Diaz v. R&A Consultants

• Decision Date: 10 April 2019
• Docket Number: No. 08-15-00358-CV,08-15-00358-CV
• Citation: 579 S.W.3d 460
• Parties: Roberto DIAZ, Appellant, v. R & A CONSULTANTS, Appellee.
• Court: Texas Court of Appeals

579 S.W.3d 460

Roberto DIAZ, Appellant,

v.R & A CONSULTANTS, Appellee.

No. 08-15-00358-CV

Court of Appeals of Texas, El Paso.

April 10, 2019

OPINION

ANN CRAWFORD McCLURE, Chief Justice

In this construction accident case, we must principally decide if one contractor owed a duty to another contractor’s employees. Aside from the parties' conduct and contracts which usually resolve this question, we also consider the duty implications of administrative regulations applicable to the type of construction at issue here: asbestos abatement. The trial court granted summary judgment in favor of the defendant contractor. We agree and affirm.

BACKGROUND

Roberto Diaz worked for Robles and Sons, Inc. (Robles), an asbestos abatement contractor. Robles was abating asbestos containing joint compound on the walls and ceiling of a commercial retail space. At the time of the accident, Diaz was working inside a "containment area" which enclosed a space with plastic sheeting, and through negative air pressure, prevented the escape of any free-floating asbestos particles. See 25 TEX.ADMIN.CODE § 295.32 (31) (Tex.Dep't of State Health Serv., Definitions). Within that zone, Diaz was cleaning dust and debris between a false ceiling and the actual roof of the structure. A person, unidentified in this record, called up to Diaz and threw him material to fix a tear in the containment area’s plastic sheeting. To reach the tear, Diaz had to unhook his fall protection harness. When he did so, and as he walked over the false ceiling, it gave way and he fell some seventeen feet, causing serious injuries.

Diaz sued the premises owner, Simon Properties. He also sued R&A Consultants, Inc. (R&A) who had contracted with Simon Properties to provide "project design" and "air monitoring" services for the abatement project. Diaz' suit alleged three theories against R&A: negligence, premises liability, and joint enterprise. R&A moved for summary judgment challenging multiple elements of each claim. Relevant to this appeal, R&A claimed that it owed no duty to Diaz, who was the employee of an independent contractor. The trial court granted the motion and severed Diaz’s claims against R&A. In this appeal, Diaz challenges only the summary judgment on the negligence claim.

STANDARD OF REVIEW

We review a trial court’s decision to grant summary judgment de novo. Travelers Ins. Co. v. Joachim , 315 S.W.3d 860, 862 (Tex. 2010). R&A filed a hybrid motion that included both traditional and no-evidence grounds. The trial court granted both motions without specifying the grounds. Diaz thus carries the burden of negating all possible grounds upon which the summary judgment could have been granted. See Star-Telegram, Inc. v. Doe , 915 S.W.2d 471, 473 (Tex. 1995) ; Ramirez v. First Liberty Ins. Corp. , 458 S.W.3d 568, 571 (Tex.App.--El Paso 2014, no pet.).

A "no evidence" motion requires the moving party to "state the elements as to which there is no evidence," and upon doing so, the burden shifts to the non-movant to produce summary judgment evidence raising a genuine issue of material fact regarding each element challenged in the motion. TEX.R.CIV.P. 166a(i) ; see also Wade Oil & Gas, Inc. v. Telesis Operating Company, Inc. , 417 S.W.3d 531, 540 (Tex.App.--El Paso 2013, no pet.). In a traditional motion for summary judgment, the movant carries the burden to show there is no genuine issue of material fact on a claim or defense, and that the movant is entitled to judgment as a matter of law. TEX.R.CIV.P. 166a(c). Once the movant establishes a right to judgment as a matter of law, the burden shifts to the non-movant to produce evidence raising a genuine issue of material fact. City of Houston v. Clear Creek Basin Auth. , 589 S.W.2d 671, 678-79 (Tex. 1979). A defendant is entitled to summary judgment if it conclusively negates at least one element of the plaintiff’s claim, or conclusively establishes an affirmative defense. Frost Nat'l Bank v. Fernandez , 315 S.W.3d 494, 508 (Tex. 2010).

For both types of motions, we review the evidence in the light most favorable to the non-movant, crediting evidence favorable to that party if reasonable jurors could, and disregarding contrary evidence unless reasonable jurors could not. See City of Keller v. Wilson , 168 S.W.3d 802, 827 (Tex. 2005) ; Johnson v. Brewer & Pritchard, P.C. , 73 S.W.3d 193, 208 (Tex. 2002). The non-movant establishes a genuine issue of material fact by producing more than a scintilla of evidence regarding the challenged element. King Ranch, Inc. v. Chapman , 118 S.W.3d 742, 751 (Tex. 2003). More than a scintilla of evidence exists when reasonable and fair-minded individuals could differ in their conclusions. Id. The non-movant fails in their burden when the evidence is so weak as to do no more than create a mere surmise or suspicion of material fact. Wade Oil & Gas , 417 S.W.3d at 540.

DUTY

A valid negligence claim requires the existence of a legal duty, a breach of that duty, and damages proximately caused by the breach. Gharda USA, Inc. v. Control Solutions, Inc. , 464 S.W.3d 338, 352 (Tex. 2015). While R&A challenged each element of Diaz’s claim below, the parties principally join issue on whether R&A owed a duty to Diaz. Whether one party owes a duty to another is a question of law that we decide from the facts surrounding the occurrence at issue. Golden Spread Council, Inc. No. 562 of the Boy Scouts of America v. Akins , 926 S.W.2d 287, 289-90 (Tex. 1996) (noting that courts must "weigh the risk, foreseeability, and likelihood of injury against the social utility of the actor’s conduct, the magnitude of the burden of guarding against the injury, and the consequences of placing the burden on the defendant.").

Diaz asserts in part that the duty in this case is governed by those cases defining a general contractor’s duty to a subcontractor’s employees. That same body of law treats a general contractor as the "owner or occupier of land," thus creating an overlap with a premises owner’s duty to a business invitee on the property. Clayton W. Williams, Jr., Inc. v. Olivo , 952 S.W.2d 523, 527 (Tex. 1997) (discussing the "hybrid body of law that lies at the intersection" of a general contractor and premises' owner duty question). As an owner or occupier of the land, R&A might owe one of two duties related to either (1) defects existing on the premises when the independent contractor entered and (2) defects the independent contractor created by its work activity. Coastal Marine Serv. of Tex., Inc. v. Lawrence, 988 S.W.2d 223, 225 (Tex. 1999). As Diaz has not specifically challenged the summary judgment on his "premises liability" count, we focus on the second category--a premises danger created by Robles’s work activity.¹

A general contractor does not owe a duty to ensure that an independent contractor performs its work in a safe manner. Lee Lewis Const., Inc. v. Harrison , 70 S.W.3d 778, 783 (Tex. 2001), citing Elliott-Williams Co., Inc. v. Diaz , 9 S.W.3d 801, 803 (Tex. 1999) and Hoechst-Celanese Corp. v. Mendez , 967 S.W.2d 354, 356 (Tex. 1998). There are several exceptions to this rule, and an important one here: when a general contractor retains some control over how the independent contractor performs its work, the general contractor must exercise that control in a reasonable manner. Elliott-Williams , 9 S.W.3d at 803 ; Redinger v. Living, Inc. , 689 S.W.2d 415, 418 (Tex. 1985), citing RESTATEMENT (SECOND) OF TORTS § 414 (1965) ("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.").

The Restatement Section 414 "control" exception itself, and subsequent Texas Supreme Court decisions, recognize several meaningful limitations on the duty. As the Restatement requires, "[t]he employer’s role must be more than a general right to order the work to start or stop, to inspect progress or receive reports." Redinger , 689 S.W.2d at 418, citing RESTATEMENT (SECOND) OF TORTS § 414 cmt. c (1965). "[M]erely exercising or retaining a general right to recommend a safe manner for the independent contractor’s employees to perform their work is not enough to subject a premises owner to liability." Koch Refining Co. v. Chapa , 11 S.W.3d 153, 155 (Tex. 1999), citing RESTATEMENT (SECOND) OF TORTS § 414 cmt. c (1965). Rather, there must be such a retention of a right of supervision that the contractor is not entirely free to do the work in his own way. Id.

Next, courts have required a nexus between the control and the injury-producing event. Mendez , 967 S.W.2d at 357 (requiring "nexus between an employer’s retained supervisory control and the condition or activity that caused the injury")[Emphasis in original]; Painter v. Sandridge Energy, Inc. , 511 S.W.3d 713, 720 (Tex.App.--El Paso 2015, pet. denied) (collecting cases and noting "the right to control must extend to the specific activity from which the injury arose."). State otherwise, the control must relate to the injury producing event. Olivo , 952 S.W.2d at 528 ("For the general contractor to be liable for negligence, its supervisory control must relate to the condition or activity that caused the injury.").

Litigants sometimes attempt to find that nexus in a general contractor’s policies that require compliance with its own safety rules or governmental safety rules. The Texas Supreme Court, however, has described this as a "narrow" duty of care that any safety requirements and procedures do not unreasonably increase the probability and severity of injury. Mendez , 967 S.W.2d at 358. Additionally, a general contractor 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...