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Click here for the full text of this decision FACTS:David Durbin died from electrocution as he was installing and changing lights at a Culberson County baseball field, which was used by the county school district. Durbin’s wife and children sued the county and school district for wrongful death and survival. They filed their action on Feb. 16, 1996. The county filed its answer, then filed a motion for summary judgment on April 11, 1997. The trial court granted the motion on April 28. Durbin’s wife filed a petition for a bill of review on Jan. 25, 1999, asserting that she never received notice of a hearing on the county’s motion for summary judgment. The trial court set aside its previous order on Oct. 28. The county filed a renewed motion for summary judgment on Feb. 28, 2003. Durbin’s wife filed her fourth amended petition and responded to the county’s summary judgment motion on March 17. By this point, Durbin’s wife was alleging that the county had owed her husband a duty under the Texas Occupational Safety Act. The county addressed these arguments in its reply to the summary judgment response on March 20. Durbin’s wife filed objections to the county’s reply on March 24. The trial court granted the county’s motion the same day. HOLDING:Affirmed. Durbin’s wife complains that she did not have fair notice of the county’s defense to her OSA claim because both of the county’s faxed replies to her response and fourth petition were missing pages. She was unaware of this fact until two days later, two days before the hearing, so she says it was error for the trial court to have even considered the arguments in making its summary judgment ruling. Because the reply was just that, a reply, and not an amended motion for summary judgment, the time periods set out in Texas Rule of Civil Procedure 166a(c) do not apply. The court adds that Durbin’s wife did not properly preserve error: they filed written objections less than two hours before the start of the March 24 hearing, and they did not raise those objections in the hearing itself. The court declines the offer of Durbin’s wife to treat her objections as having been implicitly overruled when the trial court issued a summary judgment without stating its reasons. Referring to Texas Rule of Appellate Procedure 33.1, which does allow for preservation of error through express or implicit means, the court nonetheless disagrees that the Durbin’s wife’s objections were implicitly overruled. The court again points to the late filing time and the party’s failure to raise the issue during the hearing. Turning to the merits of the summary judgment, the court finds that Durbin’s wife could not prove negligence because she could not prove that the county owed Durbin a duty. Durbin was an independent contractor, the court concludes. There was a written agreement hiring Durbin for the job at hand, which included a definition of Durbin as an independent contractor. The label of independent contractor was not a sham, either, the court finds. The agreement as a whole showed that Durbin: 1. was performing the work on a contract basis; 2. was to perform one job, installation of the lights at the baseball field; 3. was to complete the job without control or direction from the county; 4. was not an employee, servant or agent of the county; 5. did not receive benefits available to county employees; and 6. was to be an “independent contractor.” The county owed Durbin, as an independent contractor, a duty to use reasonable care and to keep the premises in a safe condition. As a premises owner, the county could be liable for negligence from premises defects, where the county would have a duty to inspect and warn of latent defects. The court finds that there was no concealed defect present here. The light pole itself was not a concealed hazard. Durbin’s death resulted from his decision to change a light bulb on the pole while the power was still on, and by sticking a metal object into the socket. The court then considers whether liability could attach because of certain activities conducted on the premises. The county would be liable if it had the power to control Durbin’s work. The court rules that the county lacked that control, pointing, in part, to the independent contractor agreement. The court also concludes that the county is immune from suit under the OSA. OPINION:Larsen, J.; Barajas, C.J., Larsen and Chew, JJ.

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