Reverse and Remand in part, Affirm in part; Opinion Filed March 26, 2020




                                                  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

                                    EN BANC OPINION
                                    Before the En Banc Court
                                    Opinion by Justice Carlyle

        Jose Hernandez appeals the trial court’s order granting summary judgment in

favor of appellee JLB Builders, L.L.C. (“JLB”) and ordering that Hernandez take

nothing on his personal injury claims against JLB.1 On November 1, 2018, a panel

of this court affirmed the trial court’s judgment. Hernandez filed a timely motion for




    1
      Although the trial court’s order also granted summary judgment in favor of defendant JLB Partners,
L.P., Hernandez asserts in his appellate brief that he appeals “only the summary judgment rendered in favor
of JLB Builders, L.L.C.” The trial court’s rulings regarding Hernandez’s claims against the other defendants
in this case are not at issue in this appeal.
rehearing, which this court denied. Then, Hernandez filed a motion for en banc

reconsideration.

        Sitting en banc, we withdraw this court’s November 1, 2018 opinion and

vacate the judgment of that date.2 This en banc opinion is now the opinion of the

court. We reverse the trial court’s order, in part; otherwise affirm the trial court’s

order; and remand this case to the trial court for further proceedings.

                                            I. Background

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

Inc. regarding a Dallas construction project. In the Subcontract, JLB was described

as “Contractor” and Capform was described as “Subcontractor.” The Subcontract

stated “[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 . . . necessary to perform, construct,

and complete, in the manner set out in the Contract Documents (defined below), the

work described in . . . this Agreement (the ‘Work’)” and is “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.”




    2
      At this court’s request, the parties addressed the issue of this court’s jurisdiction regarding en banc
reconsideration during oral argument on Hernandez’s en banc reconsideration motion. We conclude this
court has jurisdiction to reconsider this case en banc. See Cruz v. Ghani, No. 05-17-00566-CV, 2019 WL
3282963, at *6 (Tex. App.—Dallas July 22, 2019, order).
                                                    –2–
       The Subcontract provided (1) “[JLB] has no authority to direct, supervise or

control the means, manner or method of construction of the Work”; (2) “[Capform]

is responsible for the manner and means of accomplishing the Work”; (3) “[i]n the

event of a conflict between the terms of this Agreement and other Contract

Documents, [Capform] shall be governed by the provisions imposing the greatest

duty on [Capform]”; (4) Capform “shall keep a representative on the job site at all

times when [Capform’s] work is in progress”; and (5) JLB “shall not issue or give

any instructions, order or directions directly to employees or workers of [Capform]

other than to the persons designated as the authorized representatives of [Capform].”

Under the heading “Schedules,” the Subcontract stated “[JLB] may, from time to

time, provide work schedules or directions to [Capform], which work schedules or

directions may from time to time be changed or modified in whole or in part by

[JLB], and [Capform] agrees to comply with and perform according to the

requirements of any then current work schedules or directions.”

       The parties attached the initial work schedule as Exhibit D to the Subcontract.3

That detailed schedule provided piecemeal, day-by-day timelines for completing the

work. The next subsection under “Schedules” obligated Capform to check the work

schedules and directions posted “on the punch-list board at the Project [site] . . . on



   3
      We note that JLB did not attach Exhibit D to its summary judgment evidence when it purported to
attach the “[r]elevant excerpts from the contract.” Hernandez attached the Subcontract and all exhibits
thereto to his response.

                                                 –3–
a daily basis and conform the Work according to the current work schedules or

directions.” And the Subcontract required that Capform “shall make [a] crane

available at specific times designated by [JLB] for other trades which shall be placed

on a schedule in the construction trailer by [JLB]. [JLB] shall not schedule crane at

such times as to hamper [Capform’s] scope and flow; however, no reasonable

request for crane usage may be denied [JLB] from [Capform]. If there ever should

be a question as to the validity of a ‘reasonable request,’ [JLB] shall dictate.”

         Also, the Subcontract required Capform to submit and comply with an

accident prevention and safety program addressing specified safety issues, including

fall hazards.4 Exhibit K to the Subcontract, a three-page document titled “Safety


   4
       Under the heading “Safety,” the Subcontract stated,

         (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.

                 (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.

                                                    –4–
Requirements,” contained general safety requirements and obligated Capform to

follow established law, but it also contained certain job-specific requirements, such

as, “Subcontractor shall specifically abide by and strictly comply with the following:

. . . Use safety harnesses when working in areas not protected by handrails.” 5

        On December 5, 2013, Hernandez was a member of a Capform work crew

supervised by Capform foreman Alejandro Molina. Hernandez was injured on the

project site when he fell from a “rebar cage” while attempting to place on the cage a

concrete form suspended from a crane. He filed negligence and gross negligence

claims against JLB.

        JLB filed a traditional and no-evidence motion for summary judgment on both

claims. JLB’s motion stated it was based on two grounds: (1) JLB owed no duty to

Hernandez because he was an employee of an independent contractor and JLB did

not exercise actual control over his work or have a contractual right to control the

means, methods, or details of his work, and (2) JLB did not proximately cause

Hernandez’s alleged injuries.6 The evidence attached to JLB’s motion included

excerpts from the Subcontract and depositions of Hernandez and Capform

superintendent Juan Gutierrez, Molina’s supervisor.




    5
     JLB failed to attach Exhibit K to its summary judgment motion but Hernandez submitted it with his
response.
    6
     Additionally, in the argument section of its summary judgment motion, JLB asserted, “Plaintiff cannot
provide any evidence to support the negligence elements of duty, breach, and causation.” On appeal, JLB
does not address the element of breach.
                                                  –5–
      In those deposition excerpts, Gutierrez testified (1) he is “the one who’s in

charge of what work that Capform employees are doing on a daily basis”; (2) no one

from JLB told him “how to install the braces” on the rebar cage that fell; and (3) “no

one from JLB has to tell us how to do the job.” Hernandez testified (1) on the day of

the accident, Molina told Hernandez he would be setting the form on the cage; (2) it

was not “windy” that day; (3) JLB did not give Hernandez any instructions regarding

how to set the form or tell Hernandez to get up on the cage that fell; and (4) he did

not see anyone from JLB “on this job on the day of the accident before it occurred.”

Also, Hernandez replied “I don’t know” in response to questions regarding whether

anyone from JLB knew bracing for the rebar cage had been attached to the ground

with nails instead of rebar, whether Hernandez had any reason to believe JLB caused

the accident, and whether Capform installed the braces on the cage.

      Hernandez filed a response to JLB’s summary judgment motion in which he

asserted (1) the day of the accident “was a windy day”; (2) “[t]he windy conditions

were not ideal for either working on the double stack tower, or for lowering the

concrete form by crane”; (3) “[JLB’s] supervisors were onsite and knew of the

hazards which workers were facing”; (4) “the subcontractor had been instructed by

the General Contractor, JLB Builders, to go ahead with efforts to get the rebar tower

and concrete form in place in order to be able to pour concrete later that day”;

(5) “[a]s the crane lowered the concrete form onto the tower, the tower either

swayed, or was contacted by the concrete form” and “it was evident that none of the
                                         –6–
bracing . . . could keep the double size rebar tower in place”; and (6) as the cage

began to fall, Hernandez “scrambled desperately to jump free of the tower as it fell,

but it landed on his legs, causing multiple fractures.” Hernandez contended JLB

“exercised full control of the schedule, including its decision to schedule the crane

for different phases of the project,” “had contractual authority to control the details

of Capform’s work, including accident prevention and safety,” and “breached its

duty to assure safe working conditions for Mr. Hernandez,” which “lead directly” to

his injuries.7 The evidence attached to Hernandez’s summary judgment response

included (1) affidavits of Hernandez and Molina; (2) the Subcontract; (3) JLB




   7
       Specifically, Hernandez contended in his summary judgment response,

         [JLB] was the general contractor and controlling employer for work on the site, and was in
         charge not only of scheduling, and work progress at the site, but contractually required
         Capform and Mr. Hernandez to follow the safety rules and procedures in the JLB Health
         and Safety Manual. JLB Builders also required Capform to submit a separate safety
         program for JLB Builders’ approval, which JLB mandated include a “fall hazard”
         component. JLB Builders followed up on its contractual authority by instructing Capform
         at times concerning its work methods, conducting daily site inspections, conducting regular
         safety meetings that Capform was required to attend, and also attending Capform’s
         meetings. JLB Builders also contracted with an outside provider to perform regular safety
         audits of the site, covering the smallest details of the project, and following up to instruct
         subcontractors such as Capform to make changes based on the audits.
         ....
                  Mr. Hernandez presented ample evidence that the JLB Defendants breached their
         standard of care by: failing to assure that the rebar tower was properly braced; failure to
         assure that proper braces were not [sic] used; insisting that work continue despite the
         presence of high winds, or failing to stop the work despite the presence of high winds;
         failing to warn Mr. Hernandez of the hazards associated with the inadequate bracing and
         high winds. There is also ample record evidence that the failure to adequately brace the
         tower was a contributing cause of the accident, and that requiring the work to continue in
         the high winds was a cause of the accident.


                                                     –7–
Partners, L.P.’s 170-page “Health & Safety Manual”; and (4) excerpts from

depositions of Gutierrez and JLB corporate representative Paul Johnston.

      Johnston testified in his deposition (1) on the day of the injury, JLB

supervisory employees were on the site; (2) 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”; (3) JLB “inspects for safety

every day”; and (4) JLB had “the authority to correct any unsafe condition,” “the

responsibility to enforce subcontractors’ compliance with safety and health

requirements,” and “an obligation to exercise reasonable care to prevent and detect

violations at its construction sites” and “implement an effective system for promptly

correcting hazards.”

      Gutierrez testified in his deposition (1) he made the decision that “the form

should be lifted and lowered to the cage and closed by [crew members]” rather than

being placed on the cage by some other method; (2) he believes a “brace” on the

rebar cage “came loose” from the ground because “a correct bracing was not used”

by the foreman, Molina; and (3) he “explained to the foreman to use rebar,” rather

than nails, to brace the cage, but “they didn’t do what I told them.” Also, Gutierrez

stated,

      Q. Would it have been possible for the form to have been stood up,
      lifted just a short distance off the ground, then closed, then lifted and
      placed around the cage?



                                          –8–
A. Yes. It’s possible. And we tried to do that. But on windy days, it’s
difficult to place the cage over the rebar. There’s a greater risk of
knocking the rebar over.
....
Q. Did anyone you spoke to tell you it was too windy to place the form
around the rebar while it was closed?

A. No.
....
Q. And isn’t it true that if the form is open there is more surface that the
wind can catch and—and blow on?

A. Correct.
....
Q. And it’s—it’s fair to say that no one from JLB told you how to install
the braces?

A. No. As I said awhile ago, JLB has no reason to tell us how, unless
they see something that’s unsafe. They can tell me.
....
Q. And I think we’ve established that you weren’t aware that nails were
used to install the braces, right?

A. Correct.

Q. So if you didn’t know, there would be no reason for JLB to know
that?

A. Correct.
....
Q. Do you recall that it was windy that day?

A. I—I don’t remember very well, but it’s possible that there was some
wind.

Q. If wind was making it difficult to set the column, is that something
that either you or Mr. Molina had the right to stop until it was safer?

A. We could have, but—but I don’t know if it was a wind that was over
45 miles an hour. And even the [crane] operator has the right to say no.

                                    –9–
        Q. In your experience, how does wind affect a crew’s ability to set a
        column?

        A. Well it affects it, as I said, if it’s above 20, 25 miles an hour. If it’s
        less, it affects something, but it’s—but we can—have to continue work.

        Hernandez stated in his affidavit (1) “JLB observed how we did our work in

the days before I was injured” and (2) “[i]n the days before my injuries, I saw JLB

supervisors looking at . . . the wooden supports (or legs)” on the rebar cage in

question.

        Molina stated in his affidavit,

        The bottoms of the bracing for the rebar cage that fell over were secured
        by driving long nails through the bottom into the ground. That is a
        normal and acceptable method of securing the bottom of the bracing,
        and one that we and other Capform personnel had used in other
        situations and on other jobsites.
        ....
               On the day Mr. Hernandez was injured, it was windy. The wind
        speed, in my estimation was about 15–25 miles per hour. I personally
        saw the whole operation and what happened when the rebar cage fell.
        After the carpenters, including Mr. Hernandez, opened the form, the
        crane operator moved the form toward the rebar cage. The momentum
        of the concrete form caused by the crane operator made the form strike
        the rebar cage and cause it to start falling over. . . . I yelled to the
        carpenters to jump off, but it was too late. They were tied onto the rebar
        cage with their safety harnesses.

                                     II. Summary judgment

        In two issues, Hernandez asserts the trial court erred by granting no-evidence

and traditional summary judgment on his negligence claim against JLB.8 We agree.


    8
     Although the trial court’s summary judgment addressed “all” of Hernandez’s claims against JLB,
Hernandez asserts no error on appeal regarding his gross negligence claim. Therefore, the issue of whether

                                                  –10–
                                     A. Standard of review

       We review a trial court’s decision to grant summary judgment de novo. Tarr

v. Timberwood Park Owners Ass’n, Inc., 556 S.W.3d 274, 278 (Tex. 2018). To

prevail on a traditional motion for summary judgment, the movant must show that

no genuine issue of material fact exists and it is entitled to judgment as a matter of

law. Id.; TEX. R. CIV. P. 166a(c). The evidence raises a genuine issue of fact if

reasonable and fair-minded jurors could differ in their conclusions in light of all the

summary judgment evidence. Lam v. Phuong Nguyen, 335 S.W.3d 786, 789 (Tex.

App.—Dallas 2011, pet. denied); Top Cat Ready Mix, LLC v. Alliance Trucking,

L.P., No. 05-18-00175-CV, 2019 WL 275880, at *2 (Tex. App.—Dallas Jan. 22,

2019, no pet.) (mem. op.). A defendant is entitled to summary judgment on a

plaintiff’s claim if it conclusively negates at least one element of the cause of action.

See Sw. Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex. 2002); see also Lam,

335 S.W.3d at 789 (explaining matter is conclusively established if reasonable

people could not differ as to conclusion to be drawn from evidence).

       A party seeking a no-evidence summary judgment must assert that no

evidence exists as to one or more essential elements of the nonmovant’s claim on

which the nonmovant would have the burden of proof at trial. TEX. R. CIV. P. 166a(i).

The burden then shifts to the nonmovant to raise a fact issue on the challenged



summary judgment was proper as to that claim presents nothing for this court’s review. See TEX. R. APP.
P. 38.1(f), (i).
                                                –11–
elements. Id. We review a no-evidence summary judgment under the same legal

sufficiency standard used to review a directed verdict. See id.; Flood v. Katz, 294

S.W.3d 756, 762 (Tex. App.—Dallas 2009, pet. denied). A no-evidence motion for

summary judgment is improperly granted if the nonmovant presented more than a

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

challenged elements. Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004).

More than a scintilla of evidence exists if the evidence “rises to a level that would

enable reasonable, fair-minded persons to differ in their conclusions.” Id. at 601.

“[W]hen the evidence offered to prove a vital fact is so weak as to do no more than

create a mere surmise or suspicion of its existence, the evidence is no more than a

scintilla and, in legal effect, is no evidence.” Id.

       In reviewing a summary judgment of either type, we consider the evidence

“in the light most favorable to the nonmovant, indulging every reasonable inference

and resolving any doubts against the motion.” Sudan v. Sudan, 199 S.W.3d 291, 292

(Tex. 2006) (per curiam) (quoting City of Keller v. Wilson, 168 S.W.3d 802, 823

(Tex. 2005)). If a no-evidence motion for summary judgment and a traditional

motion for summary judgment are filed that respectively assert the plaintiff has no

evidence of an element of its claim and alternatively assert the movant has

conclusively negated that same element of the claim, we address the no-evidence

motion for summary judgment first. Ford Motor Co., 135 S.W.3d at 600. Where, as

here, the trial court’s order granting summary judgment does not specify the grounds
                                           –12–
relied on, we must affirm if any of the summary judgment grounds are meritorious.

Cunningham v. Tarski, 365 S.W.3d 179, 186 (Tex. App.—Dallas 2012, pet. denied).

                                  B. Applicable law

      To prevail on a negligence claim, a plaintiff must establish a legal duty, a

breach of that duty, and damages proximately caused by the breach. See Bustamante

v. Ponte, 529 S.W.3d 447, 456 (Tex. 2017). Ordinarily, a general contractor does not

owe a duty to ensure that an independent contractor performs its work in a safe

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

However, when the general contractor exercises some control over the manner in

which the subcontractor’s work is performed, he may be liable unless he exercises

reasonable care in supervising the subcontractor’s activity. Id.; see also Redinger v.

Living, Inc., 689 S.W.2d 415, 418 (Tex. 1985). The general contractor’s duty of care

is commensurate with the control it retains over the independent contractor’s work.

Lee Lewis Constr., 70 S.W.3d at 783. 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.

      General supervisory control that does not relate to the activity causing the

injury is not sufficient to create a duty. Gonzalez v. VATR Constr. LLC, 418 S.W.3d

777, 785 (Tex. App.—Dallas 2013, no pet.). Thus, merely exercising or retaining a

general right to recommend a safe manner for the independent contractor’s
                                        –13–
employees to perform their work is not enough to impose a duty. Id.; see also Dow

Chem. Co. v. Bright, 89 S.W.3d 602, 611 (Tex. 2002) (“[M]ere promulgation of

safety policies does not establish actual control.”); Koch Refining Co. v. Chapa, 11

S.W.3d 153, 156 (Tex. 1999) (per curiam) (explaining that requiring 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 [an employer] to ensure that [an independent contractor’s employees

do] nothing unsafe”). In addition, there must be a nexus between a general

contractor’s retained supervisory control and the condition or activity that caused

the injury. Hoechst-Celanese Corp. v. Mendez, 967 S.W.2d 354, 357–58 (Tex. 1998)

(per curiam). The right to control must be more than a general right to order work to

stop and start, or to inspect progress. Coastal Marine Serv. of Tex., Inc. v. Lawrence,

988 S.W.2d 223, 226 (Tex. 1999) (per curiam). The supervisory control must relate

to the activity that actually caused the injury and grant the general contractor at least

the power to direct the order in which work is to be done or the power to forbid it

being done in an unsafe manner. Id.

      In order to have actual control, a general contractor “must have the right to

control the means, methods, or details of the independent contractor’s work to the

extent that the independent contractor is not entirely free to do the work his own

way,” and the “right to control the work must extend to the ‘operative detail’ of the

contractor’s work.” Union Carbide Corp. v. Smith, 313 S.W.3d 370, 375 (Tex.
                                          –14–
App.—Houston [1st Dist.] 2009, pet. denied) (quoting Ellwood Tex. Forge Corp. v.

Jones, 214 S.W.3d 693, 700 (Tex. App.—Houston [14th Dist.] 2007, pet. denied)).

“A possibility of control is not evidence of a ‘right to control’ actually retained or

exercised.” Hernandez v. Hammond Homes, Ltd., 345 S.W.3d 150, 155 (Tex.

App.—Dallas 2011, pet. denied) (quoting Coastal Marine, 988 S.W.2d at 226

(explaining that evidence plaintiff would have followed safety measures and avoided

injury if defendant had required them was no evidence of actual control)). A general

contractor has actually exercised control of a premises when the general contractor

knew of a dangerous condition before an injury occurred and approved acts that were

dangerous and unsafe. Dow Chem., 89 S.W.3d at 609 (citing Lee Lewis Constr., 70

S.W.3d at 784).

      The two elements of proximate cause are cause in fact and foreseeability.

Bustamante, 529 S.W.3d at 456. Cause in fact is established when the act or omission

was a substantial factor in bringing about the injuries and, without it, the harm would

not have occurred. Id. Harm is foreseeable if a person of ordinary intelligence should

have anticipated the danger created by an act or omission. Bos v. Smith, 556 S.W.3d

293, 303 (Tex. 2018). The exact sequence of events need not be foreseeable, but the

conduct must be sufficiently similar to give the defendant notice of the general nature

of the danger. Id.




                                         –15–
                                              C. Analysis

        Hernandez contends the trial court erred by granting no-evidence and

traditional summary judgment on his negligence claim because the evidence shows

JLB owed a duty to keep him safe, breached that duty by “permitting and instructing

Capform to work under dangerous conditions,” and thereby proximately caused his

injuries. Hernandez argues JLB’s duty was based on both contractual control and the

exercise of actual control. Additionally, as he had in his motion for panel rehearing,

Hernandez notes in his motion for reconsideration en banc that this court’s

November 1, 2018 opinion failed to address two cases pertaining to subcontractor

control and predating that opinion: 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.).9


    9
      Although Arredondo and Morales involved the same legal principles applicable in this case and
support our conclusions below, neither this opinion nor our decision to reconsider this case en banc is
dependent on those cases. In determining whether en banc reconsideration is warranted, we are not limited
to considering only the bases urged by appellant’s en banc reconsideration motion. See TEX. R. APP. P. 49.7
(“While the court has plenary power, a majority of the en banc court may, with or without a motion, order
en banc reconsideration of a panel’s decision.”). The original panel’s analysis omits any mention of (1) the
Subcontract provisions described above regarding schedule control and mandatory safety harness use;
(2) Johnston’s testimony that JLB supervisory employees were on-site on the day of the accident and knew
the cage could fall over in the event of strong wind or improper bracing; (3) Hernandez’s testimony that he
saw JLB supervisors looking at the cage’s bracing prior to the accident; and (4) Molina’s statements that
the wind speed was 15–25 miles per hour on the day of the accident and Hernandez was told to jump, but
was tethered to the cage by his safety harness.
        Those omissions demonstrate that the original panel’s opinion represents a serious departure from
precedent in the review of no-evidence summary judgment cases and therefore warrants en banc review
under Texas Rule of Appellate Procedure 41.2 to “secure or maintain uniformity of the court’s decisions.”
TEX. R. APP. P. 41.2; see In re V.V., 349 S.W.3d 548, 606 (Tex. App.—Houston [1st Dist.] 2010, pet.
denied); see also Kennamer v. Estate of Noblitt, 332 S.W.3d 559, 571 (Tex. App.—Houston [1st Dist.]

                                                   –16–
                          1. Duty based on actual exercise of control

        Hernandez contends JLB owed him a safety duty based on actual control

because JLB exercised “precisely the type of detailed, hands-on control

contemplated” in Lee Lewis Construction and Morales. JLB responds,

        [T]o establish actual control, the evidence must be such that the general
        contractor or property owner was so involved in the work being
        performed that it can be said to have approved the dangerous act leading
        to injury. . . . There is no such evidence here. In fact, Capform’s
        supervisor specifically testified that JLB did not tell him how to brace
        the tower the day of Appellant’s injury and did not approve the way in
        which it was done. Appellant Hernandez himself testified that JLB did
        not give him any instructions on how he was to set the form or platform
        on the day of the accident, and could not even identify any way in which
        JLB, who did not even have anyone present the day of the accident, was
        negligent in connection with the accident.

(citations omitted).

        In Lee Lewis Construction, the supreme court upheld a jury’s finding that a

general contractor was liable for the death of an independent contractor’s employee

who fell from a ten-story building when his safety support system failed. Lee Lewis

Constr., 70 S.W.3d at 782. The supreme court focused on the evidence showing the

general contractor assigned a superintendent “the responsibility to routinely inspect


2009, pet. denied) (Keyes, J., dissenting) (stating en banc review was warranted because the panel “reads
City of Keller as requiring it to weigh the evidence for itself and to determine whether reasonable people
could differ with its own judgment,” “misapplies the summary judgment rule in a way that . . . distorts
summary judgment practice within the jurisdiction of this Court,” and “wrongfully encourages parties to
file summary judgment motions on fact issues as to which there is conflicting evidence in the hope that this
Court, following its own precedent, will determine that no reasonable person could disagree with its own
determination of disputed facts, transforming summary judgment practice from a means of disposing of
cases that present only legal issues to a means of trying material fact issues by selected proofs submitted to
the court”).

                                                    –17–
the ninth and tenth floor addition to the south tower to see to it that the subcontractors

and their employees properly utilized fall protection equipment.” Id. at 784. Further,

the supreme court noted the evidence demonstrating the superintendent personally

witnessed and approved of the specific fall-protection systems used by the

independent contractor. Id. In that case, the supreme court concluded the evidence

was “more than scintilla of evidence that [the general contractor] retained the right

to control fall-protection systems on the job site.” Id.

      Morales involved a plaintiff injured in an industrial accident while employed

by a contractor, Turner. See Morales, 2018 WL 2252901, at *1. Turner was under

contract with Alcoa to provide maintenance and repair services at an Alcoa alumina

refining facility. Morales contended Alcoa negligently failed to ensure that all of the

“process liquor,” a chemical solution, was cleared out of a pipe, called a “riser,”

before giving the Turner crew orders to begin their work. Also, Morales alleged

Alcoa had actual knowledge that the riser “was not isolated” from the liquor flow.

Id. When Turner employees began their work, hot liquor sprayed out of the riser,

burning Morales. Id. The trial court granted summary judgment in favor of Alcoa on

Morales’s negligence claims and Morales appealed. The court of appeals reversed,

concluding the evidence raised a fact issue concerning whether Alcoa exercised

control over the manner in which the work was performed. The court stated (1) the

work Turner was hired to do “necessarily entails the unbolting of flanges”; (2) the

evidence showed Alcoa required Turner to perform that task according to
                                          –18–
instructions contained in the “Standard Work Instruction form,” a twelve-page Alcoa

document containing detailed guidelines on “how Alcoa’s contractors must perform

flange breaks,”; (3) “[m]oreover, it is undisputed that [Alcoa] exercised actual and

exclusive control over the verification process, including the proper flushing and

draining of the risers, and that the Turner crew relied on [Alcoa’s] performance of

this activity”; and (4) “[a]ccordingly [Alcoa] exercised ‘some control’ over the

‘operative details’ of ‘the work.’” Id. at *10; see also Enserch Corp. v. Parker, 794

S.W.2d 2, 6 (Tex. 1990) (concluding fact question regarding control was raised

where contract gave general contractor “the right to order work changes in the nature

of additions, deletions, or modifications” and general contractor provided specific

procedure manual, frequently visited site, and supervised subcontractor’s

employees).

      Here, we are presented a different cluster of factors but one that reveals a fact

issue nonetheless. In this case, JLB’s Johnston testified (1) JLB “inspects for safety

every day”; (2) on the day Hernandez was injured, JLB supervisory employees were

on the site; and (3) 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.” The mere presence of a JLB safety employee

(or employees) would not create sufficient control for JLB to have owed a duty. See

Koch, 11 S.W.3d at 157 (“We conclude that a premises owner, merely by placing a

safety employee on the work site, does not incur a duty to an independent
                                        –19–
contractor’s employees to intervene and ensure that they safely perform their

work.”). But there is evidence JLB retained control over the daily 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. And 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.10 Thus, we conclude there is more than a scintilla of evidence that

JLB owed Hernandez a duty arising from actual exercise of control. See Lee Lewis

Constr., 70 S.W.3d at 784 (concluding evidence supported actual control where on-

site superintendent overseeing mandatory use of fall-protection equipment

witnessed and approved of contractor’s fall-protection systems); Morales, 2018 WL

2252901, at *10 (concluding evidence raised fact issue regarding duty where owner

provided performance guidelines and controlled draining process necessary to

contractor’s work); see also Hoechst-Celanese, 967 S.W.3d at 357–58. Additionally,

we conclude reasonable and fair-minded jurors could differ in their conclusions

regarding JLB’s actual exercise of control. See Lee Lewis Constr., 70 S.W.3d at 782–

84; Morales, 2018 WL 2252901, at *10; Hoechst-Celanese, 967 S.W.3d at 357–58;

see also Lam, 335 S.W.3d at 789. Therefore, the trial court erred to the extent it

granted summary judgment in JLB’s favor based on lack of duty arising from actual


    10
       We reject Justice Bridges’s suggestions that this opinion will encourage general contractors to
“completely distance themselves from any efforts to assure safety on their work sites.” We do no more than
address “all” admitted evidence and conclude the trial court—on these specific, unique facts—incorrectly
granted summary judgment. See City of Keller, 168 S.W.3d at 810–11 (beginning with the propositions that
the relevant inquiry is “fact specific” and is based on the evidence jurors heard).
                                                  –20–
exercise of control. In light of that conclusion, we need not address contractual

control.

                           2. Breach and proximate cause

      Hernandez contends JLB breached its duty of care to him because it “did not

exercise reasonable care in supervising the subcontractor’s activity” and “[i]n

fact, . . . insisted on Capform employees continuing to conduct a dangerous activity

in dangerous conditions.” Also, he asserts there was “ample evidence in the record

demonstrating that [JLB’s] decisions were an actual and foreseeable cause of the

incident.” He argues (1) “[b]ut for JLB’s insistence that work continue under

dangerously windy conditions, [he] would not have fallen”; (2) “[a]s a result of

[JLB’s] negligence, [he] fell from the tower and sustained serious injuries”; and

(3) he “attempted to jump free of the tower as it fell, but it landed on his legs.”

      Based on the same evidence described in the duty analysis above, we conclude

there is more than a scintilla of evidence that (1) JLB breached its duty of care by

not exercising reasonable care in supervising Capform’s activity, see Lee Lewis

Constr., 70 S.W.3d at 783 (stating that when general contractor exercises some

control over manner in which subcontractor’s work is performed, he may be liable

unless he exercises reasonable care in supervising subcontractor’s activity), and

(2) JLB’s act or omission proximately caused Hernandez’s injury; see Guevara v.

Ferrer, 247 S.W.3d 662, 666–67 (Tex. 2007) (explaining that evidence establishing

sequence of events that provides strong, logically traceable connection between
                                         –21–
event and condition suffices to support causation finding). Additionally, under the

traditional summary judgment standard of review described above, we conclude

reasonable and fair-minded jurors could differ in their conclusions regarding breach

and proximate cause. See Lee Lewis Constr., 70 S.W.3d at 783; Guevara, 247

S.W.3d at 667. Therefore, the trial court erred to the extent it granted summary

judgment in JLB’s favor based on lack of breach or proximate cause. See Lam, 335

S.W.3d at 789; Ford Motor Co., 135 S.W.3d at 601.

                                          III. Conclusion

         We decide Hernandez’s two issues in his favor.11 We reverse the portion of

the trial court’s order granting summary judgment in favor of JLB on Hernandez’s

negligence claim, otherwise affirm the trial court’s order, and remand this case to

the trial court for further proceedings consistent with this opinion.


                                                         /Cory L. Carlyle/
                                                         CORY L. CARLYLE
                                                         JUSTICE

Bridges, J., dissenting joined by Myers, Whitehill, Schenck, and Evans, JJ.

Whitehill, J., dissenting from en banc reconsideration joined by Bridges, Myers,
Schenck, and Evans, JJ.

170719F.P05
    11
      Although the dissent addresses the evidence omitted from the original panel’s opinion, the dissent’s
analysis in reaching its “no-evidence” conclusions disregards our obligation under the applicable standard
of review to consider the evidence “in the light most favorable to the nonmovant, indulging every
reasonable inference and resolving any doubts against the [summary judgment] motion.” Sudan, 199
S.W.3d at 292 (quoting City of Keller, 168 S.W.3d at 823). The inferences indulged in this opinion’s
analysis are proper and cannot be rejected merely because they conflict with the dissent’s own
determination of disputed facts. See id.
                                                  –22–
                            Court of Appeals
                     Fifth District of Texas at Dallas
                                 JUDGMENT

JOSE HERNANDEZ, Appellant                     On Appeal from the County Court at
                                              Law No. 4, Dallas County, Texas
No. 05-17-00719-CV          V.                Trial Court Cause No.
                                              CC-15-00715-D.
SUN CRANE AND HOIST, INC.;                    Opinion delivered by Justice Carlyle,
JLB PARTNERS, L.P.; JLB                       before the Court sitting en banc.
BUILDERS, L.L.C.; AUGER
DRILLING, INC.; AND D’AMBRA
CONSTRUCTION
CORPORATION, Appellees

      We WITHDRAW our opinion and VACATE our judgment of November 1,
2018. This is now the judgment of the Court.

       In accordance with this Court’s opinion of this date, we REVERSE the
portion of the trial court’s order granting summary judgment in favor of appellee
JLB Builders, L.L.C. on appellant Jose Hernandez’s negligence claim; otherwise
AFFIRM the trial court’s order; and REMAND this case to the trial court for
further proceedings consistent with this opinion.

      It is ORDERED that appellant Jose Hernandez recover his costs of this
appeal from appellee JLB Builders, L.L.C.


Judgment entered this 26th day of March, 2020.




                                       –23–
