Dow Chemical Co. v. Bright

• Decision Date: 17 October 2002
• Docket Number: No. 99-0929.,99-0929.
• Citation: 89 S.W.3d 602
• Parties: The DOW CHEMICAL COMPANY and the Dow Chemical Company d/b/a Engineering and Construction Services, A Division of Dow Chemical, USA, Petitioners, v. Larry BRIGHT, Jr., Respondent.
• Court: Texas Supreme Court

Page 602

89 S.W.3d 602

The DOW CHEMICAL COMPANY and the Dow Chemical Company d/b/a Engineering and Construction Services, A Division of Dow Chemical, USA, Petitioners, v. Larry BRIGHT, Jr., Respondent.

No. 99-0929.

Supreme Court of Texas.

Argued April 24, 2002.

Decided October 17, 2002.

Rehearing Denied December 19, 2002.

COPYRIGHT MATERIAL OMITTED

Scott K. Field, Joseph R. Knight, Bob E. Shannon, Gavin Robert Villareal, Baker Botts, LLP, Austin, Randy Edward Moore, The Moore Law Firm, Lake Jackson, for The Dow Chemical Company.

Matthew J.M. Prebeg, James B. Lewis, Glover, Miller, Lewis & Prebeg, Peter M. Kelly, Kelly Jeremiah & Feder LLP, Houston, for Larry Bright, Jr. Justice RODRIGUEZ delivered the opinion of the Court, in which Chief Justice PHILLIPS, Justice HECHT, Justice ENOCH, Justice OWEN, and Justice JEFFERSON join.

Dow Chemical Company retained Gulf States, Inc. as an independent contractor to perform construction work. Gulf States employed Larry Bright as a carpenter. Bright suffered an on-the-job injury and sued Dow, alleging it was negligent and had a duty to use reasonable care to keep the premises under its control in a safe condition. Bright filed a motion for partial summary judgment on the issue of duty, arguing that Dow retained both contractual and actual control of the premises when he was injured. Dow filed a "traditional" motion for summary judgment contending that it owed Bright no duty. The trial court granted Dow's motion, denied Bright's motion, and rendered judgment that Bright take nothing. The court of appeals reversed and remanded, concluding that the summary judgment evidence raised a fact issue about the extent of "supervisory control" retained by Dow. 1 S.W.3d 787. We conclude that no fact issues exist about the extent of contractual or actual control retained by Dow. Accordingly, we reverse the court of appeals' judgment and render judgment that Bright take nothing.

I. Facts

Gulf States employed Larry Bright as a carpenter. Gulf States was an independent contractor retained by Dow in the construction of an off-gas compressor in Freeport, Texas. While Bright was removing plywood forms from a concrete pier, an overhead pipe became unstable and fell on him, trapping his arm and causing his injury. The pipe was put into place, and improperly secured by another Gulf States employee. Citing Redinger v. Living, Inc., 689 S.W.2d 415 (Tex.1985) and the Restatement (Second) of Torts section 414, Bright filed a motion for partial summary judgment arguing that Dow retained contractual and actual control of the premises and thus it had a duty to use reasonable care to keep the premises in a safe condition. Dow filed a "traditional" motion for summary judgment arguing that Gulf States was an independent contractor and that Dow was not obligated to protect Gulf States' employees from hazards that are incidental to or part of the work Gulf States was retained to perform. The trial court granted Dow's motion for summary judgment, denied Bright's motion, and rendered judgment that Bright take nothing. The court of appeals reversed and remanded, concluding that the summary judgment evidence raised a fact issue about the extent of supervisory control retained by Dow, and therefore a fact issue about the existence of a duty owed by Dow to Bright. 1 S.W.3d at 791.

Dow filed a petition for review, asking us to decide whether Dow owed Bright a "broad duty to exercise reasonable care" and whether the court of appeals erred in interpreting this Court's decision in Hoechst-Celanese Corp. v. Mendez, 967 S.W.2d 354 (Tex.1998). When both sides have moved for summary judgment and one motion is granted and one denied, we determine all questions presented and render the judgment the trial court should have rendered. See City of Garland v. Dallas Morning News, 22 S.W.3d 351, 356 (Tex.2000).

II. Analysis

Whether Dow owed Bright a duty is governed by our law concerning a general contractor's duties to a subcontractor's employees. Koch Ref. Co. v. Chapa, 11 S.W.3d 153, 155 n. 1 (Tex.1999) ("A general contractor owes the same duty as a premises owner to an independent contractor's employee."). In that context, there are two categories of premises defect cases:

(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). Bright argues that Dow is subject to liability under the second category — when the dangerous condition arises because of the independent contractor's work activity.

Under this second category, the premises owner generally owes no duty to the independent contractor's employees. In Redinger, we recognized that the "general rule is that an owner or occupier does not have a duty to see that an independent contractor performs work in a safe manner. ... However, when the general contractor exercises some control over a subcontractor's work he may be liable unless he exercises reasonable care in supervising the subcontractor's activity." Redinger, 689 S.W.2d at 418. For liability to attach, "[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." Id. (citing RESTATEMENT (SECOND) OF TORTS § 414 cmt. c (1965)).

A party can prove right to control in two ways: first, by evidence of a contractual agreement that explicitly assigns the premises owner a right to control; and second, in the absence of a contractual agreement, by evidence that the premises owner actually exercised control over the manner in which the independent contractor's work was performed. Koch, 11 S.W.3d at 155. Bright raises both arguments in this case. We first determine whether Dow exercised contractual control of the premises.

A. Contractual right to control

A contract may impose control upon a party thereby creating a duty of care. Elliott-Williams Co. v. Diaz, 9 S.W.3d 801, 804 (Tex.1999). "If the right of control over work details has a contractual basis, the circumstance that no actual control was exercised will not absolve the general contractor of liability." Id. "It is the [contractual] right of control, and not the actual exercise of control, which gives rise to a duty to see that an independent contractor performs work in a safe manner." Id. "For a general contractor to be liable for its independent contractor's acts, it must have the right to control the means, methods, or details of the independent contractor's work. Further, the control must relate to the injury the negligence causes, and the contract must grant the contractor at least the power to direct the order in which work is to be done." Id. (citations omitted). Determining whether a contract gives a right of control is generally a question of law for the court rather than a question of fact for the jury. Lee Lewis Constr., Inc. v. Harrison, 70 S.W.3d 778, 783 (Tex.2001).

The Construction Contract between: Dow and Gulf States provides:

22.01. Safety — ... CONTRACTOR shall take all necessary precautions for the safety of the employees on the work and shall comply with all safety rules and regulations of DOW as set forth in the Safety and Loss Prevention Manual for CONTRACTORS and all applicable provisions of the federal, state and municipal safety laws and building codes to prevent accidents or injuries to persons or damage to property on or about or adjacent to the premises where work is being performed.

30.01. Responsibilities — CONTRACTOR shall be an independent contractor under this Contract and shall assume all of the rights, obligations and liabilities, applicable to it as such independent contractor hereunder and any provisions in this Contract which may appear to give DOW the right to direct CONTRACTOR as to details of doing the work herein covered or to exercise a measure of control over the work shall be deemed to mean that CONTRACTOR shall follow the desires of DOW in the results of the work only.

Bright argues that Dow had a contractual right to control the premises because Dow required its independent contractors to comply with the safety rules and regulations promulgated by Dow in its Safety and Loss Prevention Manual. Dow argues that section 30.01 of the Construction Contract specifically provides that Gulf States shall be an independent contractor and that Gulf States retains the right to control its work, and that accordingly Dow retained no contractual control.

This agreement does not impose upon Dow any duty of care to Bright. The agreement does not delegate to Dow the right to control the means, methods, or details of Gulf States' work, nor does it grant Dow the power to direct the order in which Gulf States' work should be done. Indeed, paragraph 30.01 specifically provides that Gulf States is an independent contractor and assumes all liabilities as such. Further, paragraph 30.01 provides that any other provisions in the contract, such as paragraph 22.01, shall be deemed to mean that Gulf States would follow Dow's desires in the results of the work only.

We conclude, as a matter of law, that the agreement does not impose a duty on Dow because Dow did not retain the right to control the means, methods, or details of Bright's work. Elliott-Williams, 9 S.W.3d at 804.

B. Actual exercise of control

A premises owner who actually exercises control over the contractor's work may be subject to direct liability for negligence. Koch, 11 S.W.3d at 155. However, "merely 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." Id. (citing RESTATEMENT (SECOND) OF TORTS § 414 cmt. c (1965)). In addition, "the control must relate to the injury the negligence causes." Elliott-Williams, 9 S.W.3d at 804. Furthermore, if a premises owner exercises control by requiring...