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Diaz v. R & A Consultants

Court of Appeals of Texas, Eighth District, El Paso

April 10, 2019

ROBERTO DIAZ, Appellant,
v.
R & A CONSULTANTS, Appellee.

          Appeal from County Court at Law No. 6 of El Paso County, Texas (TC # 2015-DCV-3097)

          Before McClure, C.J., Rodriguez, and Palafox, JJ.

          OPINION

          ANN CRAWFORD MCCLURE, CHIEF JUSTICE

         In this 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.

         BACKGROUND

         Roberto 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.

         Diaz 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.

         STANDARD OF REVIEW

         We 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 pet.).

         A "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).

         For 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.

         DUTY

         A valid 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.").

         Diaz 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 activity.[1]

          A 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.").

         The 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.

         Next, 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.").

         Litigants 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).

         Traditionally, 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.

         A comment to section 424 further explains that a duty to take safety precautions cannot be delegated to an independent contractor:

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 independent contractor.

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.

         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).

         DISCUSSION

         Applying 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.

         The Accident

         Diaz's 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.

         Diaz 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 leadman.

         Diaz 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.

         Diaz 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.

         Duty under the Texas Administrative Code

         The 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 Technician).

         Consultant

         Under 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).

         A "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 § 295.32(18).

         A 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), (5).

         Project Manager

         R&A's 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).

         And 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.[2]

         Air Monitoring

         R&A 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 ...


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