Coastal Marine Service of Texas, Inc. v. Lawrence, 988 S.W.2d 223

Coastal Marine Service of Texas, Inc. v. Lawrence

988 S.W.2d 223

Tex.

1999

Check Treatment

*224 On Petition FOR Review FROM the Court of Appeals for the Ninth District of Texas

PER CURIAM.

The issue in this case is whether an independent contractor’s willingness to follow a premises owner’s instructions, though no such instructions were given, is legally sufficient evidence of the premises owner’s “right to сontrol” in a premises liability case. The court of appeals held that it was. 1 We hold that it was not.

On September 20, 1994, John Ray Lawrence, an emрloyee of H.W. Campbell Construction Company, was killed when his head was crushed in the “pinch point” area of a crane. Cоastal Marine Services of Texas, Inc. owned the crane, and Campbell employees were using it to offload skids on Coаstal’s property when the accident occurred. Campbell took custody of the crane and began continued occupation of Coastal’s property in 1992. Campbell was an independent contractor of Coastal, and no written contract existed between the two companies. *225 Coastal employees were not directing or supervising Campbell’s work оn ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍the project, nor were they on the job site when the accident occurred.

Lawrence’s surviving family and estate (the “Lawrences”) sued Campbell and Coastal alleging negligence, negligence per se, and gross negligence. During trial Coastal timely mоved for a partial directed verdict. Coastal asserted that the Lawrences had presented no evidence that Cоastal retained the right to control Campbell’s work, a prerequisite for finding Coastal liable under a premises liability theory. The triаl court granted Coastal’s motion, and then submitted an instruction that precluded a finding of negligence based on the manner in which Coastal controlled the premises. 2 A broad form negligence question was submitted with the jury charge. The jury found no negligence on Coastal’s part, and the trial court entered a take-nothing judgment.

At trial, in response, to a series of hypothetical questions, Campbell employees testified that they would have complied with any instructions from Coastal about the movement of the crane if Coastal had given such instructions. Based on the Campbell employees’ testimony, the court of appeals reversed the triаl court’s judgment, concluding that the testimony created a fact issue about Coastal’s right to control the crane. 3 We disagree.

In this case, the Lawrences assert that liability arose from a premises defect. Under the premises defect theory of premises liability there are two subcategories: ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍(1) defects existing on the premises when the independent contractor/invitee entered; аnd (2) defects the independent contractor created by its work activity. 4

Under the first subcategory, the premises owner has a duty tо inspect the premises and warn the independent contractor/invitee of dangerous conditions that are not opеn and obvious and that the owner knows or should have known exist. 5 As we explained in Shell Chemical Company v. Lamb, 493 S.W.2d 742 (Tex.1973), premises defects of this type are ones “in which the danger did not аrise through the work activity of the subcontractor/invitee.” 6 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 subcategory of premises defects. For example, in Smith v. Henger, 226 S.W.2d 425, 148 Tex. 456 (1950), we held that an open shaft, with inadequate warnings, in existence ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍when contractors entered a property was such a defect. 7 The pinch point area on Coastal’s crane, however, posеd no danger until Campbell put the crane into operation. Therefore this case must be considered under the second premises defect subcategory.

Under the second subcategory— when the dangerous condition arises as a result of the independent contractor’s work activity — the premises owner normally owes no duty to the independent contractor’s employees because an owner generally has no duty to ensure that an independent contractor performs its work in a safe manner. 8 However, a premises owner may be liable when the owner retains the right of supervi *226 sory control over work on the premises. 9 In determining whether an owner has retаined this right to control, the standard is narrow. The right ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍to control must be more than a general right to order work to stop and start, or to inspect progress. 10 The supervisory control must relate to the activity that actually caused the injury, and grant the owner at leаst the power to direct the order in which work is to be done or the power to forbid it being done in an unsafe manner. 11

Our most recent writing on this issue makes clear that a party can prove the “right to control” in two ways: first, by evidence of a contractual аgreement which explicitly assigns the premises owner a right to control; and second, in the absence of a contractuаl agreement, by evidence that the premises owner actually exercised control over the job. 12 Here, no contrаctual agreement assigning control rights existed between Coastal and Campbell, and no Coastal employees were directing work on the job site when the accident occurred or at any other time. Instead, the Lawrences showed only that Campbell employees would have taken direction from Coastal if any had been offered. A possibility of control is not evidenсe of a “right to control” actually retained or exercised.

Accordingly, without hearing oral argument, 13 we reverse the court of appeals’ judgment and render ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍judgment that the Law-rences take nothing.

Notes

. 983 S.W.2d 757. The court of appeals’opinion also considered an alleged jury chargе error. Id. at 761-62. That issue is not before us, and we express no opinion on it.

. The relevant portion of the instruction reads:

In determining the negligence or gross negligence, if any, of Cоastal Marine Service of Texas, Inc., you are instructed that such negligence or gross negligence must relate to the crane in question. As the premises owner, Coastal Marine Service of Texas, Inc. was not subject to any OSHA regulations as they pertain to the premises or safe operation of the project. Further, as the premises owner, Coastal Marine Servicе of Texas, Inc. had no duty to see that the H.W. Campbell Construction Company or its employees performed the work in a safe fashion.

. 983 S.W.2d at 761.

. See Clayton W. Williams, Jr., Inc. v. Olivo, 952 S.W.2d 523, 527 (Tex.1997).

. See Olivo, 952 S.W.2d at 527-28; Shell Chem. Co. v. Lamb, 493 S.W.2d 742, 746-47 (Tex.1973).

. 493 S.W.2d at 746 (citing Smith v. Henger, 148 Tex. 456, 226 S.W.2d 425 (1950)).

. 226 S.W.2d at 431-33.

. See Olivo, 952 S.W.2d at 527-28; Abalos v. Oil Dev. Co., 544 S.W.2d 627, 631-32 (Tex.1976).

. See Olivo, 952 S.W.2d at 528; Lamb, 493 S.W.2d at 747-48.

. See Redinger v. Living, Inc., 689 S.W.2d 415, 418 (Tex.1985).

. See Olivo, 952 S.W.2d at 528; Exxon Corp. v. Tidwell, 867 S.W.2d 19, 23 (Tex.1993); Redinger, 689 S.W.2d at 418.

. See Olivo, 952 S.W.2d at 528; see also Redinger, 689 S.W.2d at 418.

. See TexJR.App. P. 59.1.