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LEGAL TRENDS High Court Rejects Contractor’s Suit Over Open and Obvious Dangers By Tracy Penn In affirming a summary judgment, a divided Texas Supreme Court held that property owners are not liable to injured contractors who control their own work and whose injuries were caused by open and obvious dangers or defects. General Electric v. Moritz, __ S.W. 3d--__, No. 04-0871 (Tex. June 13, 2008). In this case, the plaintiff, an independent contractor named Arthur Lee Moritz, drove a truck delivering parts for GE. On the day he was injured he drove his truck to GE’s premises and found his usual parking spot unavailable because GE employees blocked it with supplies. Therefore, he parked on a ramp with no safety rails. As part of his routine, Moritz secured his load with a bungee cord. Unfortunately, this time he fell off the ramp, injuring himself. He then sued GE claiming that he would not have been injured if (1) GE had not blocked his usual parking spot or (2) had placed a railing on the ramp. GE filed a motion for summary judgment arguing that it did not owe a duty to protect Moritz from an open and obvious danger. The trial court agreed with GE, but the Fort Worth Court of Appeals reversed, holding that this case presented fact questions as to GE’s liability. Generally, a premise owner is not liable for injuries sustained by an independent contractor unless the owner retains control over the contractor’s work. Here, Moritz argued to the Court that GE retained control over his work by blocking his usual loading location and forcing him to load his truck on the unsafe ramp. In reversing the trial court’s decision, the Fort Worth Court of Appeals held that a fact question was created if GE retained the right to control any aspect of Moritz’s activities – something for a jury to decide. The Texas Supreme Court disagreed. It stated that a premises owner’s duty to an independent is commensurate with the degree of control it retained over the contractor’s work. In other words, GE’s control of only one aspect of Moritz’s work (where he parked his truck) only created a duty toward that aspect and not other aspects that it did not control. The Court noted that Moritz was injured while securing his load, an activity over which GE had no control. It reasoned that “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.” Likewise, Moritz argued that the absence of safety rails on the ramp was a premise defect for which GE was liable, and that his knowledge about that defect, nonetheless, still created a factor issue that should have defeated summary judgment. He claimed that the fact that a defect is obvious should not absolve a premises owner of its duty to warn contractors, such as him, about the danger. The Texas Supreme Court, however, held that in order for premises owners to be liable for a defect (like the missing safety rail) they must not only know about the defect but the defect must also be hidden, thus, giving rise to a duty to warn. Here, the court stated that the defect was open and obvious to Mr. Moritz and that he had been working around the defective ramp for over a year. The court maintained that because the hazard was open and obvious there was no fact issue. Moreover, the Court held that in this case, GE did not have a duty to warn Moritz of the missing safety rail because it was an open and obvious danger that he had been working around for over one year. It should be noted however that three of the eight justices argued that the majority was resurrecting the “no duty” rule, which had long been rejected. They believed that the fact that a premises defect is open and obvious does not relieve the owner of his duty. Instead it is simply a factor for the jury to consider when proportioning negligence. The take away lesson from this case is that responsibility around open and obvious dangers ultimately falls on the shoulders of the person who undertakes to do the work. Tracy Penn is an environmental litigation associate in the law firm of Gardere Wynne Sewell LLP. |
