Legal Memorandum: Liability to Employees of a Independent Contractor

Issue: Under Texas law, what is the duty of a contractor to injured employees of a independent contractor?

Under Texas law, a contractor has a duty to an injured employee of an independent contractor to provide a safe workplace if the employer contractor retained and actually exercised a sufficient right of control to subject it to liability.  Barham v. Turner Constr. Co., 803 S.W.2d 731, 736 (Tex. App.—Dallas 1990, writ denied).  A contractor’s duty is commensurate with its degree of control.  Redinger v. Living, Inc., 689 S.W.2d 415 (Tex. 1985), Clayton W. Williams, Jr., Inc. v. Olivo, 952 S.W.2d 523 (Tex. 1997), and Hoechst-Celanese Corp. v. Mendez, 967 S.W.2d 354 (Tex. 1998).  This rule dictates that the scope of a contractor’s duty cannot be determined as a matter of law.*FN1

Like Olivo, "the hybrid of law that lies at the intersection of premises liability and agency law governs . . .."  952 S.W.2d at 527.  Under Texas law, the owner or occupier of premises owes a general duty to use reasonable care to maintain safe premises for business invitees.  Id.; Redinger, 698 S.W.2d at 417; Agricultural Warehouse, 759 S.W.2d at 694; Barham, 803 S.W.2d at 735.  Importantly, "[i]n order to be held liable as an owner or occupier, a party must be in control of the premises."  Butcher, 906 S.W.2d at 15.  General contractors in control of premises are charged with the same duty as owners or occupiers.  Olivo, 952 S.W.2d at 527; Redinger, 689 S.W.2d at 417; Agricultural Warehouse, 759 S.W.2d at 694; Barham, 803 S.W.2d […]