DISSENTING and Opinion Filed March 26, 2020




                                    S  In The
                            Court of Appeals
                     Fifth District of Texas at Dallas
                               No. 05-17-00719-CV

                  JOSE HERNANDEZ, Appellant
                               V.
 SUN CRANE AND HOIST, INC., JLB PARTNERS, L.P., JLB BUILDERS,
  L.L.C., AUGER DRILLING, INC., AND D’AMBRA CONSTRUCTION
                    CORPORATION, Appellees

                On Appeal from the County Court at Law No. 4
                            Dallas County, Texas
                    Trial Court Cause No. CC-15-00715-D

                           DISSENTING OPINION
                             Before the Court En Banc
                       Dissenting Opinion by Justice Bridges
      I respectfully dissent from the Court’s en banc opinion and judgment because

application of controlling and long-standing precedent confirms that the trial court

did not err in granting the traditional and no-evidence summary judgment motion of

Sun Crane and Hoist, Inc., JLB Partners L.P., and JLB Builders, L.L.C., and ordering

that Hernandez take nothing on his claims.

      As the majority points out, there must be a nexus between a general

contractor’s retained supervisory control and the condition or activity that caused an
injury. Hoechst-Celanese Corp. v. Mendez, 967 S.W.2d 354, 357–58 (Tex. 1998).

Despite this acknowledgement, the majority then retreats from any effort to anchor

the claim in this case to any act of the general contractor. Instead, it eliminates the

nexus requirement altogether; abandoning any analysis of contractual control, it

fashions a new argument even the appellant is unwilling to make—that a “cluster of

factors” signals “actual” control of the manner and means of the work Hernandez

performed and thus constituted the means of his injury. Ignoring that neither the

“cluster” nor any of its constituent parts have any demonstrable place in the

proximate cause of Hernandez’ injury, the majority cites a series of cases that reject

both the majority’s reasoning and its result.

        In support of its actual control analysis, the majority cites not a single case

that supports its position and cites only cases supporting this dissent. The majority

opinion abandons the issue of contractual control and concludes a fact issue as to

JLB’s actual control is raised by JLB’s retention of control over (1) the daily

schedule,1 (2) the order in which work was to be done, (3) the mandatory use of

safety harnesses,2 and (4) the timing of a crane’s presence on-site. However, the


    1
     There is no argument or legal analysis regarding scheduling in Hernandez’ original brief or in his
motion for rehearing.
    2
      The majority opinion throws in “safety harness” language despite the fact that any discussion of safety
harnesses would be appropriate only under a contractual-control analysis. There is no evidence of JLB’s
actual control relative to Hernandez’ use of a safety harness on the day of the accident. Under supreme
court precedent, a contractual requirement that the subcontractor must comply with specific safety
procedures gives rise to only a narrow duty of care—“a duty that any safety requirements and procedures
it promulgated did not unreasonably increase, rather than decrease, the probability and severity of injury.”

                                                    –2–
majority makes no attempt to show the nexus between JLB’s retention of control and

Hernandez’ injury. See id. The majority simply makes Hernandez’ argument for

him, asserting without support that its “cluster of factors” relate to Hernandez’ injury

and establish even a scintilla of evidence.

        The majority’s argument is, at each step, in direct conflict with Texas Supreme

Court authority. In particular, the Texas Supreme Court has long held that neither a

property owner nor a general contractor takes on the liability for injuries to a

subcontractor’s employee by insisting that the subcontractor adhere to safety

protocols meant to reduce the risk of injuries to that subcontractor’s employees. See

Dow Chem. Co. v. Bright, 89 S.W.3d 602, 611 (Tex. 2002); Mendez, 967 S.W.2d at

357–58. It has also held that neither a property owner nor a general contractor

becomes liable in respondeat superior for “actually” controlling the manner and

means by which work is done by being present at a job site or, while present,

expressing concern about a possible safety risk to a subcontractor. See Dow, 89



Hoescht-Celanese Corp. v. Mendez, 967 S.W.2d 354, 358 (Tex. 1998) (per curiam). There is no evidence
that requiring the use of safety harnesses unreasonably increased the probability and severity of injury. On
its face, requiring the use of “safety harnesses” seems unlikely to make construction work more dangerous.
But more to the point, the majority cites no evidence that this contractual requirement unreasonably
increased the probability and severity of injury to Capform’s workers generally or Hernandez in particular.
The only possibly relevant evidence mentioned in the opinion is Molina’s affidavit testimony: “I yelled to
the carpenters to jump off, but it was too late. They were tied onto the rebar cage with their safety
harnesses.” But that doesn’t show that the safety-harness requirement unreasonably increased the
probability and severity of injury to Capform’s workers. See McGill v. Minyard’s Food Stores, Inc., 417
S.W.2d 309, 312 (Tex. App.—Dallas 1967, writ ref’d n.r.e.) (“[T]he mere happening of an accident is no
evidence at all of negligence or proximate cause.”). It doesn’t even show that Hernandez’ harness caused
or worsened his specific injury, since there’s nothing to show that he would not have suffered similar (or
worse) injuries had he not been wearing a harness. There is no evidence that any party’s safety procedures
required a jump from a falling rebar tower.
                                                   –3–
S.W.3d at 608; Koch Ref. Co. v. Chapa, 11 S.W.3d 153, 156 (Tex. 1999) (per

curiam). Any contrary rule would increase workplace injuries and serve only to

increase resulting litigation. Despite this supreme court precedent, a majority of this

Court now holds that general contractors are liable for generally requiring that their

subcontractors follow a safety protocol. General contractors may read this opinion

as leaving them no option but to completely distance themselves from any efforts to

assure safety on their work sites and wash their hands of safety standards altogether.

        Whether we frame the issue in this case in terms of whether JLB exercised

contractual or actual control over the work performed by Hernandez, this case is

controlled by the Texas Supreme Court’s decisions in Dow Chemical Co. v. Bright,

89 S.W.3d 602 (Tex. 2002) and Hoescht-Celanese Corp. v. Mendez, 967 S.W.2d

354 (Tex. 1998) (per curiam). 3

        Dow forecloses any possible basis for the claims in this case that appellants

might be held liable under a theory of actual control merely because they directed

the schedule and sequence by which the subcontractor’s work was to be done. In

Dow, an employee of an independent contractor hired to perform construction work

for Dow attempted to hold Dow liable for injuries sustained on the job site. Dow,



    3
       The majority takes umbrage at our panel opinion for failing to address two cases that were not cited
in any brief on original submission: Arredondo v. Techserv Consulting & Training, Ltd., 567 S.W.3d 383
(Tex. App.—San Antonio 2018, pet. pending), and Morales v. Alcoa World Alumina L.L.C., No. 13-17-
00101-CV, 2018 WL 2252901 (Tex. App.—Corpus Christi–Edinburg May 17, 2018, pet. denied) (mem.
op.). These cases formed the basis of appellant’s motion for en banc rehearing. The majority then goes on
to state that neither its opinion nor the decision to reconsider this case en banc depended on those cases.
                                                   –4–
89 S.W.3d at 605. The employee asserted that Dow exercised actual control by

retaining authority over the timing and sequence of work being done by the various

independent contractors. Id. at 609. The court concluded there was no evidence in

the record that Dow was involved in any manner with controlling the timing and

sequence of the employee’s work and deciding which of the independent

contractor’s employees should perform what task and at what point in time. Id. The

employee did present evidence that the timing and sequence of the independent

contractor’s work was indicated on a job efficiency matrix prepared and submitted

by the independent contractor and that, should the need arise, Dow and the

independent contractor could mutually agree to a modification. Id. However, the

court concluded this was not evidence that Dow controlled the timing and sequence

of the erection of the pipe at issue and the employee’s carpentry work in the area

that resulted in the injury at issue. Id. The court concluded, therefore, that Dow did

not exercise actual control. Id.

      Likewise, Mendez forecloses any claim in this case based on any claim that

appellants were actually controlling the details of the work. In Mendez, an employee

of an independent contractor hired to perform various maintenance services at the

Celanese plants sustained serious injuries when he fell from the shelf of a large metal

tool box he was using as a ladder. Mendez, 967 S.W.2d at 355. The employee

presented expert deposition testimony that, under the specific circumstances giving

rise to his injury, the use of a ladder would have been safer and more appropriate
                                         –5–
than a toolbox. Id. at 358. However, the court determined this was no evidence that

Celanese’s requirement that tools and implements be used in the manner for which

they were intended was generally dangerous or unreasonable. Id. In conclusion, the

court determined there was no evidence that Celanese exercised unreasonable care

in insisting that the independent contractor comply with its safety standards. Id.

      In this case, none of the so-called “cluster of factors” related to JLB’s

involvement in scheduling work, prioritizing work, or determining when equipment

would be available establishes JLB controlled the timing and sequence of the events

that caused Hernandez’s injury or that JLB’s actual control played any role in

causing his injuries. See Dow, 89 S.W.3d at 609. Controlling precedent likewise

confirms that an obligation to perform work according to a general schedule does

not make the general contractor liable for injuries to a subcontractor’s employees.

                                 BACKGROUND

      In October 2013, JLB entered into a Subcontract Agreement with Capform,

Inc. regarding a construction project in Dallas. The subcontract provided JLB would

pay Capform $11,583,000 for the work. On December 5, 2013, Alejandro Molina

was Capform’s foreman and Hernandez was a member of the work crew under

Molina’s supervision. Hernandez was injured when he fell from a “rebar cage”

while attempting to place on the cage a concrete form suspended from a crane.

According to Molina’s affidavit, the crane operator “made the form strike the rebar



                                         –6–
cage and cause[d] it to start falling over.” Hernandez was injured in the fall, and he

later sued JLB and asserted negligence claims.

      In the Subcontract, JLB was listed as “Contractor,” and Capform was listed

as “Subcontractor.” Among other things, the Subcontract provided the following:

      [Capform], at its expense, shall furnish all of the supervision, labor,
      material, tools, equipment, insurance, services, shop drawings,
      samples, protection, hoisting, scaffolding, supplies, warrantees and all
      permits, licenses and fees (as applicable) necessary to perform,
      construct, and complete, in the manner set out in the Contract
      Documents (defined below), the work described in EXHIBIT A of this
      Agreement (the “Work”).

      The Subcontract further provided that Capform was responsible for furnishing

all equipment required to perform the Work including, but not limited to, ramps,

ladders, scaffolds, hoisting and other equipment. An entire subsection of the

Subcontract related to “Safety” and provided, among other things, the following:

      (1) Compliance. [Capform] shall fully comply with all laws, orders,
      citations, rules, regulations, standards and statutes with respect to
      occupational health and safety, accident prevention, and safety
      equipment and practices, including without limitation, OSHA standards
      and any accident prevention and safety program sponsored by Owner
      or [JLB]. Without limiting the foregoing, simultaneous with the
      execution hereof, Subcontractor shall complete, execute and deliver to
      [JLB] an Accident Prevention Plan in the form set forth on EXHIBIT J
      attached hereto, and shall at all times comply with the requirements of
      EXHIBIT J and EXHIBIT K attached hereto.

      (2)    Precautions and Programs.

      (a) [Capform] shall be responsible for initiating, maintaining and
      supervising all safety precautions and programs in its Work and shall
      conduct inspections to determine that safe working conditions and
      equipment exist.

                                         –7–
      (b) [Capform] accepts sole responsibility for providing a safe place
      to work for its employees and for the employees of its sub-
      subcontractors and suppliers, and for the adequacy and required use of
      all safety equipment.

      (c) Prior to the commencement of the Work, [Capform] shall submit
      its site specific safety program to [JLB]. [Capform’s] safety program
      must specifically address, among other safety issues, scaffolding, fall
      hazards, trenching and shoring, as may be applicable.

      Regarding “Staffing,” the Subcontract provided that Capform was “solely

responsible for the acts and omissions of its employees, agents and suppliers and for

the acts and omissions of its sub-subcontractors and their employees, agents and

suppliers.” The Subcontract further required Capform to keep a representative on

the job site at all times when the work was in progress and provided that JLB “shall

not issue or give any instructions, orders or directions directly to employees or

workers of [Capform] other than to the persons designated as the authorized

representatives of [Capform].”

      Also, as the majority points out, the subcontract contained a production

schedule set out in Exhibit D. Exhibit D contains a detailed description of the

proposed work and allocates a number of days to each aspect of the work. The

production schedule lists a series of steps in the construction process such as

“Columns to B2” and assigns “12 days” to complete that step. All steps are given a

range from one to thirty-one days. Nothing in the schedule assigns a timeframe for

completion of less than a day. A series of lines beneath a calendar heading

graphically represent the timeline of the proposed production schedule.

                                        –8–
      JLB filed a traditional and no-evidence motion for summary judgment in

which it argued JLB did not owe a duty to Hernandez because he was an employee

of an independent contractor and JLB did not have control over Hernandez. In

particular, JLB argued it did not have a contractual right to control the means,

methods, or details of Hernandez’ work and did not exercise actual control over

Hernandez’ work. In support of its motion, JLB provided excerpts of the deposition

of Juan Gutierrez, Capform’s superintendent, who testified “no one from JLB has to

tell us how to do the job,” and Gutierrez is “the one who’s in charge of what work

that Capform employees are doing on a daily basis.” Gutierrez testified he would

have stopped the work if he thought anything was unsafe.

      JLB also attached to its motion excerpts from Hernandez’ deposition in which

Hernandez testified JLB did not give him any instructions on how to set the form or

the platform on the day of the accident.        Hernandez testified Gutierrez was

“supervisor,” Molina was the foreman of the crew, and both Gutierrez and Molina

worked for Capform. Molina told Hernandez he would be setting the platform on

the day of the accident. Hernandez testified JLB did not tell him to set the platform

or to get up on the tower that fell. Hernandez testified Molina taught him how to set

the form or platform on the day of the accident, and JLB had no involvement in

teaching him how to set the forms or platforms. Hernandez testified he did not see

anyone from JLB “on this job on the day of the accident before it occurred.”

Hernandez replied, “I don’t know” when asked whether he had any reason to believe
                                        –9–
JLB caused the accident. When asked what the weather was like on the day of the

accident, Hernandez said, “It was cloudy” and, when asked if it was windy,

Hernandez answered, “No.”

       Attached to the response was the transcript of the deposition of Paul Johnston,

JLB’s chief operating officer. Johnston testified there were JLB employees “on the

site on the day that [Hernandez] was injured, but there was no one there in the area

where [Hernandez] was injured.” Johnston agreed that JLB’s employees who were

of a supervisory level “were aware that these towers could be knocked over or fall

over if not properly braced or if a big, strong wind came along or if the crane hit

them.”4

       The question is whether the evidence created a genuine fact issue as to

whether JLB owed a duty to Hernandez to keep him safe and breached that duty by

permitting and instructing Capform to work under dangerous conditions.

       Our review of the evidence concerning negligence begins with duty. Lee

Lewis Constr. Co. v. Harrison, 70 S.W.3d 778, 783 (Tex. 2001). Ordinarily, a

general contractor does not owe a duty to ensure that an independent contractor

performs its work in a safe manner. Id. (citing Elliott–Williams Co. v. Diaz, 9

S.W.3d 801, 803 (Tex. 1999)). A duty does arise, however, if the general contractor

retains some control over the manner in which the independent contractor performs


   4
      This statement was a response to a hypothetical posed by Hernandez’ counsel and not testimony of
actual facts surrounding the underlying accident.
                                                –10–
its work. Id. The general contractor’s duty of care is commensurate with the control

it retains over the independent contractor’s work. Id. A general contractor can retain

the right to control an aspect of an independent contractor’s work or project so as to

give rise to a duty of care to that independent contractor’s employees in two ways:

by contract or by actual exercise of control. Id. The majority concludes the record

contains sufficient evidence JLB exercised actual control to defeat summary

judgment. I disagree.

      A contractor may assume a duty to its subcontractor’s employees by actually

exercising control over the subcontractor’s work. See Coastal Marine Serv. of Tex.

v. Lawrence, 988 S.W.2d 223, 226 (Tex. 1999). That means controlling the manner

in which the work is done, such that the contractor is not entirely free to do the work

its own way. Koch Ref. Co., 11 S.W.3d at 155–56. But there is no evidence JLB

actually controlled Capform’s work on this occasion.

      As the majority notes, a general contractor, “merely by placing a safety

employee on the work site, does not incur a duty to an independent contractor’s

employees to intervene and ensure that they safely perform their work.” Id. at 157.

There must be an actual exercise of control, and that control “must relate to the

condition or activity that caused the injury.” Clayton W. Williams, Jr. v. Olivo, 952

S.W.2d 523, 528 (Tex. 1997).

      The majority concludes that the record raises a fact issue on actual control in

two ways. First, it says, “there is evidence JLB retained control over the daily
                                         –11–
schedule, the order in which the work was to be done, the mandatory use of safety

harnesses, and when the crane would be on-site.” But these matters all concern

JLB’s supposed contractual right of control of when, not how, work was done. They

provide no support for the premise that JLB personnel were that day actually

controlling Capform’s work activities at all, let alone the specific activities that led

to Hernandez’ accident.

      Second, the majority asserts that “some evidence suggests there was sufficient

wind that day to have made the work more dangerous and JLB knew of the wind and

the increased danger.” This is stretching the facts to make an argument for appellant.

The majority uses the wind as a factor in reversing the trial court, but the facts before

the trial court were as follows: JLB Partners’ chief operating officer, Paul Johnston,

was asked by Hernandez’ counsel if JLB’s supervisory employees “were aware that

these towers could be knocked over or fall over if not properly braced or if a big,

strong wind came along or if the crane hit them.” Johnston answered, “Yes.”

Hernandez, in his response to JLB’s motion for summary judgment, made frequent

reference to “high winds,” citing Johnston’s quoted testimony.

      We must look at what evidence was actually presented to the trial court. There

is no evidence that JLB personnel knew either that it was windy or, more

importantly, that the wind was exposing Capform’s workers to increased danger.

There was no evidence JLB knew of a “strong wind” at the time of the accident or

that JLB supervisors ordered any specific work to be performed. Instead, this
                                          –12–
testimony was entirely hypothetical and would have been the same if JLB’s officer

had been asked whether earthquake, tornado, or other overwhelming force had been

applied to make the rebar tower fall. Further, there is no evidence that JLB

employees were present when this work was going on or knew that wind was making

the work unusually hazardous. Indeed, the evidence suggests it was not wind but an

impact with a crane that caused the tower to fall.

      There was no evidence that the wind caused the crane to hit the rebar tower

or that JLB required Capform to work in windy conditions. In fact, Gutierrerz

testified it “was possible there was some wind” on the day of the accident; he did

not know “if it was a wind that was over 45 miles an hour”; the wind would affect a

crew’s ability to set a column if it was “above 20, 25 miles an hour”; but “[i]f it’s

less, it affects something, but it’s – but we can – have to continue to work.” There

is no evidence JLB required the work to continue in windy conditions or that JLB

was the party making the crew “have to continue to work.” Thus, Gutierrez’s

testimony was that Capform would continue to work when winds were twenty-five

miles per hour or less. Further, Hernandez himself, when asked at his deposition if

it was windy on the day of the accident, answered “No.” When Hernandez’ affidavit

was filed, there was no mention of wind in the affidavit.

      As the majority acknowledges, actual exercise of control over safety can be

shown with evidence that the general contractor personally witnessed and approved

the safety procedures used by the subcontractor’s employees. See Lee Lewis Constr.
                                        –13–
Co., 70 S.W.3d at 783–84. But there is no such evidence in this case. Nor is there

evidence that JLB controlled the methods or operative details of Capform’s work.

See Koch Ref. Co., 11 S.W.3d at 155. Here, there is simply no evidence that JLB

had any actual control over preparing the worksite for the job Capform’s work crew

was doing when Hernandez was injured. Moreover, there is no evidence that any

JLB employee told Capform or Hernandez how to do the task that Capform was

doing when Hernandez got hurt.

      The evidence showed Hernandez and Gutierrez, both Capform employees,

testified JLB did not tell them how to perform any of the work that led to the rebar

cage accident. Instead, Capform supervisor Gutierrez testified, “[N]o one from JLB

has to tell us how to do the job.” Hernandez testified JLB did not give him any

instructions on how to set the form on the platform on the day of the accident.

      Hernandez testified Gutierrez was “supervisor,” and Molina was the foreman

of the crew, they both worked for Capform, and Molina told him he would be setting

the platform on the day of the accident. Hernandez testified JLB did not tell him to

set the platform or to get up on the tower that fell. Hernandez testified he did not

see anyone from JLB “on this job on the day of the accident before it occurred.”

Thus, there was no evidence that JLB exercised actual control that related to the

injury the alleged negligence caused or that JLB specifically approved the dangerous

act. See Dow, 89 S.W.3d at 607–09. Under the facts and circumstances of this case,

I would conclude the trial court did not err in granting summary judgment for JLB.
                                        –14–
      Accordingly, I would not reach the breach and proximate cause issues

addressed by the majority.




                                           /David L. Bridges/
                                           DAVID L. BRIDGES
                                           JUSTICE



Myers, Whitehill, Schenck, and Evans, JJ., join this dissenting opinion.



170719DF.P05




                                        –15–
