law-independent-contractor | right to control details of work | vicarious liability of employer |

Right to control Test

Martinez v. Melendez (Tex.App.- Houston [1st Dist.] Dec. 3, 2009)(Subst op. by Bland)
(wrongful death, collision with dump truck,
independent contractor, no right to control, no vicarious liability)
Justice Jane Bland  
Before Justices Taft, Bland and Sharp    
01-08-00850-CV        Luci Martinez, Individually and the Personal Representative of the Estate of Luis
Martinez; and Jose Martinez and Maria Martinez v. Moises Melendez    
Appeal from 190th District Court of Harris County
Trial Court Judge:
Hon. Patricia J. Kerrigan

Under Texas law, business owners have no duty to see that independent contractors use reasonable care
in performing their work unless they exercise control over the independent contractor’s activity.  Dow Chem.
Co. v. Bright, 89 S.W.3d 602, 606 (Tex. 2002); Redinger v. Living, Inc., 689 S.W.2d 415, 418 (Tex. 1985).  
A plaintiff seeking to prove that the owner is liable for a negligent act must therefore establish that (1) the
owner had a contractual right of control or exercised actual control, in a way that extends to the operative
details of the contractor’s work, and (2) a nexus exists between the owner’s retained control and the activity
that caused the plaintiff’s injury.  Gen. Elec. Co. v. Moritz, 257 S.W.3d 211, 214 (Tex. 2008); Ellwood Tex.
Forge Corp. v. Jones, 214 S.W.3d 693, 700 (Tex. App.—Houston [14th Dist.] 2007, pet. denied) (citing Tex.
Civ. Prac. & Rem. Code Ann. §§ 95.001—.004).

Here, the undisputed evidence demonstrates that Melendez was  unaware that Delfino—not Salvador—
was driving the truck.  Melendez had no control over the operative details of Delfino’s work.  Delfino
determined his own route and the number of loads he transported.  Melendez did not have any authority to
hire or fire Delfino.

The Martinezes contend that Melendez should have known that Delfino would work on the job because
Salvador’s truck bore the “Bello Transportation” label.  The evidence, however, does not raise a fact issue
to support this contention.  Salvador, not Melendez, informed Delfino about the job and provided him with
the truck he used to perform the work.  Melendez’s only contact was with Salvador: all the stubs he
collected were made out in Salvador’s name, and Melendez paid Salvador with a personal check written out
to Salvador individually.

Salvador testified that he did not regard Delfino as an employee.  Salvador, like Melendez, described
himself as a sole proprietor, and posted a corporate name on his truck to comply with regulations.  The fact
that Salvador labeled his truck “Bello Transportation” does not raise a material fact issue that Melendez
was ever put on notice that, by inviting Salvador to haul loads to and from the Hays worksite, he was also
inviting Delfino.[3]

The Martinezes point to equivocal statements and disagreements between Melendez and Hays as to
whether Hays “hires” drivers or truck brokers, or whether Melendez “paid” the Bellos, contending that they
raise a fact issue concerning Delfino’s employment status.  The issue, however, is not how Hays labeled
their relationship, but whether the facts show that Melendez could or did exercise control over the operative
details of Delfino’s work.  See Dow Chem. Co., 89 S.W.3d at 606.  Here, no evidence presents such a
showing.  Consequently, no general employer-employee relationship exists to impose vicarious liability or
liability for negligent training or hiring on Melendez, and the trial court correctly granted Melendez’s motion
for summary judgment.