General Elec. Co. v. Moritz, 04-0871.

• Court: Supreme Court of Texas
• Citation: 257 S.W.3d 211
• Docket Number: No. 04-0871.,04-0871.
• Parties: GENERAL ELECTRIC COMPANY, Petitioner, v. Arthur Lee MORITZ, Respondent.
• Decision Date: 13 June 2008

257 S.W.3d 211 GENERAL ELECTRIC COMPANY, Petitioner,
v.
Arthur Lee MORITZ, Respondent. No. 04-0871. Supreme Court of Texas. Argued October 17, 2006. Decided June 13, 2008.

[257 S.W.3d 213]

Steven K. Hayes, Cotten Schmidt, L.L.P., Ft. Worth, Robert D. Arredondo, Manning, Gosda & Arredondo, L.L.P., Houston, Richard E. McGary, Scheef & Stone, L.L.P., Dallas, TX, for Petitioner.

Frank G. Giunta, Teresa Ruiz Schober, Demarest, Smith & Giunta, PLLC, Dallas, Kevin J. Keith, Hiersche Hayward Drakely & Urbach, P.C., Addison, TX, for Respondant.

Justice BRISTER delivered the opinion of the Court, in which Justice HECHT, Justice WAINWRIGHT, Justice MEDINA, and Justice WILLETT joined.

Must a landowner warn an independent contractor's employees of obvious hazards they already know about? Four times in the last ten years this Court has said the answer is "No."¹ The plaintiff in this case argues that all these cases are wrong because his knowledge of the hazard is simply a factor the jury should consider in assessing comparative negligence. We agree the jury alone can decide whether he was negligent, but disagree that a jury can decide what legal duties landowners owe to independent contractors. We hold the trial court correctly found no duty here, and the court of appeals erred in reversing it.

I. Background

Arthur Lee Moritz worked for an independent contractor that delivered General Electric parts to customers. Every day for 18 months, Moritz drove his pick-up to GE's warehouse, which had a loading dock with two large doors. Both doors were about four-and-a-half feet above the paved driveway, but only one had a concrete ramp extending down to grade level. The ramp was straight, 10 feet wide, 40 feet long, and had six-inch curbs along both edges but no guard rails. Generally, Moritz loaded supplies either by backing his truck up the ramp and into the warehouse itself, or backing up next to the door without a ramp. But on some days, he would load his truck on the ramp or outside in the driveway.

On the day Moritz was injured, both doors were blocked by GE supplies, so he parked his truck up on the ramp. Two GE employees helped him load electrical conduit into the bed of his pickup, after which Moritz alone secured the load with rachet-type straps. He then tried to add a rubber

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bungee cord, but the cord broke while he was leaning back to stretch it, causing him to fall off the ramp's side and fracture his hip, pelvis, and thumb.

Moritz sued GE and others,² alleging that as owners or occupiers of the premises they were liable for negligence regarding activities and premises conditions.³ The trial court granted summary judgment for the defendants, but the court of appeals found fact questions as to both theories and reversed.⁴ We address each theory in turn.

II. The Negligent Activity Theory

Moritz alleged a negligent activity claim solely against GE. Generally, an owner or occupier does not owe a duty to ensure that independent contractors perform their work in a safe manner.⁵ But one who retains a right to control the contractor's work may be held liable for negligence in exercising that right.⁶ This right to control may be expressed by contract or implied by conduct.⁷

In the summary judgment record here, there was no evidence Moritz's duties were governed by a contract. There was some evidence that in practice GE controlled where Moritz could load his truck, such as when it blocked some of his loading options. But there was no evidence it controlled how or where Moritz secured his load for delivery — the truck, straps, and rubber cords he used for that purpose were entirely his own.

Citing our opinion in Lee Lewis Construction, Inc. v. Harrison,⁸ the court of appeals held that a fact question was created if "GE retained the right to control any aspect of Moritz's activities."⁹ What we actually said in Lee Lewis (citing the Restatement of Torts and numerous opinions) was that a defendant's duty "is commensurate with the control it retains over the independent contractor's work."¹⁰ Thus, it is not enough to show that the defendant controlled one aspect of Moritz's activities if his injury arose from another.¹¹

Here, GE's control of where Moritz could load supplies did not dictate where

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he could secure that load. While some loads undoubtedly must be secured before they are moved an inch, that was not the case here; Moritz admitted at his deposition that he could have driven off the ramp before securing this load. As an independent contractor, Moritz was free to choose whatever vehicle he wanted for deliveries, and when, where, and how he would secure his load. Thus, none of the defendants had contractual or actual control of Moritz's decision to carry loads in the back of a pick-up truck or secure them with rubber cords requiring him to use his body weight to pull them taut.

Accordingly, the court of appeals erred in finding a fact question on his negligent activity theory.

III. The Premises Condition Theory

Moritz alleged a premises-condition claim against all the defendants. Generally, a landowner is liable to employees of an independent contractor only for claims arising from a pre-existing defect rather than from the contractor's work,¹² and then only if the pre-existing defect was concealed: "With respect to existing defects, an owner or occupier has a duty to inspect the premises and warn of concealed hazards the owner knows or should have known about."¹³ Moritz's claimed defect — the absence of rails on the loading ramp — was obviously a pre-existing condition and obviously not a concealed hazard.

Limiting premises liability to concealed hazards is not unique to cases involving independent contractors. A lessor who relinquishes possession or occupancy of premises also has no duty to warn of defects except those that are concealed.¹⁴ In both cases, the landowner's duty is limited because control is being turned over to someone else in a way that is not true of shoppers, sightseers, or other business invitees.

An independent contractor owes its own employees a nondelegable duty to provide them a safe place to work, safe equipment to work with, and warn them of potential hazards;¹⁵ it also controls the details and methods of its own work, including the labor and equipment employed.¹⁶ Thus, one who hires an independent

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contractor generally expects the contractor to take into account any open and obvious premises defects in deciding how the work should be done, what equipment to use in doing it, and whether its workers need any warnings. Placing the duty on an independent contractor to warn its own employees or make safe open and obvious defects ensures that the party with the duty is the one with the ability to carry it out.

The dissent argues that it "makes no sense" to allocate duty in this manner because Moritz had no "control over the workplace conditions." GE may have controlled Moritz's loading options, but not where he chose to secure his load. Accordingly, it had a duty only to warn him of concealed defects he might encounter in doing his own work. The absence of handrails here was clearly not a concealed defect. If owners and occupiers have no duty to warn an independent contractor of open and obvious defects, the defendants had no duty to warn Moritz that the ramp he had been using for more than a year had no handrails.

IV. The Duty to Independent Contractors and Parker

The court of appeals held the defendants still owed Moritz a duty to warn or make the ramp safe because this Court abolished all no-duty arguments in 1976 in Parker v. Highland Park.¹⁷ But Parker does not go that far, as we explained more than 20 years ago in Dixon v. Van Waters and Rogers.¹⁸

In Parker, a landlord mis-set a timing device that turned on the lights in an enclosed stairway of an apartment building, darkening the tenants' only way down.¹⁹ In upholding a jury verdict in a visitor's favor, we "expressly abolish[ed] the so-called no-duty concept in this case" and ordered that "[t]he reasonableness of an actor's conduct under the circumstances will be determined under principles of contributory negligence."²⁰

But Parker abolished a certain kind of no-duty defense, not all duty questions whatsoever. The question in Parker was not whether the defendant owed the plaintiff a duty; the landlord unquestionably had a duty to provide second-floor renters some way down besides jumping. The question instead, as we explained in 1984 in Dixon, was whether the plaintiff had to prove she had no knowledge of the stairway's darkness as part of her case-in-chief:

The term "no-duty," as used in Parker, referred to the oddity that had uniquely developed in Texas to confuse negligence law. It meant that a plaintiff had the burden to negate his own knowledge and his own appreciation of a danger. The rule that the plaintiff does not have the burden to obtain findings that disprove his own fault does not, however, mean that a plaintiff is excused from proving the defendant had a duty and breached it. A plaintiff does not have the burden to prove and obtain findings that he lacked knowledge and appreciation of a danger; he must, however, prove the defendant had a duty and breached it.²¹

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Like any other negligence action, a defendant in a premises case is liable only to the extent it owes the plaintiff a legal duty.²² Whether such a duty exists is a question of law for the court;²³ it is not for the jury to decide under comparative negligence or anything else. If (for example) a defendant neither owns nor occupies the premises, a jury cannot impose a duty anyway on the theory that Parker abolished all no-duty defenses. Every court that has analyzed Parker and Dixon together has come to this same conclusion — including courts of appeals for the First,²⁴ Seventh,²⁵ Eighth,²⁶ and Fourteenth Districts,²⁷ and the federal Fifth Circuit.²⁸

We do not, as the overwrought...