Texas = Judiciary Online

Reversed=20 and Rendered and = Opinion=20 filed January 9, 2007.

In The

Fourteenth=20 Court of Appeals

____________

NO. 14-05-00909-CV

____________

ELLWOOD=20 TEXAS FORGE CORPORATION, = Appellant

BOBBY JONES=20 AND KELLY JONES, = Appellees

On Appeal from the = 151st District Court

Harris County, Texas

Trial Court Cause = No. 02-48971

O P I N I=20 O N

Ellwood=20 Texas Forge Corporation (AEllwood@) hired=20 Process Installations (API@), an=20 independent contractor, to remove and replace an air conditioning = unit on=20 top of a machine called a Amanipulator@ = on=20 Ellwood=3Ds=20 premises. Bobby Jones, an employee of PI, was injured when = he fell=20 from the top of the manipulator. He and his wife, Kelly, = sued=20 Ellwood for negligence. A jury returned a verdict in favor = of the=20 Joneses, and the trial court entered a final judgment on the=20 jury=3Ds=20 verdict. On appeal, Ellwood contends, among other things, = that the=20 evidence is legally and factually insufficient to support the=20 jury=3Ds finding=20 that Ellwood retained or exercised control over PI=3Ds work, as=20 required by section 95.003 of the Texas Civil Practice and = Remedies=20 Code. For the reasons explained below, we agree with Ellwood = and=20 reverse and render a take-nothing judgment against the = Joneses.

Factual=20 Background

Ellwood is=20 a steel-forging plant located in Houston, Texas. During the = forging process,=20 a manipulator is used to transfer heated metal in and out of = furnaces and=20 into a press that is used to shape the metal into forms. The = manipulator has a cab where the operator sits and operates its=20 controls. Because the manipulator is near the furnace, it is = hot=20 inside the cab, so Ellwood installed air conditioning units on its = manipulators.

In June of=20 2001, Ellwood hired PI, an independent contractor that had worked = for=20 Ellwood in the past and was familiar with the plant, to perform = several=20 jobs on its premises, including removing and replacing the air=20 conditioning unit on one of the manipulators. The unit to be = replaced was on top of the manipulator=3Ds cab,=20 about twelve feet above the ground. To accomplish the job, = PI=20 provided a crew consisting of a supervisor, Robert Wesley,^[1] and two workers, Bobby = Jones and=20 Andy Franco. Wesley met with Jimmy Wegner, the maintenance=20 coordinator at Ellwood, to discuss replacing the air conditioner = on the=20 manipulator. Wegner gave Wesley a copy of the air = conditioning=20 manufacturer=3Ds diagram=20 of the unit, and told him to replace the old air conditioning unit = with a=20 new one. Wegner gave no additional directions or orders = concerning=20 the work.

The PI=20 crew went to work removing the old air conditioning unit and = replacing it=20 with the new one. At some point, as the new unit was lowered = onto=20 its base, Jones climbed up a ladder to the top of the manipulator = to check=20 the unit=3Ds=20 placement while Franco operated a crane used to lower the unit on = top of=20 the manipulator=3Ds=20 cab. Jones was not using any fall protection. After = the unit=20 was lowered into place on top of the cab, Jones fell and was=20 injured.

At trial,=20 one of the issues was whether Ellwood controlled the PI=20 employees=3D = work. Jones and his wife tried to show control by = highlighting=20 Ellwood=3Ds safety=20 procedures and the actions of certain Ellwood employees. = Ellwood did=20 not dispute that it had written safety procedures that applied to=20 independent contractors as well as to employees. The = procedures=20 required, among other things, that employees working more than six = feet=20 off the ground must use proper fall protection equipment, and = employees=20 were authorized to stop any work they saw being done in an unsafe=20 manner. Additionally, before PI began its assignments for = that week,=20 Wegner and Wesley signed an Ellwood Asafe work=20 permit@ = that was=20 intended to identify the jobs PI was to perform and the safety = equipment=20 required. No specific fall protection devices were = identified for=20 use.^[2]

Wegner,=20 Ellwood=3Ds=20 maintenance coordinator, stated that he did not know the PI = employees were=20 working on the manipulator without fall protection, but if he had = seen=20 them doing so he would have stopped the job until proper fall = protection=20 was used. However, Jones testified that Wegner was standing = near the=20 manipulator talking to Wesley shortly before Jones fell and knew = the PI=20 employees were working without fall protection.^[3] Both Jones and = Wesley=20 testified that Wegner never warned them of any danger or told them = to stop=20 working and get proper fall protection. Wesley also = testified that=20 about one month or so earlier, Wegner had seen PI employees = working on a=20 similar job on top of a manipulator and knew they were not using = fall=20 protection. Wegner denied this.

In=20 response to a question from Jones=3Ds=20 attorney, Wegner agreed that he could control the details of=20 PI=3Ds work=20 Aif he=20 wanted to.@ But=20 Wegner also testified that Wesley, the PI supervisor, had the = right to=20 control the details of the job he was given. Billy Matthews, = a plant=20 services manager at Ellwood and Wegner=3Ds=20 supervisor, testified that Wesley, not Wegner, controlled the = details of=20 PI=3Ds work=20 replacing the air conditioning unit on the manipulator. = Matthews=20 also testified that Ellwood paid extra for a PI supervisor and = skilled=20 workers so the work could be performed without supervision by = Ellwood=20 personnel.^[4] Concerning safety, = Matthews=20 testified that both Wegner and Wesley were responsible for making = sure the=20 work was done safely, and he agreed that Ellwood personnel could = forbid PI=20 from working in a dangerous manner without proper fall = protection. =20 Matthews also testified that Wesley had permission to use all of=20 Ellwood=3Ds=20 equipment, including safety equipment on the premises.

Robert=20 Wesley testified PI=3Ds safety=20 program was Abasically=20 the safety plan of the plant that we worked in@ = and that=20 A[t]he=20 responsibility for the safety and the job itself was mine because = it was=20 our crew.@ He=20 agreed that he had access to and could use Ellwood=3Ds safety=20 equipment without asking permission. Wesley also agreed that = he knew=20 that fall protection was needed, but he did not believe that fall=20 protection devices could be used in the area,^[5] so he instead decided to = proceed=20 with the work carefully. Concerning control over the work, = Wesley=20 agreed that Ellwood was paying PI not only for labor but for = supervision=20 of the job. Wesley testified that, once Wegner gave him the=20 assignment of replacing the air conditioning unit on the = manipulator, the=20 details of the work were left to his discretion, judgment, and = control,=20 and he did not expect anyone at Ellwood to tell him or his crew = how to go=20 about the details of their work. He also stated that the=20 manufacturer=3Ds diagram=20 of the air conditioning unit that Wegner gave him was of no use to = him,=20 and he relied on his experience and skill to complete the = job. =20 Finally, Wesley admitted that even if fall protection were checked = off on=20 the safe work permit, he and his crew would still have gone about = the job=20 the same way.

Analysis

In its=20 first issue, Ellwood contends the evidence is legally and = factually=20 insufficient to support the jury=3Ds finding=20 that Ellwood retained or exercised control over the manner in = which the=20 air conditioner installation on the manipulator was performed, as = is=20 required under Texas Civil Practice and Remedies Code Chapter 95 = to impose=20 liability on a property owner for the acts of an independent = contractor or=20 its employee. Ellwood contends that Chapter 95 eliminates = passivity=20 by the premises owner as a basis of liability for injury to a = contractor=20 or its employees on the premises, because it requires proof of a=20 landowner=3Ds actual=20 control and subjective awareness of a danger before liability will = be=20 imposed. Jones responds that, because the evidence is legally and=20 factually sufficient to show that Ellwood had the right to forbid = PI from=20 working without fall protection and to dictate what fall = protection PI=20 used, and that Ellwood=3Ds=20 supervisor knew PI was working in an unsafe manner, Ellwood had a = duty to=20 stop PI=3Ds=20 employees from working in an unsafe manner.

For the=20 reasons explained below, we disagree with Jones and hold that=20 Ellwood=3Ds right to=20 forbid PI employees from doing their work in a dangerous manner is = insufficient to impose a duty on Ellwood to ensure that PI and its = employees followed Ellwood=3Ds safety=20 rules and regulations.

I. =20 Standards of Review

When both=20 legal and factual sufficiency challenges are raised on appeal, an=20 appellate court must first examine the legal sufficiency of the=20 evidence. See Manon v. Tejas Toyota, Inc., 162 S.W.3d = 743,=20 752 (Tex. App.CHouston=20 [14th Dist.] 2005, no pet.) (citing Glover v. Tex. Gen. Indem. = Co.,=20 619 S.W.2d 400, 401 (Tex. 1981)).

We will=20 sustain a legal sufficiency or Ano‑evidence@ = challenge=20 if the record shows one of the following: (1) a complete absence = of a=20 vital fact; (2) rules of law or evidence bar the court from giving = weight=20 to the only evidence offered to prove a vital fact; (3) the = evidence=20 offered to prove a vital fact is no more than a scintilla; or (4) = the=20 evidence establishes conclusively the opposite of the vital = fact. =20 City of Keller v. Wilson, 168 S.W.3d 802, 810 (Tex. = 2005) (citing=20 Robert W. Calvert, ANo=20 Evidence@ = and=20 AInsufficient=20 Evidence@ = Points of=20 Error, 38 Tex. L. Rev. 361, = 362B63=20 (1960)). We consider the evidence in the light most = favorable to the=20 verdict and indulge every reasonable inference that supports = it. =20 Id. at 822. But,=20 Aif the=20 evidence allows of only one inference, neither jurors nor the = reviewing=20 court may disregard it.@ =20 Id. The evidence = is legally=20 sufficient if it would enable reasonable and fair‑minded = people to reach=20 the verdict under review. Id. at 827. We = credit=20 favorable evidence if reasonable jurors could credit it, and = disregard=20 contrary evidence unless reasonable jurors could not disregard = it. =20 See id. We cannot substitute our judgment for that of = the=20 jury, so long as the evidence falls within the zone of reasonable=20 disagreement. See id. at 822.

When=20 considering a factual sufficiency challenge to a jury=3Ds verdict,=20 we must review and weigh all of the evidence, not just the = evidence that=20 supports the verdict. See Maritime Overseas Corp. v. = Ellis,=20 971 S.W.2d 402, 406B07=20 (Tex. 1998); Nip v. = Checkpoint Sys.,=20 Inc., 154 S.W.3d 767, 768B69=20 (Tex.=20 App.CHouston=20 [14th Dist.] 2004, no pet.). We may set aside the verdict = only if it=20 is so contrary to the overwhelming weight of the evidence that it = is=20 clearly wrong and unjust. See Maritime Overseas = Corp., 971=20 S.W.2d at 407; Nip, 154 S.W.3d at 769.

To address=20 Ellwood=3Ds issues=20 on appeal, we will consider the evidence adduced at trial, to = assess if it=20 proved that Ellwood had a sufficient amount of control over = PI=3Ds=20 work.

II. =20 Control

A. =20 A Brief Review of the Case Law Before Chapter 95 was=20 Enacted.

In Texas,=20 the general rule is that an owner or occupier has no duty to see = that an=20 independent contractor performs work in a safe manner. = See Abalos=20 v. Oil Development Co., 544 S.W.2d 627, 631 (Tex. 1976). = In=20 1985, the Texas Supreme Court in Redinger v. Living, Inc., = adopted=20 section 414 of the Restatement (Second) of Torts, which provided = an=20 exception to the general rule when a premises owner or general = contractor=20 exercises some control over the work of an independent contractor = or=20 subcontractor:

One who=20 entrusts work to an independent contractor, but who retains the = control=20 over any part of the work, is subject to liability for physical = harm to=20 others for whose safety the employer owes a duty to exercise = reasonable=20 care, which is caused by his failure to exercise his control with=20 reasonable care.

Redinger=20 v. Living, Inc., 689=20 S.W.2d 415, 418 (Tex. 1985) (citing Restatement (Second) of Torts=20 ' = 414=20 (1977)). The employer=3Ds role=20 must be more than a general right to order the work to start or = stop, to=20 inspect progress, or to receive reports. Id. (citing = Restatement (Second) of Torts=20 ' = 414, cmt.=20 c (1965)).

As this=20 court explained in Dyall v. Simpson Pasadena Paper Co.,=20 opinionsCeven Texas=20 Supreme Court opinionsCapplied=20 section 414 inconsistently. See 152 S.W.3d 688,=20 697B98 (Tex.=20 Civ. App.CHouston=20 [14th Dist.] 2004, pet. denied) (en banc) (comparing and = contrasting=20 selected post-Redinger case law). Some of the cases = reached=20 results inconsistent with the public policy of minimizing = work-related=20 injuries. For example, in two cases, the Texas Supreme Court = held=20 that the employer had the right to control the independent=20 contractor=3Ds or=20 subcontractor=3Ds work=20 based on the employer=3Ds own=20 safety requirements and was liable for failing to require the = independent=20 contractor or subcontractor to comply with those safely=20 requirements. See id. (discussing Tovar v. = Amarillo Oil=20 Co., 692 S.W.2d 469 (Tex. 1985) and Lee Lewis Const., Inc., = v.=20 Harrison, 70 S.W.3d 778 (Tex. 2001)). In these two = cases, we=20 noted in Dyall that the premises owner or general = contractor who=20 incurred liability Awould have=20 been in a more legally advantageous position if it had not = promulgated=20 safety rules and procedures.@ = d. at 698.

In=20 contrast, in other cases, the Texas Supreme Court rejected the = notion that=20 a premises owner had a right to control the independent=20 contractor=3Ds work as=20 a consequence of promulgating its own safety measures such as = using a=20 safety employee to observe the contractor=3Ds work or=20 requiring the contractor to comply with the owner=3Ds safety=20 rules rules and regulations. Id. (citing Koch = Refining Co.=20 v. Chapa, 11 S.W.3d 153 (Tex. 1999) and Dow Chem. Co. v.=20 Bright, 89 S.W.3d 602 (Tex. 2002)). As the Texas Supreme = Court=20 explained in Dow Chem. v. Bright, A>it is not=20 enough that the premises owner has merely a general right to order = the=20 work stopped . . . [t]o hold otherwise would deter general = contractors=20 from setting even minimal safety standards.=3D@ =20 Id. at 698 (citing Dow Chemical Co. v. Bright, 89 = S.W.3d=20 602, 607B08 (Tex.=20 2002)).^[6]

B. =20 Chapter 95 Increased the Requirements for Liability to be=20 Imposed.

As the=20 case law evolved, the Texas Legislature enacted Chapter 95 of the = Texas=20 Civil Practice and Remedies Code as part of a sweeping tort-reform = package. Id. at 699; see Tex. Civ. Prac. & Rem. = Code=20 ' = 95.001B.004. =20 Chapter 95 provides that a property owner is not liable for the = personal=20 injury, death, or property damage to a contractor or his employees = who=20 construct, repair, renovate, or modify an improvement to real = property,=20 including injuries arising from the failure to provide a safe = workplace,=20 unless:

(1) the = property owner=20 exercises or retains some control over the manner in which the = work is=20 performed, other than the right to order the work to start or stop = or to=20 inspect progress or receive reports; and

(2) =20 the property owner had actual knowledge of the danger or condition = resulting in the personal injury, death, or property damage and = failed to=20 adequately warn.

Dyall, 152=20 S.W.3d at 699; Tex. Civ. = Prac.=20 & Rem. Code ' = 95.003.

The effect=20 of section 95.003 was to codify the Redinger = court=3Ds adoption=20 of section 414 of the Restatement and to further limit a property=20 owner=3Ds=20 liability by requiring a plaintiff to prove that the owner had = actual=20 knowledgeB-as=20 opposed to constructive knowledgeCof a=20 dangerous condition. Dyall, 152 S.W.3d at 699. =20 Consequently, under Chapter 95, the plaintiff has the burden to = show both=20 control and actual knowledge of the danger. Id. = An=20 owner may be aware of the danger, but exercise no control, or he = may=20 exercise control and have no actual knowledge of the danger; in = either=20 instance, the owner is statutorily shielded from liability. =20 Id.

Here, the=20 jury was asked to consider only the first prongCcontrolCand it is=20 the jury=3Ds=20 affirmative finding on control that Ellwood challenges. = Guided by=20 the foregoing discussion, we turn to a review of relevant = authorities and=20 the facts of this case to determine whether the evidence supports = the=20 jury=3Ds finding.=20

1. =20 The case law defines Acontrol@ = in a very=20 precise manner.

Control=20 may be proven in two ways: (1) a contractual right of = control or (2)=20 an exercise of actual control. Dow Chem. Co. v. = Bright, 89=20 S.W.3d 602, 606 (Tex. 2002); Elliott-Williams Co., Inc. v. = Diaz, 9=20 S.W.3d 801, 804 (Tex. 1999); Chi Energy, Inc. v. Urias, 156 = S.W.3d=20 873, 879 (Tex. App.CEl Paso=20 2005, pet. denied). The owner, to be liable, must have the = right to=20 control the means, methods, or details of the independent=20 contractor=3Ds work to=20 the extent that the independent contractor is not entirely free to = do the=20 work his own way. Diaz, 9 S.W.3d at 804. = A[T]he=20 right to control the work must extend to the >operative=20 detail=3D = of the=20 contractor=3Ds=20 work.@ =20 Urias, 156 S.W.3d at 880. Further, the control must = relate to=20 the injury the negligence causes. Diaz, 9 S.W.3d at=20 804. It is not enough that the owner has the right to order = the work=20 to stop and start or to inspect progress or receive reports. = SeeBright, 89 S.W.3d at 606; Tex. Civ. Prac. & Rem. = Code=20 ' = 95.003(1). Nor is it enough to recommend a safe manner for = the=20 independent contractor=3Ds=20 employees to perform the work. Bright, 89 S.W.3d at=20 607.

In=20 Hoechst-Celanese Corp. v. Mendez, the Texas Supreme Court = held=20 that, when an employer requires an independent contractor to = observe=20 workplace safety guidelines, it does not impose on the employer an = unqualified duty of care to ensure that the independent=20 contractor=3Ds=20 employees did nothing unsafe. See 967 S.W.2d 354,=20 357B58 (Tex.=20 1998) (per curiam). Instead, the employer owes a narrow duty = Athat any=20 safety requirements and procedures it promulgated did not = unreasonably=20 increase, rather than decrease, the probability and severity of=20 injury.@ =20 Id. at 358. This result, the Court explained, was = consistent=20 with its prior precedents and section 414 of the Restatement, = because the=20 employer=3Ds duty of=20 care was Acommensurate=20 with the control it retain[ed] over the contractor=3Ds=20 work.@ =20 Id. at 357.

The next=20 year, in Koch Refining Co. v. Chapa, the Court again = considered the=20 duty of a premises owner to an independent contractor and its = employees,=20 and held that the premises owner, merely by placing a safety = employee on=20 the work site to observe the independent contractor=3Ds work,=20 did not incur a duty to an independent contractor=3Ds=20 employees to intervene and ensure that they perform their work=20 safely. See 11 S.W.3d 153, 157 (Tex. 1999) (per=20 curiam). Moreover, the Court stated that an = employee=3Ds=20 willingness to follow a premises owner=3Ds=20 instructions, though no such instructions were given, did not = constitute=20 legally sufficient evidence of the premises owner=3Ds right to=20 control such that a duty arises. Id. at 156 (citing=20 Coastal Marine Serv. of Tex., Inc. v. Lawrence, 988 S.W.2d = 223, 224=20 (Tex. 1999)).

Following=20 Mendez and Koch Refining Co., the Court determined = in Dow=20 Chemical Co. v. Bright that the premises owner did not = exercise actual=20 control when it had a safety representative on site who could have = stopped=20 the independent contractor=3Ds employee=20 from working had it known of the safety hazard on its = premises. =20 See 89 S.W.3d at 608. The Court also rejected the = argument=20 that the premises owner exercised control because it had = implemented a=20 safe work permit system, which gave it the general right to = preclude the=20 work from beginning in the first instance, but it allegedly failed = to=20 properly conduct an on-site inspection before issuing the safe = work permit=20 for the contractor=3Ds=20 work. Id. at 608B09. =20 As the Court explained, A[t]he fact=20 that Dow implemented a safe work permit system as an attempt at = creating a=20 safer construction site did not unreasonably increase the = probability and=20 severity of Bright=3Ds=20 injury.@ =20 Id. at 608. Thus, neither the presence of a Dow = safety=20 representative at the site nor Dow=3Ds safe=20 work permit system constituted evidence that Dow controlled the = method of=20 the independent contractor=3Ds work or=20 its operative details. Id. 608B09.

2. =20 The facts of this case do not prove control.

Turning to=20 the case before us, Jones contends the evidence shows that Ellwood = had a=20 right to enforce its safety rule requiring fall protection, knew = PI was=20 violating this rule, and did not forbid PI from working in that = dangerous=20 manner. Jones contends Ellwood=3Ds right to=20 forbid the work from being done in a dangerous manner, combined = with its=20 actual knowledge that Jones and the other PI employees were = violating=20 Ellwood=3Ds safety=20 rule by working over six feet off the ground without fall = protection, is=20 sufficient to impose a duty on Ellwood.

a) =20 The right to forbid does not necessarily equal = control.

Central to=20 Jones=3Ds claim=20 that Ellwood retained control over PI=3Ds work is=20 Ellwood=3Ds right to=20 forbid PI from working without fall protection and to dictate what = fall=20 protection PI used. The evidence showed that = Ellwood=3Ds safety=20 rules included a rule requiring anyone working over six feet high = to use=20 fall protection. This rule applied to both Ellwood employees = and=20 independent contractors on its premises, and any Ellwood employee = had the=20 authority to stop any unsafe work being performed on = Ellwood=3Ds=20 property. Additionally, Jones points to Wegner=3Ds=20 testimony that (1) if he saw a contractor working higher than six = feet=20 without fall protection it was his responsibility to stop him and = either=20 get him fall protection or get him off the equipment, (2) if he = had seen=20 Jones and his coworkers working on the manipulator without fall=20 protection, he would have Adefinitely@ = stopped=20 them, (3) he would Acertainly@ = stop=20 someone he saw from violating one of Ellwood=3Ds safety=20 rules, (4) if he saw someone on top of a manipulator it would be = his duty=20 to tell them to get down or get fall protection equipment = immediately, and=20 (5) if Wesley had asked him how to do the job, he would have = instructed=20 him on the manner and details concerning how to do the job = safely. =20 Matthews, Wegner=3Ds=20 supervisor, agreed that working on the manipulator without fall = protection=20 was unsafe, and Ellwood could (1) forbid the work from being done = in a=20 dangerous manner, (2) forbid PI from using the wrong equipment to = do the=20 job, and (3) forbid PI from doing it out of the man lift in the = wrong=20 way. Jones also contends Ellwood=3Ds safety=20 program imposed upon Ellwood=3Ds=20 employees like Wegner a duty to observe work-related hazards and = unsafe=20 behaviors and to tell the workersCincluding=20 contractorsChow to do=20 the work correctly.

However,=20 this evidence and the case law do not support Jones=3Ds=20 contention that Athe right=20 to forbid the work from being done in a dangerous manner is = sufficient to=20 impose a duty.@ The=20 Supreme Court has established that a premises owner, by requiring = an=20 independent contractor to follow its safety rules and regulations, = does=20 not owe the independent contractor=3Ds employee=20 a duty to ensure that the employee does nothing unsafe. =20 Mendez 967 S.W.2d at 357B58. =20 Instead, the premises owner assumes only a narrow duty to ensure = that its=20 rules or requirements do not unreasonably increase the probability = and=20 severity of injury. Id. at 358. Moreover, = actual=20 control is not demonstrated when a premises owner=3Ds safe=20 work permit system gives it the right to preclude work from = beginning in=20 the first instance or stopping it after it has commenced. =20 Bright, 89 S.W.3d at 608B09. =20 Nor is actual control demonstrated when the premises owner places = a safety=20 representative on site to observe the independent = contractor=3Ds=20 work. Koch Refining Co., 11 S.W.3d at 157 = (A[A]=20 premises owner, merely by placing a safety employee on the work = site, does=20 not incur a duty to an independent contractor=3Ds=20 employees to intervene and ensure that they safely perform their=20 work.@).=20

Likewise,=20 the testimony that Wegner had the right to forbid the work = from=20 being performed in a dangerous manner, or that he would have = stopped the=20 work and required fall protection if he had seen Jones not = using=20 fall protection, or that he could have asserted control=20 Aif he had=20 wanted to@ = is=20 insufficient to impose liability because section 95.003 requires = an=20 assertion of actual control, not simply the possibility of=20 control. See Koch Refining Co., 11 S.W.3d at 156 = (stating=20 that the possibility that the Koch safety employee might intervene = and=20 forbid the independent contractor=3Ds employee=20 from working in a dangerous manner was not evidence that Koch = exercised=20 the degree of control necessary to create a duty); Coastal = Marine Serv.=20 of Tex., Inc. v. Lawrence, 988 S.W.2d 223, 226 (Tex. 1999)=20 (AA=20 possibility of control is not evidence of a >right to=20 control=3D = actually=20 retained or exercised.@). =20

The First=20 Court of Appeals recently rejected an argument very similar to the = argument Jones makes. In Phillips v. Dow Chemical = Co., the=20 plaintiffs asserted wrongful death, survival, and bystander claims = on=20 behalf of an employee of an independent contractor who died after = falling=20 from scaffolding at Dow=3Ds=20 plant. See 186 S.W.3d 121, 125 (Tex. App.CHouston=20 [1st Dist.] 2005, no pet.). The trial court granted summary = judgment=20 in favor of Dow, holding that Dow did not retain or exercise a = right of=20 control over the independent contractor=3Ds=20 work. Id. at 125B26. =20 In affirming the trial court=3Ds=20 judgment, the court of appeals explained:

It is=20 undisputed that Dow=3Ds safety=20 supervisor had the right to order work stopped for safety = violations or=20 concerns and had done so on occasion in the past. But, this = right=20 does not suffice as a fact issue that could trigger section=20 95.003(1)=3Ds first=20 condition for nonliability, because section 95.003(1) explicitly = requires=20 that the premises owner exercise or retain more control over the = manner in=20 which work is performed than the right to order it stopped. = See=20 Tex. Civ. Prac. = & Rem.=20 Code ' = 95.003;=20 Dow Chem. Co., 89 S.W.3d at 608. Moreover, although = it is=20 also undisputed that Dow engaged independent safety personnel to = supervise=20 the cleanup project, mere presence of the premises owner's safety=20 personnel at a worksite is likewise insufficient to demonstrate = that the=20 owner actually exercised control over the work. See Dow = Chem.=20 Co., 89 S.W.3d at 608.

Id. = at=20 135. We agree that a premises owner=3Ds right to=20 forbid independent contractors from beginning or continuing their = work in=20 an unsafe manner is not evidence of actual control.

b) =20 Contrary to Jones=3Ds = claim,=20 facts peculiar to this appeal do not prove Ellwood exercised=20 control.

Jones=20 contends, however, that additional facts not present in other = cases show=20 that Ellwood did incur a duty to prevent PI=3Ds=20 employees from working on the manipulator without fall = protection. =20 Jones points to the testimony that Ellwood=3Ds=20 maintenance coordinator, Jimmy Wegner, knew the PI employees would = be=20 working on the manipulator, saw the PI employees working on the=20 manipulator without fall protection, and witnessed Jones climbing = on the=20 manipulator and then falling off a few minutes later. There = was also=20 some testimony, although not entirely clear, that Wegner had seen = the PI=20 crew working on a similar manipulator without fall protection = about a=20 month earlier. However, this evidence goes to whether or not = Ellwood=20 had Aactual=20 knowledge@ = of a=20 danger and failed to adequately warn PI=3Ds=20 employees. Actual knowledge of a danger goes to the second = prong of=20 section 95.003; it does not substitute for evidence of = Acontrol@ = over the=20 independent contractor=3Ds work, as=20 the first prong of section 95.003 requires. See = Dyall, 152=20 S.W.3d at 705 (noting the statute suggests that the two elements = are=20 distinct). Thus, this evidence does not demonstrate that = Ellwood=20 retained or exercised the requisite control over PI and its=20 employees. See id. at 699 (noting a premises owner is = not=20 liable under section 95.003 if he is aware of the danger but = exercises no=20 control over the independent contractor).

Jones also=20 argues that the testimony shows that Ellwood hired PI to = supplement its=20 own workforce and to perform work Ellwood=3Ds=20 employees were just as competent to perform. Therefore, = Jones=20 asserts, Ellwood retained the right to control the manner and = details of=20 PI=3Ds work=20 because it Asupervised@^[7] = the work,=20 it had the right to forbid PI=3Ds work=20 from being done in a dangerous manner, and it had the right to = require PI=20 to comply with its rules. By this argument, Jones appears to = suggest=20 that, because Wegner gave PI its assignments, observed its=20 employees=3D = work, and=20 could have done the same job with Ellwood personnel, Ellwood = retained=20 control over PI=3Ds=20 work. However, the evidence of Wegner=3Ds=20 Asupervision@ = demonstrates only that Wegner gave PI its assignments and observed = the=20 work the PI employees did. Every premises owner must have = some=20 latitude to tell its independent contractors what to do, in = general terms,=20 and may do so without becoming subject to liability. Koch = Refining Co., 11 S.W.3d at 156; see also Mendez, 967 = S.W.2d at=20 356 (AIt is not=20 enough that [the employer] has merely a general right . . . to = inspect=20 [the work=3Ds]=20 progress or to receive reports, to make suggestions or = recommendations=20 which need not necessarily be followed, or to prescribe = alterations and=20 deviations.@) (quoting=20 Restatement (Second) of = Torts=20 '414, cmt.=20 c). And, as discussed above, the possibility that Ellwood = personnel=20 could have retained or exercised control over the work does not = address=20 whether they did so on the occasion in question.

Further,=20 Jones=3Ds argument=20 is inconsistent with the testimony concerning how the assignment = to=20 replace the air-conditioning unit on the manipulator was given and = carried=20 out. Wegner did testify that Ellwood employees were able to do=20 Aall types=20 of work@ = on=20 manipulators, including work on the air-conditioning units; = however, he=20 also stated that because his crew is small, Ellwood hires others = to handle=20 big jobs. He also agreed that he knew how to work on the=20 manipulators and could tell others how to do it correctly, safely, = and=20 with the right tools. But, Billy Matthews, = Wegner=3Ds=20 supervisor, testified that Ellwood paid extra for a PI supervisor = and=20 skilled workers so the work could be performed without supervision = by=20 Ellwood personnel. Robert Wesley, the PI supervisor, agreed = that=20 Ellwood was paying for both labor and supervision. When an = employer=20 hires an independent contractor for their particular expertise and = merely=20 observes the independent contractor=3Ds work,=20 that employer does not trigger liability under section = 95.003. =20 See Kelly v. LIN Television of Tex., L.P., 27 S.W.3d 564, = 571 (Tex.=20 App.CEastland=20 2000, pet. denied).

Having=20 reviewed the record, we hold there is no evidence that Ellwood = personnel=20 had the right to control or exercised actual control over the = operative=20 details of PI=3Ds work to=20 the extent that PI was not free to do the work its own way. = When=20 Wegner gave Wesley, the PI supervisor, the assignment to replace = the=20 air-conditioning unit on the manipulator, he handed Wesley the=20 manufacturer=3Ds diagram=20 of the new air-conditioning unit and he instructed Wesley to = remove the=20 old air-conditioning unit and replace it with another on the=20 premises. Wesley testified that, once he received that = assignment=20 from Wegner, the details of the work were left to his discretion,=20 judgment, and control. Wesley also testified that if Jones = wanted=20 fall protection then Jones would have used it, and Ellwood was not = involved in his and Jones=3Ds decision=20 not to do so. Additionally, the PI employees used their own = tools=20 for most of the work, and Ellwood personnel did not tell them what = tools=20 to use. On these facts, the evidence is legally insufficient = to=20 establish that Ellwood retained or exercised actual control over=20 PI=3Ds work as=20 required to impose liability under Texas Civil Practice and = remedies Code=20 section 95.003. See Bright, 89 S.W.3d at = 608B09;=20 Koch Refining Co., 11 S.W.3d at 157; Mendez, 967 = S.W.2d at=20 357B58;=20 Phillips, 186 S.W.3d at 135B36;=20 Dyall, 152 S.W.3d at 707.

Conclusion

In=20 summary, that Ellwood=3Ds=20 maintenance supervisor had the right to forbid PI=3Ds=20 employees from working on the manipulator without fall protection, = but did=20 not stop PI=3Ds=20 employees from doing so and did not require them to use proper = fall=20 protection before continuing, does not constitute evidence that = Ellwood=20 retained or exercised control over PI=3Ds=20 installation of the air conditioner on the manipulator on its=20 premises. Because section 95.003(1) of the Texas Civil = Practice and=20 Remedies Code requires that the property owner exercises or = retains some=20 control over the manner in which the work is performed before a = premises=20 owner may be found liable for the acts of its independent = contractors=20 under Chapter 95, the Joneses cannot prevail on their = claims.

We reverse=20 the trial court=3Ds judgment=20 and render a take-nothing judgment against Bobby Jones and Kelly=20 Jones.

/s/ =20 Wanda McKee Fowler

Justice

Judgment=20 rendered and Opinion filed January 9, 2007.

Panel=20 consists of Justices Fowler, Edelman, and Frost.

^[1] =20 Robert Wesley is the brother of Bobby Wesley, the owner of = PI. Bobby=20 Wesley is also Bobby Jones=3Ds brother-in-law.

^[2] =20 Wegner testified that the safe work permit was filled out before = the=20 specific jobs to be done were listed on the permit. Wesley, = the PI=20 supervisor, confirmed that PI and Wegner did not know exactly what = their=20 assignments would be at the start of the week when the permit was=20 signed.

^[3] By=20 deposition, Franco testified that Wegner Awould come around@ the area where they were working during = the two=20 or three days they worked on the manipulator, but no testimony was = offered=20 concerning Wegner=3Ds whereabouts on the day Jones = fell. =20 Although Wesley testified generally that Wegner knew the PI crew = was on=20 top of the manipulator, he also testified that when Bobby Jones = fell,=20 Wegner and Franco were the only people present. During the = defense=20 case, Ellwood=3Ds attorneys offered Wesley=3Ds deposition testimony in which he = stated that=20 Wegner was not in the area on the day Jones fell. =

^[4] =20 Wesley testified that Bobby Jones was a skilled worker and Andy = Franco was=20 a helper.

^[5] =20 Specifically, Wesley testified that he did not think he could use = a=20 harness and lanyard or a belt and lanyard because there was no = place to=20 attach it to a structure, and he did not think he could get a man = lift in=20 the area. Bobby Jones testified to essentially the same=20 opinions. Wesley also agreed that he could have rented any = equipment=20 Ellwood did not have and PI would be reimbursed.

^[6] =20 In = addition to=20 the salutary public policy of protecting workers, we noted in = Dyall=20 two additional reasons to question the wisdom of imposing = liability upon=20 the property owner for injuries sustained by independent=20 contractors. First, the independent contractor has often = been hired=20 for its expertise in the work to be done and its superior ability = to see=20 that the work is done safely. Dyall, 152 S.W.3d at = 698=20 (citing Lee Lewis Const., 70 S.W.3d at 796 (Hecht, J.,=20 concurring)). Second, an employer=3Ds liability for = accidents=20 should not increase the harder he tries to ensure that his = independent=20 contractors work safely and decrease the less he cares what = happens. =20 Id. We further = explained=20 that the rationale of subjecting employers to liability for = injuries=20 sustained by independent contractors was inconsistent with our = modern=20 system of worker=3Ds compensation. Id. at=20 698B99.

^[7] In=20 support of its contention that Wegner supervised PI=3Ds work, Jones points to the testimony of = Andy=20 Franco and himself. Franco testified that Wegner = Ausually told us what to do = there.@ When asked to describe what he = was told,=20 Franco stated, Awe were told to remove that unit and = install a new=20 one.@ Jones testified that, while doing = his work=20 during the week, he would see Wegner A[a]ll day, every day@ and he described how Wegner wanted = pallet pushers=20 built a certain way, telling him Awhere the material was to build = it@ and Awhat kind of welding rods to = use.@ When asked to describe = Wegner=3Ds personality, Jones testified that = AHe wants to make sure everybody knows=20 he=3Ds in control. He=3Ds a nice guy, but he wants you to know = that=20 he=3Ds the one calling the shots.@ He also testified that Wegner = would inspect=20 their work daily, and Aif he didn=3Dt like it, he would tell you about = it.@