Court of Appeals of Texas, Dallas.

Julie ROGERS, as Legal Respresentative of The Estate of Jay Rogers, Appellant

v.

PRO-TEC INSTALLATIONS, INC., Appellee

No. 05-96-00049-CV.

|

July 24, 1997.

Before Justices LAGARDE, HANKINSON, and BRIDGES.

OPINION

HANKINSON.

*1 Pro-Tec Installations, Inc. contracted with TCI Central, Inc. to provide cable installation services in the Dallas area. Pro-Tec then hired contractors to install the cable. During an installation, one of Pro-Tec’s contractors’ employees, Jay Rogers, was electrocuted while laying cable under a customer’s home. Although no Pro-Tec employee either supervised this installation or instructed Rogers to climb under the house, Rogers’s estate sued Pro-Tec, claiming that Pro-Tec negligently failed to inspect the premises and provide Rogers safety training, thus increasing the likelihood and danger of electrocution. Rogers’s estate also argued that Pro-Tec was strictly liable because, when he died, Rogers was engaged in an inherently dangerous activity. The trial court granted summary judgment for Pro-Tec on each claim. Rogers’s estate now appeals. Concluding that Pro-Tec negated an element of each cause of action Rogers’s estate asserted, we affirm.

Background

Pursuant to a master construction and installation agreement between Pro-Tec and TCI Central, Inc., Pro-Tec contracted to install cable for TCI Cablevision of Dallas, Inc. (TCI Central, Inc.’s wholly-owned subsidiary). Pro-Tec hired subcontractors to install the TCI cable. Consistent with this practice, on September 1, 1993, Pro-Tec hired James McChesney to install cable. McChesney signed a written subcontractor agreement with Pro-Tec classifying him as an independent contractor, and Rogers does not dispute that classification. Rogers helped McChesney install cable. Pro-Tec characterizes Rogers as McChesney’s employee, while McChesney claims that Rogers was his partner.

On September 25, 1993, Rogers and McChesney arrived at Mark and Ann Severtson’s home in Dallas to install cable. Mark Severtson told McChesney that he wanted cable outlets at two specific locations. McChesney decided that running the cable through the attic would be the fastest and easiest way to lay the cable so that it would reach the sites Severtson requested. After several unsuccessful attempts to run the cable through the attic and down the walls to the requested cable sites, McChesney decided to change his approach and run the cable under the house. Rogers then crawled under the house to help run the cable. A spliced electrical line under the house had loosened, touched a metal termite strip, and energized an air conditioning duct. As Rogers crawled under the house, he touched the energized duct and was electrocuted. Rogers died from his injuries.

After settling with the Severtsons for their homeowner’s insurance policy limits, Julie Rogers (appellant), as legal representative of her husband’s estate, sued Pro-Tec alleging Pro-Tec’s negligence caused Rogers’s death and, additionally, that Pro-Tec was strictly liable for Rogers’s death because, when he died, he was engaged in an inherently dangerous activity.

Discussion

“It is axiomatic that in order to establish tort liability on the part of a defendant, a plaintiff must prove the existence and violation of a legal duty owed him by that defendant.”¹ Ordinarily, a general contractor such as Pro-Tec does not have a duty to see that an independent contractor like McChesney, or his employees, performs work safely.² But in her First Amended Original Petition, appellant alleged four exceptions to this general rule, argued that they applied to this case, and consequently asserted that, contrary to the general rule, Pro-Tec did owe a duty to Rogers to ensure that Rogers performed his work safely. Pro-Tec then moved for summary judgment, attempting to negate the application of these identified exceptions to the facts presented here.

*2 The trial court agreed with Pro-Tec that, as a matter of law, none of appellant’s identified exceptions applied here and granted summary judgment. Now, appellant challenges the trial court’s summary judgment granted on the first three duty theories she asserted-the duty arising from Pro-Tec’s control of McChesney’s work, Pro-Tec’s assumed duty to inspect the Severtson’s property and provide safety training, and Pro-Tec’s duty to employ a competent contractor-and her strict liability claim. Appellant does not address the fourth duty theory she alleged below-that Pro-Tec had a duty to require McChesney to take adequate safety measures for his employees’ benefit. Therefore, she has waived any claim that the trial court erred in granting summary judgment on this duty theory.³

We must evaluate each proferred theory to determine whether, under the undisputed facts presented here, Pro-Tec owed Rogers a duty to ensure that the work was performed safely. We review the trial court’s summary judgment de novo to determine whether Pro-Tec negated the existence of duty as a matter of law.⁴ When reviewing this summary judgment, we follow well-established procedures.⁵

Duty Arising From Control

In her first point of error, appellant attempts to avoid the general “no duty” rule by arguing that the exception created by Restatement (Second) of Torts section 414, and adopted by the Texas Supreme Court in Redinger v. Living, Inc.,⁶ applies. Section 414 provides that when the general contractor exercises some control over a subcontractor’s work, he may be liable for physical harm unless he exercises that control with reasonable care:

One who entrusts work to an independent contractor, but who retains the control of any part of the work, is subject to liability for physical harm to others for whose safety the employer owes a duty to exercise reasonable care, which is caused by his failure to exercise his control with reasonable care.⁷

To invoke this rule, however, “the employer’s role must be more than a general right to order the work to start or stop, to inspect progress or to receive reports.”⁸ Further, the general contractor’s right to control must go beyond the right to make suggestions that need not necessarily be followed or to prescribe deviations and alterations in the work.⁹ “Thus, to impose liability, the control retained by a general contractor must relate to the manner in which the work is performed rather than the quality of the result.”¹⁰

Rogers contends that “any evidence in Appellant’s summary judgment materials tending to show that Appellee retained any control beyond the limited right to ‘stop and start the work, to inspect progress and receive reports’ ” creates a material fact issue regarding this duty’s existence that can only be resolved by the jury. We disagree with this statement for two reasons.

First, we disagree that in this case the duty question could present a fact issue for the jury. Neither party disputes the facts we will detail later regarding Pro-Tec’s control, or lack of control, over McChesney’s work. Thus, we must decide whether the undisputed facts showing the amount of control Pro-Tec either did or did not exercise were sufficient to impose a duty on Rogers. The existence of a legal duty under an undisputed set of facts and circumstances is a question of law for the court.¹¹

*3 Second, we disagree that evidence that Pro-Tec had control over any aspect of its subcontractor’s work gave rise to a duty under section 414 to ensure that the subcontractor’s employees performed their work safely. Instead, we conclude that section 414 does not impose on the general contractor vicarious liability for all aspects of the subcontractor’s performance any time the general contractor exercises or retains some control over some portion of the subcontractor’s job. Section 414 imposes vicarious liability on the general contractor only when it retains or exercises control over the instrumentality or aspect of the work that caused the subcontractor’s employee’s injury.

Section 414’s text supports this conclusion. That section provides that “[o]ne who entrusts work to an independent contractor, but who retains the control of any part of the work, is subject to liability for physical harm to others … which is caused by his failure to exercise his control with reasonable care.”¹² Read in context, “his control” refers to that control that the employer has exercised, or retained, over the independent contractor’s work. Thus, the general contractor can be liable under this section only when it exercises its retained control negligently:

Section 414 imposes a duty on the employer, who has retained the right to control the independent contractor in some aspect of his work, to exercise reasonable care in the exercise of that control so as to avoid proximately causing injuries or damages to others while in the performance of that particular aspect.¹³

Consequently, section 414 gives rise to a duty only if Pro-Tec exercised, or retained, control over the instrumentality or aspect of work that caused Rogers’s death.

Rogers does not dispute the instrumentality or aspect of work that caused Rogers’s death-while crawling under the house he came into contact with an energized air conditioning duct that electrocuted him. We must now examine the control, if any, Pro-Tec exercised over McChesney to determine whether Pro-Tec had control over the instrumentality-the faulty wiring on the Severtson’s property-or the aspect of the work-the decision to run the cable under the Severtson’s house-that caused Rogers’s death. But before we can perform this analysis, we must detail the evidence of control presented to the trial court in the summary judgment proof.

Pro-Tec asserts, and Rogers does not dispute, that the Severtsons had sole control of the premises-Pro-Tec did not occupy the premises nor was any Pro-Tec employee or supervisor ever present on the property. The Severtsons at all times occupied the property and used it as their personal residence.

Pro-Tec had limited control over the order in which each contractor finished his assigned installations. At the beginning of each day, a Pro-Tec supervisor would assign each contractor a specific number of installations. Each contractor received a TCI work order that provided the customer’s address, account number, and telephone number. The work order also described the work to be performed. Installations were scheduled by TCI and the customer and slotted for a particular time period during the day. Generally, the customer selected the time frame based on his or her schedule. TCI would then pass this scheduling information on to Pro-Tec who would then relay it to the contractors. The contractor would then try to comply with these scheduling requests. If a customer was not home when the contractor arrived, he could leave a note to call Pro-Tec. Pro-Tec required each contractor to wear a pager so that if a customer returned home, found such a note, and called Pro-Tec, Pro-Tec could then page the contractor and inform him that the customer was home. The contractor could then return to the customer’s home to install the cable.

*4 Pro-Tec also controlled the contractors’ installation procedures. Pro-Tec hired its contractors to install cable so that the customers could access TCI’s cable services. TCI dictated installation specifications to Pro-Tec who then gave new contractors the TCI manual that showed how to “do an install” according to TCI specifications. Additionally, a large board on the back wall of the Pro-Tec office instructed the contractors about required procedures for grounding cable. If the contractor did not follow TCI’s installation specifications, Pro-Tec would either direct him to bring the installation into compliance or deduct the amount of bringing the installation into compliance from the contractor’s pay.

Pro-Tec, too, retained the right to alter these specifications per TCI’s directive. In his subcontractor’s agreement, McChesney agreed to be bound by all obligations in Pro-Tec’s master contract and installation agreement with TCI. In that agreement, TCI retained the right to order changes in these specifications at any time.

Pro-Tec also required its contractors to use TCI-provided materials. TCI supplied to Pro-Tec the cable and other materials required for an installation. Pro-Tec then supplied these materials to its contractors. Although TCI, through Pro-Tec, required each contractor to use these provided materials, each subcontractor provided, and used, his own tools to install the cable. Pro-Tec further required its subcontractors to wear uniform shirts with a Pro-Tec logo and to place a magnetic Pro-Tec sign on their trucks while they installed cable. Finally, in its subcontractor agreement with McChesney, Pro-Tec required him to maintain automotive liability, personal liability, and workers compensation insurance policies in certain, specified amounts.

Yet, Pro-Tec had absolutely no control over a contractor’s decision whether to run the cable through the attic, around the house, or under the house to provide TCI access in the location the customer specified. McChesney testified in his deposition that he had sole authority to determine where to run the cable in each house in order to conform with the customers’ needs and wants. So, for example, at the Severtson’s house, McChesney originally decided to run the cable through the attic to the cable locations Mark Severtson selected. When, after trying to run the cable in this manner, McChesney determined it could not be done, he then alternatively and independently decided to run the cable under the house. Generally, McChesney decided the cable’s path based on his estimation of which path would take the least time to complete.

We now analyze all this evidence to determine whether Pro-Tec controlled the instrumentality or aspect of the work that caused Rogers’s death. None of this evidence shows that Pro-Tec controlled the instrumentality-the faulty wiring under the Severtson’s house. Pro-Tec did not control the instrumentality because it never occupied or controlled the premises. Nor did Pro-Tec control the aspect of the work that caused Rogers’s death-crawling under the house. From the summary judgment evidence, we discern three different decision-making components in the cable installation process: decisions about when and for whom to install the cable; decisions about how to connect the cable; and decisions about where to run the cable in the customer’s home. Clearly, the evidence shows that Pro-Tec, through its scheduling process and the TCI-generated specifications, exerted or retained some control over the first two components. But the evidence also shows that Pro-Tec exercised or retained no control over the last component-decisions about where to run the cable in the customer’s home were left solely to the individual contractor’s decision.

*5 Here, Rogers came into contact with the energized air conditioning duct because McChesney independently decided to run the cable under the Severtson’s house. That decision, and the faulty wiring, were the instrumentality and work aspect that caused Rogers’s death. Because the undisputed evidence establishes that Pro-Tec neither exercised nor retained control over either aspect in this case, we conclude that no duty arose under section 414.

Appellant further argues that Pro-Tec’s quality control program that allowed it some control over the contractor’s work gave rise to a duty under section 414. We disagree. That Pro-Tec maintained a quality control program does not change our conclusion. Lonnie Tatman, who supervised the cable-installer contractors for Pro-Tec, described this quality control program. According to Tatman, the supervisors would spot-check completed installations to ensure that the contractors complied with TCI’s specifications. On other occasions, Pro-Tec supervisors would inspect a contractor’s work while in progress. When inspecting in-progress work, the supervisor would identify three or four jobs a day to inspect. The dispatcher would inform the supervisor when the installer arrived at the job, and then the supervisor would go the job and watch the installation to ensure that the installer was installing cable according to TCI’s specifications. If a supervisor arrived at a job and found the contractor using the wrong materials or using the materials improperly, he would suggest to the contractor how to correct the installation to conform to TCI’s specifications. Finally, Tatman testified that if he was performing an on-site inspection and saw a contractor performing the job unsafely, he had the right to tell the contractor to stop the unsafe practice.

General contractors like Pro-Tec may pursue a quality control program like this one without creating a duty under section 414. Pro-Tec’s purpose when instituting this program was to ensure that the contractors’ work conformed to TCI’s specifications. This goal relates to the quality of the contractors’ work and thus does not give rise to a duty under section 414.¹⁴

Moreover, the fact that a Pro-Tec supervisor, while performing a quality control inspection, may have felt he had the right to ask a contractor to cease an unsafe practice, does not create a duty under section 414. Here, Tatman testified that if he saw a contractor performing his work unsafely he felt he had the right to stop that practice. But, from his deposition testimony, we conclude that Tatman recognized as well that contractors were independent. Consequently, we conclude that if Pro-Tec, or any supervisor, thought it had a right to express safety concerns to a contractor, it did so out of a sense of human decency to prevent any injuries. That impulse, without more, does not demonstrate a retention of control sufficient to impose liability under section 414.¹⁵

Finally, appellant asserts that because Pro-Tec actually exerted control over safety issues by holding meetings at which safety issues were discussed, this control imposed on Pro-Tec a duty to control all safety issues. We disagree. No evidence shows that Pro-Tec specifically addressed the dangers of electricity or of crawling under houses at these meetings or that it ever assumed the responsibility to do so. Instead, at these weekly meetings, Pro-Tec supervisors would discuss any quality or safety issues that arose each week in order to make the contractors aware of problems. At the time Rogers died, the evidence demonstrates that the only specific safety topics that had been addressed at these meetings concerned ladders, safety cones around trucks, and coated handles for tools. Ladders, safety cones, and tools played no part in Rogers’s injuries, thus control over those safety aspects is irrelevant.¹⁶

*6 Moreover, these facts do not create a duty under section 414. The evidence shows, and appellant does not dispute, that Pro-Tec had no formal safety training program. In other words, Pro-Tec generally exercised or retained no control over the contractor’s safety precautions. However, when Pro-Tec learned of a contractor’s unsafe practice, it attempted to give the contractor information about the unsafe practice and how to avoid it. Were we to hold that in attempting to rectify unsafe practices as they occurred or after they occurred, Pro-Tec somehow undertook a duty to prevent all unsafe practices before they occurred at all, we would effectively penalize Pro-Tec’s ameliorative acts and create a disincentive for general contractors to rectify any unsafe practices they observe. We refuse to so hold. We overrule appellant’s first point of error.

Assumed Duty

In her second point of error, appellant again attempts to avoid the general “no duty” rule, arguing that Pro-Tec assumed a duty to inspect the Severtson’s house and provide safety training pursuant to section 324A of the Restatement (Second) of Torts. When a party undertakes some activity, section 324A creates a duty to use reasonable care for the benefit of third parties while conducting that activity:

One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting in his failure to exercise reasonable care to protect his undertaking, if

(a) his failure to exercise reasonable care increases the risk of such harm.¹⁷

In Seay v. Travelers Indemnity Co.,¹⁸ we adopted section 324A, noting that the theory of liability it described mirrored the common law duty in Texas: “this section describes the scope of the duty concept prevailing in this state.”¹⁹

Appellant claims Pro-Tec assumed such a duty in the master contract and installation agreement it executed with TCI Central. When contracting with TCI Central, Pro-Tec agreed to the following contractual term:

Contractor [Pro-Tec] will review, inspect, and be solely responsible for the work performed pursuant to the Contract Documents so as to assure safe working conditions for Contractor’s employees and those of its subcontractors.

Appellant argues that this contractual undertaking imposed on Pro-Tec a duty to “review, inspect and take the actions necessary to assure a safe work place for employees of subcontractors such as Jay Rogers.” Appellant then claims that Pro-Tec breached this duty by failing to review, inspect or supervise Rogers’s and McChesney’s work; failing to provide safety training for Rogers and McChesney; and failing to inspect the work site. According to appellant, Pro-Tec’s failure to use reasonable care caused Rogers’s death.

But Pro-Tec moved for summary judgment arguing that if it owed Rogers the alleged duty to inspect and provide training under section 324A, then it did not breach that duty:

*7 In order to establish liability under Section 324A, the Plaintiffs must show that Pro-Tec undertook to render services to TCI, and then must also show at least one of the following three things: (1) that the risk of harm to Jay Rogers increased due to the failure of Pro-Tec to exercise reasonable care; (2) that Pro-Tec undertook to perform a duty owed to Jay Rogers by TCI; or (3) that the harm suffered by Jay Rogers was the result of his reliance or TCI’s reliance on the services rendered to TCI by Pro-Tec. Seay v. Travelers Indem. Co., 730 S.W.2d at 778. Pro-Tec does not deny that it undertook to render cable installation services to TCI….

Plaintiffs … argue, however, that an alleged risk of harm to Jay Rogers increased due to the failure of Pro-Tec to exercise reasonable care in furnishing its cable installation services. Pro-Tec submits, however, that under the facts of this case the summary judgment evidence negates the existence of this element, and negates any liability under Section 324A.

Thus, rather than move for summary judgment arguing that it negated the essential duty element, Pro-Tec argued instead that it negated a different essential element-that its alleged failure to exercise reasonable care did not increase Rogers’s risk of harm. We therefore must determine whether Pro-Tec established as a matter of law that its conduct did not increase Rogers’s risk of harm.

No one disputes the harm that occurred in this case-Rogers’s electrocution under the Severtson’s home. To be entitled to summary judgment, Pro-Tec had to show conclusively that its conduct did not increase the risk of Rogers’s electrocution. Through excerpts from McChesney’s deposition, Pro-Tec did just that. That summary judgment evidence shows Rogers knew how to install cable and was an experienced cable installer. McChesney had known Rogers for approximately one and one-half years. They had previously worked together in Little Rock, Arkansas, installing cable. While in Little Rock, McChesney and Rogers installed cable in approximately 5,000 homes. McChesney testified that both he and Rogers were experienced cable installers. With this type of experience, neither McChesney nor Rogers needed instructions to install cable.

Not only did McChesney’s deposition testimony show that Rogers was an experienced cable installer, it shows he had experience and knowledge about electrical matters and the dangers of crawling under houses. According to McChesney, Rogers was “exceptionally good” at working underneath houses and was familiar with the dangers, including potential electrical problems, associated with crawling under houses. More importantly, before Rogers trained as a cable installer with McChesney, he worked as an electrician in Little Rock. McChesney testified that Rogers’s earlier training as an electrician taught him the potential electrical dangers that could arise when crawling under a house. This testimony reveals that Rogers knew about the potential electrical dangers associated with crawling under a house. Therefore, any failure by Pro-Tec to warn of these dangers, provide safety training, or inspect the work site could not, as a matter of law, have increased Rogers’s risk of harm.²⁰

*8 Despite this evidence, appellant counters with three arguments to show that the trial court erroneously granted summary judgment on her section 324A claim. First, she claims not only did Pro-Tec contractually assume a duty to Rogers, it assumed a duty by holding weekly meetings during which safety issues were discussed. Pro-Tec does not dispute that it held weekly meetings with its subcontractors that included a discussion of safety topics. Therefore, appellant claims that “independent of the contractual undertaking and the principles of section 324A, appellee assumed a duty to act. That duty was carried out negligently.” This argument, however, simply suggests that Pro-Tec assumed a duty through some conduct other than through its contract with TCI Central. Regardless of the manner in which Pro-Tec assumed a duty, the elements of section 324A “describe the scope of the duty under Texas law, owed by one undertaking a task necessary for the protection of a third party.”²¹ Therefore, even if Pro-Tec assumed a duty through its conduct-an issue we do not decide here-to prevail, appellant would still have to prove that Pro-Tec’s failure to exercise reasonable care increased Rogers’s risk of harm. We have already concluded that Pro-Tec conclusively negated this element.

Second, appellant argues that Pro-Tec attempted to show that it did not increase the risk of harm to Rogers because “the risk of electrocution is inherent in the activity of cable installation.” While it is true that Pro-Tec made a similar statement in its motion for summary judgment below, Pro-Tec also argued that because Rogers knew about the potential electrocution dangers of crawling under the house, Pro-Tec’s conduct could not have increased his risk of harm. This latter argument, and supporting proof, conclusively negates the increased risk of harm element.

Third, appellant argues that McChesney’s testimony simply equates experience as a cable installer with knowledge and training in the area of safety; thus, Pro-Tec could not conclusively prove that it did not increase Rogers’s risk of harm. Appellant does not dispute McChesney’s testimony about Rogers’s experience as a cable installer. Instead, she claims that because the summary judgment evidence does not show that Rogers had any formal safety training for cable installation, the trial court assumed that “[Rogers] knew all he should have known about safety in the cable installation industry just because he had been lucky enough to have escaped electrocution during one and one-half years of on-the-job experience.” But in making this argument, appellant ignores the affirmative summary judgment evidence offered by Pro-Tec detailing Rogers’s experience with electrical dangers-especially as they might arise when crawling under the house. The record affirmatively shows that Rogers worked as an electrician; that he was considered “exceptionally good” at working under houses; and that he knew the electrical dangers that could arise from working under houses. Appellant offers no summary judgment proof to controvert this evidence. Consequently, her argument fails. We overrule appellant’s second point of error.

Negligent Hiring and Strict Liability

*9 In her third point of error, appellant again attempts to avoid the general “no duty” rule by relying on section 411 of the Restatement (Second) of Torts. Section 411 provides that, under certain circumstances, a general contractor owes a duty to third persons when he negligently fails to employ a competent and careful contractor:

An employer is subject to liability for physical harm to third persons caused by his failure to exercise reasonable care to employ a competent and careful contractor (a) to do work which will involve a risk of physical harm unless it is skillfully and carefully done, or (b) to perform any duty which the employer owes to third persons.²²

Appellant claims that Pro-Tec negligently hired McChesney because he had no formal safety training and thus Pro-Tec is liable for the physical harm Rogers suffered.

In her fourth point of error, appellant claims that Pro-Tec is strictly liable for Rogers’s death because “[u]nder Texas law, the employer of an independent contractor hired to do inherently dangerous work may be liable to third parties for injuries arising out of the performance of such work.” Here, she claims that, as a matter of law, cable installation is an inherently dangerous activity and thus Pro-Tec is strictly liable for Rogers’s injuries sustained during the Severtsons’ cable installation.

Rogers’s third and fourth points of error fail for the same reason. Both section 411 and Texas law imposing strict liability provide that a general contractor has a duty only to “third parties” for harm arising from its negligent hiring of a contractor or from inherently dangerous activity. Although we located no case in which a Texas court has determined whether a subcontractor’s employees are third parties under section 411, Texas law clearly holds that a subcontractor’s employee is not a third party as that phrase is used in the strict liability cases.²³ Thus, an employer’s strict liability does not extend to employees of the independent contractor.²⁴ We see no reason why the phrase “third party” should be interpreted differently under section 411. This conclusion comports with other states’ interpretation of section 411.²⁵ Therefore, because Rogers was McChesney’s employee, he was not a third party as that term is used in either section 411 or Texas law imposing strict liability. Therefore, as a matter of law, Pro-Tec cannot be held liable under either standard.

Appellant asserts two counterarguments. First, she contends that an exception to this rule exists when the employer exercises control over, and directs, details of the contractor’s work performance.²⁶ Even if this is a valid exception to the rule, for the reasons stated in response to appellant’s first point of error, we conclude that Pro-Tec did not exercise that kind of control.

Second, appellant argues that a fact question exists regarding Rogers’s status as an employee. She claims that although Pro-Tec characterizes Rogers as McChesney’s employee, McChesney himself testified that Rogers was his partner. Even if Rogers was McChesney’s partner, he was still associated with the contractor and thus could not be a third party as that phrase is used under section 411 or the strict liability rule. We therefore overrule appellant’s third and fourth points of error.

*10 We affirm the trial court’s judgment.

	Footnotes
1		Bryant v. Gulf Oil Corp., 694 S.W.2d 443, 445 (Tex.App.-Amarillo 1985, writ ref’d n.r.e.) (citing Coleman v. Hudson Gas & Oil Corp., 455 S.W.2d 701, 702 (Tex.1970)).
2		Redinger v. Living, Inc., 689 S.W.2d 415, 417 (Tex.1985); Davis v. R. Sanders & Assocs. Custom Builders, 891 S.W.2d 779, 781 (Tex.App.-Texarkana 1995, no writ).
3		Cf. Dubow v. Dragon, 746 S.W.2d 857, 859 (Tex.App.-Dallas 1988, no writ).
4		See American States Ins. Co. v. Arnold, 930 S.W.2d 196, 199 (Tex.App.-Dallas 1996, writ denied).
5		See Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-59 (Tex.1985).
6		689 S.W.2d 415 (Tex.1985).
7		Restatement (Second) of Torts § 414 (1965).
8		Redinger, 689 S.W.2d at 418.
9		See Davis, 891 S.W.2d at 782.
10		Welch v. McDougal, 876 S.W.2d 218, 223 (Tex.App.-Amarillo 1994, writ denied) (citations omitted).
11		See Bryant, 694 S.W.2d at 446.
12		Restatement (Second) of Torts § 414 (1965).
13		Tirres v. El Paso Sand Prods., Inc., 808 S.W.2d 672, 676 (Tex.App.-El Paso 1991, writ denied) (holding that general contractor who required independent contractor to use its truck trailer when hauling machinery did not control manner in which the contractor operated truck while hauling; therefore, no duty to ensure independent contractor drove safely arose when independent contractor struck and killed motorist while hauling general contractor’s equipment on general contractor’s trailer).
14		See Welch, 876 S.W.2d at 223 (“The general contractor’s authority to ensure that a subcontractor’s work is performed properly has been explicitly excluded from the types of control that might impose liability.”).
15		See Davis, 891 S.W.2d at 782; Welch, 876 S.W.2d at 225.
16		See Tirres, 808 S.W.2d at 678.
17		Restatement (Second) of Torts § 324A (1965).
18		730 S.W.2d 774, 776 (Tex.App.-Dallas 1987, no writ).
19		Id. at 776; see Fort Bend County Drainage Dist. v. Sbrusch, 818 S.W.2d 392, 396 (Tex.1991) (applying section 324A).
20		See Diaz v. Southwest Wheel, Inc., 736 S.W.2d 770, 773 (Tex.App.-Corpus Christi 1987, writ denied) (“In the absence of any increased risk of harm or reliance causing harm, no cause of action can lie for breach of an assumed duty.”).
21		See C.H. Nationwide, Inc. v. Thompson, 810 S.W.2d 259, 266 (Tex.App.-Houston 1991), rev’d in part on other grounds, 903 S.W.2d 315 (Tex.1994); Seay, 730 S.W.2d at 777.
22		Restatement (Second) of Torts § 411 (1965).
23		Hammack v. Conoco, Inc., 902 S.W.2d 127, 131 (Tex.App.-Houston [1st Dist.] 1995, writ denied); Gray v. Baker & Taylor Drilling Co., 602 S.W.2d 64, 67 (Tex.App.-Amarillo 1980, writ ref’d n.r.e.).
24		Gray, 602 S.W.2d at 67.
25		See Best v. Energized Substation Serv., Inc., 88 Ohio App.3d 109, 623 N.E.2d 158 (Ohio Ct.App.1993) (holding that employee of independent contractor may not maintain action for negligent hiring against employer and citing for support Payne v. Lee, 686 F.Supp. 677, 679 (E.D.Tenn.1988), aff’d, 872 F.2d 1027 (6th Cir.1989); Ray v. Schneider, 16 Conn.App. 660, 548 A.2d 461, 467-68 (Conn.App.Ct.), cert. denied, 209 Conn. 822, 551 A.2d 756 (Conn.1988); Woodson v. Rowland, 92 N.C.App. 38, 373 S.E.2d 674, 679 (N.C.Ct.App.1988), rev’d in part on other grounds, 329 N.C. 330, 407 S.E.2d 222 (N.C.1991); Mentzer v. Ognibene, 408 Pa.Super. 578, 597 A.2d 604, 608-09 (Pa.Super.Ct.1991), appeal denied, 530 Pa. 660, 609 A.2d 168 (Pa.1992); Chapman v. Black, 49 Wash.App. 94, 741 P.2d 998, 1004 (Wash.Ct.App.), review denied, 199 Wash.2d 1005 (1987); Wagner v. Continental Casualty Co., 143 Wis.2d 379, 421 N.W.2d 835, 839 (Wis.1988)).
26		See Gray, 602 S.W.2d at 607.