RETENTION OF CONTROL AND RESULTING LIABILITY IN TEXAS CONSTRUCTION LAW

1. INTRODUCTION
2. THE HISTORICAL UNDERPINNINGS OF GENERAL CONTRACTOR LIABILITY
1. Redinger v. Living, Inc.: Negligent Activity on Premises
2. Tovar v. Amarillo Oil Company: A Companion to Redinger
3. Clayton W. Williams, Jr., Inc. v. Olivo: Premises Defect
4. Hoechst-Celanese Corporation v. Mendez: Requiring Subcontractors to Follow Safety Guidelines
5. Coastal Marine Service of Texas, Incorporated v. Lawrence: Requiring Subcontractors to Follow Instructions
6. Elliott-Williams Co., Inc. v. Diaz: Right to Control Retained by Contract Alone
7. Koch Refining Company v. Chapa: Maintenance of an On-Site Safety Representative
3. LEE LEWIS CONSTRUCTION, INC. V. HARRISON: A STUMBLING BLOCK ON THE PATH TO CLARITY
1. Factual and Procedural History
2. The Court's Analysis
3. Why the Court Got it Wrong
4. Justice Jefferson's Concurring Opinion
5. Justice Hecht's Concurring Opinion
6. Justice Phillips' Concurring Opinion
4. DOW CHEMICAL COMPANY V. BRIGHT: BACK ON THE RIGHT TRACK
1. Factual and Procedural History
2. The Court's Analysis
1. Contractual Right to Control
2. Actual Exercise of Control
5. PRACTICAL IMPLICATIONS OF THE SUPREME COURT'S OPINIONS
1. Maintaining Safety
2. OSHA Compliance and the Right to Control
3. Practical Advice
1. Contracting Away Liability
2. Implications for Construction Managers
3. Implications for Subcontractors
6. CONCLUSION

Abstract

General contractors are faced with the uniquely complicated task of coordinating the efforts of numerous subcontractors to produce a completed building to the satisfaction of the owner, the architect, and various public officials and inspectors. How tort liability is allocated amongst those parties is equally difficult. It is well-established law in Texas that a general contractor generally does not owe a duty to ensure that an independent contractor performs its work in a safe manner. Rather, it is the subcontractor who owes such a duty to its employees. The exception to this general rule arises only when a general contractor retains some control over the manner of performance by the subcontractor. That retained control creates a duty of care on the part of the general contractor to ensure that the subcontractor safely performs its work commensurate with the control the contractor retained over the subcontractor's work.

Consequently, when a general contractor is sued for an injury to a subcontractor's employee, the liability issue draws into focus the degree of the general contractor's control over the manner in which the subcontractor performs its work. The degree of retained control determines liability, but the analytical standards for measuring and determining liability have produced neither consistent nor equitable results, and these standards have been further complicated by the Texas Supreme Court's decision in Lee Lewis Construction, Inc. v. Harrison. As Chief Justice Phillips wrote, ". . . a thorough reconsideration of this area is in order."

Recent Texas Supreme Court decisions enlarge the spectrum of enforcement of job site safety by the contractor. Project superintendents must evaluate how much supervision concerning safety issues at the job site might constitute legal assumption of control or interference with a subcontractor's means and methods. While relying on the subcontractor to provide safe practices for subcontracted work, a prudent contractor should not hesitate to step in when obviously unsafe conditions are observed. Moreover, a safety program that actually contributes to an injury, or the approval by the safety coordinator of a specific dangerous condition, may cause liability to be imposed on the owner or prime contractor. Nevertheless, reduction of unsafe practices will reduce the exposure to the risk of unfortunate injuries like Jimmy Harrison's in Lee Lewis Construction, Inc. v. Harrison. A pro-active approach to safety is always the best defense.

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