Hoechst-Celanese Corp. v. Mendez

• Decision Date: 13 February 1998
• Docket Number: No. 97-0860,HOECHST-CELANESE,97-0860
• Citation: 967 S.W.2d 354
• Parties: 1998 O.S.H.D. (CCH) P 31,506, 41 Tex. Sup. Ct. J. 458 CORPORATION, Petitioner, v. Jesse MENDEZ, Jr., Respondent.
• Court: Texas Supreme Court

Page 354

967 S.W.2d 354

1998 O.S.H.D. (CCH) P 31,506, 41 Tex. Sup. Ct. J. 458

HOECHST-CELANESE CORPORATION, Petitioner, v. Jesse MENDEZ, Jr., Respondent.

No. 97-0860.

Supreme Court of Texas.

Feb. 13, 1998.

Reesa D. Hedrick, Houston, for Petitioner.

Ren Rodriguez, Corpus Christi, for Respondent.

Opinion

PER CURIAM.

What is an employer's duty to an independent contractor's employees when the employer requires the contractor to observe general workplace safety guidelines? Hoechst-Celanese Corp. hired Mundy Contract Maintenance, Inc., an independent contractor, to perform various maintenance services at the Celanese plants. While performing a Celanese work order, a Mundy employee sustained serious injuries when he fell from the shelf of a large metal tool box he was using as a ladder. The employee sued Celanese and claimed that the tool box was a premises defect and that Celanese was negligent in exercising control over the safety practices of Mundy employees. The trial court granted summary judgment for Celanese, but the court of appeals reversed. --- S.W.2d ----.

We hold that an employer's duty of reasonable care is commensurate with the control it retains over the independent contractor. We conclude, in this case, that Celanese did not breach this duty. Therefore, we reverse the judgment of the court of appeals and render judgment for Celanese.

Jesse Mendez, Jr., a Mundy employee, climbed over a large metal tool box to position himself on the floor between the tool box and a wall to help his co-workers remove conduit from a Celanese facility. After he completed the task, he stepped on the tool box shelves to climb back over the tool box. Mendez lost his footing on some tools in one of the shelves and fell to the floor on his left ankle and left shoulder.

Celanese contractually required Mundy to train its employees in Celanese's safety-related rules and regulations, observe federal safety practices and regulations, and take all necessary precautions to keep its work areas free of safety hazards. The contract further provided that Celanese had the right to inspect Mundy's facilities and operations at all times to ensure compliance with Celanese's safety-related requirements. One of Celanese's safety regulations prohibited employees from using an A-frame ladder without fully extending all four legs of the ladder to the floor.

Mendez claims that he used the tool box as a ladder because a fully-extended A-frame ladder would not fit where it was needed. Mendez offered expert deposition testimony that, under the circumstances, a ladder used in a lean-to fashion would have been most appropriate and safer than the toolbox.

Generally, an owner or occupier of land does not owe any duty to ensure that an independent contractor performs his work in a safe manner. Abalos v. Oil Dev. Co., 544 S.W.2d 627, 631 (Tex.1976). However, a duty may arise where the employer retains "some control over the manner in which the independent contractor's work is performed." Redinger v. Living, Inc., 689 S.W.2d 415, 418 (Tex.1985). In Redinger, this Court held that "Living, Inc. owed a duty to Redinger to exercise [its] supervisory control in a reasonable manner" because it "retained the power to direct the order in which the work was to be done and to forbid the work from being done in a dangerous manner." Id. We adopted section 414 of the Restatement (Second) of Torts, which provides:

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.

RESTATEMENT (SECOND) OF TORTS § 414 (1965), quoted in Redinger, 689 S.W.2d at 418.

The comments to section 414 of the Restatement indicate that the more detailed the employer's control over the independent contractor's work, the greater is the employer's responsibility for any injuries that result. It explains that if the employer retains control over the "operative detail of doing any part of the work," like the control a master retains over a servant, then any negligence of the contractor is imputed to the employer under the law of agency. RESTATEMENT (SECOND) OF TORTS § 414 cmt. a. The duty under section 414 is directed to employers who "retain a control less than that which is necessary to subject him to liability as a master." Id. For example, a duty may arise if the employer "retain[s] only the power to direct the order in which the work shall be done, or to forbid its being done in a manner likely to be dangerous to himself or others." Id. However, the comments further explain:

In order for the rule stated in this Section to apply, the employer must have retained at least some degree of control over the manner in which the work is done. It is not enough that he has merely a general right to order the work stopped or resumed, to inspect its progress or to receive reports, to make suggestions or recommendations which need not necessarily be followed, or to prescribe alterations and deviations. Such a general right is usually reserved to employers, but it does not mean that the contractor is controlled as to his methods of work, or as to operative detail. 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. § 414 cmt. c. In sum, the Restatement establishes a nexus between the employer's duty of care and its right of control.

Mendez argues that through its safety regulations, Celanese retained enough control over the manner and means by which Mundy employees performed their maintenance services to incur a duty to use reasonable care under section 414 of the Restatement. Mendez's argument implies, more specifically, that by promulgating safety procedures that prevented him from using an A-frame ladder as a lean-to ladder, Celanese owed him a duty to issue safety procedures or exercise sufficient supervisory control to prevent him from using the toolbox as a ladder.

Several courts of appeals reaching the same issue have held that an employer does not incur a duty of care by requiring...