In JLB Builders, L.L.C. v. Hernandez, the Supreme Court of Texas analyzed whether the Texas Court of Appeals erred in finding a fact issue existed as to whether a general contractor on a construction project owed a duty of care to a concrete subcontractor’s employee who was injured on the job. 2021 WL 1822947, at *1 (Tex. May 7, 2021).

JLB Builders, L.L.C. (“JLB”) was the general contractor on a high-rise construction project in Dallas, Texas. JLB subcontracted with Capform, Inc. (“Capform”) to complete the concrete work on the project. The plaintiff, Jose Hernandez (“Hernandez”), was an employee of Capform.

Hernandez suffered an on-the-job injury on December 5, 2013, while erecting a concrete column. The rebar tower Hernandez was standing on detached from the ground and landed on Hernandez’s legs as he attempted to jump off. Hernandez then sued JLB for negligence and gross negligence. Hernandez argued JLB retained actual and contractual control over Capform’s work and therefore owed him a duty of care.

JLB moved for summary judgment. JLB argued both that it did not owe Hernandez a duty and that Hernandez could not provide evidence to support the elements of his negligence claim. JLB argued that it did not owe Hernandez a duty because (1) he was an employee of an independent contractor; (2) it did not exercise actual control over the means, methods, or details of Hernandez’s work; and (3) it did not have a contractual right to control Hernandez’s work. JLB also argued it did not proximately cause the injuries alleged by Hernandez. The trial court granted summary judgment for JLB.

Hernandez appealed the judgment with respect to the negligence claim only. The Court of Appeals of Texas initially affirmed the trial court’s grant of summary judgment. However, on en banc reconsideration, a divided Court of Appeals held that issues of fact existed to preclude summary judgment. The Appellate Court vacated the decision and reversed the trial court’s judgment as to the negligence claim. The Supreme Court of Texas granted JLB’s petition for review.

The Supreme Court of Texas discussed the exception to the general rule that one who employs an independent contractor has no duty to ensure that the contractor safely performs its work. Under Texas law, a duty may arise if the evidence establishes the general contractor retained or exercised actual control over the manner in which the subcontractor performed its work or had a contractual right to do so. In the construction context, it is not enough that a general contractor orders when work is started or stopped or to generally direct when and where the work is to be done. A general contractor would need to control the timing and sequence of the particular independent contractor’s work. For example, a duty may arise if the general contractor controlled which of the independent contractor’s employees performed certain tasks and at what point in time those tasks were performed.

The evidence presented by Hernandez, and on which the Appellate Court relied in finding a fact dispute, was that JLB had safety inspectors on-site, required subcontractors to use safety harnesses, globally managed the daily schedule and the order of work, and was aware that towers could fall over if improperly braced or hit by strong wind or a crane. The Supreme Court of Texas disagreed and held that JLB’s control over “the overall timing and sequence of work being performed by the various independent subcontractors merely indicates that JLB was performing the duties of a general contractor.” Further, “the mere presence of a general contractor’s safety employee at the work site does not give rise to ‘a duty to an independent contractor’s employees to intervene and ensure that they safely perform their work.’” Hernandez, 2021 WL 1822947, at *4 (citing Koch Ref. Co. v. Chapa, 11 S.W.3d 153, 157 (Tex. 1999)).

With respect to JLB’s safety harness requirement, the Supreme Court of Texas clarified that the duty placed on a general contractor that promulgates mandatory safety requirements and procedures is narrow and requires only that those safety requirements do not unreasonably increase the probability of an injury. The Supreme Court of Texas recognized that a general contractor incurs a duty if it observes a safety hazard firsthand and directly orders a subcontractor’s employee to perform the injury-causing task. However, there is no affirmative duty for a general contractor to take action upon learning of an independent contractor’s employee’s unsafe conduct, absent a specific contractual requirement to do so. No such evidence was presented by Hernandez.

The Supreme Court of Texas held that Hernandez failed to raise an issue of fact as to whether JLB exercised actual control sufficient to give rise to a duty of care and the Court of Appeals erred in holding a dispute of fact existed and reversing summary judgment for JLB on Hernandez’s negligence claim. The Supreme Court of Texas reversed the Court of Appeals’ judgment. The Supreme Court of Texas’ decision in Hernandez provides guidance to general contractors in navigating their potential liability for onsite injuries suffered by employees of subcontractors under Texas law.