Opinion
No. 10-05-00063-CV
Opinion delivered and filed April 12, 2006.
Appeal from the 236th District Court, Tarrant County, Texas, Trial Court No. 236-203080-03.
Reversed and remanded.
Before Cheif Justice GRAY, Justice VANCE, and, Justice REYNA (Chief Justice GRAY dissents in this judgment without a separate opinion)
MEMORANDUM OPINION
Appellant Joyce Shelby brings this appeal contesting the trial court's granting of summary judgment in favor of Appellee Creative Solutions in Healthcare d/b/a Granbury Care Center (Granbury).
We will reverse the judgment of the trial court.
BACKGROUND
In November of 2002, Granbury entered into a contract with Vitas Healthcare of Texas, L.P. (Vitas) in which Vitas agreed to provide nursing services for Granbury's hospice patients. Shelby was employed as a nurse by Vitas and assigned to provide nursing services at Granbury. On February 7, 2003, Shelby was injured while attempting to transfer a patient, who weighed over 300 pounds, from his bed to a wheelchair. She had requested that a Granbury employee assist her in transferring the patient, but the employee refused.
Shelby filed suit, claiming Granbury was negligent in failing to assist her in transferring the patient and in failing to provide adequate employees to take care of Granbury patients. Granbury moved for summary judgment, asserting that it did not owe a duty to Shelby. The trial court granted the motion, and Shelby appeals from that judgment.
STANDARD OF REVIEW
We review the decision to grant or deny a summary-judgment motion de novo. See Provident Life Accident Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003). The standards for reviewing a traditional motion for summary judgment are well established. Nixon v. Mr. Property Mgmt. Co., 690 S.W.2d 546, 548 (Tex. 1985). The movant has the burden of showing that no genuine issue of material fact exists and that it is entitled to summary judgment as a matter of law. American Tobacco Co. v. Grinnell, 951 S.W.2d 420, 425 (Tex. 1997); Ash v. Hack Branch Distrib. Co., 54 S.W.3d 401, 413 (Tex.App.-Waco 2001, pet. denied). The reviewing court must accept all evidence favorable to the non-movant as true. Nixon, 690 S.W.2d at 549; Ash, 54 S.W.3d at 413. Every reasonable inference must be indulged in favor of the non-movant and all doubts resolved in her favor. American Tobacco, 951 S.W.2d at 425; Ash, 54 S.W.3d at 413. A defendant who conclusively negates at least one of the essential elements of a cause of action is entitled to a summary judgment as to that cause of action. Randall's Food Mkts., Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex. 1995) (citing Wornick Co. v. Casas, 856 S.W.2d 732, 733 (Tex. 1993), and Gibbs v. General Motors Corp., 450 S.W.2d 827, 828 (Tex. 1970)).
DUTY
The issue on appeal is whether Granbury owed Shelby a legal duty.
The threshold inquiry in a negligence case is whether the defendant owes a legal duty to the plaintiff. Centeq Realty, Inc., v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995). The existence of duty is a question of law for the court to decide from the facts surrounding the occurrence in question. Id.; see also Bird v. W.C.W., 868 S.W.2d 767, 769 (Tex. 1994); Greater Houston Transp. Co. v. Phillips, 801 S.W.2d 523, 525 (Tex. 1990). However, in some instances, the resolution of disputed facts is required before the duty determination can be made. See Fort Bend County Drainage Dist. v. Sbrusch, 818 S.W.2d 392, 395 (Tex. 1991).
Shelby contends there is a genuine issue of material fact surrounding the occurrence. Specifically, she says that Granbury owed her a duty by (1) assuming the duty by contract, (2) contractually retaining or actually controlling her work, or (3) assuming the duty by a voluntary affirmative act.
ASSUMED DUTY BY CONTRACT
First, Shelby argues that Granbury had a duty implied by law to perform with skill and care that which it agreed to do by contract. She cites the "well established" rule that "[a]ccompanying every contract is a common-law duty to perform with care, skill, reasonable expedience and faithfulness the thing agreed to be done, and a negligent failure to observe any of these conditions is a tort, as well as a breach of contract." Montgomery Ward Co. v. Scharrenbeck, 146 Tex. 153, 204 S.W.2d 508, 510 (1947); Aranda v. Ins. Co. of North America, 748 S.W.2d 210, 212 (Tex. 1988). To help in determining whether the plaintiff may recover on tort as well as contract, the Supreme Court set forth the following factors: (1) obligations imposed by law are tort obligations; (2) misfeasance or negligent affirmative conduct in the performance of a promise generally subjects an actor to tort liability as well as contract liability for physical harm to persons and tangible things; (3) recovery of intangible economic losses is normally determined by contract law; and (4) there is no tort liability for nonfeasance, i.e., for failing to do what one has promised to do in the absence of a duty to act apart from the promise made. Southwestern Bell Telephone Co. v. DeLanney, 809 S.W.2d 493 (Tex. 1991) (citing W. KEETON, D. DOBBS, R. KEETON D. OWEN, PROSSER AND KEETON ON THE LAW OF TORTS § 92 at 655 (5th Ed. 1984)).
Shelby complains that Granbury's employees failed to assist her in transferring a patient as required under the contract. By failing to act, Granbury may have breached its contract with Vitas, but we find no breach of any implied duty in law independent of the contract.
DUTY AS A PREMISES OWNER
As a general rule, a premises owner does not have a duty to ensure that an independent contractor performs her work in a safe manner. See Elliott-Williams Co., Inc. v. Diaz, 9 S.W.3d 801, 803 (Tex. 1999); Redinger v. Living, Inc., 689 S.W.2d 415, 418 (Tex. 1985); Abalos v. Oil Dev. Co., 544 S.W.2d 627, 631 (Tex. 1976). However, a duty may arise when the premises owner retains some control over the independent contractor's work. Redinger, 689 S.W.2d at 418; RESTATEMENT (SECOND) OF TORTS § 414 (1965). "Right to control may be shown by explicit contractual assignment or actual exercise of control." Shell Oil Co. v. Khan, 138 S.W.3d 288, 292 (Tex. 2004). "Generally, the former is a question of law for the court and the latter a question of fact for the jury." Id. Contractual Right to Control
This case involves a premises owner's duty to an employee of an independent contractor. A premises owner owes the same duty as a general contractor to an employee of an independent contractor. See Koch Ref. Co v. Chapa, 11 S.W.3d 153, 155 n. 1 (Tex. 1999). Cases involving the duty of premises owners and general contractors are used interchangeably. Id.
"A contract may impose control upon a party thereby creating a duty of care." Elliott-Williams, 9 S.W.3d at 804. The fact that actual control was not exercised will not preclude liability on the part of the premises owner if a contract provides for his control over the independent contractor's work. See id. To establish that a premises owner retained control over an independent contractor's work pursuant to a contract, the contract must dictate the means, methods, or details of the independent contractor's work. See id. Further, the comments to Section 414 of the Restatement (Second) of Torts state that for one to impose its control such that it owes a duty of care to others: "[i]t is not enough that he has merely a general right to order the work stopped or resumed, to inspect its progress or to receive reports, to make suggestions or recommendations which need not necessarily be followed, or to prescribe alterations and deviations." RESTATEMENT (SECOND) OF TORTS § 414 (1965). Rather, the premises owner must retain such control over the work that the independent contractor is not "entirely free to do the work in his own way." Id.
The contract between Granbury and Vitas stated that Granbury would provide Facility Room and Board Services to its hospice patients. "Facility Room and Board Services" are defined as personal care services for hospice patients including, but not limited to, assisting in activities of daily living such as mobility, ambulation, and transferring. The contract further provided that the parties would "cooperate with each other in reviewing the quality and appropriateness of . . . Facility Room and Board Services." Shelby contends this provision raises an inference of control over the activity of transferring patients. Although Granbury was responsible for assisting Vitas' transfer of patients, the contract does not prescribe the means, methods, or details of how patients should be transferred. We therefore hold that the contract between Granbury and Vitas does not create a duty on the part of Granbury as a premises owner.
Actual Exercise of Control
A premises owner who actually exercises control over the independent contractor's work may be subject to direct liability for negligence. Koch Ref. Co. v. Chapa, 11 S.W.3d 153, 155 (Tex. 1999). Liability will be imposed when the premises owner undertakes control over the specific activity that caused the injury. See Lee Lewis Constr., Inc. v. Harrison, 70 S.W.3d 778, 783 (Tex. 2001). General safety guidelines imposed by the premises owner or the fact that he has inspected the work in the past does not create a duty. See Dow Chemical Co. v. Bright, 89 S.W.3d 602, 611 (Tex. 2002); RESTATEMENT (SECOND) OF TORTS § 414, Comment c. Again, the plaintiff must show that the premises owner retained control over the manner in which the independent contractor's work is performed. See Lee Lewis, 70 S.W.3d at 783; Elliott-Williams, 9 S.W.3d at 803.
In Lee Lewis, the court held that the general contractor exercised the right to control the independent contractor's work in that it routinely inspected the independent contractor's employees to see that they properly utilized safety equipment and it approved the means of performing the job. However, in this case, the only evidence offered by Shelby to show that Granbury exercised control is testimony that Granbury employees had assisted her in transferring patients in the past. However, Shelby did not show that Granbury ever implemented safety policies for its employees or Vitas's employees to follow. The summary judgment evidence does not raise a fact issue that Granbury, as a premises owner, exercised control over the transfer of patients because it does not show that Granbury sought to control the means, methods, or details of this activity.
ASSUMED DUTY BY VOLUNTARY AFFIRMATIVE ACT
"One who voluntarily undertakes an affirmative course of action for the benefit of another has a duty to exercise reasonable care that the other's person or property will not be injured thereby." Sbrusch, 818 S.W.2d at 395 (citing Colonial Sav. Ass'n. v. Taylor, 544 S.W.2d 116, 119 (Tex. 1976)). Section 323 of the Restatement (Second) of Torts states:
One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of the other's person or things, is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking, if
(a) his failure to exercise such care increases the risk of such harm, or
(b) the harm is suffered because of the other's reliance upon the undertaking.
RESTATEMENT (SECOND) OF TORTS § 323 (1965). As to third parties, Section 324A of the Restatement states the rule:
One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if
(a) his failure to exercise reasonable care increases the risk of such harm, or
(b) he has undertaken to perform a duty owed by the other to the third person, or
(c) the harm is suffered because of reliance of the other or the third person upon the undertaking.
RESTATEMENT (SECOND) OF TORTS § 324A (1965).
There is uncontroverted evidence that, prior to the incident in which Shelby was injured, Granbury employees always assisted Shelby in transferring patients from their beds to their wheelchairs. There is also evidence that it was commonly understood by Granbury employees that they must assist Vitas employees in transferring patients out of bed. Even if Granbury ordinarily would not have had a duty to assist Vitas employees in transferring patients, it arguably assumed such a duty by consistently assisting Vitas employees in the past.
Unlike the Fort Bend case, where the court rejected the injured party's claim that "a mere promise made to another to perform a future act without in any way entering upon performance of that promise creates a duty," this case involves a contractual promise and performance of that promise in the past. See Sbrusch, 818 S.W.2d at 396. Furthermore, this record contains some evidence that Shelby relied on the contractual promise to her detriment. See id. at 396-97. We hold that a fact issue exists as to whether Granbury undertook to assist Vitas employees in such a manner as to create a duty to Shelby. Thus, summary judgment was improper.
CONCLUSION
We sustain Shelby's issue, reverse the summary judgment, and remand the cause to the trial court for further proceedings.
ORDER GRANTING REHEARING
Appellant's motion for rehearing is granted. Our opinions, the Court's opinion and Chief Justice Gray's dissenting opinion, and judgment dated December 21, 2005, are withdrawn, and the opinion and judgment dated April 12, 2006, are substituted therefor.