Tirres v. El Paso Sand Products, Inc.

• Decision Date: 24 April 1991
• Docket Number: No. 08-90-00057-CV,08-90-00057-CV
• Citation: 808 S.W.2d 672
• Parties: Richard and Marilu TIRRES, Individually and as Next Friends, Heirs, and as Representatives of the Estate of Richard Thomas Tirres, A Minor, Deceased, Appellants, v. EL PASO SAND PRODUCTS, INC., Appellee.
• Court: Texas Court of Appeals

Page 672

808 S.W.2d 672

Richard and Marilu TIRRES, Individually and as Next Friends, Heirs, and as Representatives of the Estate of Richard Thomas Tirres, A Minor, Deceased, Appellants, v. EL PASO SAND PRODUCTS, INC., Appellee.

No. 08-90-00057-CV.

Court of Appeals of Texas,

El Paso.

April 24, 1991.

Rehearing Overruled May 22, 1991.

J. Roberto Oaxaca, El Paso, for appellants.

Stephen B. Tatem, Blake W. Barrow, Scott, Hulse, Marshall, Feuille, Finger & Thurmond, P.C., El Paso, for appellee.

Before OSBORN, C.J., and FULLER and KOEHLER, JJ.

OPINION

KOEHLER, Justice.

In a wrongful death suit brought by the parents of a deceased minor child against an independent contractor and his employer, the trial court granted the employer's (Appellee herein) motion for summary judgment and denied a similar motion by the plaintiffs, Appellants herein. This appeal was perfected following the severance of the causes of action against the other defendants. We affirm.

The Appellants, Richard and Marilu Tirres ("Tirres") bring four points of error, two of which complain of the granting of the motion for summary judgment in favor of Appellee, El Paso Sand Products, Inc. ("El Paso Sand"), and two of which complain of the denial of their motion. Specifically, Tirres assert in their first two points that their pleadings and summary judgment proof state a cause of action based first, on Restatement (Second) of Torts, § 414 (1965 and Appendix 1986), and second, upon the "franchise rule" or the "statutory employee" rule. Under their third and fourth points, the Tirres claim that they were entitled to summary judgment on their motion because of the failure of El Paso Sand to exercise its control over Roberto Llamas, the independent contractor ("Llamas") in a reasonable manner, established as a matter of law, and because the negligence of Llamas is imputed to El Paso Sand as a matter of law. (The underlying issues are whether the kind and amount of control that El Paso Sand either actually asserted or had the right to assert over Llamas subjected El Paso Sand to liability for Llamas' alleged negligence and whether El Paso Sand assumed a non-delegable duty when it obtained and furnished to Llamas an oversize load permit from the Texas Highway Department.)

In reviewing a summary judgment appeal, the general rule established by the Supreme Court is that this Court must determine whether the successful movant in the trial court carried its burden of showing that there is no genuine issue of a material fact issue and that it is entitled to judgment as a matter of law. Nixon v. Mr. Property Management Company, Inc., 690 S.W.2d 546, 548 (Tex.1985). In deciding whether or not there is a disputed fact issue precluding summary judgment, evidence favorable to the non-movant is to be taken as true, and in that connection, every reasonable inference must be indulged in favor of the non-movant and any doubts resolved in his favor. Nixon, 690 S.W.2d at 548-49. If the defendant is the movant and he submits summary judgment evidence disproving at least one element of the plaintiff's case, then summary judgment should be granted. Bradley v. Quality Service Tank Lines, 659 S.W.2d 33, 34 (Tex.1983); Rayos v. Chrysler Credit Corporation, 683 S.W.2d 546, 547 (Tex.App.--El Paso 1985, no writ).

THE FACTS

El Paso Sand had employed Llamas as an independent contractor to move its rock crushing machinery and equipment from Tahoka, Texas to El Paso. Llamas, a former ten-year employee of El Paso Sand, known to be a safe and competent driver during his employment, had his own tractor but was required to use a trailer which had been leased by El Paso Sand for the purpose. On October 8, 1988, the day before the accident, he completed the transportation of a load to El Paso which was off-loaded on the following day. El Paso Sand had obtained an oversize load permit in its name for the October 8 load from the Texas Highway Department. The permit specified that though it would not expire until 6 p.m. on October 11, 1988, the trip had to start and be completed on October 8, a requirement with which Llamas had complied. Around 8 p.m. on October 9, Llamas started from El Paso on his way back to Tahoka to pick up another load with his tractor and El Paso Sand's empty trailer when he was involved in a collision with an automobile which broadsided the trailer and in which Tirres' son, Richard Thomas Tirres, was a passenger. Young Tirres died as a result of the injuries he sustained. Tirres subsequently filed this suit against Llamas, El Paso Sand and the driver of the automobile in which young Tirres rode.

CAUSE OF ACTION UNDER RESTATEMENT OF LAW (SECOND)

The Tirres contend first in their allegations that El Paso Sand, by requiring Llamas to use the trailer leased by it to haul its equipment from Tahoka to El Paso exercised sufficient control over Llamas to state a cause of action under Restatement (Second) of Torts, § 414 (1965 and Appendix 1986). Section 414 provides as follows:

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. ¹

The general rule was and is that an owner or employer does not have a duty to see that an independent contractor performs his work in a safe manner. Abalos v. Oil Development Company of Texas, 544 S.W.2d 627 (Tex.1976). As an exception to that general rule, the law as set forth in Section 414 has been adopted by our Supreme Court as the law of this state. Redinger v. Living, Inc., 689 S.W.2d 415 (Tex.1985). In Redinger, a premises case, the Court found that as a result of evidence that the general contractor retained the power to control the order of work done on the job site and to forbid the work being done in a dangerous manner, the negligent exercise of that control over a dirt subcontractor subjected the general contractor to liability for injuries to an employee of a plumbing subcontractor under Section 414. The Court noted that, as stated in comments a and c, Section 414 applies when the employer retains some control over the manner in which the subcontractor performs his work, but does not retain the degree of control which would subject him to liability as a master. The right to control "must be more than a general right to order the work to start or stop, to inspect progress or receive reports." 689 S.W.2d at 418.

Redinger has been followed by a number of Texas cases which cite and rely to some extent on Section 414 for their dispositions: Pollard v. Missouri Pacific Railroad Co., 759 S.W.2d 670 (Tex.1988); Exxon Corporation v. Quinn, 726 S.W.2d 17 (Tex.1987); Tovar v. Amarillo Oil Co., 692 S.W.2d 469 (Tex.1985); Parker v. Enserch Corporation, 776 S.W.2d 638 (Tex.App.--Dallas 1989), aff'd in part and rev'd in part 794 S.W.2d 2 (Tex.1990); Gulf States Utilities Company v. Dryden, 735 S.W.2d 263 (Tex.App.--Beaumont 1987, no writ); Amara v. Lain, 725 S.W.2d 734, 737 (Tex.App.--Fort Worth 1986, no writ); Exxon Corporation v. Roberts, 724 S.W.2d 863 (Tex.App.--Texarkana 1986, writ ref'd n.r.e.); Daniel Construction Company v. Ethyl Corporation, 714 S.W.2d 51 (Tex.App.--Houston [14th Dist.] 1986), aff'd, 725 S.W.2d 705 (Tex.1987); Phelan v. Lopez, 701 S.W.2d 327 (Tex.App.--Beaumont 1985, no writ); Bryant v. Gulf Oil Corporation, 694 S.W.2d 443 (Tex.App.--Amarillo 1985, writ ref'd n.r.e.).

Although the application of Section 414 is not limited by Redinger to premises cases but applies to any set of facts that meets the requirements of that section; Parker, 776 S.W.2d at 643; all of the Texas cases cited above are cases where the employer, general contractor or owner controlled or had at least the right to control some aspects of the independent contractor's or subcontractor's work on the premises. This is not just a strange coincidence. Having the right to control in the employer/independent contractor context, implies having the physical ability to control the work or activity, an ingredient missing where the independent contractor is a trucker carrying material or equipment to or from a job site at the time a third party is injured by his negligence. Requiring the trucker to use an employer-leased trailer and to obtain certain liability insurance are conditions of employment, not evidence of rights to control. Specifying the order in which equipment or machinery was to be moved and the hours it could be picked up and delivered could be evidence of control if a third party was injured while the truck was being loaded or unloaded, but not evidence of control over the manner in which the trucker drove his truck, loaded or unloaded, on the highway. Obtaining an oversize permit, when required, which specified the route and time to travel was not evidence of control over the independent contractor but merely evidence that the employer was complying with the requirements of Tex.Rev.Civ.Stat.Ann. art. 6701a (Vernon Supp.1991).

Even when applicable to a part of the subcontractor's performance, Section 414 does not purport to impose general vicarious liability in the employer for the subcontractor's entire performance unless the supervisory control so extends. Comment "a" of Section 414 speaks in terms of "supervisory control;" under comment "b," reference is made that the section is usually applicable where the general contractor himself or through a foreman superintends the entire job; while comment "c" makes mention that the employer must retain such a right of supervision that the independent contractor is not completely free to do his work in his own way. In light of the commentaries and the case law, it is clear that Section 414 imposes a duty on the employer, who has retained the right to control the independent contractor in some aspect of his work, to exercise reasonable care...