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 
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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.” 
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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. 
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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. 
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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 
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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 
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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. 
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(b) [Capform] accepts sole responsibility for providing a safe place 

to work for its employees and for the employees of its subsubcontractors 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. 
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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 
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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. 
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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 
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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 
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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. 
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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. 
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Accordingly, I would not reach the breach and proximate cause issues 

addressed by the majority. 

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

170719DF.P05 

/David L. Bridges/ 

DAVID L. BRIDGES 

JUSTICE