When an employee of a contractor was injured on a job site, he sued the owner on the theory that by employing a safety employee for the job site the owner had assumed control and responsibility for the site. The plaintiff, worker, testified that before he was injured while moving pipe, he had questioned his supervisor about the safety of moving the pipe in the manner intended. This conversation took place within ear shot of the owner’s safety employee, and on this basis the plaintiff argued that the owner should have ordered the pipe to be move in a safe manner.

The Supreme Court of Texas held that merely employing a safety person at the jobsite of an independent contractor does not render the owner liable under the “retained control” doctrine. That doctrine would only apply, says the court, if the “contractor is controlled as to his methods of work, or as to the operative details. There must be such a retention of a right of supervision that the contractor is not entirely free to do the work in his own way.” In this case, since the contractor was free to perform its work any way it wished, the court concluded the owner had not retained control. Moreover, even if the owner’s employee had instructed the contractor to perform its work in a safe manner, this alone would not create a duty to intervene to ensure that the contractor safely performed its work. Koch Refining Co. v. Chapa, No. 99-0228, 199 Tex. LEXIS 130 (Tex. Dec 16, 1999).

About the author: Article written by J. Kent Holland, Jr.,  a construction lawyer located in Tysons Corner, Virginia,  with a national practice (formerly with Wickwire Gavin, P.C. and now with Construction Risk Counsel, PLLC) representing design professionals, contractors and project owners.  He is founder and president of a consulting firm, ConstructionRisk, LLC, providing consulting services to owners, design professionals, contractors and attorneys on construction projects.  He is publisher of ConstructionRisk.com Report and may be reached at Kent@ConstructionRisk.com or by calling 703-623-1932.  This article is published in ConstructionRisk.com Report, Vol. 1, No. 5 (May 2000).

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