418 S.W.3d 777
Tex. App.2013Background
- This construction project involved roofing work at Villages at Turtle Rock; VC was the general contractor and All American was the roofing subcontractor.
- All American subcontracted roofing repair to Ceniceros, who subcontracted to Salazar, who subcontracted to a group including Gonzalez (the decedent).
- The estate alleged negligence, gross negligence, negligence per se, and negligent hiring; VC and All American moved for summary judgment denying any duty owed to Gonzalez.
- The trial court granted summary judgment for VC and All American without specifying the basis; the estate appealed challenging the evidence and duty issues.
- The court held there was no contractual or actual control by VC or All American over Gonzalez’s safety; hence no duty to Gonzalez and affirmed the summary judgment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did the trial court err in not sustaining objections to summary judgment evidence? | Gonzalez | VC/All American | Issue not preserved; affirmed no duty and affirmed judgment |
| Did VC and All American owe a duty to Gonzalez? | Gonzalez owed safety duty by contract or control | No contractual or actual control; no duty | No duty found; summary judgment proper |
| Did the court err on gross negligence tied to negligence? | Gross negligence premised on negligence | No separate duty; same reasoning | Negligence absence defeats gross negligence claim |
| Did the court err in granting summary judgment on negligence per se? | OSHA regulations create duty | OSHA regs do not create a negligence per se action in this context | Waived and no negligence per se shown |
| Is Gonzalez a third-party beneficiary to contracts between VC-All American or Villages-VC? | Yes, third-party beneficiary | No clear intent to benefit Gonzalez | No third-party beneficiary status; contract not enforceable for Gonzalez |
Key Cases Cited
- Dow Chem. Co. v. Bright, 89 S.W.3d 602 (Tex. 2002) (general contractor duty tied to control over subcontractor)
- Koch v. 11 S.W.3d 155, 11 S.W.3d 155 (Tex. 1999) (control-based duty; supervisory activity must relate to injury)
- Andrews v. DT Construction, Inc., 205 S.W.3d 4 (Tex. App.—Eastland 2006) (contractual retention of safety control not an unqualified duty)
- Barham v. Turner Constr. Co., 803 S.W.2d 731 (Tex. App.—Dallas 1990) (general contractor duty to warn of dangerous conditions pre-work)
- Nabors Drilling, U.S.A., Inc. v. Escoto, 288 S.W.3d 401 (Tex. 2009) (duty question is a question of law; no automatic proof from expert)