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Marathon Corp. v. Pitzner8/2/2001
2 S.W.2d at 528; Redinger, 689 S.W.2d at 418. The right to control must be more than a general right to order work to stop and start, or to inspect progress and receive reports, or to make suggestions or recommendations that need not necessarily be followed, or to prescribe alterations and deviations. Mendez, 967 S.W.2d at 356. Such a general right does not mean the contractor is controlled as to the methods of work, or as to operative detail. Id.
b. Duty and the Right to Control the Work
In its first issue, Marathon contends it owed no duty to Pitzner under the facts of this case because, under the second subcategory of premises defects, the dangerous condition arose as a condition of Pitzner's work activity; therefore, Marathon owed no duty to ensure that an independent contractor or its employees perform their work in a safe manner. See Lawrence, 988 S.W.2d at 225; Mendez, 967 S.W.2d at 356; Olivo, 952 S.W.2d at 527-28; Abalos, 544 S.W.2d at 631-32. In its second issue, Marathon contends that it had no right to control Pitzner's work.
It is well-settled that a premises owner or occupier may be liable when he retains the right of control over work on the premises. See Lawrence, 988 S.W.2d at 225-26; Olivo, 952 S.W.2d at 529; Lamb, 493 S.W.2d at 747-48; Redinger, 689 S.W.2d at 418. In the instant case, Marathon asserted absolute control over a critical aspect of Pitzner's work - the ability to safely turn the air conditioning condenser on and off - when Marathon's employees closed up the building and left, knowing that Pitzner was still up on the roof working on the air conditioner. The control retained by Marathon relates to the activity that actually caused the injury - Pitzner's attempt to operate the condenser by inserting a screwdriver into the unit in an attempt to complete the electrical circuit - and constituted the exercise of the power to forbid the activity being done in an unsafe manner. We note that Marathon's employees had the option of staying late, as they had done on prior occasions, to ensure Pitzner's access to the thermostat inside the building. See Lawrence, 988 S.W.2d at 226; Olivo, 952 S.W.2d at 528; Redinger, 689 S.W.2d at 418. Marathon's duty of care is commensurate with the control it retained over the independent contractor's work. Because the control asserted by Marathon relates to, or has a nexus to the activity that caused the injury, Marathon breached its duty of care toward Pitzner. We hold the evidence is legally sufficient to support the jury's findings that Marathon owed a duty to Pitzner and that Marathon breached that duty.
In its second issue, Marathon also contends that the trial court erred in entering judgment against Marathon "because of . . . Pitzner's failure to request and obtain a jury answer regarding who had the `right of control'." In its brief, Marathon says only that:
inasmuch as Pitzner failed to obtain any finding in the trial court regarding the "right of control," whether as owner of the premises or with respect to the services Pitzner provided. . ., Pitzner waived any right to recover any damages in this lawsuit. See, e.g., Olivo, 952 S.W.2d at 529; Keetch, 845 S.W.2d at 266; Wal-Mart Stores, Inc. v. Bazan, 966 S.W.2d 745, 747 (Tex. App.-San Antonio 1998, no writ); Wyndham Hotel Co., v. Self, 893 S.W.2d 630, 635 (Tex. App.-Corpus Christi 1994, writ denied).
It is well-settled that to preserve error in the charge, a party must make a request, no matter who has the burden of proof on the issue, when the party maintains the trial court has incorrectly omitted an instruction or definition.
A party objecting to a charge must point out distinctly the objectionable matter and th
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