Opinion
No. 01-05-00016-CV
Opinion issued June 1, 2006.
On Appeal from the 281st District Court, Harris County, Texas, Trial Court Cause No. 2002-12646.
Panel consists of Justices NUCHIA, JENNINGS, and ALCALA.
MEMORANDUM OPINION
Appellant, Vance Harrison, appeals from a summary judgment rendered in favor of appellee, Broadband Services, Inc. ("Broadband"), on Harrison's personal injury claim alleging negligent training and supervision. In five issues, Harrison contends that: (1) Broadband owed a duty to train and supervise satellite dish installers and breached that duty; (2) Broadband exercised contractual control over the satellite dish installers pursuant to an express and implied contract; (3) the doctrine of res ipsa loquitur applies to his claim; (4) this is not a premise liability case; and (5) the trial court erred in granting summary judgment on the negligent training and supervision claims. We affirm.
Background
In August 1998, Primestar, Inc. ("Primestar") and J.E.T. Satellite Services, Inc. ("J.E.T.") entered into a Full Service Provider Agreement ("FSPA") which provided that J.E.T. would perform authorized installation and service work on Primestar satellite television programming equipment. In January 1999, Hughes Electronics Corporation entered into an asset purchase agreement with Primestar to replace Primestar and its services with services from DirecTV, a Hughes Corporation subsidiary. Pursuant to the asset purchase agreement, Primestar and J.E.T. executed an amendment to their FSPA that indicated that J.E.T. would replace Primestar equipment with DirecTV equipment, known as fulfillment work. To accomplish the work, J.E.T. contracted with William Barker d/b/a Tex-Star Dish ("Tex-Star"), and Tex-Star agreed to provide satellite installers who would perform the actual fulfillment work.
On December 14, 1999, J.E.T. merged with Broadband. Under the terms of the merger, Broadband assumed all the property, rights, privileges, powers, debts, liabilities, and duties of J.E.T. Thus, Broadband "stepped" into the shoes of J.E.T. with respect to the FSPA and the Tex-Star contract.
In February or March 2000, Harrison received a notice that his Primestar satellite dish system would be replaced by a DirecTV satellite dish. On or about March 22, 2000, David Ontiveros, a Tex-Star installer, came to Harrison's residence to install the DirecTV satellite system. Approximately one month later, on April 19, Harrison left his condominium building and walked toward his car. When he reached the front of his car, directly below his three story building, the old Primestar satellite dish fell from the roof, striking Harrison on the right side of his neck and shoulder.
Harrison filed this suit against Broadband, alleging that Broadband retained actual and contractual control over the Tex-Star installers and, thus, had a duty to train and supervise the installers properly. Harrison also alleged that the circumstances gave rise to the application of the doctrine of res ipsa loquitur.
Harrison filed suit against Ontiveros and Tex-Star as well, but they are not parties to this appeal or underlying suit.
Broadband filed a summary judgment motion contending that its motion should be granted because (1) Broadband did not retain, actually or contractually, a right to control the employees or independent contractors of Tex-Star Dish; (2) Broadband did not breach a duty owed, if any, to Harrison; and (3) the doctrine of res ipsa loquitur is not applicable. The trial court granted Broadband's motion without stating the grounds therefor.
Standard of Review
A party moving for a traditional summary judgment has the burden of proving that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c); Nixon v. Mr. Prop. Mgmt., 690 S.W.2d 546, 548 (Tex. 1985); Farah v. Mafrige Kormanik, P.C., 927 S.W.2d 663, 670 (Tex.App.-Houston [1st Dist.] 1996, no writ). When deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the non-movant will be taken as true. Nixon, 690 S.W.2d. at 548-49. Every reasonable inference must be indulged in favor of the non-movant and any doubts resolved in its favor. Id. at 549.
Duty: Right to Control
In his first, second, and fifth issues, Harrison argues that because Broadband had a duty to train and supervise the installers employed by Tex-Star and Broadband breached those duties, the trial court erred in granting summary judgment on his personal injury claim based on negligent training and supervision. He asserts that Broadband exercised actual and contractual control over the training and supervision of Tex-Star employees and therefore owed him a duty.
Duty is the threshold question in a negligence case. Midkiff v. Hines, 866 S.W.2d 328, 331 (Tex.App.-Houston [1st] 1993, no writ). Whether a duty exists is a question of law. Id. at 332. Typically, a general contractor has no duty to ensure that an independent contractor performs his work in a safe manner. Elliot-Williams Co. v. Diaz, 9 S.W.3d 801, 803 (Tex. 1999). However, in some circumstances, a general contractor may have a duty regarding a dangerous condition arising from the work of an independent contractor. Redinger v. Living, Inc., 689 S.W.2d 415, 418 (Tex. 1985). The scope of this duty was defined in Redinger when the Texas Supreme Court adopted section 414 of the Restatement (Second) of Torts:
In Castillo v. Gared, Inc., this Court did not recognize a separate cause of action for negligent supervision and applied a general negligence analysis. 1 S.W.3d 781, 785-86 (Tex.App.-Houston [1st] 1999, pet. denied). We apply that same analysis here. With respect to the negligent training claim, we have found no case and Harrison cites none that recognizes negligent training as a separate cause of action. In light of Castillo, we apply a general negligence analysis to the negligent training claim.
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.
Id. (citing Restatement (Second) of Torts § 414 (1977)); see Read v. Scott Fetzer Co., 990 S.W.2d 732, 735 (Tex. 1998) (applying section 414 of the Restatement to a non-premises liability case). 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." Redinger, 689 S.W.2d at 418.
In this case, the issue is whether Broadband retained a degree of control over either the means, methods, or details of the work of Tex-Star's installers sufficient to give rise to a duty to Harrison. Elliot-Williams Co., 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 in his own way.
Id. (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).
We must determine whether Broadband retained either actual or contractual control over the training or supervision of Tex-Star's installers.
Actual Control
With respect to the alleged duty to train, Harrison points to the following deposition testimony of the Tex-Star owner as evidence of actual control:
Q: Interrogatory No. 17: "Describe all training or instruction given by Tex-Star Dish to its independent contractors whose work responsibilities involved installing and servicing satellite dish equipment on March 22, 2000."
A: Tex-Star itself did not give any body [sic] any training; however, J.E.T./Broadband did require that installers attend instruction at their facility in Houston.
Harrison contends that this testimony establishes that Broadband exercised a right of control sufficient to charge Broadband with a duty to Harrison.
We disagree. This deposition testimony is no more than a broad statement that provides no evidence of Broadband's alleged control over the "means, methods, or details" of the installers' work. It cannot be determined what the instruction entailed — whether it consisted of suggestions or requirements, or even whether it covered the actual manner in which the work should be performed. Without evidence to show that Broadband actually retained the right to control the "means, methods, or details" of the installer's work, we cannot conclude that Harrison created a fact issue on the existence of Broadband's alleged duty to train based on actual control.
Regarding Broadband's alleged actual control over the supervision of Tex-Star's installers, Harrison contends that Broadband's duty arose from its "ownership" of the old Primestar dish. Again, however, Harrison directs us to no evidence that Broadband retained any right to control the independent contractors employed by Tex-Star as to how they disposed of the old equipment. Harrison has produced no evidence to create a fact issue that Broadband exercised control over the "means, methods, or details" of the installers' work.
Contractual Control
Harrison next contends that the FSPA language relating to training creates a duty both to train and to supervise. The existence of a contractual right of control is generally a question of law for the court. Chi Energy, Inc. v. Urias, 156 S.W.3d 873, 879 (Tex.App.-El Paso 2005, pet. denied). Our primary consideration when interpreting a contract is the parties' intent as expressed in the instrument. Elliot-Williams Co., 9 S.W.3d at 803. We examine a writing as a whole in an effort to harmonize and give effect to all the provisions of the contract so that none will be rendered meaningless. Heritage Res., Inc. v. NationsBank, 939 S.W.2d 118, 121 (Tex. 1996). If a contract is unambiguous, courts will construe it as a matter of law. Coker v. Coker, 650 S.W.2d 391, 393 (Tex. 1983).
Broadband contends that the FSPA expired prior to work being done at Harrison's residence and that it is not controlling here. We need not address this issue because we conclude that the FSPA language, assuming without deciding that it is controlling, does not give rise to a duty.
The FSPA between DirecTV/Primestar and Broadband states that Broadband "agrees to provide at all times a qualified and fully-trained administrative, sales, installation, and service staff." Harrison contends this language establishes a sufficient right of control by Broadband over the training of Tex-Star's installers. Harrison also argues that this language establishes a right of control over the supervision of Tex-Star's installers because "it is reasonable to construe [this language] that a fully trained administrative staff cannot administrate without supervising." However, the contract also provides that "[t]his writing represents the entire agreement and understanding of the Parties with respect to the subject matter hereof" and that "[t]his agreement is binding upon the parties hereto, and their respective executors, administrators, heirs, assigns, and successors in interest." This language, taken as a whole, shows that DirecTV and Broadband intended only to establish rights between themselves and not to establish Broadband's right of control over Tex-Star's installers, who were not named in the contract. Broadband merely agreed to provide the installers, which it did by hiring Tex-Star. Thus, this contract did not establish a contractual right of control regarding the training or supervising of Tex-Star's installers.
We hold that Harrison has not presented any evidence sufficient to raise a fact question as to whether Broadband retained a right of control over the means, methods, or details of the work of Tex-Star's installers. Accordingly, we further hold that Broadband did not owe Harrison a duty to ensure that Ontiveros performed his work in a safe manner.
We overrule Harrison's first, second and fifth issues.
Conclusion
Having overruled Harrison's first, second and fifth issues, we need not address his third and fourth issues. We affirm the judgment of the trial court.