Redinger v. Living, Inc.

• Decision Date: 08 May 1985
• Docket Number: No. C-2962,C-2962
• Citation: Redinger v. Living, Inc., 689 S.W.2d 415 (Tex. 1985)
• Parties: Louis REDINGER, Petitioner, v. LIVING, INC., Respondent.
• Court: Texas Supreme Court

Page 415

689 S.W.2d 415

Louis REDINGER, Petitioner, v.LIVING, INC., Respondent.

No. C-2962.

Supreme Court of Texas.

May 8, 1985.

Helm, Pletcher and Hogan, Stephen W. Hanks, Houston, for petitioner.

Baker and Botts, Elaine B. Bristow, Houston, for respondent.

CAMPBELL, Justice.

Louis Redinger sued Living, Inc., the general contractor, and Bobby Baird, an independent contractor, for damages resulting from an injury to Redinger's finger.The trial court rendered judgment for Redinger based on jury findings that Baird was fifty percent negligent and that Living, Inc. was fifty percent negligent.The court of appeals reversed the trial court judgment because of jury misconduct, and remanded the cause for a new trial.667 S.W.2d 846.We reverse the judgment of the court of appeals and affirm the judgment of the trial court.

Living, Inc. was the general contractor on the building construction site.Bobby Baird was the dirt hauling subcontractor, and Redinger was an employee of a plumbing subcontractor.David Yargo, the superintendent for Living, Inc., was preparing the site for a subcontractor to pour concrete.When the concrete trucks arrived, piles of dirt placed by Baird blocked the route to the work area.Yargo ordered Baird to move the dirt.As he was moving the dirt, the box blade of his tractor crushed Redinger's left index finger.

The jury refused to find that Redinger was negligent for failing to keep a lookout.However, the jury found that Living, Inc. was fifty percent negligent in allowing Bobby Baird to operate his tractor while Louis Redinger and others were working in the area and also for failing to warn.

Living, Inc. and Redinger bring applications for writ of error to this court.Living, Inc. contends the court of appeals erred in failing to render judgment that Redinger take nothing against it because Living, Inc., a general contractor, does not have a duty to Redinger, an employee of a subcontractor.Redinger contends the court of appeals erred in remanding the cause for a new trial because of jury misconduct.

We will first consider whether a general contractor has a duty to a subcontractor's employee, and, if so, whether there is evidence in this case that the duty was breached.An owner or occupier of land has a duty to use reasonable care to keep the premises under his control in a safe condition.Smith v. Henger, 148 Tex. 456, 226 S.W.2d 425(1950).A general contractor on a construction site, who is in control of the premises, is charged with the same duty as an owner or occupier.Id.226 S.W.2d, at 431.This duty to keep the premises in a safe condition may subject the general contractor to direct liability for negligence in two situations: (1) those arising from a premises defect, (2) those arising from an activity or instrumentality.J.A. Robinson Sons, Inc. v. Ellis, 412 S.W.2d 728(Tex.Civ.App.--Amarillo1967, writ ref'd n.r.e.);Moore v. Texas Company, 299 S.W.2d 401(Tex.Civ.App.--El Paso1956, writ ref'd n.r.e.).This is not a premises defect case.Rather, this case involves an injury caused by an activity conducted on the premises.

The general rule is that an owner or occupier does not have a duty to see that an independent contractor performs work in a safe manner.Abalos v. Oil Development Co., 544 S.W.2d 627(Tex.1976).

...[W]here the activity is conducted by, and is under the control of, an independent contractor, and where the danger arises out of the activity staff, the responsibility or duty is that of the independent contractor, and not that of the owner of the premises.Id. at 631(citingShell Chemical Company v. Lamb, 493 S.W.2d 742(Tex.1973)).

However, when 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.We adopt the rule enunciated in the Restatement (Second) of Torts:

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(1977).

Several other states follow the Restatement of Torts.See, e.g.Everette v. Alyeska Pipeline Service Co., 614 P.2d 1341(Alaska1980);Conover v. Northern States Power Co., 313 N.W.2d 397(Minn.1981);Stepanek v. Kober Construction, 625 P.2d 51(Mont.1981);New Mexico Electric Service Co. v. Montanez, 89 N.M. 278, 551 P.2d 634(1976);Skalos v. Higgins, 303 Pa.Super. 107, 449 A.2d 601(1982);Kelley v. Howard S. Wright Construction Co., 90 Wash.2d 323, 582 P.2d 500(1978).

This rule applies when the employer retains some control over the manner in which the independent contractor's work is performed, but does not retain the degree of control which would subject him to liability as a master.Restatement (Second) of Torts§ 414, comment a (1965).The employer's role must be more than a general right to order the work to start or stop, to inspect progress or receive reports.Id., comment c (1965).

He may retain 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.Such a supervisory control may not subject him to liability under the principles of Agency, but he may be liable under the rule stated in this Section unless he exercises his supervisory control with reasonable care so as to prevent the work which he has ordered to be done from causing injury to others.

Id., comment a (1965).

There is evidence that Living, Inc. retained the power to direct the order in which the work was to be done and to forbid the work being done in a dangerous manner.When the concrete trucks arrived at the site, Yargo ordered Baird to immediately move the dirt to another location.Yargo exercised supervisory control by coordinating the work performed by two subcontractors.Living, Inc. owed a duty to Redinger to exercise this supervisory control in a reasonable manner.

There is evidence that Living, Inc. negligently exercised this control.The dirt was located within one to five feet of an area where Redinger and employees of other subcontractors were working.While Baird was moving the dirt, his back-hoe operated within one to five feet of Redinger and the other workers.There is evidence to support the jury finding that Living, Inc. was negligent in allowing Bobby Baird to operate his tractor while Redinger was working in the area and in failing to warn Redinger.We agree with the court of appeals that Living, Inc. owed a duty to Redinger to exercise reasonable care.

Redinger contends that the court of appeals erred in remanding this cause for a new trial because of jury misconduct.Five jurors testified at a hearing on motion for new trial that during...