Texas Supreme Court Clarifies Scope of General Contractors Duty of Care to Employees of Subcontractors | Porter Hedges LLP

In a recent case, the Texas Supreme Court examined the scope of the general contractor’s duty of care to the employees of its subcontractors at the project site. In JLB Builders, LLC v. Hernandez,[1] the Court upheld the summary judgment of the court of first instance in favor of the general contractor and dismissed the negligence complaints of an injured subcontractor employee on the grounds that the general contractor did not retain effective control or contract on the work of the injured subcontractor employee.


JLB Builders was the general contractor for a high rise construction project and subcontracted the concrete work to a subcontractor who employed Jose Hernandez. After Hernandez was injured in a construction accident involving the collapse of a rebar tower, he sued the general contractor and others for negligence and gross negligence claims.

The general contractor sought a traditional summary judgment without evidence, arguing among other things that he had no obligation to Hernandez as an employee of an independent contractor because the general contractor had no real control or contractual on the means, methods and details of the work of the subcontractor. Hernandez responded to the general contractor’s motion by offering “proof that [the general contractor’s] supervisors were on site at all times (although none were in the area where Hernandez was injured when the accident occurred), performed daily safety inspections, inspected [the subcontractor’s] work and had the power and responsibility to require contractors to change their practices [the general contractor] considered dangerous.[2] The trial court granted summary judgment for the general contractor, but the Dallas Court of Appeals reversed, finding factual issues “as to whether (1) [the general contractor] exercised effective control and therefore had an obligation to Hernandez, (2) [the general contractor] breached this obligation, and (3) [the general contractor’s] the breach caused Hernandez’s injuries.[3]

The Texas Supreme Court ruling

Reversing the Dallas Court of Appeals, the Texas Court of Appeals upheld the summary judgment of the trial court dismissing Hernandez’s allegations of negligence against the general contractor. The Court reiterated that under Texas law, although usually “one who employs an independent contractor has no obligation to ensure that the contractor performs his work safely,” there is an exception. when “the employer retains some control over how the contractor performs his work. the work that causes the damage.[4] The court said that an employee of a subcontractor like Hernandez “can prove the control required by establishing that the general contractor is [1] effectively controlled how the subcontractor performed its work or [2] had a contractual right to do so.[5]

On whether the general contractor actually controlled the work of the subcontractor’s employees, the Court held that there was no evidence to indicate that the general contractor had real control over the details of the work causing the injuries. In ruling thus, the Court considered that the following elements did not constitute an effective control of the general contractor over the work which caused the injuries:

  • The control of the general contractor over the overall schedule and the sequence of work carried out by its various independent subcontractors;
  • The presence of safety officers and general contractor’s supervisors on the site;
  • The general contractor’s requirements that project workers use safety harnesses;
  • Having the opportunity to observe the safety hazard that led to the employee’s injury without evidence that the general contractor employees were actually aware of the safety hazard.

Although this is not necessary to decide the case, the Court also found that the general contractor did not have the contractual right to control the work causing injury to the subcontractor. In reaching this conclusion, the Court noted the following terms of the subcontract with Hernandez’s employer and concluded that these provisions did not give rise to contractual control over work causing injury:

  • The subcontractor was “responsible for the manner and means of accomplishing the works” and the general contractor had “no authority to direct, supervise or control the means, manner or method of construction of the works; “[6]
  • The subcontractor was “responsible for establishing, maintaining and supervising all safety precautions in its work” and “accepts full responsibility for providing a safe workplace for its employees; “[7]
  • The subcontractor was required to respect the work schedules or the directives of the general contractor as well as to coordinate the execution of his work with the general contractor; and
  • Subcontractor’s employees were required to adhere to the safety procedures identified in the subcontract, including a detailed “fall protection plan”.[8]

While Hernandez argued that requiring contractors to adhere to specific safety procedures constitutes contractual control over the job, the court disagreed because Texas law provides that “requiring compliance with safety procedures does not create an obligation towards the employees of an independent contractor as long as these procedures do not unreasonably increase, rather than decrease, the likelihood and the severity of injury.[9]

Key points to remember

The opinion of the Court reaffirms that the typical provisions of subcontracts and the normal aspects of the contractor / subcontractor relationship do not give rise to a duty of care towards the employees of the subcontractors. In this regard, from the point of view of the general contractor, it is important to include in the subcontracts language indicating that the general contractor does not have the authority or supervision over the manner and means of the work of the subcontractor, as well as the subcontractor takes full responsibility for its employees and their safety.

However, the case also recalls that if the general contractor or his employees exercise too much control over the way and means of work of the subcontractors, the general contractor may find himself at the mercy of employee negligence claims. by employees of subcontractors.

One way for general contractors to mitigate these risks is to use well-drafted indemnification provisions in their subcontracts. While the Texas Construction Anti-Indemnity Act[10] generally overrides indemnification provisions in construction contracts requiring the indemnifier to indemnify another party for the negligence or fault of that other party, the Act contains an exception to this rule for employee injury claims filed by the employees of the claimant or the employees of the subcontractors of the claimant at any level.[11] As a result, owners, general contractors and subcontractors can enter into indemnification provisions indemnifying them against their own negligence or fault for injury claims suffered by employees of their contractor or subcontractor. While such provisions on employee compensation for injury do not eliminate the risk of a general contractor being the subject of a negligence claim such as the one at issue in JLB constructorsHaving a well-drafted indemnity provision in place up front is a good way to mitigate the risk and cost of these types of claims by employees of contractors.

1 JLB Builders, LLC v. Hernandez, n ° 20-0368, — SW3d —, 64 Tex. Sup. Ct. J. 964 Tex. May 7, 2021).

2 Identifier. to 3.

3 Identifier. to 1.

4 Identifier. at * 2 (internal citations omitted).

5 Identifier.

6 Identifier. at 5.

7 Identifier.

8 Identifier.

9 Identifier. (internal citations and citations omitted).

ten Texas Insurance Code §§ 151.001-.151.

11 Identifier. § 151.103.

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About Elisa C. Peachey

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