LEE LEWIS CONSTRUCTION, INC., Petitioner, v. Norma HARRISON, individually and as next friend of Sumer Dawn Harrison and Jimmie Thor Harrison, minors, and Sellie E. Harrison and May Harrison, Respondents.
No. 99-0793.
Supreme Court of Texas.
Argued April 5, 2000. Decided Dec. 20, 2001.
Rehearing Overruled April 15, 2002.
Joe L. Lovell, Lovell Lovell & Newsom, Amarillo, Carl V. Crow, Law Office of Carl V. Crow, Richard N. Countiss, Law Office of Richard N. Countiss, Kevin H. Dubose, David M. Gunn, Hogan Dubose & Townsend, L.L.P., Houston, Jonette M. Walker, David Hazlewood, Hazlewood & Hazlewood, for Lubbock, for respondents.
Justice HANKINSON delivered the opinion of the Court, in which Chief Justice PHILLIPS, Justice ENOCH, Justice BAKER, Justice O‘NEILL, and Justice RODRIGUEZ joined.
Following Jimmy Harrison‘s fatal fall from the tenth story of a construction site where Lee Lewis Construction, Inc., (LLC) was the general contractor, the Harrison family brought a wrongful death
Lubbock‘s Methodist Hospital hired LLC to remodel the eighth floor of, and add ninth and tenth floors to, its south hospital tower. As the general contractor, LLC then subcontracted the project‘s interior glass-glazing work to KK Glass. Jimmy Harrison was an employee of KK Glass. Harrison was installing thermal insulation and caulking between the window frames on the tower‘s tenth floor when he fell and suffered fatal injuries. Although no one witnessed Harrison‘s fall, and although there is disputed evidence about what type of safety device he was using, the evidence is undisputed that Harrison was not using an independent lifeline that would have stopped his fall.
Harrison‘s wife, two children, and parents sued LLC, alleging negligence and gross negligence, and also sued KK Glass, alleging gross negligence. The Harrisons settled with KK Glass but tried their case against LLC to a jury. The jury rendered a verdict for the Harrisons, finding that LLC had retained the right to control safety at the construction site, that LLC was both negligent and grossly negligent, that LLC was ninety percent responsible for the accident and Harrison was ten percent responsible, and awarded the Harrisons compensatory and punitive damages. LLC appealed. After the Harrisons agreed to remit $450,000 of the damages awarded to the estate for Jimmy Harrison‘s pain and suffering, the court of appeals affirmed. 64 S.W.3d at 1. We granted LLC‘s petition for review to determine whether there is legally sufficient evidence of LLC‘s negligence and gross negligence, and in the alternative, if the first jury question was erroneous.
We begin with LLC‘s no-evidence challenge to the jury‘s negligence finding. To sustain a negligence action, the plaintiff must produce evidence of a legal duty owed by the defendant to the plaintiff, a breach of that duty, and damages proximately caused by that breach. Praesel v. Johnson, 967 S.W.2d 391, 394 (Tex.1998). LLC challenges the duty and proximate-cause elements of the jury‘s verdict, but not the breach or damages elements. In conducting a legal-sufficiency review, we review the evidence in a light that tends to support the finding of the disputed facts and disregard all evidence and inferences to the contrary. Bradford v. Vento, 48 S.W.3d 749, 754 (Tex.2001); Lozano v. Lozano, 52 S.W.3d 141, 166 (Tex.2001) (Baker, J., concurring in part and dissenting in part). If more than a scintilla of evidence exists, it is legally sufficient. Id. More than a scintilla of evidence exists if the evidence furnishes some reasonable basis for differing conclu-
Our review of the evidence concerning negligence begins with duty. The parties agree that the duty in this case is governed by our well-established law concerning a general contractor‘s duties to a subcontractor‘s employees. Ordinarily, a general contractor does not owe a duty to ensure that an independent contractor performs its work in a safe manner. Elliott-Williams Co. v. Diaz, 9 S.W.3d 801, 803 (Tex.1999); Hoechst-Celanese Corp. v. Mendez, 967 S.W.2d 354, 356 (Tex.1998). A duty does arise, however, if the general contractor retains some control over the manner in which the independent contractor performs its work. Elliott-Williams, 9 S.W.3d at 803. The general contractor‘s duty of care is commensurate with the control it retains over the independent contractor‘s work. Id.; Mendez, 967 S.W.2d at 355. Section 414 of the Restatement (Second) of Torts, which we adopted in Redinger v. Living, Inc., 689 S.W.2d 415, 418 (Tex.1985), further explains this principle:
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 owes a duty to exercise reasonable care, which is caused by his failure to exercise his control with reasonable care.
A general contractor can retain the right to control an aspect of an independent contractor‘s work or project so as to give rise to a duty of care to that independent contractor‘s employees in two ways: by contract or by actual exercise of control. See, e.g., Koch Ref. Co. v. Chapa, 11 S.W.3d 153, 155 (Tex.1999); Coastal Marine Serv. of Tex., Inc. v. Lawrence, 988 S.W.2d 223, 226 (Tex.1999). We have frequently used the phrases “right of control” or “retained control” interchangeably. See Chapa, 11 S.W.3d at 155; Lawrence, 988 S.W.2d at 226. The distinction remains important, however, because determining what a contract says is generally a question of law for the court, while determining whether someone exercised actual control is a generally a question of fact for the jury. LLC challenges only the legal sufficiency of the evidence to support the jury‘s finding that it retained the right to control safety on the jobsite and the court of appeals’ interpretation of the contracts at issue; it does not challenge the application of section 414 or argue for a change in Texas law. We therefore review the evidence in support of the jury‘s finding in accordance with that law.
Here, the trial court asked the jury, “Did LLC retain the right to control safety” on the jobsite. Thus to evaluate LLC‘s no-evidence challenge we must determine if the Harrisons presented more than a scintilla of evidence that LLC exercised actual control over safety, in particular, the fall-protection systems used by KK Glass employees. LLC argues there is no evidence that it exercised any actual control over KK Glass employees’ use of fall-protection equipment during the exterior glass-installation process. The Harrisons respond that LLC observed and expressly
The evidence at trial supports the Harrisons’ contention. At trial, Lee Lewis, LLC‘s owner and president, testified that he assigned C.L. Lewis, 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.” Testimony indicated that C.L. Lewis personally witnessed and approved of the specific fall-protections systems KK Glass used. There was testimony that C.L. Lewis “definitely did approve” the lanyard system. There was also testimony that C.L. Lewis knew of and did not object to KK Glass employees using a bosun‘s chair without an independent lifeline. Although our law makes clear that a general contractor is not an ensurer of safety on the jobsite, see Elliott-Williams, 9 S.W.3d at 803, we agree with the Harrisons that the testimony highlighted above constitutes more than a scintilla of evidence that LLC retained the right to control fall-protection systems on the jobsite. LLC therefore had a duty of care toward Harrison commensurate with that right. Because we conclude that LLC retained the right to control fall-protection systems on the jobsite, we need not address its argument that it did not retain the right to control by contract.
We turn next to LLC‘s no-evidence challenge to proximate cause. LLC contends that even if it did owe a legal duty to Harrison, the Harrisons did not prove that LLC‘s conduct proximately caused Jimmy Harrison‘s death. Specifically, LLC argues that because no one saw Harrison fall, there was no evidence that LLC‘s conduct was the cause-in-fact of Harrison‘s death, nor was there evidence that the accident was foreseeable. The Harrisons respond that LLC‘s failure to require its subcontractors’ employees to use independent lifelines was a cause-in-fact of Harrison‘s death, and that LLC knew or should have known that workers using an ineffective fall-protection system could suffer a fatal fall. We agree with the Harrisons.
As the Harrisons correctly point out, the question here is whether an act by LLC was “a” proximate cause, not “the” proximate cause, of Harrison‘s death. More than one act may be the proximate cause of the same injury. Travis v. City of Mesquite, 830 S.W.2d 94, 98 (Tex.1992); Brookshire Bros., Inc. v. Lewis, 911 S.W.2d 791, 793 (Tex.App.-Tyler 1995, writ denied). Proximate cause comprises two elements: cause-in-fact and foreseeability. Doe v. Boys Clubs of Greater Dallas, Inc., 907 S.W.2d 472, 477 (Tex.1995). The test for cause-in-fact is whether the act or omission was a substantial factor in causing the injury “without which the harm would not have occurred.” Id.
Here, LLC employee Sloan Butler and LLC vice-president Tom Ferguson testified that Harrison would not have died from his fall if he had been secured by an independent lifeline. Expert witnesses concurred. Even if Harrison had started to fall, the independent lifeline would have stopped his fall before it became fatal. At trial, LLC employees, KK Glass employees, and expert witnesses testified that an effective fall-protection system would have mandated using independent lifelines. Evidence showed that LLC required its own employees to use independent lifelines, but permitted KK Glass employees to work without them. In fact, LLC‘s superintendent observed Harrison working without an independent lifeline but did nothing to remedy the situation. LLC could have prevented Harrison‘s death if it had enforced its own safety rules and required
The second element of proximate cause is foreseeability. Foreseeability means that an “actor, as a person of ordinary intelligence, should have anticipated the dangers that his negligent act created for others.” Travis, 830 S.W.2d at 98. Foreseeability does not require an actor to anticipate the precise manner in which the injury will occur; instead, the injury need only be of a general character that the actor might reasonably anticipate. See Brown v. Edwards Transfer Co., 764 S.W.2d 220, 223-24 (Tex.1988).
At trial, Lee Lewis testified that he knew falls were one of the top causes of death in multi-story construction. He was aware that the building required exterior work, and that workers, including KK Glass employees, would be exposed to fall hazards. This testimony constitutes more than a scintilla of evidence that LLC foresaw the “general character” of injury that Harrison sustained. Thus, we conclude that the evidence of proximate cause is legally sufficient.
LLC also challenges the legal sufficiency of the evidence to support the jury‘s gross-negligence finding. In Transportation Insurance Co. v. Moriel, we held that gross negligence involves two components: (1) viewed objectively from the actor‘s standpoint, the act or omission complained of must involve an extreme degree of risk, considering the probability and magnitude of the potential harm to others; and (2) the actor must have actual, subjective awareness of the risk involved, but nevertheless proceed in conscious indifference to the rights, safety, or welfare of others. 879 S.W.2d 10, 23 (Tex.1994). The first element, “extreme risk,” means not a remote possibility of injury or even a high probability of minor harm, but rather the likelihood of serious injury to the plaintiff. Mobil Oil Corp. v. Ellender, 968 S.W.2d 917, 921 (Tex.1998); Universal Servs. Co. v. Ung, 904 S.W.2d 638, 641 (Tex.1995); Moriel, 879 S.W.2d at 22. The second element, “actual awareness,” means that the defendant knew about the peril, but its acts or omissions demonstrated that it did not care. Ellender, 968 S.W.2d at 921; Wal-Mart Stores, Inc. v. Alexander, 868 S.W.2d 322, 326 (Tex.1993). Circumstantial evidence is sufficient to prove either element. Ellender, 968 S.W.2d at 921; Moriel, 879 S.W.2d at 22-23.
Evidence of gross negligence is legally sufficient if, considered as a whole in the light most favorable to the prevailing party, it rises to a level that would enable reasonable and fair-minded people to differ in their conclusions. General Motors Corp. v. Sanchez, 997 S.W.2d 584, 595 (Tex.1999). Some evidence of simple negligence is not evidence of gross negligence. Id.; Ellender, 968 S.W.2d at 921; Ung, 904 S.W.2d at 641; Moriel, 879 S.W.2d at 22-23. Conversely, some evidence of care does not defeat a gross-negligence finding. Sanchez, 997 S.W.2d at 595. We turn now to the evidence that satisfies each element, which we review in the light most favorable to the jury‘s finding. See id.
First, there is more than a scintilla of evidence that, objectively viewed from LLC‘s standpoint, working on the tower‘s ninth and tenth floors without using an independent lifeline created an extreme risk of a fatal fall. At trial, Lee Lewis testified that falls are among the top reasons for serious injuries or deaths on construction projects, and that the hospital project presented a fall hazard because workers would be required to work on the exterior of the ninth and tenth floors.
There is also evidence to support the Moriel standard‘s subjective component. C.L. Lewis testified that he witnessed KK Glass employees working from the window sills of the ninth and tenth floors using only safety belts and lanyards as their fall-prevention devices. He testified, as did other LLC executives and expert witnesses, that KK Glass’ use of safety belts and lanyards, without safe work platforms or independent lifelines, did not provide an effective fall-protection system. C.L. Lewis admitted that even after observing KK Glass’ ineffective fall-protection system, he did nothing to remedy it. Todd Taylor, KK Glass’ foreman, testified that C.L. Lewis not only observed KK Glass’ fall-protection system, but expressly approved it. Moreover, evidence showed that LLC workers, in contrast to their KK Glass counterparts, did use independent lifelines as part of their fall-protection equipment. See Ellender, 968 S.W.2d at 925. This evidence supports the jury‘s finding that LLC knew of, but was consciously indifferent to, the risk of fatal falls for its subcontractors’ employees. This evidence shows that LLC was subjectively aware of the extreme risk of serious injury to KK Glass employees, but consciously chose to do nothing. Thus, because there is more than a scintilla of evidence supporting each component of the Moriel test, we conclude that the evidence of LLC‘s gross negligence is legally sufficient.
As a final matter, we consider LLC‘s alternative argument that it is entitled to a new trial because the trial court submitted a legally incorrect question about LLC‘s right of control on the jobsite. The first jury question read: “Did Lee Lewis Construction, Inc. retain the right to control safety on the construction project where Jimmy Harrison suffered his fatal fall?” LLC objected to this question on the basis that it was not specific enough and should have asked if LLC retained the right to control the details of Harrison‘s use of the bosun‘s chair, lanyards, and safety belt. See Clayton W. Williams, Jr., Inc. v. Olivo, 952 S.W.2d 523, 529 (Tex.1997). The Harrisons respond that inquiring about the right to control particular safety devices is unnecessary because the right of control over safety is a specific right. See Exxon Corp. v. Tidwell, 867 S.W.2d 19, 23 (Tex.1993). They also argue that LLC‘s complaint about the first jury question is mooted because it did not object to the second question, which submitted the same factual inquiry about right of control.1 Any error in the first question would therefore be harmless, because the same verdict would have been reached based on an affirmative response to the second question.
We agree with the Harrisons that any error in submitting the first question
Because the evidence of LLC‘s negligence and gross negligence was legally sufficient to support the jury‘s verdict, and because any error in the charge submitted was harmless, we affirm the court of appeals’ judgment.
Chief Justice PHILLIPS filed a concurring opinion, in which Justice RODRIGUEZ joined.
Justice HECHT filed a concurring opinion, in which Justice OWEN joined.
Justice JEFFERSON filed a concurring opinion.
Chief Justice PHILLIPS joined by Justice RODRIGUEZ concurring.
I join in the unanimous judgment of the Court and in JUSTICE HANKINSON‘S opinion1 explaining that judgment. Her writing accurately articulates and applies current Texas common law. But I do so with substantial misgivings about our approach in suits against general contractors for injuries to a subcontractor‘s employees. Our focus on the degree of the general contractor‘s “retained control” has failed to provide either consistent or equitable results, and I believe that a thorough reconsideration of this area is in order.
JUSTICE HECHT has authored a thoughtful and scholarly concurrence, and his views merit the close attention of the bench and bar. But his views clearly constitute a change in Texas law, while neither party in this case argues anything other than established precedent to support its respective position. Moreover, JUSTICE HECHT‘S position seems to have been adopted by only a small minority of American jurisdictions.1 I am especially reluctant to abandon settled law which is consistent with the majority American view without thorough briefing from the parties and other interested persons.
Justice HECHT, joined by Justice Owen, concurring.
Sixteen years ago in Redinger v. Living, Inc.,1 this Court recognized, as courts in most states have, that a person can be liable for harm caused by an independent contractor if the person controls the contractor‘s work. More specifically, we adopted the rule set out in section 414 of the
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 owes a duty of reasonable care, which is caused by his failure to exercise his control with reasonable care.2
This rule makes the retention of control over an independent contractor‘s work a necessary, but not a sufficient, condition of liability. Another prerequisite for liability under the rule is that the person harmed be among those “others for whose safety the employer owes a duty of reasonable care“. We have applied the rule in eight cases,3 each of which focused exclusively on the retention of control. In the six most recent cases, we concluded that the defendant did not control the work to the extent required for liability, and thus we did not need to consider any other aspect of the rule. In Redinger and a case decided seven weeks later,4 no argument was made that the plaintiff was not among those to whom the defendant owed a duty. Accordingly, we have never had a case in which we considered what duty the employer of an independent contractor has to protect the safety of others, including the contractor‘s own employees.
This case requires that we do so. The Court agrees that the degree of control required for liability was present here, based solely on the activity on the project, and apart from the parties’ contractual arrangements. Those arrangements also gave the general contractor an extensive degree of control over safety. The general contractor agreed with the owner to be responsible for the safety of its own employees, its independent subcontractors’ employees, and everyone else on the construction site. The general contractor required the subcontractors to agree to adhere to a voluminous, detailed safety manual under penalty of being removed from the project. Although subcontractors agreed to be responsible for the safety of their own employees, the general contractor had the right to monitor their efforts and did so. Contractually and actually, the general contractor had thorough control of safety on the site, which is typical for major construction projects. Such control over independent contractors serves the important public interest of minimizing work-related injuries. That interest would be impaired if a general contractor‘s retention of control over job safety triggered a liability to which it would not be exposed if it gave independent contractors free rein to take whatever risks they chose in order to get the work done. Section 414 would be a perverse rule indeed if it punished the general contractor who tried to protect workers
The retention of control over safety on a construction site is necessary, but not sufficient, to impose liability on the general contractor for harm caused by an independent subcontractor. More is required. The Court does not reject this analysis; it simply refuses to clarify the issue. As I will show, the history of section 414 and its application in other jurisdictions demonstrates that liability does not turn solely on the retention of control.
In this case, there is more than retained control. The general contractor also actually knew that the independent subcontractor was using an extremely dangerous device in its work and did nothing to stop it. The evidence supports the jury‘s findings that the subcontractor and the general contractor were both grossly negligent, the one in using the device, and the other in failing to prevent its use. While liability under section 414 may not be restricted to such egregious circumstances, it is certainly invoked by them.
Accordingly, I would affirm the judgment for the plaintiffs, as the Court does, but for the reasons I now explain.
I
The facts sketched in the Court‘s sparse opinion do not give sufficient context in which to consider the important legal issues raised. The record reflects the following.
Methodist Hospital in Lubbock engaged Lee Lewis Construction, Inc. to be the general contractor on a construction project that included remodeling the eighth floor of one of the Hospital‘s buildings and adding ninth and tenth floors. The contract between the Hospital and LLC contained standard form provisions published by the American Institute of Architects and widely used in the construction industry that required LLC to be “solely responsible” for every aspect of the work,5 including “initiating, maintaining and supervising all safety precautions and programs“,6 and to take “all reasonable precautions for the safety of . . . all employees” at the site,7 including assigning one of its employees at the site the duty of preventing accidents.8 The contract contemplated that LLC would use subcontractors to do the work and required that they each undertake to LLC the same responsibilities for their own work that LLC owed Methodist for the project as a whole.9
KK Glass was primarily responsible for the safety of its own employees. To keep from falling out of the building while they worked near the edge, KK Glass employees were required by their supervisor to tie themselves to inside steel girders with lanyards—six-foot steel cables with clasps at both ends. One end of a lanyard was looped around an exposed steel I-beam and attached to itself to form a noose around the beam. The other end was attached to a belt the worker wore around his waist. The beams were eight feet above the floor, and if the lanyard would not reach, the worker used two lanyards hooked end-to-end. To loop a lanyard around a beam, a worker would either have to throw the end of the lanyard up over the beam and grab it as it came down, or else climb up on a ladder and wrap the lanyard around the beam. Either way was itself dangerous because the beams were near the building‘s edge, and LLC installed guard rails in the window openings to help prevent falls. Properly used, the lanyards served as a “lifeline“—an attachment to the building that was not work-related and that would immediately become taut if a worker fell. But KK Glass employees often used the lanyards to steady themselves as they leaned out window openings, although they were not supposed to do so. KK Glass also allowed its employees to work outside the building sitting on a “bosun‘s chair“, a wooden board suspended from the roof by a rope. The bosun‘s chair could not be used safely unless the worker was attached to the building by an independent lifeline separate from the rope that held the “chair“; otherwise, there would be nothing to prevent the worker from falling to the ground if the rope became detached or if the worker slipped while getting onto or off of the “chair“, or while sitting on it.
LLC‘s project superintendent was responsible for making routine inspections of the upper floors of the building to ensure that the subcontractors’ employees were properly utilizing fall-prevention equipment. LLC knew that working at such heights around the open edges of the building was very dangerous and that employees who failed to use fall-prevention equipment could fall to their deaths. LLC expected its superintendent to immediately correct any safety hazards and ban any subcontractor‘s noncompliant employees from the premises. Although LLC depended on KK Glass to devise its own fall-
Jimmy Harrison, a KK Glass employee, was working on a window on the tenth floor of the building when he fell to his death. No one witnessed his actual fall, and some of his coworkers believed that Harrison had been working inside the building while others thought he had been outside in the bosun‘s chair. Harrison‘s body was found with a lanyard hooked to his safety belt. KK Glass employees immediately disconnected the bosun‘s chair from the roof and removed it. It was never found.
Harrison‘s wife, two children, and parents sued KK Glass for gross negligence. Because KK Glass was a workers’ compensation subscriber, it was protected by the
“Negligence,” when used with respect to a general contractor, means the failure to use ordinary care with regard to its retained right of control, if any, to reduce or eliminate an unreasonable risk of harm created by an activity or condition on the premises which the general contractor either knows about or in the exercise of ordinary care should know about.
“Ordinary care,” when used with respect to a general contractor, means that degree of care which would be used by a general contractor of ordinary prudence under the same or similar circumstances.
“Gross negligence” means more than momentary thoughtlessness, inadvertence, or error of judgment. It means such an entire want of care as to establish that the act or omission in question was the result of actual conscious indifference to the rights, welfare, or safety of the persons affected by it.
The jury found actual damages of $500,000 for Harrison, $1.7 million for his wife, $1.5 million for his daughter, $1 million for his
LLC appealed. The court of appeals held that LLC retained control over job safety on the project so as to be liable for injury to its subcontractors’ employees, and that the evidence supported the jury‘s findings that its negligence and gross negligence in the exercise of its retained control caused Harrison‘s death.13 The court of appeals ordered a remittitur of $450,000 of the damages awarded Harrison and otherwise affirmed the trial court‘s judgment.14 This Court granted LLC‘s petition for review.15
II
LLC‘s principal argument is that it did not owe its subcontractors’ employees a duty to exercise reasonable care for their safety, despite its retention of control over jobsite safety, but rather that it was each subcontractor‘s responsibility to look out for its own employees. The answer to this argument requires a deeper analysis of section 414 of the
The well-established, long-standing, common-law rule, as recited in section 409 of the
In Redinger v. Living, Inc., the general contractor on a construction project had ordered the dirt hauling subcontractor to move a pile of dirt out of the way of concrete trucks, and in the process of complying the subcontractor‘s employee had injured an employee of the plumbing subcontractor who was working nearby.20 This Court held that the general contractor‘s right to control a subcontractor‘s work so specifically gave rise to a duty of care to another subcontractor‘s employee.21 Since Redinger, the Court has considered section 414 in seven other cases,22 each
“We do not believe that a general contractor or an employer is required to stand idly by while another is injured or killed in order to avoid liability. Nor do we believe that the liability rules contemplate putting those who employ independent contractors in that position.”28
Only once has this Court held an employer liable for an independent contractor‘s negligent injury to the contractor‘s own employee. In Tovar v. Amarillo Oil Co., we upheld the liability of the operator of an oil and gas lease for injury to a drilling company‘s employee from the driller‘s misuse of a blowout preventer which the operator had specifically prohibited in the drilling contract and of which the operator was actually aware.29 In each of the other cases, and in one preceding Redinger,30 we concluded that the employer of the independent contractor had no liability to the contractor‘s employee. Because we have never imposed such liability apart from the special circumstances in Tovar, we have never fully considered the ramifications of doing so.
But others have, including the drafters of the
The rules stated in this Chapter are, in general, not applicable to make the defendant who hires an independent contractor liable to two classes of persons.
One consists of the employees, or servants, of the defendant himself. . . .
The other class of plaintiffs not included in this Chapter consists of the em-
Again, when the Sections in this Chapter speak of liability to “another” or “others,” or to “third persons,” it is to be understood that the employees of the contractor, as well as those of the defendant himself, are not included.31
This note was omitted from the final draft at the recommendation of Professor William L. Prosser, the reporter, because of a lack of uniformity among courts on the issue due in part to the states’ different workers’ compensation acts,32 although he acknowledged that “certainly the prevailing point of view is that there is no liability on the part of the employer of the independent contractor.”33
In the thirty-five years since chapter 15 of the
In the first decade after the adoption of the
Restatement , courts split on whether to permit a contractor‘s employees to sue under the peculiar risk provisions of Chapter 15. Since the early 1980s, however, an overwhelming majority of state high courts to consider the issue have held that employers are not liable to such employees, with some even overruling prior interpretations of theRestatement . A majority of our sister circuits also have so ruled when called upon to resolve the issue in cases under state and federal law.38
The court cited extensive authority for each of these statements, which I do not copy here. Consistent with the obvious weight of authority, the court in Monk concluded that “employees of an independent contractor are not included within the protected class of ‘others’ under the peculiar risk provisions of Chapter 15 of the
The several justifications for not imposing liability on the employer of an independent contractor for injuries to the contractor‘s employees due to the peculiar risks of the work undertaken are refinements of two basic arguments, one that liability is inconsistent with the workers’ compensation system, and the other that liability is inconsistent with the general nature of the relationship between an independent contractor and its employer. The first argument encompasses these considerations:
First: The hire for a subscribing independent contractor presumably includes the cost of providing workers’ compensation coverage related to the work, and the contractor‘s employer who pays it should have the same protection from extra liability for job-related injuries to the contractor‘s employees that the contractor has.41 The employer thus has the same economic incentive the contractor has to minimize job-related risks to workers.42 The employer is not like a product manufacturer or other stranger to the work relationship who has not born any part of the cost of compensation and therefore is not immune from
Second: An employer should not be exposed to greater risk of liability for wisely entrusting peculiarly dangerous work to a better-skilled independent contractor than if he had undertaken the job with his own less capable employees.45 The employer pays for compensation coverage in either case, directly or indirectly, and he should not have less protection from liability for having acted more prudently.
Third: A worker should not have greater rights as an employee of an independent contractor than he would have as an employee of the contractor‘s employer.46 The sole redress of an employer‘s employee for a job-related injury is compensation benefits, and his recovery against the same person for the same injury on the same job should be no greater simply because he has been engaged by the employer‘s independent contractor.47
The second argument—that liability is inconsistent with the nature of the relationship between an independent contractor
First: An employer cannot fairly share with its independent contractor primary responsibility for job-site safety of the contractor‘s employees because an employer is not as well placed to protect the contractor‘s own employees.48 The contractor is more closely associated with its own employees and has a greater opportunity to ensure their safety. But more than this, the contractor has often been hired for its expertise in the work to be done and its superior ability to see that the work is done safely.49 For employers to share liability for injuries to contractors’ employees would make employers “the virtual insurers” of the workplace amounting to “a revolution in liability.”50
Second: An employer‘s liability for accidents should not increase the harder he tries to ensure that his independent contractors work safely and decrease the less he cares what happens.51 The risk to all workers is only increased by such a perverse rule.
I know of only two courts that have considered whether these same arguments apply to restrict an employer‘s liability for retained control of an independent contractor‘s work under section 414 of the
CHIEF JUSTICE PHILLIPS in his concurring opinion questions whether this is a minority view. It is not. Of the cases he cites, only two actually hold that the duty under section 414 extends to an independent contractor‘s employees, and neither analyzes the considerations I have set out.55 Nine cases focus only on the degree of control the defendant retained, just as this Court‘s prior cases have, and do not discuss the scope of the duty in section 414.56 In four of them, the defendant was held not liable
The arguments regarding the scope of chapter 15 of the
The argument is left that imposing liability on the employer of an independent contractor for the death of the contractor‘s employee is inconsistent with the relationship between the employer and the contractor. But the argument applies differently when injury has been caused by the contractor‘s gross negligence. To burden an employer with a general duty of care for an independent contractor‘s employees is inconsistent with the principal reasons for assigning work to a contractor. Still, it is hardly unreasonable to expect the employer to take some action to prevent a contractor‘s grossly negligent conduct of which the employer is actually aware. Imposing liability on an employer in such
Gross negligence, as that concept is used in the Workers’ Compensation Act,61 is defined in section 41.001(7)(B) of the
In sum, the policies underlying section 414 support holding an employer liable for gross negligence in failing to exercise his retained right of control over an indepen-
III
LLC argues that even if it had such a duty, there is no evidence that its negligence caused Harrison‘s death or that it was grossly negligent. I agree with the Court that the evidence supports the jury‘s verdict.
LLC retained substantial control over safety on the Methodist Hospital construction site. Its contract with the Hospital obligated it to do so, and its contract with KK Glass shows that it did. The safety requirements LLC contractually imposed on KK Glass are very detailed, and had KK Glass complied with them, Harrison would not have been killed. Moreover, LLC frankly acknowledged that its goal, which was wholly salutary, was to do what it could to ensure safety at the worksite. LLC could have excluded from the jobsite any KK Glass employee who failed to comply with LLC‘s safety requirements. In short, LLC contractually retained and actually exercised such control over KK Glass‘s work that it owed a duty under section 414 of the
Evidence that LLC retained control over job safety is necessary but not sufficient to hold LLC liable for Harrison‘s death. There is other evidence, however, that is sufficient. LLC approved KK Glass‘s use of lanyards to prevent its employees from falling, equipment that was being used by another subcontractor, which use an OSHA inspector had viewed without objection. At most, the design and use of the lanyard system was negligent; it was not grossly negligent. On the contrary, had the lanyard hooked to Harrison‘s safety belt been attached to an interior girder, as it should have been, he could not have fallen as he did. But it is not clear from the evidence that Harrison‘s fall was caused by the lanyard system. He may have fallen from the bosun‘s chair, and its use was an entirely different matter. No reasonable person in the position of KK Glass‘s job supervisor or LLC‘s project superintendent could reasonably have thought that working on the side of a ten-story building suspended by a single rope attached to the roof was safe. The use of the bosun‘s chair was obvious to anyone in the building or on the ground, and several workers commented on how dangerous it was. There was abundant evidence from which the jury could have concluded, as they did, that LLC knew that the bosun‘s chair presented an extreme risk of harm. And if the risk was obvious to LLC, it was even more obvious to KK Glass. Thus, the evidence credited by the jury shows that LLC was grossly negligent in failing to prohibit KK Glass from using the bosun‘s chair as it did, which was itself grossly negligent. Evidence of LLC‘s gross negligence, together with evidence of its control over safety, is sufficient for liability under section 414.
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For these reasons, I join in affirming the lower courts’ judgments. I end with
Justice JEFFERSON, concurring.
I concur in the Court‘s judgment. I agree that the evidence supports liability here, but not for the reasons stated by the Court. LLC‘s approval of the ineffective fall-protection system is not “actual control” as defined by this Court in Koch Refining Co. v. Chapa, 11 S.W.3d 153 (Tex.1999)(discussing
The Court concludes there is more than a scintilla of evidence that LLC exercised actual control over KK Glass by assigning an employee to inspect the work area and by approving an ineffective fall-protection system. That conclusion is difficult to square with our opinion in Koch Refining Co. v. Chapa. In Koch, the premises owner, Koch Refining Company, stationed a safety employee on site with authority to intervene if a subcontractor‘s employee engaged in a dangerous activity. There was evidence that Koch‘s safety employee overheard a conversation in which the independent contractor instructed its employee to engage in an unsafe pipe-lifting maneuver. Because the safety employee did nothing in response, the court of appeals held that “Koch‘s apparent acquiescence to the independent contractor‘s order to perform an unsafe operation was sufficient to compel Koch to take corrective action.” Id. at 156-57 (quoting Chapa v. Koch Refining Co., 985 S.W.2d 158, 162 (Tex.App.-Corpus Christi 1998)). We rejected that holding. We concluded that Koch‘s ability to intervene was not evidence that the subcontractor and its employees “were not free to do the work in their own way and is not evidence that Koch controlled the method of work or its operative details.” Koch, 11 S.W.3d at 156. It appears, then, that LLC cannot be liable solely because it positioned an employee on the job site with inspection authority and approved KK Glass‘s dangerous conduct.
If, in this instance, liability cannot be based on actual control, we must determine whether there is some other basis for imposing liability. As Justice Hecht observes, LLC unquestionably retained a contractual right to enforce safety requirements. Although the Court concludes it need not reach the issue of control by contract, I believe the question of LLC‘s contractual right to control must be addressed. We have previously discussed circumstances under which a premises owner or general contractor has retained the right to compel compliance with safety measures. See Tovar v. Amarillo Oil Co., 692 S.W.2d 469 (Tex.1985). In Tovar, the premises owner retained a contractual right to suspend its independent contractor‘s drilling operations “in the event of carelessness, inattention, or incompetency on the part of” that contractor. Id. at 470. We held that the oil company owed a duty to its independent contractor‘s employees when it became aware that the independent contractor was violating a specific,
Tovar does not discuss the policy considerations that favor permitting a general contractor to require all workers on a construction site to obey fundamental safety standards without thereby subjecting itself to liability for injuries to independent contractors’ employees. A general contractor‘s promulgation and enforcement of such basic safety measures should not be sufficient, in itself, to impose liability for injuries to subcontractors’ employees. Our tort system should not penalize a general contractor for insisting on compliance with basic safety standards. A general contractor is not “required to stand idly by while another is injured or killed in order to avoid liability. Nor do we believe that the liability rules contemplate putting those who employ independent contractors in that position.” Hoechst-Celanese Corp. v. Mendez, 967 S.W.2d 354, 358 (Tex.1998) (quoting Welch v. McDougal, 876 S.W.2d 218, 224 (Tex.App.—Amarillo 1994, writ denied)). Similarly, suggesting, or even requiring, that a subcontractor meet minimal safety requirements should not amount to the sort of “control” sufficient to hold a general contractor liable for injuries to subcontractors’ employees.
A different question is presented when the general contractor, who has contractual responsibility for general safety measures, permits its subcontractors to deviate routinely from the most elemental safety precautions. “[A]n employer who is aware that its contractor routinely ignores applicable federal guidelines and standard company policies related to safety may owe a duty to require corrective measures to be taken or to cancel the contract.” Hoechst-Celanese, 967 S.W.2d at 357. I would affirm the judgment on this basis.
LLC‘s liability stems from its right to compel compliance with standard safety measures coupled with its tacit approval of the subcontractor‘s patently treacherous operations. LLC was fully aware that KK Glass employees, and Harrison in particular, used a bosun‘s chair to perform caulking work on the exterior of a multistory building. LLC knew that the chair had no independent lifeline and that employees would have only their grasp of the rope to prevent a fatal fall. LLC employees testified that they saw Harrison using the bosun‘s chair less than 30 minutes prior to his fall, with one untethered end of his lanyard looped around his neck. At no time did LLC discourage use of the bosun‘s chair in this fashion. Moreover, the jury heard testimony that although LLC was careful to enforce fall-protection systems for its own employees, it remained silent while watching KK Glass employees dangle precariously from the tenth floor.
LLC is liable not merely because it adopted a general safety program or possessed a contractual right to expel subcontractors who routinely flout general safety standards, but also because LLC endorsed KK Glass‘s repeated use of an obviously hazardous activity. Thus, although I cannot join the Court‘s opinion with respect to actual control, I agree with the Court‘s disposition and concur in the judgment.