Michelle Ramirez, Ind. & on Behalf of the Estate of Jesus Ramirez v. Worthington Contractors, Inc.

Opinion issued December 19, 2002 In The Court of Appeals For The First District of Texas NO. 01-02-00542-CV ____________ MICHELLE RAMIREZ, INDIVIDUALLY, ON BEHALF OF THE ESTATE OF JESUS RAMIREZ, AND AS NEXT FRIEND OF JESUS RAMIREZ, JR., A MINOR, ERICA RAMIREZ, A MINOR, AND JESSICA MALDONADO, A MINOR, Appellant V. WORTHINGTON CONSTRUCTORS, INC., WORTHINGTON PAVERS, INC., AND DAVID E. WORTHINGTON, Appellees On Appeal from the 164th District Court Harris County, Texas Trial Court Cause No. 00-23157 O P I N I O NIn this wrongful death action, appellant, Michelle Ramirez, individually, as representative of the estate of her husband, Jesus Ramirez, and as next friend of their three children, appeals from the trial court’s summary judgment in favor of appellees, Worthington Constructors, Inc., Worthington Pavers, Inc., and David E. Worthington (collectively “Worthington”). In one point of error, appellant contends the trial court erred in granting Worthington’s motion for summary judgment because Worthington retained a right to control its independent contractor, Scott Kannard, and thus it had a duty to provide a safe work environment for Ramirez. We affirm. Facts & Procedural Background Worthington subcontracted a parking lot paving job to Kannard, who employed Ramirez as a day laborer for the job. After work on the eighth day of the job, Kannard, Cash Yonik, a friend of Kannard’s, Ramirez, and two unidentified day laborers loaded up Kannard’s pickup truck with a broom, diesel can, and picks. Ramirez and the two other day laborers rode in the bed of the truck. Kannard drove the three workers to a shopping center parking lot to drop them off. Kannard approached the parking lot and slowed the truck. As he began to turn the truck, he heard a noise and then saw Ramirez lying in the street behind the truck. Kannard parked the truck and ran back to the street to help Ramirez, who was unconscious. Approximately five minutes later, an ambulance and a fire truck arrived at the scene with paramedics to help Ramirez. A Houston Police officer also arrived and wrote an accident report, but did not charge Kannard with a violation. When appellant arrived at the scene, she tried to calm her husband after he became conscious. Ramirez was taken to a hospital and subsequently died from his head injuries. When contacted by the attending hospital, Dennis Worthington, vice-president of Worthington Pavers, Inc., informed the hospital that Ramirez was not a Worthington employee and not covered under Worthington’s worker’s compensation insurance. Dennis Worthington later testified by deposition that he had never visited the job site and had never met Ramirez before the accident. Dennis Worthington further testified that he did not hire Ramirez, pay Ramirez, provide tools to Ramirez, or instruct Ramirez in his job duties. Appellant brought a wrongful death suit against Worthington based on the contention that Ramirez was an employee or borrowed servant of Worthington, who breached a legal duty of care it owed Ramirez. Worthington moved for summary judgment, contending that it: (1) owed no legal duty to Ramirez because he was not an employee; (2) did not retain or exercise a right of control over Ramirez; (3) alternatively, met the duty of a general contractor to a subcontractor’s employees; and (4) did not breach a duty to maintain a safe work place. The trial court granted the motion for summary judgment without specifying the grounds for its decision. Standard of Review A defendant who conclusively negates at least one of the essential elements of each of a plaintiff’s causes of action, or who conclusively establishes all of the elements of an affirmative defense, is entitled to summary judgment. Tex. R. Civ. P. 166a(c); Cathey v. Booth, 900 S.W.2d 339, 341 (Tex. 1995). When deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the non-movant will be taken as true. Osborne v. St. Luke’s Episcopal Hosp., 915 S.W.2d 906, 911 (Tex. App.—Houston [1st Dist.] 1996, writ denied). Every reasonable inference must be indulged in favor of the non-movant and any doubts resolved in its favor. Id. When a trial court’s order does not specify the grounds under which the summary judgment was granted, we will affirm the judgment on any theory advanced in the motion that is meritorious. Harwell v. State Farm Mut. Auto. Ins. Co., 896 S.W.2d 170, 173 (Tex. 1995). Duty Owed To An Independent Contractor And His Employees Appellant contends the trial court erred in granting Worthington’s motion for summary judgment because Worthington retained control over the paving project and thus had a duty to Ramirez to provide a safe working environment. The Texas Wrongful Death Act applies only if an injured individual would have been entitled to bring an action for the injury if he or she had lived. Tex. Civ. Prac. & Rem. Code Ann. § 71.003(a) (Vernon 1997). 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. Otis Eng’g Corp. v. Clark, 668 S.W.2d 307, 309 (Tex. 1983). As a general rule, an employer is not responsible for the negligence or tortious acts of an independent contractor and the contractor’s employees. Sanchez v. Mbank of El Paso, 792 S.W.2d 530, 531 (Tex. App.—El Paso 1990), aff’d, 836 S.W.2d 151 (Tex. 1992). An exception to the general rule occurs when the general contractor retains a right of control over the independent contractor. Redinger v. Living, Inc., 689 S.W.2d 415, 418 (Tex. 1985). We measure the right to control by considering: (1) the independent nature of the worker’s business; (2) the worker’s obligation to furnish necessary tools, supplies, and materials to perform the job; (3) the worker’s right to control the progress of the work except about final results; (4) the time for which the worker is employed; and (5) the method of payment, whether by unit of time or by the job. Sugar Land Props., Inc. v. Becnel, 26 S.W.3d 113, 117 (Tex. App.—Houston [1st Dist.] 2000, no pet.). The employer’s role must be more than a general right to order the work to start or stop, to inspect progress or receive reports. Redinger, 689 S.W.2d at 418. When making a determination of whether an employer retained the right of control over an independent contractor, we first look to any written contracts between the employer and the independent contractor. Gibson v. Grocers Supply Co., Inc., 866 S.W.2d 757, 760 (Tex. App.—Houston [14th Dist.] 1993, no writ). Here, no written contract existed between Worthington and Kannard setting forth their rights and responsibilities. Thus, the extent of Worthington’s right to control, if any, must be determined by examining the facts and circumstances surrounding the paving project. Id. The summary judgment evidence shows that Worthington did not retain control over Kannard or his employee, Ramirez. Worthington did not visit the work site, supervise at the site, or instruct workers in their job duties. Worthington did not possess the right to hire or fire Ramirez, did not set Ramirez’s wages or work hours, and did not pay Ramirez. Moreover, Worthington did not own the truck involved in the accident or the equipment in the back of the truck. There is no summary judgment evidence that, at the time of the accident, Kannard was returning tools or Ramirez to Worthington’s place of business. On the contrary, the summary judgment evidence shows that the accident did not occur at the work site and was not a result of an unsafe work environment. The accident occurred not within the course or scope of Ramirez’s employment, but after work was finished for the day. The accident actually occurred in a public street outside of a public shopping center. Applying the right-to-control test to the summary judgment evidence, we find that it conclusively shows that Worthington owed no legal duty to Ramirez. When a summary judgment order does not state the specific grounds on which it was granted, a party appealing from the judgment rendered pursuant to that order must show that each of the independent arguments alleged in the motion was insufficient to support the order. Gannon v. Baker, 830 S.W.2d 706, 709 (Tex.App.—Houston [1st Dist.] 1992, writ denied). Here, appellant failed to raise a material question of fact as to whether Worthington owed a legal duty to Ramirez. Thus, we hold that the trial court did not err in granting Worthington’s motion for summary judgment. We overrule appellant’s sole point of error. Conclusion We affirm the trial court’s order of summary judgment. Terry Jennings Justice Panel consists of Justice Nuchia, Jennings, and Radack. Do not publish. Tex. R. App. P. 47.