Thursday, August 20, 2009

Right to control as predicate for workplace injury liability divides appellate panel


Moss v. Waste Management National Services, Inc.
(Tex. App. - [1st Dist.] Houston 2009)

This appeal arises from a jury’s verdict in favor of a property owner, sued for its negligence after a truck-pedestrian accident occurred on its premises. A Rustin Transportation Company (Rustin) employee, driving a company eighteen-wheeled truck, struck and injured Kenneth Moss, a fellow employee, while Moss directed Rustin trucks at a waste transfer facility owned by Waste Management of Texas, Inc. (Waste Management). Moss sued Waste Management, the premises owner, for negligence.[1] A jury found that Waste Management did not control Rustin’s activities. Based on the jury’s finding, the trial court ordered that Moss take nothing in his suit against Waste Management. Moss appeals the jury verdict and judgment, contending that (1) the trial court erred in predicating the liability and damages issues on whether Waste Management exercised control over Rustin’s activities, and (2) the jury’s right-to-control finding is against the great weight and preponderance of the evidence. We conclude that the trial court did not err in submitting the right-to-control issue and that factually sufficient evidence supports the jury’s verdict. We therefore affirm.

Moss v. Waste Management National Services, Inc. (Tex.App.- Houston [1st Dist] Aug. 20, 2009)(Bland)(work site injury, premises liability, direct negligence, right to control issue as predicate for liability for worker's injury, jury instructions)
Disposition: AFFIRM TC JUDGMENT: Opinion by Justice Jane Bland
Panel members: Justices Jennings, Hanks and Bland
Appellate cause no. (hot-linked to court docket): 01-07-01106-CV
Full case style: Kenneth W. Moss and Michelle Moss v. Waste Management National Services, Inc.
Court below: 125th District Court of Harris County
Trial Court Judge: Hon. John Coselli


The majority errs in concluding that the "right to control is an essential element" of the negligence and premises liability claims brought by appellant, Kenneth W. Moss, against appellee, Waste Management of Texas, Inc. ("Waste Management"). Moss's claims are not based upon the vicarious liability of Waste Management for the acts or omissions of its independent contractor and Moss's employer, Rustin Transportation Co. ("Rustin"). Rather, the gist of Moss's claims is that Waste Management was itself directly negligent in its operation and management of its facility where Moss was injured and that Waste Management created the dangerous situation in which Moss was injured. Thus, the trial court erred in submitting a question predicating Waste Management's liability on its right to control Rustin's work. Accordingly, I respectfully dissent.

* * *

"Right to Control"

Waste Management and the majority have recast Moss's lawsuit as one against Waste Management for the negligent activity of Rustin. In regard to the liability of premises owners and general contractors for the negligent activities of independent contractors, Texas has long recognized the rule that

One who entrusts work to an independent contractor, but who retains the control of any part of the work, is subject to liability for physical harm to others for whose safety the employer owes a duty to exercise reasonable care, which is caused by his failure to exercise his control with reasonable care. Redinger v. Living, Inc., 689 S.W.2d 415, 418 (Tex. 1985) (quoting Restatement (Second) of Torts § 414 (1977)). However, this rule is not applicable here because Moss is not claiming that he was injured by either the negligent activity of Rustin or by a premises defect created by Rustin's work. See Dow Chem. Co. v. Bright, 89 S.W.3d 602, 606 (Tex. 2002). Rather, from his petition as quoted above, it is quite clear that Moss is not pursuing a claim against Waste Management based on any negligent activity of Rustin or any premises defect created by Rustin.

Moss is claiming, quite simply and clearly, that Waste Management, which was contractually in complete control of the volume of garbage entering and leaving its facility, overloaded its facility with an excessive amount of garbage and the associated excessive amount of truck traffic. He asserts that he was injured when a Rustin eighteen-wheel tractor-trailer, through no fault of Rustin, was "forced" to load waste at a bay designed "exclusively for dumping." Contrary to Waste Management's and the majority's characterization of Moss's lawsuit, Moss asserts that he was injured by the negligence of Waste Management, not Rustin, and a premises defect created by Waste Management, not Rustin.

In support of its characterization of Moss's claims and its holding that "the trial court did not err in concluding that a right to control is an element of the simple negligence claim asserted against Waste Management," the majority relies on Dow Chemical Co. v. Bright, 89 S.W.3d 602 (Tex. 2002). In Dow Chemical, Bright, an employee of an independent contractor, was injured when a pipe which had been improperly secured by another employee of the independent contractor, became unstable and fell on him at a construction site owned by Dow. Id. at 605. Bright sued Dow, specifically alleging that Dow had retained both contractual and actual control of the independent contractor's work on Dow's premises when he was injured. Id. Bright specifically argued that Dow was subject to liability because the independent contractor had created a premises defect "by its work activity," i.e., a "dangerous condition" arose "because of the independent contractor's work activity." Id. at 606. The Texas Supreme Court concluded that no fact issues existed about the extent of contractual or actual control retained by Dow. Id. at 605.

Here, in stark contrast, Moss is not claiming that a premises defect was in any way created by Rustin's activities. Rather, as clearly stated in his pleadings, Moss is alleging that Waste Management, which controlled the volume of garbage entering and leaving its facility, created the dangerous situation in which Moss was injured by overloading the transfer station with an excessive volume of garbage and forcing Rustin to use a bay designed "exclusively for dumping" to load garbage onto an eighteen-wheel tractor-trailer. He emphasizes that Waste Management's transfer station "was not designed to facilitate multiple loading areas" that it required Rustin to use in order to retrieve the excessive shipments of garbage, which Rustin, pursuant to the contract, could "not refuse."

Thus, the issue of whether Waste Management retained a "right to control" the work of Rustin at the transfer station is not relevant to Moss's claims against Waste Management for its own negligence and its own creation of a dangerous condition on its premises. (1)


I would hold that the trial court erred in submitting the question to the jury predicating Waste Management's liability to Moss on its right to control Rustin's work. Because it is fundamental to our system of justice that parties have the right to be judged by a jury properly instructed in the law and the trial court's error probably caused the rendition of a harmful judgment, I would remand the case to the trial court for a new trial. See Tex. R. App. P. 44.1(a)(1); Crown Life Ins. Co. v. Casteel, 22 S.W.3d 378, 388 (Tex. 2000). The majority's holding and judgment to the contrary is in error. Accordingly, I respectfully dissent.

Terry Jennings

Dissent by Justice Jennings in Moss v. Waste Management National Services, Inc. (Tex.App.- Houston [1st Dist] Aug. 20, 2009)(Jennings, Dissenting)

Other Houston appellate cases with dissent (or concurring opinion)

premises liability, premises owner's duty, workplace injury & wrongful death, Worker's Comp nonsubscribers

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