For years, general contractors have relied upon the well-settled proposition that a general contractor owes no duty to ensure that an independent contractor performs its work in a safe manner. Elliot Williams Co. v. Diaz, 9 S.W.3d 801, 803 (Tex. 1999); Hoechst-Celanese Corp. v. Mendez, 967 S.W.2d 354, 356 (Tex. 1998). When the general contractor, however, retains control over the manner in which the independent contractor performs his work, he takes on responsibility that he May not ordinarily have and can be held liable for problems created by the independent contractor. Elliot Williams, 9 S.W.3d at 803. Building upon that proposition, the Texas Supreme Court astounded the construction industry when it held the general contractor liable for the death of a subcontractor’s employee in Lee Lewis Constr., Inc. v. Harrison, No. 99-0793, 2000 WL 33666911 (Tex. 2001).
General contractor Lee Lewis Construction, Inc. (“LLC”) signed a contract to remodel the eighth floor of, and add ninth and tenth floors to, a tower owned by Lubbock’s Methodist Hospital. LLC subcontracted the project’s interior glass-glazing work to KK Glass. Jimmy Harrison, an employee of KK Glass, was installing thermal insulation and caulking between the window frames on the tenth floor when he fell to his death. It was undisputed at trial that Harrison’s death would have been prevented had he been using an independent lifeline. Lee Lewis, 2001 WL 33666911 at *1.
Harrison’s wife, two children and parents sued both KK Glass and LLC. Id. at 1. After settling the claims against KK Glass, the Harrisons proceeded to trial against LLC. The jury found LLC was not only negligent, but grossly negligent. Id. The Texas Supreme Court affirmed the court of appeals decision concluding that the evidence was sufficient to show that LLC retained the right to control KK Glass’ fall-protection measures, failed to properly supervise those measures, and thus, was responsible for the death of Jimmy Harrison. Id. at 4.
The Court found the testimony at trial crucial in its decision-making process. LLC’s owner and president testified that LLC’s job superintendent had the responsibility to routinely inspect the ninth and tenth floor addition to the south tower to see to it that the subcontractors and their employees properly utilized fall protection equipment. Id. at *3. Further, LLC’s president personally witnessed and approved KK Glass’ fall protection system. Perhaps most critical, however, was the testimony of LLC’s superintendent that he knew of and did not object to KK Glass’ employees’ failure to use the lifeline that, if used by Harrison, would have prevented his death. These facts, said the Court, were sufficient to show that LLC retained control over the fall-protection system used by KK Glass such that it owed a duty of care to KK Glass’ employees. Id.
Lee Lewis was surprising, not because the Texas Supreme Court announced new principles of law, but rather because LLC did not appear to exercise more than the usual amount of control over the subcontractor than that expected on a large, multi-story construction project. The opinion mentions the subcontract language only in passing, suggesting that a provision or two in the subcontract requiring the subcontractor to maintain safety programs and bear the sole responsibility for injuries to its employees could make a difference. A more thorough reading of the case, however, suggests that the Court did not ignore the language of the subcontract but found that other provisions and the activity on the jobsite outweighed that specific provision.
Lee Lewis Construction, Inc. v. Harrison (Texas Supreme Court)
The subcontract provided that it was the subcontractor’s responsibility to look out for the safety of its own employees. LLC used this language to argue that KK Glass, not LLC, was responsible for Harrison’s safety. The Court did not find the argument persuasive, indicating that the evidence clearly demonstrated that LLC retained the lion’s share of responsibility, both in the contract and on the jobsite:
The general contractor agreed with the owner to be responsible for the safety of its own employees, its independent subcontractors’ employees, and everyone else on the construction site. The general contractor required the subcontractors to agree to adhere to a voluminous, detailed safety manual under penalty of being removed from the project. Although subcontractors agreed to be responsible for the safety of their own employees, the general contractor had the right to monitor their efforts and did so. Contractually and actually, the general contractor had thorough control of safety on the site, which is typical for major construction projects. Id. at 3.
This case teaches several important lessons. If the general contractor decides, either contractually or actually, to undertake responsibility for safety, providing a specific manual, control over maintenance of the safety policies, and policing the actions of subcontractors about the safety devices on the job site, the general contractor should ensure that the subcontractors are, in fact, following the important safety procedures as mandated. General contractors should consider taking the time to review their safety policies, indemnity provisions, and insurance coverage to reduce the risk of loss.
Michelle Rieger
Winstead Sechrest & Minick P.C.
1201 Elm Street, Suite 5400
Dallas, Texas 75270
mrieger@winstead.com
www.winstead.com
ConstructionRisk.com Report, Vol. 4, No. 6 (Jun 2002)
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