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Thompson v. Jess3/12/1999
e method of work required by general contractor); Redinger v. Living, Inc., 689 S.W.2d 415, 418 (Tex. 1985) (imposing liability where subcontractor was ordered to operate backhoe dangerously close to plaintiff).
The comments to section 414 of the Restatement provide guidance as to the "active participation" requirement:
"In order for the rule stated in this Section to apply, the employer must have retained at least some degree of control over the manner in which the work is done. It is not enough that he has merely a general right to order the work stopped or resumed, to inspect its progress or to receive reports, to make suggestions or recommendations which need not necessarily be followed, or to prescribe alterations and deviations. Such a general right is usually reserved to employers, but it does not mean that the contractor is controlled as to his methods of work, or as to operative detail." Restatement (Second) of Torts § 414 cmt. c. (1965) (emphasis added).
In other words, to have "actively participated" in the contracted work, a principal employer must have exercised affirmative control over the method or operative detail of that work. See Grahn v. Tosco Corp., 1997 Cal. App. LEXIS 897, -38, rev. denied, 1998 Cal. LEXIS 494. " he degree of control necessary for the creation of a legal duty must involve either the direct management of the means and methods of the independent contractor's activities or the provision of the specific equipment that caused the injury." Id.
Although the requisite level of control over the contractor's manner or method of work does not rise to the level of creating a master-servant relationship, cf. Restatement § 414 cmt. a, the principal employer must exert such control over the means utilized that the contractor cannot carry out the injury-causing aspect of the work in his or her own way. Cf. id. cmt. c. A typical instance in which such an exertion of control might occur is "when a principal contractor entrusts a part of the work to subcontractors, but himself or through a foreman superintends the entire job." Id. cmt. b.
The requisite level of control over the contractor's work is well illustrated in Lewis, 825 P.2d at 7-8. There, the general contractor, Riebe, hired the subcontractor, Garges, to install a pitched roof constructed of beams and sheets of plywood nailed to the beams. After Garges had already put the plywood in place, Riebe's on-site superintendent told Garges the roof was improperly installed and ordered it redone, specifying the use of H-clips to secure the plywood. Pursuant to this instruction, Garges employees began removing the nails from each row of plywood, installing H-clips, and then renailing the plywood to the beams. Soon thereafter, however, Riebe's superintendent instructed the Garges employees to use a different, faster method of dislodging the plywood by banging it from underneath. Because this method resulted in plywood being dislodged faster than H-clips could be installed, numerous sheets of plywood were left lying loose on top of the beams. A Garges employee stepped on the loose plywood and fell through the roof, incurring serious injuries. See id.
Thus, in Lewis, the general contractor interfered with the subcontractor's method of performing the work and instructed that a quicker but less safe method be implemented. A worker was injured as a direct result of the dangerous condition created by the general contractor's method. The court concluded, on the basis of these facts, that the general contractor exercised sufficient control over the means used in performing the contracted work to subject it to retained control liability. See id. at 14-15.
A
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