lois-legros-individually-and-as-independent-of-the-estate-of-aristile-j ( 2005 )

Affirmed and Memorandum Opinion filed December 6, 2005

Affirmed and Memorandum Opinion filed December 6, 2005.

In The

Fourteenth Court of Appeals

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NO. 14-05-00088-CV

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LOIS LEGROS, INDIVIDUALLY AND AS INDEPENDENT EXECUTRIX OF THE ESTATE OF ARISTILE J. LEGROS, JR., DECEASED, AND JESSE LEGROS, LARRY A. LEGROS, AND MYRA J. PERRIN, Appellants

V.

LONE STAR STRIPING AND PAVING, LLC, KEVIN HODGE, CSR AMERICA, INC. D/B/A CSR BAY CONCRETE, AND COLEMAN CONTRACTING GROUP, INC., Appellees

On Appeal from the 239th District Court

Brazoria County, Texas

Trial Court Cause No. 15622*JG01

M E M O R A N D U M   O P I N I O N

This is an appeal from a summary judgment.  Appellant Lois LeGros, Individually and as Independent Executrix of the Estate of Aristile J. LeGros, Jr., Deceased, argues in two issues that the trial court erred in granting summary judgment in favor of appellee Coleman Contracting Group, Inc.^[1]  We affirm.

Coleman Contracting Group, Inc. (AColeman@) was hired as the general contractor on a construction project for TIAA Realty, Inc. (ATIAA@).  Coleman hired Lone Star Striping and Paving, Inc. (ALone Star@)^[2] as a subcontractor for the project, and Lone Star hired Hydro Conduit to deliver several large concrete catch basins to the construction site.  Hydro Conduit loaded several basins onto four-by-six inch wooden runners on a trailer. Appellant=s husband, Aristile LeGros, a driver for Hydro Conduit, drove the basins to the construction site.  At the site, Kevin Hodge, a Lone Star employee, unloaded the basins while LeGros stood nearby.  As Hodge lifted one of the basins off the trailer, a wooden runner flew out and fatally struck LeGros in the head.  It is undisputed that no Coleman employees were present when the accident occurred.

Appellant filed a wrongful death suit as executrix of her husband=s estate and a survivor suit on her own behalf against Coleman, alleging that Coleman breached a duty of care it owed her husband by negligently failing to supervise Lone Star and its employees= work.  Coleman filed a motion for summary judgment on the grounds that it owed LeGros no duty and exercised no control over Lone Star or its employees.  The trial court granted Coleman=s motion, and this appeal followed. 

Coleman filed a no-evidence summary judgment motion.  See Tex. R. Civ. P. 166a(i).  A no-evidence summary judgment is properly granted when the respondent fails to bring forth more than a scintilla of probative evidence that raises a genuine issue of material fact.  See id.; Oliphint v. Richards, 167 S.W.3d 513, 516 (Tex. App.CHouston [14th Dist.] 2005, pet. denied).  In reviewing a no-evidence motion for summary judgment, we take as true all evidence favorable to the non‑movant, and we make all reasonable inferences therefrom in the non‑movant=s favor.  Allen v. Connolly, 158 S.W.3d 61, 64 (Tex. App.CHouston [14th Dist.] 2005, no pet.).

To sustain a negligence cause of action, a plaintiff must produce evidence of a legal duty owed by the defendant to the plaintiff, a breach of that duty, and damages proximately caused by the breach.  Lee Lewis Constr., Inc. v. Harrison, 70 S.W.3d 778, 782 (Tex. 2001). A general contractor normally does not have a duty to ensure that an independent contractor performs work safely. Elliott-Williams Co. v. Diaz, 9 S.W.3d 801, 803 (Tex. 1999).  However, a duty may arise when a general contractor retains some control over the manner in which the independent contractor=s work is performed.  Id. This duty is commensurate with the amount of control retained over the independent contractor=s work. Id.; Lee Lewis Constr., 70 S.W.3d at 783.  Further, the employer=s role must be more than a general right to order the work to start or stop, to inspect progress, or to receive reports.  Redinger v. Living, Inc., 689 S.W.2d 415, 418 (Tex. 1985) (citing Restatement (Second) of Torts _ 414, cmt. c (1965)).  Control may be proven in two ways: (1) by contractual agreement that explicitly assigns a right to control or (2) by exercise of actual control.  Dow Chem. Co. v. Bright, 89 S.W.3d 602, 606 (Tex. 2002); Ashabranner v. Hydrochem Indus. Servs., Inc., No. 14-03-00762-CV, 2004 WL 613026, at *2 (Tex. App.BHouston [14th Dist.] Mar. 30, 2004, no pet.) (mem. op.). A right of control is contingent on the ability to control the means, methods, or details of the independent contractor=s work.  Dow Chem Co., 89 S.W.3d at 606.  Here, appellant alleges only that Coleman retained contractual control over Lone Star.

Whether there is a contractual right of control is generally a question of law for the court.^[3]  Ashabranner, 2004 WL 613026, at *2.  Our primary consideration when interpreting a contract is the parties= intent as expressed in the instrument.  Elliott-Williams, 9 S.W.3d at 803.  We examine the writing as a whole in an effort to harmonize and give effect to all the provisions of the contract so that none will be rendered meaningless.  Heritage Res., Inc. v. NationsBank, 939 S.W.2d 118, 121 (Tex. 1996); Zurich Am. Ins. Co. v. Hunt Petroleum (AEC), Inc., 157 S.W.3d 462, 465 (Tex. App.CHouston [14th Dist.] 2004, no pet.).  If the contract is unambiguous, the court will construe it as a matter of law.  Coker v. Coker, 650 S.W.2d 391, 393 (Tex. 1983). 

The contract between Coleman and TIAA requires Coleman to be responsible for and control Aconstruction means, methods, techniques, sequences and procedures@ and to implement safety programs related to the project. Appellant contends this language establishes sufficient right of control over Lone Star to make Coleman liable for the acts of Lone Star=s employees.  However, the contract also provides that it Ashall not be construed to create a contractual relationship of any kind . . . between any persons or entities other than the Owner and Contractor.@  This language, taken as a whole, shows TIAA and Coleman intended only to establish rights between themselves and not to establish Coleman=s right of control over Lone Star, which was not named in the contract.  Thus, the contract between TIAA and Coleman did not establish Coleman=s right of control over Lone Star.  See Dow, 89 S.W.3d at 606B07 (finding no contractual control of owner over contractor, despite owner=s requirement that owner=s safety rules be followed, when contract specified contractor was independent contractor and controlled its own work); Elliott-Williams, 9 S.W.3d at 804B05 (construing contract between military and contractor as intended only to establish financial responsibility between parties and not control over subcontractor=s work).

Further, we disagree with appellant=s contention that the safety provision in the contract between TIAA and Coleman establishes a right of control under these facts.  To be liable for injury based on a right of control, the control retained by a general contractor must relate to the injury, and the contract must grant the contractor at least the power to direct the order in which the work is to be done.  Dow Chem. Co., 89 S.W.3d at 606.  AThere must be such a retention of a right of supervision that the contractor is not entirely free to do the work in his own way.@  Restatement (Second) of Torts _ 414 cmt. c (1965); see also Elliott-Williams, 9 S.W.3d at 804.  Here, the safety provision in the contract between TIAA and Coleman states as follows:

16.1  The Contractor shall be responsible for initiating, maintaining, and supervising all safety precautions and programs in connection with the performance of the Contract.  The Contractor shall take reasonable precautions for safety of, and shall provide reasonable protection to prevent damage, injury or loss to:

1. [E]mployees on the Work and other persons who may be affected thereby . . .

The Contractor shall give notices and comply with applicable laws, ordinances, rules, regulations and lawful orders of public authorities bearing on safety of persons and property . . . .

Requiring the employees of independent contractors to comply with federal law, general safety guidelines, or other safety precautions does not impose an unqualified duty to ensure those employees do nothing unsafe.  See Hoechst-Celanese Corp. v. Mendez, 967 S.W.2d 354, 357B58 (Tex. 1998).  Rather, a general contractor has a narrow duty to ensure that any safety procedures it promulgates do not unreasonably increase the probability and severity of injury.  Id. at 358.  Appellant does not show that Coleman established or approved particular unloading procedures that contributed to LeGros=s injuries.  Instead, the record demonstrates that Lone Star was free to do the work its own way. Nor does appellant claim Coleman failed to give notice of applicable safety rules or was aware of and failed to correct unsafe unloading practices by Lone Star.  See, e.g., Lee Lewis Constr., 70 S.W.3d at 784 (finding contractor liable when it specifically approved fall-protection equipment it knew was inadequate).  The crux of appellant=s argument is that because Coleman retained contractual control over safety matters, it negligently failed to supervise Lone Star=s work.  However, the retention of a general right to recommend a safe manner for employees to perform their work does not create liability.  See Koch Ref. Co. v. Chapa, 11 S.W.3d 153, 155 (Tex. 1999).  To hold otherwise would work against public policy by discouraging owners and general contractors from implementing any safety regulations for fear of incurring liability.  See Dow Chem. Co., 89 S.W.3d at 607B08; Dyall v. Simpson Pasadena Paper Co., 152 S.W.3d 688, 698 (Tex. App.CHouston [14th Dist.] 2004, pet. filed).

Accordingly, we find appellant did not produce more than a scintilla of evidence that Coleman retained control over the manner in which Lone Star=s work was performed.  Thus, we overrule appellant=s two issues.

The summary judgment of the trial court is affirmed.

/s/      Leslie Brock Yates

Justice

Judgment rendered and Memorandum Opinion filed December 6, 2005.

Panel consists of Chief Justice Hedges and Justices Yates and Anderson.

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^[1]  Lone Star Striping and Paving, LLC, Kevin Hodge, and CSR America, Inc. d/b/a CSR Bay Concrete are not parties to this appeal.

^[2]  In the record, both Astriping@ and Astripping@ are used with Lone Star=s name.  For purposes of this appeal, we use the word Astriping.@

^[3]  Although appellant argues that a fact finder should be able to decide whether Coleman properly exercised the control that they Aclearly contracted for,@ this court only considers the threshold question of whether a contractual right of control was established between Coleman and Lone Star.