DISSENTING OPINION ON EN BANC RECONSIDERATION The majority errs in analysis of whether Pasadena Refining Systems, Inc. (‘”PRSI’”) retained contractual control of the work being done on its premises. Accordingly, I dissent. The threshold inquiry in a negligence case “is whether the defendant owes a legal duty to the plaintiff.” Boerjan v. Rodriguez, 436 S.W.3d 307, 310 (Tex. 2014) (per curiam). A general contractor generally does not owe a duty of reasonable care to an independent contractor’s employee. See JLB Builders, L.L.C. v. Hernandez, 622 S.W.3d 860, 864–65 (Tex. 2021); Lee Lewis Constr., Inc. v. Harrison, 70 S.W.3d 778, 783 (Tex. 2001). But a duty of care may arise if the general contractor retains some control over the manner in which the independent contractor performs its work. Dow Chem. Co. v. Bright, 89 S.W.3d 602, 606 (citing Redinger v. Living, Inc., 689 S.W.2d 415, 418 (Tex. 1985)). Texas has adopted section 414 of the Restatement (Second) of Torts, which states: One who entrusts work to an independent contractor, but who retains the control of any part of the work, is subject to liability for physical harm to others for whose safety the employer owed a duty to exercise reasonable care, which is caused by his failure to exercise his control with reasonable care. Restatement (Second) of Torts § 414 (1977); see also Redinger, 689 S.W.2d at 418 (adopting section 414); Brazos Contractors Dev., Inc. v. Jefferson, 596 S.W.3d 291, 301 (Tex. App.–Houston [14th Dist. 2019], pet. denied) Control may be established in two ways: (1) by evidence of a contractual agreement that explicitly assigns the general contractor a right to control, or (2) by evidence that the general contractor actually exercised control over the manner in which the independent contractor’s work was performed. Dow Chem. Co., 89 S.W.3d at 606; Lee Lewis Constr., Inc., 70 S.W.3d at 783. When reviewing a contract, our goal is to determine the parties’ true intentions as expressed in the instrument. See Coker v. Coker, 650 S.W.2d 391, 393 (Tex. 1983). We give the contract’s words their plain and ordinary meaning unless the contract indicates the parties intended a different meaning. See Dynegy Midstream Servs., Ltd. P’ship v. Apache Corp., 294 S.W.3d 164, 168 (Tex. 2009). We also bear in mind the particular business activity to be served and, when possible and proper to do so, we avoid a construction that is unreasonable, inequitable, and oppressive. See Frost Nat’l Bank v. L&F Distribs., Ltd., 165 S.W.3d 310, 312 (Tex. 2005) (per curiam). We do not read any provision in isolation but consider each provision with reference to the contract as a whole. See Coker, 650 S.W.2d at 393. If the contract’s language can be given a definite legal meaning or interpretation, then it is not ambiguous, and we will construe the contract as a matter of law. See El Paso Field Servs., L.P. v. MasTec N. Am., Inc., 389 S.W.3d 802, 806 (Tex. 2012) (citing Italian Cowboy Partners, Ltd. v. Prudential Ins. Co. of Am., 341 S.W.3d 323, 333 (Tex. 2011)). To establish a duty of care, a contract must grant the general contractor “the right to control the means, methods, or details of the independent contractor’s work” and, at the very least, “the power to direct the order in which work is to be done.” Dow Chem. Co., 89 S.W.3d at 606 (citing Elliott-Williams Co. v. Diaz, 9 S.W.3d 801, 804 (Tex. 1999)). There also must be a nexus between the general contractor’s retained control and the condition or activity that causes the injury. Hoechst-Celanese Corp. v. Mendez, 967 S.W.2d 354, 356 (Tex. 1998) (per curiam). When a party contractually retains a right of control over an independent contractor’s work, the failure to exercise that control will not negate the party’s potential liability for an on-the-job injury. Brazos Contractors, 596 S.W.3d at 302; Elliott-Williams Co., 9 S.W.3d at 804; see also Johnston v. Oiltanking Houston, L.P., 367 S.W.3d 412, 417 (Tex. App.—Houston [14th Dist.] 2012, no pet.). In Dow Chemical Co., the contract at issue clearly disclaimed any retention of a contractual right of control on behalf of the general contractor and stated: ‘”any provisions in this Contract which may appear to give DOW the right to direct CONTRACTOR as to details of doing the work herein covered or to exercise a measure of control over the work shall be deemed to mean that CONTRACTOR shall follow the desires of DOW in the results of the work only.’” 89 S.W.3d at 606–07. This provision, the Supreme Court concluded, did “not delegate to Dow the right to control the means, methods, or details” of the subcontractor’s work as necessary to give rise to a contractual right of control. Id. at 607; Brazos Contractors, 596 S.W.3d at 302; see also Jacobs v. Huser Constr., Inc., 429 S.W.3d 700, 704–05 (Tex. App.—San Antonio 2014, no pet.) (similar contract language merely gave the general contractor the right to ensure the work met “specifications and schedules” but did not retain “control over the details” of the subcontractor’s work). In contrast, contracts that grant the general contractor broad supervisory control over the independent contractor’s work are more likely to give rise to a contractual right of control. E.g., Redinger, 689 S.W.2d at 418 (a party that retains “supervisory control” over a subcontractor’s work has a duty to exercise that supervisory control with reasonable care) (citing Restatement (Second) of Torts § 414 cmt. a (1965)). Here, the contract between PRSI and 3-J Ryan specifically provides: “When the PRSI notifies the Contractor, either verbally or in writing, that the Contractor is not complying with a safety and health requirement either set forth in this Contract or incorporated by reference, the Contractor shall correct the deficiency immediately.’” This provision is unambiguous, and we construe its meaning as a matter of law. See El Paso Field Servs., L.P., 389 S.W.3d at 806. Though the provision is not a retention of general supervisory authority, it does reserve to PRSI the right to require 3-J Ryan to “correct” an unsafe work practice. 3-J Ryan is thus not free to do the work entirely in the manner it sees fit. The rights retained by this provision are analogous to those necessary to establish a contractual right of control and granted to PRSI certain of the means, methods, or details of Ryan’s work. See Dow Chem. Co., 89 S.W.3d at 606; Brazos Contractors, 596 S.W.3d at 302–03. Contractual control was thus retained, and a duty was owed to Torres. Peter Kelly Justice The en banc court consisted of Justices Kelly, Goodman, Landau, Hightower, Countiss, Rivas-Molloy, Guerra, Farris, and Radack.* Justice Kelly, dissenting.
