The Introduction

A premises owner which simply authorizes a contractor’s work may not be liable if the contractor is injured on its property by a hazard the contractor created. Texas courts have consistently held such owners do not owe a duty concerning defects created by an independent contractor’s work unless the owner retains or exercises control over the work.[1] The First Court of Appeals recently applied this principle in  Oxy USA WTP LP v. Benjamin Mendez Bringas, where an injured worker and his brothers sued a premises owner after the worker was electrocuted when a waste bin they were moving contacted an overhead power line.[2]

The Facts

Oxy USA WTP, LP (“Oxy”) contracted with Petro Waste Environmental, LP (“Petro”) for Petro to provide waste bins to Oxy’s facilities. Oxy provided general instructions of where to place the waste bins but gave no other instructions. No one from Oxy was present when Petro delivered the bins. The area where the bins were placed was unlit and close to the overhead power lines.

Seven months later, to accommodate its other customers, Petro needed to exchange Oxy’s bins. Oxy agreed to the exchange and gave Petro the “green light to go out and swap the boxes.”[3] Petro contacted independent contractor Madison Materials, LLC (“Madison”) to facilitate the exchange. Around 11:00 a.m., Petro gave Madison a list of GPS coordinates for the waste bins that would be exchanged. In turn, Madison contacted brothers Manuel and Benjamin Bringas, independent contractors for Dennis Romo, doing business as DJR Logistics. The Bringas did not communicate with or receive instructions from Oxy.[4]

The Bringas had never been to the facility. Benjamin Bringas decided to do the exchange at night without knowing if the area was lighted. The Bringas arrived around midnight. The Bringas used their truck lights, helmet lights, and a flashlight to illuminate the area; however, it was still “very dark” and “there was ‘not enough light’ for them to see whether there were power lines overhead.”[5] The Bringas exchanged the first bin without incident. But as they were loading the second bin, the trailer contacted the power lines, and Benjamin was electrocuted.  Fortunately, he survived.

The Litigation

The Bringas sued Oxy, alleging causes of action for premises defect, negligence, and negligence per se. The Bringas argued Oxy was responsible because it either created a dangerous condition by deciding to place the bins near the power lines, failed to warn the Bringas about the power lines, and/or violated a statute that generally requires measures to prevent workers from contacting energized power lines.[6]

Oxy moved for summary judgment arguing that “the conditions [of the premises] alleged by [the Bringas brothers] to be dangerous (overhead power lines, position of waste bins, inadequate lighting or darkness) are not the sort of existing premises conditions that are dangerous in and of themselves; instead, the alleged premises defects were created by the [Bringas brothers’] work.”[7] The trial court denied Oxy’s motion, but granted permission to appeal; the First Court of Appeals accepted.

On appeal, the Bringas brothers argued that “Oxy owed them a duty because it ‘had knowledge of and controlled (1) where the bins were placed, (2) when Bringas moved them, and (3) whether the power lines were illuminated or energized at the time.’”[8] The court rejected these arguments.  In doing so, the court stated, “[P]ower lines are not inherently dangerous in themselves but may become dangerous because of the manner in which independent contractors who come on premises perform their work duties.”[9] The court found the bins’ proximity to the power lines was not an existing defect in and of itself, but instead the “danger was activated when the Bringas brothers began the work of swapping out the waste bins at night.”[10] Because power lines are not inherently dangerous, the court concluded that Oxy did not owe the Bringas a duty unless Oxy retained or exercised control over the work.

Oxy’s contract with Petro expressly disclaimed the right to control the means, methods, or details of Petro’s work, asserted that neither Petro nor Petro’s subcontractors were Oxy’s agents, servants, or employees, and required Petro to “follow the wishes of [Oxy] in the results to be achieved and not in the means whereby the Work is to be accomplished.”[11] Notably, there was no contract between Oxy and the Bringas brothers. The language in the contract between Oxy and Petro and the lack of a contract between Oxy and the Bringas brothers negated a finding that Oxy retained control of the Bringas’ work.

The court also rejected the Bringas’ argument that liability could be imposed under a negligence theory. A person injured on someone’s property can assert a premises defect or negligent activity claim against the owner, but not both.[12] The difference between the claims is that a negligent activity claim requires contemporaneous conduct by the owner, whereas a premises defect claim is based on the property (or something about the property) being unsafe.[13] The Bringas brothers argued that “Oxy’s decision to ‘green light’ the ‘work to occur at night, during hours Oxy knew there would be insufficient lighting for [them] to safely accomplish the job’” was sufficient evidence of contemporaneous conduct to preclude summary judgment.[14] The court disagreed and disposed of the Bringas brothers’ negligence claim, noting that greenlighting the work was the “same alleged conduct that underline[d] the premises defect claim…[so] it [could] not support a separate negligent activity claim.”[15]

The court disposed of the Bringas brothers’ negligence per se claim, asserting that its “conclusion that Oxy proved that it did not exercise control over the Bringas brothers’ work… also disposes of any negligence per se claim.”[16] The court noted it has long interpreted Chapter 752 of the Texas Health & Safety Code so that “the owner, who had no right to direct the details of the subcontractor’s work and had not actually done so, was not a responsible party….” within the meaning of the statute. [17] Ultimately, the court held the trial court erred in denying Oxy’s summary judgment motion, reversed the order, and rendered judgment in Oxy’s favor.[18]

Takeaway

Premises owners may not owe a duty where an independent contractor is injured by a hazard the work created. Unless premises owners retain or exercise control over the means and methods of an independent contractor’s work, for example through direct contract or through its subcontractor, premises owner’s may not be liable for an independent contractor’s injury.

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Sources

[1] See e.g, Dow Chem. Co. v. Bright, 89 S.W.3d 602 (Tex. 2002), Coastal Marine Serv. of Tex., Inc. v. Lawrence, 988 S.W.2d 223, 225–26 (Tex. 1999); Oxy USA WTP, LP v. Bringas, et al., No. 01-22-00373-CV, — S.W.3d —-, 2024 WL 3349088, at *  (Tex. App. – Houston [1st Dist.] July 9, 2024).

[2] Oxy USA WTP, LP v. Bringas, et al., No. 01-22-00373-CV, — S.W.3d —-, 2024 WL 3349088 (Tex. App. – Houston [1st Dist.] July 9, 2024, no pet.).

[3] Oxy USA WTP, LP, 2024 WL 3349088, at *10.

[4] Oxy USA WTP, LP, 2024 WL 3349088, at *7.

[5] Oxy USA WTP, LP, 2024 WL 3349088, at *2.

[6] Texas Health & Safety Code § 752.003(b) provides:

(b) A person, firm, corporation, or association may not begin the work, activity, or function under this section until the person, firm, corporation, or association responsible for the work, activity, or function and the owner or operator, or both, of the high voltage overhead line have negotiated a satisfactory mutual arrangement to provide temporary de-energization and grounding, temporary relocation or raising of the line, or temporary mechanical barriers to separate and prevent contact between the line and the material or equipment or the person performing the work, activity, or function.

[7] Oxy USA WTP, LP, 2024 WL 3349088, at *3.

[8] Oxy USA WTP, LP, 2024 WL 3349088, at *7.

[9] Oxy USA WTP, LP, 2024 WL 3349088, at *7 (quoting Wood v. Phonoscope, Ltd., No. 01-00-01054-CV, 2004 WL 1172900, at *4 (Tex. App. – Houston [1st Dist.] May 27, 2024, no pet.)(mem op.); and Corpus v. K-J Oil Co., 720 S.W.2d 672, 674 (Tex. App. – Austin 1986, writ ref’d n.r.e.))

[10] Oxy USA WTP, LP, 2024 WL 3349088, at *8 (citing Phonoscope, Ltd., 2024 WL 1172900, at *4; and McCaughtry v. Barwood Homes Ass’n, 981 S.W.2d 325, 333-34 (Tex. App. – Houston [14th Dist.]  1998, pet. Denied)).

[11] Oxy USA WTP, LP, 2024 WL 3349088, at *8.

[12] See Occidental Chem. Corp. v. Jenkins, 478 S.W.3d 640 (Tex. 2016).

[13] Clayton W. Williams, Jr., Inc. v. Olivo, 952 S.W.2d 523, 527 (Tex. 1997).

[14] Oxy USA WTP, LP, 2024 WL 3349088, at *12.

[15] Oxy USA WTP, LP, 2024 WL 3349088, at 12 (citing  Keetch v. Kroger Co., 845 S.W.2d 262, 264 (Tex. 1992), Sampson v. Univ. of Tex. at Austin, 500 S.W.3d 380, 389 (Tex. 2016)).

[16] Oxy USA WTP, LP, 2024 WL 3349088, at *13.

[17] Oxy USA WTP, LP, 2024 WL 3349088, at *14 (citing Phonoscope, Ltd, 2004 WL 1172900, at 9-10)

[18] Oxy USA WTP, LP, 2024 WL 3349088, at *15.