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Texas case looks at contractual right to control at construction site

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No duty of care

In the case of Horton v. MMM Ventures LLC, Individually and as General Partner of Crescent Estates Custom Homes LP, and Crescent Estates Custom Homes LP, the Court of Appeals for the Fifth District of Texas at Dallas affirmed the judgment of the trial court in Crescent’s favor. Crescent owed the plaintiff no duty of care, the appellate court ruled.

First, the appellate court found that the evidence did not support that Crescent had a contractual right to control who could use the forklift and how they could use it to perform the work on the day of the accident. The evidence also did not prove to whom the forklift belonged.

The owner of M&C Roofing, another subcontractor involved in this case, had no way of knowing whether Crescent exercised control over the job that day because he was not present at the site and had no idea about the occurrences relating to the forklift or the employee’s injury, the appellate court said. None of the witnesses present that day testified that Crescent had contractual control of the forklift, the appellate court added.

Second, the appellate court held that the evidence did not establish that Crescent exercised actual control over the way that Henry Steel or the worker performed the job, over the timing and sequence of the work of Henry Steel’s employees, or over the worker’s duties as an independent contractor.

However, Henry Steel’s owner, who was also the head subcontractor for Henry Steel on this project, testified that he controlled how the job would be performed and what they had to do to lower the steel into the basement. He stated that he spoke about this to the worker.

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