Opinion issued=20
August 31, 2006
In=20
The
Court of=20
Appeals
For The
First =
District of=20
Texas
NO.=20
01-03-00806-CV
TOMAS =
DELEON AS=20
ADMINISTRATOR OF THE ESTATE OF MARCO ANTONIO DELEON MOLINA, =
DECEASED, JOSE=20
DELEON LOPEZ, AND AGUSTINA MOLINA CORONADO,=20
Appellants
V.
DSD =
DEVELOPMENT,=20
INC., DW&S CONSTRUCTION COMPANY, INC., DONALD WESLEY SOWELL=20
CONSTRUCTION, INC. INDIVIDUALLY AND D/B/A DW&S CONSTRUCTION, =
DW&S=20
CONSTRUCTION, INC. MICHAEL J. SOWELL, DONALD WESLEY SOWELL, =
BEATRICE=20
SOWELL, AND THREE PROPERTIES, LTD., =
Appellees
On Appeal from =
Probate Court=20
No. 2
Harris County,=20
Texas
Trial Court Cause =
No.=20
321,751-401
MEMORANDUM=20
OPINION
<=
/SPAN>Marco=20
Antonio Deleon Molina (=E2=80=9CMolina=E2=80=9D) was accidently =
killed while working at a=20
construction site. Molina was an employee of a subcontractor at =
the site,=20
Hernandez Concrete, Inc. Molina=E2=80=99s estate and his parents =
(=E2=80=9Cappellants=E2=80=9D)=20
filed a wrongful death and survival action against numerous =
defendants=20
with connections to the construction project. Appellants now =
appeal=20
summary judgments rendered by the trial court in favor of the =
site=E2=80=99s=20
general contractor, Donald Wesley Sowell Construction, Inc. d/b/a =
DW&S=20
Construction Inc. (=E2=80=9CDW&S=E2=80=9D); the premises =
owner, Three Properties,=20
Ltd.; and other affiliated entities and individuals. =
<=
/SPAN>The=20
arguments raised by appellants on appeal can be reduced to the =
following=20
dispositive issues: (1) whether appellants offered more than a =
scintilla=20
of evidence to show that DW&S, as a general contractor, owed a =
duty of=20
care to Molina, (2) whether Texas Civil Practice and Remedies Code =
section=20
95.003 ![3DFootnote](3D"")
is preempted by federal law, (3) whether =
a=20
no-evidence summary judgment was properly granted pursuant to =
section=20
95.003 in favor of Three Properties, and (4) whether the summary =
judgments=20
granted in favor of several other appellees were appropriately =
granted.=20
<=
/SPAN>We=20
affirm.
Factual and=20
Procedural Background
<=
/SPAN>Three=20
Properties owned a 565-unit apartment complex in Houston. It hired =
DW&S, as the general contractor, for a =E2=80=9Crehab=E2=80=9D =
construction project at=20
the complex. In turn, DW&S subcontracted with Hernandez =
Concrete to do=20
concrete repair at the site. Molina was an employee of Hernandez =
Concrete.=20
While working at the construction site, Molina=E2=80=99s head was =
crushed by the=20
front loader that he was operating. Molina died from his injuries =
the=20
following day.
<=
/SPAN>Alleging=20
negligence, Molina=E2=80=99s estate and his parents=E2=80=94who =
are the appellants in this=20
case=E2=80=94sued Francisco Hernandez, individually and d/b/a The =
Hernandez=20
Concrete Company,
DW&S, Three Properties, DSD =
Development, Inc.=20
(=E2=80=9CDSD=E2=80=9D), and other affiliated corporate =
entities.
As part of their claims, appellants =
asserted that=20
DW&S and Three Properties =E2=80=9Cconducted their work at the =
project in a=20
negligent manner because they violated the duties which they owed =
[Molina]=20
to exercise the proper level of care in their performance of the =
work=20
which constituted the project and to provide [Molina] a safe =
workplace.=E2=80=9D=20
Appellants alleged that Three Properties=E2=80=99s and =
DW&S=E2=80=99s =E2=80=9Cviolations of=20
OSHA
rules and regulations=E2=80=9D =
constituted negligence per=20
se. To support its claim for exemplary damages, appellants =
asserted a=20
claim of gross negligence. Appellants also claimed that the =
corporate=20
defendants were liable for the actions of one another based on the =
theory=20
of joint enterprise.
<=
/SPAN>Additionally,=20
appellants sued Donald Sowell and his wife Beatrice Sowell. The =
Sowells=20
own all shares of DSD, the general partner of Three Properties, =
and of=20
Platinum S, L.L.C, its limited partner. Appellants also sued =
Michael=20
Sowell, who with his father Donald, owns DW&S. Appellants =
alleged that=20
the three Sowells were individually liable based on theories of =
fraud and=20
alter ego.
<=
/SPAN>DW&S=20
filed a motion for summary judgment asserting that it could not be =
held=20
liable for Molina=E2=80=99s death because, inter alia, it =
had no right to=20
control Hernandez Concrete=E2=80=99s work. Appellants responded by =
offering the=20
contract between DW&S and Three Properties to show that =
DW&S had=20
the contractual right to control Hernandez Concrete=E2=80=99s =
work.=20
<=
/SPAN>DSD=20
and Michael Sowell also sought summary judgment, pointing out =
that, as=20
pled by appellants, their liability was dependent on the other =
corporate=20
defendants=E2=80=99 liability. DSD and Michael asserted that, =
because the=20
corporate defendants were entitled to summary judgment, they =
likewise were=20
entitled to summary judgment. Additionally, the motion for summary =
judgment contained a no-evidence challenge to appellants=E2=80=99 =
fraud claim.=20
<=
/SPAN>Three=20
Properties filed a no-evidence summary judgment, asserting that, =
as the=20
property owner, it was not liable as a matter of law pursuant to =
section=20
95.003. In their response to Three Properties=E2=80=99s motion for =
summary=20
judgment, appellants contended that section 95.003 is preempted by =
federal=20
law, =E2=80=9Cincluding OSHA requirements,=E2=80=9D in this case. =
In support of this=20
contention, appellants offered a loan agreement between Three =
Properties=20
and the City of Houston showing that Three Properties had obtained =
a loan=20
from the city to purchase the apartment complex where Molina was =
injured.=20
The loan agreement provided that funding was through a federal =
community=20
development grant program and required Three Properties to abide =
by=20
federal law. Appellants contended that federal law required Three=20
Properties to retain control of the construction work at the site =
and to=20
insure the workers=E2=80=99 safety.
<=
/SPAN>The=20
trial court granted the motions for summary judgment of Three =
Properties,=20
DSD, Michael Sowell, DW&S, and its affiliated entities. =
Following the=20
granting of these motions, Donald and Beatrice Sowell filed a =
motion for=20
summary judgment. The Sowells asserted that no evidence existed as =
to=20
appellants=E2=80=99 fraud and alter ego claims on which appellants =
sought to hold=20
them individually liable. Alternatively, the Sowells argued that =
the alter=20
ego claim was =E2=80=9Cmoot=E2=80=9D because the corporate =
defendants had been previously=20
dismissed or non-suited. The trial court also granted the =
Sowells=E2=80=99 motion=20
for summary judgment. The trial court later signed a judgment =
making all=20
orders for summary judgment final.
<=
/SPAN>Appellants=20
seek reversal of the summary judgments.
DW&S=E2=80=99s Motion=20
for Summary Judgment
<=
/SPAN>In=20
their first issue, appellants contend that the trial court erred =
in=20
granting DW&S=E2=80=99s motion for summary judgment on the =
ground that=20
DW&S had no right of control over Hernandez Concrete=E2=80=99s =
work. Before we=20
delve into the issue of DW&S=E2=80=99s control, however, we =
first must=20
determine what type of motion for summary judgment DW&S filed =
with=20
respect to this issue.
A. Type=20
of Motion for Summary Judgment
<=
/SPAN>DW&S=20
did not express in its motion for summary judgment whether it was =
seeking=20
a traditional summary judgment or a no-evidence summary=20
judgment.
On =
appeal,=20
DW&S contends that it filed a traditional motion for summary =
judgment.=20
In contrast, appellants contend that DW&S filed a no-evidence =
motion=20
for summary judgment. Determining the =
type of=20
motion filed is critical because the two forms of summary judgment =
are=20
distinct, entail different burdens, and invoke different =
standards of=20
review. Compare =
Tex. R. Civ. P. 166a(c), =
with Tex. R. Civ. =
P.=20
166a(i).=20
=
=
A=20
party moving for a traditional motion for summary judgment under =
rule=20
166a(c) has the burden to show that there is no genuine issue of =
material=20
fact and that it is entitled to judgment as a matter of law. Tex. R. Civ. P.=20
166a(c). A=20
traditional movant also has the burden to prove all essential =
elements of=20
its cause of action or defense as a matter of law. Id. By =
contrast,=20
when a party moves for a no-evidence motion for summary judgment =
under=20
rule 166a(i), the party must assert that there is no evidence of =
one or=20
more essential elements of a claim or defense on which the =
nonmovant bears=20
the burden of proof at trial. See Tex. R. Civ. P.=20
166a(i). =
The movant=20
must specifically identify the elements as to which it claims =
there is no=20
evidence. See=20
id. The burden then shifts to the non-movant to =
produce=20
evidence raising a genuine issue of material fact on the =
challenged=20
element(s). See id.
<=
/SPAN>Here,=20
DW&S=E2=80=99s motion for summary judgment does not delineate =
whether it is a=20
no-evidence or a traditional motion for summary judgment. The =
motion is=20
unrevealing on its face, citing neither to rule of civil procedure =
166a(c) nor =
to rule =
166a(i). An=20
initial reading of the motion reveals an amalgam of traditional =
and=20
no-evidence language and argument.
<=
/SPAN>The=20
motion for summary judgment acknowledged that appellants claimed =
in their=20
petition that DW&S had a right to control the work of =
Hernandez=20
Concrete. In this regard, the motion stated, =E2=80=9C[T]here is =
no evidence to=20
support the allegation that DW&S had the right to control =
Hernandez=20
[sic] work.=E2=80=9D The remainder of the motion read as though =
DW&S intended=20
the motion to present only a traditional summary judgment =
argument. Though=20
it is peppered with the phrase =E2=80=9Cno evidence,=E2=80=9D a =
deeper reading of the=20
motion, in conjunction with rule 166a, reveals that DW&S also =
assumed=20
the burden of proving, as a matter of law, that it owed no duty to =
Molina=20
because it neither contractually nor actually controlled the=20
subcontractor=E2=80=99s work at the construction site. Thus, out =
of an abundance=20
of caution, we will interpret the motion as presenting both =
no-evidence=20
and traditional summary judgment arguments.
<=
/SPAN>When=20
a party moves for summary judgment under both rules 166a(c) and =
166a(i),=20
we first review the trial court=E2=80=99s judgment under the =
no-evidence standard=20
of rule 166a(i). Ford Motor Co. v. Ridgway, 135 S.W.3d 598, =
600=20
(Tex. 2004). Under that standard, appellants were required to =
produce=20
summary judgment evidence raising a genuine issue of material fact =
to=20
defeat the summary judgment. See Tex. R. Civ. P. 166a(i). =
A=20
no-evidence summary judgment is improper if the respondent brings =
forth=20
more than a scintilla of probative evidence to raise a genuine =
issue of=20
material fact. Id; Forbes Inc. v. Granada Biosciences, =
Inc.,=20
124 S.W.3d 167, 172 (Tex. 2003). Less than a scintilla of evidence =
exists=20
when the evidence is so weak as to do no more than create a mere =
surmise=20
or suspicion of a fact. Forbes, 124 S.W.3d at 172. More =
than a=20
scintilla of evidence exists if it would allow reasonable and =
fair-minded=20
people to differ in their conclusions. Id. If appellants =
produced=20
more than a scintilla of evidence that DW&S had a right of =
control,=20
only then do we analyze whether DW&S=E2=80=99s proof satisfied =
its Rule=20
166a(c) burden. See Ridgway, 135 S.W.3d at 600. =
B. DW&S=E2=80=99=
s=20
No-Evidence Motion for Summary Judgment
<=
/SPAN>1. General=20
Principles Governing Duty
<=
/SPAN>To=20
successfully prosecute a negligence cause of action, a plaintiff =
must show=20
(1) a legal duty owed by the defendant to the plaintiff, (2) a =
breach of=20
that duty, and (3) damages proximately caused by the breach. =
Lee Lewis=20
Constr., Inc. v. Harrison, 70 S.W.3d 778, 782 (Tex. 2001). In =
most=20
circumstances, a general contractor does not owe a duty to ensure =
that an=20
independent contractor performs its work in a safe manner. Id. =
at=20
783; Elliott-Williams Co. v. Diaz, 9 S.W.3d 801, 803 (Tex. =
1999). A=20
duty may arise, however, when a general contractor retains some =
control=20
over the manner in which the subcontractor=E2=80=99s work is =
performed. Lee=20
Lewis Const., 70 S.W.3d at 783; Elliott-Williams, 9 =
S.W.3d=20
at 803. This principle is explained in section 414 of the =
Restatement=20
(Second) of Torts, which the Supreme Court of Texas adopted in =
Redinger=20
v. Living, Inc., 689 S.W.2d 415, 418 (Tex. 1985). Section 414 =
provides=20
as follows:
One who entrusts work to an independent=20
contractor, but who retains the control of any part of the work, =
is=20
subject to liability for physical harm to others for whose safety =
the=20
employer owes a duty to exercise reasonable care, which is caused =
by his=20
failure to exercise his control with reasonable=20
care.
Restatement=20
(Second) of Torts =C2=A7 414 (1965).
<=
/SPAN>In=20
Lee Lewis Construction, the supreme court recognized =
that=20
=E2=80=9C[u]nder our decision in Redinger, a general =
contractor may owe a=20
duty of reasonable care to a subcontractor=E2=80=99s employee, and =
consequently=20
may be liable for injury to that employee, if the general =
contractor=20
retains control over part of the work to be performed . . . =
.=E2=80=9D Lee=20
Lewis Const., 70 S.W.3d at 783 (citing Redinger, 689 =
S.W.2d=20
at 418). A party can prove a right to control by evidence of a =
contractual=20
agreement that explicitly assigns the general contractor a right =
to=20
control. See Dow Chem. Co. v. Bright, 89 S.W.3d 602, =
606=20
(Tex. 2002). That is, a contract may impose control on a general=20
contractor thereby creating a duty of care. =
Elliott-Williams, 9=20
S.W.3d at 804.
<=
/SPAN>A=20
general contractor=E2=80=99s duty of care is commensurate with the =
control it=20
possesses over the contractor=E2=80=99s work. Lee Lewis =
Const., 70=20
S.W.3d at 783; Elliott-Williams, 9 S.W.3d at 803. More=20
particularly, a general contractor may be liable for its =
independent=20
contractor=E2=80=99s acts if it has the right to control the =
means, methods, or=20
details of the independent contractor=E2=80=99s work. =
Elliott-Williams, 9=20
S.W.3d at 804. The right of control must extend to the =
=E2=80=9Coperative=20
detail=E2=80=9D of the independent contractor=E2=80=99s work so =
that it is not free to do=20
the work in its own way. Hoechst-Celanese Corp. v. Mendez, =
967=20
S.W.2d 354, 356 (Tex. 1998). The control must relate to the =
injury=20
that the negligence causes, and the contract must grant the =
contractor at=20
least the power to direct the order in which work is to be done.=20
Elliott-Williams, 9 S.W.3d at 804. It is not enough that =
the=20
general contractor has the right to order work to stop and start, =
to=20
inspect progress, or to recommend a safe manner for the =
independent=20
contractor=E2=80=99s employees to perform their work. See =
Bright, 89=20
S.W.3d at 607=E2=80=9308. =E2=80=9C[M]erely exercising or =
retaining a general right to=20
recommend a safe manner for the independent contractor=E2=80=99s =
employees to=20
perform their work is not enough to subject the [general =
contractor] to=20
liability.=E2=80=9D Koch Refining Co. v. Chapa, 11 S.W.3d =
153, 155 (Tex.=20
1999). That is, the retained right of control must be more than =
general or=20
supervisory for liability to attach. Mendez, 967 S.W.2d at =
356.=20
<=
/SPAN>As=20
recognized by the Elliott-Williams court, comment c to =
section 414=20
expounds on the degree of retained control required to create a=20
duty:
[T]he employer must have retained at =
least some=20
degree of control over the manner in which the work is done. It is =
not=20
enough that he has merely a general right to order the work =
stopped or=20
resumed, to inspect its progress or to receive reports, to make=20
suggestions or recommendations which need not necessarily be =
followed, or=20
to prescribe alterations and deviations. Such a general right is =
usually=20
reserved to employers, but it does not mean that the contractor is =
controlled as to his methods of work or as to operative detail. =
There must=20
be such a retention of a right of supervision that the contractor =
is not=20
entirely free to do the work in his own way.
Restatement=20
(Second) of Torts =C2=A7 414 cmt. c (1965); =
Elliott-Williams, 9=20
S.W.3d at 804.
<=
/SPAN>2. The=20
Prime Contract
<=
/SPAN>In=20
response to DW&S=E2=80=99s motion for summary judgment, =
appellants contended=20
that DW&S owed Molina a duty of care because it had a =
contractual=20
obligation to control Hernandez Concrete=E2=80=99s work at the =
construction=20
site.
Specifically, appellants asserted that =
DW&S=20
had a contractual right of control that was derived from the prime =
contract between DW&S and Three Properties, which appellants =
attached=20
to its response.
<=
/SPAN>The=20
prime contract contained standard form provisions published by the =
American Institute of Architects. Appellants pointed to the =
following=20
provisions as evidence that DW&S possessed the requisite =
contractual=20
control over Hernandez Concrete=E2=80=99s work:
ARTICLE 3 CONTRACTOR
. . . .
3.3.1 [DW&S] shall supervise and =
direct the=20
Work using [its] best skill and attention. [DW&S] shall be =
solely=20
responsible for all construction means, methods, techniques, =
sequences and=20
procedures and for coordinating all portions of the =
Work
under the Contract, . . . =
.
3.3.2 [DW&S] shall be responsible to =
[Three=20
Properties] for acts and omissions of [its] employees, =
Subcontractors and=20
their agents and employees, and other persons or entities =
performing=20
portions of the Work for or on behalf of [DW&S] or any of its=20
Subcontractors.
. . . .
3.4.2 [DW&S] shall enforce strict =
discipline=20
and good order among [its] employees and other persons carrying =
out the=20
Contract. [DW&S] shall not permit employment of unfit persons =
or=20
persons not skilled in tasks assigned to them.
. . . .
3.7.2 [DW&S] shall comply with and =
give=20
notices required by laws, ordinances, rules, regulations and =
lawful orders=20
of public authority applicable to performance of the=20
Work.
. . . .
<=
/SPAN>ARTICLE=20
10 PROTECTION OF PERSONS AND PROPERTY
10.1.1 [DW&S] shall be responsible =
for=20
initiating, maintaining and supervising all safety precautions and =
programs in connection with the performance of the Contract.=20
10.2.1 [DW&S] shall take all =
reasonable=20
precautions for the safety of, and shall provide all reasonable =
protection=20
to prevent damage, injury or loss to:
.1 employees on the Work and all other =
persons who=20
may be affected thereby . . . .
<=
/SPAN>Whether=20
there is a contractual right of control is generally a question of =
law for=20
the court. Elliott-Williams, 9 S.W.3d at 803. Our primary=20
consideration when interpreting a contract is the parties=E2=80=99 =
intent as=20
expressed in the instrument. Id. As with any contract=20
interpretation, we must not view these provisions in isolation, =
but=20
consider them in the context of the contract as a whole. See =
Provident=20
Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 216 =
(Tex.=20
2003). Viewing the contract in its entirety furthers the objective =
of=20
giving effect to the written expression of the parties=E2=80=99 =
intent. See=20
Forbau v. Aetna Life Ins. Co., 876 S.W.2d 132, 133 (Tex. =
1994). Thus,=20
it is imperative to examine all provisions of the prime contract =
to place=20
those provisions cited by appellants in proper context and to give =
effect=20
to the intent of DW&S and Three Properties when they entered =
into the=20
agreement.
<=
/SPAN>Here,=20
the prime contract provides that it =E2=80=9Cshall not be =
construed to create a=20
contractual relationship of any kind . . . between any persons or =
entities=20
other than [Three Properties] and [DW&S].=E2=80=9D The =
contract required=20
DW&S to indemnify Three Properties for, inter alia, =
personal=20
injury claims resulting from performance of =E2=80=9Cthe =
Work=E2=80=9D to the extent that=20
such claims were caused by the negligence of DW&S or its=20
subcontractors. The prime contract also contemplated that DW&S =
would=20
enter into separate contracts with its subcontractors and directed =
DW&S to require=20
its subcontractors =E2=80=9Cto assume toward [DW&S] all the =
obligations and=20
responsibilities, including the responsibility for safety of the=20
Subcontractor=E2=80=99s work,=E2=80=9D which DW&S had assumed =
toward Three=20
Properties.
<=
/SPAN>Considering=20
them in the context of the prime contract as a whole, the =
provisions cited=20
by appellants did not impose a contractual duty of care as claimed =
by=20
appellants. The express language of the contract made clear that =
it=20
governed only the relationship between DW&S and Three =
Properties and=20
served to allocate the rights and responsibilities between them=20
exclusively. In this regard, the overarching purpose of the =
contract is=20
revealed: to insulate Three Properties from tort liability and to =
create a=20
duty of fiscal responsibility flowing from DW&S to Three =
Properties=20
for claims arising from the construction project. =
<=
/SPAN>When=20
read in context, the cited provisions did not require DW&S to =
retain=20
control over the means, methods, or details of any =
subcontractor=E2=80=99s work.=20
Rather, they (1) required DW&S to be responsible to Three =
Properties=20
for Hernandez Concrete=E2=80=99s work or its actions and (2) =
required DW&S to=20
exercise broad, supervisory powers over the work at the site. =
See=20
Legros v. Lone Star Striping and Paving, LLC, No. =
14=E2=80=9305=E2=80=9300088=E2=80=93CV,=20
2005 WL 3359740, at *2 (Tex. App.=E2=80=94Houston [14th Dist.] =
Dec. 6, 2005, no=20
pet.) (mem. op.) (interpreting similar contract language not to =
establish=20
contractual right of control over subcontractor=E2=80=99s work, =
but, rather as=20
establishing rights between premises owner and general contractor =
only);=20
see also Elliott-Williams, 9 S.W.3d at 806 =
(concluding no=20
contractual control created by prime contract because parties =
intended=20
only to create financial responsibility flowing from general =
contractor to=20
military and did not intend to impose control over =
subcontractor=E2=80=99s work).=20
<=
/SPAN>We=20
recognize that the cited provisions found in article 10 are =
particularly=20
salient because they pertain to control over safety practices for =
work=20
performed on the construction project. The language found in these =
provisions required broad supervision of workplace safety and =
demanded=20
only that DW&S set minimum safety standards. =E2=80=9C[T]he =
retention of a=20
general right to recommend a safe manner for employees to perform =
their=20
work does not create liability. To hold otherwise would work =
against=20
public policy by discouraging owners and general contractors from=20
implementing any safety regulations for fear of incurring =
liability.=E2=80=9D=20
Legros, 2005 WL 3359740, at *3 (internal citation=20
omitted).
<=
/SPAN>=E2=80=9CFor=20
the general contractor to be liable for negligence, its =
supervisory=20
control must relate to the condition or activity that caused the =
injury.=E2=80=9D=20
Clayton W. Williams, Jr., Inc. v. Olivo, 952 S.W.2d 523, =
528 (Tex.=20
1997); see Exxon v. Tidwell, 867 S.W.2d 19, 23 (Tex. =
1993)=20
(emphasizing that =E2=80=9C[t]he focus should be on whether Exxon =
had the right to=20
control the alleged security defects that led to Tidwell=E2=80=99s =
injury=E2=80=9D). =E2=80=9CThis=20
emphasis on the nexus between an employer=E2=80=99s retained =
supervisory control=20
and the condition or activity that caused the injury=E2=80=9D =
results in the scope=20
of the general contractor=E2=80=99s duty toward a =
subcontractor=E2=80=99s employee being=20
limited to the scope of the general contractor=E2=80=99s retained =
supervisory=20
control. Mendez, 967 S.W.2d at 357 (emphasis omitted). =
=E2=80=9CIn sum, the=20
employer=E2=80=99s duty of care is commensurate with the control =
it retains over=20
the contractor=E2=80=99s work.=E2=80=9D =
Id.
<=
/SPAN>Here,=20
appellants alleged that DW&S breached its duty of care to =
Molina by=20
failing to do the following: (1) properly train Molina, or insure =
that he=20
was already properly trained, in the safe operation of the front =
loader;=20
(2) properly supervise Molina to insure that he was operating the =
front=20
loader safely; (3) inspect the front loader to determine its =
safety; (4)=20
prevent Molina from operating the front loader without assistance, =
including changing an attachment on the equipment; (5) stop or =
prevent a=20
=E2=80=9Cdangerous activity in which Molina was engaged,=E2=80=9D =
i.e., the operation of=20
the front loader; and (6) require Molina to wear a hard hat or =
other=20
headgear.
<=
/SPAN>The=20
provisions found in article 10 of the prime contract imposed a =
broad duty=20
on DW&S to supervise safety and required only that DW&S =
promulgate=20
and enforce minimum safety standards. Such general safety =
requirements did=20
not impose an unqualified duty of care on DW&S to ensure that=20
Hernandez Concrete employees did nothing unsafe. See id. at =
357=E2=80=9358.=20
That is, the record reveals no nexus between the broad duties =
imposed on=20
DW&S by the prime contract and appellants=E2=80=99 specific =
allegations of=20
negligence against DW&S regarding Molina=E2=80=99s operation =
of the front=20
loader. Appellants have not alleged or shown that DW&S =
implemented=20
safety measures that caused Molina=E2=80=99s injuries nor have =
they alleged or=20
shown that DW&S was aware that Hernandez Concrete engaged in =
unsafe=20
practices. See Lee Lewis Constr., 70 S.W.3d at 784 (holding =
that=20
general contractor has actually exercised control of premises when =
general=20
contractor knew of dangerous condition before injury occurred and =
approved=20
acts that were dangerous and unsafe); Mendez, 967 S.W.2d at =
358=20
(=E2=80=9C[A]n employer who is aware that its contractor routinely =
ignores=20
applicable federal guidelines and standard company policies =
related to=20
safety may owe a duty to require corrective measures to be taken =
or to=20
cancel the contract.=E2=80=9D); Enserch Corp. v. Parker, =
794 S.W.2d 2, 6=20
(Tex. 1990) (holding that Enserch=E2=80=99s providing of book =
detailing exact=20
procedures to be followed while working on pipeline and frequent=20
visitation and supervision of contractor=E2=80=99s employees by =
Enserch=20
representatives created fact question about Enserch=E2=80=99s =
right to control=20
work); Redinger, 689 S.W.2d at 418 (holding general =
contractor=20
liable who was present to observe danger and gave order causing=20
plaintiff=E2=80=99s injury).
<=
/SPAN>In=20
sum, because the prime contract, as a matter of law, did not =
require=20
DW&S to control the means, methods, or details of how =
Hernandez=20
Concrete performed the work, the prime contract constituted no =
evidence=20
that DW&S owed Molina a duty to ensure that Molina=E2=80=99s =
operation of the=20
front loader was safe.
<=
/SPAN>3. Conclusion=
=20
Regarding DW&S=E2=80=99s Motion for Summary Judgment =
<=
/SPAN>Based=20
on the summary judgment record and the applicable legal principles =
governing general contractor liability, we conclude that =
appellants=20
did not offer more than a scintilla of evidence to show that =
DW&S had=20
a right to control Hernandez Concrete=E2=80=99s work. We hold that =
the trial court=20
properly granted DW&S=E2=80=99s no-evidence motion =
for=20
summary judgment.
=
We=20
overrule appellants=E2=80=99 first issue.
Negligence Per Se and Gross Negligence =
Claims=20
Against DW&S
=
DW&S=E2=80=99s=20
summary judgment also applied to appellants=E2=80=99 negligence =
per se claims,=20
which were based on DW&S alleged violations of federal law, =
including=20
OSHA regulations, and to appellants=E2=80=99 exemplary damages =
claim, which were=20
based on alleged gross negligence. Appellants do not raise an =
issue on=20
appeal as to the trial court=E2=80=99s granting of summary =
judgment on the=20
negligence per se or gross negligence claims, or otherwise =
specifically=20
brief those issues. Thus, appellants waived any error with =
regard=20
to those claims. See Jacobs v. Satterwhite, 65 S.W.3d 653, =
655=20
(Tex. 2001) (citing San Jacinto River Auth. v. Duke, 783 =
S.W.2d=20
209, 209=E2=80=9310 (Tex. 1990)). To the extent that appellants =
assert that=20
challenges to those claims are contained in their arguments =
relating to=20
whether DW&S owed a duty to Molina, they are inadequately =
briefed.=20
See Tex. R. App. =
P.=20
38.1(h).
Three Properties=E2=80=99s Motion for =
Summary=20
Judgment
=
In=20
their second and third issues, appellants challenge the trial =
court=E2=80=99s=20
granting of summary judgment in favor of Three Properties based on =
section=20
95.003 of the Civil Practice and Remedies Code. See =
Tex. Civ. Prac. =
& Rem.=20
Code Ann. =C2=A7 95.003 =
(Vernon=20
2005). Section 95.003 provides as follows:
A property owner is not liable for =
personal=20
injury, death, or property damage to a contractor, subcontractor, =
or an=20
employee of a contractor or subcontractor who constructs, repairs, =
renovates, or modifies an improvement to real property, including =
personal=20
injury, death, or property damage arising from the failure to =
provide a=20
safe workplace unless:
(1) the property owner exercises or =
retains some=20
control over the manner in which the work is performed, other than =
the=20
right to order the work to start or stop or to inspect progress or =
receive=20
reports; and
(2) the property owner had actual =
knowledge of the=20
danger or condition resulting in the personal injury, death, or =
property=20
damage and failed to adequately warn.
Id.
A. Preemption=20
by Federal Law
<=
/SPAN>In=20
their third issue, appellants assert that section 95.003(2), =
providing=20
that =E2=80=9Cthe property owner had actual knowledge of the =
danger or condition=20
resulting in the personal injury, death, or property damage and =
failed to=20
adequately warn=E2=80=9D is preempted by federal law. See id. =
Appellants=20
contend that Three Properties was required to comply with =
=E2=80=9Call federal=20
laws, rules and regulations applicable to the construction =
project=E2=80=9D=20
because Three Properties had obtained =E2=80=9Cfederal financial =
assistance=E2=80=9D for=20
the project and had contractually agreed to be bound by applicable =
federal=20
law. We conclude that appellants=E2=80=99 preemption claim is =
without=20
merit.
<=
/SPAN>If=20
a state law conflicts with federal law, it is preempted and has no =
effect.=E2=80=9D Great Dane Trailers, Inc. v. Estate of =
Wells, 52 S.W.3d=20
737, 743 (Tex. 2001); see also U.S. Const. art. VI, =
Clarendon. 2=20
(=E2=80=9CThe laws of the United States are the =E2=80=98supreme =
Law of the Land . . . any=20
Thing in the Constitution or Laws of any State to the Contrary=20
notwithstanding=E2=80=99=E2=80=9D). Federal law may impliedly =
preempt state law if it is=20
impossible for a private party to comply with both state and =
federal=20
requirements or if state law obstructs accomplishing and executing =
Congress=E2=80=99s full purposes and objectives. Great Dane =
Trailers, 52=20
S.W.3d at 743.
<=
/SPAN>Here,=20
appellants contend that federal law and regulations pertaining to=20
workplace safety in the construction industry impliedly preempt =
section=20
95.003(2). Specifically, appellants claim that section 95.003(2) =
is=20
impliedly preempted by provisions of OSHA regulations, found in 29 =
C.F.R.=20
part 1926, and with the Contract Work Hours and Safety Standards =
Act (=E2=80=9Cthe=20
CWHSSA=E2=80=9D),
which appellants allege apply to Three =
Properties=20
and pertain to regulation of workplace safety in the construction=20
industry.
Appellants contend that section =
95.003(2)=20
conflicts with the CWHSSA and 29 C.F.R. part 1926. =
<=
/SPAN>In=20
their brief, appellants explain the =E2=80=9Cconflict=E2=80=9D as=20
follows:
The requirement in =C2=A7 95.003(2), =
that a property=20
owner can be liable for the death of an employee of a =
subcontractor due to=20
an unsafe workplace only if he had actual knowledge of the danger =
or=20
condition resulting in the death and failed to give adequate =
warning, has=20
no counterpart in the above referenced federal standards to which =
Three=20
Properties became bound in the Loan Agreement. It is not a =
precondition=20
for holding affected parties accountable for violations of OSHA, =
the=20
CWHSSA, or other health and safety requirements in 29 C.F.R. pt. =
1926,=20
that the party first must have had actual knowledge of danger and =
must=20
have failed to give an adequate warning about it. Since these=20
preconditions under state law for liability conflict with the =
applicable=20
federal requirements, they are preempted and cannot be used to =
preclude=20
the pending action against Three Properties.
<=
/SPAN>To=20
the extent that appellants contend that section 95.003(2) prevents =
them=20
from asserting tort claims against Three Properties, which they =
would=20
otherwise be entitled to assert under either OSHA regulations or =
the=20
CWHSSA, appellants=E2=80=99 contention does not succeed. =
Regulations promulgated=20
under the OSHA statute neither create an implied cause of action =
nor=20
establish negligence per se. McClure v. Denham, 162 S.W.3d =
346, 353=20
(Tex. App.=E2=80=94Fort Worth 2005, no pet.) (citing Melerine =
v. Avondale=20
Shipyards, Inc., 659 F.2d 706, 707 (5th Cir. 1981) =
(recognizing that=20
OSHA was adopted to assure safe and healthful working =
conditions)).=20
Likewise, the provisions of the CWHSSA do not provide for a =
private right=20
of action. See 40 U.S.C.S.=20
=C2=A7=C2=A7 3701=E2=80=933708 (Law. Co-op. 2003 & Supp. =
2005).=20
<=
/SPAN>Appellants=20
also have not shown that section 95.003(2) in any manner obstructs =
the=20
administrative enforcement of either the cited OSHA regulations or =
the=20
CWHSSA by the assigned federal regulating agency. Appellants have =
not=20
demonstrated that section 95.003(2) frustrates the envisioned=20
Congressional purposes or objectives of the cited OSHA regulations =
or the=20
CWHSSA and has not shown that section 95.003(2) relieves Three =
Properties=20
of any obligations it may have under the cited federal =
authorities. Nor=20
have appellants demonstrated that section 95.003(2) makes it =
impossible=20
for Three Properties to comply with the referenced federal =
authorities.=20
Thus, appellants=E2=80=99 preemption argument does not =
succeed.
<=
/SPAN>We=20
overrule appellants=E2=80=99 third issue.
B. No=20
Appellate Challenge to Claim of No-Evidence of Actual Knowledge=20
=
=
As gleaned from =
the =E2=80=9Cissues=20
presented=E2=80=9D section of their brief, we read appellants =
second issue to=20
assert that the trial court erred in granting summary judgment =
because=20
Three Properties possessed the requisite control over the work at =
the=20
construction site. Both =
conditions of=20
section 95.003, control and=20
knowledge, must be met, however, before liability will be =
imposed=20
upon the property owner. Francis v. Coastal Oil & Gas =
Corp.,=20
130 S.W.3d 76, 83 (Tex. App.=E2=80=94Houston [1st Dist.] 2003, no =
pet.). It is the =
plaintiff=E2=80=99s=20
burden to prove both prongs of section 95.003. =
Id.
=
In=20
the trial court, Three Properties filed a no-evidence motion for =
summary=20
judgment, asserting that no evidence existed as to either control =
or=20
knowledge. Appellants responded, addressing both prongs. The trial =
court=20
granted summary judgment to Three Properties without stating its =
reason in=20
the order or the final judgment.
=
Appellants=20
do not contend on appeal that they met their summary judgment =
burden in=20
the trial court as to the actual knowledge requirement. =
When, as here, a =
summary=20
judgment does not state the specific grounds on which it was =
granted, a=20
party appealing from the judgment must show that each of the =
independent=20
arguments alleged in the motion is insufficient to support the=20
judgment. Star-Telegram, Inc. v. Doe, 915 S.W.2d 471, 473 =
(Tex.=20
1995); see Wrenn v. G.A.T.X. Logistics, Inc., 73 S.W.3d =
489, 493=20
(Tex. App.=E2=80=94Fort Worth 2002, no pet.) (holding that, when =
summary judgment=20
rests on more than one ground, appellant must challenge each =
ground on=20
appeal, or judgment will be affirmed on ground about which no =
complaint is=20
made). Because appellants do not challenge the no-evidence =
ground=20
regarding the actual=20
knowledge requirement, we must affirm =
summary=20
judgment in Three Properties=E2=80=99s favor. See Ellis =
v. Precision=20
Engine Rebuilders, Inc., 68 S.W.3d 894, 898 (Tex. =
App.=E2=80=94Houston [1st=20
Dist.] 2002, no pet.); Zapata v. ACF Indus., Inc., 43 =
S.W.3d 584,=20
586 (Tex. App.=E2=80=94Houston [1st Dist.] 2001, no pet.). =
<=
/SPAN>We=20
overrule appellants=E2=80=99 second issue.
Granting of=20
Motions for Summary Judgments of Remaining=20
Defendants
<=
/SPAN>We=20
liberally construe the fourth issue stated in appellants=E2=80=99 =
=E2=80=9Cissues=20
presented=E2=80=9D section of their brief as complaining of the =
summary judgments=20
granted to the three Sowell individuals (Michael, Donald Wesley, =
and=20
Beatrice) and to DSD.
Appellants=E2=80=99 fourth issue, =
however, appears only in=20
the =E2=80=9Cissues presented=E2=80=9D portion of their brief. =
There are no supporting=20
arguments for these issues in the argument section of the =
appellants=E2=80=99=20
brief, as required by appellate rule of procedure 38.1(h). =
See=20
Tex. R. App. P. =
38.1(h).=20
Appellees point out the deficiencies in appellants=E2=80=99 =
briefing.=20
<=
/SPAN>Appellants=20
made some effort to explain the lack of briefing in their reply =
brief with=20
regard to the three Sowell individuals (but not with regard to =
DSD).=20
However, appellants provide no substantive, legal analysis of the =
issues=20
involved nor citation to any authority. See id. Accordingly, =
appellants present nothing for review with respect to their =
challenge to=20
the granting of the motions for summary judgment of the remaining=20
appellees. See=20
Palais Royal, Inc. v. Gunnels, 976 S.W.2d 837, 854 =
(Tex.=20
App.=E2=80=94Houston [1st Dist.] 1998, pet. dism=E2=80=99d by =
agr.) (holding that points=20
or issues lacking supporting argument present nothing for review). =
<=
/SPAN>Briefing=20
deficiencies aside, appellants acknowledge in their reply brief =
that their=20
claims against the Sowell individuals were derivative of their =
primary=20
claims against DW&S and Three Properties. Though not mentioned =
in the=20
briefing, appellants=E2=80=99 claims against DSD were also =
derivative of their=20
primary claims. We have held that summary judgment was appropriate =
on=20
appellants=E2=80=99 claims against DW&S and Three Properties. =
Thus, summary=20
judgment was also appropriate in favor of the three Sowells and =
DSD.=20
<=
/SPAN>We=20
overrule appellants=E2=80=99 fourth=20
issue.
Conclusion
<=
/SPAN>We=20
affirm the judgment of the trial court. =
&=
nbsp; &n=
bsp; &nb=
sp; &nbs=
p; Laura=20
Carter Higley
&=
nbsp; &n=
bsp; &nb=
sp; &nbs=
p; Justice
Panel consists of Justices Nuchia, =
Jennings, and=20
Higley. |