Opinion
No. 05-04-00636-CV
Opinion Filed March 11, 2005.
On Appeal from the 219th Judicial District Court, Collin County, Texas, Trial Court Cause No. 219-1069-04.
Affirm.
Before Justices MORRIS, WHITTINGTON, and O'NEILL.
MEMORANDUM OPINION
Appellant Patricia Granger appeals a judgment granted in favor of appellee Tealstone Contractors, L.P. In a single issue, Granger contends the trial court erred in granting Tealstone's motion. For the following reasons, we affirm the trial court's judgment.
Granger was involved in an accident with a truck driven by Guadelupe A. Rodriguez. The truck was owned by Romero Candelario. Candelario is a concrete pouring subcontractor who, at the time of the accident, was performing jobs exclusively for Tealstone Contractors. The driver was an employee of Candelario and was driving the truck in connection with his employment for Candelario.
Granger sued Tealstone for injuries she sustained in the accident. She alleged Tealstone was liable for her injuries because the driver was acting in the course and scope of his employment for Tealstone. She also alleged Tealstone was directly negligent for hiring the driver and/or Candelario. Tealstone filed a motion for summary judgment asserting it was not liable for Granger's injuries because Candelario was, as a matter of law, an independent contractor. Specifically, Tealstone alleged neither the driver nor Candelario were its employees. Rather, the driver was an employee of Candelario, who in turn was an independent contractor. To support its summary judgment, Tealstone relied on a "Subcontractor Agreement" which expressly stated that Candelario was an independent contractor. Tealstone also moved for summary judgment on Granger's claim that it was directly negligent asserting there was no evidence it failed to exercise reasonable care in hiring Candelario. The trial court granted Tealstone's motion for summary judgment.
In her sole issue, Granger asserts the trial court erred in granting summary judgment. The standards for reviewing summary judgment are well established. See Tex. R. Civ. P. 166a(c), 166a(i). Under a traditional motion for summary judgment, the movant must establish that no material fact issue exists and that it is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c)); S.W. Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex. 2002); M.D. Anderson Hosp. Tumor Inst. v. Willrich, 28 S.W.3d 22, 23 (Tex. 2000) (per curiam). After the movant produces evidence sufficient to show its entitled to summary judgment, the nonmovant must then present evidence raising a fact issue. See Walker v. Harris, 924 S.W.2d 375, 377 (Tex. 1996); Muckelroy v. Richardson Indep. Sch. Dist., 884 S.W.2d 825, 828 (Tex.App.-Dallas 1994, writ denied). When a defendant moves for summary judgment under rule 166a(i), asserting that no evidence exists as to one or more elements of a plaintiff's claim, the burden is on the plaintiff to present evidence to raise a genuine issue of material fact on each of the challenged elements. Tex.R. Civ. P. 166a(i); Gen. Mills Rest., Inc. v. Tex. Wings, Inc., 12 S.W.3d 827, 832 (Tex.App.-Dallas 2000, no pet.).
An independent contractor is one who, in the pursuit of an independent business, undertakes a specific job for another person, using his own means and methods, without submitting himself to the other's control regarding details of the job. Ross v. Tex. One P'ship, 796 S.W.2d 206, 210 (Tex.App.-Dallas 1990, no writ). The test used to decide whether one is an independent contractor involves a determination as to which of the parties possesses the "right of control" of the details of the work. Ross, 796 S.W.2d at 210. Factors used to determine whether one is an independent contractor include (1) the independent nature of the contractor's business, (2) his obligation to supply necessary tools, supplies, and materials, (3) his right to control the progress of the work except as to final results, (4) the time for which he is employed, and (5) the method by which he is paid, whether by time or by the job. Pitchfork Land Cattle Co. v. King, 162 Tex. 331, 338, 346 S.W.2d 598, 602-03 (1961); Ross, 796 S.W.2d at 210. A contract between the parties that establishes an independent contractor relationship is determinative of the parties' relationship in the absence of extrinsic evidence indicating that the contract was a subterfuge or that the hiring party exercised control in a manner inconsistent with the contractual provisions. Ross, 796 S.W.2d at 210. Here, Tealstone moved for summary judgment asserting it was not liable for Candelario's actions because Candelario was an independent contractor. To support the motion, Tealstone presented evidence of its written contract with Candelario that expressly states Candelario was an independent contract. Granger nevertheless asserts a fact issue exists with respect to whether Candelario was an independent contractor because the contract was a "sham" and shows Tealstone retained control over the details of Candelario's work. She relies on the contract's requirements that (1) Candelario work in a "prompt and diligent manner in accordance with the schedule of work," (2) Candelario coordinate his work with the work of other subcontractors that may be working for Tealstone, (4) Candelario employ "competent" supervisors and employees, and (5) Candelario comply with all applicable laws and regulations that relate to the performance of the subcontract. Contrary to Granger's assertion, we fail to see how any of these general provisions gives Tealstone a right to control the details of how Candelario performed his job. See, e.g., Hoechst Celanese Corp. v. Compton, 899 S.W.2d 215, 221 (Tex.App.-Houston [14th Dist] 1994, writ denied). Nor has Granger directed this Court to any evidence that Tealstone actually exerted control over the details of Candelario's work. We conclude Tealstone conclusively established Candelario was an independent contractor.
Granger next asserts that even if Candelario is an independent contractor, Tealstone is liable because it retained some control over Candelario's work. She relies on section 414 of the Restatement (Second) of Torts, which was adopted by the Texas Supreme Court in Redinger v. Living, Inc., 689 S.W.2d 415, 418 (Tex. 1985). Section 414 provides "[o]ne 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." See Redinger, 689 S.W.2d at 491 (citing Restatement (Second) of Torts § 414 (1977)). For a general contractor to be liable under this section, its retained supervisory control must relate to the condition or activity that caused the injury. Clayton W. Williams, Inc. v. Olivo, 952 S.W.2d 523, 528 (Tex. 1997). In this case, it is undisputed that Tealstone did not retain any control over the manner in which Candelario or his employees traveled to any job sites. Thus, Tealstone is not liable under a theory of retained control.
Finally, Granger asserts there is a fact issue on her claim that Tealstone was directly negligent for hiring Candelario. Tealstone moved for summary judgment asserting there is no evidence that it failed to exercise reasonable care in employing a careful and competent subcontractor. To raise a fact issue on whether Tealstone negligently hired Candelario, Granger relies on evidence that Tealstone did not perform a "background" check of Candelario's driving record, as well as the driving records of his employees, before hiring Candelario to pour concrete. Presumably such a background check was necessary because Tealstone knew Candelario would have to travel to various job sites and to do so, Candelario and/or his employees would have to drive a vehicle. However, only if a subcontractor's performance of his contract includes driving would a general contractor be required to investigate the subcontractor's competency to drive. Webb v. Justice Life Ins. Co., 563 S.W.2d 347, 349 (Tex.Civ.App.-Dallas 1978, no writ). Granger failed to present evidence that Tealstone failed to exercise reasonable care in hiring a careful and competent subcontractor. Consequently, we affirm the trial court's judgment.