Opinion issued January 17, 2013




                                     In The

                              Court of Appeals
                                    For The

                          First District of Texas
                           ————————————
                              NO. 01-12-00072-CV
                           ———————————
          BILL JOHNSON AND MELANIE JOHNSON, Appellants
                                       V.
            BP PRODUCTS NORTH AMERICA, INC., Appellee



                    On Appeal from the 10th District Court
                          Galveston County, Texas
                        Trial Court Case 08-CV-0188


                         MEMORANDUM OPINION

      Appellants, Bill Johnson and Melanie Johnson, challenge the trial court’s

rendition of summary judgment in favor of appellee, BP Products North America,

Inc. (“BP”), in their suit against BP for negligence. In four issues, the Johnsons

contend that the trial court erred in granting BP summary judgment.
      We affirm.

                                   Background

      In their original petition, the Johnsons alleged that Bill, who was an

employee of Starcon International, Inc. (“Starcon”), an independent contractor,

sustained heat-related injuries while working at a BP refinery in Texas City when

BP failed to protect Bill from heat illness. Specifically, the Johnsons alleged that

BP violated its own Health, Safety & Environment (“HSE”) policies and

procedures by “not postponing the work for a cooler time of the day,” “not having

the proper [safety] equipment,” and not training its supervisors to recognize heat

illness. The Johnsons complained that, on the day of his injuries, Bill had notified

BP supervisor Bill Cooksley that he “did not feel well,” Cooksley “failed to

recognize the signs and symptoms” of “heat exhaustion,” Cooksley failed to

summon emergency assistance, and Bill subsequently suffered from a “heat stroke”

that was followed by a “stroke.” The Johnsons sought damages for, among other

things, pain, mental anguish, medical expenses, and lost earnings.1

      In its answer, BP generally denied the Johnsons’ allegations.        BP then

moved for summary judgment, contending that the summary-judgment evidence

established that Cooksley did not supervise or direct Bill; Bill was a Starcon

1
      The Johnsons also sued Cooksley individually. The trial court granted summary
      judgment in favor of Cooksley, and the Johnsons do not challenge that judgment
      in this appeal. BP represents that the Johnsons’ claims against Cooksley were
      severed.
                                         2
employee who reported to Carl Beach, an employee of another independent

contractor, “Fluor”; Bill did not approach Cooksley about needing to “cool down”;

and Cooksley did not communicate with emergency medical personnel about Bill’s

medical condition. BP asserted that the heat-related working conditions at its

facility were “open and obvious” and it was Bill’s employer, Starcon, which owed

him a duty to “monitor” for heat exhaustion and warn of heat-related working

conditions.   BP also contended that no evidence supported the Johnsons’

negligence claim on the elements of duty, breach, or proximate cause.

      In their response to BP’s motion, the Johnsons asserted that the summary-

judgment evidence established that BP did not “exercise” any of its heat-related

policies, Cooksley and Beach “failed to enforce BP’s heat preventative policies,”

Cooksley and BP “failed to recognize [Bill’s] symptoms of heat illness,” BP had

the “right of supervisory control as to heat prevention,” BP retained “a contractual

right of control” and “exercised actual control” over the manner in which Bill

performed his work, BP “failed to abide by [its] safety and health rules,” BP

“retained the right to control heat illness and heat stress prevention,” Cooksley and

BP “would have been aware” of the BP heat-related policies that “were not being

enforced,” BP “failed to ensure that proper heat protection policies were used,” and

BP “failed to ensure that cooling equipment was present.”




                                         3
      In its reply to the Johnsons’ response, BP argued that because the Johnsons

did not present any evidence that it contractually retained the right to control the

means, methods, or details of Bill’s work, the only duty it owed Bill in regard to its

safety regulations was to not “unreasonably increase the probability and severity of

injury.” BP asserted that the “fact that BP implemented policies to prevent heat

illness and the fact that [] Cooksley was one of several people who might have

communicated these policies to Starcon” employees did not demonstrate that BP

controlled the operative details of Bill’s work.

      The trial court, without specifying the basis for its ruling, granted BP’s

summary-judgment motion.

                                Standard of Review

      To prevail on a summary-judgment motion, a movant has the burden of

proving that it is entitled to judgment as a matter of law and there is no genuine

issue of material fact. TEX. R. CIV. P. 166a(c); Cathey v. Booth, 900 S.W.2d 339,

341 (Tex. 1995). When a defendant moves for summary judgment, it must either

(1) disprove at least one essential element of the plaintiff’s cause of action or (2)

plead and conclusively establish each essential element of its affirmative defense,

thereby defeating the plaintiff’s cause of action. Cathey, 900 S.W.2d at 341. When

deciding whether there is a disputed, material fact issue precluding summary

judgment, evidence favorable to the non-movant will be taken as true. Nixon v.

                                          4
Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548–49 (Tex. 1985). Every reasonable

inference must be indulged in favor of the non-movant and any doubts must be

resolved in his favor. Id. at 549.

      To prevail on a no-evidence summary-judgment motion, a movant must

allege that there is no evidence of an essential element of the adverse party’s cause

of action or affirmative defense. TEX. R. CIV. P. 166a(i); Fort Worth Osteopathic

Hosp., Inc. v. Reese, 148 S.W.3d 94, 99 (Tex. 2004). We review a no-evidence

summary judgment under the same legal-sufficiency standard used to review a

directed verdict. Gen. Mills Rests., Inc. v. Tex. Wings, Inc., 12 S.W.3d 827, 832–

33 (Tex. App.—Dallas 2000, no pet.). Although the non-movant is not required to

marshal his proof, he must present evidence that raises a genuine issue of material

fact on each of the challenged elements. TEX. R. CIV. P. 166a(i); see Ford Motor

Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004). A no-evidence summary-

judgment motion may not be granted if the non-movant brings forth more than a

scintilla of evidence to raise a genuine issue of material fact on the challenged

elements. See Ridgway, 135 S.W.3d at 600. More than a scintilla of evidence

exists when the evidence “rises to a level that would enable reasonable and fair-

minded people to differ in their conclusions.”      Merrell Dow Pharms., Inc. v.

Havner, 953 S.W.2d 706, 711 (Tex. 1997).           When reviewing a no-evidence

summary-judgment motion, we assume that all evidence favorable to the non-

                                         5
movant is true and indulge every reasonable inference and resolve all doubts in

favor of the nonmovant. Spradlin v. State, 100 S.W.3d 372, 377 (Tex. App.—

Houston [1st Dist.] 2002, no pet.).

                                       Duty

      In their four issues, the Johnsons argue that the trial court erred in granting

summary judgment in favor of BP because fact issues exist as to whether BP’s

negligence proximately caused Bill’s injuries, they presented more than a scintilla

of evidence that BP retained contractual control and exercised actual control over

Bill’s work, and they presented more than a scintilla of evidence on each element

of their negligence claim.2

      There are two types of premises defects for which an independent

contractor’s employee may seek to hold a premises owner or general contractor

liable. Clayton W. Williams, Jr., Inc. v. Olivo, 952 S.W.2d 523, 527 (Tex. 1997).

The first category includes those defects that exist on a premises when a business

invitee enters for business purposes or are created through some means unrelated

to the activity of the injured employee or his employer. Id.; Shell Chem. Co. v.

Lamb, 493 S.W.2d 742, 746 (Tex. 1973). When dangerous conditions do not arise


2
      The Johnsons present four separate issues, but, within each issue, they include
      arguments concerning the issue of the duty owed by BP to Bill. Because we
      resolve this case on the issue of duty, we do not directly address the parties’
      dispute over whether the Johnsons presented any evidence that the heat-related
      working conditions caused Bill to sustain personal injuries.
                                         6
through the independent contractor’s work activity, the owner or general contractor

has a duty to inspect the premises and warn about the dangerous conditions of

which the owner or general contractor knows or should know. Gen. Elec. Co. v.

Moritz, 257 S.W.3d 211, 215 (Tex. 2008); Olivo, 952 S.W.2d at 527.               An

independent contractor is “under no duty to inspect the premises for concealed

dangers” because independent contractors may “anticipate” that the owner or

general contractor “will discharge [its] duty to inspect the premises and warn of

any dangerous condition which is not open and obvious.” Lamb, 493 S.W.2d at

746; see also Moritz, 257 S.W.3d at 215 (stating that “[g]enerally, a landowner is

liable to employees of an independent contractor only for claims arising from a

pre-existing defect rather than from the contractor’s work, and then only if the pre-

existing defect was concealed”).

      The second category of premises defects includes those defects that an

independent contractor, or its injured employee, creates by its work activity. Dow

Chem. Co. v. Bright, 89 S.W.3d 602, 606 (Tex. 2002); Coastal Marine Serv. of

Tex., Inc. v. Lawrence, 988 S.W.2d 223, 225 (Tex.1999); Olivo, 952 S.W.2d at

527. When the independent contractor creates a dangerous condition, the owner or

general contractor ordinarily has no duty to warn the independent contractor’s

employees of the premises defect. Olivo, 952 S.W.2d at 527; see also Moritz, 257

S.W.3d at 215–16 (stating that rationale for rule that owner or general contractor

                                         7
normally has no duty to ensure that independent contractor performs work in safe

manner is because independent contractor “owes its own employees a

nondelegable duty to provide them a safe place to work, safe equipment to work

with, and warn them of potential hazards” and a premises owner that “hires an

independent contractor generally expects the contractor to take into account any

open and obvious premises defects in deciding how the work should be done, what

equipment to use in doing it, and whether its workers need any warnings”). The

Texas Supreme Court has explained that a duty is ordinarily not imposed on a

premises owner or general contractor in this circumstance because “independent

contractors are hired for special projects that often entail special expertise, and can

be expected to use whatever equipment or precautions are necessary so long as a

hazard is not concealed.” Moritz, 257 S.W.3d at 217.

      However, in regard to this second category of premises-defect claims, when

a premises owner or general contractor exercises some control over an independent

contractor’s work, it may be liable unless it exercises reasonable care in

supervising the subcontractor’s activity. Dow Chem. Co., 89 S.W.3d at 606 (citing

Redinger v. Living, Inc., 689 S.W.2d 415, 418 (Tex. 1985)). For a duty to attach,

the owner’s or 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)).

                                          8
      An independent contractor may prove a right to control in two ways: “first,

by evidence of a contractual agreement that explicitly assigns the premises owner a

right to control; and second, in the absence of a contractual agreement, by evidence

that the premises owner actually exercised control over the manner in which the

independent contractor’s work was performed.” Dow Chem. Co., 89 S.W.3d at

606. A contractual right of control over the means, methods, or details of the

independent contractor’s work gives rise to a duty to see that an independent

contractor performs work in a safe manner, and the circumstance that no actual

control was exercised does not absolve the owner or general contractor of liability.

Id. (citing Elliott–Williams Co. v. Diaz, 9 S.W.3d 801, 804 (Tex. 1999)). “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.” Id. (citations omitted). The right to control “must be more than a general

right to order the work to start or stop, to inspect progress or receive reports.” Id.

(citing RESTATEMENT (SECOND)       OF   TORTS § 414 cmt. c (1965)).       Whether a

contract gives a right of control is generally a question of law for the court. Id.

(citing Lee Lewis Constr., Inc. v. Harrison, 70 S.W.3d 778, 783 (Tex. 2001)).

      In addition to contractual control, a premises owner who exercises actual

control over the contractor’s work may also be subject to direct liability for

negligence. Id. at 607. However, “merely exercising or retaining a general right to

                                          9
recommend a safe manner for the independent contractor’s employees to perform

their work is not enough to subject a premises owner to liability.” Id. (citing

RESTATEMENT (SECOND) OF TORTS § 414 cmt. c (1965)). The control exercised by

the owner “must relate to the injury the negligence causes.” Id. And, 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 that its safety requirements and procedures do not unreasonably increase

the probability and severity of injury. Id.

Contractual Control

      The Johnsons’ first argue that BP owed Bill a duty because it retained

contractual control over the methods, means, and details of his work in such a way

so as to impose liability upon BP for his heat-related illness and subsequent

personal injuries.

      BP and Starcon, Bill’s independent-contractor employer, entered into a

“Mechanical & Piping Turnaround Services Contract” (“the Contract”), which

provided, in pertinent part,

      4.01 In addition to the safety and health provisions contained in
           Exhibit C, attached hereto and incorporated by reference,
           Contractor shall abide by any and all of Company’s, as well as
           OSHA’s, safety and health rules . . . Any equipment provided
           by Company to Contractor for the benefit of Contractor’s
           employees or those of its subcontractors shall be provided on an
           “as is” basis with no warranty of performance and at the sole
           risk and liability of Contractor to ensure that such equipment is
                                          10
             fit for the use intended and in proper working order. Contractor
             has a duty to inspect the equipment prior to use, and agrees to
             defend, indemnify, and save harmless Company from any and
             all claims of Contractor, subcontractors, and their employees
             arising out of the use of any equipment furnished by Company
             or advice given by Company relating to such equipment to the
             fullest extent allowed by law. . . .

Exhibit C, entitled “Health, Safety, and Environmental Minimal Requirements,”

which was attached to the Contract, provided, in pertinent part,

            The following minimum Health, Safety, and Environmental
      (“HSE”) requirements shall apply with respect to work performed by
      Contractor under this Contract. Contractor shall take any additional
      precautions necessary to prevent injury or death to persons or damage
      to property and/or the environment.

             1.     Contractor shall comply with applicable health, safety,
      and environmental regulations of agencies having jurisdiction at
      locations where work is performed for Company. Contractor shall
      ensure that its subcontractors comply with said regulations.

            2.     Unless prior express contractual arrangements are made
      with Company, Contractor shall provide all personnel furnished by or
      on behalf of Contractor (“Contractor’s Personnel”) with appropriate
      functional safety equipment and ensure that such equipment is used.

             3.   Unless prior express contractual arrangements are made
      with Company or statutory requirements dictate otherwise,
      Contractor’s Personnel shall be trained in the appropriate health,
      safety, and environmental codes and regulations as required by all
      governmental or regulatory agencies having jurisdiction at the work
      site.

             ....

            6.   Contractor will be evaluated on its health, safety, and
      environmental performance. The assessment of a contractor’s
      performance may include evaluation of its health, safety, and
                                         11
      environmental record-keeping and, if applicable, prior work
      experience with Company. This evaluation will be used as criteria in
      the selection of contractors for future Company projects.

            7.     As directed by Company representative, Contractor shall
      hold regular safety meetings with its staff regarding Company's
      minimum HSE requirements. After each meeting, Contractor shall
      document the subject of the meeting including a list of attendees and
      forward this information to Company representative.

             ....

            Contractor shall reference the BP Texas City Site HSE Rules on
      the Texas City Safety Council web site for all specific requirements . .
      ..

      Additionally, HSE Policy PR-13, entitled “Procedure: Prevention of Heat

Illness,” which applied to “all employees involved in work activities that create the

potential for the development of heat illnesses” and was designed to “minimize the

potential for heat illness among site personnel,” provided,

      A.     It is the responsibility of each employee and their supervisor to
             determine appropriate work/rest schedule for working in hot
             temperatures. Refer to Attachment 1 for heat exposure
             guidelines and the WGBT Data on the HSE web. . . . . The
             employee and their supervisor will consider the following
             factors making this determination:

             1.     Level of activity required by the job.

             2.     Protective clothing requirements.

             3.     Weather and/or equipment temperature conditions.

             4.     Personal factors (i.e. medical conditions and fatigue).



                                          12
      B.       Equipment that is used to reduce the potential for heat stress
               will be made available to employees. The following equipment
               will be available for routine or short duration jobs:

               1.    Cooling vests/phase change vests.

               2.    Portable fans/blowers/air conditioning units (with or
                     without water mist).

               3.    Portable shades.

      C.       Temporary cool down areas will be constructed for turnarounds
               and multiple shift projects during periods of hot weather. The
               cool down areas will be constructed to provide shade and will
               be equipped with benches, water coolers, and fans.

      D.       It will be the responsibility of supervision to plan and schedule
               jobs in such a way as to reduce potential heat stress. The
               following will be considered during job planning and
               scheduling:

               1.    Schedule strenuous jobs for cooler parts of the day (or at
                     night).

               2.    Ensure adequate manpower levels for the work to be
                     planned.

               3.    Maintain communication between operations and
                     maintenance to ensure personnel are not waiting in the
                     heat or rushing to get equipment ready.

Relying primarily upon this policy, the Johnsons assert that BP was “aware of the

extreme heat conditions” at the refinery, “negligently failed to implement” its own

policies, and “failed to supply the minimum equipment and protection required by

BP’s rules.”



                                           13
      The Johnsons also assert that BP retained contractual control based upon

other provisions in the Contract that granted BP the right to control work

scheduling, conduct or call for meetings with independent contractors, and fire

contractor employees. For example, the Johnsons cite, among other contractual

provisions, the following:

      7.03 Any employee of Contractor deemed by Company, in their sole
           judgment, to be objectionable shall be removed from the Work
           site immediately upon Company request and shall be promptly
           replaced by Contractor at no extra expense to Company.
           Contractor shall nevertheless retain all authority and control
           over its employees, . . . .

      11.01 Daily, monthly and/or quarterly performance review meeting
            will be held, at Company’s discretion, to review the work
            performed under this contract. Contract performance, key
            result, . . . safety, action items and similar information will be
            reviewed at the meetings with Company. . . .

      12.01 The Scope of Work shall be subject to change by additions,
            deletions or revisions thereto by Company. Contractor will be
            notified of such changes by receipt of additional and/or revised
            drawings, specifications, exhibits or other written notification.

      39.03 Contractor recognizes that Company and other contractors and
            subcontractors may be working concurrently at tile Work site.
            Contractor agrees to cooperate with company and other
            contractors so that the project as a whole will progress with a
            minimum of delays. Company reserves the right to direct
            Contractor to schedule the order of performance of its Work in
            such manner as not to interfere with the performance of others.

      49.01 Contractor shall comply strictly with Company’s rules
            governing the conduct of Contractor and Contractor’s
            employees, agents and subcontractors at and about the Work
            site. Contractor agrees that it shall ensure that its supervisory
                                        14
             personnel, employees, agents and subcontractors at the Work
             site comply strictly with such rules. Company reserves the right
             to, from time to time, revise any such rules, and Contractor
             shall comply fully with such rules as revised in accordance with
             the foregoing provisions.

      In regard to BP’s safety policies, the plain language of article 4.01 of the

Contract and the attached Exhibit C imposed contractual responsibility upon

Starcon for the workplace safety issues implicated in this case. Although BP

published a specific heat-related policy, the Contract expressly required Starcon to

“abide by any and all of” BP’s “safety and health rules.” Exhibit C, which was

attached and incorporated into the Contract, stated that, absent other “prior express

contractual arrangements” between the parties, Starcon was responsible for

providing all of its personnel “with appropriate functional safety equipment and

ensur[ing] that such equipment is used.” And, other provisions in the Contract also

expressly required Starcon to “comply strictly with Company’s rules governing the

conduct of Contractor and Contractor’s employees.”

      An agreement between a premises owner and an independent contractor that

requires the contractor to comply with the safety rules and regulations promulgated

by the premises owner does not create a contractual right of control over the

“means, methods, or details” of the contractor’s work sufficient to impose a duty

upon the premises owner.       Dow Chem. Co., 89 S.W.3d at 607. Rather, the

imposition of such safety requirements by a premises owner “give[s] rise to a

                                         15
narrow duty of care” that its safety requirements and procedures do not

“unreasonably increase . . . the probability and severity of injury.” Hoechst-

Celanese Corp. v. Mendez, 967 S.W.2d 354, 358 (Tex. 1998). Here, there is no

evidence that BP’s policies, including its heat-related policy, which its independent

contractors (including Starcon) were contractually obligated to follow, were

“generally dangerous or unreasonable.” See id.

      Additionally, the contractual provisions cited by the Johnsons concerning

BP’s ability to fire Starcon employees, conduct meetings, and schedule work did

not give rise to a contractual right of control over the means, methods, and details

of Bill’s work. See Dow Chem. Co., 89 S.W.3d at 608–09 (holding that premises

owner’s “safe work permit system” that was intended to create “a safer

construction site” did not “unreasonably increase the probability and severity of

[the contractor’s] injury”); Koch Refining Co. v. Chapa, 11 S.W.3d 153, 156 (Tex.

1999) (holding that presence of premises owner’s safety representative and

possibility that safety employee might have intervened to stop dangerous work not

sufficient to create duty); Victoria Elec. Co-op., Inc v. Williams, 100 S.W.3d 323,

330 (Tex. App.—San Antonio 2002, pet. denied) (holding that contract allowing

utility to “inspect, test, and approve” independent contractor’s work to ensure

compliance with contract specifications and safety requirements did “not implicate

a right to control the details of the independent contractor’s work”).

                                         16
      Accordingly, we conclude that the Johnsons presented no evidence that BP

retained a contractual right of control over the means, methods, or details of Bill’s

work such that liability may be imposed upon BP for Bill’s heat-related illness and

subsequent personal injuries.

Actual Control

      The Johnsons next argue that BP owed Bill a duty because it “exercised a

degree of control” over Bill’s work that included actual control over heat-related

illness prevention at the refinery.

      Actual control is not established by evidence showing that a property owner

maintained general “control of the facilities.”       Vanderbeek v. San Jacinto

Methodist Hosp., 246 S.W.3d 346, 352 (Tex. App.—Houston [14th Dist.] 2008, no

pet.). Moreover, “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.” Dow Chem. Co., 89 S.W.3d

at 607 (citing RESTATEMENT (SECOND)      OF   TORTS § 414 cmt. c (1965)). Finally,

actual control that is sufficient to trigger liability “must relate to the injury the

negligence causes.” Dow Chem. Co., 89 S.W.3d at 607.

      As they did in their contractual-control argument, the Johnsons base their

actual-control argument upon BP’s heat-illness policy. The Johnsons assert that

BP had “the right to control heat illness and heat stress prevention,” Cooksley “was

                                         17
present at most times during the turnaround” and obtained status reports of the

workers’ progress, Cooksley “would have received a status from [Bill],” Cooksley

was “aware of BP policies related to heat illness and heat stress prevention that

were not being enforced,” and BP “was aware and did not object to the work being

performed without cooling equipment.”

      The Texas Supreme Court has rejected similar arguments on two occasions.

See id. at 608–09; Koch, 11 S.W.3d at 156. In Dow Chem. Co., the court held that

a premises owner’s work permitting system and the presence of a premises

owner’s safety representative did not “unreasonably increase the probability and

severity of [the independent contractor’s] injury.” 89 S.W.3d at 607–09. The

court concluded that there was no evidence that the independent contractor

employees “were not free to do the work in their own way” or the premises owner

“controlled the method of work or its operative details.” Id. The court further

concluded that the premises owner’s “general right under the safe work permit

system to preclude work from beginning in the first instance [was] insufficient to

establish actual control.” Id. at 609.

      Similarly, in Koch, an injured employee argued that a premises owner owed

a duty based on the presence of a safety representative and the possibility that the

representative could intervene to stop dangerous workplace conduct. 11 S.W.3d at

156. The employee also argued that the premises owner owed a duty because the

                                         18
premises owner’s safety representatives had allegedly instructed the independent

contractor’s employees in the past to perform their work in a safer manner. Id.

The court concluded that the employee presented no evidence that the premises

owner exercised the degree of control necessary to create a duty. Id. Instead, the

court held that the premises owner owed the independent contractor’s employees

only “a duty that any safety requirements and procedures it promulgated did not

unreasonably increase, rather than decrease, the probability and severity of injury.”

Id. (quoting Hoechst-Celanese Corp., 967 S.W.3d at 358).

      The Johnsons argue that because the facts in the instant case are

substantially distinguishable from those presented in Dow Chem. Co. and Koch, we

should be guided by the Texas Supreme Court’s opinion in Lee Lewis

Construction, Inc. v. Harrison, 70 S.W.3d 778, 783 (Tex. 2001). In Harrison, the

survivors of an independent contractor who fell to his death while installing

windows sued both the general contractor and a subcontractor for negligence. Id.

at 782. The plaintiffs alleged that the general contractor “exercised actual control

over safety, in particular, the fall-protection systems” used by the independent

contractor’s employees. Id. at 783. In support of their allegation, the plaintiffs

presented testimony that the general contractor personally witnessed and

“approved” of the specific fall-protections systems that had been used by the

independent contractor. Id at 784. They also presented testimony that the general

                                         19
contractor “knew” of and did not object to the independent contractor’s use of a

“bosun’s chair without an independent lifeline.”        Id at 783–84.     The court

concluded that this evidence demonstrated that the general contractor “retained the

right to control fall-protection systems on the jobsite” and, therefore, it owed a

duty of care to the independent contractor’s employees “commensurate with that

right.” Id at 784.

      Here, in contrast, although there is evidence that BP maintained heat-related

policies and BP personnel communicated those policies to independent contractors,

there is no evidence that, by doing so, BP controlled the operative details of Bill’s

work. See Good v. Dow Chem. Co., 945 S.W.2d 877, 882 (Tex. App.—Houston

[1st Dist.] 1997, no writ) (holding that “while Dow personnel may have been on

site to observe compliance with safety procedures, Dow’s retention of control did

not rise to the level of control” sufficient to create a duty). There is also no

evidence that BP was aware that Starcon “routinely ignore[d]” safety polices. See

Hoechst-Celanese, 967 S.W.2d at 357 (“[A]n employer 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.”). Instead, similar to the facts in Dow Chem. Co. and

Koch, here, there is evidence that BP only required its independent contractors to

abide by its safety policies, including its policy related to the prevention of heat-

                                         20
related illness. There is evidence that BP personnel were on site and, pursuant to

the Contract, would have participated in meetings at which safety issues were

reviewed.      However, the contractors were contractually required to follow

applicable safety rules and were responsible for furnishing their personnel “with

appropriate functional safety equipment” and to “ensure that such equipment is

used.”      There is no evidence that, despite this contractual delegation of

responsibilities, BP retained actual control over the operative details of Bill’s work,

the heat-related working conditions, and the associated equipment that was

furnished or should have been furnished to Bill to account for these working

conditions.

         Accordingly, we conclude that the Johnsons presented no evidence that BP

retained actual control over Bill’s work in a manner for which BP can be held

liable for Bill’s heat-related illness and subsequent injuries.

                                      Conclusion

         We hold that the trial court did not err in granting BP summary judgment

and we overrule the Johnsons’ four issues.

         We affirm the judgment of the trial court.



                                                Terry Jennings
                                                Justice

Panel consists of Justices Jennings, Higley, and Sharp.
                                           21
