
Opinion issued November 4, 2004





            











In The
Court of Appeals
For The
First District of Texas
 

 
 
NO. 01-02-00829-CV
____________
 
GEORGE LEWIS, Appellant
 
V.
 
UNITED PARCEL SERVICE, INC. , Appellee
 

 
 
On Appeal from the 189th District Court
Harris County, Texas
Trial Court Cause No. 00-19870
 

 
 
CONCURRING  OPINION
          Appellant, George Lewis (Lewis), an independent contractor employee, did not
present legally sufficient evidence to establish that appellee, United Parcel Service,
Inc. (UPS), a premises owner, had a contractual right of control over his work,
retained any control over his work, or did anything to ensure that he safely performed
his work.  Accordingly, I would hold that the trial court did not err in refusing to
submit Lewis’s proposed jury question regarding UPS’s right to control safety
procedures at its package-sorting facility.  Because the majority opinion errs in
concluding that “UPS’s right to control is implicit and . . . not an issue in this case”
and that the trial court did not err in refusing to submit a control issue to the jury
because “it properly submitted the issue of general negligence only,” I concur only
in the judgment of this Court.
Background
          On October 11, 1999, Jerry Carpenter, a UPS local sort supervisor, contacted
Lewis, a millwright
 employed by Turbex Inc. (Turbex), to repair a conveyer belt
located at a UPS package-sorting facility in Houston.  At that time, Lewis had over
30 years of experience as a millwright and had worked “almost 20 years, off and on,” 
for Turbex, an independent contractor hired by UPS to perform conveyor belt repairs.          When Lewis arrived at the UPS facility at approximately 6:45 p.m.,  Carpenter
directed him to the “M1-G2” conveyor belt.  Lewis performed a “lockout/tagout”
safety procedure, which prevented the M1-G2 from unexpectedly starting up, and he
then began his repairs.  However, an adjacent primary feed belt, the “PF1-1”
continued in operation.  As the evening wore on, Lewis noticed a UPS employee shift
change, and he saw that the PF1-1 was not in use.  At approximately 10:30 p.m., as
Lewis was clearing his work area, he stepped onto the PF1-1 to retrieve a tool, and,
when he did so, he heard the sound of a buzzer signaling that the conveyor belt was
about to start up.  When the PF1-1 started up, Lewis’s right foot was severely injured
after it was pulled into a gap in the PF1-1.
          Lewis subsequently sued UPS for negligence, alleging that UPS was negligent,
generally, for certain acts and omissions and that UPS, as a premises owner, failed “to
enforce pre-startup and pre-sort policies and procedures.”
          At trial, Carpenter testified that, if Lewis had performed the lockout/tagout
safety procedure on the PF1-1 before stepping onto it, the belt would not have started
up.  Carpenter had seen Lewis perform this procedure on previous occasions, and
Lewis was authorized to lockout the PF1-1 if he “needed that belt shut off.” 
Carpenter also explained that, in his opinion, Lewis could have retrieved the tool
without stepping onto the PF1-1.
          Paul Allen, a UPS security representative, testified that UPS prohibited its
employees and independent contractors from standing on the conveyor belts at its
facility except for certain “metro gathering belts.”  He noted that, although he was not
present at the facility on October 11, 1999, there should have been a five-second
delay between the warning buzzer and the start up of the PF1-1.  Allen explained that,
when he tested the system the day after the incident, he observed that five seconds
elapsed between the time that the warning buzzer sounded and the start of the PF1-1. 
Allen also explained that UPS prohibited its employees from altering the duration of
the delay.
          Larry Alvarez, the owner of Turbex, testified that, after the incident, Lewis
admitted that he heard the warning buzzer and “just [did not] react to it.”  Alvarez
explained that, in his opinion, when Lewis heard the buzzer, he “should have gotten
[himself] out of harm[’s] way very fast.”
          Lewis testified that he knew that the lockout/tagout safety procedure was
important and that he had been using it “for a very long time.”  Lewis also admitted
that he knew it was dangerous to step onto a conveyor belt that had not been locked
out and that nothing had prevented him from locking out the PF1-1.  Lewis noted,
however, that Carpenter had previously informed him by radio when UPS employees
were preparing to start a conveyor belt. Lewis explained that the delay between the
sound of the warning buzzer and the start of the PF1-1 was “the quickest delay [he]
ever saw,” and that, as a result, he did not have enough time to get off of the PF1-1. 
Lewis estimated that the delay was only one or two seconds long.
          At the charge conference, UPS, citing Redinger v. Living, Inc., 689 S.W.2d
415, 418 (Tex. 1985), objected to the “absence of a control issue incorporated into the
case” on the grounds that Lewis had worked for an independent contractor and that
“Texas law establishes certain rules that apply to that relationship, one being that
there is no obligation to insure that a contractor’s employee perform the work in a
safe manner unless there is a right of control.”  The trial court, on the record,
distinguished Redinger on the basis that the instant case “is not a general contractor
case, which Redinger was.”  The trial court also noted that Lewis was not “claiming
. . . UPS should have watched Lewis and should have made sure he did his job in a
safe manner.”  After UPS cited additional authority, the trial court overruled its
objection.
          Lewis then tendered the following written question to the trial court and
requested that it be submitted to the jury:
Did United Parcel Service, Inc. (Ohio) have the right to control safety
policies and procedures at the Mykawa facility?
The trial court denied Lewis’s request and marked the question “refused.”
          In its charge to the jury, the trial court included standard definitions, in regard
to both individuals and companies, of “negligence” and “ordinary care” and presented
the following broad-form negligence question:
Did the negligence, if any, of those named below, proximately cause the
injury in question?

          Answer “YES” or “NO” for each of the following:
                    a. United Parcel Service, Inc.    _____
                    b. George Lewis                         _____
The jury answered “no” as to UPS and “yes” as to Lewis.
Jury Question on UPS’s Right of Control
          In issue one, Lewis contends that the trial court erred in refusing to submit a 
jury question regarding UPS’s right to control safety procedures at its package-sorting
facility.  Referencing two of the numerous theories of liability asserted by Lewis in
his amended petition, the majority opinion notes that Lewis alleged that “(1) UPS’s
employee started the conveyor without any warning and (2) UPS’s buzzer did not
work properly.”  The majority opinion reasons that, because these two acts “are
attributable to UPS, not an independent contractor, UPS’s right of control is implicit
and, therefore, not an issue in this case” and “the trial court did not err in refusing to
submit the issue of right to control to the jury; rather, it properly submitted the issue
of general negligence only.”  The majority opinion further concludes that “a general
negligence charge was proper.”
          However, neither party actually challenges the trial court’s use of the basic
definitions of “negligence” and “ordinary care,” or its submission of a broad-form
negligence question.  Instead, the issue squarely presented to this Court is whether
the trial court erred in refusing to submit to the jury Lewis’s theory of liability based
on UPS’s alleged duty, as a premises owner, to ensure that Lewis, an independent
contractor employee, safely performed his work—an issue which, as demonstrated
by the facts as I have presented them above, was, if not properly pleaded, expressly
tried by the consent of both parties.  See Tex. R. Civ. P. 67 (“When issues not raised
by the pleadings are tried by express or implied consent of the parties, they shall be
treated in all respects as if they had been raised in the pleadings.”).  Under this theory
of liability, the negligent activity in question is that of Lewis himself, i.e., stepping
onto the PF1-1 without performing UPS’s lockout/tagout procedure on the PF1-1. 
The majority opinion’s conclusion that the “trial court did not err in submitting a
general negligence charge” ignores the actual issue presented to this Court and
answers an issue that neither party has raised.
          Like the trial court below, the majority opinion misses Lewis’s point.  Lewis’s
point, clearly articulated to this Court, is that he “presented more than a scintilla of
evidence showing UPS was liable for failing to exercise its control over the safety
methods and procedures with reasonable care” because Carpenter “never asked Mr.
Lewis to lockout the adjacent conveyor that caused Mr. Lewis’s injuries.”  Lewis
asserts that the “evidence is uncontroverted that Mr. Lewis was required to follow the
‘UPS lockout procedures,’ and that UPS retained the right of control over compliance
with its lockout procedures.”  He argues, thus, that his “requested jury question on
UPS’s right of control was material, properly worded, and dispositive on the issue of
liability.”
          Had Lewis presented more than a scintilla of evidence that UPS,  as a premises
owner, had a contractual right of control over Lewis’ work, retained any control over
Lewis’ work, or did anything to ensure that Lewis safely preformed his work, he
would have been entitled to a properly phrased issue and instruction on UPS’s “right
to control” safety procedures.  See Tex. R. Civ. P. 278 (A trial court must submit to
a jury “questions, instructions and definitions . . . which are raised by the written
pleadings and the evidence.”).  As explained by the Texas Supreme Court:
Right to control may be shown by explicit contractual assignment or
actual exercise of control.  Generally, the former is a question of law for
the court and the latter a question of fact for the jury.

Shell Oil Co. v. Khan, 138 S.W.3d 288, 292 (Tex. 2004) (footnotes omitted).

          Moreover, the Supreme Court has emphasized that it is “fundamental to our
system of justice that parties have the right to be judged by a jury properly instructed
in the law.”  Crown Life Ins. Co. v. Casteel, 22 S.W.2d 378, 388 (Tex. 2000).  We
have been admonished that “when a jury bases a finding of liability on a single broad-form question that commingles invalid theories of liability with valid theories, [an]
appellate court is often unable to determine the effect of [such an] error.”  Id.  A jury
must be able to base its verdict on legally valid questions and instructions.  Id.  Here,
a right to control safety issue was critical to Lewis because the jury simply could not
have understood, without proper guidance, that UPS, as a premises owner, could have
been held liable to Lewis, an independent contractor employee, for Lewis’s own
negligent activity.  A finding on a right to control issue would have been equally
important to UPS had the jury found that its negligence proximately caused Lewis’s
injury because UPS could have, theoretically, been “held liable without a judicial
determination that a factfinder actually found that [it] should be held liable on proper,
legal grounds.”  Id.  Accordingly, I disagree with the majority opinion’s
characterization of the issue and with its analysis, and I turn to the merits of Lewis’s
first issue and his arguments presented.
          Lewis asserts that UPS “dictated the safety methods and procedures that
[Lewis] was required to follow” and “retained the right of control over compliance
with its lockout procedures.”  In fact, Carpenter testified that UPS required its
independent contractors to be “familiar with the UPS procedure for lockout/tagout”
and that “they abide by it.”  Lewis, thus, concludes that the trial court erred in
denying his proposed question “on UPS’s right of control over the safety and lockout
procedures [he] was required to follow on UPS’s premises.”  In support of his
argument, Lewis relies on Redinger and Dow Chemical Co. v. Bright, 89 S.W.3d 602
(Tex. 2002), Lee Lewis Construction, Inc. v. Harrison, 70 S.W.23d 778 (Tex. 2001),
and Hoechst-Celanese Corporation v. Mendez, 967 S.W.2d 354 (Tex. 1998).
          As noted by the Texas Supreme Court, a premises owner or occupier generally
does not have a duty to ensure that an independent contractor safely performs his
work.  Redinger, 689 S.W.2d at 418.  The Redinger court noted that an owner or
occupier of land has a duty to use reasonable care to keep the premises under his
control in a safe condition and that a general contractor, who is in control of a
premises, is charged with the same duty as an owner or occupier.  689 S.W.2d at 417. 
The court also noted that:
This duty to keep the premises in a safe condition may subject the
general contractor [premises owner] to direct liability in two situations:
(1) those arising from a premises defect, (2) those arising from an
activity or instrumentality.

Id.  The Court concluded that the case before it was “not a premises defect case,” but
was instead a case involving “an injury caused by an activity conducted on the
premises.”  Id.  The Court then went on to adopt the rule that
[o]ne who entrusts work to an independent contractor, but who retains
the control of any part of the work, is subject to liability for physical
harm to others for whose safety the employer owes a duty to exercise
reasonable care, which is caused by his failure to exercise his control
with reasonable care.

Id. at 418 (quoting Restatement (Second) of Torts § 414 (1977)).
          Accordingly, where a premises owner either contractually retains or actually
exercises control over the independent contractor’s work, the premises owner must
exercise that control with reasonable care.  Koch Ref. Co. v. Chapa, 11 S.W.3d 153,
155 (Tex. 1999).  For example, “an employer [premises owner] who gives on-site
orders or provides detailed instructions on the means or methods to carry out a work
order owes the independent contractor employee a duty of reasonable care to protect
him from work related hazards.”  Mendez, 967 S.W.2d at 357 (citing Redinger, 689
S.W.2d at 418).  Safety requirements also “give rise to a narrow duty of care.” 
Mendez, 967 S.W.2d at 357.  This “narrow” duty is “commensurate with the control
[the premises owner] retains over the contractor’s work.”  Id.  However, “merely
exercising or retaining a general right to recommend a safe manner for the
independent contractor’s employees to perform their work is not enough to subject
a premises owner to liability.”  Bright, 89 S.W.3d at 607 (quoting Koch, 11 S.W.3d
at 155).
          In Mendez, the Texas Supreme Court held that a premises owner’s “insistence”
that an independent contractor “observe and promote compliance with federal laws,
general safety guidelines, and other standard safety precautions did not impose an
unqualified duty of care on [the premises owner] to ensure that [the independent
contractor’s] employees did nothing unsafe.”  Id. at 357-58.  Rather, the premises
owner owed the independent contractor’s employees “a duty that any safety
requirements and procedures it promulgated did not unreasonably increase, rather
than decrease, the probability and severity of injury.” Id. at 358.
           Here, as noted above, Carpenter testified that UPS required independent
contractors to be “familiar with the UPS procedure for lockout/tagout” and that “they
abide by it.”  However, as noted in Mendez, this evidence does not establish that UPS
owed Lewis an unqualified duty of care to ensure that Lewis did nothing unsafe.  See
id. at 357-58.  Lewis, in fact, performed a lockout/tagout safety procedure on the M1-G2 belt that he repaired, and he directs us to no evidence that UPS’s policies and
procedures required the lockout/tagout of adjacent conveyor belts not being serviced.
          More importantly, there is no evidence in the record that UPS had a contractual
right of control over Lewis’s work, retained any control over Lewis’s work, or did
anything to ensure that employees of independent contractors actually followed
UPS’s lockout/tagout policies and procedures.  Although UPS may have insisted that
independent contractors “abide by” its lockout/tagout procedures, there is no evidence
that UPS monitored employees of independent contractors or in any way inspected
their work to ensure that they complied with its procedures.  Cf. Harrison, 70
S.W.23d at 784-85 (holding testimony that employee of general contractor had “the
responsibility to routinely inspect . . . to see to it that the subcontractors and their
employees properly utilized fall protection equipment” constituted more than scintilla
of evidence that general contractor retained right to control fall protection system on
jobsite).
Conclusion
          Because there is no evidence in the record that UPS had a contractual right of
control over Lewis’s work, retained any control over Lewis’s work, or did anything
to ensure that employees of independent contractors actually followed UPS’s
lockout/tagout policies and procedures, I would hold that the trial court did not err in
refusing to submit Lewis’s proposed jury question regarding UPS’s right to control
safety procedures at its package-sorting facility.  However, I disagree with the
majority opinion’s characterization of the issue presented, its analysis, and its
conclusions that “UPS’s right to control is implicit” and that the trial court did not err
in refusing to submit  a control issue because “it properly submitted the issue of
general negligence only.” Accordingly, I concur only in the judgment of this Court.




                                                                        Terry Jennings
                                                                        Justice

Panel consists of Chief Justice Radack and Justices Jennings and Higley.

Justice Jennings, concurring in judgment only.
