Texas PJC Malpractice 2022

P REMISES L IABILITY —T HEORIES OF R ECOVERY

PJC 66.3

PJC 66.3

Premises Liability Based on Negligent Activity or Premises Defect—Right to Control

QUESTION ______ Did [ Don Davis ] [ ABC Corporation ] exercise [ or retain ] some control over the manner in which [ the injury-causing activity ] [ the defect-producing work ] was performed, other than the right to order the work to start or stop or to inspect progress or receive reports? Answer “Yes” or “No.” Answer: _______________ COMMENT When to use. PJC 66.3 is a predicate to the appropriate liability question in com mon-law cases brought against an occupier or property owner for (1)the negligent activity of an independent contractor or (2)a premises defect created by an indepen dent contractor’s work. See United Scaffolding, Inc. v. Levine , 537 S.W.3d 463, 479 (Tex. 2017); Dow Chemical Co. v. Bright , 89 S.W.3d 602, 606–07 (Tex. 2002); Lee Lewis Construction, Inc. v. Harrison , 70 S.W.3d 778 (Tex. 2001); Clayton W. Wil liams, Jr., Inc. v. Olivo , 952 S.W.2d 523, 527 (Tex. 1997). In such cases, the injured plaintiff must establish both the occupier or property owner’s right of control over the injury-causing activity or defect-producing work that gives rise to a duty to ensure that the independent contractor performs its work safely, and a breach of that duty. In cases involving property owners that qualify for the protections available under chapter 95 of the Texas Civil Practice and Remedies Code, PJC 66.14 should be used. Substitute name of defendant. The name of the defendant owner or occupier should be substituted for Don Davis or ABC Corporation in the charge. Substitute particular activity or work. Terms describing the particular activity alleged to have caused the injury or work alleged to have produced the defect should be substituted for the phrases the injury-causing activity or the defect-producing work in the charge. Caveat. “A general contractor can retain the right to control an aspect of an inde pendent contractor’s work or project so as to give rise to a duty of care to that indepen dent contractor’s employees in two ways: by contract or by actual exercise of control.” Lee Lewis Construction, Inc. , 70 S.W.3d at 783. The court acknowledged that it had used the phrases “right of control” or “retained control” interchangeably. “The distinc tion remains important, however, because determining what a contract says is gener ally a question of law for the court, while determining whether someone exercised

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