Under Texas law, a general contractor ordinarily has no duty to ensure that a subcontractor’s employees safely perform construction work. Brazos Contractors Dev., Inc. v. Jefferson, 596 S.W.3d 291, 301 (Tex. App.—Houston [14th Dist.] 2019, pet. denied). However, an exception to this rule may arise when the general contractor retains control over the manner in which the subcontractor’s work is performed. Id. Control may be established by showing that the general contractor either: (1) actually controlled the manner in which the subcontractor performed its work, or (2) had a contractual right to do so. Id. at 301–02.
Throughout the past couple of decades, there has been some confusion regarding when exactly a general contractor has exercised control in such a way that a duty is created. Although the courts have made numerous attempts to address this issue, the Texas Supreme Court appears to have provided some clarity through its 2021 opinion in JLB Builders, L.L.C. v. Hernandez, 622 S.W.3d 860 (Tex. 2021).
In JLB Builders, an employee of a subcontractor sued the general contractor for negligence after he sustained injuries from a job site accident that involved the collapse of a rebar tower. Id. at 863. The trial court granted the general contractor’s motion for summary judgment on the grounds that the general contractor neither exercised actual nor contractual control over the subcontractor’s work. Id. at 863. However, the Dallas Court of Appeals reversed, finding that there were fact issues regarding the question of control. Id. The general contractor appealed the appellate court’s ruling to the Texas Supreme Court.
In addressing whether the general contractor controlled the subcontractor’s employees’ work, the Texas Supreme Court concluded that there was no evidence indicating that the general contractor exercised actual control over the work that caused the injury. Id. at 867. The Court based this conclusion on the fact that the contractor did not provide detailed work instructions to the employee, did not instruct the employee in the work he was performing at the time of the injury, and did not have knowledge of the unsafe conditions connected to the employee’s work. Id.
The Court clarified that a contractor’s general right to order work to start or stop and to direct when and where the work is to be performed is not sufficient to give rise to a duty of care to a subcontractor’s employee. Id. at 866. Further, the Court provided that the mere presence of a general contractor’s safety employee at the job site does not give rise to a duty to intervene and ensure the subcontractor’s employee performs the work safely. Id. at 867.
The Court also noted that the subcontract made clear that the general contractor had no contractual control over the general contractor’s work. Id. at 870. The Court based this on the fact that the contract required the subcontractor to furnish all supervision of its employees, designated the subcontractor as solely responsible for the acts and omissions of its employees, and stated that the general contractor had no authority to direct, supervise, or control the means, manner, or method of construction of the work. Id.
The Court’s opinion reaffirms that the typical aspects of the contractor/subcontractor relationship do not give rise to a duty of care to the subcontractor’s employees. From the general contractor’s perspective, this case provides two important takeaways. First, it serves as a reminder that if a general contractor exercises too much control over a subcontractors’ work, the general contractor may become vulnerable to negligence claims brought by a subcontractor’s employees. Second, it is important to have a well-drafted subcontract in place that includes language indicating that the general contractor does not have authority over the manner and means of the subcontractor’s work.
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