Controlling the Control: JLB Builders, Scope of Liability, and Independent Contractors

BY TASHA BARNES

A 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 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 granted 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 in two ways: (1) a contractual right of control retained by the general contractor; or (2) an exercise of actual control by the general contractor. 8 Here, however, the Court clarified that not just any control rises to the level of the type of control that can result in liability of the general contractor for the subcontractor’s negligence. The Court held that, regardless of whether actual or contractual control is at issue, “the ‘control must relate to the condition or activity that caused the injury.’” 9 Thus, controlling the details of one specific aspect of the construction project does not necessarily place the general contractor at risk for liability for a different aspect of the project. By way of example, if the general contractor somehow controls the details of one particular trade such as the drywall contractor by providing specific means and methods, this does not mean the general contractor is liable for the alleged negligence of the ironworkers whose means and methods it did not control. The requisite control must relate specifically to the injury-causing event.

In 2021, the Texas Supreme Court provided guidance on the scope of control that a general contractor can exert over a subcontractor without facing liability for the negligence of the subcontractor.

Construction Clients and Control

In analyzing the control issue, the Court relied upon several well-established points of law. The Court noted that JLB’s control of the general sequencing of work “merely indicates that JLB was performing the duties of a general contractor.” 10 Because there was no evidence that JLB had dictated which specific tasks Capform’s employees performed at what time, the Court found that this was not sufficient to rise to the level of control necessary to give rise to a duty on the part of JLB. 11 Further, the Court noted that testimony failed to show that instructions for how to perform the work at issue were provided by JLB, and, instead, instructions were given by the foreman of Capform. 12

The Court also disposed of the argument that JLB’s safety requirements gave rise to a general duty to ensure that Hernandez’s work was performed in a safe manner. 13 Hernandez particularly focused upon JLB’s requirement that safety harnesses be worn. In disposing of the issue, the Court stated that “[a] general contractor that promulgates mandatory safety requirements and procedures owes only a narrow duty to ensure that those requirements and procedures generally do not ‘unreasonably increase, rather than decrease, the probability and severity of injury.’” The Court also noted that the presence of a general contractor’s safety personnel at a construction site is likewise insufficient give rise to duty argued by plaintiff. 12

Likewise, the Court held that the relevant contracts between JLB and its subcontractors did not give rise to a duty to ensure subcontractors’ employees performed their work in a safe manner. 14 In doing so, the Court focused on the language in the contract between JLB and Capform, specifically noting that the contract contained terms which dictated that Capform was “solely responsible for the acts and omissions of its employees,” and “that JLB had ‘no authority to direct, supervise or control the means, manner or method of construction of the [w]ork’ and that Capform was ‘responsible for the manner and means of accomplishing the [w]ork.’” 15 The Court held that the contractual scheduling authority retained by JLB “is precisely what does not constitute the kind of control over the means, methods, and details of a subcontractor’s work that gives rise to a duty of care” and is instead “consistent with the typical role of a general contractor.” 16

The analysis of the facts and issues in JLB Builders indicate that “merely performing the duties of a general contractor” includes being onsite, setting general safety policies for the project, inspecting the work of subcontractors, modifying unsafe safety practices, as well as controlling scheduling. None of these factors will rise to the level of sufficient control to subject the general contractor to liability for the acts of its independent contractors in performing their work. Thus, a general contractor can conduct inspections of the work and even step in and correct an unsafe work practice or enforce a safety policy without fear of being held liable for the acts of its subcontractor.

Given the clarity of the JLB Builders opinion on the issue of control, owners and general contractors can set general safety rules for the job site, have supervisors onsite to monitor and inspect for safety violations, and enforce the safety policies by correcting any unsafe work practices without much concern about potentially being liable for the negligence of their subcontractors.

Implications for Contracts

As for contracts, the terms should clearly identify which party is to oversee the means, methods, and details of how the work is performed. Construction contracts can be tricky; general contractors and owners may be tempted to retain control over the details of their subcontractors’ work to ensure that the quality of the work meets expectations. However, if a owner or general contractor wishes to retain that right, it will potentially be liable for any injury-producing event caused by its subcontractors.

Frequently, as in the case of JLB and Capform, contracts between a general contractor and subcontractor specifically state that subcontractors are responsible for their own means and methods and the details of how their work is to be performed. As such, the general contractor does not retain the right of control over the details of either entity’s work, but retains only the right to direct the results achieved by the work. Therefore, because a contract does not assign the general contractor a right of control, that potential basis for liability is eliminated.

Footnotes

1. See JLB Builders, LLC v. Hernandez, 622 S.W.3d 860, 863 (Tex. 2021).

2. 600 S.W.3d 485, 488, 498 (Tex. App.—Dallas 2020, pet. granted).

3. Id. at 497–98. 4. JLB Builders, 622 S.W.3d at 865-66.

5. See Dow Chem. Co. v. Bright, 89 S.W.3d 602, 606 (Tex. 2002); Redinger v. Living, Inc., 689 S.W.2d 415 (Tex. 1985).

6. Elliot-Williams Co., Inc. v. Diaz, 9 S.W.3d 801, 804 (Tex. 1999).

7. Dow Chem. Co., 89 S.W.3d at 606; Redinger, 689 S.W.2d 415.

8. Dow Chem. Co., 89 S.W.3d at 606.

9. JLB Builders, 622 S.W.3d at 865 (quoting Clayton W. Williams, Jr., Inc. v. Olivo, 952 S.W.2d 523, 528 (Tex. 1997)).

10. Id. at 866. 11. Id. at 866-67. 12.Id. at 867. 13. Id. 14. Id. at 869-70. 15. Id. at 869. 16. Id. at 870.

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.