DOES LANDOWNER OWE DUTY TO INDEPENDENT CONTRACTOR ON THE PREMISES WITH RESPECT TO
DANGEROUS CONDITION? IF SO, UNDER WHAT CIRCUMSTANCES?
SUPREME COURT RULES IN FAVOR OF PREMISES OWNER, HOLDING THAT NO DUTY WAS OWED TO INDEPENDENT
CONTRACTOR AND THUS NO LIABILITY COULD ARISE FOR DEFENDANT.
G. E. v. Moritz, 257 S.W.3d 211 (Tex. 2008)
Holding: When a defendant hires an independent contractor to come on premises and
perform work as it sees fit, the defendant may reasonably expect the contractor to
instruct its own employees on the safe means and manner of doing so. Regardless of
whether Moritz acted prudently, the defendants had no duty to warn him that the ramp
he used daily had no handrails. Accordingly, we reverse the court of appeals’ judgment
and render a take-nothing judgment in favor of the defendants.
G.E. v. Moritz, No. 04-0871 (Tex. June 13, 2008)(Brister) (premises liability of land owner, negligence, injury to
employee of independent contractor, known danger, no duty) (11 page pdf opinion)
GENERAL ELECTRIC COMPANY v. ARTHUR LEE MORITZ; from Tarrant County; 2nd district (02-03-00038-CV,
___ SW3d ___, 05-20-04)
2 petitions The Court reverses the court of appeals' judgment and renders judgment.
Justice Scott A. Brister delivered the opinion of the Court, in which Justice Hecht, Justice Wainwright, Justice
Medina, and Justice Willett joined.
Justice Green delivered a dissenting opinion, in which Chief Justice Jefferson and Justice Johnson joined.
(Justice O'Neill not sitting)
Opinion below: Moritz v. G.E. (Tex.App. - Fort Worth, May 20, 2004, pet granted)
Related terms: Premises liability | workplace injury | independent contractors | comparative negligence |
premises condition | negligent activity | concealed hazard | known hazardous condition | known danger | duty to
warn | degree of control over work of injured worker
Also see other 2008 Texas Supreme Court Opinions | Premises Liability Case Law | Workplace Injury Cases |
Product Liability Decisions | design defect |
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General Electric Co. v. Moritz, 257 S.W.3d 211 (Tex. 2008)
══════════════════════════════════════════════════════════════════════
Argued October 17, 2006
Justice Brister delivered the opinion of the Court, in which Justice Hecht, Justice Wainwright, Justice
Medina, and Justice Willett joined.
Justice Green filed a dissenting opinion, in which Chief Justice Jefferson and Justice Johnson joined.
Justice O’Neill did not participate in the decision.
Must a landowner warn an independent contractor’s employees of obvious hazards they already know
about? Four times in the last ten years this Court has said the answer is “No.”[1] The plaintiff in this
case argues that all these cases are wrong because his knowledge of the hazard is simply a factor the
jury should consider in assessing comparative negligence. We agree the jury alone can decide
whether he was negligent, but disagree that a jury can decide what legal duties landowners owe to
independent contractors.
We hold the trial court correctly found no duty here, and the court of appeals erred in reversing it.
I. Background
Arthur Lee Moritz worked for an independent contractor that delivered General Electric parts to
customers. Every day for 18 months, Moritz drove his pick-up to GE’s warehouse, which had a loading
dock with two large doors. Both doors were about four-and-a-half feet above the paved driveway, but
only one had a concrete ramp extending down to grade level. The ramp was straight, 10 feet wide, 40
feet long, and had six-inch curbs along both edges but no guard rails. Generally, Moritz loaded
supplies either by backing his truck up the ramp and into the warehouse itself, or backing up next to the
door without a ramp. But on some days, he would load his truck on the ramp or outside in the driveway.
On the day Moritz was injured, both doors were blocked by GE supplies, so he parked his truck up on
the ramp. Two GE employees helped him load electrical conduit into the bed of his pickup, after which
Moritz alone secured the load with rachet-type straps. He then tried to add a rubber bungee cord, but
the cord broke while he was leaning back to stretch it, causing him to fall off the ramp’s side and
fracture his hip, pelvis, and thumb.
Moritz sued GE and others,[2] alleging that as owners or occupiers of the premises they were liable for
negligence regarding activities and premises conditions.[3] The trial court granted summary judgment
for the defendants, but the court of appeals found fact questions as to both theories and reversed.[4]
We address each theory in turn.
II. The Negligent Activity Theory
Moritz alleged a negligent activity claim solely against GE. Generally, an owner or occupier does not
owe a duty to ensure that independent contractors perform their work in a safe manner.[5] But one who
retains a right to control the contractor’s work may be held liable for negligence in exercising that right.
[6] This right to control may be expressed by contract or implied by conduct.[7]
In the summary judgment record here, there was no evidence Moritz’s duties were governed by a
contract. There was some evidence that in practice GE controlled where Moritz could load his truck,
such as when it blocked some of his loading options. But there was no evidence it controlled how or
where Moritz secured his load for delivery — the truck, straps, and rubber cords he used for that
purpose were entirely his own.
Citing our opinion in Lee Lewis Construction, Inc. v. Harrison,[8] the court of appeals held that a fact
question was created if “GE retained the right to control any aspect of Moritz’s activities.”[9] What we
actually said in Lee Lewis (citing the Restatement of Torts and numerous opinions) was that a
defendant’s duty “is commensurate with the control it retains over the independent contractor’s work.”
[10] Thus, it is not enough to show that the defendant controlled one aspect of Moritz’s activities if his
injury arose from another.[11]
Here, GE’s control of where Moritz could load supplies did not dictate where he could secure that load.
While some loads undoubtedly must be secured before they are moved an inch, that was not the case
here; Moritz admitted at his deposition that he could have driven off the ramp before securing this load.
As an independent contractor, Moritz was free to choose whatever vehicle he wanted for deliveries,
and when, where, and how he would secure his load. Thus, none of the defendants had contractual or
actual control of Moritz’s decision to carry loads in the back of a pick-up truck or secure them with
rubber cords requiring him to use his body weight to pull them taut.
Accordingly, the court of appeals erred in finding a fact question on his negligent activity theory.
III. The Premises Condition Theory
Moritz alleged a premises-condition claim against all the defendants. Generally, a landowner is liable
to employees of an independent contractor only for claims arising from a pre-existing defect rather than
from the contractor’s work,[12] and then only if the pre-existing defect was concealed: “With respect to
existing defects, an owner or occupier has a duty to inspect the premises and warn of concealed
hazards the owner knows or should have known about.”[13] Moritz’s claimed defect — the absence of
rails on the loading ramp — was obviously a pre-existing condition and obviously not a concealed
hazard.
Limiting premises liability to concealed hazards is not unique to cases involving independent
contractors. A lessor who relinquishes possession or occupancy of premises also has no duty to warn
of defects except those that are concealed.[14] In both cases, the landowner’s duty is limited because
control is being turned over to someone else in a way that is not true of shoppers, sightseers, or other
business invitees.
An independent contractor owes its own employees a nondelegable duty to provide them a safe place
to work, safe equipment to work with, and warn them of potential hazards;[15] it also controls the
details and methods of its own work, including the labor and equipment employed.[16] Thus, one who
hires an independent contractor generally expects the contractor to take into account any open and
obvious premises defects in deciding how the work should be done, what equipment to use in doing it,
and whether its workers need any warnings. Placing the duty on an independent contractor to warn its
own employees or make safe open and obvious defects ensures that the party with the duty is the one
with the ability to carry it out.
The dissent argues that it “makes no sense” to allocate duty in this manner because Moritz had no
“control over the workplace conditions.” GE may have controlled Moritz’s loading options, but not
where he chose to secure his load. Accordingly, it had a duty only to warn him of concealed defects he
might encounter in doing his own work. The absence of handrails here was clearly not a concealed
defect. If owners and occupiers have no duty to warn an independent contractor of open and obvious
defects, the defendants had no duty to warn Moritz that the ramp he had been using for more than a
year had no handrails.
IV. The Duty to Independent Contractors and Parker
The court of appeals held the defendants still owed Moritz a duty to warn or make the ramp safe
because this Court abolished all no-duty arguments in 1976 in Parker v. Highland Park.[17] But Parker
does not go that far, as we explained more than 20 years ago in Dixon v. Van Waters and Rogers.[18]
In Parker, a landlord mis-set a timing device that turned on the lights in an enclosed stairway of an
apartment building, darkening the tenants’ only way down.[19] In upholding a jury verdict in a visitor’s
favor, we “expressly abolish[ed] the so-called no-duty concept in this case” and ordered that “[t]he
reasonableness of an actor’s conduct under the circumstances will be determined under principles of
contributory negligence.”[20]
But Parker abolished a certain kind of no-duty defense, not all duty questions whatsoever. The
question in Parker was not whether the defendant owed the plaintiff a duty; the landlord unquestionably
had a duty to provide second-floor renters some way down besides jumping. The question instead, as
we explained in 1984 in Dixon, was whether the plaintiff had to prove she had no knowledge of the
stairway’s darkness as part of her case-in-chief:
The term “no-duty,” as used in Parker, referred to the oddity that had uniquely developed in Texas to
confuse negligence law. It meant that a plaintiff had the burden to negate his own knowledge and his
own appreciation of a danger. The rule that the plaintiff does not have the burden to obtain findings that
disprove his own fault does not, however, mean that a plaintiff is excused from proving the defendant
had a duty and breached it. A plaintiff does not have the burden to prove and obtain findings that he
lacked knowledge and appreciation of a danger; he must, however, prove the defendant had a duty
and breached it.[21]
Like any other negligence action, a defendant in a premises case is liable only to the extent it owes the
plaintiff a legal duty.[22] Whether such a duty exists is a question of law for the court;[23] it is not for the
jury to decide under comparative negligence or anything else. If (for example) a defendant neither owns
nor occupies the premises, a jury cannot impose a duty anyway on the theory that Parker abolished all
no-duty defenses. Every court that has analyzed Parker and Dixon together has come to this same
conclusion — including courts of appeals for the First,[24] Seventh,[25] Eighth,[26] and Fourteenth
Districts,[27] and the federal Fifth Circuit.[28]
We do not, as the overwrought dissent suggests, overrule Parker, comparative negligence, or
principles of premises liability law “that govern virtually all other jurisdictions.” We acknowledge that GE
had a duty to exercise care with respect to matters over which it exercised control, but it did not control
where or how Moritz chose to secure his load. Unlike other invitees, independent contractors are hired
for special projects that often entail special expertise,[29] and can be expected to use whatever
equipment or precautions are necessary so long as a hazard is not concealed. If Moritz wanted to use
bungee cords and lean over backwards, that was his business; but he could not require GE to keep
him safe no matter how he chose to do his own work.
Nor has it been “settled in our state for more than thirty years” that someone besides Moritz’s employer
must owe him a duty here. We expressly rejected any such duty forty years ago. Before then, we had
held in the 1920s in Galveston-Houston Elec. Ry. Co. v. Reinle that a premises owner had to warn
employees of an independent contractor of a hazard even if the employee already knew about it.[30]
But in 1967, Chief Justice Calvert writing for this Court expressly overruled that decision:
Reinle must either be followed or overruled. With due respect for the rule of stare decisis, we are
convinced that the rule of Reinle imposes an unfair and, indeed, an intolerable burden on an owner or
occupier of land who employs an independent contractor to do work or to perform services on the
premises. While an owner owes a duty to employees of an independent contractor to take reasonable
precautions to protect them from hidden dangers on the premises or to warn them thereof, an
adequate warning to or full knowledge by the independent contractor of the dangers should and will be
held to discharge the landowner's alternative duty to warn the employees.[31]
This rule, repeated frequently and as recently as 2007, has never been abrogated — impliedly or
otherwise — as the dissent asserts.
Nor is analysis of a defendant’s duty “no different” from analysis of a plaintiff’s negligence. It is true that
when a hazard is obvious, the plaintiff will usually know about it. But that does not mean the plaintiff is
negligent, as some like Ms. Parker must encounter a hazard because they have no other choice.[32]
By contrast, duty depends on a legal analysis balancing a number of factors, including the risk,
foreseeability, and likelihood of injury, and the consequences of placing the burden on the defendant.
[33] Those factors are not necessarily the same for shoppers, deliverymen, or independent contractors
who perform their own work with their own equipment in their own way. It was because of those factors
that we adopted the rule limiting landowner liability to independent contractors in 1967; the dissent
addresses none of them in urging that we change that duty today, instead simply pointing to Parker, a
case that did not involve independent contractors at all. The distinctions drawn in the law may not
always be easy, but we decline the dissent’s suggestion that we simplify them by mashing them all
together.
* * *
When a defendant hires an independent contractor to come on premises and perform work as it sees
fit, the defendant may reasonably expect the contractor to instruct its own employees on the safe
means and manner of doing so. Regardless of whether Moritz acted prudently, the defendants had no
duty to warn him that the ramp he used daily had no handrails. Accordingly, we reverse the court of
appeals’ judgment and render a take-nothing judgment in favor of the defendants.
______________________________
Scott Brister
Justice
OPINION DELIVERED: June 13, 2008
[1] See Cent. Ready Mix Concrete Co. v. Islas, 228 S.W.3d 649, 651 (Tex. 2007) (“In any event, the dangers of rolling an employee
about inside a concrete mixer are so obvious they cannot constitute a concealed hazard imposing on Central a duty to warn.”);
Wilhelm v. Flores, 195 S.W.3d 96, 98 (Tex. 2006) (“Nor would Wilhelm, as occupier of the premises where the beehives were
kept, have owed an independent contractor’s employees a duty to warn them about being stung, since that danger was
obvious.”); Shell Oil Co. v. Khan, 138 S.W.3d 288, 295 (Tex. 2004) (“With respect to existing defects, an owner or occupier has a
duty to inspect the premises and warn of concealed hazards the owner knows or should have known about . . . .”); Coastal Marine
Serv. of Tex., Inc. v. Lawrence, 988 S.W.2d 223, 225 (Tex. 1999) (“[T]he premises owner has a duty to inspect the premises and
warn the independent contractor/invitee of dangerous conditions that are not open and obvious and that the owner knows or
should have known exist.”).
[2] The other defendants were Tarrant County Limited Partnership (the owner of the warehouse) and CB Richard Ellis, Inc. (which
managed the warehouse for the owner). Moritz also sued Regal Business Center, Inc., but nonsuited it before the summary
judgments at issue here.
[3] See Khan, 138 S.W.3d at 291; Clayton W. Williams, Jr., Inc. v. Olivo, 952 S.W.2d 523, 527 (Tex. 1997); Keetch v. Kroger Co., 845
S.W.2d 262, 264 (Tex. 1992).
[4] ___ S.W.3d ___.
[5] Islas, 228 S.W.3d at 651; Fifth Club, Inc. v. Ramirez, 196 S.W.3d 788, 791 (Tex. 2006); Khan, 138 S.W.3d at 293; Coastal
Marine Serv. of Tex., 988 S.W.2d at 225; Olivo, 952 S.W.2d at 527.
[6] Khan, 138 S.W.3d at 292; accord, Dow Chem. Co. v. Bright, 89 S.W.3d 602, 607 (Tex. 2002); Lee Lewis Constr., Inc. v.
Harrison, 70 S.W.3d 778, 783 (Tex. 2001); Redinger v. Living, Inc., 689 S.W.2d 415, 418 (Tex. 1985); Restatement (Second) of
Torts § 414 (1965).
[7] Khan, 138 S.W.3d at 293; Dow Chem., 89 S.W.3d at 606; Coastal Marine, 988 S.W.2d at 226; Koch Ref. Co. v. Chapa, 11 S.W.
3d 153, 155 (Tex. 1999).
[8] 70 S.W.3d 778 (Tex. 2001).
[9] ___ S.W.3d at ___ (emphasis added).
[10] 70 S.W.3d at 783 (emphasis added) (citing Elliott-Williams Co. v. Diaz, 9 S.W.3d 801, 803 (Tex. 1999); Hoechst-Celanese
Corp. v. Mendez, 967 S.W.2d 354, 355 (Tex. 1998); Redinger, 689 S.W.2d at 418; Restatement (Second) of Torts § 414 (1965)).
[11] See Khan, 138 S.W.3d at 294 (“[I]t is not enough to show that an oil company controlled some security activities if the ones it
controlled had nothing to do with the criminal act that ultimately occurred.”).
[12] Id. at 291; Dow Chem., 89 S.W.3d at 606; Koch Ref., 11 S.W.3d at 156 n.3; Redinger, 689 S.W.2d at 417.
[13] Khan, 138 S.W.3d at 295 (emphasis added); accord, Cent. Ready Mix Concrete Co. v. Islas, 228 S.W.3d 649, 651 (Tex. 2007);
Wilhelm v. Flores, 195 S.W.3d 96, 98 (Tex. 2006); Coastal Marine Serv. of Tex., Inc. v. Lawrence, 988 S.W.2d 223, 225 (Tex. 1999);
Shell Chem. Co. v. Lamb, 493 S.W.2d 742, 746 (Tex. 1973); Bryant v. Gulf Oil Corp., 694 S.W.2d 443, 446 (Tex. App.—Amarillo
1985, writ ref’d n.r.e.).
[14] Johnson County Sheriff’s Posse, Inc. v. Endsley, 926 S.W.2d 284, 285 (Tex. 1996); Brownsville Navigation Dist. v. Izaguirre,
829 S.W.2d 159, 161 (Tex. 1992); Flynn v. Pan Am. Hotel Co., 183 S.W.2d 446, 448 (Tex. 1944); Restatement (Second) of Torts §
358 (1965).
[15] See Islas, 228 S.W.3d at 652 n.10 (noting employers’ nondelegable duties to provide safe workplace, hire competent co-
employees, and provide safety regulations); Kroger Co. v. Elwood, 197 S.W.3d 793, 794 (Tex. 2006) (noting employers’ duties to
warn employees of hazards of employment and provide needed safety equipment or assistance); Farley v. M M Cattle Co., 529 S.
W.2d 751, 754 (Tex. 1975) (“It is well established that an employer has certain nondelegable and continuous duties to his
employees. Among these are the duty to warn employees as to the hazards of their employment and to supervise their activities,
the duty to furnish a reasonably safe place in which to labor and the duty to furnish reasonably safe instrumentalities with which
employees are to work.”).
[16] Limestone Prods. Distrib., Inc. v. McNamara, 71 S.W.3d 308, 312 (Tex. 2002).
[17] 565 S.W.2d 512, 517 (Tex. 1978).
[18] 682 S.W.2d 533, 533-34 (Tex. 1984).
[19] 565 S.W.2d at 514.
[20] Id. at 517.
[21] Dixon, 682 S.W.2d at 533-34 (emphasis added) (citations omitted); cf. Adam Dante Corp. v. Sharpe, 483 S.W.2d 452, 455
(Tex. 1972) (predating Parker and requiring plaintiff “to prove that she did not possess actual knowledge of the danger, that she
did not fully appreciate the nature and extent of the danger, and that the danger complained of was not so open and obvious as to
charge her, as a matter of law, with such knowledge and appreciation”).
[22] See Lee Lewis Constr., Inc. v. Harrison, 70 S.W.3d 778, 782 (Tex. 2001) (“The plaintiff must produce evidence of a legal duty
owed by the defendant to the plaintiff, a breach of that duty, and damages proximately caused by that breach.”); Abalos v. Oil Dev.
Co. of Tex., 544 S.W.2d 627, 631 (Tex. 1976) (“[A]ny plaintiff must prove the existence and violation of a legal duty owed to him by
the defendant to establish tort liability.”).
[23] Mellon Mortgage Co. v. Holder, 5 S.W.3d 654, 663 (Tex. 1999); Timberwalk Apartments, Partners, Inc. v. Cain, 972 S.W.2d
749, 756 (Tex. 1998).
[24] Joachimi v. City of Houston, 712 S.W.2d 861, 863 n.1 (Tex. App.—Houston [1st Dist.] 1986, no pet.).
[25] Bryant v. Gulf Oil Corp., 694 S.W.2d 443, 445 (Tex. App.—Amarillo 1985, writ ref’d n.r.e.).
[26] Delgado v. Houghston, No. 08-99-00044-CV, 2000 WL 678774, at *5 n.2 (Tex. App.—El Paso May 25, 2000, no pet.).
[27] Bill’s Dollar Store, Inc. v. Bean, 77 S.W.3d 367, 370 (Tex. App.—Houston [14th Dist.] 2002, pet. denied). But cf. Wilson v.
Braeburn Presbyterian Church, 244 S.W.3d 469, 472 (Tex. App.—Houston [14 Dist.] 2007, pet. filed) (Yates, J., concurring)
(“Admittedly, it may seem awkward to require an invitor who has not made a condition safe to warn an invitee of that danger even if
the invitee is already aware. However, that result is dictated by Parker . . . .”).
[28] See Thomas v. Internorth, Inc., 790 F.2d 1253, 1256 (5th Cir. 1986).
[29] See Anchor Cas. Co. v. Hartsfield, 390 S.W.2d 469, 471 (Tex. 1965); Pitchfork Land & Cattle Co. v. King, 346 S.W.2d 598, 603
(Tex. 1961).
[30] 258 S.W. 803, 806 (Tex. 1924).
[31] Delhi-Taylor Oil Corp. v. Henry, 416 S.W.2d 390, 394 (Tex. 1967).
[32] See Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328, 336 (Tex. 1998) (“Similarly, this Court has indicated that the fact
that a danger is open and obvious (and thus need not be warned against) does not preclude a finding of product defect when a
safer, reasonable alternative design exists.”); Parker v. Highland Park, Inc., 565 S.W.2d 512, 520 (Tex. 1978).
[33] Edward D. Jones & Co. v. Fletcher, 975 S.W.2d 539, 544 (Tex. 1998).