Court of Appeals of Texas, Beaumont.

Jimmy Roy LADNER, Appellant,

v.

TEMPLE-INLAND FOREST PRODUCTS CORPORATION, Appellee.

No. 09-97-00231-CV.

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Submitted on Feb. 11, 1999.

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Delivered on April 15, 1999.

Before WALKER, C.J., and BURGESS and STOVER, JJ.

OPINION

PER CURIAM.

*1 In this premises defect case, appellant Jimmy Roy Ladner (“Ladner”) appeals a summary judgment granted in favor of appellee Temple-Inland Forest Products Corporation (“Temple-Inland”).

FACTS

Ladner, an employee of Frank’s Welding & Machine Works, Inc. (“Frank’s Welding”), was working at Temple-Inland’s premises on October 25, 1994. Frank’s Welding, a contractor for Temple-Inland, had contracted to construct a slasher deck¹ at the Temple-Inland facility in Pineland, Texas. Early that October morning, while it was still dark, Ladner’s supervisor, also an employee of Frank’s Welding, took him to the slasher deck to show him the work he was expected to do that day. While on the slasher deck, Ladner stepped into a conveyor hole, fell approximately ten to twelve feet, and sustained serious injuries. Ladner sued Temple-Inland for negligence. The trial court granted Temple-Inland’s motion for summary judgment from which he now appeals.

Raising three points of error, Ladner claims the trial court erred in granting summary judgment in favor of Temple-Inland. We review Ladner’s complaints under well-known summary judgment standards. The movant must show (1) that there are no genuine issues of material fact and (2) that he is entitled to judgment as a matter of law. Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548 (Tex.1985). Summary judgment for a defendant is proper if the defendant disproves at least one element of each of the plaintiff’s claims or establishes all elements of an affirmative defense to each claim. American Tobacco Co. v. Grinnell, 951 S.W.2d 420, 425 (Tex.1997). In determining whether there is a disputed fact issue precluding summary judgment, evidence favorable to the nonmovant will be taken as true. Id. Every reasonable inference must be indulged in favor of the nonmovant and any doubts must be resolved in his favor. Id.

In points of error one and two, Ladner contends the following:

The trial Court erred in granting Appellee’s Motion for Summary Judgment in that fact issues regarding right of control and negligence of Appellee existed.

The trial Court erred in granting Appellee’s Motion for Summary Judgment in that Appellee failed to maintain their premises in a safe manner, and failed to warn Appellant of hazardous conditions on Appellee’s property.

In his combined argument under points of error one and two, Ladner initially claims that Temple-Inland’s summary judgment motion fails to address each of the theories of liability in his first amended petition. As we appreciate Ladner’s petition, he is contending in substance that Temple-Inland was negligent in two main areas. First, because Temple-Inland maintained a right of control over the contractors’ activities on Temple-Inland’s premises, Temple-Inland had a duty toward the contractor employees to properly exercise that control. In various ways, Ladner claims Temple-Inland breached that duty. Second, he contends a defect existed on the premises at the time of the accident and Temple-Inland was either aware or should have been aware of its existence. After reviewing Temple-Inland’s summary judgment motion, we conclude the motion contained grounds and evidence addressing every theory of liability raised by Ladner. According to Temple-Inland, by virtue of the contract between Temple-Inland and Frank’s Welding, as well as the conduct of the job itself, Temple-Inland did not control the manner and method of the contractor’s work, and thus had no duty to “protect [Ladner] from his own negligence, or the negligence of his employer.”

*2 In a recent case, the Texas Supreme Court once again set out the duties of premises owners and contractors in the premises liability context.

A premises owner may be directly liable to an independent contractor’s employees under two general theories of premises liability: (1) negligence arising from an activity on the premises; and (2) negligence arising from a premises defect. Under either theory, proof of the premises owner’s right to control is an explicit requirement. Under the premises defect theory there are two subcategories: (1) defects existing on the premises when the independent contractor/invitee entered; and (2) defects the independent contractor created by its work activity.

Under the first subcategory, the 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. As we explained in Shell Chemical Company v. Lamb,[493 S.W.2d 742, 746-47 (Tex.1973) ] premises defects of this type are ones “in which the danger did not arise through the work activity of the subcontractor/invitee.” Only concealed hazards-dangerous in their own right and independent of action by another-that are in existence when the independent contractor enters the premises fall in this first subcategory of premises defects….

Under the second subcategory-when the dangerous condition arises as a result of the independent contractor’s work activity-the premises owner normally owes no duty to the independent contractor’s employees because an owner generally has no duty to ensure that an independent contractor performs its work in a safe manner. However, a premises owner may be liable when the owner retains the right of supervisory control over work on the premises. In determining whether an owner has retained this right to control, the standard is narrow. The right to control must be more than a general right to order work to stop and start, or to inspect progress. The supervisory control must relate to the activity that actually caused the injury, and grant the owner at least the power to direct the order in which work is to be done or the power to forbid it being done in an unsafe manner.

Coastal Marine Serv. of Tex. Inc. v. Lawrence, No. 98-0287, slip op. at 3-4, 1999 WL 54546, at *1-2 (Tex. Feb. 4, 1999) (not yet reported) (footnotes omitted).

The instant case is a premises defect case, not one based on a negligent activity claim. Rather than claiming he was injured as a contemporaneous result of an activity itself, Ladner instead alleges he was injured when he fell in a hole on the slasher deck in an area where there were no barricades and where the lighting was inadequate. See Clayton W. Williams, Jr., Inc. v. Olivo, 952 S.W.2d 523, 527 (Tex.1997); Keetch v. Kroger, 845 S.W.2d 262, 264 (Tex.1992).

*3 On appeal, Ladner alleges Temple-Inland failed to “properly exercise its right of control to supervise the work in a safe manner and to prevent the incident” from happening. He bases his contention of improper exercise of control on the existence of a Contractor’s Safety Handbook promulgated by Temple-Inland. Prior to the commencement of a contractor’s work at the plant, Temple-Inland personnel and the contractor reviewed the contents of the safety manual. Furthermore, each contractor signed a document acknowledging that all contractor employees were required to abide by the plant’s safety rules. According to appellant, the safety manual contains “very extensive and specific methods of work which the contractor employee must follow.”

Ladner specifically directs us to those safety requirements in the manual which he claims Frank’s Welding failed to implement on the slasher deck. Although the manual required a welding permit for “hot” areas, he alleges Frank’s Welding did not obtain one and, thus, violated Temple-Inland’s safety requirements.² According to Ladner, Temple-Inland retained a right of control, because the safety manual made clear the manner in which the contractor’s work must be done. He concludes the safety manual, along with the document signed by each contractor acknowledging he had reviewed the manual, raises a fact issue concerning the right of control and any duty Temple-Inland might have had to insure the work was being done in a safe manner. We disagree.

Temple-Inland attached to its motion for summary judgment the contract between itself and Frank’s Welding. The contract provided as follows:

6. Independent Contractor Status. Contractor’s relationship to [Temple-Inland] under this Contract shall be that of an independent contractor. Contractor shall have sole control over the method and manner of performing the work under this Contract. Contractor shall not be deemed to be or hold itself to be the agent or employee of [Temple-Inland] for any purpose.

….

10. Compliance with Codes and Law. (a) Contractor shall comply with all applicable codes and industry standards and with all applicable federal, state and local laws, rules and regulations, including but not limited to, the requirements of the Federal Occupational Safety and Health Act, the Federal Fair Labor Standards Act of 1938, as amended, the Immigration Reform and Control Act of 1986 and the state workers’ compensation laws of any and all states in which the work is performed.

Temple-Inland also attached as summary judgment evidence the affidavit of Jim Cumbie, an employee of Temple-Inland in the Human Resources Department. Cumbie stated:

The area in question was at all times under the exclusive control of Frank’s Welding & Machine Works, Inc … At no time did any employee of [Temple-Inland] have any control over this area, nor did any employee of [Temple-Inland] engage in designing or constructing the slasher deck in question. Likewise, [Temple-Inland] had no control over the amount or type of lighting present on the deck. At all times this area was under the exclusive control of Frank’s Welding & Machine Works, Inc. pursuant to an agreement between [Temple-Inland] and Frank’s Welding & Machine Works, Inc.”

*4 Both the contract and Cumbie’s affidavit state that Frank’s Welding had exclusive control of the work site.

In Hoechst-Celanese Corp. v. Mendez, 967 S.W.2d 354, 356 (Tex.1998), the contractor employee made a contention similar to that of Ladner.

Mendez argues that through its safety regulations, Celanese retained enough control over the manner and means by which [the contractor] employees performed their maintenance services to incur a duty to use reasonable care under section 414 of the Restatement. Mendez’s argument implies, more specifically, that by promulgating safety procedures that prevented him from using an A-frame ladder as a lean-to ladder, Celanese owed him a duty to issue safety procedures or exercise sufficient supervisory control to prevent him from using the toolbox as a ladder.

Id. at 356. According to Mendez, “[a] better view, more consistent with the Restatement and [the Texas Supreme Court’s] precedents, is that safety requirements give rise to a narrow duty of care.”

‘For the general contractor [or premises owner] to be liable for negligence, its supervisory control must relate to the condition or activity that caused the injury.’ This emphasis on the nexus between an employer’s retained supervisory control and the condition or activity that caused the injury suggests that while Celanese may indeed have had a duty of care under section 414, the scope of Celanese’s duty toward [the contractor] employees was limited to the scope of its retained supervisory control.

Under this view, an employer who is aware that its contractor routinely ignores applicable federal guidelines and standard company policies related to safety may owe a duty to require corrective measures to be taken or to cancel the contract. Also, an employer who gives on-site orders or provides detailed instructions on the means or methods to carry out a work order owes the independent contractor employee a duty of reasonable care to protect him from work-related hazards … In sum, the employer’s duty of care is commensurate with the control it retains over the contractor’s work.

Id. at 357 (quoting Olivo, 952 S.W.2d at 528) (citations omitted).

Applying this same analysis, we conclude that Temple-Inland’s promulgation of safety rules, along with its insistence that contractors follow those rules, federal laws, general safety guidelines, and other standard safety precautions, does not impose an unqualified duty of care on Temple-Inland to ensure that Frank’s Welding and its employees did nothing unsafe. The evidence does not show any supervisory control related to the condition or activity that caused the injury. Furthermore, there is no evidence Temple-Inland was aware that its contractor routinely ignored applicable safety guidelines and standard company policies related to safety. Thus, under the facts of this case, the existence of the safety manual does not raise a fact issue concerning right of control.

*5 On appeal, Ladner also contends that Temple-Inland failed to maintain its premises in a safe manner and failed to warn him of hazardous conditions on its property. Claiming “the outside of the premises where [Ladner] was working was not lit,” Ladner specifically points to inadequate lighting as one of the causes of his injury. According to Ladner, the only light came from the processing plant itself; there were no lights on the new construction, which contained numerous holes and openings. Cumbie, the Temple-Inland employee, likewise testified there was no special lighting for the new construction; the lighting was by regular street lights. The only lights were those from a distance that cast shadows across the slasher deck.

Q. Okay. Now, tell me what happened.

A. It was before daylight, and there wasn’t any light on-on the particular job. There was lights off at distance and around. And Sam told me to come up with him to go up and we-to show me some welding to do. So, I followed him up the stairs and up across the deck over to the slasher deck and he was-he got down on his knees and was pointing down, pointing toward the welding to be done. As I started walking over to him, I walked in a hole on the slasher deck.

….

Q. Now, you said not many lights on. Were there lights on there on the new construction?

A. No, sir.

….

Q. Well, was it so dark you couldn’t see?

A. I couldn’t-I couldn’t see very well. I could see the lights off in the distance shining on the-or around; but in the shadows and stuff, I couldn’t see.

….

A. I couldn’t see [the hole] in the shadows. Them lights at a distance shining across there and leaving shadows in the dark places, I couldn’t see them.

The summary judgment evidence establishes that the contractor created the hole in the process of constructing the slasher deck. Pursuant to the contract between Temple-Inland and Frank’s Welding, the contractor had the sole control of the manner and method of the work on the job site, including the hole and the area surrounding it. Such control includes decisions about the lighting. The fact that Frank’s Welding did not provide lighting on the job site does not impute a duty to Temple-Inland to do so. There is nothing in Frank’s contract with Temple-Inland which requires Temple to provide lighting; neither is there any reference in the Safety Handbook to lighting. The contract provides that Frank’s Welding controls the manner and method of the work; that control includes a determination of the proper amount and placement of lighting.

Ladner not only claims the lighting was inadequate, but he also claims Temple-Inland had notice of the inadequate lighting for the following reasons: Temple-Inland employees worked at the old slasher deck alongside the new construction; Temple-Inland supervisors began training Temple-Inland employees on the new slasher deck prior to the completion of the project; and Temple-Inland employees would from time to time confer with Frank’s Welding supervisors at the job site. However, the fact that Temple-Inland employees worked in an area of the plant in close proximity to the new slasher deck does not raise a fact issue regarding Temple-Inland’s right of control over the independent contractor and its employees on the project. Neither does the training of Temple-Inland employees on the slasher deck or a conference from time to time between Temple-Inland employees and Frank’s Welding supervisors. Moreover, Ladner’s statement in his affidavit that he would have followed any instructions that Temple-Inland employees gave him concerning his job, likewise, does not raise a fact issue regarding control. Under Coastal Marine Serv. of Tex., Inc., the mere possibility of control is “not evidence of a ‘right to control’ actually retained or exercised.” Id. at 1999 WL 54546 at *2. Such testimony does not indicate Temple-Inland gave any on-site instructions or provided detailed instructions on the means or methods to carry out a work order. See Mendez, 967 S.W.2d at 357. There is nothing in this testimony that indicates any supervisory control by Temple-Inland related to the condition or activity that caused the injury. Id.; see also Olivo, 952 S.W.2d at 528. Because we conclude Ladner has not raised a fact issue regarding control, we overrule appellant’s points of error one and two.

*6 In point of error three, Ladner contends Temple-Inland’s summary judgment evidence was “incompetent and insufficient” because it is contradictory.³ In support of his argument on his last point of error, Ladner directs us to Cumbie’s affidavit, which states the slasher deck was designed and constructed by employees of Frank’s Welding. The statement, according to Ladner, is untrue and contradicts the language in the contract between Temple-Inland and Frank’s Welding, which states the contractor is “to furnish labor, materials, services and equipment necessary for the complete execution of all work in strict accordance with the drawings and specifications as submitted by Mid-South Engineering Co.” In deposition excerpts attached to Ladner’s response to the motion for summary judgment, Cumbie states that Mid-South Engineering did the design, and Frank’s Welding completed the project. Although there is not a contradiction within Cumbie’s affidavit itself, clearly, there is a contradiction between his affidavit and his deposition on the question of who designed the slasher deck. The contradiction, however, does not pertain to the grounds contained in the motion for summary judgment; those grounds deal with control of the construction of the slasher deck project, rather than its design.⁴ The contradiction at issue does not go to any material fact in the case. Although Ladner claims there is also a contradiction in Cumbie’s statements concerning the lighting, we find none. Consequently, we overrule point of error three and affirm the trial court’s judgment.

AFFIRMED.

	Footnotes
1		According to James Cumbie, an employee of Temple-Inland, a slasher deck is the “deck that conveys the logs from the log deck of the stud mill into the main part of the mill where the logs are actually cut to size.”
2		We note the manual requires the welding permit for “hot work in most areas”; however, there is no evidence in the record defining “hot work” or “most areas,” and, therefore, no evidence in the record that the requirements were violated in this specific instance.
3		Temple-Inland did not reply to appellant’s point of error three.
4		Ladner also contends a material fact issue regarding negligent design is raised by Cumbie’s statement that he had no personal knowledge of whether or not any Temple-Inland engineers had any input or part in putting together the specifications or plans for the slasher deck. Since Ladner never pleaded defective design, we do not consider any issue regarding it on appeal.