Living, Inc. v. Redinger

• Decision Date: 19 January 1984
• Docket Number: No. 01-82-0926-CV,01-82-0926-CV
• Parties: LIVING, INC., Appellant, v. Louis REDINGER, Appellee. (1st Dist.)
• Court: Texas Court of Appeals

Page 846

667 S.W.2d 846

LIVING, INC., Appellant, v. Louis REDINGER, Appellee.

No. 01-82-0926-CV.

Court of Appeals of Texas,

Houston (1st Dist.).

Jan. 19, 1984.

Rehearing Denied March 15, 1984.

Elaine B. Davis, Baker & Botts, Houston, for appellant.

Stephen W. Hanks, Helm, Pletcher & Hogan, Linda Addison, Stephen K. West, Robert N. Kepple, Fulbright & Jaworski, Houston, for appellee.

Before DOYLE, WARREN and LEVY, JJ.

OPINION

DOYLE, Justice.

This is a personal injury case in which the appellee was awarded damages in the amount of $126,215.15, based upon a jury's finding that the appellant, the general contractor, was fifty percent negligent in creating a dangerous condition upon a job site. The injury complained of was directly caused by an independent contractor who was also found by the jury to be fifty percent negligent.

By this appeal, the appellant seeks reversal on two basic points. First, the appellant argues that a general contractor is not liable for the negligence of an independent contractor; and, second, that the misconduct of the jury resulted in harm to the appellant.

The claim arises from an accident which took place on October 7, 1977 on one of the appellant's construction project sites. The appellee was a pipe-layer for one of the appellant's subcontractors. As the appellee was wrapping a chain around a length of pipe, his left index finger was crushed by the box blade of a tractor driven by Bobby Baird, an independent contractor. As a result, the appellee's injured finger had to be amputated. At the trial below, the appellee claimed that the appellant was liable for the injuries to the appellee's finger because the appellant negligently created a dangerous condition on the site by ordering Baird to operate the tractor in close proximity to the place where the appellee was working.

The central issue raised by the appellant in points of error one through thirteen is whether there was sufficient evidence or any evidence of a breach of legal duty, owed by the appellant to the appellee. In considering no evidence points, the court must weigh only the evidence and inferences which support the findings, reviewing the evidence in its most favorable light, and rejecting inferences which are contrary to the findings. In Re King's Estate, 150 Tex. 662, 244 S.W.2d 660 (1960); Garza v. Alviar, 395 S.W.2d 821 (Tex.1965). In disposing of the insufficiency points, we will consider all of the evidence.

In the case below, the jury found in special issues three, four, five, six, and nine that the appellant's employee, job superintendent Harold David Yargo, negligently created an unreasonably dangerous condition by allowing defendant, Bobby Baird, to operate his tractor in the immediate area of the appellee. Consequently, the jury found that the appellant was responsible for fifty percent of the negligence that caused the appellee's injury.

The legal theory on which the appellee based his claim and special issues submitted, is discussed in Shell Oil Co. v. Waxler, 652 S.W.2d 454 (Tex.App.--Houston [1st Dist.] 1983, no writ). There an employee of an independent contractor was trampled and severely injured by his co-employees who knocked him down as they were leaving the Shell job site. In response to the special issues submitted, the jury found that Shell had negligently created a dangerous condition, by requiring the independent contractor's employees to exit the job site through two lanes only four feet in width. On appeal, the court acknowledged that as a general rule, a landowner has no duty to protect the employees from a dangerous condition, controlled solely by the independent contractor. However, the court also recognized that when a landowner interferes with or intermeddles in a dangerous activity conducted by an independent contractor, he may be held liable to the independent contractor's employees for injuries resulting therefrom.

The court found sufficient evidence from which the jury "could have reasonably inferred that Shell had assumed joint responsibility with its contractor for safety procedures." Shell Oil Co. v. Waxler, supra.

The courts discuss the general contractor, the landowner, and the owner/occupier of land in the same context when ruling upon their liability in situations involving legal duties owed to independent contractors. In Remuda Oil & Gas Co. v. Nobles, 613 S.W.2d 312 (Tex.Civ.App.--Fort Worth 1981, no writ), the oil company was found negligent, through its agent, in not staking down a flow line which struck and injured Nobles, an independent contractor. Because Remuda's representative, Tom Ellsworth, was present at the well site and told Nobles what to do, the court found that such interference or intermeddling was sufficient to support the jury's findings that Remuda was negligent. Id. at 316.

Appellant's basic contention is that it breached no duty which a general contractor owes to the employees of a subcontractor, i.e., that a general contractor must warn of unreasonably dangerous conditions existing on the premises, as opposed to transitory dangers arising from the activity of an independent contractor. As tried and briefed before this court, appellee's case did not complain of an existing dangerous condition at the job site. Appellee was seeking to hold appellant liable for the negligent manner in which it ordered and directed Baird to remove the dirt from the job site in such close proximity to where appellee was working that a dangerous situation was created which resulted in injury to appellee. To this end, evidence was adduced from which the jury could consider whether, and to what degree, appellant, Baird or appellee were negligent.

The appellant complains that the trial court allowed the jury to find it liable for the tortious conduct of Bobby Baird. The record does not support this contention. The trial court granted the appellant's motion for partial summary judgment, ruling that the appellant was not liable vicariously for Baird's negligence. This ruling in no way precluded appellee from asserting a cause of action for negligence directly against the appellant. A similar situation arose in Hamilton v. Fant, 422 S.W.2d 495 (Tex.Civ.App.--Austin 1967, no writ):

Appellees alleged as a basis for their suit a theory of primary liability on the part of appellants for their negligence. There was no allegation and no contention that appellants' liability was of a vicarious nature in connection with the negligence of Pierce. The theory of appellees' case embraces the contention that the landowner has a duty to give proper instructions even to an independent contractor for work done on the owner's property. 422 S.W.2d at 501.

In Hamilton, the court found that the landowner breached a legal duty which he owed to the plaintiff, an independent contractor, by giving him improper instructions.

Although this exact issue is one of first impression before Texas courts, as far as we can determine, other jurisdictions have long recognized the general contractor's liability in similar situations. See, Basciano v. George Fuller, 4 Misc.2d 322, 150 N.Y.S.2d 312 (S.Ct. Bronx County, N.Y.1956); Henry Pierson Sons v. Gohr, 126 Md. 385, 94 A. 1021 (1915); Garland v. Townsend, 217 Mass. 297, 104 N.E. 731 (1914). In Basciano, an employee of an independent contractor was injured when he was struck on the head by a piece of concrete dropped by a different subcontractor working above him. The court held that in those places used in common, and over which the general contractor has supervisory control, there is an element of liability imposed on the general contractor, if he disregards the probable consequences of the acts of others. Id.

Similarly, the 2nd Restatement of Torts § 414 p. 1120 (1930) states that a failure to properly supervise the method of operation, even though the immediate fault was that of the subcontractor's employee, may result in liability where there is evidence that it was the duty of the general contractor to observe such operation. See Pelowski v. J.R. Watkins Medical Co., 120 Minn. 108, 139 N.W. 289 (1912).

As a matter of reason, it makes no difference whether the negligence of an independent contractor, combined with the failure of a general contractor to provide for the overall safety of the premises, results in injuries to a fellow employer, or to another independent contractor. Therefore, we adopt the rule of other jurisdictions that the general contractor will be held liable if he creates a dangerous condition for an independent contractor by his directions to another independent contractor over whom he exercises control. Legally, the rationale set forth in Shell v. Waxler and Remuda, supra is sound, and we extend that reasoning to the facts presented by the case at bar.

Based on the entire record, we find there was sufficient evidence from which the jury could reasonably find that the job superintendent, who was working for the appellant, breached his legal duty to provide for the general safety of the premises, and that he had assumed joint responsibility with the independent contractor for safety procedures to be followed on the premises.

At the time of the appellee's injury he was laying pipe near the entrance of the project for an independent contractor of the appellant. The evidence indicated that the accident occurred in the entrance to the project, which was approximately thirty feet in width. Several piles of dirt blocked the entrance way, and decreased the amount of working space available for the workmen.

The appellant's job superintendent testified that he ordered the defendant, Bobby Baird, to use the tractor to move the dirt which was only five feet away from the pipes on which the appellee was working.

The president of the appellant testified that the duty of its superintendent was to co-ordinate the activities of the subcontractors, and to insure that the work of one contractor did not create danger for the other...