United Scaffolding, Inc. v. Levine: Expanding Control for the Purpose of Premises Liability Claims

Introduction

When a plaintiff is injured on property owned by another two possible claims may arise—general negligence and premises liability.  A crucial component of premises liability claims, absent in general negligence claims, is control.  Owners of industrial workplaces often contract with multiple contractors to perform various operations on the premises.  When an employee of the owner of the property is injured by a defective condition created by a contractor, courts must determine whether the contractor was in control of the premises.  For a defendant to owe a duty to a plaintiff under a premises liability claim, the defendant must have been in control of the premises.[1]  If the defendant was not in control of the premises, there is consequently no responsibility for dangerous conditions existing on the property.[2]

United Scaffolding, Inc. v. Levine

Decided June 30, 2017 by the Texas Supreme Court, United Scaffolding, Inc. v. Levine examines issues related to the proper selection of claims and the aspect of control required in a premises liability claim.[3]  James Levine, a pipefitter employed by the Valero Energy Company, was working an overtime shift at a Valero facility.[4]  Levine and his fellow crew members were tasked with installing two blanks into an exchanger in the refinery’s alkylation unit.[5]  The job required scaling scaffolding to approximately fifteen (15) feet above the ground.[6]  Levine alleged he slipped on a piece of plywood that was not nailed down to the scaffolding, causing him to fall through the hole previously covered by the unsecured board.[7]

Although the refinery was owned by Valero, and Levine was an employee of Valero, the scaffolding was constructed by Valero’s subcontractor, United Scaffolding, Inc. (USI).[8]  The contract between Valero and USI required USI to inspect and tag the entirety of the scaffolding before each shift, as well as before each use.[9]  However, the scaffolding at issue was not inspected before the incident and USI employees were not present at the Valero refinery at the time of Levine’s fall or when his shift began.[10]

After the first trial ended in an award of $178,000 to Levine, Levine motioned for a new trial.[11]  After the second trial, the jury awarded Levine $2 million in past and future damages under a question of general negligence.[12]  USI then appealed, asserting primarily that Levine’s claim was improperly submitted under a general negligence theory of recovery.[13]  The Court of Appeals affirmed the trial court’s judgment, holding the characterization of Levine’s claim turned on whether USI controlled the premises.[14]  The Appellate court reasoned USI did not control the premises, therefore the claim was not one of premises liability, and thus recovery under a question of general negligence was proper.[15]

The Texas Supreme Court ultimately held the claim sounded in premises liability and was improperly submitted to the jury under a question of negligence.[16]  The Texas Supreme Court reversed the Appellate Court’s decision and entered a take nothing judgment in favor of USI, reasoning that Levine’s injury was caused by a premises defect and USI retained the right to control the scaffolding.[17]

Control in Premises Liability Claims

As stated by the dissent—the outcome of this case hinges on the aspect of control: “premises liability applies if USI controlled the scaffolding on which Levine was injured and thus had ‘responsibility for dangerous conditions on it.’”[18]  The dissent argued USI only had the requisite control if it had control when and where Levine’s accident occurred, in line with the current Texas approach to premises liability.[19]  Thus, in the dissent’s opinion, because USI was not present on the premises at the time of Levine’s accident, they did not have the requisite control for a claim of premises liability.

In contrast, the majority held USI retained the right to control the scaffolding at the time of Levine’s injury.  The majority relied on Clayton Williams Jr., Inc. v. Olivo in reaching its conclusion.[20]  The Olivo court held, in relevant part, “[a] general contractor in control of the premises is charged with the same duty as an owner or occupier.”[21]  However, this rule is premised on a finding of control on the part of the general contractor.  Furthermore, as identified by the dissent, the issue in Olivo was not whether the general contractor controlled the premises when the injury occurred, but whether the general contractor controlled the work of an independent contractor.[22]

Conclusion

In reaching its second conclusion, that USI retained the right to control the scaffolding at the time of the injury and thus the claim sounded in premises liability, the Texas Supreme Court has stretched Olivo and expanded the duties owed by a subcontractor to employees of a property owner.  While the standard required to establish a duty prior to United Scaffolding was actual control of the premises, control is now attributable to defendants who retain the right to control the premises.

While, post United Scaffolding claims of premises liability actions by plaintiffs against subcontractors may be more likely to succeed, the definition of control after the Texas Supreme Court’s decision may benefit owners of property as well.  When an employee of a property owner is injured, and the injury is potentially attributable to a subcontractor, property owners may now claim they were not in control of the premises due to the subcontractors “retained right of control.”


[1] Occidental Chemical Co. v. Jenkins, 478 S.W.3d 640, 644 (Tex.  2016).

[2] Id.

[3] United Scaffolding, Inc. v. Levine, No.  15-0921, 2017 WL 2839842, at *1 (Tex.  June 30, 2017).

[4] Id.

[5] Id.

[6] Id.

[7] Id.

[8] Id.

[9] Id.

[10] Id.

[11] Id. at *2.

[12] Id.

[13] Id.

[14] Id.

[15] Id.

[16] Id.

[17] Id. at *10.

[18] Id. at *14 (Boyd, J., dissenting) (quoting Occidental Chem. Corp. v. Jenkins, 478 S.W.3d 640, 644 (Tex. 2016)).

[19] United Scaffolding, Inc., 2017 WL 2839842, at *14 (Boyd, J., dissenting).

[20] Id. at *7.

[21] Clayton Williams Jr., Inc. v. Olivo, 952 S.W.2d 523, 527 (Tex. 1997).

[22] United Scaffolding, Inc., 2017 WL 2839842, at *16 (Boyd, J., dissenting).

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