Townsend v. Goodyear Tire & Rubber Co. , 249 F. App'x 327 ( 2007 )

IN THE UNITED STATES COURT OF APPEALS
United States Court of Appeals
FOR THE FIFTH CIRCUIT Fifth Circuit
F I L E D
September 20, 2007
No. 07-10503
Summary Calendar Charles R. Fulbruge III
Clerk
CHARLES TRENT TOWNSEND, Individually and as Representative of the
Estate of Trevor Townsend, Deceased; JACKIE TOWNSEND, Individually
and as Representative of the Estate of Trevor Townsend, Deceased
Plaintiffs-Appellants
v.
GOODYEAR TIRE & RUBBER CO, doing business as Gemini Automotive
Care, doing business as Goodyear Tire Center, doing business as Gemini
Automotive Care, In its own capacity
Defendant-Appellee
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:06-CV-486
Before REAVLEY, SMITH and BARKSDALE, Circuit Judges.
PER CURIAM:*
Charles Trent Townsend and Jackie Townsend, individually and as
representatives of the estate of their son Trevor Townsend, sued Goodyear Tire
& Rubber Co. (Goodyear) in a wrongful death action alleging that Goodyear was
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
No. 07-10503
negligent in exercising control over Trevor’s training and the safety of his
workplace. Trevor, who was killed in an accident while changing tires on a
motor home, was employed by Prine, Inc. (Prine), a licensed dealer of Goodyear
tires operating under a Dealer Agreement and a Service Mark License. The
district court held as a matter of law that Goodyear had no duty to Prine’s
employees under its contractual arrangement with Prine. The Townsends have
appealed, and we review the district court’s grant of summary judgment de novo.
See Wells v. Gulf Ins. Co., 484 F.3d 313, 315 (5th Cir. 2007).
In Texas, “[o]ne who retains the right of control or exercises actual control
over the work of an independent contractor also owes a duty of reasonable care
to the contractor’s employees.” Exxon Corp. v. Tidwell, 867 S.W.2d 19, 21 (Tex.
1993); see also Redinger v. Living, Inc., 689 S.W.2d 415, 418 (Tex. 1985)(adopting
the RESTATEMENT (SECOND) OF TORTS § 414 (1977)). For liability there must be
“a nexus between the employer’s duty of care and its right of control.”
Hoechst-Celanese Corp. v. Mendez, 967 S.W.2d 354, 356 (Tex. 1998). The more
detailed the right of control over the independent contractor’s work, the greater
the employer’s responsibility for any resulting injuries. Id.The Townsends argue that the Dealer Agreement and the Service Mark
License between Goodyear and Prine created in Goodyear a contractual duty to
Trevor because Goodyear retained control over the work to be performed. They
also contend that Goodyear’s contractual responsibility to supervise and retain
control over the details of Prine’s work makes Goodyear vicariously liable for
Prine’s negligence. They further argue that Goodyear’s advertising of
automotive services was indicative of its control because of statements
concerning the high standards of its retailers.
Whether an employer of an independent contractor has retained a
contractual assignment of control is a question of law for the court. Shell Oil Co.
v. Khan, 138 S.W.3d 288, 292 (Tex. 2004). A general contractor will be liable for
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No. 07-10503
an independent contractor’s acts if the contract gives it “the right to control the
means, methods, or details of the independent contractor’s work.” Dow Chem.
Co. v. Bright, 89 S.W.3d 602, 606 (Tex. 2002)(internal quotation and citation
omitted). “Further, the control must relate to the injury the negligence causes,
and the contract must grant the contractor at least the power to direct the order
in which work is to be done.” Id. (internal quotation and citation omitted).
The contractual provisions here provided that Goodyear had the right to
ensure its automotive standards were being met and that Prine’s employees
were adequately trained. The contract also gave Goodyear the right to inspect
the premises and to confirm equipment requirements and the availability and
competence of the automotive technicians. Prine, as the licensee, agreed to effect
any changes deemed necessary by Goodyear to bring the automotive service
work in line with industry standards. The Townsends argue that there is no
evidence Goodyear inspected Prine’s equipment or the capabilities of Prine’s
employees. The focus of the contract, however, is Goodyear’s general right of
control over Prine’s operations in relation to the quality and standards of service
of the automotive work rather than the specific right of control over the safety
and training of Prine’s employees. See Exxon Corp., 867 S.W.2d at 23.
The contract specifically provided that Prine was required to “maintain
adequate equipment, tools, and trained personnel” and that Prine would provide
its personnel with training in accord with Goodyear’s general requirements.
Goodyear did not promulgate specific safety requirements, nor was it required
to do so by any contractual provision. Although Goodyear required that Prine’s
employees be trained and offered training programs, Prine was not required to
use Goodyear’s services, and the contract did not specify which employees would
be trained. “[M]erely exercising or retaining a general right to recommend a safe
manner for the independent contractor’s employees to perform their work is not
enough” to establish liability. Koch Refining Co. v. Chapa, 11 S.W.3d 153, 155
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No. 07-10503
(Tex. 1999); see also Shell Oil Co., 138 S.W.3d at 293 (“a contracting party’s right
to order work stopped or fire an independent contractor for non-compliance does
not create liability for everything the independent contractor does (or fails to
do)”). The contract here did not provide for Goodyear to train Prine’s employees,
and it did not provide Goodyear with supervision of the specific methods and
means of Prine’s operations which caused Trevor Townsend’s unfortunate
injuries. See Dow Chem. Co., 89 S.W.3d at 606; Exxon Corp., 867 S.W.2d at 23.
The district court correctly determined that Goodyear did not have a duty to
Trevor as Prine’s employee.
Accordingly, the district court’s judgment is AFFIRMED.
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