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Click here for the full text of this decision FACTS:Jim Zertuche worked for M-I Drilling Fluids. In response to a call from Price Drilling Co., a general contractor, Zertuche delivered dry drilling mud chemicals to a Price well to decrease the possibility of a blow out. The ground at the site was extremely muddy, due to recent heavy rains. As instructed by an employee of Dale Operating Co., which operated the Price well, Zertuche tried to pull his truck as close to the site as possible, to await the arrival of bulldozers on the site to help move vehicles. Zertuche’s truck got stuck, and bulldozers were used to pull it to a pumping station to unload the chemicals. Though Zertuche intended to use a forklift to unload the materials, the forklift got stuck, too. In the meantime, other trucks bearing previously mixed drilling mud, which could be used more quickly, arrived on the scene and were given priority in being moved around the site. After waiting for his turn, Zertuche decided to unload the truck himself. Stepping onto his truck, he slipped and fell to the ground, injuring himself. Zertuche filed a general negligence suit against Price. He alleged that he was acting as an independent contractor for Price at the time of his injury. A jury trial was held, and though the jury found Zertuche 40 percent negligent, it also found Price 60 percent negligence and awarded Zertuche nearly $400,000. HOLDING:Reversed and rendered. The court says that before it can get to the basic negligence claim, it must first determine whether Zertuche’s injuries resulted from an activity or from a condition of the premises. Price argues that the trial court erred in submitting this case as a negligence case; it should have been submitted as a premises liability case. The court agrees. In Clayton W. Williams, Jr., Inc. v. Olivo, 952 S.W.2d 523, (Tex. 1997), the high court said that though an owner or occupier of land generally has a duty to use reasonable care to make and keep the premises safe for business invitees, when the a general contractor is involved, the contractor may be liable for two types of negligence in failing to keep the premises safe: 1. that arising from an activity on the premises; and 2. that arising from a premises defect. And, under Corbin v. Safeway Stores Inc., 648 S.W.2d 292 (Tex. 1983), to recover against a general contractor for a premises defect, the injured plaintiff must establish both the general contractor’s right to control the independent contractor’s defect-producing work and a breach of that duty according to the traditional premises defect elements. In his original petition, Zertuche alleged that Price was negligent in: 1. failing to provide a safe place for him to complete his work; 2. failing to direct the bulldozer operator to perform the work necessary to drain the area around the truck and mud hopper; and 3. failing to use reasonable effort to make the premises a safe place to work. The court points out, however, that at the time of his injuries, there were no ongoing activities. Although Zertuche may have been injured by a condition that was not rectified because of Price’s alleged negligence, he was not injured directly by any of Price’s activities. If Zertuche has a cause of action, it can only be characterized as a premises liability claim, and the trial court’s jury trial did not include the necessary elements of a premises liability claim involving general contractors set forth in Corbin. OPINION:Green, J.; Green, Marion and Speedlin, JJ.

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