Texas Contractor Responsible for Safety of Sub’s Employee
John A. Huddleston
San Antonio
Stacy Vancil
San Antonio
General contractors in Texas beware. When you agree to be responsible for the safety of your subcontractors on the job, you arguably also accept a legal duty to the subcontractors’ employees to ensure that adequate safety protection is actually in place. A recent Texas Supreme Court case held that a general contractor who retained the right to control its subcontractors’ safety measures, and actually exercised a right of control over safety, was liable for the fatal fall of one of the subcontractors’ employees because of the general contractor’s implied approval of clearly dangerous work methods. Lee Lewis Construction, Inc. v. Harrison, 45 Tex. Sup. Ct. J. 232, 2000 WL 33666911 (Dec. 20, 2001).
In the Lee Lewis case, Lubbock Methodist Hospital hired Lee Lewis Construction, Inc. (LLCI) to remodel the eighth floor and to add a ninth and 10th floor to the hospital’s south tower. LLCI subcontracted the interior glazing work to K.K. Glass. Jimmy Harrison was an employee of K.K. Glass and was installing thermal insulation and caulking between the window frames on the tower’s 10th floor when he fell to his death. No one witnessed the fall, and there was contradictory evidence about what type of safety equipment he was using. What was not disputed was that Harrison was not using an independent lifeline that could have prevented his fall. The Amarillo jury awarded $7.9 million in compensatory damages and $5 million in punitive damages against LLCI.
As a general rule, a general contractor does not owe a duty to ensure that an independent contractor performs its work in a safe manner. Nonetheless, when the general contractor retains some control over the manner in which the independent contractor performs its work, the general contractor owes a duty to exercise that control with reasonable care. The right of control must be assumed either under the contract or by actual exercise of control. LLCI took the position that it exercised no actual control over safety in this case. According to the Court, however, the evidence at trial indicated otherwise.
The contract between LLCI and Methodist Hospital contained form provisions standard in the AIA Construction Contract, by which LLCI assumed responsibility for safety on the job. LLCI required the subcontractors to agree to follow a voluminous, detailed, safety manual under the threat of being removed from the project for failing to do so. Lee Lewis, LLCI’s owner and president, had assigned C.L. Lewis, LLCI’s job superintendent, the responsibility of inspecting the job site to see that subcontractors’ employees were properly utilizing fall protection equipment.
K.K. Glass employees working on the exterior of the building used a bosun’s chair without an independent lifeline. The employees used a lanyard attached at one end to the worker and at the other end to one of the building’s interior steel girders. Reportedly, this system was dangerous for a worker due to the location of the girders. C.L. Lewis knew of, did not object to, and allegedly approved of this system. At the same time, LLCI required its own employees to use independent lifelines.
Lee Lewis testified that he was aware that falls were one of the top causes of death in multistory construction and that workers performing work on the exterior of the building could be exposed to fatal falls. C.L. Lewis testified that he had seen K.K. Glass employees working from the window sills of the ninth and 10th floors using only safety belts and lanyards as their fall protection devices, and that these devices were ineffective fall protection. Interestingly, an OSHA inspector had seen K.K. Glass’ lanyard system and raised no objection.
Although the Court pointed out that a general contractor is not an insurer of safety on the job site, it did agree that the evidence in this case was sufficient for the jury to find that LLCI retained the right to control safety on the job site and that it breached its duty to Harrison in this case. The Court found that LLCI knew or should have known that this ineffective fall protection system could result in a fatal fall and that LLCI’s failure to enforce its own safety rules and require its subcontractors’ employees to use independent lifelines was the cause in fact of Harrison’s death. Based on this same evidence, the Court upheld the finding of gross negligence and punitive damages against LLCI.
Despite the Court’s holding in this case, several of the justices wrote separate concurring opinions that are of some interest. These justices all agreed that the facts in this case appropriately led to a finding of liability, yet they each expressed concern over how the standard might be applied in future cases where the evidence is not as clear. One of the concurring opinions suggests that future cases recognize two basic arguments for not imposing liability on the employer of an independent contractor for injuries to the contractor’s employees. These arguments are, first, that liability is inconsistent with the worker’s compensation system, and second, that liability is inconsistent with the general nature of the relationship between an independent contractor and its employer. Another justice noted in his concurrence that the current standard of consideration has led to inconsistent and sometimes inequitable results and that further consideration should be given in the future to how the standard is applied.
The holding in this case was tied directly to what the Court found to be particularly damning facts. In the end, it appears that courts will continue to apply the current standard on a case-by-case basis. At the same time, the Texas Supreme Court may be looking for a more questionable case of liability in which to revisit the law on employer liability for injury to a contractor’s workers and clarify the standards to be applied. In the meantime, contractors must be particularly attentive to the obligations for safety that they assume, either by contract or by conduct, and their responsibility in carrying out those obligations.
For more information, contact Alex Huddleston or Stacy Vancil, toll free, at 1-888-688-8500.
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