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INDEPENDENT CONTRACTORS - WHO IS LIABLE?
Generally, an employer of an independent contractor does not owe a duty to ensure that the independent
contractor performs its work in a safe manner. Gen. Elec. Co. v. Moritz, 257 S.W.3d 211, 214 (Tex. 2008);
Redinger v. Living, Inc., 689 S.W.2d 415, 418 (Tex. 1985). However, “one who retains a right to control the
contractor's work may be held liable for negligence in exercising that right.” Moritz, 257 S.W.3d at 214; see
Redinger, 689 S.W.2d at 418 (adopting Restatement (Second) of Torts § 414 (1965)). For liability to attach, “[t]he
employee's role must be more than a general right to order the work to start or stop, to inspect progress or
receive reports.” Dow Chem. Co. v. Bright, 89 S.W.3d 602, 606 (Tex. 2002) (quoting Redinger, 689 S.W.2d at
418 (citing Restatement (Second) of Torts § 414 cmt. c)). For a duty to arise, the control must be over the
manner in which the independent contractor performs its work. Lee Lewis Constr., Inc. v. Harrison, 70 S.W.3d
778, 783 (Tex. 2001). The employer's duty “is commensurate with the general control it retains over the
independent contractor's work.” Id. Also, “[t]he supervisory control retained or exercised must relate to the activity
that actually caused the injury . . . .” Coastal Marine Serv. of Tex., Inc. v. Lawrence, 988 S.W.2d 223, 226 (Tex.
1999) (per curiam); see Moritz, 257 S.W.3d at 215 (“[I]t is not enough to show that the defendant controlled one
aspect of Moritz's activities if his injury arose from another.”); Hagins v. E-Z Mart Stores, Inc., 128 S.W.3d 383,
388-89 (Tex. App.-Texarkana 2004, no pet.) (“By broadening the issue to encompass any exercise of supervisory
control by E-Z Mart over Lance, Hagins' estate would eliminate the requirement that the retention of control relate
to the activity that actually caused the injury.”).
A party can prove a right to control in two ways: first, by evidence of a contractual agreement that explicitly
assigns the employer a right to control; and second, in the absence of a contractual agreement, by evidence that
the employer actually exercised control over the manner in which the independent contractor performed its work.
Dow Chem. Co., 89 S.W.3d at 606; Coastal Marine Serv., 988 S.W.2d at 226. If a written contract assigns the
right to control to the employer, then the plaintiff need not prove an actual exercise of control to establish a duty.
See Pollard v. Mo. Pac. R.R. Co., 759 S.W.2d 670, 670 (Tex. 1988) (per curiam). However, if the contract does
not explicitly assign control over the manner of work to the employer, then the plaintiff must present evidence of
the actual exercise of control by the employer. See Dow Chem. Co., 89 S.W.3d at 606; Hagins, 128 S.W.3d at
TEXAS SUPREME COURT CASES
ON INDEPENDENT CONTRACTORS AND EMPLOYER LIABILITY
G.E. v. Moritz, No. 04-0871 257 S.W.3d 211 (Tex. June 13, 2008)(Brister)
(premises liability, independent contractor, personal injury)
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 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)