Question:    A general contractor hired a subcontractor to work on a project.  While working on the project, the subcontractor was injured. Did the general contractor retain enough actual or contractual control over the means, methods, or details of the subcontractor’s work to be liable?

Answer:      No. It depends on the facts, but in this case the general contractor did not retain enough control to be liable.

A recent Texas Supreme Court case provides a good example of how Texas courts evaluate general contractor liability to subcontractors and its’ employees for on-the-job personal injuries.  In JLB Builders, LCC v. Jose Hernandez, 622 S.W.3d 860 (Tex. 2021) an employee of a subcontractor—Hernandez—sued a general contractor for negligence and gross negligence for injuries he sustained when a rebar tower he was standing on while working on a project for the general contractor fell and injured his leg. Hernandez was standing on the rebar tower to guide the placement of a concrete form which was being placed around the rebar. Either wind or the contact form itself caused the rebar to fall and land on Hernandez’s leg as he tried to jump off. The injury resulted in a lawsuit.

The general contractor filed a motion for summary judgment with trial court arguing that Hernandez loses as a matter of law because he has no evidence of duty, breach, or causation. The judge agreed and the general contractor won without going to trial. Hernandez appealed the ruling regarding his negligence claim to the court of appeals. The court of appeals, in a split decision, disagreed with the trial court and held that there are facts issues to be resolved in the case so it needs be tried. The general contractor then appealed the appellate court’s ruling to the Texas Supreme Court. The Texas Supreme Court agreed with the trial court and held that the general contractor wins as a matter of law.

The case revolves around the duty that a general contractor owes to an independent contractor’s employees. The general rule is a general contractor owes a duty of care to an independent contractor’s employees if the general contractor retains actual or contractual control over the means, methods or details of the independent contractor’s work. These cases are common and usually involve a factual analysis of whether the general contractor retained either actual or contractual control over the subcontractor’s work.

Actual Control

The general contractor cited testimony supporting its allegation that it lacked control over the mean, methods, and details of the work.

• The general contractor did not instruct the subcontractor how to instruct its employees to do the work.
• No one from the general contractor told the subcontractor how to install the braces that were in place to support the rebar tower.
• No one from the general contractor told Hernandez how to set the form, platform, or column.
• No one from the general contractor told the subcontractor to set the platform or climb onto the rebar tower on the day of the accident.
• The subcontractor did not see any of the general contractor’s personnel on the day that the accident occurred.
• The subcontractor did not know if the braces were attached to the ground with nails instead of rebar, if the general contractor caused the accident, or how the general contractor was involved

Hernandez responded with evidence alleging that the general contractor retained control over his work.

• The general contractor’s supervisors were onsite at all times, although none were in the area when Hernandez was injured.
• The general contractor conducted daily safety inspections.
• The general contractor inspected the subcontractor’s work.
• The general contract had authority to require subcontractors to modify practices that it believed were unsafe.
• The general contractor knew on the day of the accident that subcontractors would be raising and climbing onto rebar towers, attached concrete forms to the towers, and pouring concrete.
• The general contractor’s supervisors knew that double stack rebar could be knocked over by a strong wind or if impacted too hard by the concrete form.

The Texas Supreme Court held that Hernandez’s evidence only demonstrated the general contractor’s general right to order work started and stopped and to direct when and where the work is done which is not enough to give rise to a duty of care. The court held that this only shows that the general contractor was performing the normal duties of a general contractor, nothing more. There is no evidence that the general contractor exercised control over the timing or sequence of the subcontractor’s work. Likewise, 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.

Contractual Control

The contract made it clear that the general contractor had no contractual control over the general contractor’s work.

• The contract required the subcontractor to furnish all supervision of its employees, and it designated the subcontractor as solely responsible for the acts and omissions of its employees.
• The contract stated that the general contractor has no authority to direct, supervise, or control the means, manner, or method of construction of the work and that the subcontractor was responsible for all of this.
• The contract made the subcontractor responsible for initiating, maintaining and supervising all safety precautions and programs into its work, conduct inspections to determine that safe working conditions and equipment exist, and that the subcontractor accepts sole responsibility for providing a safe place to work for its employees.

As a result, the Texas Supreme Court holds that as a matter of law the general contractor did not have a duty to Hernandez. The general contractor wins.

The lesson for general contractor’s is two-fold. First, be careful how much control you exercise over a subcontractors’ work. If you have to exercise too much control, then you may be better off doing the work yourself or hiring a different subcontractor. Second, have a well drafted contract in place. For subcontractors, the lesson is read what you sign because you will be stuck with it if it goes to court.

Scot Pierce, Esq. is a trial lawyer and transactional attorney.  Click on his name for a link to his profile page.

Disclaimer: This post contains general opinions and analysis and should not be treated as legal advice for any specific case.