579 S.W.3d 460
Tex. App.2019Background
- Plaintiff Roberto Diaz, an employee of asbestos abatement contractor Robles, fell ~17 feet through a false ceiling inside a containment area during an abatement project and was seriously injured.
- Simon Properties hired R&A Consultants to provide project design, project management, and air monitoring for the asbestos abatement; Robles was hired separately as the abatement contractor.
- R&A prepared the project design (specifications), performed air monitoring (including maintaining negative pressure), and had a licensed project manager who could order work stopped for noncompliance with the specifications.
- Diaz alleged negligence against R&A, arguing R&A owed a duty to ensure worker safety (including fall protection/PPE) by virtue of contracts, on-site control, and Texas asbestos regulations; R&A moved for summary judgment asserting no duty.
- The trial court granted summary judgment for R&A; on appeal the court reviewed whether R&A owed a legal duty to Diaz based on contractual rights, actual control, or regulatory obligations.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether R&A owed a negligence duty to an independent contractor's employee | Diaz: R&A had regulatory and contractual responsibilities (project design, project management, PPE review, air monitoring) that imposed a non-delegable duty to ensure worker safety and fall protection | R&A: No contractual or exercised control over Robles' fall protection; asbestos regs only require review/advise re PPE, do not give authority to direct fall prevention; R&A did not hire Robles so Restatement §424 inapplicable | Court: No duty. Regulations and documents imposed limited review/advise duties (including asbestos-related PPE) but did not give R&A the requisite control or notice of the specific hazard to create a negligence duty |
| Whether administrative regulations (Restatement §424 theory) impose vicarious or nondelegable duty on R&A | Diaz: Texas asbestos regulations and licensing (consultant, project manager, air monitor) impose statutory/administrative obligations that make R&A responsible for contractor’s safety failures | R&A: §424 applies only where defendant hired the contractor; R&A did not hire Robles; the regs require certain duties of multiple actors (owner, contractor, supervisor), allocating responsibility to Robles/owner | Court: §424 does not apply because R&A did not employ Robles; regs do not create the broad duty Diaz seeks and duties must relate to injury-producing activity |
| Whether R&A’s specification of PPE (and interpretation that PPE includes fall protection) created control or increased risk | Diaz: PPE includes fall protection; R&A required PPE and supervised compliance, so that created a duty | R&A: PPE requirements addressed asbestos-specific PPE (respirators, protective clothing); R&A’s role was advisory/review, not direction of means/methods | Court: PPE, in ordinary meaning, can include fall protection, but R&A’s regulatory/contractual role was limited to review/advise for asbestos PPE; no evidence R&A required or altered fall protection or increased risk, so no actionable duty |
| Whether R&A’s on-site conduct (air monitoring, presence, pointing out breaches, possible instruction to fix tear) established actual control over safety practices | Diaz: R&A employees were on site, monitored containment, maybe noticed the tear and could have directed repairs; project manager sometimes supervised | R&A: Any on-site actions related to asbestos monitoring and containment integrity, not to fall protection methods; no evidence R&A knew of or approved the specific unsafe manner Diaz transferred lanyard | Court: Evidence showed only possible or limited involvement (monitoring, advising on asbestos controls); no nexus between any R&A control and the fall-producing activity and no actual notice of the specific dangerous practice — insufficient to create duty |
Key Cases Cited
- Lee Lewis Constr., Inc. v. Harrison, 70 S.W.3d 778 (Tex. 2001) (general rule that a general contractor owes no duty to ensure an independent contractor’s safe performance, with exceptions when control is retained)
- Redinger v. Livingston, 689 S.W.2d 415 (Tex. 1985) (Restatement §414 control exception: liability when employer retains supervision beyond mere ordering/inspection)
- Hoechst-Celanese Corp. v. Mendez, 967 S.W.2d 354 (Tex. 1998) (nexus required between retained supervisory control and the injury-producing condition; limited duty for safety requirements)
- Dow Chem. Co. v. Bright, 89 S.W.3d 602 (Tex. 2002) (contractual or policy-based right to control must be specific to impose a duty; general safety manuals do not by themselves create liability)
- Clayton W. Williams, Jr., Inc. v. Olivo, 952 S.W.2d 523 (Tex. 1997) (hybrid duty analysis at intersection of premises and general-contractor doctrines; supervisory control must relate to injury)
- MBank El Paso, N.A. v. Sanchez, 836 S.W.2d 151 (Tex. 1992) (Restatement §424 applied where statute made actor responsible for contractor’s conduct — critical that the actor employed the contractor)