Michael Denton v. The State of Texas--Appeal from 181st District Court of Randall County

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Laws-info.com » Cases » Texas » 7th District Court of Appeals » 2010 » Michael Denton v. The State of Texas--Appeal from 181st District Court of Randall County

State: Texas

Court: Texas Northern District Court

Docket No: 07-10-00190-CR

Case Date: 10/28/2010

Plaintiff: Michael Denton

Defendant: The State of Texas--Appeal from 181st District Court of Randall County

Preview:Jose Luis Acosta and Maria Joaquina Acosta v. Starr Produce Company--Appeal from 229th Judicial District Court of Starr County
No. 04-00-00623-CV Jose Luis ACOSTA and Maria Joaquina Acosta, Appellants v. STARR PRODUCE COMPANY, Appellee From the 229th Judicial District Court, Starr County, Texas Trial Court No. DC-99-190 Honorable Alex W. Gabert, Judge Presiding Opinion by: Paul W. Green, Justice Sitting: Phil Hardberger, Chief Justice Paul W. Green, Justice Karen Angelini, Justice Delivered and Filed: August 29, 2001 AFFIRMED This appeal arises from a summary judgment finding Starr Produce owed no duty of care to Jose Acosta. We affirm. Background Starr Produce Company (Starr) is in the business of growing, harvesting, and selling fruits and vegetables from South Texas farms. Although Starr generally uses its own trucks to haul produce from the fields, occasionally Starr will hire independent contractors to help transport produce. Starr employees often enter into these independent contracts. Starr has a company policy of inspecting trucks used by independent contractors. Managers inspect the truck for state inspection sticker, weight, liability insurance, and for anything that can damage produce in the bed of the truck. In addition, managers ask owners to fix anything obviously wrong with the truck before it can pass inspection. Starr then issues its own sticker for any truck used by independent contractors. Enrique Gonzalez is an assistant foreman for Starr Produce and has worked there for more than 20 years. In May 1999 Gonzalez was hired, independent of his employment, to haul produce on a per pound, independent contractor basis. Gonzalez provided his own truck and driver and paid all of the expenses associated with the truck. Gonzalez hired Jose Acosta to operate his truck and paid Acosta $20 for every load of produce he hauled. From the
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beginning, Acosta advised Gonzalez there were problems with the starter on the truck. The starter was replaced but the problems continued. Starr employees often helped Acosta get the truck started. They did this for any truck under contract which was causing problems, and it was the policy of Starr Produce to provide such help. On the day of the accident, Acosta was waiting in line for his truck to be loaded. When the truck would not start, Acosta set the parking break and climbed underneath the chassis as he had seen the mechanics do. While Acosta worked beneath the truck, the truck moved and ran over him. Jose and Joaquina Acosta filed suit against Enrique Gonzalez and Starr Produce alleging alternative grounds of liability. The trial court granted summary judgment for Starr Produce on the ground that Starr did not owe a duty to Acosta. Standard of Review We review a summary judgment de novo. To prevail on a traditional summary judgment, Starr must show there is no genuine issue of material fact and Starr is entitled to judgment as a matter of law. Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548 (Tex. 1985). We take all evidence favorable to Acosta as true and resolve all reasonable inferences in Acosta's favor. Id. at 548-49. Discussion Acosta alleges Starr owed him a duty of care for two reasons: (1) because of affirmative acts, and (2) because Starr exercised a right of control over the activity or condition causing Acosta's injuries. Affirmative Acts Acosta claims Starr engaged in affirmative acts giving rise to a duty. Acosta says Starr negligently created a dangerous situation by inspecting and repairing the vehicle, giving rise to a legal duty to see the inspection and repair were done correctly in order to prevent injury to others. See Torrington Co. v. Stutzman, 46 S.W.3d 829, 837 (Tex. 2000); Buchanan v. Rose, 138 Tex. 390, 391-92, 159 S.W.2d 109, 110 (1942). In deposition testimony, Robert Peterson, president of Starr Produce, stated Starr had a policy of inspecting all independently owned vehicles for safety reasons. Mr. Peterson also testified Starr had a policy of providing tools and mechanics to repair vehicles causing problems. Acosta provided evidence the truck was frequently repaired by employees of Starr in accordance with their policy and sometimes repaired contrary to Starr's policies. However, Starr's inspection and repair policy was for the purpose of ensuring the safe operation of vehicles; it did not create or contribute to conditions that would foreseeably lead to injury to drivers attempting to make repairs. We hold Starr's inspection and repair policies did not create a duty of care to Acosta. Right of Control Acosta also alleges Starr Produce owed him a duty of care because it exercised a right of control over the condition or activity causing his injury. Typically a general contractor has no duty to ensure an independent contractor performs his work in a safe manner. Elliot-Williams Co., Inc. v. Diaz, 9 S.W.3d 801, 803 (Tex. 1999). However, in some circumstances, the general contractor may have a duty to warn employees of an independent contractor of dangerous conditions arising from an independent contractor's work. Redinger v. Living, Inc., 689 S.W.2d 415, 418 (Tex. 1985). The scope of this duty was defined in Redinger when the Supreme Court of Texas adopted section 414 of the Restatement (Second) of Torts: One who entrusts work to an independent contractor, but who retains the control of any part of the work, is subject to liability for physical harm to others for whose safety the employer owes a duty to exercise reasonable care, which is caused by his failure to exercise his control with reasonable care. Redinger, 689 S.W.2d at 418 (citing Restatement (Second) of Torts 414 (1977)). Thus "when a 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." Id.

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In this case, the issue is whether Starr retained a degree of control over either the means, methods, or details of Acosta's work sufficient to give rise to a duty of care. Elliot-Williams Co., Inc., 9 S.W.3d at 804. The degree of control needed to create a duty is set forth in the comments to section 414: The employer must have retained at least some degree of control over the manner in which the work is done. It is not enough that he has merely a general right to order the work stopped or resumed, to inspect its progress or receive reports, to make suggestions or recommendations which need not necessarily be followed, or to prescribe alterations and deviations. Such a general right is usually 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 be such a retention of a right of supervision that the contractor is not entirely free to do the work his own way. Elliot-Williams Co., 9 S.W.3d at 804 (citing Restatement (Second) of Torts 414 cmt. c (1965)). Additionally, the control of the general contractor "must relate to the condition or activity that caused the injury." Clayton W. Williams, Jr., Inc. v. Olivo, 952 S.W.2d 523, 528 (Tex. 1997). Acosta argues Starr exercised a right of control over him by requiring inspection of the truck, repairing the truck, and telling him where to go and what to do. However, as long as the details of the work are not controlled, simply telling Acosta where to deliver and pick up the produce does not give rise to a duty of care. Hoechst-Celanese Corp. v. Mendez, 967 S.W.2d 354, 356-57 (Tex. 1998) (citing Restatement (Second) of Torts 414 cmt. c (1965)). Moreover, requiring a contractor to comply with standard safety practices generally does not create a duty of care. HoechstCelanese Corp., 967 S.W.2d at 356-57. In requiring inspection of the truck, Starr did not control either the means, methods, or details of Acosta's work in a way that gave rise to a duty of care. Elliot-Williams Co., Inc., 9 S.W.3d at 804.We hold Starr Produce did not exercise a right of control that would raise a duty of care to Acosta. Conclusion The evidence establishes Starr Produce did not owe Acosta a duty of care as a matter of law. (1) The summary judgment is affirmed. Paul W. Green, Justice DO NOT PUBLISH 1. Because we affirm the summary judgment based on the evidence presented, we do not reach the parties' dispute regarding the admissibility of certain evidence in the trial court.

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