Court of Appeals of Texas, Dallas.
CHRISTINA C. TORRES, INDIVIDUALLY AND AS NEXT FRIEND OF L.N.T., A MINOR AND AS REPRESENTATIVE OF THE HEIRS AND ESTATE OF JON PAUL TORRES, DECEASED, AND JENNIFER P. NAVARRETE, AS NEXT FRIEND OF J.A.N., A MINOR, AND DONNA R. ADAIR, Appellants
v.
TEN HAGEN EXCAVATING, INC. AND FAIRVIEW CONSTRUCTION, L.L.C., Appellees
No. 05-24-00827-CV
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Opinion Filed March 6, 2026
On Appeal from the 14th Judicial District Court
Dallas County, Texas
Trial Court Cause No. DC-21-13523
Before Justices Garcia, Jackson, and Lee
Opinion by Justice Jackson
MEMORANDUM OPINION
EARL N. JACKSON JUSTICE
*1 The Torres Family appeals the trial court’s summary judgments in favor of Fairview Construction, L.L.C. and Ten Hagen Excavating, Inc. contending there were genuine issues of material fact as to their claims for negligence and gross negligence against Fairview and their claim for gross negligence against Ten Hagen. For the reasons that follow, we affirm.1
Background
John Paul Torres was employed by Ten Hagen as a construction laborer. On September 27, 2019, Torres was directing tractor-trailer trucks that were entering and exiting a construction site in Parker County, Texas. One of the trucks that entered the site was a Lobo Transportation truck driven by Roberto Perez.
A witness to the accident stated that Perez pulled his truck up to where Torres was standing so that Torres could sign his delivery ticket. Perez then drove forward and dumped the load from the trailer. When Perez turned the truck to leave, the cab of the truck went around Torres, but the rear trailer tires hit Torres, knocking him to the ground and running over him. Torres was severely injured and died a short time later.
The Torres Family sued multiple defendants including Ten Hagen and Fairview. Fairview was the general contractor for the construction project. Ten Hagen was one of Fairview’s subcontractors. The live pleading at the time of the summary judgments asserted claims for negligence and gross negligence against Fairview and a claim for gross negligence against Ten Hagen.2
Fairview moved for a traditional summary judgment asserting it owed no duty to Torres as a matter of law. Fairview argued Ten Hagen was an independent subcontractor over which it had no control and, therefore, Fairview had no duty to ensure Ten Hagen’s employees performed their job duties safely. Fairview additionally argued the Torres Family could not show that any act or omission by Fairview was a proximate cause of Torres’s death. In support of the motion, Fairview submitted (1) the affidavit of its owner, Scott Cunningham, (2) the subcontract agreement between Fairview and Ten Hagen, and (3) Ten Hagen’s responses to Fairview’s requests for admission. The Torres Family responded that Fairview offered no conclusive proof it exercised no control over Ten Hagen.
Ten Hagen moved for both a traditional and no-evidence summary judgment on the gross negligence claim against it.3 In its motion for a no-evidence summary judgment, Ten Hagen contended the Torres Family had no evidence that (1) Ten Hagen’s conduct created an extreme risk of injury, or (2) Ten Hagen had actual, subjective knowledge of the extreme risk, but proceeded with conscious indifference to the rights and safety of others. The Torres Family responded that a report issued by the Occupational Safety and Health Administration concerning Torres’s death was prima facie evidence of gross negligence on the part of Ten Hagen.
*2 Both Fairview and Ten Hagen objected to portions of the summary judgment evidence submitted by the Torres Family, including the OSHA report. The record contains no ruling on these evidentiary objections. Following a hearing, the trial court granted both Fairview’s and Ten Hagen’s motions for summary judgment in their entirety. This appeal followed.
Analysis
I. Standard of Review
We review a trial court’s granting of a summary judgment motion de novo. Buck v. Palmer, 381 S.W.3d 525, 527 (Tex. 2012). When the trial court does not specify the grounds for its ruling, we must affirm if any of the grounds in the motion is meritorious. Merriman v. XTO Energy, Inc., 407 S.W.3d 244, 248 (Tex. 2013). The movant for a traditional summary judgment bears the burden of showing no genuine issue of material fact exists and it is entitled to judgment as a matter of law. Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). When a motion is presented under Rule 166a(i) asserting there is no evidence of one or more of the essential elements of the nonmovant’s claim upon which the nonmovant would have the burden of proof at trial, the burden is on the nonmovant to present enough evidence to raise a genuine issue of material fact entitling them to a trial. Jinright v. N. Tex. Mun. Water Dist., No. 05-21-00027-CV, 2022 WL 2302167, at *4 (Tex. App.—Dallas June 27, 2022, no pet.) (mem. op.). We review the evidence presented in the motion and response in the light most favorable to the party against whom summary judgment was rendered. Fielding, 289 S.W.3d at 848; B.C. v. Steak N Shake Operations, Inc., No. 05-14-00649-CV, 2020 WL 4435305, at *2 (Tex. App.—Dallas Aug. 3, 2020, no pet.) (mem. op.).
II. Fairview
In their first issue, the Torres Family contends Fairview failed to conclusively show it did not have actual or contractual control over Ten Hagen and Torres’s work. Ordinarily, a general contractor such as Fairview does not owe a duty to ensure that its independent subcontractors perform their work in a safe manner. Lee Lewis Constr., Inc. v. Harrison, 70 S.W.3d 778, 783 (Tex. 2001). A duty may arise, however, if the general contractor retains some control over the manner in which the subcontractor performs its work. Id. The general contractor’s duty of care is commensurate with the control it retains. Id. Retention of control may be shown in two ways: by contract or by actual exercise of control. Id. The determination of contractual control is an issue of law, while the determination of whether a party has exercised actual control is generally a question of fact. Id.
A. Contractual Control
Our primary objective in construing a contract is to give effect to the parties’ intent. Pathfinder Oil & Gas, Inc. v. Great W. Drilling, Ltd., 574 S.W.3d 882, 888 (Tex. 2019); Torres v. Pasadena Refin. Sys., Inc., 695 S.W.3d 392, 406 (Tex. App.—Houston [1st Dist.] 2022, no pet.). We look to the contract’s plain language and presume the parties intended what the words of their contract say. Pathfinder, 574 S.W.3d at 888. We consider the entire writing in an effort to harmonize and give effect to all its provisions so that none will be rendered meaningless. Id. at 889.
In support of its motion for traditional summary judgment, Fairview submitted the subcontract between it and Ten Hagen. The subcontract included the following provision:
*3 It is expressly understood that [Ten Hagen] shall be an independent contractor and shall assume all of the rights, obligations, and liabilities applicable to it as an independent contractor. Any provision in this Subcontract which may appear to give [Fairview] the right to direct [Ten Hagen] as to the details of doing the work or to exercise any measure of control over the work shall mean [Fairview] is exercising such control only to see that the work is being performed and results accomplished according to the terms of this Subcontract and according to the terms of the Contract Documents.
In Dow Chemical Co. v. Bright, 89 S.W.3d 602, 606-07 (Tex. 2002) the Texas Supreme Court addressed a substantively identical provision. The court held that, based on the above language, any provisions in the subcontract that could be read to grant the contractor a right to control the means, methods, or details of the subcontractor’s work must be deemed to mean that the subcontractor “would follow the [contractor’s] desires in the results of the work only.” Id. at 607. Because the subcontract granted the general contractor only supervisory control, the court concluded the contract imposed no duty on the general contractor with respect to the safety of its subcontractor’s employees. Id.; see also Victoria Elec. Co-op., Inc. v. Williams, 100 S.W.3d 323, 329 (Tex. App.—San Antonio 2002, pet. denied).
The Torres Family relies on the following provision in the subcontract to support its argument that Fairview retained contractual control over the operative details of Ten Hagen’s work:
Should [Ten Hagen] at any time refuse or neglect to supply a sufficient number of properly qualified workers or a sufficient quantity of materials of sufficient quality, or abandon the work or fail in any respect to prosecute the work covered by this Subcontract with promptness and diligence or fails in performance of any agreement herein contained … [Fairview] may, at its option, after twenty-four (24) hours’ written notice to [Ten Hagen], provide any such labor and materials and deduct the cost thereof from any money then due or thereafter to become due to [Ten Hagen] under this Subcontract and otherwise; or [Fairview] may, at its sole option after twenty-four (24) hours’ notice, terminate this Subcontract.
This provision is preceded by a provision that states:
[Ten Hagen] shall at all times supply adequate tools, appliances, and equipment, a sufficient number of properly qualified works, and a sufficient amount of materials and supplies of sufficient quality in accordance with Contract Documents to prosecute said work efficiently and promptly ….
Read in context, the provision relied upon by the Torres Family does not grant Fairview the right to control the operative details of the work, but only the right any general contractor has to ensure the work is performed in accordance with contract specifications. See Victoria Elec., 100 S.W.3d at 329. It is a contractually agreed remedy for breach rather than a grant of control.4 Cf. CTO, Inc. v. James Letos Co., No. 14-94-00677-CV, 1996 WL 384935, at *4 (Tex. App.—Houston [14th Dist.] July 11, 1996, no writ) (not designated for publication) (evidence that subcontractor did not employ sufficient number of workers supported finding that subcontractor failed to substantially perform under the contract).
*4 The Torres Family next points to various provisions of the master contract between Fairview and the site owner, Como Parker Estates, LLC, which were incorporated into the subcontract by reference:
§ 3.3.1 – The Contractor shall supervise and direct the work, using the Contractor’s best skill and attention. The Contractor shall be solely responsible for, and have control over, construction means, methods, techniques, sequences, and procedures, and for coordinating for all portions of the Work under the Contract.”
§ 3.4.3 – The Contractor shall enforce strict discipline and good order among the Contractor’s’ employees and other persons carrying out the Work. The Contractor shall not permit employment of unfit persons or persons not properly skilled in tasks assigned to them.
§ 10.1 – Safety Precautions and Programs. The Contractor shall be responsible for initiating, maintaining, and supervising all safety precautions and programs in connection with the performance of the Contract.
§ 10.2.1 – The Contractor shall take reasonable precautions for the safety of, and shall provide reasonable protection to prevent damage, injury, or loss to employees on the Work and other persons who may be affected thereby ….
However, the master contract also contains the following provision which directs Fairview to assign these responsibilities to its subcontractors:
§ 5.3 – Subcontractual Relations. By appropriate written agreement, the Contractor shall require each Subcontractor, to the extent of the Work to be performed by the Subcontractor, to be bound to the Contractor by terms of the Contract Document, and to assume toward the Contractor all the obligations and responsibilities, including the responsibility for safety of the subcontractor’s Work that the Contractor, by these Contract Documents, assumes toward the Owner and Architect.
Fairview made the required assignments in the first provision discussed above and with the following language in the subcontract:
[Ten Hagen] shall, at its own expense, conform to the safety policy of [Fairview], and comply with all specific safety requirements promulgated by any government authority, without limitation, the requirements of the Occupational Safety and Health Act of 1970 and the Construction Safety act of 1969 and all standards and regulations which have been and shall be promulgated by the agencies which administer such acts. [Ten Hagen] shall have and exercise full responsibility for compliance hereunder by its agents, employees, materialmen and subcontractors generally and in particular, which respect to its portion of the work on this project, shall itself comply with said requirements, standards and regulations[.]
These provisions modify the provisions in the master contract relied on by the Torres Family and assign Fairview’s obligations and responsibilities with respect to the work being performed by Ten Hagen to Ten Hagen. See Saenz v. David & David Constr. Co., 52 S.W.3d 807, 813 (Tex. App.—San Antonio 2001, pet. denied); see also Ayela v. Ledezma, No. 3:13-CV-703-O, 2014 WL 11456583, at *3 (N.D. Tex. Apr. 10, 2014).
The Torres Family contends “[t]here is no evidence that Como or the Decedent ever agreed that Fairview would be relieved of any responsibility.” But, pursuant to the master contract, Como required Fairview to assign the responsibilities the Torres Family relies upon to its subcontractors. The Torres Family cites no authority for the proposition that Torres, who is not a party to either contract, must assent to the assignment. We conclude Fairview did not retain sufficient contractual control over Ten Hagen’s work to create a duty owed to Torres. See Elliott-Williams Co., Inc. v. Diaz, 9 S.W.3d 801, 804 (Tex. 1999).
B. Actual Control
*5 In support of its argument that it had no actual control over Ten Hagen’s work, Fairview submitted the affidavit of its owner, Scott Cunningham, and Ten Hagen’s responses to Fairview’s requests for admission. Cunningham testified that Fairview “had no presence” at the construction site as of the date of the accident, and no Fairview employees were onsite at the time. Cunningham further testified the work Ten Hagen was performing that day was within the scope of the subcontract and “Fairview had no involvement in the means, methods, or details of Ten Hagen’s work nor its employees’ work on the Project.” The Torres Family argues that Cunningham’s testimony is conclusory.
“A conclusory statement is one that does not provide the underlying facts to support the conclusion. Bastida v. Aznaran, 444 S.W.3d 98, 105 (Tex. App.—Dallas 2014, no pet.). Conclusory statements in affidavits are not competent summary judgment evidence because they are not credible or susceptible to being readily controverted. Id. Here, Cunningham’s testimony provided concrete factual content by negating specific conduct. Because Fairview was not onsite or involved in the means, methods, or details of Ten Hagen’s work, it could not have controlled the work. This testimony could have been easily controverted by evidence that Fairview directed any portion of the work related to the accident, but the Torres Family produced no such evidence.
In addition to Cunningham’s testimony, Fairview submitted Ten Hagen’s discovery responses in which it admitted “Fairview did not retain actual control over the means and methods of Ten Hagen’s work.” In its summary judgment response, the Torres Family argued the admission was hearsay and “improper evidence.” On appeal, the Torres Family argues only that the admission was Ten Hagen’s and not theirs. Although the admission may not be binding on the Torres Family, they cite no authority for the proposition that it is not proper summary judgment evidence. See Arana v. Figueroa, 559 S.W.3d 623, 633 (Tex. App.—Dallas 2018, no pet.) (admissions of fact on file at time of summary judgment hearing are proper summary judgment proof).
Based on the foregoing, we conclude the trial court did not err in concluding Fairview had no contractual or actual control over Ten Hagen’s work and, therefore, owed no duty to Torres as a matter of law. We overrule the Torres Family’s first issue.
III. Ten Hagen
In their second issue, the Torres Family contends the trial court erred in granting Ten Hagen’s no-evidence motion for summary judgment because there were genuine issues of material fact as to whether Ten Hagen was grossly negligent. To show gross negligence a plaintiff must prove by clear and convincing evidence that (1) when viewed objectively from defendant’s standpoint at the time of the event, the act or omission involved an extreme degree of risk, considering the probability and magnitude of the potential harm to others and (2) the defendant had actual, subjective awareness of the risk involved, but nevertheless proceeded with conscious indifference to the rights, safety, or welfare of others. U-Haul Int’l., Inc. v. Waldrip, 380 S.W.3d 118, 137 (Tex. 2012). An “extreme risk” is not a remote possibility or even a high probability of minor harm, but rather a likelihood of serious injury. Id. “An act or omission that is merely thoughtless, careless, or not inordinately risky cannot be grossly negligent.” Transportation. Ins. Co. v. Moriel, 879 S.W.2d 10, 22 (Tex. 1994). The Torres Family was required to provide evidence showing that Ten Hagen knew of an extreme risk and its acts or omissions demonstrated indifference to the consequences of its conduct. U-Haul, 380 S.W.3d at 137. The risk must be examined prospectively from the perspective of the actor and not in hindsight. Medina v. Zuniga, 593 S.W.3d 238, 248 (Tex. 2019).
*6 As evidence of Ten Hagen’s gross negligence the Torres Family relies solely on the OSHA report. In the section of the report entitled “Employer Knowledge” the report states the following:
The employer was contracted by Fairview Construction to perform site preparation for a commercial building. Mr. Scott Ten Hagen was aware he would assign employees to direct traffic of incoming vehicles, clear the area and level the ground, where other construction activities would be underway, thus exposing his employees to vehicular traffic. The employer had purchased and had required employees to use reflective vest[s] on previous work performed while on an airport project.
The superintendent and the lead operator supervise the job site daily. The superintendent and the lead operator work with their crews and are onsite throughout the work shift. David Dominguez, the lead operator, was onsite the day of the accident directing the work of his crew. Mr. Dominguez was aware that the employees were not wearing high visibility garments as he himself was not wearing one (1) and employees not wearing them were in plain sight. The police report provided stated that, “None of the employees were wearing high visibility vest[s].”
Mr. Dominguez and Mr. Ten Hagen stated that, “They knew the deceased had not been trained on traffic control practices.” Mr. Ten Hagen stated that, “After the incident he held a companywide safety meeting requiring all employees to wear hard hats, safety glasses, and high-visibility vest[s].” Mr. Ten Hagen stated that, “They were also going to discuss traffic control procedures.”
Mr. Ten Hagen admitted that, “He believes that because this project was out in the middle of nowhere that maybe his management slacked on the safety requirements.” The deceased was only provided a copy of the safety program that did not address specific traffic control procedures.
Company provided information: Safety Rules and Regulations While under employment at Ten Hagen Excavating, Inc. Please read and adhere to these rules and regulations.
Extreme caution shall be exercised when backing a vehicle to avoid injury to persons and damage to property. Do not back up unless you are flagged properly by some other person.
Mr. Scott Ten Hagen provided this document; owner and president of Ten Hagen Excavating, Inc. Mr. Ten Hagen stated he was familiar with the flagging requirements.
(Italics in original). Based on this evidence the Torres Family argues “there is a genuine issue of material fact that the gross negligence surrounding the lack of safety clothing and training was a proximate cause of [Torres’s] injuries and death.”
Ten Hagen objected to the admissibility of the OSHA report and argues extensively on appeal that the report is not proper summary judgment evidence. The company additionally argues there is no evidence to show Dominguez had sufficient authority at Ten Hagen that his negligence, if any, could be attributed to the company. We conclude we need not address these arguments because nothing in the OSHA report shows that either Scott Ten Hagen or Dominguez had any awareness that the absence of safety vests or training on traffic control procedures created an extreme degree of risk that they consciously chose to disregard.
*7 The Torres Family points to the fact that Ten Hagen required its employees to wear safety vests while working on a previous project as demonstrating the company’s risk awareness. But evidence that Ten Hagen required safety vests on a separate project is no evidence the company knew the absence of vests while working on the project at issue posed an extreme degree of risk. Indeed, the evidence shows Dominguez himself was not wearing a vest while working at the site. Nothing in the OSHA report indicates Torres’s visibility was a factor in the accident. All the evidence shows that Perez steered the cab of the truck around Torres and Torres was struck by the rear trailer.
The Torres Family also points to the statement in the report that Ten Hagen knew Torres had not been trained on traffic control practices. But the Torres Family presented no evidence as to what those practices were, whether they would have prevented the accident, or that Ten Hagen knew the absence of traffic control training created an extreme risk of injury. The report indicates Ten Hagen provided Torres with a copy of its safety program and requested him to read and adhere to the company’s safety rules and regulations. Although those rules and regulations “did not address specific traffic control procedures,” the report indicates they addressed at least one issue of vehicle safety.
Finally, the Torres family relies on Scott Ten Hagen’s statement that “maybe his management slacked up on the safety requirements” at the project site and that a company-wide safety meeting was held following the accident. But this evidence shows only speculation and actions following the accident, not subjective awareness of risk beforehand. Because the Torres Family presented no evidence that Ten Hagen was aware of, and disregarded, an extreme risk at the time Torres was killed, we conclude the trial court properly granted summary judgment in favor of Ten Hagen.
Based on our resolution of the first two issues, it is unnecessary for us to address the Torres Family’s third issue. We affirm the trial court’s judgments.
Footnotes |
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| 1 | For purposes of clarity, we refer to appellants Christina C. Torres, individually and as next friend of L.N.T., a minor, and as representative of the heirs and estate of John Paul Torres, deceased, and Jennifer P. Navarrete, as next friend of J.A.N., a minor, and Donna R. Adair as “the Torres Family” unless otherwise noted. |
| 2 | Ten Hagen is a workers’ compensation insurance subscriber. Injured employees of subscribers have no right against their employers for damages resulting from personal injuries unless the injury results in death and is due to the employer’s gross negligence or an intentional act or omission of the employer. See TEX. LAB. CODE ANN. § 408.001. |
| 3 | Ten Hagen moved for a traditional summary judgment on the gross negligence claim asserted by Torres’s mother, Donna R. Adair, and Torres’s estate. Ten Hagen argued that section 408.001 of the Labor Code limits those who may bring a gross negligence claim against a workers’ compensation subscriber to only a surviving spouse and the deceased’s heirs. See TEX. LAB. CODE ANN. § 408.001. Adair and the estate do not challenge the trial court’s granting summary judgment against them on this ground. |
| 4 | The Torres family relies on DeLeon v. Thos. S. Byrne, Ltd., No. 02-10-00438-CV, 2012 WL 42942, at *5 (Tex. App.—Fort Worth Jan. 5, 2012, no pet.) (mem. op.), which found a similar provision evidenced a right of contractual control. Assuming without deciding the holding in DeLeon is correct, we conclude the case is distinguishable. The contract at issue in DeLeon did not contain a provision such as the one in the contract before us stating that no portion of the contract should be read to grant the general contractor a right of control. Furthermore, the evidence in DeLeon showed the general contractor exercised actual control over the operative details of the work by requiring a specific number of workers to operate the equipment that injured the plaintiff. Id. |