Controlling the Control: JLB Builders, Scope of Liability, and Independent Contractors BY TASHA BARNES
Tasha Barnes is an equity partner with the law firm of Thompson Coe, specializing in defending personal injury cases. Tasha has practiced in Austin for 26 years, defending general contractors and owners sued for injuries occurring on construction job sites.
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common issue in construction jobsite injury cases is whether the owner and general contractor on the project can be held liable for injuries to an employee of a subcontractor. The well-established litmus test in determining liability involves whether the owner or general contractor exercised “control” over the injury-producing work being performed. In reviewing the issue of “control,” the pivotal issue is whether the owner and general contractor’s supervisory role includes control over the details of the contractor’s work, including the means and methods of how to perform it. The precise boundaries of the control a general contractor can exert without being held liable for the acts of its subcontractors have been debated by opposite sides of the bar in construction injury lawsuits. JLB Builders, LLC v. Hernandez In 2021, the Texas Supreme 10
AUSTINLAWYER | MAY 2022
Court provided significant guidance on the level of control that can be asserted by a general contractor over a subcontractor without facing liability for the negligence of the subcontractor. In JLB Builders, the Court established clear guidelines as to what type of control qualifies as those ordinarily within the scope of a general contractor role in overseeing the project versus crossing the line into controlling the details of the subcontractor’s work.1 While the overall opinion mainly restates a long-held bright line rule in construction law, the opinion also provides practitioners with parameters on the type of control a general contractor can exercise without assuming liability for the negligence of its subcontractors. The scope of appropriate measures taken by a general contractor in overseeing a project without stepping into liability has long been a minefield for owners and general contractors who wish to make sure they have safe job sites with quality work being performed but must balance their assertion of supervision with the risk of being held liable for the acts of independent contractors. Many summary judgments have been fought on whether a general contractor’s right to retain control over safety policies crosses the line into control sufficient enough to subject the general contractor to liability. The JLB Builders opinion takes a step forward in eliminating any confusion by specifically identifying specific acts of control that do not enter into the territory of controlling the details of the contractor’s work. JLB Builders arose from an accident in which Hernandez, an employee of a subcontractor, sustained injury during the course of a crane lift. JLB was the general contractor on a high-rise construction project in
Dallas. JLB subcontracted the concrete work to Capform, Inc., and Hernandez was a Capform employee. Hernandez was standing on a platform or a “rebar tower,” guiding the placement of a concrete column being hoisted by the crane. The tower was secured by wooden braces that were nailed to the ground. Either from wind or from the concrete form’s contact, the tower detached from the ground and fell, landing on Hernandez as he attempted to jump off. At the time of the incident, he was being supervised by a Capform employee. Hernandez sued JLB, asserting negligence and gross negligence, and alleging that JLB retained contractual and actual control over Capform’s work and therefore owed him a duty of care. JLB moved for traditional and no-evidence summary judgment, arguing that it did not owe a duty to Hernandez as it did not exercise actual control over the means, methods, or details of the subject work activity nor did it retain the contractual right to control the work. Additionally, JLB argued that it did not proximately cause Hernandez’s injuries. The trial court granted summary judgment in favor of JLB. Hernandez appealed on the negligence claim only. The court of appeals initially affirmed, finding that JLB owed Hernandez no duty because it did not control the manner, method, or means of Capform’s injury-causing work. However, on en banc reconsideration, a divided court of appeals vacated its decision and reversed the trial court’s summary judgment.2 The court found that fact issues existed regarding whether (1) JLB exercised actual control and thus owed Hernandez a duty, (2) JLB breached that duty, and (3) JLB’s breach proximately caused Hernandez’s injuries.3 The Texas Supreme Court grant-
ed JLB’s petition for review. On appeal, Hernandez argued multiple points to support his allegations that the general contractor, JLB, exercised control sufficient to subject it to liability. Specifically, Hernandez argued that the fact that JLB always had employees on the site, conducted safety inspections, inspected the work of subcontractors, had the authority to modify unsafe practices, and controlled the work schedule was demonstrative of actual control sufficient to subject JLB to liability.4 Furthermore, there was evidence from JLB that it was aware that Capform employees would be standing on rebar towers and knew that rebar towers could fall over if improperly braced, hit by a strong wind, or hit by a crane. At the outset, the Texas Supreme Court outlined the duty of a general contractor with respect to injuries to employees of its subcontractors and again emphasized the long-held doctrine that a general contractor owes no duty to an independent contractor to ensure that the independent contractor’s work is performed in a safe manner.5 Texas law is clear that in order for an owner or general contractor to be liable for its independent contractor’s purportedly negligent acts, it must retain or exercise the right to control the means, methods, or details of the independent contractor’s work.6 However, when the general contractor exercises some control over a subcontractor’s work, he may be liable unless he exercises reasonable care in supervising the subcontractor’s activity.7 Unanswered questions remained as to what was meant by “some control over a subcontractor’s work,” and the Court in JLB Builders provides some answers. Texas common law in this area holds that control may be proven
