GIBSON~GRUENERT
L.L.P.
ATTORNEYS
& COUNSELORS AT LAW
TEXAS
- LAFAYETTE
CONSTRUCTION LAW UPDATE
This is one of our
periodic newsletters on matters of concern to our friends and clients
in the construction trades and the design professions. There are
several recent cases of note that discuss what level of control over
the activities of a sub or independent contractor is necessary to make
a general contractor liable for injuries suffered by employees of the
sub. But first, an interesting discussion of a general contractor’s
gross negligence from the Court of Appeals in Tyler.
Contractor’s Gross Negligence/Site Safety
Brown & Root, Inc. vs. Shelton,
___ S.W. 3d __, 2003 WL 21771917
(Tex. App.-Tyler, July 31, 2003) is an asbestos case in which the
widow of a long time worker at a Kelly Springfield plant alleged
claims against Brown & Root on the theory that her late husband was
exposed to asbestos while Brown & Root was performing construction
work at the plant. At trial, the jury found in favor of the plaintiff
and awarded substantial punitive damages against Brown & Root based
upon a finding of gross negligence.
On appeal, Brown & Root
challenged the legal sufficiency of the evidence of its alleged gross
negligence. The appellate court held that there was legally
sufficient evidence to support the finding of gross negligence, in
part because Brown & Root had been active on construction industry
safety councils where the risks associated with asbestos had been
discussed well prior to the plaintiff’s exposure in 1967. What caught
our attention about the decision, however, was that the court found
most compelling the evidence that Brown & Root failed to employ
certain safety measures at the plaintiff’s plant that it was employing
on other jobs:
Additionally, extensive evidence was
introduced detailing the stringent safety measures mandated by Exxon
on all jobs undertaken for them by Brown & Root. These measure
outline both the risks involved in the use of materials such as
asbestos, and also instruct as to mandatory precautions to be
implemented to reduce such risks. No evidence was offered, however,
to show that Brown & Root employed any similar measures at the
Kelly-Springfield site...Though Brown & Root asserts that the Exxon
policies applied only to Exxon contracted jobs, in so doing it
overlooks the fact that the crucial inquiry is what is known by the
defendant, and not from whom the defendant obtained that knowledge.
2003 WL 21771917 at 8 (emphasis supplied).
We know that the safety
practices at issue in the case took place in the 1960's, and that most
contractors have substantially changed their safety programs since
those days. Certainly Shelton
sounds a warning to any who have
not: adopt safety policies that are consistent from job to job and
equal to the most stringent safety requirements imposed by any
customer. Failure to do so creates an unacceptable liability risk.
The Level of Control Sufficient to Create
Liability
Several recent cases cite the
Texas Supreme Court’s decision in Lee Lewis Constr., Inc. vs.
Harrison, 70 S.W. 3d 778 (Tx. 2002) (see our newsletter of
February, 2002) as the courts wrestle with issues of general
contractor liability. Harrison
really just restated the well
established rule that a general contractor can be liable for injuries
suffered by the employee of a sub if the general contractor asserts
control over the manner in which the sub does its work.
In Tyson Foods, Inc. vs.
Guzman, __S.W. 3d __, 2003 WL 21773844 (Tx. App.-Tyler, July 31,
2003) we once again look to the Tyler court, which was confronted by
the negligence claims of Gustavo Guzman, an employee of an independent
contractor that provided services to Tyson at a chicken farm. Mr.
Guzman, worthy fellow, had been employed as a chicken catcher and had
been run over by a forklift piloted by a Tyson employee. (And, yes,
we believe that whenever you are feeling sorry about your lot in life
you can make yourself feel better almost instantly by reflecting on
what it must be like to catch chickens in a dark shed all day.) The
case is interesting because the question of control was determined
almost exclusively on evidence relating to the safety precautions that
Tyson forced its subcontractors to adopt after Mr. Guzman’s
accident. The trial court had permitted the admission of evidence of
subsequent remedial measures (generally prohibited by Rule 407,
Texas Rules of Evidence)
for the limited purpose of proving the
Tyson had sufficient control over the operations of its subcontractors
to force them to adopt the safety measures. Except, in this case,
per Harrison,
control equals liability. Hence Rule 407
is circumvented in its entirety. The Tyler court affirmed. We are
not ashamed to state the obvious, that the case amply illustrates that
safety precautions are generally best implemented before
someone gets hurt. We also note that the case once again highlights
that the safety meeting at the start of every job ought to include a
statement by every sub about the safety procedures they will be
adopting during the work. If that step is omitted, and somebody gets
hurt at the site, the GC will be caught in an impossible position: do
nothing and run the risk of more injuries, or impose standards on the
subs and prove that you have a level of control that makes you liable
to the injured worker. Perhaps the public policy implications of
Guzman are worth some addition consideration, because we think a
lot of GC”s thrown into this dilemma are going to err on the side of
not imposing standards on the subs.
We also note briefly the
decision of the Houston Court of Appeals (1st Dist.) in
Gonzalez vs. Pin Oak Interests, L.L.C., 2003 WL 1891660 (Tx.
App.-Houston [1st Dist.] April 17, 2003). The plaintiff
was severely injured as a result of a fall from an unsecured third
floor window opening. The general contractor got out of the case on
summary judgment at trial, and the Houston court affirmed. The
appellate court first looked to the contract between the GC and the
sub, and found that the contract did not per se give the GC direct
control over the sub’s manner of doing its work. The court then
looked to whether the GC had exercised actual control over the sub’s
work. The GC’s superintendent testified that, had he seen the
unsecured window opening, he certainly would have order the sub to
secure it. The court picked up on the “had he seen” part of that
testimony, and held that the GC did not exercise control because the
superintendent had not seen the opening and so had not ordered it to
be secured. So, the superintendent’s testimony, which seems to us to
be an admission by the GC that it had the control to force the sub to
adopt specific safety precautions, is taken by the court as proof that
there was no control because the statement demonstrates that no
control was exercised. 2003 WL 1891660 at 4. We get it, we
guess. Control is action, not power.
Copyright 2002
Gibson~Gruenert L.L.P.
Page updated
03/10/2008
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