Daniel Lopez v. The Homebuilding Company, Inc., and Francis Edmon Waddle--Appeal from 270th District Court of Harris County

Opinion issued July 7, 2005

In The

Court of Appeals

For The

First District of Texas

NO. 01-04-00095-CV

DANIEL LOPEZ, Appellant //

V.

THE HOMEBUILDING COMPANY, INC. AND FRANCIS EDMON WADDLE, Appellees

On Appeal from the 270th District Court

Harris County, Texas

Trial Court Cause No. 2002-21568-A

MEMORANDUM OPINION

Appellant, Daniel Lopez, who sustained injuries from a fall from the second story of a house where he had been hired to perform stone masonry work, appeals from a final summary judgment rendered in favor of appellees, the Homebuilding Company, Inc., which was the general contractor for the construction of the house, and Francis Edmon Waddle, the president of the Homebuilding Company, Inc. (collectively Homebuilding). The judgment dismissed, with prejudice, Lopez s negligence and gross negligence claims against Homebuilding. // In moving for traditional summary judgment under rule 166a(c) of the Rules of Civil Procedure, Homebuilding contended that it was entitled to judgment as a matter of law because Lopez was an employee of an independent contractor, to whom Homebuilding owed no legal duty. In three issues, Lopez contends that the trial court erred by granting Homebuilding s motion for summary judgment because (1) the evidence raises a fact issue whether Homebuilding had the right to control the manner, methods, and details of Lopez s work, (2) Homebuilding never addressed Lopez s premises-defect theory of recovery in its motion for summary judgment, and (3) the deemed employer doctrine set forth in Etie v. Walsh & Albert Co., Ltd., 135 S.W.3d 764 (Tex. App. Houston [1st Dist.] 2004, pet. denied), should be extended to workers whose employers do not subscribe to workers compensation. We affirm.

Factual Background

In 2001, Daniel Leasure hired Homebuilding as the general contractor for the construction of a house in Montgomery, Texas. Homebuilding contracted with a subcontractor, Colin Magee, to provide stone masonry work on the house. Magee, in turn, contracted with Lopez to work as a stone mason there. On May 8, 2001, Lopez was grouting columns on the second floor balcony of the house, approximately 14 feet above the ground, when he fell from the ledge of the balcony and sustained serious physical injuries. Standards of Review

A party moving for a traditional summary judgment must establish that no material fact issue exists, and that it is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c); M.D. Anderson Hosp. & Tumor Inst. v. Willrich, 28 S.W.3d 22, 23 (Tex. 2000). In determining whether a disputed, material fact issue precludes summary judgment, the court must take evidence favorable to the nonmovant as true and indulge every reasonable inference in favor of the nonmovant. Nixon v. Mr. Prop. Mgmt. Co., Inc., 690 S.W.2d 546, 548-49 (Tex. 1985). If there is no genuine issue of material fact, judgment should issue as a matter of law. Haase v. Glazner, 62 S.W.3d 795, 797 (Tex. 2001). Because the rendition of summary judgment is a question of law, we review the trial court s decision de novo. Natividad v. Alexsis, Inc., 875 S.W.2d 695, 699 (Tex. 1994).

When, as here, the trial court s summary judgment order does not specify the ground or grounds on which summary judgment was rendered, we will affirm if any of the grounds stated in the motion is meritorious. See Cincinnati Life Ins. Co. v. Cates, 927 S.W.2d 623, 626 (Tex. 1996).

Premises Liability

In his first two issues, Lopez contends that (1) the evidence raises a fact issue whether Homebuilding, as general contractor, had the right to control the manner, methods, and details of Lopez s work, and (2) Homebuilding never addressed Lopez s premises-defect theory of recovery. We will address these issues together.

A. Whether Homebuilding Owed a Duty to Lopez

In its motion for summary judgment, Homebuilding asserted that Lopez s negligence claims failed as a matter of law because, under settled common law, // it owed no duty to Lopez. In a negligence action, a plaintiff must show that (1) the defendant owed a duty to the plaintiff, (2) the defendant breached that duty, and (3) the breach proximately caused the plaintiff's injuries. El Chico Corp. v. Poole, 732 S.W.2d 306, 311 (Tex. 1987). The existence of a duty owed is a threshold consideration, Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995), and is a question of law for the court. Tex. Home Mgmt., Inc. v. Peavy, 89 S.W.3d 30, 33 (Tex. 2002).

The principles that govern a general contractor s duties to a subcontractor s employees determine whether Homebuilding, in its role as general contractor, owed a duty to Lopez. See Dow Chem. Co. v. Bright, 89 S.W.3d 602, 605 (Tex. 2002). Homebuilding, the general contractor, owed the same duty to Lopez, an independent contractor s employee, that a premises owner owes to an independent contractor s employee. See id. at 605-06; Koch Ref. Co. v. Chapa, 11 S.W.3d 153, 155 n.1 (Tex. 1999).

1. Premises Liability

Homebuilding moved for summary judgment on the grounds that Homebuilding neither retained the right to control nor actually exercised control over the manner, methods, means, or details in which Lopez performed his work. Homebuilding also asserted, in its reply to Lopez s response to Homebuilding s summary judgment motion, that the open balcony was an open and obvious condition on the premises.

A general contractor in control of the premises, here Homebuilding, can potentially incur liability for two categories of premises-liability cases: (1) a premise-defect case, in which a defect existed on the premises when the independent contractor entered, or was created through some means unrelated to the activity of the injured employee or his employer; and (2) a negligent activity case, in which the defect arises as a contemporaneous result of someone s negligence or through the independent contractor s work activity. See Bright, 89 S.W.3d at 606; Coastal Marine Serv., Inc. v. Lawrence, 988 S.W.2d 223, 225 (Tex. 1999); Williams v. Olivo, 952 S.W.2d 523, 527 (Tex. 1997). Whether a particular case involves a premises defect or a negligent activity is a question of law. See Bright, 89 S.W.3d at 606-07 (comparing and contrasting both types of cases in summary-judgment context); Lawrence, 988 S.W.2d at 225 (same; further citing supreme court s legal conclusions categorizing case as one type or another in analogous, directed-verdict context); Williams, 952 S.W.2d at 527 (rejecting negligent activity category and categorizing case as involving premises defect ).

In premises defect cases, the premises owner or general contractor has a duty to inspect the premises and warn its independent contractor invitees of dangerous conditions that are not open and obvious and that the owner knows or should know exist. Lawrence, 988 S.W.2d at 225. In this category of cases, the danger does not arise through the work activity of the independent contractor. Id.; see Williams, 952 S.W.2d at 526-27 (holding that drill-pipe thread-protectors left on ground by work crew during previous shift constituted premises defect).

Here, the open balcony was a condition of the premises existing before Lopez entered the premises. See Lawrence, 988 S.W.2d at 225. The balcony s condition, however, was not a concealed hazard, but was open and obvious. The record indicates that Lopez had been working on the same balcony for two days before he fell, Lopez was aware of the balcony s ledge and the lack of a railing, and there is no evidence that the balcony s condition was in any way dangerous in itself. The record shows, therefore, that the balcony posed no danger until Lopez fell from its edge. See id. Only concealed hazards dangerous in their own right and independent of action by another that are in existence when the independent contractor enters the premises fall into the subcategory of premises defects. Id. Because Lopez was familiar with the conditions of the balcony and had worked on the balcony for two days before he fell, the evidence demonstrates that the balcony was not a concealed hazard. We therefore hold that Lopez failed to raise a fact issue regarding a premises-defect claim.

2. Right of Control

Lopez further contends that Homebuilding failed to adequately supervise his work. Specifically, he contends that Homebuilding failed to ensure that he performed his work in a safe manner, specifically, by not requiring adequate fall protection measures. It is undisputed that no contractual agreement explicitly assigned a right of control to Homebuilding. Lopez contends that Homebuilding owed him a duty because Homebuilding had both a right to control and actually exercised control over the work done by Lopez. See Bright, 89 S.W.3d at 607; Lawrence, 988 S.W.2d at 226; Mendez, 967 S.W.2d at 356.

An owner, occupier, or general contractor, here Homebuilding, has no general duty to see that its independent contractors perform their work activity in a safe manner. See Bright, 89 S.W.3d at 606; Lawrence, 988 S.W.2d at 225; Mendez, 967 S.W.2d at 356. But, when a contractor actually exercises a right of supervisory control over the employees of an independent subcontractor, that exercise of control may trigger liability for injuries to those employees. Bright, 89 S.W.3d at 607; Lawrence, 988 S.W.2d at 225-26; Mendez, 967 S.W.2d at 356. //

To raise an issue of fact concerning Homebuilding s actual exercise of control over the manner in which Lopez did his work, Lopez had to show that Homebuilding had more than a right to stop the work or order it resumed, to inspect or receive progress reports, or to make suggestions, recommendations, or revisions that need not necessarily be followed; control must rise to a level that would have precluded Magee s, and thus Lopez s, complete freedom to do the work in his own way. See Mendez, 967 S.W.2d at 356 (citing Restatement (Second) of Torts 414 cmt. c (1965)). Liability for injuries to the employees of a subcontractor is commensurate with the control retained over the operative details of the subcontractor s work. See Lee Lewis Constr., Inc. v. Harrison, 70 S.W.3d 778, 783 (Tex. 2001); Mendez, 967 S.W.2d at 355-56.

To trigger liability, supervisory control must (1) relate to the activity that caused the injury, (2) involve either the power to direct that the work be done in a certain manner or forbid its being done in an unsafe manner, Lawrence, 988 S.W.2d at 226, and (3) relate to the injury that the alleged negligence caused. Bright, 89 S.W.3d at 607; see Mendez, 967 S.W.2d at 356 (noting supreme court s having adopted section 414 of the Restatement (Second) of Torts and holding that same requires nexus between duty of care and right of control). Essentially, the evidence must give rise to an inference that the supervising entity specifically approved a dangerous act. See Lee Lewis Constr., Inc., 70 S.W.3d at 783-84 (general contractor s supervisor approved lanyard fall-protection system and use of bosun s chair without independent lifeline and therefore retained right to control deceased worker s activity); see also Bright, 89 S.W.3d at 609 ( [W]e have never concluded that a general contractor actually exercised control of a premises [when] there was no prior knowledge of a dangerous condition and no specific approval of any dangerous act. ) (emphasis added).

3. Whether Lopez Raised a Fact Issue on Right of Control by Homebuilding

Homebuilding moved for summary judgment on the grounds that it owed no duty to Lopez as a matter of law because Magee, not Homebuilding, retained the right to control and actually exercised control over the manner, method, means, or details of Lopez s work. Homebuilding supported its motion with several evidentiary exhibits. These include Lopez s deposition testimony, which established that (1) Lopez had never spoken with Waddle, (2) Lopez could not understand conversations between Waddle and Magee because he does not speak English, (3) Magee provided Lopez with instructions on how to perform his work, (4) Magee decided when Lopez would start and stop work, (5) Lopez never showed up at any project without Magee s instructing him what time to be there, (6) Magee always told Lopez the specific tasks he was to perform, (7) if Lopez had seen something unsafe he would have reported it to Magee, (8) Magee is the person who hired Lopez, (9) Magee had the authority to fire Lopez, (10) Magee provided Lopez with the tools to perform his work, (11) Lopez or Magee would have erected any scaffolding, had it been required, (12) Lopez expected that Magee would have provided safety equipment, had it been required, (13) Lopez had been working on the balcony for two days before he fell, (14) Magee is the only person who directed Lopez to perform his work on the balcony, and (15) during the two days that Lopez worked on the balcony before he fell, he did not complain to anyone regarding safety.

Homebuilding also supported its motion with the deposition testimony of Magee, which established that (1) Magee would provide Lopez with the required tools, (2) Magee took Lopez to the balcony and directed him to the work he was to perform, (3) Magee never discussed the sequencing of the balcony with Homebuilding, (4) although Magee would decide whether the columns or the balustrade would be erected first, columns are always erected before the balustrade, (5) Magee did not recall any specific instructions from Homebuilding concerning the work to be done on the balcony, (6) scaffolding at the job site was erected by Lopez and Magee, (7) Lopez and Magee erected the columns that Lopez was grouting when he fell, (8) Lopez was with Magee when Magee erected the columns on the balcony, and (9) it would have been necessary to remove any safety cable in order for Lopez to perform his work.

Based on this evidentiary showing, Homebuilding established that it did not actually exercise control over the details of Lopez s work to the extent required to trigger liability under the Bright, Lawrence, and Mendez cases and therefore established that it was entitled to prevail as a matter of law on Lopez s claims that Homebuilding was negligent in its role as general contractor of the worksite premises. Accordingly, the burden shifted to Lopez to raise a fact issue to defeat that showing. See City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979); Marchal v. Webb, 859 S.W.2d 408, 412 (Tex. App. Houston [1st Dist.] 1993, writ denied).

In response to the contentions in Homebuilding s motion for summary judgment on the issue of control, Lopez offered summary-judgment evidence of the following: (1) Homebuilding placed a cable around the balcony after Lopez s fall, (2) Homebuilding had the responsibility and a policy of securing the balcony area by locking the door which accessed the balcony in order to prevent visitors from entering the area, (3) Homebuilding managed the sequencing of all projects at the residence, (4) Homebuilding directed framers to construct temporary rails on the stairwell as a fall protection measure, (5) Homebuilding had the right to require subcontractors to use fall protection on the second floor balcony, and (6) Homebuilding was aware that Lopez s activity on the balcony was done without fall protection.

This evidence, however, is insufficient to raise a fact issue on Homebuilding s actual exercise of control over the details of Lopez s work because the evidence fails to give rise to any inference that Lopez was not free to do the work in his own way. See Mendez, 967 S.W.2d at 356. Although Lopez contends that Homebuilding exercised control by installing a safety cable around the balcony after Lopez s fall, by constructing temporary rails on the stairway, and by having a policy of locking the door to the balcony to control access to the balcony, these acts are insufficient to subject Homebuilding to liability. As the supreme court has stated, merely 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. Bright, 89 S.W.3d at 607 (quoting Koch, 11 S.W.3d at 155).

Furthermore, if a premises owner exercises control by requiring a subcontractor to comply with its safety regulations, the premises owner owes the subcontractor s employees a narrow duty of care to ensure that the owner s safety requirements and procedures do not unreasonably increase the probability and severity of injury. Bright, 89 S.W.3d at 607. Under the record before us, there is no evidence that the probability and severity of injury to subcontractors increased due to Homebuilding s putting up a safety cable around the balcony after Lopez s fall, temporary rails on the stairway, or the door-locking policy, and Lopez has not asserted that the probability and severity of injury to subcontractors increased based on any of these. See id. //

Lopez further contends that a fact issue exists whether Homebuilding exercised control because Homebuilding admitted that it retained the right to require subcontractors to use fall protection on the second floor balcony and was aware that the balcony had no railing. Lopez relies on Lee Lewis Constr., Inc. In contrast to the record here, the record in that case showed that the general contractor s superintendent personally witnessed and approved the specific fall-protection system used by the subcontractor, and that the general contractor approved the lanyard system and knew of and did not object to the subcontractor employee s using a bosun s chair without an independent lifeline. See Lee Lewis Constr., Inc., 70 S.W.3d at 784. Here, no evidence shows that Homebuilding specifically approved the safety methods used by Magee and Lopez while working on the balcony. See Bright, 89 S.W.3d at 609 (stating, [W]e have never concluded that a general contractor actually exercised control of a premises [when] there was no prior knowledge of a dangerous condition and no specific approval of any dangerous act. ) (emphasis added).

Lastly, Lopez contends that Homebuilding scheduled other subcontractors to work simultaneously with Lopez in the area beneath him and thus prevented scaffolding from being used to prevent Lopez s fall. Lopez argues that he was not free to work in a safe manner because scaffolding available at the job site could not be used because it would have conflicted with Homebuilding s sequencing of projects. As stated above, however, the summary judgment record shows that Magee was solely responsible for controlling Lopez s work. There is no evidence in the record that Homebuilding was involved in any manner with controlling the timing and sequence of Lopez s work and deciding which of Magee s employees should perform what task and at what point in time. See id.

Here, as in Bright, Lawrence, and Mendez, there was no fact issue raised to suggest that Homebuilding specifically approved a dangerous act. See Bright, 89 S.W.3d at 609. Because Lopez did not raise an issue of fact sufficient to show a causal nexus between his injuries and any supervisory control either retained or actually exercised by Homebuilding over the operative details of Lopez s work, Lopez failed to show that Homebuilding owed him a duty of care under the common law. See Van Horn v. Chambers, 970 S.W.2d 542, 544 (Tex. 1998) (noting that absence of recognized legal duty ends inquiry into negligence liability). Because the summary judgment record established that Homebuilding did not owe Lopez a duty of care based on Homebuilding s status as general contractor under the common-law theories asserted by Lopez, we conclude that the trial court properly rendered summary judgment in favor of Homebuilding.

We overrule Lopez s first and second issues.

Etie v. Walsh & Albert Co., Ltd.

In his third issue, Lopez contends that the deemed employer doctrine set forth in Etie v. Walsh & Albert Co., Ltd. should be extended to workers whose employers do not subscribe to workers compensation. See Etie v. Walsh & Albert Co., Ltd., 135 S.W.3d 764 (Tex. App. Houston [1st Dist.] 2004, pet. denied). Lopez raises this argument for the first time on appeal. Issues that a nonmovant contends avoid the movant s entitlement to summary judgment must be expressly presented by written motion or by other written response to the trial court. Tex. R. Civ. P. 166a(c) (providing that issues not expressly presented to the trial court may not serve as grounds for reversal of summary judgment on appeal); Clear Creek, 589 S.W.2d at 675. Because Lopez did not raise the argument below, he has waived this issue for appellate review.

We overrule Lopez s third issue.

Conclusion

We affirm the judgment of the trial court.

Elsa Alcala

Justice

Panel consists of Justices Taft, Alcala, and Higley.