The El Paso Court of Appeals has held that the project manager of a commercial construction project was not liable for the injuries sustained by another contractor’s employee. Diaz v. R & A Consultants, 579 S.W.3d 460, 464 (Tex. App.—El Paso 2019, no pet. h.).
In this construction accident case, the court was asked to decide, in essence, whether one contractor owed a duty to another contractor’s employes. The construction project involved the abatement of asbestos and the injured employee worked for the asbestos abatement contractor. The project manager who the injured employee sued had been hired by the owner of the project to provide project design and air monitoring services. During the course of performing his work, the injured employee fell approximately 17’ to the ground sustaining serious injuries. He alleged that his injuries resulted from an inadequate fall protection system.
The Court stated that, as a general rule, the project manager, like a general contractor, “does not owe a duty to ensure that an independent contractor performs its work in a safe manner.” Exceptions to this rule include when a general contractor retains some control over how the independent contractor performs his work. In that instance, the general contractor must exercise that control in a reasonable manner. Id at 466.
“Traditionally, a party can prove the right to control in two ways: (1) by evidence of a contractual agreement that explicitly assigns a right to control or (2) in the absence of such a contractual agreement, by evidence of the actual exercise of control.” Id. at 467.
There were no contractual obligations that gave the project manager control over the other contractor’s fall protection system. Further, the project manager did not exercise any control over the alleged injury causing event — the fall projection system. Thus, the project manager did not owe a duty to ensure that an adequate fall protection system was provided to the independent contractor’s injured employee and therefore was not liable for the injuries.