By Stephen A. Dwyer, Associate Attorney

A recent case from the Texas supreme court reaffirmed and clarified a general contractor’s liability to an independent contractor’s negligence claims called JLB Builders, L.L.C. v. Hernandez. The case reaffirmed the general rule in Texas when analyzing a negligence claim by an independent contractor’s employee. The analysis is very similar to that of a Chapter 95 affirmative defense, which applies to premises liability claims, but it applies to negligence claims. The rule is that one who employs an independent contractor has no duty to ensure that the contractor safely performs its work unless the employer retains some control over the manner in which the contractor performs the work that causes the danger. JLB Builders, 2021 WL 1822947, at *2 (Tex. May 7, 2021) (citing AEP Tex. Cent. Co. v. Arredondo, 612 S.W.3d 289, 295 (Tex. 2020)). This allows anyone in the contractual chain on a construction project to limit its liability to an independent contractor by law without having to specifically contract for it. This is beneficial to many small business hiring contractors in the construction industry who are just starting out and cannot afford to hire attorneys to draft comprehensive contracts for them.

However, as with any rule, there is an exception. The court stated, “[A]n exception to the rule arises when ‘the employer retains some control over the manner in which the contractor performs the work that causes the damage.’” Id. (quoting Fifth Club, Inc. v. Ramirez, 196 S.W.3d 788, 791 (Tex. 2006)).  Such “control” is shown by “establishing that the general contractor either actually controlled the manner in which the subcontractor performed its work or had a contractual right to do so.” Id. at *2 (citing Dow Chem. Co. v. Bright, 89 S.W.3d 602, 606 (Tex. 2002)). However, such control “must relate to the condition or activity that caused the injury.” Id. (quoting Clayton W. Williams, Jr., Inc. v. Olivo, 952 S.W.2d 523, 528 (Tex. 1997). This exception potentially exposes a general contractor to liability if it is not careful about how it communicates with an independent contractor.

If the general contractor did not provide any directions to either independent contractors and the accident just happened, then the rule protects the general contractor from liability.

For example, a general contractor hires an independent contractor A to excavate dirt for a new road it was hired to pave on a new neighborhood development. Independent contractor B is tasked with laying rebar in the excavated area to prepare for the new road. In the process, Independent contractor A accidentally backs into a pile of stacked rebar that falls onto Independent contractor B injuring him. If the general contractor did not provide any directions to either independent contractors and the accident just happened, then the rule protects the general contractor from liability. But if the general contractor told independent contractor B to move the rebar to so that Independent Contract A could do its work, then this action alone could expose the general contractor to liability because it demonstrates “some control” over the manner the work was done.

The rule reaffirmed in JBL Builders is a strong protection for general contractors. But it can also be easily waived. It does not mean the general contractor cannot have any communications with its independent contractors. Communication is necessary on any construction project that requires coordination and planning. The general contractor just needs to be careful in how it communicates with its independent contractors, specifically on how work is done. Independent contractors are hired to perform tasks they are specifically qualified to handle. To utilize this legal protection to its fullest extent, the best practice to general contractors is to let independent contractors manage their own specializations and avoid micromanaging.