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Litigation: 6 defenses every inside counsel should know (Part 5)

A premises owner should not be subject to lawsuits by employees of independent contractors unless it is shown that the premises owner retained control over the work

This is the fifth of a six-part series on liability defenses that every inside counsel should know (Part 1, Part 2, Part 3 and Part 4). Based on more than 30 years of litigation practice, this series discusses the liability defenses I have found to most often result in successful summary judgments or dismissals, providing the best potential to end expensive and time-consuming litigation. This installment focuses on the ability of premises owners to obtain summary judgment when they are sued by employees of independent contractors or other invitees who perform work on their premises. These premises owners should be entitled to summary judgment early in the development of the case unless the plaintiff can show that the premises owner retained control over the work and failed to warn of some known danger.

The general rule is that there are important limitations on the ability of an independent contractor to sue a premises owner. The premises owner is not liable if the independent contractor or its employees created or knew about the dangerous condition that caused the injury or damages. The premises owner also should not be liable if it has relinquished control of the premises to the independent contractor for the purpose of performing the work. In order for a plaintiff to prove that a premises owner is liable based on the owner retaining control of the work, it is not enough for the plaintiff to show that the premises owner merely retained a general right to order the work stopped or resumed, to inspect its progress or to receive reports, or to make suggestions or recommendations that need not necessarily be followed. There must be a retained right of control over the work such that the contractor is not free to do the work their own way. A premises owner should not be subject to lawsuits by employees of independent contractors unless it is shown that the premises owner retained control over the work and was aware of some danger for which it did not provide a warning.

In Texas, these general rules been codified in Chapter 95 of the Texas Civil Practice & Remedies Code. Chapter 95 provides the exclusive remedy for an independent contractor or its employees to recover from a premises owner for personal injury, death, or property damage that arises from the condition or use of an improvement to real property. Under Chapter 95, a premises owner is not liable for negligence claims unless:

  1. the property owner exercises or retains some control over the manner in which the work is performed, other than the right to order the work to start or stop or to inspect progress or receive reports; and
  2. the property owner had actual knowledge of the danger or condition resulting in the personal injury, death, or property damage and failed to adequately warn.

All of these conditions must be met in order for liability to be imposed on a premises owner in Texas. The plaintiff must prove that the premises owner exercised or retained some control over the manner in which the work was performed, possessed “actual knowledge” of the danger or condition which caused the injury, and failed to adequately warn of that danger. Unless a plaintiff can prove all three of these requirements, a summary judgment should be entered in favor of the premises owner.

Also under Chapter 95, the standard for “control” over the work is very narrow. It may be established only by a contractual agreement that explicitly assigns the premises owner a right of control, or by evidence that the premises owner actually controlled the work. The right to control must be more than a general right to order work to start and stop, to inspect progress, to prescribe alterations or deviations, or to make suggestions that do not necessarily have to be followed. Further, the promulgation by the premises owner of safety policies or rules, or a requirement for site work permits, does not establish this control.

Over the past decade, more than 40 decisions in state and federal courts have interpreted or discussed Chapter 95. Virtually all of these decisions have resulted in defense judgments in favor of premises owners.

For example, in Kelly v. LIN Television of Texas, LIN Television owned a 1,500-foot television tower and hired an independent contractor to replace an old broadcasting antenna on the tower. While working on the tower, two of the independent contractor’s employees were killed when the tower collapsed, and their survivors sued LIN Television for negligence. LIN Television provided evidence that the independent contractor alone controlled the details of the work performed on the tower and that the contractor was solely responsible for the manner in which the equipment was used at the time the tower collapsed. Although the maintenance supervisor for LIN Television observed the work being done, he was not in charge of the manner in which the independent contractor performed the work. The appellate court concluded that LIN Television did not retain control over the work, and affirmed summary judgment in favor of the company.

One of the important practical aspects of this defense for premises owners is that it usually can be developed early in a case before significant time and money must be spent on extensive discovery. The facts necessary to establish this defense can be easily developed by obtaining a copy of the contract for the performance of the work and the deposition of the plaintiff. This often can lead to a summary judgment for a premises owner without the need to conduct extensive discovery and case development, yielding substantial savings on litigation expenses.

Contributing Author

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Jonathan B. Shoebotham

Attorney Jonathan B. Shoebotham is a partner in the Houston office of Thompson & Knight, where he leads the firm’s Complex Tort and...

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