 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Marathon Corp. v. Pitzner8/2/2001
gerous in their own right and independent of action by another - that are in existence when the independent contractor enters the premises fall into this first subcategory of premises defects. Lawrence, 988 S.W.2d at 225 (holding the pinch point area of a crane in which a worker's head was crushed posed no danger until put into operation, and thus, could not be considered under the first subcategory of premises defect liability); Smith, 226 S.W.2d at 433 (holding that an open shaft with inadequate warnings when contractors entered the property was a defect under the first subcategory). The occupier is considered to have constructive knowledge of any premises defects that would be discovered in the exercise of reasonable care. Corbin, 648 S.W.2d at 295 (Tex. 1983). Furthermore, if an owner or occupier has breached a statute or ordinance that was designed to prevent injury to the class of persons to which the injured party belongs, the owner or occupier is considered negligent per se. Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 549 (Tex. 1985). An invitee is not required to prove that he did not know of the dangerous condition. State Dep't of Highways & Pub. Transp. v. Payne, 838 S.W.2d 235, 237 (Tex. 1992).
Under the second subcategory - when the dangerous condition arises as a result of the independent contractor's work activity - the premises owner normally owes no duty to the independent contractor's employees because an owner generally has no duty to ensure that an independent contractor performs its work in a safe manner. Lawrence, 988 S.W.2d at 225; Mendez, 967 S.W.2d at 356; Olivo, 952 S.W.2d at 527-28; Abalos v. Oil Dev. Co., 544 S.W.2d 627, 631-32 (Tex. 1976). An independent contractor is considered to be in a better position to inspect, eliminate or warn persons of the danger arising from its work than the owner or occupier of the premises. Lamb, 493 S.W.2d at 746-48. However, a premises owner may be liable when the owner retains the right of supervisory control over work on the premises. Lawrence, 988 S.W.2d at 225-26; Olivo, 952 S.W.2d at 529; Lamb, 493 S.W.2d at 747-48; Redinger v. Living, Inc., 689 S.W.2d 415, 418 (Tex. 1985) (adopting section 414 of the Restatement (Second) of Torts, which provides:
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.
Restatement (Second) of Torts ยง 414 (1977). In determining whether the owner has retained control, the right to control must be more than a general right to order work to stop and start, or to inspect progress. Lawrence, 988 S.W.2d at 226; Redinger, 689 S.W.2d at 418. The supervisory control must relate to the activity that actually caused the injury , and grant the owner at least the power to direct the order in which work is to be done or the power to forbid it being done in an unsafe manner. Lawrence, 988 S.W.2d at 226; Olivo, 952 S.W.2d at 528; Redinger, 689 S.W.2d at 418. The control must relate to, or have a nexus to, the condition or activity that caused the injury. Mendez, 967 S.W.2d at 357. In other words, the premises owner's duty of care is commensurate with the control it retains over the independent contractor's work. Id.
A plaintiff can prove right to control in two ways: (1) by evidence of a contractual agreement which explicitly assigns the premises owner a right to control; and (2) when there is no contractual agreement, by evidence that the premises owner actually exercised control over the job. Lawrence, 988 S.W.2d at 226; Olivo, 95
Page 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 Texas Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|