The Dallas Court of Appeals has affirmed a Dallas County district court’s order granting summary judgment to an independent contractor and subcontractor in a wrongful death action.
Christina C. Torres, Individually and as Next Friend of L.N.T., a Minor and as Representative of the Heirs and Estate of Jon Paul Torres, Deceased, and Jennifer P. Navarrete, as Next Friend of J.A.N., a Minor, and Donna R. Adair v. Ten Hagen Excavating, Inc. and Fairview Construction, L.L.C. (No. 05-24-00827-CV; March 6, 2026) arose from a fatality accident at a construction site in Parker County. Decedent, an employee of Ten Hagen, was run over by a tractor-trailer operated by an employee of Lobo Transportation. Plaintiffs sued Ten Hagen, a subcontractor, and Fairview, the general contractor for the project, asserting negligence and gross negligence against Fairview and gross negligence against Ten Hagen. Fairview moved for traditional summary judgment on the basis of no duty and proximate cause. Ten Hagen moved for no-evidence and traditional summary judgment. The trial court granted the motions. Plaintiffs appealed.
In an opinion by Justice Jackson, the court of appeals affirmed. As to Fairview, Plaintiffs argued that it failed to conclusively show that it did not have actual or contractual control over Ten Hagen’s or the deceased’s work. Fairview’s subcontract with Ten Hagen specified that Ten Hagen “shall be an independent contractor and shall assume all the rights, obligations, and liabilities applicable to it as an independent contractor.” The subcontract further limited Fairview’s oversight to the performance of the work in accordance with the subcontract. As SCOTX held in Dow Chemical Co. v. Bright, 89 S.W.3d 602-607 (Tex. 2002), “any provisions in the subcontract that could be read to grant the contractor a right to control the means, methods, or details of the subcontractor’s work must be deemed to mean that the subcontractor ‘would follow the [contractor’s] desires in the results of the work only.” The Dow case involved a subcontract nearly identical with the one here. It granted Fairview only “supervisory control,” not control over “the means, methods, or details” of the work.
Plaintiffs argued further that Fairview’s master contract with the site owner, which obligated Fairview to subcontract and made it responsible for “construction means, methods, techniques, sequences and procedures, and for coordinating for all portions of the Work under the Contract,” as well as for safety programs, incorporated Ten Hagen’s subcontract and imputed control to Fairview. But the master contract also required Fairview to assign its responsibilities to independent subcontractors, including details of the work and safety. Fairview made such an assignment to Ten Hagen. Plaintiffs insisted that the deceased never agreed to that but “cited no authority for the proposition that [the deceased], who is not a party to either contract, must assent to the assignment.” The court concluded that “Fairview did not retain sufficient contractual control over Ten Hagen’s work to create a duty owed to Torres.”
Turning to the question of actual control, the court reviewed Fairview’s summary judgment evidence, which included an affidavit from Ten Hagen’s owner that stated that Fairview “had no presence” at the site on the date of the accident and that Ten Hagen’s work that day was entirely within the scope of its subcontract. Simply put, Fairview couldn’t control Ten Hagen’s work because it “was not onsite or involved in the means, methods, or details.” Ten Hagen’s discovery responses likewise admitted that Fairview did not retain actual control over its work. Based on this evidence and the absence of controverting evidence, the court held that the trial court did not err in granting Fairview’s MSJ.
As to their gross negligence claim against Ten Hagen, Plaintiffs argued that they raised genuine issues of material fact to show gross negligence. That meant Plaintiffs “w[ere] required to provide evidence showing that Ten Hagen knew of an extreme risk and its acts or omissions demonstrated indifference to the consequences of its conduct. (citation omitted). The risk must be examined prospectively from the perspective of the actor and not in hindsight. (citation omitted).” Plaintiffs submitted the OSHA report, which indicated that Ten Hagen admitted that “maybe his management slacked on the safety requirements.” Although Ten Hagen objected to submission of the report as improper summary judgment evidence, the court didn’t need to address that “because nothing in the OSHA report shows that either Scott Ten Hagen or [the onsite Ten Hagen employee] had any awareness that the absence of safety vests or training on traffic control procedures created an extreme degree of risk that they consciously chose to disregard.” Additionally, “[n]othing in the OSHA report indicate[d] [the deceased’s] visibility was a factor in the accident. All the evidence show[ed] that [the truck driver] steered the cab of the truck around [the deceased] and [the deceased] was struck by the rear trailer.” As to the OSHA report’s indication that Ten Hagen knew the deceased had not been trained on traffic control procedures, Plaintiffs produced no evidence as to “what those practices were, whether they would have prevented the accident, or that Ten Hagen knew the absence of traffic control training created an extreme risk of injury.” The court affirmed the trial court’s judgments.
