PJC General Negligence 2022

A GENCY AND S PECIAL R ELATIONSHIPS

PJC 10.9

PJC 10.9 Independent Contractor by Written Agreement A written contract expressly excluding any right of control over the details of the work is conclusive as to Don Davis ’s status as an independent contractor unless— 1. it was a subterfuge from the beginning; or 2. it was persistently ignored; or 3. it was modified by subsequent express or implied agreement of the parties. COMMENT When to use—given after definition of “independent contractor.” PJC 10.9 should be given if a written contract tends to establish an independent contractor rela tionship but evidence is introduced that, in practice, actual control was persistently exercised. See Newspapers, Inc. v. Love , 380 S.W.2d 582 (Tex. 1964), superseded by statute on other grounds as stated in Robles v. Mount Franklin Food, L.L.C. , 591 S.W.3d 158 (Tex. App.—El Paso 2019, pet. denied); Elder v. Aetna Casualty & Surety Co. , 236 S.W.2d 611 (Tex. 1951). If this question is raised by the evidence, this instruction should be given immediately after the definition of “independent contrac tor” in PJC 10.8. For cases involving a property owner’s liability to contractors, sub contractors, or their employees under chapter 95 of the Texas Civil Practice and Remedies Code, see the current edition of State Bar of Texas, Texas Pattern Jury Charges—Malpractice, Premises & Products PJC 66.14.

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