Carl Gray v. Zimmerman and Jansen, Inc.

Carl Gray v. Zimmerman & Jansen Inc.

IN THE

TENTH COURT OF APPEALS

No. 10-00-331-CV

CARL GRAY,

Appellant

v.

ZIMMERMAN AND JANSEN, INC.,

Appellee

From the 221st District Court

Montgomery County, Texas

Trial Court # 95-12-05053-CV

O P I N I O N

This is an appeal from a motion for summary judgment granted in favor of appellee

Zimmerman and Jansen, Inc. [“Z & J”], defendant in the trial court, in connection with a suit for

negligence filed against it by plaintiff/appellant Carl Gray [“Gray”]. On September 14, 1994,

Gray, an employee of American Engineers and Fabricators, Inc. [“American”], seriously injured

his hand while repairing a large industrial valve manufactured by Z & J that was part of an even

larger piece of equipment at an oil refinery owned by Exxon. Gray sued both American and Z

& J seeking damages for negligence.

On October 2, 1998, the trial court granted Z & J’s motion

for summary judgment. The trial court subsequently granted a severance as to Z & J and entered

an agreed final judgment against American. The summary judgment rendered in favor of Z & J

thus became a final, appealable judgment.

Gray presents three issues on appeal: the trial court erred in granting summary judgment in

favor of Z & J on his negligence cause of action because there was a question of fact as to whether

Z & J: (1) was negligent; (2) failed to provide proper control and supervision of Gray’s work; and

(3) failed to provide Gray a safe place to work. Because all three issues turn on the question of

whether there is a sufficient factual basis to establish that Z & J, the general contractor, owed a

legal duty to Gray, an employee of American, an independent contractor, the issues are jointly

argued by both parties. We will affirm the trial court’s summary judgment order to the extent that

it disposes of Gray’s causes of action for alternatively pled theories of liability, and reverse and

remand the summary judgment order on Gray’s negligence cause of action.

A. Standard of Review

Z & J’s motion for summary judgment was a “traditional” motion, as opposed to a “no-evidence” motion. See Tex. R. Civ. P. 166a. The general rules for reviewing traditional

summary judgment motions are well-known. In a summary judgment case, the issue on appeal

is whether the movant met his summary judgment burden by establishing that no genuine issue

of material fact exists and that the movant is entitled to judgment as a matter of law. Tex. R. Civ.

P. 166a(c); KPMG Peat Marwick v. Harrison County Hous. Fin. Corp. , 988 S.W.2d 746, 748

(Tex. 1999); City of Houston v. Clear Creek Basin Auth. , 589 S.W.2d 671, 678 (Tex. 1979). The

burden of proof is on the movant, and all doubts about the existence of a genuine issue of material

fact are resolved against the movant. Rhone-Poulenc, Inc. v. Steel, 997 S.W.2d 217, 223 (Tex.

1999); Friendswood Dev. Co. v. McDade + Co., 926 S.W.2d 280, 282 (Tex. 1996); Great Am.

Reserve Ins. Co. v. San Antonio Plumbing Supply Co. , 391 S.W.2d 41, 47 (Tex. 1965).

Therefore, we must view the evidence and its reasonable inferences in the light most favorable to

the nonmovant. Great Am. , 391 S.W.2d at 47 .

In deciding whether there is a material fact issue precluding summary judgment, all conflicts

in the evidence are disregarded and the evidence favorable to the nonmovant is accepted as true.

Rhone-Poulenc, 997 S.W.2d at 223 ; Harwell v. State Farm Mut. Auto. Ins. Co. , 896 S.W.2d 170,

173 (Tex. 1995). Evidence that favors the movant's position will not be considered unless it is

uncontroverted. Great Am. , 391 S.W.2d at 47 .

A defendant is entitled to summary judgment if the summary judgment evidence establishes,

as a matter of law, that at least one element of a plaintiff’s cause of action cannot be established.

Elliott-Williams Co. v. Diaz , 9 S.W.3d 801, 803 (Tex. 1999). The defendant as movant must

present summary judgment evidence that negates an element of the plaintiff’s claim. Once the

defendant produces sufficient evidence to establish the right to summary judgment, the burden

shifts to the plaintiff to come forward with competent controverting evidence raising a genuine

issue of material fact with regard to the element challenged by the defendant. Centeq Realty, Inc.

v. Siegler , 899 S.W.2d 195, 197 (Tex. 1995).

Z & J presented evidence that it leased only administrative office space at the American

facility; however Gray presented evidence that the layout tables where the valves were worked on

belonged to Z & J, and that he did not have an adequate work area to conduct the repair he was

attempting on the valve. Similarly, Z & J provided evidence that Gray worked only for American

and that Z & J exercised no control over the work undertaken by American employees; however

Gray presented evidence that employees for American wore uniforms bearing both American and

Z & J logos, and that Z & J’s president, James Adams, had personally phoned American

employees to schedule work. Gray testified by deposition that James Adams phoned him on a

Sunday and told him to come in early at 5:00 a.m. the following day to work on the valve in

question, knowing that Glenn Ramsey, Gray’s supervisor at American, had already instructed

Gray to arrive at 7:00 a.m. to do sheet rock installation on new American offices that day. Gray

testified that Glenn Ramsey had instructed him not to do any other job for any reason without his

permission. According to Gray, Adams told him that he needed to come in early to “hurry up and

get [the valve] apart before Glenn gets there” so that by 7:00 a.m. “you can be back up doing

sheet rock and Glenn can’t say anything.” Adams testified by affidavit that it was his

understanding that Gray was to meet two other employees at 6:00 a.m. to begin work on the valve.

One of those employees, Richard Kramer, overslept and did not arrive for work until

approximately 7:00 a.m.. By that time, the accident had already occurred, and Gray had already

been taken to the hospital.

B. Z & J’s Duty To Gray

The summary judgment evidence established that at the time of Gray’s injury, Z & J was the

general contractor for repair of the large industrial valve that ultimately injured Gray’s hand and

that Gray’s employer, American, was an independent contractor hired by Z & J to repair the

valve.

In response to all three issues presented by Gray on appeal, Z & J argues that it owed no legal

duty to Gray because Z & J was a general contractor with no control over the work in question

and Gray was an employee of American, an independent contractor.

A general contractor owes the same duty as a premises owner to an independent contractor’s

employee. Koch Refining Co. v. Chapa , 11 S.W.3d 153 , 155 n.1 (Tex. 1999) (citing Clayton W.

Williams Jr., Inc. v. Olivo , 952 S.W.2d 523, 527 (Tex. 1997)). Therefore, cases considering the

duties of premises owners and general contractors are used interchangeably. Id.

Generally, a premises owner does not have a duty to ensure that an independent contractor

safely performs his work. Redinger v. Living, Inc. 689 S.W.2d 415, 418 (Tex. 1985). In

Redinger , however, the Texas Supreme Court recognized a caveat to the general rule and adopted

the limited-duty exception set forth in the Restatement (Second) of Torts section 414: When the

premises owner retains some control over the independent contractor’s work, it must exercise that

control with reasonable care. Id. ; see also Restatement (Second) of Torts § 414 (1965).

In order for the Restatement’s exception to apply, the employer must have retained at least

some degree of control over the manner in which the work is done. Koch Refining Co. , 11

S.W.3d at 154 . It is not enough that he has merely a general right to order the work stopped or

resumed, to inspect its progress or to receive reports, to make suggestions or recommendations

which need not be necessarily followed, or to prescribe alterations and deviations. Id. Such a

general right is usually reserved to employers, but it does not mean that the contractor is

controlled as to his methods of work, or as to operative detail. Id. 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.

In its appellate brief, Z & J argues that the exception recognized by the Supreme Court in

Redinger is inapplicable because Redinger involved the premises owner’s duty to an independent

contractor, rather than, as here, a general contractor’s duty to an independent contractor. Z & J

cites Smith v. Henger , 148 Tex. 456 , 226 S.W.2d 425 (1950), and two intermediate level appellate

court decisions from the 1980’s as support for that proposition.

To the extent that any of those

decisions support Z & J’s proposition, we believe they were implicitly overruled by the Texas

Supreme Court’s subsequent decision in Koch Refining Co. , 11 S.W.3d at 155 n.1, where the

court specifically held that cases involving premises owners and independent contractors and those

involving general contractors and independent contractors are used interchangeably because the

same duty is owed in both situations. That means the rule announced in Redinger cannot be held

inapplicable in our case on the ground that the facts there involved a premises owner rather than

a general contractor.

C. Application

In our case, Z & J, through its president, James Adams, did more than exercise a general

right to order work on the valve to begin. Viewing the evidence in the light most favorable to

Gray, the summary judgment evidence showed that Z & J’s president, James Adams, personally

phoned Gray, a low level American employee, and directed him to arrive two hours before his

scheduled shift the next day and disassemble the valve, under circumstances in which it is

reasonable to infer that Adams knew that Gray’s supervisor had expected Gray to arrive at his

normal shift and had directed Gray not to perform any work other than the installation of sheet

rock without the supervisor’s permission. We hold this evidence was sufficient to establish, for

summary judgment purposes, that Z & J exercised more than a general right to tell American when

to begin work on the valve. We perceive there to be a significant difference between a general

contractor giving an independent contractor a general order to begin work, and the kind of specific

instructions Adams, as president of Z & J, gave Gray in the instant case. Gray’s supervisor,

Glenn Ramsey, testified by deposition that Adams should have obtained the approval of either

Ramsey or someone else at the company rather than personally ordering Gray to begin work and

that Adams had no authority to proceed in a contrary manner. Gray testified that Adams ordered

him to report to work two hours early and that Adams was aware he was circumventing

American’s chain of command--“hurry up and get [the valve] apart before Glenn [Ramsey] gets

there” so that by 7:00 a.m. “you can be back up doing sheet rock and Glenn can’t say anything.”

We therefore conclude that under the Restatement’s exception recognized by the Texas Supreme

Court in Redinger , Gray is entitled to proceed with his negligence cause of action against Z & J

because there is evidence Z & J’s president exercised direct control over the injured American

employee.

Issues one, two and three are sustained. The trial court’s summary judgment order is affirmed

to the extent that it disposes of Gray’s alternatively pled causes of action against Z & J, and

reversed to the extent that it disposes of Gray’s negligence cause of action. Gray’s negligence

cause of action is severed and remanded to the trial court for further proceedings consistent with

this opinion. See Ash v. Hack Branch Distrib. Co. , 54 S.W.3d 401, 419 (Tex. App.—Waco 2001,

pet. denied).

DAVID L. RICHARDS

Justice

Before Chief Justice Davis,

Justice Vance, and

Justice Richards (Sitting by Assignment)

Reversed and remanded

Opinion delivered and filed December 31, 2002

Do not publish

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