Category Archives: Sufficiency

Not a fact issue after all

Posted on by

In JLB Builders LLC v. Hernandez, the Texas Supreme Court reversed an en banc Fifth Court opinion about a construction-site accident. The issue was the general contractor’s right of control over the workplace, and the supreme court reached these conclusions about key aspects of that issue (all emphasis added):

  • Direction. “Hernandez references his additional testimony that he had previously seen JLB supervisors talking to [the subcontractor’s] foremen and that the supervisors ‘appear[ed] to be giving instructions as to how our jobs were to be done.’ Without more, evidence of what JLB generally ‘appeared’ to be doing is no evidence that it was exercising actual control over the details of the injury-causing work.”
  • Safety requirements. “A general contractor that promulgates mandatory safety requirementsand procedures owes only a narrow duty to ensure that those requirements and procedures generally do not ‘unreasonably increase, rather than decrease, the probability and severity of injury.'”
  • Direction. “[T]here is no indication that JLB was aware that the wind posed a particular danger that day, and the testimony that JLB employees ‘could watch’ the supports being secured is not evidence that they did so or that they were aware the supports were improperly secured.”

(In my three-part system for categorizing Texas intermediate-court en banc opinions, JLB Builders would be a “successful failure,” in that it drew supreme court attention but for the purpose of reversal.)

Right of control?

Posted on by

The supreme court affirmed a plaintiff’s verdict in a workplace electrocution-injury case, holding that the jury’s verdict about the right of control was supported by sufficient evidence: “Los Compadres’s managing owner, Raul Medina, testified at his pretrial deposition that Torres was our employee,’ but at trial he said he was mistaken about that because Los Compadres had reported Torres’s compensation using 1099 forms instead of W-2 forms, which suggests he was an independent contractor. But Medina also testified that Los Compadres ‘hired’ Torres and paid him a salary to work as the project manager and supervisor—a position responsible for soliciting bids, making sure the job was run timely, making sure all materials arrived at the worksite, and confirming that the contractors completed their jobs before Los Compadres paid them. He acknowledged that Los Compadres authorized Torres to sign the project’s building permit as the ‘owner’ or ‘agent of the owner.’ And Los Compadres’s own expert witness testified, based on his review of the documents, that Torres ‘was apparently an employee of’ and ‘acting on behalf of’ Los Compadres.” No. 19-0643 (March 12, 2021).