Liability for Premises Defects & Independent Contractors

CATEGORIES OF PREMISES-DEFECT CLAIMS UNDER TEXAS LAW There are two types of premises defects for which an independent contractor’s employee may seek to hold a premises owner or general contractor liable. Clayton W. Williams, Jr., Inc. v. Olivo, 952 S.W.2d 523, 527 (Tex. 1997). Existing dangerous conditions on premises not created by the contractor The first category includes those defects that exist on a premises when a business invitee enters for business purposes or are created through some means unrelated to the activity of the injured employee or his employer. Id.; Shell Chem. Co. v. Lamb, 493 S.W.2d 742, 746 (Tex. 1973). When dangerous conditions do not arise through the independent contractor’s work activity, the owner or general contractor has a duty to inspect the premises and warn about the dangerous conditions of which the owner or general contractor knows or should know. Moritz, 257 S.W.3d at 214–15; Olivo, 952 S.W.2d at 527. An independent contractor is “under no duty to inspect the premises forconcealed dangers” because independent contractors may “anticipate” that the owner or general contractor “will discharge [its] duty to inspect the premises and warn of any dangerous condition which is not open and obvious.” Lamb, 493 S.W.2d at 746 (emphasis added); see also Moritz, 257 S.W.3d at 215 (stating that “[g]enerally, a landowner is liable to employees of an independent contractor only for claims arising from a pre-existing defect rather than from the contractor’s work, and then only if the pre-existing defect was concealed”). The rationale for this duty is that the owner or general contractor is in a “superior position to know of or discover hidden dangerous conditions on his premises.”[5] Lamb, 493 S.W.2d at 746 (emphasis added). [5] When a hidden, dangerous condition exists on a premises at the time an independent contractor enters, or when it “exists through some means other than the [independent contractor’s] work activity on the premises,” the owner’s or general contractor’s duty to an independent contractor and its employees “may be discharged by an adequate warning to the [independent contractor] or one supervising his work.” Shell Chem. Co. v. Lamb, 493 S.W.2d 742, 747 (Tex. 1973). Independent contractors' work actitivity as cause of injury The second category of premises defects includes those defects an independent contractor, or its injured employee, create by its work activity. Dow Chem. Co. v. Bright, 89 S.W.3d 602, 606 (Tex. 2002); Olivo, 952 S.W.2d at 527. When the independent contractor creates a dangerous condition, the owner or general contractor ordinarily has no duty to warn the independent contractor’s employees of the premises defect. Olivo, 952 S.W.2d at 527. The rationale for this rule is that an owner or general contractor normally has no duty to ensure that an independent contractor performs its work in a safe manner. Id. In explaining why, under the first category, the duty owed by a premises owner or general contractor to an independent contractor is limited to concealed hazards, the Texas Supreme Court has recently explained that because an independent contractor “owes its own employees a nondelegable duty to provide them a safe place to work, safe equipment to work with, and warn them of potential hazards,” a premises owner that “hires an independent contractor generally expects the contractor to take into account any open and obvious premises defects in deciding how the work should be done, what equipment to use in doing it, and whether its workers need any warnings.” Moritz, 257 S.W.3d at 216–17. The court reasoned that “[p]lacing the duty on an independent contractor to warn its own employees or make safe open and obvious defects ensures that the party with the duty is the one with the ability to carry it out.” Id. (emphasis added). In Moritz, an independent contractor, on a daily basis, loaded trailers with supplies from a General Electric warehouse. Id. at 213–14. Moritz, the independent contractor, sustained personal injuries in the course of securing the supplies after a rubber bungee cord that he was using broke and he fell off the side of a loading ramp. Id. Based upon the absence of handrails on the loading ramp, Moritz brought a premises-defect claim against GE. Id. at 215. The court, noting that the absence of handrails was “obviously a pre-existing condition and obviously not a concealed hazard,” concluded that GE had “no duty to warn Moritz that a ramp [that] he had been using for more than a year had no handrails.” Id. at 216. Although the court acknowledged that GE, as the premises owner, “had a duty to exercise care with respect to matters over which it exercised control,” it reasoned that Moritz’s premises-defect claim failed because GE “did not control where or how Moritz chose to secure his load.” Id. at 217. The court noted that “independent contractors are hired for special projects that often entail special expertise, and can be expected to use whatever equipment or precautions are necessary so long as a hazard is not concealed.” Id. (emphasis added). SOURCE: Houston Court of Appeals - 01-09-01089-CV - 6/23/11