Court of Appeals of Texas, Eighth District, El Paso
from County Court at Law No. 6 of El Paso County, Texas (TC #
McClure, C.J., Rodriguez, and Palafox, JJ.
CRAWFORD MCCLURE, CHIEF JUSTICE
construction accident case, we must principally decide if one
contractor owed a duty to another contractor's employees.
Aside from the parties' conduct and contracts which
usually resolve this question, we also consider the duty
implications of administrative regulations applicable to the
type of construction at issue here: asbestos abatement. The
trial court granted summary judgment in favor of the
defendant contractor. We agree and affirm.
Diaz worked for Robles and Sons, Inc. (Robles), an asbestos
abatement contractor. Robles was abating asbestos containing
joint compound on the walls and ceiling of a commercial
retail space. At the time of the accident, Diaz was working
inside a "containment area" which enclosed a space
with plastic sheeting, and through negative air pressure,
prevented the escape of any free-floating asbestos particles.
See 25 Tex.Admin.Code § 295.32
(31)(Tex.Dep't of State Health Serv., Definitions).
Within that zone, Diaz was cleaning dust and debris between a
false ceiling and the actual roof of the structure. A person,
unidentified in this record, called up to Diaz and threw him
material to fix a tear in the containment area's plastic
sheeting. To reach the tear, Diaz had to unhook his fall
protection harness. When he did so, and as he walked over the
false ceiling, it gave way and he fell some seventeen feet,
causing serious injuries.
sued the premises owner, Simon Properties. He also sued
R&A Consultants, Inc. (R&A) who had contracted with
Simon Properties to provide "project design" and
"air monitoring" services for the abatement
project. Diaz' suit alleged three theories against
R&A: negligence, premises liability, and joint
enterprise. R&A moved for summary judgment challenging
multiple elements of each claim. Relevant to this appeal,
R&A claimed that it owed no duty to Diaz, who was the
employee of an independent contractor. The trial court
granted the motion and severed Diaz's claims against
R&A. In this appeal, Diaz challenges only the summary
judgment on the negligence claim.
review a trial court's decision to grant summary judgment
de novo. Travelers Ins. Co. v. Joachim, 315 S.W.3d
860, 862 (Tex. 2010). R&A filed a hybrid motion that
included both traditional and no-evidence grounds. The trial
court granted both motions without specifying the grounds.
Diaz thus carries the burden of negating all possible grounds
upon which the summary judgment could have been granted.
See Star-Telegram, Inc. v. Doe, 915 S.W.2d 471, 473
(Tex. 1995); Ramirez v. First Liberty Ins. Corp.,
458 S.W.3d 568, 571 (Tex.App.--El Paso 2014, no
"no evidence" motion requires the moving party to
"state the elements as to which there is no
evidence," and upon doing so, the burden shifts to the
non-movant to produce summary judgment evidence raising a
genuine issue of material fact regarding each element
challenged in the motion. Tex.R.Civ.P. 166a(i); see also
Wade Oil & Gas, Inc. v. Telesis Operating Company,
Inc., 417 S.W.3d 531, 540 (Tex.App.--El Paso
2013, no pet.). In a traditional motion for summary judgment,
the movant carries the burden to show there is no genuine
issue of material fact on a claim or defense, and that the
movant is entitled to judgment as a matter of law.
Tex.R.Civ.P. 166a(c). Once the movant establishes a right to
judgment as a matter of law, the burden shifts to the
non-movant to produce evidence raising a genuine issue of
material fact. City of Houston v. Clear Creek Basin
Auth., 589 S.W.2d 671, 678-79 (Tex. 1979). A defendant
is entitled to summary judgment if it conclusively negates at
least one element of the plaintiffs claim, or conclusively
establishes an affirmative defense. Frost Nat'l Bank
v. Fernandez, 315 S.W.3d 494, 508 (Tex. 2010).
both types of motions, we review the evidence in the light
most favorable to the non-movant, crediting evidence
favorable to that party if reasonable jurors could, and
disregarding contrary evidence unless reasonable jurors could
not. See City of Keller v. Wilson, 168 S.W.3d 802,
827 (Tex. 2005); Johnson v. Brewer & Pritchard,
P.C, 73 S.W.3d 193, 208 (Tex. 2002). The non-movant
establishes a genuine issue of material fact by producing
more than a scintilla of evidence regarding the challenged
element. King Ranch, Inc. v. Chapman, 118 S.W.3d
742, 751 (Tex. 2003). More than a scintilla of evidence
exists when reasonable and fair-minded individuals could
differ in their conclusions. Id. The non-movant
fails in their burden when the evidence is so weak as to do
no more than create a mere surmise or suspicion of material
fact. Wade Oil & Gas, 417 S.W.3d at 540.
negligence claim requires the existence of a legal duty, a
breach of that duty, and damages proximately caused by the
breach. Gharda USA, Inc. v. Control Solutions, Inc.,
464 S.W.3d 338, 352 (Tex. 2015). While R&A challenged
each element of Diaz's claim below, the parties
principally join issue on whether R&A owed a duty to
Diaz. Whether one party owes a duty to another is a question
of law that we decide from the facts surrounding the
occurrence at issue. Golden Spread Council, Inc. No. 562
of the Boy Scouts of America v. Akins, 926 S.W.2d 287,
289-90 (Tex. 1996)(noting that courts must "weigh the
risk, foreseeability, and likelihood of injury against the
social utility of the actor's conduct, the magnitude of
the burden of guarding against the injury, and the
consequences of placing the burden on the defendant.").
asserts in part that the duty in this case is governed by
those cases defining a general contractor's duty to a
subcontractor's employees. That same body of law treats a
general contractor as the "owner or occupier of
land," thus creating an overlap with a premises
owner's duty to a business invitee on the property.
Clayton W. Williams, Jr., Inc. v. Olivo, 952 S.W.2d
523, 527 (Tex. 1997)(discussing the "hybrid body of law
that lies at the intersection" of a general contractor
and premises' owner duty question). As an owner or
occupier of the land, R&A might owe one of two duties
related to either (1) defects existing on the premises when
the independent contractor entered and (2) defects the
independent contractor created by its work activity.
Coastal Marine Serv. of Tex., Inc. v. Lawrence, 988
S.W.2d 223, 225 (Tex. 1999). As Diaz has not specifically
challenged the summary judgment on his "premises
liability" count, we focus on the second category--a
premises danger created by Robles's work
general contractor does not owe a duty to ensure that an
independent contractor performs its work in a safe manner.
Lee Lewis Const, Inc. v. Harrison, 70 S.W.3d 778,
783 (Tex. 2001), citing Elliott-Williams Co., Inc. v.
Diaz, 9 S.W.3d 801, 803 (Tex. 1999) and
Hoechst-Celanese Corp. v. Mendez, 967 S.W.2d 354,
356 (Tex. 1998). There are several exceptions to this rule,
and an important one here: when a general contractor retains
some control over how the independent contractor performs its
work, the general contractor must exercise that control in a
reasonable manner. Elliott-Williams, 9 S.W.3d at
803; Redinger v. Living, Inc., 689 S.W.2d 415, 418
(Tex. 1985), citing Restatement (Second) of Torts
§ 414 (1965)("One who entrusts work to an
independent contractor, but who retains the control of any
part of the work, is subject to liability for physical harm
to others for whose safety the employer owes a duty to
exercise reasonable care, which is caused by his failure to
exercise his control with reasonable care.").
Restatement Section 414 "control" exception itself,
and subsequent Texas Supreme Court decisions, recognize
several meaningful limitations on the duty. As the
Restatement requires, "[t]he employer's role must be
more than a general right to order the work to start or stop,
to inspect progress or receive reports."
Redinger, 689 S.W.2d at 418, citing
Restatement (Second) of Torts § 414 cmt. c (1965).
"[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 subject a
premises owner to liability." Koch Refining Co. v.
Chapa, 11 S.W.3d 153, 155 (Tex. 1999), citing
Restatement (Second) of Torts § 414 cmt. c (1965).
Rather, there must be such a retention of a right of
supervision that the contractor is not entirely free to do
the work in his own way. Id.
courts have required a nexus between the control and the
injury-producing event. Mendez, 967 S.W.2d at 357
(requiring "nexus between an employer's
retained supervisory control and the condition or activity
that caused the injury")[Emphasis in original];
Painter v. Sandridge Energy, Inc., 511 S.W.3d 713,
720 (Tex.App.--El Paso 2015, pet. denied)(collecting
cases and noting "the right to control must extend to
the specific activity from which the injury arose.").
State otherwise, the control must relate to the injury
producing event. Olivo, 952 S.W.2d at 528 ("For
the general contractor to be liable for negligence, its
supervisory control must relate to the condition or activity
that caused the injury.").
sometimes attempt to find that nexus in a general
contractor's policies that require compliance with its
own safety rules or governmental safety rules. The Texas
Supreme Court, however, has described this as a
"narrow" duty of care that any safety requirements
and procedures do not unreasonably increase the probability
and severity of injury. Mendez, 967 S.W.2d at 358.
Additionally, a general contractor who is "aware that
its contractor routinely ignores applicable federal
guidelines and standard company policies related to safety
may owe a duty to require corrective measures to be taken or
to cancel the contract." Mendez, 967 S.W.2d at
357. The supreme court has also imposed a duty on a general
contractor who has actual knowledge of a critical breach of a
specific safety procedure and who had a contractual right to
stop the work for such a breach. Lee Lewis, 70
S.W.3d at 783 (knowledge of deficient fall-prevention
practices along with the right to stop work); Tovar v.
Amarillo Oil Co., 692 S.W.2d 469 (Tex. 1985) (knowledge
of improper set up of blow-out preventer, along with the
contractual right to stop work).
a party can prove the right to control in two ways: (1) by
evidence of a contractual agreement that explicitly assigns a
right to control or (2) in the absence of such a contractual
agreement, by evidence of the actual exercise of control.
Dow Chem. Co. v. Bright, 89 S.W.3d 602, 605-06 (Tex.
2002); Koch, 11 S.W.3d at 155. Diaz also argues
there is a third way of establishing liability: a duty may be
imposed by a statute or administrative regulation placing a
safety obligation on a particular party. Section 424 of the
Restatement (Second) of Torts (1965) provides:
One who by statute or by administrative regulation is under a
duty to provide specified safeguards or precautions for the
safety of others is subject to liability to the others for
whose protection the duty is imposed for harm caused by the
failure of a contractor employed by him to provide such
safeguards or precautions.
comment to section 424 further explains that a duty to take
safety precautions cannot be delegated to an independent
The rule stated in this Section applies whenever a statute or
an administrative regulation imposes a duty upon one doing
particular work to provide safeguards or precautions for the
safety of others. In such a case the employer cannot delegate
his duty to provide such safeguards or precautions to an
Id. at comment a. The Texas Supreme Court applied
Section 424 in MBank El Paso, N.A. v. Sanchez, and
imposed a duty on a secured creditor to take precautions for
public safety when pursuing nonjudicial repossession. 836
S.W.2d 151, 153 (Tex. 1992). The duty arose from a Uniform
Commercial Code provision allowing creditors to repossess
collateral, but only if they could do so without a breach of
the peace. Id. at 152. As we discuss below, Diaz
contends that several administrative regulations that govern
asbestos abatement impose a Section 424 duty on R&A.
does not consider itself either the property owner or a
general contractor for duty purposes. It tacitly agrees,
however, that its duty turns on whether it actually
controlled, or had the right to control fall protection on
the worksite (by contract or regulatory directive).
these principles, we address whether Diaz raised a duty based
on some right of control through either the parties'
contracts, any actual control exercised at the worksite, or
as a matter of law through statute or administrative code.
But because the control must relate to the injury causing
event, we first describe the accident in more depth.
third amended petition contains forty-six alternate theories
of negligence. The allegations, along with the evidence
submitted in response to the summary judgment, in substance
claim that the accident occurred because of the fall
prevention system Diaz was using. Diaz and a co-worker were
cleaning dust and debris from the topside of a false ceiling
in the space being abated. When they had to move around, they
would walk on the top of the metal studs that formed interior
walls to the space. Because much of the ceiling was still in
place, and the all the light sources were below the ceiling,
the area where they were working was dark such that Diaz
could not always see where he was stepping.
was working inside a containment zone that his employer had
set up with plastic sheeting. Just before the fall, Diaz was
instructed to repair an opening in the plastic sheeting. He
was called to come over and pick up materials to fix the
breach. Diaz did not know who directed him to do so. His
co-worker, Benito Adame, testified that it was a Robles
wore a harness with a lanyard that he could attach to anchors
while working at height. His harness, however, only had one
lanyard so that if he needed to move between areas protected
by different anchors, he would need to unhook from one anchor
and attach it to the next. With only one lanyard, however, he
would be unprotected while transferring between anchors.
Also, on this job the workers used the existing structures of
the building--such as roof trusses--as anchors. On other
jobs, a cable had been placed for the express purpose of
providing ready anchor point.
was able to climb to the level of the false ceiling on
scaffolding that Robles had assembled. To reach the tear in
the plastic, Diaz could not use the scaffolding, and needed
to attach his lanyard to a different anchor. While moving
between anchor points, he walked on the top of the false
ceiling that gave way. Accordingly, some evidence in our
record shows that the fault was either with not having two
lanyards that could be used in tandem, or the failure to
place a cable for better anchorage. The situation was
exacerbated by the poor lighting, or a lack of scaffolding
that would fit into the area at issue.
under the Texas Administrative Code
property owner, Simon Properties, put out two requests for
proposal--one for an abatement contractor, and one for a
consultant. The scope of work for the consultant included air
monitoring, project design, and project management. Simon
Properties hired R&A as the consultant, and R&A
prepared the project design. The project design is a
multi-page document that contains all the specifications that
the asbestos abatement contractor--here Robles--was expected
to meet. The design document also describes some specific
methods to accomplish the work, such as instructions on
wetting surfaces before they are cut or disturbed. R&A as
the consultant agency may employ a project manager and
according to some evidence in our record, did so here.
R&A was also expected to do the air monitoring while the
project progressed Asbestos abatement is a regulated field.
Tex.Occ.Code Ann. § 1954.002(8) and § 1954.051. The
Texas Department of Safety Health Services (the Department)
has promulgated regulations that define the several functions
that R&A performed here--asbestos consulting, asbestos
project design, and air monitoring. 25 Tex.Admin.Code §
295.32 (7), (13)(18)(Tex. Dep't of State Health Serv.,
Definitions). It licenses the several positions filled by
R&A's employees performing those roles: asbestos
consultant, asbestos project manager, and air monitoring
technician. Id. at § 295.47 (Licensure:
Asbestos Consultant); § 295.49 (Licensure: Asbestos
Project Manager); § 295.52 (Licensure: Air Monitoring
the Department's rules, "asbestos consulting
activities" might include (1) designing of asbestos
abatement projects, (2) the preparation of plans,
specifications, and contract documents, and (3) "the
review of environmental controls and abatement procedures for
personal protection that are to be employed every day of the
asbestos abatement activity, from the start through the
completion dates of the project[.]" 25 Tex.Admin.Code
§ 295.32 (13).
"consultant agency" must be licensed by the
Department to design asbestos abatement projects.
Id. at § 295.48(a)(Licensure: Asbestos
Consultant Agency). The agency in turn employs one or more
licensed asbestos consultants. Id. An individual
consultant may prepare a "project design" which
includes several elements: (1) "the survey of public
buildings for asbestos-containing building material
(ACBM)," (2) "the evaluation and selection of
appropriate asbestos abatement methods," (3)
"project layout; the preparation of plans,
specifications and contract documents," and (4)
"the review of environmental controls, abatement
procedures and personal protection equipment to be employed
at any time during the asbestos abatement activity, from the
start through the completion dates of the project."
Id. at § 295.47(a)(1). By rule, an asbestos
project design includes among many other things, "the
review of environmental controls, abatement procedures and
personal protection equipment to be employed every day of the
asbestos abatement activity, from the start through the
completion dates of the project." Id. at §
consultant's license also allows the consultant to
"provide" for "the selection, fit testing, and
appropriate use of personal protection equipment, and the
development of engineering controls for asbestos-related
activities." Id. at § 295.47(b)(6).
"Asbestos abatement activity" is itself a defined
term and includes "[a]sbestos abatement, or any on-site
preparations or clean-up related to the abatement."
Id. at § 295.32(10). "Preparation" is
a defined term, and among many other things, includes
"installation of scaffolding (in an area in which
asbestos maybe disturbed during the installation)[.]"
Id. at § 295.32(78). A consultant's
responsibilities specifically include providing professional
services to building owners concerning "compliance with
work practices and standards," "requiring
compliance with regulations and specifications," and
"advise on the selection and use of appropriate personal
protective equipment for all asbestos-related
activities." Id. at § 295.47(h)(2), (4),
corporate representative testified that one of the hats it
wore on this project was a "project manager." An
asbestos project manager must be licensed by the Department,
and "must be employed by a licensed asbestos consultant
agency" to act as the "owner's representative
to evaluate the quality of the work being performed during an
asbestos abatement project." Id. at §
295.49(a)(Licensure: Asbestos Project Manager). The project
manager should "(1) monitor the project to document the
standards designed to protect project personnel and building
occupants, and the adequacy of controls; (2) observe that
contractual requirements are being met by the abatement
contractor; and (3) consult with contractors on behalf of
their clients on the selection and use of appropriate
personal protective equipment related to the asbestos
abatement activities." Id. at § 295.49(a).
when a consultant is hired by a building owner to perform
asbestos project management, "the consultant is
responsible to ensure proper procedures are used from the
time of arrival of the abatement contractor on site through
the completion of the removal of the containment and the
departure of the contractor from the project site."
Id. at § 295.47(a)(1). Robles's supervisor
testified that the asbestos manager "basically ensures
that the asbestos spec" in the project design is adhered
to. The manager could do so, however, only by ordering the
work to stop.
was also retained to perform air monitoring during the
project. In doing so, it set up a device (a manometer) to
ensure negative air pressure in the containment zone (i.e.,
that air moved only into the containment zone, and not out of
it). R&A would also take air samples to ensure asbestos
particles did not escape the containment zone. An R&A
manager agreed that R&A was in charge of the integrity of
the containment zone, which required the presence of an
R&A employee at the construction site for much of the
time that Robles was working. Diaz also suggests that when