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Click here for the full text of this decision FACTS:Brad Johnson Sr. was employed as a mechanic by RDO Equipment Company, a heavy equipment dealer. RDO performed repair work on heavy pieces of equipment for various companies. As part of the contract price, RDO provided an experienced mechanic and equipped the mechanic with a field truck and necessary tools. RDO provided field services to numerous sand and gravel mines, and Johnson worked at several of those mines. Trinity Material, Inc. contracted with RDO to provide mechanical services, and RDO sent Johnson to perform the work at a mine owned and operated by Trinity and Transit Mix Concrete & Materials Company (together, Trinity). On the day of the accident, a Trinity employee assigned Johnson to repair the brakes on a Euclid B-30 dirt hauler. The B-30 had mud and sand around the tire and wheel assembly and Johnson had difficulty removing it. Johnson consulted with Trinity employees on how to remove the tire and the employees offered their suggestions. A Trinity employee tried to assist Johnson in removing the tire but returned to his assigned job when unable to remove the tire. Johnson said that he was going to use heat to break up the debris around the tire. Johnson used an acetylene torch with a rosebud attachment to apply heat to the debris. The tire exploded from the heat, and Johnson suffered multiple injuries resulting in his death. Johnson’s family filed suit against Trinity under the Wrongful Death Act, Texas Civil Practice & Remedies Code ��71.001 – .012, and the Texas Survival Statute, Texas Civil Practice & Remedies Code � 71.021. The jury found Trinity negligent and awarded Johnson’s estate and survivors $164 million in damages. In its final judgment, the trial court remitted the award to $27,357,090.83. HOLDING:Reversed and rendered. Trinity argued that that it owed no duty to Johnson, an independent contractor’s employee. The court stated that ordinarily, a general contractor does not owe a duty to ensure that an independent contractor performs its work in a safe manner but a duty does arise if the general contractor retains contractual or actual control over the manner in which the independent contractor performs its work. The court noted that Trinity assigned Johnson to repair the brakes on the B-30, but Trinity did not provide detailed instruction on the method or means of how to perform the job; when Johnson had difficulty completing the assigned task, Trinity employees made suggestions and recommendations on how to perform the task; the Trinity employees whom Johnson consulted were not in a supervisory role over Johnson; and Johnson alone made the decision to use the heat torch in effort to remove the tire. There was no evidence, the court stated, that Johnson was not free to perform the work in his own way or that Trinity approved of Johnson’s use of heat to remove the tire. Trinity assigned the task, the court noted, but Johnson ultimately made the decision to perform the task using heat to remove the tire. By assigning the task, offering suggestions on completing the task, and reserving the right to stop unsafe work practices, Trinity did not exercise control over Johnson’s work so as to create a duty, the court held. OPINION:Wright, C.J.; Wright, C.J., and McCall and Strange, J.J.

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