Lee Lewis Const., Inc. v. Harrison

• Citation: 70 S.W.3d 778
• Decision Date: 20 December 2001
• Docket Number: No. 99-0793.,99-0793.
• Parties: LEE LEWIS CONSTRUCTION, INC., Petitioner, v. Norma HARRISON, individually and as next friend of Sumer Dawn Harrison and Jimmie Thor Harrison, minors, and Sellie E. Harrison and May Harrison, Respondents.
• Court: Supreme Court of Texas

70 S.W.3d 778

LEE LEWIS CONSTRUCTION, INC., Petitioner, v. Norma HARRISON, individually and as next friend of Sumer Dawn Harrison and Jimmie Thor Harrison, minors, and Sellie E. Harrison and May Harrison, Respondents.

No. 99-0793.

Supreme Court of Texas.

Argued April 5, 2000.

Decided December 20, 2001.

Rehearing Overruled April 15, 2002.

Michelle E. Robberson, R. Brent Cooper, Cooper & Scully, Dallas, Robert L. Craig, Jr., Hugh N. Lyle, Eric Gordon Walraven, Craig Terrill & Hale, Lubbock, for petitioner.

Joe L. Lovell, Lovell Lovell & Newsom, Amarillo, Carl V. Crow, Law Office of Carl V. Crow, Richard N. Countiss, Law Office of Richard N. Countiss, Kevin H. Dubose, David M. Gunn, Hogan Dubose & Townsend, L.L.P., Houston, Jonette M. Walker, David Hazlewood, Hazlewood & Hazlewood, for Lubbock, for respondents.

Justice HANKINSON delivered the opinion of the Court, in which Chief Justice PHILLIPS, Justice ENOCH, Justice BAKER, Justice O'NEILL, and Justice RODRIGUEZ joined.

Following Jimmy Harrison's fatal fall from the tenth story of a construction site where Lee Lewis Construction, Inc., (LLC) was the general contractor, the Harrison family brought a wrongful death and survival action against LLC, alleging negligence and gross negligence. The trial court rendered judgment on the jury's verdict against LLC and awarded $7.9 million in compensatory damages plus prejudgment interest and $5 million in punitive damages. LLC appealed. The court of appeals affirmed, after suggesting remittitur of $450,000 for unproven pain and suffering damages. 64 S.W.3d 1. LLC now challenges the legal sufficiency of the jury's negligence and gross-negligence findings, and in the alternative, the propriety of the submitted jury question concerning whether LLC owed a duty to Jimmy Harrison. We conclude there is legally sufficient evidence that: (1) LLC retained the right to control its subcontractor's fall-protection measures and thus owed a legal duty to Harrison; (2) LLC's failure to ensure adequate fall-protection measures proximately caused Harrison's fall; and (3) LLC was grossly negligent. We also conclude that any charge error was harmless. Accordingly, we affirm the court of appeals' judgment.

Lubbock's Methodist Hospital hired LLC to remodel the eighth floor of, and add ninth and tenth floors to, its south hospital tower. As the general contractor, LLC then subcontracted the project's interior glass-glazing work to KK Glass. Jimmy Harrison was an employee of KK Glass. Harrison was installing thermal insulation and caulking between the window frames on the tower's tenth floor when he fell and suffered fatal injuries. Although no one witnessed Harrison's fall, and although there is disputed evidence about what type of safety device he was using, the evidence is undisputed that Harrison was not using an independent lifeline that would have stopped his fall.

Harrison's wife, two children, and parents sued LLC, alleging negligence and gross negligence, and also sued KK Glass, alleging gross negligence. The Harrisons settled with KK Glass but tried their case against LLC to a jury. The jury rendered a verdict for the Harrisons, finding that LLC had retained the right to control safety at the construction site, that LLC was both negligent and grossly negligent, that LLC was ninety percent responsible for the accident and Harrison was ten percent responsible, and awarded the Harrisons compensatory and punitive damages. LLC appealed. After the Harrisons agreed to remit $450,000 of the damages awarded to the estate for Jimmy Harrison's pain and suffering, the court of appeals affirmed. 64 S.W.3d at 1. We granted LLC's petition for review to determine whether there is legally sufficient evidence of LLC's negligence and gross negligence, and in the alternative, if the first jury question was erroneous.

We begin with LLC's no-evidence challenge to the jury's negligence finding. To sustain a negligence action, the plaintiff must produce evidence of a legal duty owed by the defendant to the plaintiff, a breach of that duty, and damages proximately caused by that breach. Praesel v. Johnson, 967 S.W.2d 391, 394 (Tex.1998). LLC challenges the duty and proximate-cause elements of the jury's verdict, but not the breach or damages elements. In conducting a legal-sufficiency review, we review the evidence in a light that tends to support the finding of the disputed facts and disregard all evidence and inferences to the contrary. Bradford v. Vento, 48 S.W.3d 749, 754 (Tex.2001); Lozano v. Lozano, 52 S.W.3d 141, 166 (Tex.2001) (Baker, J., concurring in part and dissenting in part). If more than a scintilla of evidence exists, it is legally sufficient. Id. More than a scintilla of evidence exists if the evidence furnishes some reasonable basis for differing conclusions by reasonable minds about a vital fact's existence. Id.

Our review of the evidence concerning negligence begins with duty. The parties agree that the duty in this case is governed by our well-established law concerning a general contractor's duties to a subcontractor's employees. Ordinarily, a general contractor does not owe a duty to ensure that an independent contractor performs its work in a safe manner. Elliott-Williams Co. v. Diaz, 9 S.W.3d 801, 803 (Tex.1999); Hoechst-Celanese Corp. v. Mendez, 967 S.W.2d 354, 356 (Tex.1998). A duty does arise, however, if the general contractor retains some control over the manner in which the independent contractor performs its work. Elliott-Williams, 9 S.W.3d at 803. The general contractor's duty of care is commensurate with the control it retains over the independent contractor's work. Id.; Mendez, 967 S.W.2d at 355. Section 414 of the Restatement (Second) of Torts, which we adopted in Redinger v. Living, Inc., 689 S.W.2d 415, 418 (Tex.1985), further explains this principle:

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). Under our decision in Redinger, a general contractor may owe a duty of reasonable care to a subcontractor's employee, and consequently may be liable for injury to that employee, if the general contractor retains control over part of the work to be performed: "[W]hen 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." 689 S.W.2d at 418.

A general contractor can retain the right to control an aspect of an independent contractor's work or project so as to give rise to a duty of care to that independent contractor's employees in two ways: by contract or by actual exercise of control. See, e.g., Koch Ref. Co. v. Chapa, 11 S.W.3d 153, 155 (Tex.1999); Coastal Marine Serv. of Tex., Inc. v. Lawrence, 988 S.W.2d 223, 226 (Tex.1999). We have frequently used the phrases "right of control" or "retained control" interchangeably. See Chapa, 11 S.W.3d at 155; Lawrence, 988 S.W.2d at 226. The distinction remains important, however, because determining what a contract says is generally a question of law for the court, while determining whether someone exercised actual control is a generally a question of fact for the jury. LLC challenges only the legal sufficiency of the evidence to support the jury's finding that it retained the right to control safety on the jobsite and the court of appeals' interpretation of the contracts at issue; it does not challenge the application of section 414 or argue for a change in Texas law. We therefore review the evidence in support of the jury's finding in accordance with that law.

Here, the trial court asked the jury, "Did LLC retain the right to control safety" on the jobsite. Thus to evaluate LLC's no-evidence challenge we must determine if the Harrisons presented more than a scintilla of evidence that LLC exercised actual control over safety, in particular, the fall-protection systems used by KK Glass employees. LLC argues there is no evidence that it exercised any actual control over KK Glass employees' use of fall-protection equipment during the exterior glass-installation process. The Harrisons respond that LLC observed and expressly approved of KK Glass employees using faulty fall-protection equipment, including using a bosun's chair without an independent lifeline.

The evidence at trial supports the Harrisons' contention. At trial, Lee Lewis, LLC's owner and president, testified that he assigned C.L. Lewis, LLC's job superintendent, "the responsibility to routinely inspect the ninth and tenth floor addition to the south tower to see to it that the subcontractors and their employees properly utilized fall protection equipment." Testimony indicated that C.L. Lewis personally witnessed and approved of the specific fall-protections systems KK Glass used. There was testimony that C.L. Lewis "definitely did approve" the lanyard system. There was also testimony that C.L. Lewis knew of and did not object to KK Glass employees using a bosun's chair without an independent lifeline. Although our law makes clear that a general contractor is not an ensurer of safety on the jobsite, see Elliott-Williams, 9 S.W.3d at 803, we agree with the Harrisons that the testimony highlighted above constitutes more than a scintilla of evidence that LLC retained the right to control fall-protection systems on the jobsite. LLC therefore had a duty of care toward Harrison commensurate with that right. Because we conclude that LLC retained the right to control fall-protection systems on the jobsite, we need not address its argument that it did not retain the right to control by contract.

We turn next to LLC's no-evidence challenge to proximate cause. LLC contends that even if it did owe a legal duty...