Tuesday, June 01, 2021

A General Contractor's Duty to Subcontractor Employees -- Per Recent Texas Supreme Court Review

By Chris Littell


In a recent opinion, the Texas Supreme Court continued its narrow view of duties owed by a general contractor to the employees of independent contractors in personal injury cases. JLB Builders, L.L.C. was the general contractor on a high-rise construction project in Dallas and subcontracted concrete work to Capform, Inc.  JLB’s supervisors were on site, conducted daily safety inspections, inspected Capform’s work, and instituted general safety requirements for the work site.  Jose Hernandez, a Capform employee, was injured on the job on December 5, 2013. As he was standing on a “rebar tower” to guide the placement of a concrete form, the tower detached from the ground and fell (either from wind or from contact with the concrete form), landing on Hernandez’s legs as he tried to jump off.    Hernandez sued JLB for negligence and gross negligence, alleging that JLB retained contractual and actual control over Capform’s work and thus owed him a duty of care. 


The General Rule…for General Contractors

The general rule is that a general contractor (GC) owes a duty of care to its independent contractor’s employees if the GC retains actual or contractual control over the means and methods of the independent contractor’s work. An issue in this case was whether the GC’s safety requirements on a construction project created a duty  to the subcontractor’s employee who was injured. Hernandez alleged that JLB exerted actual and contractual control over his work.


The Holding in Hernandez

The Texas Supreme Court in JLB Builders, LLC v. Jose Hernandez held that a general contractor  who promulgates mandatory safety requirements and procedures owes only a narrow duty to ensure that those requirements and procedures generally do not “unreasonably increase, rather than decrease, the probability and severity of injury.”  Additionally, a general contractor can be held liable if it personally observes a safety hazard and nonetheless approves of continuing the work.  Here, the court found no evidence that JLB specifically was aware of a risk of high winds causing injury, nor did JLB order the work to continue after being made aware of the danger.  Hernandez also testified that the supervisors on site were not in the area at the time of the incident.  The court held that this lack of specific knowledge of the risk and lack of specific a specific order to perform the individual task meant that JLB did not owe a duty of care to Hernandez, a subcontractor’s employee.


Retaining Control Contractually

However, even in the absence of a general contractor’s exercise of actual control over the details of an independent contractor’s work, a duty to ensure safe performance may arise if the general contractor retains the right to such control contractually. The contract required Capform to furnish all supervision of its employees and designated Capform “solely responsible for the acts and omissions of its employees.” It provided that JLB had “no authority to direct, supervise or control the means, manner or method of construction of the Work” and that Capform was “responsible for the manner and means of accomplishing the Work.” The court held that these provisions clearly do not confer a right of control sufficient to create a duty for JLB to ensure Hernandez’s safety.  As such, the court reversed and rendered judgment that Hernandez take nothing from JLB.

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