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Click here for the full text of this decision FACTS:Marine Max hired Adrian Industrial Constructors Inc. to strip the existing shell of a metal building and replace it with new metal skin. Billy Ray Combs, Adrian’s president, entered into discussions with Jose de Santiago, the president of Desco Steel Erectors & Concrete Inc., to work on the project. At some point during the discussions, Adrian sent Desco a subcontract agreement to sign. Adrian also requested, both orally and in the contract itself, that Desco maintain liability insurance. Desco began working on the project, despite never signing the agreement or sending proof of insurance in its own name. Desco hired Soto and two other employees to work on the project. On the third day of work, Flavio Gonzales-Soto fell through a skyglass window and was killed. Luis Arturo Guevera Belteton, temporary administrator of the estate of Soto and related plaintiffs (collectively, Belteton) brought an action for negligence and gross negligence against several defendants, including Adrian. Adrian filed a no-evidence motion for summary judgment, which was granted on May 25, 2004. The court granted Belteton’s motion to reconsider and vacate the no-evidence summary judgment on Nov. 19, 2004. Adrian then filed a traditional motion for summary judgment, which was granted on Jan. 11, 2006. The court denied Belteton’s motion to reconsider and vacate the second motion for summary judgment. All other parties settled with Belteton pursuant to final judgments. Belteton appealed solely as to Adrian. HOLDING:Affirmed. Belteton sued Adrian based on theories of negligence and gross negligence. Common law negligence consists of three elements: 1. a legal duty owed by one person to another; 2. a breach of that duty; and 3. damages proximately resulting from the breach. Belteton alleged that Adrian owed Soto a duty: 1. through Adrian’s agency relationship with Desco; 2. because Adrian had a sufficient degree of control over Desco; 3. as a premises owner of the property on which Soto died; and 4. in employing Desco. Belteton pointed to the absence of a written agreement establishing a general contractor/independent contractor relationship as evidence that Desco was not an independent contractor of Adrian. But the court stated that a written agreement is not required to establish a general contractor/independent contractor relationship. Therefore, Belteton’s assertion that there was no written agreement failed to respond to Adrian’s summary judgment evidence that showed Adrian had no right to control Desco. Thus, the court found that Belteton failed to present any evidence raising a material fact issue that Desco was an agent of Adrian. Belteton also argued that Adrian had sufficient control over Desco such that it assumed a duty to ensure that Desco performed its work safely. Generally, the court stated, a general contractor does not have a duty to ensure that an independent contractor safely performs his work. When the general contractor retains some control over the independent contractor’s work, however, the court stated that the general contractors must exercise that control with reasonable care. Even if Adrian exercised control in requiring that Desco purchase liability insurance, it did not breach any duty, the court found. Similarly, the court found that Adrian did not exercise control relevant to its duty of care in its control of when Desco began work. The presence of Adrian’s president at the job site was not reasonable evidence of control, the court added. The court also found no evidence of premises defects created by Adrian. Premises defects created by Desco did not transfer to Adrian, the court found, because Adrian did not exercise control of the job site. Finally, the court found no evidence to raise a material fact issue that Soto was a third party rather than an employee of Desco. In conclusion, the court found that Belteton did not raisede a material fact issue as to whether Adrian owed a duty to Soto sufficient to support his negligence claims. OPINION:Hedges, C.J.; Hedges, C.J., and Fowler and Edelman, J.J.

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