IN THE SUPREME = COURT OF TEXAS

IN THE SUPREME COURT OF TEXAS

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No. 05-0940

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Central Ready Mix = Concrete=20 Company, Inc., = Petitioner

Luciano Islas, Respondent

════════λ= 2;══════════&= #9552;═════════_= 52;══════════= ══════════ = 552;═

On Petition for Review from = the

Court of Appeals for the Thirteenth = District of=20 Texas

═════════_= 52;══════════= ══════════ = 552;══════════= ;══════════&#= 9552;

Argued March 21,=20 2007

Justice Brister delivered the opinion of the = Court.

An = injured=20 employee obtained a jury verdict against his employer (who carried no = workers=92=20 compensation insurance) and the owner whose truck he was repairing. The = trial=20 judge set aside the verdict against the latter, but the court of appeals = reversed. Based on well-established rules of Texas law, we reverse and reinstate = the trial=20 court=92s judgment.

Central Ready=20 Mix Concrete Company delivers premixed concrete in trucks with rotating = drums.=20 Inevitably, some leftover concrete hardens in the drum, which = periodically must=20 be cleaned from inside by jackhammer. After an inspector with the = Occupational=20 Safety and Health Consultation Program (a division of the Texas = Workers=92=20 Compensation Commission) recommended that Central contract out this = cleaning=20 work, it hired a former employee named Eugene Taylor. Central gave = Taylor written = safety=20 instructions that included lock-out and tag-out procedures to ensure the = drum=20 was never rotated while someone was still inside. It was disputed = whether=20 Taylor passed=20 these instructions on to his employees.

In = January=20 2000, Luciano Islas was=20 severely injured when one of his coworkers rotated a drum while Islas was crawling out of it through an access = panel,=20 pinning him against the frame of the truck. In an effort to free him, a=20 supervisor restarted the truck but rotated the drum in the same = direction,=20 crushing him further. A blow torch was finally employed to free Islas, and he was hospitalized for five days with = a crushed=20 pelvis.

A = jury found=20 the cleaning job =93inherently dangerous=94 and a =93peculiar risk,=94 = assigned fault 70=20 percent to Taylor, 20 percent to Central, and 10 = percent=20 to Islas, and assessed damages at $290,700. = The trial=20 court granted a take-nothing judgment notwithstanding the verdict in = favor of=20 Central, signing a judgment against Taylor alone for all Islas=92s damages (less a percentage reflecting = his own=20 negligence).

Islas appealed the take-nothing judgment for = Central, and=20 the court of appeals reversed. In its memorandum opinion, the court said = it=20 would =93examine the record for evidence supporting the jury finding and = ignore=20 all evidence to the contrary.=94 As we clarified a few months later in = City of=20 Keller v. Wilson, this standard is proper so long as a reviewing = court keeps=20 in mind that some contrary evidence cannot be ignored.[1] The standard for reviewing a = judgment=20 notwithstanding the verdict, like all other motions rendering judgment = as a=20 matter of law, requires a reviewing court to credit evidence favoring = the jury=20 verdict if reasonable jurors could, and disregard contrary evidence = unless=20 reasonable jurors could not.[2]

As = this Court=20 has held repeatedly, owners like Central generally have no duty to = ensure that=20 an independent contractor performs its work in a safe manner.[3] There is no dispute Taylor was an = independent=20 contractor and thus was responsible for training and monitoring his own=20 employees. Central could be liable to Taylor=92s employees, but only to the = extent it=20 retained contractual or actual control of them.[4] Here, there was no contract = granting=20 Central such control, and no evidence it exercised actual control (or = was even=20 present) when Taylor=92s employees performed this = work.

The = court of=20 appeals, however, pointed to three kinds of evidence it believed = supported the=20 jury verdict. First, there was testimony Central knew this work could be = =93very=20 dangerous,=94 but failed to warn Taylor of the hazards involved. But = the duty to=20 warn independent contractors of concealed hazards applies to premises = conditions=20 (which an owner should know about) rather than the contractor=92s own = work (which=20 the contractor should know about).[5] In any event, the dangers of = rolling an=20 employee about inside a concrete mixer are so obvious they cannot = constitute a=20 concealed hazard imposing on Central a duty to warn.[6]

Second, the=20 court pointed to evidence that Central did not train Taylor or his = employees, or=20 monitor the training Taylor provided. But there was no = evidence=20 Central retained a right to control training of Taylor=92s employees. While Central = instructed=20 Taylor to use=20 lock-out and tag-out safety procedures, that = did not=20 impose on Central a duty to monitor compliance; an owner that provides = training=20 materials to an independent contractor is not liable if the latter fails = to use=20 them.[7] If Taylor never instructed his employees = to use=20 these procedures (which we must presume in light of the jury=92s = verdict), there=20 was no evidence Central knew or approved of that omission.[8]

Third, the=20 court of appeals pointed to evidence that Central failed to investigate=20 Taylor=92s=20 knowledge or experience in conducting this work. But there was no = evidence an=20 investigation would have uncovered a history of negligent operations, = and it was=20 undisputed that Taylor=92s company had cleaned out = seventeen=20 Central concrete trucks without incident over the two-year period = preceding the=20 occurrence here. Moreover, there was undisputed evidence that Central = gave=20 Taylor instructions regarding = procedures to avoid=20 an accident like this; it was Taylor=92s failure to follow those = instructions=20 rather than his lack of experience that caused Islas=92s=20 injury.

Finally, we=20 disagree with Islas that because the jury = found this=20 cleaning work was =93inherently dangerous=94 and a =93peculiar risk,=94 = Central owed him=20 a nondelegable duty to ensure the work was = done=20 safely. While the Legislature may impose a nondelegable duty by statute,[9] no statute applies here; to the = contrary,=20 a statutory agency specifically encouraged Central to delegate this work = to an=20 independent contractor. And while Texas courts recognize a number of = nondelegable duties owed to one=92s own = employees,[10] they have recognized very few = such=20 duties with respect to nonemployees, = including the=20 employees of an independent contractor.[11]

More=20 important, Texas courts have found very few = activities so=20 inherently dangerous as to impose a nondelegable=20 duty.[12] As the jury was instructed = here,[13] inherently dangerous = activities are=20 generally those that are dangerous in their normal, nondefective state.[14] This case, by contrast, = involves repairs=20 rather than normal nondefective use. = Virtually every=20 machine =97 from small appliances to heavy equipment =97 can cause = serious injury if=20 accidentally activated while a repairer=92s fingers, limbs, or body are = inside it.=20 Adopting Islas=92s theory would impose a = nondelegable duty on every person in Texas who = hires someone=20 to make repairs, thereby rendering them liable for every injury that = might occur=20 in the course thereof. We decline to adopt so sweeping a change in = Texas = law.

Accordingly,=20 we reverse the court of appeals=92 judgment and reinstate the trial = court=92s=20 judgment.

__________________________________

Scott Brister

Justice

OPINION=20 DELIVERED: June 29, 2007

^[1] = 168 S.W.3d 802, 811 (Tex. 2005) (=93But it is important = that when=20 courts use the exclusive standard and disregard contrary evidence, they = must=20 recognize certain exceptions to it.=94).

^[2] = Id. at=20 823 (=93Judgment without or against a jury verdict is proper at any = course of the=20 proceedings only when the law does not allow reasonable jurors to decide = otherwise.=94); accord, Dowling v. NADW Mktg., Inc., 631 S.W.2d = 726, 728=20 (Tex. 1982) (=93To sustain the action of the trial court in granting the = motion=20 for judgment notwithstanding the verdict, it must be determined that = there is no=20 evidence upon which the jury could have made the findings relied upon. = In acting=20 on the motion, all testimony must be considered in a light most = favorable to the=20 party against whom the motion is sought and every reasonable intendment=20 deducible from the evidence is to be indulged in that party=92s = favor.=94);=20 Douglass v. Panama, Inc., 504 S.W.2d 776, 777 (Tex. 1974) (same); = Leyva v. Pacheco, 358 S.W.2d 547, = 550 (Tex.=20 1962) (same); Houston Fire & Cas. = Ins. Co. v.=20 Walker, 260 S.W.2d 600, 603‑04 (Tex. 1953)=20 (affirming trial court=92s implied disregard of one jury answer based on = =93consideration of the transcript as a whole=94); Neyland v. Brown, 170 S.W.2d 207, = 211=20 (Tex. 1943)=20 (considering judgment non obstante veredicto =93in the light of the record as a=20 whole=94).

^[3] = Fifth Club, Inc. v. Ramirez, 196 S.W.3d 788, 791 = (Tex. 2006); Shell Oil Co. v. Khan, 138 = S.W.3d 288,=20 293 (Tex. 2004); Coastal Marine = Serv. of Tex., = Inc. v.=20 Lawrence, 988 S.W.2d 223, 225 = (Tex. 1999); Clayton W. Williams, Jr., Inc. v. = Olivo, 952 S.W.2d 523, 527 (Tex. 1997).

^[4] = See=20 Khan, 138 S.W.3d at 292.

^[5] = Id. at=20 295; Coastal Marine, 988 S.W.2d at 225; Shell Chem. Co. v. = Lamb,=20 493 S.W.2d 742, 746 (Tex. 1973).

^[6] = See Wilhelm v. Flores, 195 S.W.3d 96, 98 = (Tex. 2006) = (per curiam); Khan, 138 S.W.3d at=20 295.

^[7] = Khan,=20 138 S.W.3d at 293-94.

^[8] = See Lee Lewis Constr., Inc. = v.=20 Harrison, 70 S.W.3d 778, 784 (Tex. 2001);=20 Tovar v. Amarillo Oil Co., 692 S.W.2d 469, 470 (Tex. 1985) = (per curiam).

^[9] = See MBank El=20 Paso, N.A. v. Sanchez, 836 S.W.2d 151, 153 (Tex.=20 1992).

^[10]=20 See, e.g., Hammerly Oaks, = Inc. v.=20 Edwards, 958 S.W.2d 387, 391-92 (Tex. 1997) (noting nondelegable duty to hire competent coemployees); Leitch v.=20 Hornsby, 935 S.W.2d 114, 118 (Tex. 1996) (noting nondelegable duty to provide safe workplace); = Burk=20 Royalty Co. v. Walls, 616 S.W.2d 911, 423-24 (Tex. 1981) (noting = nondelegable duty to provide safety regulations = for=20 employees); see also Fort Worth Elevators Co. v. Russell, 70 = S.W.2d 397,=20 401 (Tex. 1934).

^[11]=20 See, e.g., Fifth Club, Inc. v. Ramirez, 196 S.W.3d = 788, 796=20 (Tex. 2006)=20 (declining to recognize =93personal character exception=94 imposing = liability for=20 tortious acts of independent contractor = performing=20 security services); Baptist Mem=92l Hosp. = Sys. v.=20 Sampson, 969 S.W.2d 945, 949 (Tex. 1998)=20 (refusing to impose nondelegable duty on = hospitals for=20 malpractice of emergency room physicians); Am. Tobacco Co. v. = Grinnell,=20 951 S.W.2d 420, 438 (Tex. 1997) (declining to adopt = Restatement=92s=20 sections providing liability for =93inherently dangerous=94 products); = Leitch, 935 S.W.2d at 118 (holding = corporate officers=20 individually had no nondelegable duty to = provide safe=20 workplace).

^[12]=20 See, e.g., MBank, 836 = S.W.2d at=20 159 (Hecht, J., dissenting) (citing Texas courts that have refused to=20 characterize use of heavy equipment, inflammable materials, electrical = work,=20 blasting, and refinery operations as =93inherently dangerous=94 = activities); Abalos v. Oil Dev. Co. of Texas, 544 = S.W.2d=20 627, 631 (Tex. 1976) (finding no evidence oil well was inherently = dangerous);=20 Roosth & Genecov Prod. Co. v. White, 262 S.W.2d 99, 101 = (Tex.=20 1953) (finding no evidence oil derrick was inherently dangerous) = overruled on=20 other grounds by Burk Royalty Co. v. Walls, 616 S.W.2d 911, 925 = (Tex. 1981);=20 cf. Ricardo N., Inc. v. Turcios de Argueta, 907 S.W.2d 423, 426 (Tex. 1995) = (noting that=20 duty to rescue seamen arises because =93the sea is inherently=20 dangerous=94).

^[13] = The jury=20 received the following instruction: =93An =91inherently dangerous = activity=92 is work=20 which will probably result in injury to a third person or the public as = the=20 activity is dangerous in its normal or nondefective=20 state. An instrumentality is inherently dangerous only if it is = dangerous in its=20 normal or non‑defective state.=94

^[14] = Roosth, 262 S.W.2d at = 101.=20