims against PRSI, appellants, in their summary-judgment response, "agree[d] that their case sound[ed] in premises liability and not ordinary negligence."
a. controlling the placement of defective scaffolding equipment on PRSI's premises;
b. failing to follow its own policies and procedures requiring that its employees ensure that a [] self-retracting lifeline be placed on the scaffold;
c. requiring that [Torres] and his employer perform work in an area of PRSI's premises that was known to PRSI to be unsafe;
d. failing to remedy or warn of a known, unreasonably dangerous condition on its premises;
. . . .
f. fail[ing] to provide adequate safety equipment;
g. failing to fix dangerous conditions and/or warn about dangerous conditions;
. . . .
i. knowingly disregarding dangers;
j. recklessly failing to ensure the safety of equipment for use;
k. fail[ing] to take adequate precautionary measures;
l. recklessly disregarding the safety of [Torres]; [and]
m. failing to maintain a reasonably safe premises[.]
Appellants also asserted a premises liability claim against NPS, alleging that NPS breached certain duties it owed to Torres by:
Although appellants, in their petition, titled their claims against NPS as "negligence, gross negligence, and negligence per se," appellants stated in their summary-judgment response that they "agree[d] that their case sound[ed] in premises liability and not ordinary negligence." As discussed below, we conclude that the substance of appellants' allegations sound in premises liability.
a. erecting unsafe scaffolding;
b. failing to ensure that the scaffolding it erected contained proper fall protection;
c. failing to ensure that the scaffolding could be used safely;
d. failing to plan and provide for safe ingress and egress to the scaffold platform;
e. certifying that the scaffolding was safe for use, when it in fact was not;
f. fail[ing] to properly train its employees;
g. fail[ing] to provide adequate safety equipment;
h. failing to fix dangerous conditions and/or warn about dangerous conditions;
. . . .
j. knowingly disregarding dangers;
k. recklessly failing to ensure the safety of its equipment for use;
l. fail[ing] to take adequate precautionary measures; [and]
m. recklessly disregarding the safety of [Torres][.]
Torres sought damages for past and future medical expenses, pain and suffering, physical impairment, and mental anguish. Torres also sought damages for lost earnings and loss of future earning capacity. Enedina sought damages for lost financial support, affection, companionship, society, and consortium.
PRSI filed a combined no-evidence and traditional motion for summary judgment, asserting that it had it had no duty to protect Torres from the conditions that he alleged caused or contributed to his fall. PRSI asserted that Torres was an employee of Ryan, who was an independent contractor under the terms of PRSI's General Services contract ("Contract") with Ryan; that PRSI did not exercise control over Torres's work; and that the evidence established that Ryan controlled the details of Torres's work. PRSI asserted that there was no evidence that it owed a duty to Torres, that it had knowledge of a concealed condition on the premises that posed an unreasonable risk to him, that it failed to use reasonable care to reduce the risk, or that any such failure proximately caused Torres's damages.
PRSI further argued that it was entitled to judgment because the evidence conclusively negated the duty element of appellants' claim. PRSI asserted that the conditions that appellants alleged had caused or contributed to Torres's fall, i.e., the gate, the tarp, and the lack of proper safety equipment, were "open and obvious." Thus, it owed "no duty to warn or protect [Torres] from those conditions."
In their summary-judgment response, appellants argued that PRSI owed Torres a duty because the summary-judgment evidence showed that PRSI retained contractual control, and exercised actual control, over the details of Torres's work. Specifically, the Contract "establishe[d] PRSI's retention of contractual control over the safety of the work." And, the evidence showed that "PRSI was actively engaged in directing, supervising, and controlling the details of the work that Torres and [Ryan] were performing."
In addition, appellants argued that "PRSI owed Torres a duty with respect to dangers he was aware of" based on the "necessary-use exception outlined in the Texas Supreme Court's decision in Austin v. Kroger Texas, L.P." Under the exception, appellants noted, "a landowner's duty to make the premises safe is not relieved by the plaintiff's awareness of the risk." Rather, "the landowner owes a duty to make the premises safe when (1) it is necessary that the invitee use the dangerous premises and (2) the landowner should have anticipated that the invitee is unable to take measures to avoid the risk." Here, appellants argued, the evidence established that the only way for Torres to reach the scaffold platform to perform his work was to climb the ladder and that PRSI should have anticipated that Torres would be unable to avoid the risks.
Austin v. Kroger Tex. L.P., 465 S.W.3d 193 (Tex. 2015).
NPS also filed a combined no-evidence and traditional motion for summary judgment. NPS first asserted that it was entitled to judgment because appellants' claim was based solely in premises liability, and appellants, in their petition, had stated only a general negligence claim. NPS also argued that it had no duty to Torres because there was no evidence that it owned or controlled the premises or that it controlled the details of Torres's work, and that there was no evidence that it breached a duty or that such breach caused Torres's damages.
NPS further asserted that appellants' cause of action was "limited as a matter of law to the Texas definition of premises liability as set forth in Austin v. Kroger Tex., L.P." Specifically, "because the weather, rainwater, wet surfaces and the tarp are all open and obvious, not concealed and were all known to [Torres] before he elected to put himself in position to fall, NPS had absolutely no duty to warn, no duty to make the conditions safe and has no liability as a matter of law." And, because Torres testified that he was aware of these conditions and had the option to refuse to climb the ladder until they were rectified, the "necessary-use exception" did not apply. NPS noted that its evidence showed that its scaffolding was compliant with safety requirements and that NPS was not liable for failing to provide standard fall protection on its scaffolding because Ryan had declined it.
In their summary-judgment response, appellants "agree[d] that their case sound[ed] in premises liability and not ordinary negligence." They argued, however, that genuine issues of material fact precluded summary judgment on their claim. They argued that the evidence demonstrated that NPS exercised actual control over the scaffold at issue and thus it owed Torres a duty to keep it safe. Only NPS was authorized to construct, modify, and inspect its scaffolds. And, NPS incorrectly installed the platform access gate, which required Torres to reach horizontally from the ladder to transition to the platform. In addition, NPS performed daily safety inspections of the scaffold at issue and had, on the day of Torres's fall, tagged the scaffold as authorized for use. NPS failed to take into account the access issues, i.e., the gate and tarp, and that the scaffold lacked basic fall-protection safety equipment, such as a self-retractable lifeline, which PRSI's and NPS's policies required. And, NPS's breach of duty was the proximate cause of Torres's injuries.
Appellants also asserted that NPS, as a premises occupier, had a duty to make the scaffold safe. And, that the necessary-use exception applied because it was necessary for Torres to use the scaffold to do his work, and NPS should have anticipated that Torres was unable to avoid the risks.
The trial court rendered summary judgment in favor of PRSI and NPS, and ordered that appellants take nothing by their claims. In its order, the trial court stated that it granted summary judgment on the grounds raised in the motions, including that appellants did not raise a fact issue as to the applicability of the necessary-use exception. The trial court denied appellants' motion for new trial.
Summary Judgment
In their first and sixth issues, appellants generally challenge the trial court's summary judgments and assert that the evidence raises genuine issues of fact as to the elements of each of their claims. In their second issue, appellants argue that there are fact issues as to the duty element of their premises liability claim against PRSI because the evidence shows that PRSI had control over the details of Torres's work. In their third issue, appellants argue that there are fact issues as to the duty element of their claim against NPS because the evidence shows that NPS had control over the scaffold at issue. In their fourth issue, appellants argue, with respect to their claims against both PRSI and NPS, that the trial court erred in failing to find that the "necessary use" exception applies. In their fifth issue, appellants assert that PRSI and NPS owed Torres a duty under a theory of negligent undertaking.
A. Standard of Review
We review a trial court's summary judgment de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). In conducting our review, we take as true all evidence favorable to the non-movant, and we indulge every reasonable inference and resolve any doubts in the non-movant's favor. Id. If a trial court grants summary judgment without specifying the grounds for granting the motion, we must uphold the trial court's judgment if any of the asserted grounds are meritorious. Beverick v. Koch Power, Inc., 186 S.W.3d 145, 148 (Tex. App.-Houston [1st Dist.] 2005, pet. denied).
A party may combine in a single motion a request for summary judgment under the no-evidence and traditional standards. Binur v. Jacobo, 135 S.W.3d 646, 650-51 (Tex. 2004); see also Tex. R. Civ. P. 166a(c), (i). When a party seeks summary judgment on both grounds and the trial court's order does not specify its reasons for granting summary judgment, we first review the propriety of the summary judgment under the no-evidence standard. See Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004); see also Tex. R. Civ. P. 166a(i). If we conclude that the trial court did not err in granting summary judgment under the no-evidence standard, we need not reach the issue of whether the trial court erred in granting summary judgment under the traditional standard. See Ridgway, 135 S.W.3d at 600; see also Tex. R. Civ. P. 166a(c).
To prevail on a motion for no-evidence summary judgment, the movant must establish that there is no evidence to support an essential element of the non-movant's claim on which the non-movant would have the burden of proof at trial. See Tex. R. Civ. P. 166a(i); Hahn v. Love, 321 S.W.3d 517, 523-24 (Tex. App.- Houston [1st Dist.] 2009, pet. denied). The burden then shifts to the non-movant to present evidence raising a genuine issue of material fact as to each of the elements challenged in the motion. Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex. 2006); Hahn, 321 S.W.3d at 524. A no-evidence summary-judgment may not be granted if the non-movant brings forth more than a scintilla of evidence to raise a genuine issue of material fact on the challenged elements. See Ridgway, 135 S.W.3d at 600. More than a scintilla of evidence exists when the evidence "rises to a level that would enable reasonable and fair-minded people to differ in their conclusions." Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997).
In a traditional motion for summary judgment, the movant has the burden to establish that there exists no genuine issue of material fact and that it is entitled to judgment as a matter of law. See Tex. R. Civ. P. 166a(c); KPMG Peat Marwick v. Harrison Cty. Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex. 1999). When a defendant moves for a traditional summary judgment, it must either: (1) conclusively negate at least one essential element of the plaintiff's cause of action or (2) conclusively establish each essential element of an affirmative defense, thereby defeating the plaintiff's cause of action. See Cathey v. Booth, 900 S.W.2d 339, 341 (Tex. 1995). Once the movant meets its burden, the burden shifts to the non-movant to raise a genuine issue of material fact precluding summary judgment. Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995). The evidence raises a genuine issue of fact if reasonable and fair-minded jurors could differ in their conclusions in light of all of the summary-judgment evidence. Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, 755 (Tex. 2007).
B. Applicable Legal Principles
"Negligence and premises liability claims are separate and distinct theories of recovery, requiring plaintiffs to prove different, albeit similar, elements to secure judgment in their favor." United Scaffolding, Inc. v. Levine, 537 S.W.3d 463, 471 (Tex. 2017). To prevail on a negligence claim, a plaintiff must prove the existence of a legal duty, a breach of that duty, and damages proximately caused by the breach. Gharda USA, Inc. v. Control Sols., Inc., 464 S.W.3d 338, 352 (Tex. 2015). Generally, to prevail on a premises liability claim, a plaintiff must prove: (1) that the defendant had actual or constructive knowledge of some condition on the premises; (2) that the condition posed an unreasonable risk of harm to the plaintiff; (3) that the defendant failed to exercise reasonable care to reduce or eliminate the risk; and (4) that the defendant's failure proximately caused the plaintiff's injuries. United Scaffolding, Inc., 537 S.W.3d at 471.
As in any negligence action, a defendant in a premises liability claim is liable only to the extent that it owes the plaintiff a legal duty. Gen'l Elec. Co. v. Moritz, 257 S.W.3d 211, 217 (Tex. 2008). The plaintiff bears the burden to produce evidence of a duty, and liability cannot be imposed if no duty exists. Siegler, 899 S.W.2d at 197. Whether a duty exists is a threshold inquiry and a question of law for the court. Id.
Generally, a premises owner has a duty to an invitee to exercise reasonable care to either "make safe or warn against any concealed, unreasonably dangerous conditions of which the landowner is, or reasonably should be, aware but the invitee is not." Austin v. Kroger Tex., L.P., 465 S.W.3d 193, 203 (Tex. 2015). An owner generally has no duty to warn of hazards that are open and obvious or known to the invitee. Id. If the dangerous condition is open and obvious, or the invitee is aware of the condition, the law presumes that the invitee will take reasonable measures to protect himself against the risks. Id. However, this "general no-duty rule" may be limited by the "necessary-use" exception if the facts demonstrate that (1) it was necessary for the invitee to use the portion of the premises containing the allegedly unreasonably dangerous condition and (2) the owner should have anticipated that the invitee was unable to avoid the risks despite the invitee's awareness of them. Id. at 207. The effect of the exception is that the invitee's awareness does not relieve the owner of its duty to make the premises safe; rather, such awareness is relevant to the issue of proportionate responsibility, where applicable. Id. at 208.
"An invitee is one who enters the property of another with the owner's knowledge and for the mutual benefit of both." Austin, 465 S.W.3d at 202.
In the context of the duties that a premises owner or general contractor owe to an injured employee of an independent contractor, there are two categories: (1) defects or dangerous conditions existing on the premises when the independent contractor entered; and (2) defects or dangerous conditions created by the independent contractor's work. Coastal Marine Serv. of Tex., Inc. v. Lawrence, 988 S.W.2d 223, 225 (Tex. 1999); see also Shell Oil Co. v. Khan, 138 S.W.3d 288, 295 (Tex. 2004); Dow Chem. Co. v. Bright, 89 S.W.3d 602, 606 (Tex. 2002); Griffin v. Shell Oil Co., 401 S.W.3d 150, 159 (Tex. App.-Houston [1st Dist.] 2011, pet. denied).
1. Preexisting Defects or Conditions
Under the first category, preexisting defects or conditions, the general rule is that a premises owner or general contractor "has a duty to inspect the premises and warn the independent contractor/invitee of dangerous conditions that are not open and obvious and that the owner [or general contractor] knows or should have known exist." Coastal Marine, 988 S.W.2d at 225. Only concealed hazards- dangerous in their own right and independent of action by another-that are in existence when the independent contractor enters the premises fall into this first category. Id. (emphasis added); see, e.g., Smith v. Henger, 226 S.W.2d 425, 431- 33 (Tex. 1950) (open shaft on jobsite).
2. Defects or Conditions Arising from Independent Contractor's Work
Under the second category, with respect to defects or conditions arising from an independent contractor's work, one who employs an independent contractor has no duty to ensure that the contractor safely performs its work. JLB Builders, L.L.C. v. Hernandez, 622 S.W.3d 860, at 864-65 (Tex. May 7, 2021); AEP Tex. Cent. Co. v. Arredondo, 612 S.W.3d 289, 295 (Tex. 2020). However, an exception to this rule arises when "the employer retains some control over the manner in which the contractor performs the work that causes the damage." JLB Builders, 622 S.W.3d at 865; Arredondo, 612 S.W.3d at 295 (quoting Fifth Club, Inc. v. Ramirez, 196 S.W.3d 788, 791 (Tex. 2006)); see also Redinger v. Living, Inc., 689 S.W.2d 415, 418 (Tex. 1985) (adopting Restatement (Second) of Torts § 414 (1977)). A plaintiff can prove the requisite control by establishing that the general contractor either actually controlled the manner in which the subcontractor performed its work or had a contractual right to do so. JLB Builders, 622 S.W.3d at 865 (citing Dow Chem. Co., 89 S.W.3d at 606, and Koch Ref. Co. v. Chapa, 11 S.W.3d 153, 155 (Tex. 1999)). In either case, the "control must relate to the condition or activity that caused the injury." JLB Builders, 622 S.W.3d at 865 (citing Clayton W. Williams, Jr., Inc. v. Olivo, 952 S.W.2d 523, 528 (Tex. 1997)). Further, the control retained or exercised by the general contractor must "extend[ ] to 'the means, methods, or details of the independent contractor's work.'" JLB Builders, 622 S.W.3d at 865 (quoting Arredondo, 612 S.W.3d at 295, in turn quoting Dow Chem. Co., 89 S.W.3d at 606); see also Chapa, 11 S.W.3d at 156 (noting that a general contractor "must have some latitude to tell its independent contractors what to do, in general terms, . . . without becoming subject to liability").
"If the right of control over work details has a contractual basis, the circumstance that no actual control was exercised will not absolve the general contractor of liability." Dow Chem. Co., 89 S.W.3d at 606 (quoting Chapa, 11 S.W.3d at 155). "It is the [contractual] right of control, and not the actual exercise of control, which gives rise to a duty." Dow Chem. Co., 89 S.W.3d at 606 (quoting Chapa, 11 S.W.3d at 155). For an owner or contractor to be liable, it must have more than a general right to order the work started or stopped, or to inspect progress. Coastal Marine, 988 S.W.2d at 226. Rather, the owner or contractor "must have the right to control the means, methods, or details of the independent contractor's work." Dow Chem. Co., 89 S.W.3d at 606. And, the control must relate to the activity that actually caused the injury. Id. Whether a contract grants a right of control is a question of law for the court. Id.
C. Summary Judgment for PRSI
In their second issue, appellants argue that there are fact issues as to the duty element of their premises liability claim against PRSI because the evidence shows that PRSI had control over the details of Torres's work. In a portion of their first and sixth issues, appellants generally challenge the trial court's rendition of summary judgment in favor of PRSI and assert that the evidence raises genuine issues of fact as to the elements of their claim.
It is undisputed that, after PRSI contracted with Ryan for the turnaround work, Ryan retained NPS to build the scaffolds necessary to perform the work, including the scaffold at issue, and that Ryan personnel placed the tarp on the scaffold. Nothing suggests that the scaffold and tarp at issue were "existing on the premises" when Ryan and its employee, Torres, entered. Thus, this is not a preexisting defects case, discussed above. See Coastal Marine, 988 S.W.2d at 225 (only hazards in existence when independent contractor enters premises fall into this category). Rather, as PRSI asserts, this case involves a defect or condition arising from an independent contractor's work. See id. Thus, in evaluating whether PRSI owed a duty of care as to a property condition, the relevant inquiry is whether PRSI assumed sufficient control over the part of the premises that presented the alleged danger such that PRSI had the responsibility to remedy it. See United Scaffolding, 537 S.W.3d at 474. We consider whether there is evidence (a) of a contractual agreement expressly assigning PRSI a right to control the means, methods, or details of Torres's work or (b) that PRSI actually exercised control over the manner in which Torres's work was performed. See JLB Builders, 622 S.W.3d at 865.In its no-evidence motion for summary judgment, PRSI argued that it was entitled to summary judgment because there is no evidence that it had neither (1) contractual nor (2) actual control over Torres's work. See id.; see also Tex. R. Civ. P. 166a(i).
Because this is not a preexisting defects case, and this case instead involves a defect arising from an independent contractor's work, we apply the "relevant inquiry" stated in United Scaffolding, Inc. v. Levine, 537 S.W.3d 463, 474 (Tex. 2017), and not the general rule stated in Austin v. Kroger Tex., L.P., 465 S.W.3d 193, 203 (Tex. 2015). Thus, we do not reach the portion of appellants' fourth issue, in which they argue that the trial court erred in concluding that appellants failed to demonstrate that the "necessary-use exception" to the general rule applies. See Austin, 465 S.W.3d at 206.
1. Contractual Control
The threshold inquiry in a negligence case "is whether the defendant owes a legal duty to the plaintiff." Boerjan v. Rodriguez, 436 S.W.3d 307, 310 (Tex. 2014) (per curiam). A general contractor generally does not owe a duty of reasonable care to an independent contractor's employee. See JLB Builders, 622 S.W.3d at 864-65; Lee Lewis Constr., Inc. v. Harrison, 70 S.W.3d 778, 783 (Tex. 2001). But a duty of care may arise if the general contractor retains some control over the manner in which the independent contractor performs its work. Dow Chem. Co., 89 S.W.3d at 606 (citing Redinger, 689 S.W.2d at 418). Texas has adopted section 414 of the Restatement (Second) of Torts, which states:
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 owed a duty to exercise reasonable care, which is caused by his failure to exercise his control with reasonable care.
Restatement (Second) of Torts § 414 (1977); see also Redinger, 689 S.W.2d at 418 (adopting section 414); Brazos Contractors Dev., Inc. v. Jefferson, 596 S.W.3d 291, 301 (Tex. App.-Houston [14th Dist. 2019], pet. denied)
Control may be established in two ways: (1) by evidence of a contractual agreement that explicitly assigns the general contractor a right to control, or (2) by evidence that the general contractor actually exercised control over the manner in which the independent contractor's work was performed. Dow Chem. Co., 89 S.W.3d at 606; Lee Lewis Constr., Inc., 70 S.W.3d at 783.
When reviewing a contract, our goal is to determine the parties' true intentions as expressed in the instrument. See Coker v. Coker, 650 S.W.2d 391, 393 (Tex. 1983). We give the contract's words their plain and ordinary meaning unless the contract indicates the parties intended a different meaning. See Dynegy Midstream Servs., Ltd. P'ship v. Apache Corp., 294 S.W.3d 164, 168 (Tex. 2009). We also bear in mind the particular business activity to be served and, when possible and proper to do so, we avoid a construction that is unreasonable, inequitable, and oppressive. See Frost Nat'l Bank v. L&F Distribs., Ltd., 165 S.W.3d 310, 312 (Tex. 2005) (per curiam). We do not read any provision in isolation but consider each provision with reference to the contract as a whole. See Coker, 650 S.W.2d at 393. If the contract's language can be given a definite legal meaning or interpretation, then it is not ambiguous, and we will construe the contract as a matter of law. See El Paso Field Servs., L.P. v. MasTec N. Am., Inc., 389 S.W.3d 802, 806 (Tex. 2012) (citing Italian Cowboy Partners, Ltd. v. Prudential Ins. Co. of Am., 341 S.W.3d 323, 333 (Tex. 2011)).
To establish a duty of care, a contract must grant the general contractor "the right to control the means, methods, or details of the independent contractor's work" and, at the very least, "the power to direct the order in which work is to be done." Dow Chem. Co., 89 S.W.3d at 606 (citing Elliott-Williams Co. v. Diaz, 9 S.W.3d 801, 804 (Tex. 1999)). There also must be a nexus between the general contractor's retained control and the condition or activity that causes the injury. Hoechst-Celanese Corp. v. Mendez, 967 S.W.2d 354, 356 (Tex. 1998) (per curiam). When a party contractually retains a right of control over an independent contractor's work, the failure to exercise that control will not negate the party's potential liability for an on-the-job injury. Brazos Contractors, 596 S.W.3d at 302; Elliott-Williams Co., 9 S.W.3d at 804; see also Johnston v. Oiltanking Houston, L.P., 367 S.W.3d 412, 417 (Tex. App.-Houston [14th Dist.] 2012, no pet.).
In Dow Chemical Co., the contract at issue clearly disclaimed any retention of a contractual right of control on behalf of the general contractor and stated: "any provisions in this Contract which may appear to give DOW the right to direct CONTRACTOR as to details of doing the work herein covered or to exercise a measure of control over the work shall be deemed to mean that CONTRACTOR shall follow the desires of DOW in the results of the work only." 89 S.W.3d at 606-07. This provision, the Supreme Court concluded, did "not delegate to Dow the right to control the means, methods, or details" of the subcontractor's work as necessary to give rise to a contractual right of control. Id. at 607; Brazos Contractors, 596 S.W.3d at 302; see also Jacobs v. Huser Constr., Inc., 429 S.W.3d 700, 704-05 (Tex. App.-San Antonio 2014, no pet.) (similar contract language merely gave the general contractor the right to ensure the work met "specifications and schedules" but did not retain "control over the details" of the subcontractor's work).
In contrast, contracts that grant the general contractor broad supervisory control over the independent contractor's work are more likely to give rise to a contractual right of control. E.g., Redinger, 689 S.W.2d at 418 (a party that retains "supervisory control" over a subcontractor's work has a duty to exercise that supervisory control with reasonable care) (citing Restatement (Second) of Torts § 414 cmt. a (1965)).
Here, the contract between PRSI and 3-J Ryan specifically provides: "When the PRSI notifies the Contractor, either verbally or in writing, that the Contractor is not complying with a safety and health requirement either set forth in this Contract or incorporated by reference, the Contractor shall correct the deficiency immediately."
This provision is unambiguous and we construe its meaning as a matter of law. See El Paso Field Servs., L.P., 389 S.W.3d at 806. Though the provision is not a retention of general supervisory authority, it does reserve to PRSI the right to require 3-J Ryan to "correct" an unsafe work practice. 3-J Ryan is thus not free to do the work entirely in the manner it sees fit. The rights retained by this provision are analogous to those necessary to establish a contractual right of control and granted to PRSI certain of the means, methods, or details of Ryan's work. See Dow Chem. Co., 89 S.W.3d at 606; Brazos Contractors, 596 S.W.3d at 302-03. We therefore sustain Appellant's second issue, and reverse the summary judgment as to PRSI.
D. Negligent Undertaking
In a portion of their fifth issue, appellants argue that the trial court erred in granting summary judgment in favor of PRSI because, "[a]part from its premises liability, PRSI is also liable to Torres for its negligent undertaking, which is a 'separate and distinct' theory from negligence activity or premises liability." PRSI asserts that this issue is waived because appellants did not plead a claim for negligent undertaking. Appellants argue that, although they did not expressly plead a claim for "negligent undertaking," a fair reading of their petition includes this theory because they alleged that PRSI "control[ed] the placement of defective scaffolding equipment on PRSI's premises" and "fail[ed] to follow its own policies and procedures requiring that its employees ensure that [a] self-retracting lifeline be placed on the scaffold."
One who voluntarily, whether gratuitously or for compensation, undertakes an affirmative course of action for the benefit of another has a duty to exercise reasonable care that the other's person or property will not be injured by the undertaking. Colonial Sav. Ass'n v. Taylor, 544 S.W.2d 116, 119-20 (Tex. 1976). To establish a "negligent undertaking," the plaintiff must show that: (1) the defendant undertook to perform services that it knew or should have known were necessary for the plaintiff's protection; (2) the defendant failed to exercise reasonable care in performing those services; and either (a) the plaintiff suffered harm because of his reliance on the defendant's performance or (b) the defendant's failure to exercise such care increased the plaintiff's risk of harm. Nall v. Plunkett, 404 S.W.3d 552, 555-56 (Tex. 2013) (citing Restatement (Second) of Torts § 324A (providing rule for liability to third person for negligent performance of undertaking)).
The critical inquiry concerning the duty element in a negligent undertaking is whether the defendant acted in a way that requires the imposition of a duty where one otherwise would not exist. Id. at 555. Such a duty may arise if a person affirmatively undertakes to provide services to another upon which reliance can be based. See Osuna v. S. Pac. R.R., 641 S.W.2d 229, 230 (Tex. 1982) ("Having undertaken to place a flashing light at the crossing for the purpose of warning travelers, the railroad was under a duty to keep the signal in good repair, even though the signal was not legally required."). Importantly, a duty is not created by a failure to act. See Fort Bend Cty. Drainage Dist. v. Sbrusch, 818 S.W.2d 392, 397 (Tex. 1991).
Thus, appellants' allegations that PRSI "control[ed] the placement" of scaffolding on PRSI's premises and "fail[ed] to" follow its policies and procedures do not allege an affirmative undertaking of services. See id.
We overrule this portion of appellants' fifth issue.
In the remainder of their fifth issue, appellants assert that NPS also "owed a negligent-undertaking duty of care." Setting aside that appellants state that this theory was not "contemplated in the Court's grant of final summary judgment," because we sustain appellants' third issue, below, we do not reach the remainder of their fifth issue.
E. Summary Judgment for NPS
In their third issue, appellants argue that there are fact issues as to the duty element of their premises liability claim against NPS because the evidence shows that NPS had control over the scaffolding at issue. In a portion of their first and sixth issues, appellants generally challenge the trial court's summary judgment in favor of NPS and assert that the evidence raises genuine issues of fact as to the elements of their claim.
1. Nature of the Claim
NPS first asserted that it was entitled to summary judgment because appellants' claim is based solely in premises liability, and appellants, in their petition, did not assert a premises liability claim. Rather, appellants, in their petition, asserted a general negligence claim against NPS. In their summary-judgment response, appellants stated that they "agree[d] that their case sounds in premises liability and not ordinary negligence." The parties dispute whether appellants alleged a premises liability claim in their petition.
Again, "[n]egligence and premises liability claims are separate and distinct theories of recovery, requiring plaintiffs to prove different, albeit similar, elements to secure judgment in their favor." United Scaffolding, 537 S.W.3d at 471. When the injury is the result of a contemporaneous, negligent activity on the property, ordinary negligence principles apply. Id. When the injury is the result of the property's condition, premises-liability principles apply. Id. Because negligence and premises liability claims are based on independent theories of recovery, they are not interchangeable. Id.
In United Scaffolding, a refinery owner, Valero Energy, hired a contractor, United Scaffolding Inc. ("USI"), to construct scaffolding at its refinery. Id. at 467. According to Valero's and USI's scaffold policies, USI was required to inspect its scaffolds before each work shift and before each scaffold's use. Id. Subsequently, a Valero employee, James Levine, while performing work 15 feet above ground on a USI scaffold, slipped on a sheet of plywood that was not nailed down on the scaffold and fell up to his arms through a hole in the scaffold platform. Id. Levine sued USI, alleging that USI created a dangerous condition by "improperly assembling, erecting, and/or securing the scaffolding." Id. at 472. Levine further alleged that USI failed to "adequately determine dangerous conditions [it] created," "correct the dangerous condition which existed with the scaffolding," "secure the scaffolding in a proper and safe work condition," and warn "that a dangerous condition existed." Id. The supreme court concluded that, because Levine claimed that his injury resulted from a physical condition USI created and then left on the premises, Levine's alleged injury arose from a premises defect. Id. at 473, 479.
Here, appellants stated in their petition: "Plaintiffs bring negligence, gross negligence, and negligence per se claims against NPS." Specifically, they alleged, in pertinent part, that Torres was injured because NPS:
a. erect[ed] unsafe scaffolding;
b. fail[ed] to ensure that the scaffolding it erected contained proper fall protection;
c. fail[ed] to ensure that the scaffolding could be used safely;
d. fail[ed] to plan and provide for safe ingress and egress to the scaffold platform;
e. certif[ied] that the scaffolding was safe for use, when it in fact was not;
. . .
g. fail[ed] to provide adequate safety equipment; [and]
h. fail[ed] to fix dangerous conditions and/or warn about dangerous conditions[.]
Thus, like in United Scaffolding, appellants' allegations are that Torres was injured by a condition that NPS created and then left on the premises. See id. Namely, NPS created a "dangerous condition" by erecting unsafe scaffolding, failing to provide for safe ingress to the scaffold platform, and failing to provide adequate safety equipment. And, NPS failed to rectify or warn of the dangerous condition on the scaffold and certified that the scaffold was safe for use, when in fact it was not.
We conclude that appellants, in their petition, presented a claim based on an allegedly dangerous condition of the premises. See id. at 471. Thus, appellants asserted a premises liability claim. See id. at 471, 473 ("The only fair reading of Levine's pleadings requires the determination that Levine did in fact allege that USI assumed and retained the right to control the scaffolding it constructed, giving rise to a duty to make and keep the premises safe for business invitees . . . .").
2. No-Evidence Summary Judgment
NPS, in its summary-judgment motion, argued that there is no evidence that it owed a duty to Torres because there is no evidence that it "controlled the details of [Torres's] work."
The relevant inquiry for determining what, if any, duties NPS owed to Torres is NPS's control over the scaffold itself. See id. at 479. The inquiry is not whether NPS was present at the work site, but whether NPS retained a sufficient right of control over the scaffold work site, such that it had the responsibility to remedy the condition that Torres alleges caused his injury. Id. at 475 (distinguishing between occupancy and control). The duty question must focus on NPS's right to control the scaffold and subsequent responsibility to warn about or remedy a dangerous condition on the scaffold. See id. at 479.
Appellants' summary-judgment evidence reflects that Ryan hired NPS to erect, maintain, and inspect scaffolding at PRSI's refinery for Ryan's employees to use in performing turnaround work. Because any contract between Ryan and NPS is not before us, we consider appellants' evidence of NPS's exercise of actual control. See Dow Chem. Co., 89 S.W.3d at 606.
Appellants presented evidence that Elliott Johnson, a PRSI safety supervisor, testified in his deposition that NPS was obligated to inspect each scaffold and ensure that it was safe before Ryan employees used it. Lance Harp, a Ryan field safety supervisor, testified that "the scaffold company," i.e., NPS, built the scaffold at issue, was responsible for it, and that Ryan was "not supposed to alter" the scaffold at all. Harp testified that only NPS was authorized to inspect the scaffold, that NPS inspected its scaffolds "every day," and that NPS was responsible for determining whether a scaffold was safe to use and for assigning the appropriate safety tag. Similarly, Johnson, a PRSI safety supervisor, and Richard Funesti, a PRSI safety manager, each testified that NPS was in control of the scaffold at issue.
In his deposition, Jesse Rodriguez, president of NPS, testified that NPS was responsible for inspecting the scaffold at issue, which included taking into account access to the platform, and allowing people to work on the scaffold:
Q. Your employees are the ones who are filling out these yellow tags, correct?
A. Yes.
Q. And your employees are the ones who are assigning them to say that the scaffold can be used; is that fair?
A. Well, yes.
Q. Would you expect your employees to be taking into account things like access and egress when they are signing these yellow tags allowing people to work on the scaffold?
A. Yes.
In United Scaffolding, the Texas Supreme Court concluded that the evidence reflected USI's right to control the scaffolding it constructed. 537 S.W.3d at 478. It was undisputed that Valero hired USI to install, inspect, modify, and dismantle scaffolding at refinery. Id. at 474. The evidence showed that Valero employees were authorized to construct, use, or dismantle a scaffold without first securing USI's permission. Id. And, USI was responsible for performing inspections to ensure the scaffold's safety before its use. Id. at 477. The court concluded that, once Valero placed USI in the sole position to authorize the use of scaffolds it constructed, "USI attained the sufficient right to control those scaffolds." Id. at 479. And, because USI was obligated to inspect the scaffolds before Valero's workers used them, USI maintained the right to control the scaffolds until they were dismantled. Id. The court concluded that the evidence established that USI retained a right to control the scaffold, and thus it owed Levine a duty of care as to the dangerous conditions on the scaffold. Id. at 480.
Here, similarly, because appellants presented evidence that NPS was in the sole position of inspecting, and authorizing the use of, its scaffolds, we conclude that appellants presented some evidence that NPS retained control over the scaffold at issue. See id. 477, 479. Thus, appellants presented more than a scintilla of evidence that NPS owed Torres a duty of reasonable care. See id.
Accordingly, to the extent that the trial court granted summary judgment in favor of NPS based on its no-evidence motion, we hold that the trial court erred. See also Griffin, 401 S.W.3d at 160-61 (holding that trial court erred in granting summary judgment on premises-defect claim because evidence of actual control was presented).
Because we conclude that the trial court erred in granting summary judgment under the no-evidence standard, we consider whether the trial court erred in granting summary judgment under the traditional standard. See Ford Motor Co., 135 S.W.3d at 600; see also Tex. R. Civ. P. 166a(c).
3. Traditional Summary Judgment
In its motion for traditional summary judgment, NPS argued that it was entitled to judgment because the summary-judgment evidence conclusively establishes that: (1) NPS did not own or have control over the premises; (2) NPS "did not owe [Torres] a legal duty on the day of the incident"; (3) "even if there was a duty, NPS did not breach a legal duty to [Torres]"; and (4) NPS was not the proximate cause of Torres's injuries.
With respect to the duty element, NPS asserted that appellants' "cause of action against it is limited as a matter of law to the Texas definition of premises liability as set forth in Austin v. Kroger Tex., L.P.," as follows: "Applying the general rule, the Court has repeatedly described a landowner's duty as a duty to make safe or warn against any concealed, unreasonably dangerous conditions of which the landowner is, or reasonably should be, aware but the invitee is not." 465 S.W.3d at 203. And, because the weather, rainwater, wet surfaces and the tarp [were] all open and obvious, not concealed and were all known to [Torres] before he elected to put himself in position to fall, NPS had absolutely no duty to warn, no duty to make the conditions safe and has no liability as a matter of law.
As discussed above, however, this is not a preexisting conditions case. See Coastal Marine, 988 S.W.2d at 225. With respect to conditions arising from an independent contractor's work, the "relevant inquiry is whether the [contractor] assumed sufficient control over the part of the premises that presented the alleged danger so that the [contractor] had the responsibility to remedy it." See United Scaffolding, 537 S.W.3d at 473-74 (applying control test in suit by injured refinery employee against scaffold builder). Thus, whether NPS owed Torres a premises duty must be determined by examining whether NPS maintained a right to control the scaffold that allegedly caused Torres's injury. See id. Again, control "may be expressed by contract or implied by conduct." Id. at 473.
Because NPS's summary-judgment evidence does not contain its contract, if any, with Ryan, we consider whether NPS presented summary-judgment evidence conclusively negating its duty, that is, its actual control over the scaffold at issue. See id. at 474, 476; see also Siegler, 899 S.W.2d at 197 (defendant moving for traditional summary judgment must disprove at least one essential element of plaintiff's cause of action).
Under its premises-liability point in its traditional summary-judgment motion, NPS, without citing evidence, simply states: "Here, NPS did not own or have control of the premises. Most importantly, NPS did not owe any duty to [Torres]."
Elsewhere in its summary-judgment motion, NPS relies on the PRSI Incident Investigation report, email correspondence regarding Torres's accident report, Torres's medical records, a photograph of the scaffold at issue (shown above), and excerpts of the depositions of Torres, Reynolds, Johnson, Funesti, and Harp.
In the medical records and excerpts of Torres's testimony that NPS cites, Torres stated after his fall that he was injured because he lost his footing on the ladder, and he testified that his feet were muddy, that he saw the tarp blocking the entry into the scaffold before he climbed the ladder, and that he fell when he lifted the tarp over his head.
In the excerpts of deposition testimony that NPS appended as its summary-judgment evidence, Harp, a Ryan safety supervisor, testified that only NPS inspected and safety-tagged the scaffolds it built. NPS inspected the scaffold at issue and tagged it as safe for use by Ryan employees, including Torres. Harp testified that an NPS "scaffold crew" "would come by and update [the safety tags] every day."
Funesti, a PRSI safety manager, testified that NPS was responsible for inspecting its scaffolds on the premises and assigning safety tags. He noted that a "green tag" means "you can just use it, you don't need any fall protection." A yellow tag" means that "you can use it," subject to certain criteria marked off on the tag. A "red tag" means "you don't use it." Funesti testified that the tarp on the scaffold from which Torres fell constituted a dangerous condition. He noted: "NPS-because it was a scaffold, I would expect the scaffold builder to look at it because of it being scaffold. From my assessment something with a tarp, fire blankets or so, they would look at that to make sure it's safe . . . ." And, Reynolds, a PRSI construction supervisor, testified that NPS had a duty to identify means for safe access and egress to the scaffolds it built.
Johnson, a PRSI safety supervisor, testified that having to reach three or four feet at the gate to the scaffold platform created a safety hazard. And, on March 18, 2015, the day of Torres's fall, NPS inspected the scaffold at issue, noted it as "in compliance," and assigned it a "yellow tag," which indicated that the scaffold could be used, but "[f]all protection ha[d] to be utilized." However, Johnson testified, Torres's tie-off points were limited and, as such, NPS's policies required the use of a retractable lifeline or ladder cage, neither of which were there.
As discussed above, the supreme court held in Lee Lewis Construction that evidence that the general contractor performed inspections, was aware of the dangerous condition, and approved the dangerous act constituted more than a scintilla of evidence that the contractor retained an actual right of control. 70 S.W.3d at 784. Thus, the contractor owed the subcontractor's employee a duty of care. Id.
Similarly, here, NPS's own summary-judgment evidence shows that it had the sole authority to inspect its scaffolding on the premises, that it inspected its scaffolding every day, that it inspected the scaffold at issue on the same day that Torres fell, that the gate and tarp were in place at the time of the inspection and constituted dangerous conditions, and that NPS specifically approved the scaffold for use. And, although a yellow safety tag indicated that fall-protection was required, none was present.
Taking as true all evidence favorable to appellants, as non-movants, and indulging every reasonable inference and resolve any doubts in their favor, as we must, we conclude that NPS's own summary-judgment evidence constitutes more than a scintilla of evidence that NPS retained actual control over the scaffold. See Valence Operating Co., 164 S.W.3d at 661. Thus, NPS has not conclusively negated the duty element of appellants' claim. See Lee Lewis Constr., Inc., 70 S.W.3d at 784. Because NPS's summary-judgment evidence does not establish its right to judgment, the burden never shifted to appellants to present evidence to raise a genuine issue of material fact precluding summary judgment. See Siegler, 899 S.W.2d at 197; see also City of Hous. v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979) (holding non-movant is not required to respond with evidence if deficiencies in movant's own proof or legal theories will defeat the movant's right to judgment as matter of law). Accordingly, we hold that the trial court erred in granting summary judgment in favor of NPS.
We sustain appellants' third issue and the remainder of their first and sixth issues, in which they generally assert that the trial court erred in granting summary judgment in favor of NPS and failed to find a fact issue.
Having sustained appellants' third issue, we do not reach the remainder of their fourth issue, in which they assert that the necessary-use exception applies to their claim against NPS.
Conclusion
We reverse the trial court's summary judgment and remand for further proceedings in accordance with this opinion.
DISSENTING OPINION
Sherry Radack Chief Justice
Because I conclude that the trial court did not err in rendering summary judgment for appellee, Pasadena Refining Systems, Inc. ("PRSI"), on the premises liability claim by appellants, Michael Torres ("Torres") and Enedina Torres, I respectfully dissent. I believe that appellants did not present evidence raising a genuine issue of material fact on the duty element of their claim.
Whether PRSI owed Torres a duty is determined by the law governing a general contractor's duties to an independent contractor's employees. See Dow Chem. Co. v. Bright, 89 S.W.3d 602, 605-06 (Tex. 2002) (citing Koch Ref. Co. v. Chapa, 11 S.W.3d 153, 155 n.1 (Tex. 1999) ("A general contractor owes the same duty as a premises owner to an independent contractor's employee.")). In this context, there are two categories of premises-liability cases: (1) defects existing on the premises when the independent contractor entered and (2) defects arising from the independent contractor's work activity. Coastal Marine Serv. of Tex., Inc. v. Lawrence, 988 S.W.2d 223, 225 (Tex. 1999). The first category includes those conditions that existed on the premises when the business invitee entered for business purposes or that were created through some means unrelated to the activity of the independent contractor and its injured employee. Clayton W. Williams, Jr., Inc. v. Olivo, 952 S.W.2d 523, 527 (Tex. 1997). The second category includes those conditions that arise from the independent contractor's (or its injured employee's) work activity. Id. Here, the issue is whether PRSI is subject to liability to Torres under the second category.
The Texas Supreme Court has held that, under the second category, when a dangerous condition arises from an independent contractor's work, the "general contractor ordinarily has no duty to warn the independent contractor's employees" of the condition. Id. (emphasis added). "The rationale for this rule is that a general contractor normally has no duty to ensure that an independent contractor performs its work in a safe manner." Id. The limited exception to this rule does not apply to this case.
Limited Exception
In 1985, in Redinger v. Living, Inc., the supreme court noted that it is the duty of the independent contractor to ensure that work conducted under its control is performed in a safe manner. 689 S.W.2d 415, 418 (Tex. 1985). The court held that if a general contractor exercises "some control" over an independent contractor's work, a duty arises to exercise reasonable care in supervising the activity. Id. The court adopted Restatement (Second) of Torts, section 414, which states:
One who entrusts work to an independent contractor, but who retains control of any part of the work, is subject to liability for physical harm to others for whose safety the [general contractor] 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)). Since Redinger, however, the supreme court has expressly limited the duty that arises on the part of a premises owner or general contractor.
In Koch Refining, the supreme court noted: "Every premises owner must have some latitude to tell its independent contractors what to do, in general terms, and may do so without becoming subject to liability." 11 S.W.3d at 156. The court noted that, in Redinger, it adopted only a "limited-duty rule" and that the comments to section 414 state that:
In order for the rule stated in this Section to apply, the [general contractor] 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. . . .Id. at 155 (quoting Restatement (Second) of Torts § 414 cmt. c (emphasis added)); see, e.g., Hoechst-Celanese Corp. v. Mendez, 967 S.W.3d 354, 357-58 (Tex. 1998) (holding that requiring independent contractor to observe and promote compliance with federal laws, general safety guidelines, and other standard safety precautions did not impose duty on general contractor to ensure safety of independent contractor's employees).
In Dow Chemical, the supreme court held that, for a duty to arise, a general contractor must have retained the right to control the "operative details," that is, the "means, methods, or details," of the independent contractor's work. 89 S.W.3d at 606, 608; see, e.g., Enserch Corp. v. Parker, 794 S.W.2d 2, 6 (Tex. 1990) (holding that general contractor's provision of procedures, frequent visitation, and supervision of independent contractor's employees constituted evidence of retained control); Redinger, 689 S.W.2d at 418 (imposing duty on general contractor who was present on worksite and exercised control over work by issuing on-site orders directing means and method that caused plaintiff's injury). In addition, the general contractor's right of control "must relate to the injury the negligence causes." Dow Chem., 89 S.W.3d at 606. That is, there must be a nexus between the general contractor's retained control and the condition or activity that caused injury to the independent contractor's employee. See Mendez, 967 S.W.2d at 357. It is not enough that the general contractor controlled one aspect of the independent contractor's activities if the injury arose from another. Gen. Elec. Co. v. Moritz, 257 S.W.3d 211, 214 (Tex. 2008).
When, as here, the injury arises from an alleged failure by the general contractor to maintain a safe workplace, the inquiry focuses on whether the general contractor retained control over the condition or activity that caused injury. See United Scaffolding, Inc. v. Levine, 537 S.W.3d 463, 479 (Tex. 2017) (holding that "relevant inquiry" for determining duties owed was defendant's right of control over scaffold and subsequent responsibility to warn about or remedy dangerous condition thereon and that court of appeals erred in expanding scope of control inquiry to consider control over general refinery operations); Lee Lewis Constr., Inc. v. Harrison, 70 S.W.3d 778, 783 (Tex. 2001) (considering general contractor's control over fall-protection systems used by independent contractor's employees).
Notably, "safety requirements give rise to a narrow duty of care." Mendez, 967 S.W.3d at 357. That is, a "general contractor that promulgates mandatory safety requirements and procedures owes only a narrow duty to ensure that those requirements and procedures do not 'unreasonably increase, rather than decrease, the probability and severity of injury.'" JLB Builders, L.L.C. v. Hernandez, 622 S.W.3d 860, 867 (Tex. 2021) (quoting Mendez, 967 S.W.3d at 358). A general contractor who requires that an independent contractor observe workplace safety guidelines does not incur an unqualified duty to ensure the safety of the independent contractor's employees. Mendez, 967 S.W.3d at 357-58.
Discussion
Here, Torres alleged that, while working for an independent contractor, 3-J Ryan, Inc. ("Ryan"), he fell from defective scaffolding on the PRSI premises that was constructed, maintained, and inspected by a Ryan subcontractor, National Plant Services, LLC ("NPS"). Torres alleged that safety issues, i.e., a lack of proper ingress to the scaffold platform and a lack of a self-retracting lifeline on the scaffold, caused or contributed to his injuries. He asserted that PRSI, the refinery premises owner or general contractor, had a duty to either warn him of such conditions or to make them safe.
Thus, the duty inquiry must focus on whether appellants presented evidence that PRSI had control over the safety of the scaffold at issue and over Ryan's employees' use of fall-protection systems. See Levine, 537 S.W.3d at 479 (holding that issue presented was control over safety of scaffold used by independent contractor's employees); Lee Lewis Const., 70 S.W.3d at 783 (holding that issue presented was control over fall-protection systems used by independent contractor's employees). Such control may be established through: (a) evidence of a contractual agreement expressly assigning PRSI a right of control encompassing the safety of the scaffold at issue or Ryan's employees' use of fall-protection systems or (b) evidence that PRSI actually exercised such control. See Dow Chem., 89 S.W.3d at 606.
Here, in its no-evidence motion for summary judgment, PRSI argued that it was entitled to judgment because there was no evidence that it (1) retained such contractual control or (2) exercised actual control. See Tex. R. Civ. P. 166a(i).
1. Contractual Control
In their summary-judgment response, appellants asserted that the terms of the contract ("Contract") between PRSI and Ryan "establish[] PRSI's retention of contractual control over the safety of the work."
Our primary objective in construing a contract is to give effect to the parties' intent. Pathfinder Oil & Gas, Inc. v. Great W. Drilling, Ltd., 574 S.W.3d 882, 888 (Tex. 2019). We interpret contract language according to its plain, ordinary, and generally accepted meaning unless the contract directs otherwise. Id. We consider the writing as a whole in an effort to harmonize and give effect to all the provisions of the contract so that none will be rendered meaningless. Id. at 889. "Contract terms cannot be viewed in isolation . . . because doing so distorts meaning." Id. "Consistent with our long-established precedent," "[n]o one phrase, sentence, or section [of a contract] should be isolated from its setting and considered apart from the other provisions." Id.
In reversing the trial court's summary judgment granted to PRSI, the majority relies on the following single sentence from the Contract: "When the PRSI notifies the Contractor, either verbally or in writing, that the Contractor is not complying with a safety and health requirement either set forth in this Contract or incorporated by reference, the Contractor shall correct the deficiency immediately." The majority concludes that reserving "the right" to require Ryan to correct an unsafe work practice is "analogous" to granting PRSI a contractual right to control the "means, methods, or details of Ryan's work."
Reading the Contract as a whole, however, reveals that Section 1.2 expressly disclaims any right on the part of PRSI to control the "manner or method" of Ryan's work:
PRSI shall not have the right to control or direct the manner or method of the performance or providing of the Services/Goods by [Ryan]. PRSI is interested only in the results obtained and has only the general right of inspection and supervision in order to secure the satisfactory completion of Services/Goods.(Emphasis added.) Section 1.2 designates Ryan as an "independent contractor" and makes it solely responsible for the supervision, direction, and control of its employees and subcontractors.
The sentence on which the majority relies, in bold emphasis below, appears in its context at Exhibit C of the Contract, "PRSI General HSE [Health, Safety, and Environmental] Requirements," which provides, in pertinent part:
[Ryan] shall be fully and completely responsible for managing all HSE considerations associated with its performance of the work unless specific direction is otherwise provided in writing by PRSI.
. . . .
[Ryan] shall not allow an unsafe . . . condition or behavior over which it has control to be conducted during performance of the work. When such a condition or behavior is identified by [Ryan], the related activity shall be discontinued until the condition or behavior has been eliminated or mitigated. If [Ryan] does not have the ability to eliminate or mitigate the condition or behavior, it shall immediately notify PRSI in writing.
. . . .
PRSI shall have the right, but not the obligation, to inspect the worksite and associated work records and to interview personnel to ascertain that [Ryan] is complying with the expectations and requirements of this attachment.
Should [Ryan] fail to observe the requirements of this attachment, PRSI shall have the right to stop the work performed by [Ryan] at the worksite and to take the action necessary to resolve the condition with all related costs of such action for [Ryan's] account.
. . . .
Stop Work or Suspension. The PRSI has the right to stop or suspend the work of [Ryan] for any reason, including, but not limited to, [Ryan's] failure to comply with any of the safety and health requirements either set forth in this Contract or incorporated by reference.
Correction of Deficiencies. When the PRSI notifies [Ryan], either verbally or in writing, that [Ryan] is not complying with a safety and health requirement either set forth in this Contract or incorporated by reference, [Ryan] shall correct the deficiency immediately.
. . . .
B. Worksite Safety.
. . . .
[Ryan] shall be responsible for initiating, maintaining and supervising all safety precautions and programs in connection with performance of the work. . . . .
. . .
[Ryan] shall perform the work in alignment with the following specific HSE requirements.
. . . .
Personal Protective Equipment
. . . .
[Ryan] shall provide and require all personnel to wear specialty personal protective equipment as required by the task or specified on the work permit (e.g., fall protection systems . . .) . . . .(Emphasis added.) Thus, read as a whole, Exhibit C, which governs Health and Safety requirements and "Worksite Safety," expressly states that Ryan "shall be fully and completely responsible for managing all HSE considerations associated with its performance of the work" and "shall be responsible for initiating, maintaining and supervising all safety precautions and programs in connection with performance of the work" (emphasis added). With respect to fall-protection systems, the Contract expressly requires Ryan, not PRSI, to "provide and require all personnel to wear specialty personal protective equipment as required by the task or specified on the work permit (e.g., fall protection systems . . .)."
Exhibit C provides that PRSI reserved a "right, but not the obligation," to inspect the worksite to ascertain whether Ryan was complying with the HSE requirements, and PRSI reserved a "right" to stop the work. It is well established that reserving a "general right to order the work stopped" or "to inspect its progress" is not evidence of retained control. Dow Chem., 89 S.W.3d at 607-08 ("[I]t is not enough that the premises owner has merely a general right to order the work stopped."); Koch Ref., 11 S.W.3d at 155; see also Gonzales v. Ramirez, 463 S.W.3d 499, 506-07 (Tex. 2015) ("[A] possibility of control is not evidence of a 'right to control' actually retained. . . ."); Ellwood Tex. Forge Corp. v. Jones, 214 S.W.3d 693, 702 (Tex. App.-Houston [14th Dist.] 2007, pet. denied) (holding right to forbid independent contractor from working without fall protection did not impose duty to ensure that independent contractor's employees used fall protection); Victoria Elec. Co-op, Inc. v. Williams, 100 S.W.3d 323, 330 (Tex. App.-San Antonio 2002, pet. denied) (retaining "latitude to 'inspect, test, and approve' . . . work to make sure it was complying with . . . safety requirements" did "not implicate a right to control the details of the independent contractor's work"). Imposing liability on owners and general contractors who retain a right to order the work stopped "would deter [them] from setting even minimal safety standards." Dow Chem., 89 S.W.3d at 608.
Notably, the Contract in this case contains the same provision that the majority concludes distinguishes the contract in Dow Chemical. See id. at 606-07. The majority states that the contract in Dow Chemical "clearly disclaimed any retention of a contractual right of control on behalf of the general contractor" in the emphasized portion of the following provision:
30.01. Responsibilities-CONTRACTOR shall be an independent contractor under this Contract and shall assume all of the rights, obligations and liabilities, applicable to it as such independent contractor hereunder and any provisions in this Contract which may appear to give DOW the right to direct CONTRACTOR as to details of doing the work herein covered or to exercise a measure of control over the work shall be deemed to mean that CONTRACTOR shall follow the desires of DOW in the results of the work only.Id. (emphasis added).
Here, however, the Contract also expressly disclaims that PRSI retained any right to control the "manner or method" of Ryan's work and states that PRSI is interested only in the results obtained, as follows:
1.2 INDEPENDENT CONTRACTOR. The Parties agree that Contractor is and always shall be an independent contractor in the performance of every part of this Contract. . . . PRSI shall not have the right to control or direct the manner or method of the performance or providing of the Services/Goods by [Ryan]. PRSI is interested only in the results obtained and has only the general right of inspection and supervision in order to secure the satisfactory completion of Services/Goods.(Emphasis added.) Thus, like the supreme court concluded in Dow Chemical, the Contract here did not impose a duty on PRSI to ensure Torres's safety because PRSI did not retain the right to control the means, methods, or details of Torres's work. See id. at 607.
In JLB Builders, the supreme court considered a similar contract, stating that the independent contractor there was to perform as such and was solely responsible for the supervision, direction, and control of its employees, "for the manner and means of accomplishing the Work," and "for initiating, maintaining and supervising all safety precautions and programs in its Work." 622 S.W.3d at 869. The contract also similarly stated that the general contractor had "no authority to direct, supervise or control the means, manner or method of construction of the Work." Id. The supreme court held that such provisions "clearly do not confer a right to control" and that it saw "no indication that [the general contractor's] supervisory control extended to the means and methods of [the] work." Id. at 869-70. The contract there also required the independent contractor to comply with numerous safety procedures, including a detailed "Fall Protection Plan" mandating safety harnesses. Id. at 869. However, as here, the plaintiff did not explain how the procedures unreasonably increased the probability and severity of injury. Id. (citing Dow Chem., 89 S.W.3d at 607 (rejecting that requiring independent contractor to comply with owner's safety rules and regulations gave rise to contractual right to control work)). The supreme court held as a matter of law that the contract did not provide a basis for imposing liability on the general contractor. Id. at 870.
Here, PRSI retained an independent contractor, Ryan, to perform the work at issue. Ryan, not PRSI, subcontracted to NPS the design, construction, and daily inspection of the scaffolding at issue. Subsequently, alleging that he was injured by a defect in the scaffold, Torres brought a negligence claim against PRSI. As discussed above, the Contract between PRSI and Ryan, like the contracts in JLB and Dow, expressly disclaimed any right on the part of PRSI to control the "manner or method" of the work. See id.; Dow Chem., 89 S.W.3d at 606-07. Also similarly, the Contract expressly designated Ryan as an independent contractor and made it solely responsible for the supervision, direction, and control of its employees and subcontractors. Like in JLB, the Contract made Ryan "fully and completely responsible for managing all HSE considerations associated with its performance of the work" and "for initiating, maintaining and supervising all safety precautions and programs in connection with performance of the work." (Emphasis added). In addition, Ryan, and not PRSI, was required to "provide and require all personnel to wear specialty personal protective equipment . . . (e.g., fall protection systems . . .)." Because there is no evidence that PRSI controlled the "the means, methods, or details" of Torres's work, like in JLB and Dow, PRSI established as a matter of law that it owed no duty to ensure Torres's safety. See JLB Builders, 622 S.W.3d at 869-70; Dow Chem., 89 S.W.3d at 606-07.
Further, as discussed above, PRSI's reservation of a "right, but not the obligation," to inspect the worksite and a "right" to stop the work are not evidence of retained control. See Dow Chem., 89 S.W.3d at 607-08. The supreme court has expressly held that a general contractor's implementation of mandatory safety procedures in creating a safer construction site "does not serve as evidence" that its independent contractors are "not free to do the work in their own way and is not evidence that [the general contractor] controlled the method of work or its operative details." Id. at 608 (emphasis added). "[R]equiring compliance with safety procedures does not give rise to a duty to an independent contractor's employees so long as those procedures do not unreasonably increase, rather than decrease, the probability and severity of injury." JLB Builders, 622 S.W.3d at 869 (internal quotations omitted). There is no allegation in this case that PRSI promulgated safety rules or requirements that increased the probability or severity of Torres's injury. See id.
Based on the foregoing, I would conclude that appellants did not present evidence that PRSI retained contractual control over the safety of the scaffold or over Ryan's employees' use of fall-protection systems. Accordingly, I would address appellants' argument that PRSI exercised actual control.
2. Actual Control
With respect to actual control, appellants, in their summary-judgment response, argued that PRSI was "actively engaged in directing, supervising, and controlling the details of the work that Torres and [Ryan] were performing."
This inquiry focuses on whether appellants presented evidence that PRSI exercised actual control over the safety of the scaffold at issue or Ryan's employees' use of fall-protection systems. See United Scaffolding, 537 S.W.3d at 479 (holding relevant inquiry was defendant's right to control scaffold and responsibility to warn about or remedy dangerous condition thereon and that court of appeals erred in expanding scope of inquiry to factors such as control over refinery operations); Lee Lewis Constr., 70 S.W.3d at 783 ("[W]e must determine if [plaintiffs] presented more than a scintilla of evidence that [the general contractor] exercised actual control over safety, in particular, the fall-protection systems used by [the independent contractor's] employees.") (emphasis added).
In Ellwood Texas Forge Corp., the court of appeals concluded that there was no evidence of actual control. 214 S.W.3d at 704. There, Ellwood, a steel-foraging plant, hired PI, an independent contractor, to replace an air conditioner. Id. at 695- 96. Jones, an employee of PI, was injured when he fell from a ladder during the work. Id. at 696. Jones, who was not wearing fall-protection equipment at the time of his fall, sued Ellwood. Id. Ellwood's safety policies required independent contractors' employees working over six feet above ground to use fall-protection equipment, and Ellwood had a right to enforce its safety rules and stop the work. Id. at 701. Before the work began, an Ellwood maintenance coordinator, Wegner, had signed a safe work permit intended to identify the specific jobs that PI was to perform and the required safety equipment, but no fall-protection devices were listed. Id. at 696. Wegner testified that he did not know that PI employees were working without fall protection; Jones testified that Wegner was at the jobsite and knew. Id.
On appeal, Ellwood argued that there was no evidence that it exercised actual control over the safety of the jobsite. See id. at 698, 701. Jones argued that Ellwood had such control because it "had a right to forbid [PI] from working without fall protection and to dictate what fall protection [PI] used." Id. at 697-98. The court held that "Ellwood's right to forbid PI employees from doing their work in a dangerous manner [was] insufficient to impose a duty on Ellwood to ensure that PI and its employees followed Ellwood's safety rules and regulations." Id. at 698. Instead, a premises owner assumes only a narrow duty to ensure that its rules or requirements do not unreasonably increase the probability and severity of injury. Id. at 702. Actual control is not demonstrated by having a "right to preclude work from beginning in the first instance or stopping it after it has commenced" or by placing a safety representative on site to observe the independent contractor's work. Id.
In support of their argument, appellants rely on Lee Lewis Construction, 70 S.W.3d 778. There, a hospital hired a general contractor, LLC, to remodel a hospital tower. Id. at 782. LLC hired an independent contractor, KK Glass, to provide glass work on the project. Id. While Harrison, a KK employee, was working on the tower's tenth floor, he fell and suffered fatal injuries. Id. It was undisputed that Harrison was not using an independent lifeline that would have stopped his fall. Id. Harrison's wife sued LLC for negligence. Id. The supreme court considered whether Harrison presented more than a scintilla of evidence that LLC exercised actual control over safety, i.e., the fall-protection systems used by KK employees. Id. at 783. The record showed that LLC's president assigned LLC's job 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. LLC's superintendent "personally witnessed and approved of the specific fall-protections systems [KK] used" and "knew of and did not object to [KK] employees using a bosun's chair without an independent lifeline." Id. The supreme court concluded that this testimony constituted more than a scintilla of evidence of actual control over the fall-protection systems on the jobsite. Id.
In Dow Chemical, the supreme court examined Lee Lewis. In Dow, a premises owner, Dow, retained Gulf States, an independent contractor, who employed Bright as a carpenter. 89 S.W.3d at 605. After Bright, while working on Dow's premises, was injured by a falling pipe put in place by another Gulf States employee, Bright sued Dow. Id. With respect to actual control imposing a duty on Dow, Bright presented evidence that Dow had conferences with Gulf States' employees, performed on-site inspections, maintained personnel on the work site, and retained a right to stop the work. Id. at 607-09. The court concluded, however, that because there was no evidence that Dow had approved how the pipe in question was secured or, knowing of its dangerous condition, instructed Bright to perform the work, Dow did not, as a matter of law, exercise actual control. Id. at 609. The supreme court noted that it had "never concluded that a [premises owner] actually exercised control of a premises where, as [there], there was no prior knowledge of a dangerous condition and no specific approval of any dangerous act." Id. (emphasis added).
Here, appellants did not, in their summary-judgment response in the trial court, point to any evidence that PRSI had prior knowledge of a dangerous condition with respect to the safety of the scaffold or that it specifically approved a dangerous act. See id. Even were we to consider evidence that appellants presented in support of other arguments in their summary-judgment response, i.e., the testimony of PRSI safety supervisor Elliott Johnson that PRSI had prior knowledge that there was not a self-retracting lifeline on the scaffold at issue, appellants did not direct the trial court to any evidence that PRSI specifically approved a dangerous act, such as ordering Torres to utilize the scaffold despite the lack of safe ingress or a self-retracting lifeline. See id.
Thus, like the supreme court concluded in Dow, because appellants did not present evidence that PRSI knew of a dangerous condition and specifically approved a dangerous act, the instant case is distinguishable from Lee Lewis. See Dow Chem., 89 S.W.3d at 609 ("Had the Dow safety representative actually approved how the pipe in question was secured or instructed Bright to perform his work knowing of the dangerous condition, we could have a fact scenario mirroring Lee Lewis.").
In sum, I believe that appellants' summary-judgment evidence does not reflect that PRSI either retained contractual control or exercised actual control over the safety of the scaffold at issue or Ryan's employees' use of fall-protection systems. Accordingly, I would affirm the summary judgment granted in favor of PRSI. Because the majority holds otherwise, I respectfully dissent.