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Click here for the full text of this decision FACTS:Ellwood Texas Forge Corp. is a steel-forging plant located in Houston. During the forging process, a manipulator is used to transfer heated metal in and out of furnaces and into a press that is used to shape the metal into forms. The manipulator has a cab where the operator sits and operates its controls. Because the manipulator is near the furnace, it is hot inside the cab, so Ellwood installed air conditioning units on its manipulators. In June 2001, Ellwood hired Process Installations (PI), an independent contractor that had worked for Ellwood in the past and was familiar with the plant, to perform several jobs on its premises including removing and replacing the air conditioning unit on one of the manipulators. The unit to be replaced was on top of the manipulator’s cab, about 12 feet above the ground. To accomplish the job, PI provided a crew consisting of supervisor Robert Wesley and two workers, Bobby Jones and Andy Franco. Wesley met with Jimmy Wegner, the maintenance coordinator at Ellwood, to discuss replacing the air conditioner on the manipulator. Wegner gave Wesley a copy of the air conditioning manufacturer’s diagram of the unit and told him to replace the old air conditioning unit with a new one. Wegner gave no additional directions or orders concerning the work. The PI crew went to work removing the old air conditioning unit and replacing it with the new one. At some point, as the new unit was lowered onto its base, Jones climbed up a ladder to the top of the manipulator to check the unit’s placement while Franco operated a crane used to lower the unit on top of the manipulator’s cab. Jones was not using any fall protection. After the unit was lowered into place on top of the cab, Jones fell and was injured. He and his wife, Kelly, sued Ellwood for negligence. At trial, one of the issues was whether Ellwood controlled the PI employees’ work. A jury returned a verdict in favor of the Joneses and the trial court entered a final judgment on the jury’s verdict. On appeal, Ellwood contends, among other things, that the evidence was legally and factually insufficient to support the jury’s finding that Ellwood retained or exercised control over PI’s work. HOLDING:Reversed and rendered. The court found that Ellwood’s maintenance supervisor had the right to forbid PI’s employees from working on the manipulator without fall protection but did not stop PI’s employees from doing so and did not require them to use proper fall protection before continuing. These facts, the court stated, do not constitute evidence that Ellwood retained or exercised control over PI’s installation of the air conditioner on the manipulator on its premises. Because Texas Civil Practice and Remedies Code �95.003(1) requires that the property owner exercise or retain some control over the manner in which the work is performed before a court may find the owner liable for negligent supervision of independent contractors under Chapter 95, the Joneses cannot prevail on their claims. OPINION:Fowler, J.; Fowler, Edelman and Frost, J.J.

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