Jose Hernandez v. Sun Crane and Hoist, Inc.: JLB Partnrs, L.P. JLB Builders, L.L.C., Auger Drilling, Inc., and D'Ambra Consruction Corporation ( 2018 )

AFFIRMED and Opinion Filed November 1, 2018
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-17-00719-CV
JOSE HERNANDEZ, Appellant
V.
SUN CRANE AND HOIST, INC.: JLB PARTNERS, L.P.; JLB BUILDERS, L.L.C.,
AUGER DRILLING, INC., AND D'AMBRA CONSRUCTION CORPORATION,
Appellees
On Appeal from the County Court at Law No. 4
Dallas County, Texas
Trial Court Cause No. CC-15-00715-D
MEMORANDUM OPINION
Before Justices Bridges, Evans, and Whitehill
Opinion by Justice Bridges
Jose Hernandez appeals the trial court’s order granting the traditional and no-evidence
summary judgment motion of Sun Crane and Hoist, Inc., JLB Partners L.P., and JLB Builders,
L.L.C., and ordering that Hernandez take nothing on his claims. In two issues, Hernandez argues
the trial court erred in granting JLB’s traditional and no-evidence motion for summary judgment.
We affirm the trial court’s judgment.
In October 2013, JLB entered into a Subcontract Agreement with Capform, Inc. regarding
a construction project in Dallas. On December 5, 2013, Alejandro Molina was Capform’s foreman
and Hernandez was a member of the work crew under Molina’s supervision. Hernandez was
injured when he fell from a “rebar cage” while attempting to place on the cage a concrete form
suspended from a crane. According to Molina’s affidavit, the crane operator “made the form strike
the rebar cage and cause it to start falling over.” Hernandez was injured in the fall, and he later
sued JLB and asserted negligence claims.
In the Subcontract, JLB was listed as “Contractor,” and Capform was listed as
“Subcontractor.” Among other things, the Subcontract provided the following:
[Capform], at its expense, shall furnish all of the supervision, labor, material, tools,
equipment, insurance, services, shop drawings, samples, protection, hoisting,
scaffolding, supplies, warrantees and all permits, licenses and fees (as applicable)
necessary to perform, construct, and complete, in the manner set out in the Contract
Documents (defined below), the work described in EXHIBIT A of this Agreement
(the “Work”).
The Subcontract further provided that Capform was responsible for furnishing all
equipment required to perform the Work including, but not limited to, ramps, ladders, scaffolds,
hoisting and other equipment. An entire subsection of the Subcontract related to “Safety” and
provided, among other things, the following:
(1) Compliance. [Capform] shall fully comply with all laws, orders, citations,
rules, regulations, standards and statutes with respect to occupational health and
safety, accident prevention, and safety equipment and practices, including without
limitation, OSHA standards and any accident prevention and safety program
sponsored by Owner or [JLB]. Without limiting the foregoing, simultaneous with
the execution hereof, Subcontractor shall complete, execute and deliver to [JLB] an
Accident Prevention Plan in the form set forth on EXHIBIT J attached hereto, and
shall at all times comply with the requirements of EXHIBIT J and EXHIBIT K
attached hereto.
(2) Precautions and Programs.
(a) [Capform] shall be responsible for initiating, maintaining and supervising
all safety precautions and programs in its Work and shall conduct inspections to
determine that safe working conditions and equipment exist.
(b) [Capform] accepts sole responsibility for providing a safe place to work for
its employees and for the employees of its sub-subcontractors and suppliers, and
for the adequacy and required use of all safety equipment.
(c) Prior to the commencement of the Work, [Capform] shall submit its site
specific safety program to [JLB]. [Capform’s] safety program must specifically
address, among other safety issues, scaffolding, fall hazards, trenching and shoring,
as may be applicable.
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Regarding “Staffing,” the subcontract provided that Capcom was “solely responsible for
the acts and omissions of its employees, agents and suppliers and for the acts and omissions of its
sub-subcontractors and their employees, agents and suppliers.” The Subcontract further required
Capform to keep a representative on the job site at all times when the work was in progress and
provided that JLB “shall not issue or give any instructions, order or directions directly to
employees or workers of [Capform] other than to the persons designated as the authorized
representatives of [Capform].” In another part of the Subcontract providing a “Description of
Work,” Capform was required to provide a full-time foreman onsite anytime workers were present.
If Capform failed to provide a foreman, Capform’s crew would be “ordered to leave the job.” If
crews were ordered to leave, it was Capform’s responsibility to make up lost time at its own
expense, and Capform was still responsible for “meeting the contract durations” and paying a $100
fine each time a foreman was not onsite.
JLB filed a traditional and no-evidence motion for summary judgment in which it argued
JLB did not owe a duty to Hernandez because he was an employee of an independent contractor
and JLB did not have control over Hernandez. In particular, JLB argued it did not have a
contractual right to control the means, methods, or details of Hernandez’ work and did not exercise
actual control over Hernandez’ work. In support of its motion, JLB provided excerpts of the
deposition of Juan Gutierrez, Capform’s superintendent, who testified “no one from JLB has to
tell us how to do the job,” and Gutierrez is “the one who’s in charge of what work that Capform
employees are doing on a daily basis.” Gutierrez testified no one from JLB told him “how to
install the braces” on the rebar tower that fell. JLB also attached to its motion excerpts from
Hernandez’ deposition in which Hernandez testified JLB did not give him any instructions on how
to set the form on the platform on the day of the accident. Hernandez testified Gutierrez was
“supervisor,” and Molina was the foreman of the crew, they both worked for Capform. Molina
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told Hernandez he would be setting the platform on the day of the accident. Hernandez testified
JLB did not tell him to set the platform or to get up on the tower that fell. Hernandez testified he
did not see anyone from JLB “on this job on the day of the accident before it occurred.” Hernandez
replied, “I don’t know” when asked whether anyone from JLB knew bracing for the rebar cage
had been attached with nails instead of rebar, whether he had any reason to believe JLB caused the
accident, or whether Capform installed the braces on the cage.
Hernandez filed a response to JLB’s motion for summary judgment in which he argued
JLB was the “controlling employer” for work on the site, JLB required Capform to submit a
separate safety program for JLB’s approval, JLB had contractual authority to control the details of
Capform’s work, including accident prevention and safety, and exercised thoroughgoing control
of the details of the work, including safety programs. Thus, Hernandez argued, there was ample
evidence JLB breached its duty to assure safe working conditions for Hernandez, and its failure
led to Hernandez’ injuries. The trial court granted JLB’s traditional and no-evidence motion for
summary judgment, and this appeal followed.
In two issues, Hernandez argues the trial court erred in granting traditional and no-evidence
summary judgment. Specifically, Hernandez argues JLB owed a duty to Hernandez to keep him
safe and breached that duty by permitting and instructing Capform to work under dangerous
conditions. Hernandez argues the agreement between JLB and Capform is “replete with instances
in which JLB Builders specifically directs and controls Capform’s work.” Further, Hernandez
argues JLB actually controlled Capform’s work by supervising its work on-site, conducting daily
inspections, and requiring Capform to submit safety plans.
We review the trial court’s decision to grant summary judgment de novo. Tex. Mun. Power
Agency v. Pub. Util. Comm’n of Tex., 253 S.W.3d 184, 192 (Tex. 2007). A party seeking a no-
evidence summary judgment must assert that no evidence exists as to one or more of the essential
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elements of the nonmovant’s claim on which the nonmovant would have the burden of proof at
trial. See TEX. R. CIV. P. 166a(i); Henning v. OneWest Bank FSB, 405 S.W.3d 950, 957 (Tex.
App.—Dallas 2013, no pet.). “The motion must state the elements as to which there is no
evidence.” TEX. R. CIV. P. 166a(i); Henning, 405 S.W.3d at 957. Once the movant specifies the
elements on which there is no evidence, the burden shifts to the nonmovant to raise a fact issue on
the challenged elements. See TEX. R. CIV. P. 166a(i); Henning, 405 S.W.3d at 957; see also S.W.
Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex. 2002). We review a no-evidence motion for
summary judgment under the same legal sufficiency standard used to review a directed verdict.
King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 750-51 (Tex. 2003); Flood v. Katz, 294 S.W.3d
756, 762 (Tex. App.—Dallas 2009, pet. denied). Our inquiry focuses on whether the nonmovant
produced more than a scintilla of probative evidence to raise a fact issue on the challenged
elements. See King Ranch, 118 S.W.3d at 751; Flood, 294 S.W.3d at 762. Evidence is no more
than a scintilla if it is “so weak as to do no more than create a mere surmise or suspicion” of a fact.
King Ranch, 118 S.W.3d at 751. If a no-evidence motion for summary judgment and a traditional
motion for summary judgment are filed which respectively asserts the plaintiff has no evidence of
an element of its claim and alternatively asserts that the movant has conclusively negated that same
element of the claim, we address the no-evidence motion for summary judgment first. Ford Motor
Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004).
To prevail on a traditional summary judgment motion, a movant has the burden of proving
that he is entitled to judgment as a matter of law and that there is no genuine issue of material fact.
TEX. R. CIV. P. 166a(c); Cunningham v. Tarski, 365 S.W.3d 179, 185-86 (Tex. App.—Dallas 2012,
pet. denied). When a defendant moves for summary judgment, he must either (1) disprove at least
one essential element of the plaintiff's cause of action or (2) plead and conclusively establish each
essential element of an affirmative defense, thereby defeating the plaintiff's cause of action.
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Cunningham, 365 S.W.3d at 186. In determining whether there is a genuine fact issue precluding
summary judgment, evidence favorable to the nonmovant is taken as true and the reviewing court
makes all reasonable inferences and resolves all doubts in the nonmovant’s favor. Id.; Nixon v.
Mr. Prop. Mgmt. Co., Inc., 690 S.W.2d 546, 548–49 (Tex. 1985). A matter is conclusively
established if reasonable minds cannot differ as to the conclusion to be drawn from the evidence.
Cunningham, 365 S.W.3d at 186; see also City of Keller v. Wilson, 168 S.W.3d 802, 816 (Tex.
2005). Once a movant conclusively establishes an affirmative defense, the burden of production
shifts to the nonmovant to present summary judgment evidence that raises a fact issue on at least
one element of the movant’s affirmative defense or an exception or defense to that affirmative
defense. Cunningham, 365 S.W.3d at 186. Where, as here, the trial court’s order granting
summary judgment does not specify the grounds relied upon, we must affirm the summary
judgment if any of the summary judgment grounds are meritorious. Id.
Our review of the evidence concerning negligence begins with duty. Lee Lewis Const.,
Inc. v. Harrison, 70 S.W.3d 778, 783 (Tex. 2001). Ordinarily, a general contractor does not owe
a duty to ensure that an independent contractor performs its work in a safe manner. Id. (citing
Elliott–Williams Co. v. Diaz, 9 S.W.3d 801, 803 (Tex.1999)). A duty does arise, however, if the
general contractor retains some control over the manner in which the independent contractor
performs its work. Id. The general contractor’s duty of care is commensurate with the control it
retains over the independent contractor’s work. Id. A general contractor can retain the right to
control an aspect of an independent contractor’s work or project so as to give rise to a duty of care
to that independent contractor’s employees in two ways: by contract or by actual exercise of
control. Id.
General supervisory control, however, that does not relate to the activity causing the injury
is not sufficient to create a duty. Gonzalez v. VATR Constr. LLC, 418 S.W.3d 777, 785 (Tex.
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App.—Dallas 2013, no pet.). As a result, merely 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 impose a duty. Id. In addition, there must be a nexus between a general contractor’s
retained supervisory control and the condition or activity that caused the injury. Hoechst-Celanese
Corp. v. Mendez, 967 S.W.2d 354, 357-58 (Tex. 1998). The right to control must be more than a
general right to order work to stop and start, or to inspect progress. Coastal Marine Serv. of Tex.,
Inc. v. Lawrence, 988 S.W.2d 223, 226 (Tex. 1999). The supervisory control must relate to the
activity that actually caused the injury, and grant the owner at least the power to direct the order
in which work is to be done or the power to forbid it being done in an unsafe manner. Id. If the
contract does not explicitly assign control over the manner of work to the general contractor, then
the plaintiff must present evidence of the actual exercise of control by the general contractor. See
Gonzalez, 418 S.W.3d at 785.
Here, in its Health & Safety Manual, JLB referred to itself as a “Controlling Employer for
their Multi-employer Worksites. The manual elaborated that “Controlling Employer is define[d]
by OSHA as:”
An employer who has general supervisory authority over the worksite, including
the power to correct safety and health violations itself or require others to correct
them. Control can be established by contract or, in the absence of explicit
contractual provisions, by the exercise of control in practice.
As the controlling employer, we exercise reasonable care to prevent and detect
violations on their [sic] construction sites. JLB Builders, LLC understands that the
extent of the measures that a controlling employer must implement to satisfy this
duty of reasonable care is less than what is required of an employer with respect to
protecting its own employees. This means that the controlling employer is not
normally required to inspect for hazards as frequently or to have the same level of
knowledge of the applicable standards or of trade expertise as the employer it has
hired.
Thus, JLB identified itself as a “controlling employer” as defined by OSHA but also
explained that its duty of reasonable care was “less than what is required of an employer with
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respect to protecting its own employees.” JLB’s implementation of a safety manual, its
undertaking of a duty of reasonable care to prevent and discover safety violations, and its
enforcement of subcontractor’s compliance with safety and health requirements did not constitute
contractual control that related specifically to the injury the alleged negligence causes. Coastal
Marine, 988 S.W.2d at 226; Gonzalez, 418 S.W.3d at 785. Moreover, the contract between JLB
and Capform repeatedly made clear that Capform was responsible for providing all equipment for
performing the work; Capform was “solely responsible for the acts and omissions of its employees,
agents and suppliers and for the acts and omissions of its sub-subcontractors and their employees,
agents and suppliers”; and Capform accepted sole responsibility for providing a safe place to work
for its employees and for the employees of its sub-subcontractors and suppliers, and for the
adequacy and required use of all safety equipment. We conclude Hernandez failed to offer any
evidence that JLB exercised contractual control over Capform or Hernandez.
On the issue of whether JLB exercised actual control, we have already determined calling
itself “controlling employer” was not enough. In order to have actual control, a property owner or
occupier “must have the right to control the means, methods, or details of the independent
contractor's work to the extent that the independent contractor is not entirely free to do the work
his own way,” and the “right to control the work must extend to the ‘operative detail’ of the
contractor's work.” Union Carbide Corp. v. Smith, 313 S.W.3d 370, 375 (Tex. App.—Houston
[1st Dist.] 2009, pet. denied) (quoting Ellwood Tex. Forge Corp. v. Jones, 214 S.W.3d 693, 700
(Tex. App.—Houston [14th Dist.] 2007, pet. denied)). “A possibility of control is not evidence of
a ‘right to control’ actually retained or exercised.” Hernandez v. Hammond Homes, Ltd., 345
S.W.3d 150, (Tex. App.—Dallas 2011, pet. denied) (quoting Coastal Marine, 988 S.W.2d at 226)
(evidence plaintiff would have followed safety measures and avoided injury if defendant had
required them was no evidence of actual control). A general contractor has actually exercised
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control of a premises when the general contractor knew of a dangerous condition before an injury
occurred and approved acts that were dangerous and unsafe. Dow Chem. Co. v. Bright, 89 S.W.3d
602, 609 (Tex. 2002) (citing Lee Lewis Constr., 70 S.W.3d at 784).
The evidence showed Hernandez and Gutierrez, both Capform employees, testified JLB
did not tell them how to perform any of the work that led to the rebar cage accident. Instead,
Capform supervisor Gutierrez testified “no one from JLB has to tell us how to do the job.”
Hernandez testified JLB did not give him any instructions on how to set the form on the platform
on the day of the accident. Hernandez testified Gutierrez was “supervisor,” and Molina was the
foreman of the crew, they both worked for Capform, and Molina told him he would be setting the
platform on the day of the accident. Hernandez testified JLB did not tell him to set the platform
or to get up on the tower that fell. Hernandez testified he did not see anyone from JLB “on this
job on the day of the accident before it occurred.” Hernandez replied, “I don’t know” when asked
whether anyone from JLB knew bracing for the rebar cage had been attached with nails instead of
rebar, whether he had any reason to believe JLB caused the accident, or whether Capform installed
the braces on the cage. Thus, there was no evidence that JLB exercised actual control that related
to the injury the alleged negligence caused or that JLB specifically approved the dangerous act.
See Dow Chem., 89 S.W.3d at 607-09. Under these circumstances, we conclude the trial court did
not err in granting JLB’s no-evidence motion for summary judgment. Having reached this
conclusion, we need not decide whether summary judgment was also appropriate under a
traditional standard. We overrule Hernandez’ issues.
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We affirm the trial court’s judgment.
/David L. Bridges/
DAVID L. BRIDGES
JUSTICE
170719F.P05
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
JOSE HERNANDEZ, Appellant On Appeal from the County Court at Law
No. 4, Dallas County, Texas
No. 05-17-00719-CV V. Trial Court Cause No. CC-15-00715-D.
Opinion delivered by Justice Bridges.
SUN CRANE AND HOIST, INC.: JLB Justices Evans and Whitehill participating.
PARTNERS, L.P.; JLB BUILDERS,
L.L.C., AUGER DRILLING, INC., AND
D'AMBRA CONSRUCTION
CORPORATION, Appellees
In accordance with this Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.
It is ORDERED that appellees SUN CRANE AND HOIST, INC.: JLB PARTNERS,
L.P.; JLB BUILDERS, L.L.C., AUGER DRILLING, INC., AND D'AMBRA CONSRUCTION
CORPORATION recover their costs of this appeal from appellant JOSE HERNANDEZ.
Judgment entered November 1, 2018.
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