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Click here for the full text of this decision FACTS:Roger Hagins died when he stepped off a 9-foot high construction platform while building an E-Z Mart convenience store. His estate sued Hagins’ employer and E-Z Mart. Without specifically finding that Hagins was contributorily negligent, the jury nonetheless found Hagins 60 percent responsible for the accident, his employer was 30 percent negligent and E-Z Mart was 10 percent at fault. The trial court ordered Hagins’ employer to pay more than $57,000, but decreed that the estate take nothing against E-Z Mart. The estate appeals, arguing the trial court erred in submitting a defective jury instruction on E-Z Mart’s control, and an improper instruction on E-Z Mart’s duties. Additionally, the estate argues the evidence did not support the jury’s findings, and that the trial court erred when it granted E-Z Mart’s motion for summary judgment on the estate’s negligent hiring claim. HOLDING:Affirmed. The jury instruction on E-Z Mart’s control read, “Did E-Z Mart Stores, Inc. control fall protection on the job in question?” The estate wanted the question to read, “Did E-Z Mart Stores, Inc. exercise or retain some control over the manner in which the work was performed, other than the right to order the work to start or stop or to inspect progress or receive reports?” In other words, the estate wanted the instruction to refer to E-Z Mart’s control over the entire area of work, not just fall protection. Citing Dow Chem. Co. v. Bright, 89 S.W.3d 602 (Tex. 2002), and Coastal Marine Serv. of Tex. Inc. v. Lawrence, 988 S.W.2d 223 (Tex. 1999), the court points out that determining whether a premises owner retained supervisory control can be proved two ways: “first, by evidence of a contractual agreement that explicitly assigns the premises owner a right to control; and second, in the absence of a contractual agreement, by evidence that the premises owner actually exercised control over the manner in which the independent contractor’s work was performed.” By broadening the issue to encompass any exercise of supervisory control by E-Z Mart over Hagins’ employer, the estate’s theory would eliminate the requirement that the retention of control relate to the activity that actually caused the injury. But the court is “concerned” with the “rather strict narrowness” presented to the jury. Nevertheless, because the jury found E-Z Mart partially responsible for Hagins’ death, any error in the submission of the question was rendered harmless. The trial court submitted a jury instruction related to E-Z Mart’s role as a premises owner. The estate argues on appeal that E-Z Mart’s duties should have been addressed. The estate wanted an instruction on negligence and ordinary care. Again, in light of the jury’s finding, the court finds the error, if any, was harmless. The court finds the evidence supports the jury’s finding that Hagins was more at fault for his own death than was E-Z Mart. For E-Z Mart to have had any duty of care under the circumstances, it must necessarily have exercised something more than mere general or supervisory control. Its influence over the operative detail of the employer’s work must have been to such an extent that the employer would not have been free to perform the work in its own way. E-Z Mart’s instructions to one worker to weld a bracket and to another worker to hang a door, while some evidence, is not enough to undermine the jury’s finding. The court further notes that even though the jury did not explicitly find Hagins contributorily negligent, its allocation of fault was supported by evidence that the estate’s attorney even conceded in closing arguments that some fault should be assessed to Hagins. Finally, the court upholds the summary judgment for E-Z Mart on the estate’s claim of negligent hiring of Hagins’ employer. As an employee of an independent contractor, Hagins could not have been considered a third-party to whom E-Z Mart may have owed a duty. OPINION:Morriss, C.J.; Morriss, C.J., Ross and Cornelius, JJ.

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