In a recent case, the Texas Supreme Court addressed the scope of the general contractor’s duty of care to its subcontractors’ employees on the project site. In JLB Builders, L.L.C. v. Hernandez, the Court upheld the trial court’s summary judgment in the general contractor’s favor and dismissed the negligence claims of an injured subcontractor employee on the grounds that the general contractor did not retain actual or contractual control over the injured subcontractor employee’s work.
JLB Builders was the general contractor on a high rise construction project, and subcontracted the concrete work to a subcontractor who employed Jose Hernandez. After Hernandez was injured in a jobsite accident involving the collapse of a rebar tower, he sued the general contractor and others bringing negligence and gross negligence claims.
The general contractor moved for traditional and no-evidence summary judgment, arguing among other things that it owed no duty to Hernandez as an employee of an independent contractor because the general contractor neither exercised actual nor contractual control over the means, methods, and details of the subcontractor’s work. Hernandez responded to the general contractor’s motion by offering “evidence that [the general contractor’s] supervisors were on-site at all times (though none were in the area where Hernandez was injured when the accident occurred), conducted daily safety inspections, inspected [the subcontractor’s] work, and had the authority and responsibility to require subcontractors to modify practices [the general contractor] believed to be unsafe.” The trial court granted summary judgment for the general contractor, but the Dallas Court of Appeals reversed, finding fact issues “regarding whether (1) [the general contractor] exercised actual control and thus owed Hernandez a duty, (2) [the general contractor] breached that duty, and (3) [the general contractor’s] breach proximately caused Hernandez's injuries.”
The Texas Supreme Court’s Decision
Reversing the Dallas Court of Appeals, the Texas Court of Appeals upheld the trial court’s summary judgment dismissing Hernandez’s negligence claims against the general contractor. The Court reiterated that under Texas law, while ordinarily “one who employs an independent contractor has no duty to ensure that the contractor safely performs its work,” there is an exception when “the employer retains some control over the manner in which the contractor performs the work that causes the damage.” The Court stated that an employee of a subcontractor like Hernandez “can prove the requisite control by establishing that the general contractor either  actually controlled the manner in which the subcontractor performed its work or  had a contractual right to do so.”
On the issue of whether the general contractor actually controlled the subcontractor’s employees’ work, the Court held that no evidence indicated that the general contractor exercised actual control over the details of the injury-causing work. In so holding, the Court reasoned that the following did not qualify as actual control by the general contractor over the injury-causing work:
- The general contractor’s control over the overall timing and sequence of work being performed by its various independent subcontractors;
- The presence of the general contractor’s safety employees and supervisors at the work site;
- The general contractor’s requirements that workers at the project use safety harnesses;
- Having the opportunity to observe the safety hazard that led to the employee’s injury without evidence that the general contractor’s employees actually were aware of the safety hazard.
Although not necessary for the disposition of the case, the Court also concluded that the general contractor did not have the contractual right to control the subcontractor’s injury-causing work. In reaching this conclusion, the Court noted the following terms of the subcontract with Hernandez’s employer and found that these provisions did not give rise to contractual control over the injury-causing work:
- Subcontractor was “responsible for the manner and means of accomplishing the work,” and general contractor had “no authority to direct, supervise or control the means, manner or method of construction of the Work;”
- Subcontractor was “responsible for initiating, maintaining, and supervising all safety precautions in its work” and “accepts sole responsibility for providing a safe place to work for its employees;”
- Subcontractor was required to comply with work schedules or directions from the general contractor as well as to coordinate the performance of its work with the general contractor; and
- Subcontractor’s employees were required to comply with safety procedures identified in the subcontract, including a detailed “Fall Protection Plan.”
While Hernandez argued that requiring subcontractors to comply with specific safety procedures qualified as contractual control over the work, the Court disagreed because Texas law provides that “requiring compliance with safety procedures does not give rise to a duty to an independent contractor’s employees so long as those procedures do not unreasonably increase, rather than decrease, the probability and severity of the injury.”
The Court’s opinion reaffirms that typical provisions in subcontracts and the normal aspects of the contractor/subcontractor relationship do not give rise to a duty of care toward subcontractor employees. In this regard, from the general contractor’s perspective, it is important to include language in subcontracts to the effect that the general contractor does not have authority or supervision over the manner and means of the subcontractor’s work, as well as that the subcontractor takes full responsibility for its employees and their safety.
However, the case also is a reminder that if the general contractor or its employees exercise too much control over the manner and means of subcontractors’ work, the general contractor may find itself on the hook for employee injury negligence claims by subcontractor employees.
One way for general contractors to mitigate these risks is through the use of well-drafted indemnity provisions in their subcontracts. While the Texas Construction Anti-Indemnity Act typically voids indemnity provisions in construction contracts requiring the indemnitor to indemnify another for that other party’s negligence or fault, the Act contains an exception to this rule for employee injury claims brought by employees of the indemnitor or employees of the indemnitor’s subcontractors of any tier. As a result, owners, general contractors, and subcontractors are able to contract for indemnity provisions indemnifying them against their own negligence or fault for employee injury claims brought by their contractor or subcontractor’s employees. While such employee injury indemnity provisions do not eliminate a general contractor’s risk of a negligence claim like the one at issue in JLB Builders, having a well-drafted indemnity provision in place up front is a good way to mitigate the risk and cost of these types of claims by subcontractor employees.
1 JLB Builders, L.L.C. v. Hernandez, No. 20-0368,---S.W.3d---, 64 Tex. Sup. Ct. J. 964 Tex. May 7, 2021).
2 Id. at *3.
3 Id. at *1.
4 Id. at *2 (internal citations omitted).
6 Id. at *5.
9 Id. (internal quotations and citations omitted).
10 Texas Insurance Code §§ 151.001-.151.
11 Id. § 151.103.
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