Clayton W. Williams, Jr., Inc. v. Olivo
952 S.W.2d 523
Tex.
1997
Check Treatment

*1 pay to groceries charity, for and his offer WILLIAMS, JR., cigarettes. He characterized his

cash the INC. and for CLAYTON W. taking cigarettes and an- Graham, Petitioners, the “mistake” E. Odis affirmatively question to a that as- swered he no intent to steal. The sumed that had OLIVO, Respondents. probable

Court thus confuses the cause rele- David & Rosielinda imprisonment claim—probable vant a false to No. 96-0044. probable stop—with cause the cause rele- to claim—proba- prosecution vant to a malicious Supreme of Texas. Court taking ble cause to believe Argued Dec. 1996. only If to show intentional. Brookshire had probable Richey cause to that it had detain July 1997. Decided prosecution, for malicious avoid Rehearing Oct. 1997. Overruled of Richey’s testimony dispose then would However, is question issue. whether existed,

probable stop Richey, not to cause complaint. evaluating

but file a Instead of supporting finding

all of of the evidence cause, probable

no the Court focuses suggest Richey took

one event would piece

pack intentionally. This fixation on one event, regard

of with evidence one evidence, nearly

exclusion of all other vio- proper

lates the standard review. parties opposing

“Once these have entered probable

into a factual contest on issue of

cause, fact issue created resolution is for of fact. This is a our trier cornerstone Akin,

judicial system.” 920. principle, I

Applying this conclude that Rich-

ey produced legally sufficient evidence to

support finding pur- that Brookshire against charges

sued criminal him without Court,

probable unfortunately, cause. The acknowledging

while for balance need vigilant and the

between law enforcement accused,

liberty unjustly interest those

creates what in effect rule strict

nonliability for owners—if a customer store something pay-

takes out of a store without circumstances, it,

ing regardless for is a

the customer thief the store owner prosecu- held for malicious

cannot be liable turning ques- By disputed

tion. into a facts case, simply in this has

tion of law the Court jury. opinion its I

substituted that of illegitimate be of such an exer-

cannot Accordingly, I power.

cise of dissent. *3 Dallas, Stolley,

Scott Patrick Andrew L. Kerr, Coffee, Antonio, K. Blake San Thomas III, Mitchell, Austin, J. John Alex Huddle- *4 ston, Antonio, San for Petitioners. Villarreal, Christi, Corpus Carlos Sam C. Fugate, Kingsville, Respondents. for BAKER, Justice, opinion delivered Court, PHILLIPS, in which Chief Justice, GONZALEZ, HECHT, CORNYN, ENOCH, ABBOTT, Justices, OWEN and join. case,

In liability this we consider the of a representa- contractor and its on-site injuries tive for to an contrac- employee. tor’s The trial court rendered jury judgment employee, on a verdict for and appeals part. the court of affirmed in employee 912 S.W.2d 319. Because the ob- findings tained no on the representative’s premises for defects, appeals’ we reverse the court of judgment judgment render that the and Oli- nothing. vos take

I. BACKGROUND (Williams) Williams, Jr., Clayton oper- Inc. gas County. ated an oil in and lease LaSalle Odis rep- Graham served as Williams’ on-site resentative. Williams contracted with Dia- Onshore, Incorporated mond M drill well on the lease. M in turn Diamond hired drilling David Olivo to work on a crew as a floor hand. of Olivo’s was to roll One duties joints pipe pipe rack drill off a onto a catwalk, pipe up where the was then hoisted ramp rig floor for connection to drill pipe already Early morning, in the well. one catwalk, moving pipes while several onto slipped stepped suddenly Olivo as he down pipe off ground rack. As he fell to the below, few feet Olivo his back landed on on pipe protectors one of several drill thread during that had left on ground been keep failing in negligence injury, As a result of this previous shift.1 partially paralyzed. arising activity on Olivowas safe: from that arising from a premises, and that wife, Rosielinda, and his sued Olivo This at 417. Redinger, defect. and and Williams Graham negligent-activity not case because Olivo sought gross negligence. The Olivos both injured by protec alleges he was thread exemplary damages. The trial actual and as a judgment previously ground, on a verdict left not court rendered tors on the $2,028,354 in actual dam- negli for the Olivos for contemporaneous result of someone’s $21,800 in plus exemplary damages ages, Co., Kroger gence. Keetch $500,000 exemplary in from Graham recovery (Tex.1992)(holding that damages Liberty from Mutual In- Williams. activity theory requires that the negligent Company, M’s workers’ surance Diamond contemporane plaintiff harmed or as a be compensation carrier intervened itself); Butt H.E. ous result of the case, subrogation its claim for awarded Warner, 258, 259 Grocery Co. v. compensation payments previously it (Tex.1992)(same). Instead, this is a made to Olivo. defect case. banc, appeals, en The court of reversed the *5 types premises defects There are two of exemplary the damages awards because evi- independent em for an contractor’s which gross negligence of dence insufficient. was general ployee may to the contrac seek hold respects in It affirmed all other and rendered category first are those de tor hable. The judgment.2 the premises on the when fects that exist II. DUTY pur invitee entered for business business outset, At the must determine some poses through we are created or that Olivo, if duty, any, what to Williams owed the injured of the means unrelated independent employee of an contractor. employee his Shell Co. employer. or Chem. occupied Williams the land and leased (Tex.1973). Lamb, 742, In 746 v. 493 S.W.2d Therefore, general Diamond M’s contractor. situation, general has a this the contractor hybrid body the of law that at the lies inter duty the and the inspect premises warn to premises liability agency section of law of dangerous invitee conditions of those governs Corp. this v. case. Exxon Tid general which knows or should the contractor (Tex.1993). well, 19, 21 An 867 S.W.2d own Lamb, at 746. know. 493 S.W.2d occupier generally duty er or of land has to keep use reasonable care to make and the premises category of de The second Reding safe for business invitees. independent con fects are those defects the (Tex. Inc., 415, Living, 417 er v. 689 S.W.2d (or injured by employee) created tractor its 1985); 456, Henger, Smith v. Tex. 226 148 Lamb, activity. 746- its work 493 S.W.2d at (1950). 425, 431 A general S.W.2d contractor cre independent 47. contractor When the charged in control of is with the the condition, general dangerous ates the the duty occupier. Reding same an owner ordinarily duty has no to warn contractor er, thus 689 at 417. has S.W.2d Williams employees independent of contractor’s occupier overlapping as both of the duties Corp. premises defect. Pence Constr. an general land and the contractor who hired (Tex.1971). Watson, 639 S.W.2d now independent must de contractor. We for this rule is The rationale those scope termine the of duties. normally duty has no to ensure contractor III. OF SCOPE DUTIES performs its independent that an contractor Corp. v. in a safe manner. See Exxon work A in general contractor control of (Tex.1987); Quinn, 19-20 types premises may be hable for two separate protector cap Duncan filed 2. Justices Rickhoff and 1. A thread is a that screws onto pipe protect during to the threads end of drill transport. 912 S.W.2d at 335-36. dissents. Texas, Abalos v. Oil Dev. Co. liability independent neg for the contractor’s (Tex.1976). 631-32 ligent premises. Redinger, activities 689 S.W.2d at “right 418. The to control” However, long this Court has rec applies rule also to defect cases. ognized that under some circumstances the Tidwell, 867 As 21-23. the Re general contractor duty does have a to warn explains: statement independent employees usually, The rule stated in this Section is any dangerous arising conditions out of the though exclusively, not applicable when Lamb, contractor’s work. See principal contractor entrusts a of the 493 S.W.2d at 747-48. In Redinger, we de subcontractors, work to but himself or scope fined the duty by of that adopting through superintends a foreman the entire (Second) section 414 of the Restatement job. situation, In principal such a con- Torts: subject tractor liability is to if he fails to One who entrusts work to an prevent doing subcontractors from contractor, but who retains the control of even the way details the work in a of. work, any part of subject is liability to others, unreasonably dangerous if to he physical harm to others for whose safe- by knows or exercise reasonable ty employer duty owes a to exercise care should know that the subcontractors’ care, reasonable which is caused his done, work being oppor- so and has the failure to exercise his control with reason- tunity prevent by exercising pow- it able care. er of control which he has retained in (Second) § Restatement of Torts too, subject himself. So he is if (1965), quoted Redinger, 689 S.W.2d at he knows or should know that the subcon- 418. duty requires This contractor carelessly tractors have done their work in any exercise supervisory retained control *6 way such a dangerous as to create a con- “with reasonable prevent care so as to the dition, and to exercise reasonable fails work which he has ordered to be done from care remedy either to it or the himself causing injury to others.” Restatement exercise his control cause the subcon- (Second) a, § quoted 414 cmt. in Torts tractor to do so. Redinger, 689 S.W.2d at gener 418. Por the § (Second) 414 cmt. Restatement Torts al contractor to be liable for negligence, its added). (emphasis b premises When a de supervisory control must relate to the condi fect independent arises from the contractor’s tion activity or injury. that caused the Tid work, then, general the contractor who re well, 23; 867 S.W.2d at see also Welch v. tains right a to control or exercises control (Tex. McDougal, 218, 876 S.W.2d 223-24 exercising can be negligence liable for 1994, App.—Amarillo denied); writ v. Tirres failing to exercise control over the of the Prods., Inc., El 672, Paso Sand 808 S.W.2d independent contractor’s work that created denied). 1991, 676 (Tex.App.—El Paso writ Tidwell, dangerous the condition. See 867 typically It general the con 23; Co., S.W.2d at Barham v. Turner Constr. right tractor’s of control injury- over the 731, 803 (Tex.App.—Dallas S.W.2d 735-36 causing activity or condition that gives rise to denied). 1990,writ duty a to ensure independent that the con performs tractor safely. its work Pollard v. IV. PREMISES DEFECT— R.R., Missouri Pac. 759 S.W.2d 671 THE JURY CHARGE (Tex.1988); Co., Tovar v. Amarillo Oil 692 appeals correctly The court of (Tex.1985). S.W.2d 470 If there is no recognized that this case fits in the second control, however, contractual right the category we have involves discussed and a general actually contractor can be liable if it premises defect that the con control, contrary exercised to the contract’s tractor allegedly negli created rather than a Tidwell, terms. 867 at 21 S.W.2d n. 3. However, gent activity. appeals the court of Redinger,

In “right the to con erred in holding that the Olivos could recover subjected trol” general rule the contractor to negligent from Williams for control without

529 negligence proposed question defined establishing premises elements. Their defect However, factors. according to the Corbin against general To a for a recover contractor defect, did not rule on Olivos’ premises injured the trial court plaintiff must proposed it their nor did submit right request establish both contractor’s Thus, charge court’s the trial question. defect-producing and a control the work premises de- essential elements of omitted duty according breach of that to the tradi appeal, Olivos do not claim. On fects premises tional defect See Corbin elements. conditionally, that trial Stores, complain, even Inc., Safeway 648 296 S.W.2d proposed have their court should submitted (Tex.1983) (setting forth traditional elements elements. question that included the Corbin premises liability claim); Restatement Instead, and Keetch they assert that Corbin § (incorporat 414 (Second) emt. b of Torts disagree. We apply here. We have do not ing premises liability right-to- elements into required the trial court submit explicitly plaintiff liability). may The submit control premises in a defect elements Corbin through jury this cause of action to Keetch, 266-67; War- 845 S.W.2d at case. question right about the ner, 259-60; at Hernandez v. 845 S.W.2d work, defect-producing to control the to es (Tex.1986). Co., 3, 4-5 Kroger duty, tablish a broad-form However, question. that incor instructions Alternatively, the Olivos contend porate premises elements Corbin defect elements should be deemed that the Corbin Tidwell, accompany questions. must judgment. support found to trial court’s 23; Keetch, 867 at at 266- S.W.2d premises defect elements cannot be The 67; Barham, 803 S.W.2d at 736-37. Because simple against The found Graham. deemed premises activity negligent defect cases and negligence question submitted cases are based theories only theory that Graham was relates recovery, simple negligence question, unac any negligent control activi liable for over companied in by the Corbin elements Keetch, However, at 264. ties. S.W.2d definitions, support a structions or cannot negligent explained, is not a as we have this recovery premises in a case. See defect It is defect case. case. Keetch, Warner, 266-67; missing defect elements The Corbin S.W.2d at 259-60. Because defect knowledge are and risk of harm not about negligent activity cases and cases are based negligent activity necessarily referable to the *7 recovery, simple on a theories jury. Stanley See question submitted to the negligence question, unaccompanied the Stores, 884, Veazey, Inc. v. 838 S.W.2d 886 or definin Corbin elements instructions 1992, denied); (Tex.App.—Beaumont writ tions, support recovery premis a in a cannot Surgeons Hosp. v. Physicians & Kobli Gen. Keetch, es defect case. See 845 S.W.2d 657, zek, (Tex.App.—Cor 659-60 Warner, 266-67; 845 S.W.2d at 259-60. 1988, denied); writ Tex.R. Civ. P. pus Christi not obtain a the Olivos did 279. Because Here, request the Olivos did not that finding essential elements jury that included question, trial a court submit control claim, they cannot of their defect elements, negligence a defect against 279. recover Graham. Therefore, P. question Tex.R. Civ. there against Williams. any findings against are jury no Williams not secure Because the did Olivos Instead, sub- trial court these issues. negligence but jury finding about Williams’ simple question single mitted was finding obtain a that Graham did alleged Under negligence. about Graham’s liability employee, only theory their Williams’ that charge found trial court’s respondeat superior was against Williams that employee and Graham was Williams’ negligence. need not decide We Graham’s proximately negligent and Graham was facts, whether, Graham could under these injuries. caused Olivo’s liability. Leitch v. individual incur (Tex.1996) 114, Hornsby, 935 117 question Initially, requested the Olivos can liabil (corporate agent in fail- assume individual asking negligent Graham whether work- duty provide safe ing place ity to work. for breach to provide Olivo safe place if agent independent duty owes judgments of the trial court and the court of care); Colwell, Werner v. and, appeals justice, in the interest of re- (Tex.1995)(same). Tex.R.App. Because the Olivos mand this case for a new trial. P. did not obtain findings support premises 180; see Byrd, American Title Ins. v.Co. Graham, defect against however, (Tex.1964). Accordingly, S.W.2d 683 I dis- they respondeat have not superi- established sent to judgment. the Court’s or liability against through Williams Graham.

V. CONCLUSION appeals

The court of erred Williams, Inc.,

holding Clayton and Odis

Graham could be liable for Olivo’s David

injuries regard without inju whether the

ries arose from negligent activity or a premises defect. Because the Olivos did not parte Ricky Eugene Ex MORROW. proper jury secure findings only on their No. 72593. action, viable premises defect, cause of they waived that claim any and are not entitled to Texas, Appeals Court of Criminal relief from Williams or According Graham. En Banc. ly, we reverse that of the court of May appeals’ judgment 1997. affirming damages actual judgment render the Olivos take Rehearing 1997. Denied Oct. nothing. SPECTOR, Justice, concurring and

dissenting. join

I in Parts I through IV of the Court’s

opinion. cannot, however, I join in Part V of opinion, in which judg- the Court renders Williams, Clayton Inc.,

ment for and Odis

Graham.

Today the Court clarifies that a right to control or actual control

over contractor creates a

duty that can be through breached either a

negligent activity or a defect. Nei- parties

ther the nor the lower courts that

have examined this case successfully have

grasped ways these two gener- distinct that a may

al contractor injuries. be liable for All cases,

previous including those from this

Court, have involved a contractor’s

control over the ac- contractor’s

tivity injury. itself causes Never reported

before has a properly case ex-

plained that can contractor be lia-

ble for in exercising control over

creates a defect. Because the explains today

Court for the first time that elements must be submitted to jury along negligent-control with a ques- case, type

tion in this I would vacate the