holding testimony that employee of general contractor had "the responsibility to routinely inspect . . . to see to it that the subcontractors and their employees properly utilized fall protection equipment" constituted more than scintilla of evidence that general contractor retained right to control fall protection system on jobsite
How later courts described this case
- holding testimony that employee of general contractor had "the responsibility to routinely inspect . . . to see to it that the subcontractors and their employees properly utilized fall protection equipment" constituted more than scintilla of evidence that general contractor retained right to control fall protection system on jobsite
- stating that “‘extreme risk’[] means not a remote possibility of injury or even a high probability of minor harm, but rather the likelihood of serious injury to the plaintiff” and that “‘actual awareness’[] means that the defendant knew about the peril, but its acts or omissions demonstrated that it did not care”
- holding that one who entrusts work to an independent contractor, but who retains control of any part of the work, is subject to liability for physical harm to others to whom he owes a duty to exercise reasonable care, which is caused by his failure to exercise control with reasonable care
- holding that the subjective element of gross negligence was satisfied where a “job superintendent” saw employees working on the ninth floor of a building that was under construction with an “ineffective fall-protection system” and “did nothing to remedy it”
Written by the judges who cited it.
The opinion
Chief Justice PHILLIPS
joined by Justice RODRIGUEZ concurring.
I join in the unanimous judgment of the Court and in Justice Hankinson’s opinion explaining that judgment. Her writing accurately articulates and applies current Texas common law. But I do so with substantial misgivings about our approach in suits against general contractors for injuries to a subcontractor’s employees. Our focus on the degree of the general contractor’s “retained control” has failed to provide either consistent or equitable results, and I believe that a thorough reconsideration of this area is in order.
Justice Hecht has authored a thoughtful and scholarly concurrence, and his views merit the close attention of the bench and bar. But his views clearly constitute a change in Texas law, while neither party in this case argues anything other than established precedent to support its respective position. Moreover, Justice Hecht’s position seems to have been adopted by only a small minority of American jurisdictions. 1 I am especially reluctant to abandon settled law which is consistent with the majority American view without thorough briefing from the parties and other interested persons.
. Most states that have considered this issue have decided or assumed that "others” in section 414 includes a subcontractor’s employees. See Everette v. Alyeska Pipeline Serv. Co., 614 P.2d 1341, 1347 (Alaska 1980); Lewis v. N.J. Riebe Enters., Inc., 170 Ariz. 384 , 825 P.2d 5, 9 (1992); Elkins v. Arkla, Inc., 312 Ark. 280 , 849 S.W.2d 489, 490 (1993); Ahl v. Stone Southwest, 666 So.2d 922, 924-25 (Fla.Dist.Ct.App.1995); Lyon v. Morphew, 424 Mass. 828 , 678 N.E.2d 1306 , 1310 (1997); Plummer v. Bechtel Constr. Co., 440 Mich. 646 , 489 N.W.2d 66 (1992); Beckman v. Butte-Silver Bow County, 299 Mont. 389 , 1 P.3d 348, 355 (2000); Parrish v. Omaha Pub. Power Dist., 242 Neb. 783 , 496 N.W.2d 902, 912 (1993); Valdez v. Cillessen & Son, Inc., 105 N.M. 575 , 734 P.2d 1258, 1261 (1987); Rogstad v. Dakota Gasification Co., 623 N.W.2d 382, 386, 389 (N.D.2001); Byrd v. Merwin, 456 Pa. 516 , 317 A.2d 280, 282 (1974); Ashby v. Northwestern Pub. Serv. Co., 490 N.W.2d 286, 290 (S.D.1992); Thompson v. Jess, 979 P.2d 322, 326 (Utah 1999); Kelley v. Howard S. Wright Constr. Co., 90 Wash.2d 323 , 582 P.2d 500, 505 (1978); Summers v. Crown Constr. Co., 453 F.2d 998, 1000 (4th Cir.1972) (applying West Virginia law).