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, I NC., 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 jud gment 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 gen eral contractor’s retained supervisor y control and the condition or activity that caused an–2– injury. Hoechst-Celanese Corp. v. Mendez , 967 S.W.2d 354, 357–58 (Tex. 1998). Despite this acknowledgement, the majority then retreats from a ny effort to anchor the claim in this case to any act of the general contractor. I nstead, it eliminates the nexus requirement altogether; ab andoning any analysis of contra ctual 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 th e work Hernandez performed and thus constituted the means of his injury. Ignori ng that neither the “cluster” nor any of its constituent parts have any demonstrabl e place in the proximate cause of Hernandez’ i njury, the majority cites a seri es of cases that reject both the majority’s reasoning and its result. In support of its actual control analysis, the majority cites n ot a single case that supports its position and cites only cases supporting this dissent. The majority opinion abandons the issue of contr actual control and concludes a fact issue as to JLB’s actual control is raised by JLB’s retention of control ov er (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, th e

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 despi te the fact that any discussion of safety harnesses would be appropriate onl y under a contractual-control analysis. There is no evidence of JLB’s actual control relative to Hernandez’ use of a safety harness o n the day of the accident. Under supreme court precedent, a contractual requirement that the subcontract or must comply with specific safety procedures gives rise to only a narrow duty of care—“a duty tha t any safety requirements and procedures it promulgated did not unreasonably increase, rather than decre ase, the probability and severity of injury.”–3– majority makes no attempt to show the nexus between JLB’s reten tion of control and Hernandez’ injury. See id. The majority simply makes Hernandez’ argument for him, asserting without support that its “cluster of factors” re late to Hernandez’ injury and establish even a s cintilla of evidence. The majority’s argument is, at each step, in direct conflict wi th Texas Supreme Court authority. In particular, the Texas Supreme Court has lo ng held that neither a property owner nor a general cont ractor takes on the liability for injuries to a subcontractor’s employee by insisting that the subcontractor ad here to safety protocols meant to reduce the risk of injuries to that subcontr actor’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 ne ither a property owner nor a g eneral contractor becomes liable in respondeat superior for “actually” controllin g the manner and means by which work is done by being present at a job site or, while present, expressing concern about a possi ble safety risk to a subcontrac tor. See Dow, 89

Hoescht-Celanese Corp. v. Mendez , 967 S.W.2d 354, 358 (Tex. 1998) (per curiam). There is no ev idence that requiring the use of safety harnesses unreasonably increas ed the probability and severity of injury. On its face, requiring the use of “safety harnesses” seems unlikel y 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 sever ity of injury to Capform’s w orkers 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 tie d onto the rebar cage with their safety harnesses.” But that doesn’t show that the safety-harness requ irement 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.–4– 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 a nd serve only to increase resulting litigation. Despite this supreme court prec edent, a majority of this Court now holds that general cont ractors are liable for general ly requiring that their subcontractors follow a safety p rotocol. General contractors m ay 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 safet y 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 Hernan dez, 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 be cause they directed the schedule and sequence by whic h the subcontractor’s work was to be done. In
Dow , an employee of an independent c ontractor hired to perform con struction 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 Ma y 17, 2018, pet. denied) (mem. op.). These cases formed the basis of appellant’s motion for e n banc rehearing. The majority then goes on to state that neither its opinion nor the decision to reconside r this case en banc depended on those cases.–5– 89 S.W.3d at 605. The employee asserted that Dow exercised act ual control by retaining authority over the ti ming 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 indep endent contractor’s employees should perform what task and at what poi nt in time. Id. The employee did present evidence that the timing and sequence of t he independent contractor’s work was indicated on a job efficiency matrix prep ared 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 w as not evidence that Dow controlled the t iming and sequence of the erection of the pipe at issue and the employee’s carpent ry work in the area that resulted in the injury at issue. Id. The court concluded, t herefore, that Dow did not exercise actual control. Id. Likewise, Mendez forecloses any claim in this case based on any claim that appellants were actually controll ing the details of the work. In Mendez , an employee of an independent contractor hired to perform various maintenan ce services at the Celanese plants sustained serio us injuries when he fell from th e 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 ha ve been safer a nd more appropriate–6– than a toolbox. Id. at 358. However, the court determined this was no evidence th at Celanese’s requirement that tools and implements be used in the manner for which they were intended was generall y 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 sa fety standards. Id. In this case, none of the so-called “cluster of factors” relate d to JLB’s involvement in scheduling work, prioritizing work, or determini ng when equipment would be available establishes JL B controlled the timing and se quence of the events that caused Hernandez’s injury or that JLB’s actual control pla yed 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 gene ral schedule does not make the general contractor liable for injuries to a subcon tractor’s employees.
BACKGROUND In October 2013, JLB entered into a Subcontract Agreement with Capform, Inc. regarding a construction project in Dallas. The subcontra ct provided JLB would pay Capform $11,583,000 for the work. On December 5, 2013, Ale jandro Molina was Capform’s foreman and Herna ndez was a member of the work cr ew 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 f orm strike the rebar–7– cage and cause[d] it to start f alling over.” Hernandez was inj ured 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 provid ed 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, warrantee s and all permits, licenses and fees (as applicable) necessary to perform , construct, and complete, in the m anner set out in the Contract Documents (defined below), the wo rk described in EXHIBIT A of t his Agreement (the “Work”). The Subcontract further provided that Capform was responsible f or furnishing all equipment required to perform the Work including, but not l imited to, ramps, ladders, scaffolds, hoisting and other equipment. An entire su bsection of the Subcontract related to “Safety” and provided, among other thing s, the following: (1) Compliance. [Capform] shall fully comply with all laws, or ders, citations, rules, regulations, st andards and statutes with resp ect to occupational health and safety, accident prevention, and safety equipment and practices, includi ng without limitation, OSHA sta ndards and any accident prevention a nd safety program sponsored by Own er or [JLB]. Without limiting the fo regoing, simultaneous with th e execution hereof, Subcontractor shall complete, execute and del iver to [JLB] an Accident Prevention Plan in the form set forth on EXHI BIT J attached hereto, and shall at all times comply with the require ments of EXHIBIT J and EXHIBIT K attached hereto. (2) Precautions and Programs. (a) [Capform] shall be responsible for initiating, maintaining and supervising all safety precauti ons and programs in its Work and shall conduct inspections to determine that safe working conditions a nd equipment exist.–8– (b) [Capform] accepts sole responsibility for providing a safe placeto 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 subm it its site specific safety program to [JLB]. [Capform’s] safety program must specifically address, among other safety issues, scaffoldi ng, fall hazards, trenching and shori ng, 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 empl oyees, agents and suppliers.” The Subcontract furth er required Capform to keep a representative on the job site at all times when t he work was in progress and pro vided that JLB “shall not issue or give any instructions, orders or directions direct ly to employees or workers of [Capform] other than to the persons designated as th e authorized representatives of [Capform].” Also, as the majority points out, the subcontract contained a p roduction schedule set out in Exhibit D. Exhibit D contains a detailed d escription of the proposed work and allocates a number of days to each aspect of the work. The production schedule lists a serie s of steps in the construction process such as “Columns to B2” and assigns “12 days” to complete that step. A ll steps are given a range from one to thirty-one days. Nothing in the schedule ass igns a timeframe for completion of less than a day. A series of lines beneath a cal endar heading graphically represent the timel ine of the proposed production s chedule.–9– JLB filed a traditional and no-evidence motion for summary judg ment 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 c ontrol the means, methods, or details of Hernandez’ work and did not exercise act ual control over Hernandez’ work. In support of its motion, JLB provided excerp ts of the deposition of Juan Gutierrez, Capform’s sup erintendent, 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 doi ng 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’ deposi tion in which Hernandez testified JLB did not g ive him any instructions on ho w to set the form or the platform on the day of the accident. Hernandez testified G utierrez was “supervisor,” Molina was the fo reman of the crew, and both Guti errez and Molina worked for Capform. Molina told Hernandez he would be setting the platform on the day of the accident. Herna ndez testified JLB did not tell him to set the platform or to get up on the tower that fell. Hernandez testified Molin a 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 test ified 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–10– 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 o f Paul Johnston, JLB’s chief operating officer. J ohnston testified there were J LB 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 emp loyees who were of a supervisory level “were awar e that these towers could be k nocked 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 iss ue as to whether JLB owed a duty to Hernandez to keep him safe and breac hed that duty by permitting and instructing Capfo rm to work under dangerous cond itions. Our review of the evidence concerning negligence begins with du ty. 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 indepe ndent contractor performs its work in a safe manner. Id. (citing Elliott–Williams Co. v. Diaz , 9 S.W.3d 801, 803 (Tex. 1999)). A dut y does arise, however, if t he general contractor retains some control over the ma nner in which the independent c ontractor performs

4 This statement was a response to a hypothetical posed by Herna ndez’ counsel and not testimony of actual facts surrounding the underlying accident.–11– its work. Id. The general contractor’s duty of care is commensurate with th e control it retains over the indepe ndent contractor’s work. Id. A general contractor can retain the right to control an aspect of an independent contractor’s w ork or project so as to give rise to a duty of care to that independent contractor’s em ployees 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 de feat 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 enti rely 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 independ ent contractor’s employees to intervene and ensure that they safely perform thei r 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 a ctual control in two ways. First, it says, “ther e is evidence JLB retained cont rol over the daily–12– schedule, the order in which the work was to be done, the manda tory use of safety harnesses, and when the crane woul d be on-site.” But these mat ters 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 spe cific 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 s tretching the facts to make an argument for appellant. The majority uses the wind as a factor in reversing the trial c ourt, 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 ans wered, “Yes.” Hernandez, in his response to JLB’s motion for summary judgment , made frequent reference to “high winds,” citi ng Johnston’s quoted testimony. We must look at what evidence was actually presented to the tri al 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 in creased danger. There was no evidence JLB knew of a “strong wind” at the time o f the accident or that JLB supervisors ordered any specific work to be performed. Instead, this–13– testimony was entirely hypothetical and would have been the sam e if JLB’s officer had been asked whether earthquake , tornado, or other overwhelmi ng force had been applied to make the rebar tower fall. Further, there is no evi dence that JLB employees were present when this work was going on or knew that wind was making the work unusually hazardous. I ndeed, the evidence suggests it was not wind but an impact with a crane that cau sed the tower to fall. There was no evidence that the w ind caused the crane to hit the rebar tower or that JLB required Capform to work in windy conditions. In f act, Gutierrerz testified it “was possible there was some wind” on the day of t he 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 con tinue to work.” There is no evidence JLB required the work to continue in windy condi tions or that JLB was the party making the crew “ha ve to continue to work.” Thus , Gutierrez’s testimony was that Capform would continue to work when winds we re 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 H ernandez’ affidavit was filed, there was no men tion of wind in the affidavit. As the majority acknowledges, act ual exercise of control over s afety can be shown with evidence that the g eneral contractor personally witn essed and approved the safety procedures used by the subcontractor’s employees. See Lee Lewis Constr.–14– Co. , 70 S.W.3d at 783–84. But there is no such evidence in this c ase. Nor is there evidence that JLB controlled th e methods or operative details o f Capform’s work.
See Koch Ref. Co. , 11 S.W.3d at 155. Here, there is simply no evidence that JL B had any actual control over preparing the worksite for the job Capform’s work crew was doing when Hernandez was inju red. Moreover, there is no ev idence that any JLB employee told Capform or He rnandez how to do the task that Capform was doing when Hernandez got hurt. The evidence showed Hernandez and Gutierrez, both Capform emplo yees, 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 fo rm on the platform on the day of the accident. Hernandez testified Gutierrez wa s “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 a ccident. Hernandez testified J LB did not tell him to set the platform or to get up on the tower that fell. Hernande z testified he did not see anyone from JLB “on this job on the day of the accident bef ore it occurred.” Thus, there was no evidence that JLB exercised actual control t hat related to the injury the alleged negligence caused or that JLB specifically a pproved the dangerous

act. See Dow , 89 S.W.3d at 607–09. Under the facts and circumstances of th is case, I would conclude the trial cour t did not err in granting summar y judgment for JLB.–15– Accordingly, I would not reach the breach and proximate cause i ssues addressed by the majority.

Myers, Whitehill, Schenck, and E vans, JJ., join this dissenting opinion.

170719DF.P05 /David L. Bridges/ DAVID L. BRIDGES JUSTICE