Exxon Corp. v. Quinn

• Decision Date: 04 March 1987
• Docket Number: No. C-4696,C-4696
• Citation: 30 Tex.Sup.Ct.J. 269,726 S.W.2d 17
• Parties: EXXON CORPORATION, Petitioner, v. Charles Randy QUINN et ux., Respondents.
• Court: Texas Supreme Court

Page 17

726 S.W.2d 17

EXXON CORPORATION, Petitioner, v. Charles Randy QUINN et ux., Respondents.

No. C-4696.

Supreme Court of Texas.

March 4, 1987.

Rehearing Denied April 8, 1987.

G. Alan Kramer, Pamela J. Ashley, Houston (Ramey, Flock, Hutchins, Jeffus, McClendon & Crawford, Tyler, of counsel), for petitioner.

Russell H. McMains, McMains & Constant, Corpus Christi, Fred L. Nix, Lynn S. Patton, Patton & Nix, Longview, for respondents.

SPEARS, Justice.

This is a personal injury case involving the duty owed by a landowner to employees of an independent contractor. Charles Randy Quinn sued Exxon Corporation for injuries he sustained while working on a utility pole on an Exxon lease. The trial court rendered judgment notwithstanding the verdict in favor of Exxon. The court of appeals in an unpublished opinion reversed the judgment of the trial court and rendered judgment for Quinn. We reverse and remand the cause to the court of appeals.

On July 1, 1980, plaintiff Quinn, an employee of Woodard Electric Company, was injured when a utility power pole on which he was working was reenergized by C.J. Joyner, Woodard's on-site foreman. It is undisputed that Woodard is an independent contractor. The Woodard crew was called to the Exxon lease to "drop-out" a power line running between two Exxon utility poles, one of which was no longer in service. The electrical power to the in-service Exxon pole was provided by a Southwestern Electric Power Company (Swepco) pole.

In order to "drop-out" the power to the unused pole, Quinn was required to climb the energized power pole. To reach the line, Quinn would ascend over energized parts of the pole, power transformers, and jumper wires which ran between the transformers. The jumper wires were positioned so that Quinn had to press the wires against the pole to perform his work.

The usual and customary safety operation employed in Quinn's task is known as the Swepco "red tag procedure." The red tag procedure involved calling Swepco, who would then come out to its power pole and disconnect the power to Exxon's energized pole. Swepco would then write the name of the person to climb the pole (Quinn) on a red tag and would not reconnect the power until the person had completed his task and signed his name on the red tag. This procedure, employed by Exxon and Woodard in the past, made sure that the pole being climbed and worked on would not be reenergized until the climber was back on the ground. Unfortunately, on the date in question, the red tag procedure was not used.

When Joyner and Quinn arrived on the lease, Exxon's onsite representative, Fred Crumley, inquired whether Swepco should be called to come out and perform the red tag procedure. Joyner declined and stated he would operate the Swepco disconnects while Quinn was on the pole.

Quinn climbed the pole, performed the drop-out and began his descent. Once below the jumper wires which he had pressed into the pole, Quinn reached up to straighten the wires. At this point, Joyner, who was on the ground operating the disconnects, could only see Quinn's shoulders because the transformers blocked his view of Quinn's head and hands. Seeing Quinn below the transformers, Joyner thought Quinn was away from any danger area. Joyner then reconnected the Exxon pole to the Swepco pole, thereby energizing the Exxon pole and the jumper wires which Quinn was positioning. Quinn suffered a severe electrical shock and other injuries resulting from his fall from the Exxon pole.

Quinn and his wife, Rebecca, sued Exxon. The Quinns also brought a worker's compensation action against Woodard and Joyner which is not part of this appeal. The jury found Exxon negligent in participating in the decision not to call Swepco, which was a proximate cause of Quinn's injury. The jury also found Exxon negligent in failing to provide a safe place to work and such negligence was a proximate cause of Quinn's injuries. Quinn's negligence was not a proximate cause of his injuries. Over Exxon's objection, no issue was submitted regarding Joyner's participation in the accident. The jury awarded Quinn $1,500,000 in damages. The trial court, however, rendered judgment notwithstanding the verdict in favor of Exxon.

The court of appeals reversed the judgment of the trial court and rendered judgment for plaintiff Quinn in accordance with the jury verdict. The court of appeals relied on special issue No. 1 submitted to the jury and stated that Exxon's participation in the decision not to call Swepco is "consistent with a theory of recovery upon conventional common law negligence grounds." As submitted, special issue No. 1 asked:

Do you find from a preponderance of the evidence that Fred Crumley participated in the decision not to request SWEPCO to disconnect and reconnect the SWEPCO switches controlling the supply of electricity to the EXXON pole on which CHARLES RANDY QUINN was injured?

ANSWER: We do.

The court of appeals stated that even though Quinn was an employee of Woodard, an independent contractor, Exxon owed Quinn the same duty it owed to all persons, that is, to exercise reasonable care in its conduct and avoid foreseeable harm. The court of appeals did not address the jury finding that Exxon breached its duty to provide Quinn a safe place to work.

In reviewing whether the trial court's judgment n.o.v. was proper, we must view the evidence admitted at trial in favor of Quinn and determine that there is no evidence upon which the jury could have found for Quinn. Dowling v. NADW Marketing, Inc., 631 S.W.2d 726, 728 (Tex.1982); Dodd v. Texas Farm Prods. Co., 576 S.W.2d 812, 814 (Tex.1979).

On appeal to this court, Exxon argues the jury's finding that Exxon "participated" in the decision not to employ Swepco's red tag procedure is legally insufficient to impose liability for negligence. More precisely, Exxon argues that since it did not retain the right to control the manner in which Woodard performed the job assignment, its failure to call Swepco or to stop Joyner and Quinn from performing the drop-out until Exxon could call Swepco was not negligence. We agree.

An owner or leaseholder is generally not obligated to require an independent contractor to perform an on-premises activity in a safe manner. Redinger v. Living, Inc., 689 S.W.2d 415, 418 (Tex.1985). Moreover, it is well established that the responsibility for conducting a task in a safe manner rests with the independent contractor and not the premises owner "where the activity is conducted by, and is under the control of an independent contractor, and where the danger arises" out of the employees' performance of the task. Abalos v. Oil Development Co., 544 S.W.2d 627, 631 (Tex.1976). The landowner in an independent contractor relationship, however, may be liable when he retains the right to control the contractor's work but fails to exercise his retained control with reasonable care. Redinger, 689 S.W.2d at 418; Tovar v. Amarillo Oil Co., 692 S.W.2d 469, 470 (Tex.1985); RESTATEMENT (SECOND) TORTS § 414 (1977). Control, or the right to control, when resting with the landowner, then, is paramount to recovery.

In this case, Exxon had no control nor the right to exercise control over the details or supervise the manner in which Woodard performed its assignment. Both Quinn and Joyner testified at trial that Woodard was responsible for the details and the manner of performing the line drop-out. The special issues submitted by Quinn and found by the jury concern only whether Exxon "participated" in the decision not to call Swepco. The "participation" found by the jury does not reach the necessary level of "control" required to create liability in this case.

In Redinger, the defendant general contractor's foreman supervised the work site and gave the order which placed the plaintiff in jeopardy. In Tovar, the defendant's on-site representative suggested that the manner of operation posed a danger to the plaintiff and the defendant further had the contractual right to order the work to be performed in a different manner. In the instant case, Crumley had no right to interfere in Woodard's operation; therefore, he had no right to acquiesce in the decision not to call Swepco or to employ Swepco's red tag procedure. Even if he had acquiesced in Woodard's decision, such participation is not enough to establish control. Joyner testified that he told Crumley that the line drop-out " 'won't take but a few minutes, I would just as soon open and close it [the disconnect] myself'." Quinn testified to a slightly different version, but the impact was still that it was Woodard, not Exxon, who decided that Swepco would not be called.

Quinn did not submit special issues on Exxon's control. Furthermore, the record contains no evidence that Exxon exercised control or had the right to exercise control. Without establishing control, Exxon, under these facts was not obligated to supervise the manner in which Woodard handled the disconnects and reenergizing. Exxon, therefore, as a matter of law is not liable for participating in the decision not to call Swepco or for failing to require that Woodard employ the red tag procedure. The trial court's granting a judgment n.o.v. as to special issue No. 1 was proper. In order to sustain the trial court's judgment n.o.v., however, we must determine that the judgment is proper as to all possible grounds of recovery. Dowling, 631 S.W.2d at 728; Dodd, 576 S.W.2d at 814.

In addition to possible liability for negligence arising because of an on-premises activity, a leaseholder may be liable for negligence arising from a defect on the premises. Redinger, 689 S.W.2d at 417; see also Edwards v. Shell Oil Co., 611 S.W.2d 904, 906 (Tex....