Opinion

11th Court of Appeals

Eastland, Texas

Opinion

Kim Howarton, Individually and as Next Friend

for Patricia Lynn Howarton and Harvey Lynn

Howarton, and Marion Lynn Howarton, Sr.

Appellants

Vs. No. 11-02-00280-CV – Appeal from Brown County

Minnesota Mining and Manufacturing, Inc.

Appellee

Marion Lynn Howarton, Jr. (Howarton) was electrocuted while working for Three Rivers

Electric Company, an independent contractor retained by Minnesota Mining and Manufacturing, Inc.

(3M). After appellants

settled other claims involving Three Rivers, their wrongful death suit against

3M continued. 3M filed a motion requesting summary judgment on traditional grounds as well as

no-evidence grounds. The trial court entered a summary judgment in favor of 3M that appellants take

nothing in their suit against 3M. The trial court stated in its order that it had heard 3M’s “Motion for

Summary Judgment against [appellants] on the ground that there is no genuine issue of material fact

in this action.”

Appellants urge four issues on appeal. In “Issue 1,” appellants argue that the trial court erred

when it granted 3M’s motion for summary judgment. In “Issue 1, Subpoint A; Issue 1, Subpoint B;

and Issue 1, Subpoint C,” appellants assert claims directed toward 3M’s alleged failure to negate the

existence of various duties that 3M owed to Howarton. Because we find that 3M negated the existence

of any legal duty that it owed to Howarton, we affirm.

3M based its motion for summary judgment on traditional grounds as well as no-evidence

grounds. TEX.R.CIV.P. 166a(c) and TEX.R.CIV.P. 166a(i). Because we hold that the trial court did

not err when it granted a traditional motion for summary judgment, we will not discuss 3M’s no-evidence motion.

If the movant in a traditional motion for summary judgment establishes that no genuine issue

of material fact exists and that the party is entitled to judgment as a matter of law, then the trial court

must grant the motion. Lear Siegler, Inc. v. Perez , 819 S.W.2d 470, 471 (Tex.1991). The trial court

must also grant a motion for a traditional summary judgment if a defendant conclusively negates at

least one element of the plaintiff’s claim. American Tobacco Company, Inc. v. Grinnell , 951 S.W.2d

420, 425 (Tex.1997). Upon review of a traditional motion for summary judgment, we take as true

evidence favorable to the non-movant, and we indulge every reasonable inference and resolve any

doubts in favor of the non-movant. American Tobacco Company, Inc. v. Grinnell , supra; Kelly v. LIN

Television of Texas, L.P., 27 S.W.3d 564 (Tex.App. – Eastland 2000, pet’n den’d).

Reviewed in the light most favorable to appellants, the summary judgment evidence shows that

3M entered into a standing contract with Three Rivers whereby it was agreed that Three Rivers would

perform electrical work as needed from time to time at 3M’s Brownwood plant. Under the terms of

the contract, if 3M wanted Three Rivers to perform electrical work at the plant, 3M issued a request

for that work by signing an “activating letter.” Three Rivers could either accept or reject the work.

On January 5, 1995, 3M issued a general activating letter to Three Rivers. The activating letter

covered the period of time from January 1, 1995, to December 31, 1995. Specific requests under the

terms of the activating letter were made from time to time by 3M through shop work orders.

Howarton worked for Three Rivers as a journeyman electrician. On August 21, 1995, he was

working on a ballast retrofit project at the 3M plant. The project involved replacing a ballast on a 277-volt circuit. The circuit was energized, and Howarton died when he came into contact with the

energized circuit. Appellants seek wrongful death damages against 3M. 3M takes the position that,

under the circumstances of this case, it owed no legal duty to Howarton.

An owner of premises may be liable for negligence in failing to keep the premises safe in

connection with premise defects or in connection with activities conducted on the premises. Koch

Refining Company v. Chapa, 11 S.W.3d 153, 157 (Tex.1999). Appellants have not alleged a premise

defect; this is a negligent activity case.

Negligence consists of three essential elements: (1) a legal duty owed by one person to another;

(2) a breach of that duty; and (3) damages proximately resulting from the breach. Duty is the threshold

inquiry. El Chico Corporation v. Poole , 732 S.W.2d 306, 311 (Tex.1987).

The general rule is that an employer of an independent contractor does not have a duty to see

to it that the independent contractor performs its work in a safe manner. Abalos v. Oil Development

Company of Texas , 544 S.W.2d 627 (Tex.1976). However, if the employer retains some control over

the manner in which the work is done, then a duty may arise as a result of that control. Hoechst-Celanese Corporation v. Mendez , 967 S.W.2d 354 (Tex.1998). If there is no control over the work

of the independent contractor, then a legal duty does not arise. Elliott-Williams Co., Inc. v. Diaz , 9

S.W.3d 801 (Tex.1999).

Control may be either actual or contractual. Elliott-Williams Co., Inc. v. Diaz, supra. A duty

may arise by virtue of a contract, even in the absence of actual control; and the employer of the

independent contractor may be liable unless the employer exercises reasonable care in supervising the

independent contractor’s activity. Elliott-Williams Co., Inc. v. Diaz, supra ; Redinger v. Living, Inc. ,

689 S.W.2d 415, 418 (Tex.1985).

Texas has adopted the limited-duty rule set forth in RESTATEMENT (SECOND) OF TORTS

§ 414 (1965) that, if a premises owner retains some control over the work of the independent

contractor, it must exercise that control with reasonable care. Section 414, cmt. c. Simply retaining

the 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 Company v. Chapa,

supra. Section 414, cmt. c provides:

In order for the rule stated in this Section to apply, the employer must have

retained at least some degree of control over the manner in which the work is done.

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 necessarily be followed, or to prescribe alterations

and deviations. 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. 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.

Appellants have not argued that 3M exercised actual control. Therefore, we will determine

whether 3M contractually retained the type of control that would give rise to a legal duty owed to

employees of Three Rivers. Whether that right of control exists is generally a question of law. Dow

Chemical Company v. Bright, 89 S.W.3d 602 , 606 (Tex.2002).

In Elliott-Williams Co., Inc. v. Diaz, supra at 804, the court noted:

For a general contractor to be liable for its independent contractor’s acts, it

must have the right to control the means, methods, or details of the independent

contractor’s work. Further, the control must relate to the injury the negligence

causes, and the contract must grant the contractor at least the power to direct the

order in which work is to be done. (Citations omitted)

In their brief to this court, appellants refer to various provisions of the standing contract and

3M’s safety provisions as evidence that 3M contractually retained control over the work and,

therefore, owed a legal duty to employees of Three Rivers to see to it that the work was performed

in a safe manner. We will first examine the provisions of the standing contract relied upon by

appellants, and then we will examine 3M’s safety procedures upon which appellants rely.

Article 20.1 of the standing contract provided that 3M may unilaterally require Three Rivers

to perform extra work or change work without invalidating the standing contract or without changing

the provisions of the standing contract except for terms regarding price and completion dates. This

is not the type of contractual provision by which 3M retains control over the means, methods, or

details of Three Rivers’s work. This clause of the contract created no legal duty as to 3M. See

Elliott-Williams Co., Inc. v. Diaz, supra at 804.

Article 30 of the standing contract allowed 3M access to inspect the work. The article also

required that Three Rivers provide safe and proper access for any such inspection. The general right

to inspect did not give rise to the duty necessary to place liability upon 3M. Hoechst-Celanese

Corporation v. Mendez, supra at 356.

Article 33.5 of the standing contract allowed 3M, if it deemed the work or any part of the work

site unsafe, to request that Three Rivers stop performance of the work and take corrective measures

satisfactory to 3M. The article also provided that 3M’s failure to notice or to stop unsafe practices

did not relieve Three Rivers of its duties under this provision. While a duty may arise if an employer

retains the power to forbid employees of its independent contractor from performing work in a

dangerous manner, that duty does not arise unless the employer retains the right to control the

independent contractor as to the methods or operative details of the work. Section 414, cmt. c;

Hoechst-Celanese Corporation v. Mendez, supra at 356. The right retained by the employer must be

such that the independent contractor is not entirely free to perform the work in its own way. Section

414, cmt. c ; Koch Refining Company v. Chapa, supra at 155. 3M did not retain such rights of control

under this article of the standing contract sufficient to give rise to any duty to employees of Three

Rivers; it did not retain the right to control the means, methods, or operative details of the work.

In Article 38.2 of the standing contract, 3M reserved:

[T]he right to determine the sequence in which the Work of [Three Rivers] and its

subcontractors shall be performed. In the exercise of said right, [3M] may direct

[Three Rivers] or its subcontractors, if any, to adapt its activities and the sequence

of the Work, and [Three Rivers] and its subcontractors shall do so accordingly, to

accord with the operations conducted at the Worksite by Others. In the exercise of

said right, if [3M] deems such necessary, [Three Rivers] shall cease the Work at any

particular point(s) and shall perform such directed portions of the Work as may be

required to enable others to proceed with their work properly.

3M merely retained the right to schedule the work it wanted Three Rivers to perform. It did

not retain the right to control the means, methods, and operative details of the work. 3M did not

retain sufficient control under Article 38.2 to give rise to any duty of care owed to Three Rivers’s

employees under the circumstances of this case.

Furthermore, Article 12.1 of the contract contains language whereby the parties agreed that

Three Rivers was an independent contractor; that its employees were subject solely to its control,

supervision, and authority; and that, “under no circumstances or for any purposes, [were] they to be

construed or considered to be [3M’s] employees.” Additionally, the parties agreed in Article 33.1

of the contract that Three Rivers was solely responsible for the safety and protection of persons at

the work site, including compliance with safety procedures and requirements. See Dow Chemical

Company v. Bright, supra at 606-07; Koch Refining Company v. Chapa, supra at 157.

Appellants rely upon Redinger v. Living, Inc., supra. Living, Inc. was the general contractor

on a building project. David Yargo, Living, Inc.’s superintendent, was on the site preparing for a

concrete pour. Bobby Baird, a dirt subcontractor, was also working on the site, as was Louis

Redinger, who was an employee of a plumbing subcontractor. When the concrete trucks arrived,

Yargo noticed that piles of dirt left by Baird were blocking the concrete trucks. Yargo directed Baird

to move the dirt. Redinger was injured when the box blade on Baird’s tractor hit Redinger, causing

injuries to his left index finger. Redinger is distinguishable. There, unlike here, the general

contractor’s employee specifically directed the manner and means of the work to be performed. The

court there pointed out that “Yargo exercised supervisory control by coordinating the work

performed by two subcontractors.” The court also noted that there was evidence that Living, Inc.

was negligent when it allowed Baird to operate the tractor in Redinger’s presence and when it failed

to warn him. The duty that the court imposed upon the general contractor was a duty to exercise its

supervisory control in a reasonable manner. Redinger v. Living, Inc., supra at 418; see also Lee

Lewis Construction, Inc. v. Harrison, 70 S.W.3d 778 (Tex.2001)(where general contractor exercised

actual control over fall-protection equipment and owed a duty of care toward employee of

independent contractor injured when fall-protection equipment failed).

Section 1.2(A) of 3M’s safety guidelines provided the purpose, scope, and philosophy of the

guidelines. Three Rivers was required to follow and to enforce the guidelines.

Section 1.5(A) addressed work permits. 3M required that daily work permits be issued

before Three Rivers could enter the plant. Further, in accordance with Section 1.5(B)(9), under

certain circumstances, additional work permits could be required for certain activities such as

electrical work with an energized system. Section 1.5(C) provided for a change in conditions of the

work. If the conditions of the work were to change from that noted on the work permit, the “WORK

SHALL STOP IMMEDIATELY” while the new situation was studied and new work permits were

issued.

According to the terms of Section 1.8(A), Three Rivers was required to be in compliance with

“Lockout/Tagout” before starting work that involved cutting, splicing, or tapping existing cables.

Upon request from Three Rivers, 3M was to tag and identify all cables present in the area. It was the

responsibility of Three Rivers to make certain that the circuit upon which its employees were to work

was de-energized and the “ source locked out .” (Emphasis in original) Three Rivers was to use its

own lock on the disconnect device and was also to review a one-line diagram to make certain that

there were no alternate power sources. In the event that it was necessary to work on energized electric

lines, only qualified Three Rivers personnel, using appropriate personal protection equipment, were

to do the work. This section also required that at least two people were to be assigned to work on

energized lines. The summary judgment evidence shows that those procedures were not being

followed at the time Howarton was killed.

In Koch Refining, the injured worker claimed that Koch Refining owed him a duty of care

because Koch’s safety personnel had instructed the independent contractor’s employees on safety

matters in the past. The court rejected the argument because:

[R]equiring an independent contractor to “observe and promote compliance with

federal laws, general safety guidelines, and other standard safety precautions [does]

not impose an unqualified duty of care on [a premises owner] to ensure that [an

independent contractor’s employees do] nothing unsafe.” Rather, Koch at most owed

[the independent contractor’s] employees “a duty that any safety requirements and

procedures it promulgated did not unreasonably increase, rather than decrease, the

probability and severity of injury.”

Koch Refining Company v. Chapa, supra at 156 (citing Hoechst-Celanese Corporation v. Mendez,

supra at 357-58).

The fact that 3M required Three Rivers to comply with 3M’s safety regulations is not evidence

that 3M exercised the degree of control necessary to create a duty of care. Further, it is not evidence

that 3M controlled or retained the right to control the means, methods, or operative details of the

work. Dow Chemical Company v. Bright, supra at 606-07; Koch Refining Company v. Chapa, supra .

3M owed Three Rivers’s employees the narrow duty that 3M’s safety requirements did not

“unreasonably increase, rather than decrease, the probability and severity of injury.” Hoechst-Celanese Corporation v. Mendez, supra at 358. Appellants make no claim that the safety

requirements increased the probability or severity of injury.

Appellants argue that working on energized electrical lines is an inherently dangerous activity

and that 3M failed to negate the existence of a non-delegable duty that arose as a result of the

inherently dangerous activity. 3M points out that appellants have waived this argument because they

are making it for the first time on appeal. We agree that appellants did not present this issue to the

trial court. In summary judgment matters, non-movants must expressly present to the trial court all

issues that would defeat the movant’s right to a summary judgment. If the non-movant fails to do so,

the issues cannot later be assigned as error on appeal. City of Houston v. Clear Creek Basin

Authority , 589 S.W.2d 671, 679 (Tex.1979).

Because 3M negated the duty element of appellants’ cause of action, the trial court did not err

when it granted 3M’s motion for summary judgment. Appellants’ “Issue 1; Issue 1, Subpoint A; Issue

1, Subpoint B; and Issue 1, Subpoint C” are overruled.

The judgment of the trial court is affirmed.

JIM R. WRIGHT

JUSTICE

April 8, 2004

Panel consists of: Arnot, C.J., and

Wright, J., and McCall, J.