Fifth Club, Inc. v. Ramirez

196 S.W.3d 788, 49 Tex. Sup. Ct. J. 863, 2006 Tex. LEXIS 638, 2006 WL 1792214
CourtTexas Supreme Court
DecidedJune 30, 2006
Docket04-0550
StatusPublished
Cited by208 cases

This text of 196 S.W.3d 788 (Fifth Club, Inc. v. Ramirez) is published on Counsel Stack Legal Research, covering Texas Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Fifth Club, Inc. v. Ramirez, 196 S.W.3d 788, 49 Tex. Sup. Ct. J. 863, 2006 Tex. LEXIS 638, 2006 WL 1792214 (Tex. 2006).

Opinions

Justice GREEN

delivered the opinion of the Court,

in which Chief Justice JEFFERSON, Justice O’NEILL, Justice BRISTER, and Justice MEDINA joined, and in which Justice HECHT, Justice WAINWRIGHT, Justice JOHNSON, and Justice WILLETT joined as to Parts I, II, and III.

In this case we revisit the rule that an employer is generally not liable for the acts of an independent contractor unless the employer exercises sufficient control over the details of the independent contractor’s work. See Lee Lewis Constr., Inc. v. Harrison, 70 S.W.3d 778, 788 (Tex.2001). We do so to consider whether a “personal character exception” makes a business owner’s duties to the public non-delegable when contracting for private security services to protect its property. Because we do not recognize a personal character exception to the rule that an owner is not liable for the tortious acts of independent contractors, and because the evidence in this case is legally insufficient to support the jury’s negligence, malice, and exemplary damages findings against the owner, we reverse and render judgment in the owner’s favor.

We do find legally sufficient evidence to support the future mental anguish damages award against the independent contractor and affirm the judgment as to the contractor.

I. Facts and Procedural History

Fifth Club, Inc. operates an Austin nightclub known as Club Rodeo. David West, a certified peace officer, was hired as an independent contractor by Fifth Club to provide security at the nightclub.1 Late one night, Roberto Ramirez arrived at Club Rodeo after several hours of drinking. Ramirez and his brother tried to enter the club but were denied admission by the doorman, allegedly because they were intoxicated. The doorman, an employee of Fifth Club, signaled to West and another parking lot security officer to escort Ramirez and his brother out of the club’s entrance. West allegedly grabbed Ramirez, slammed Ramirez’s head against a concrete wall, knocking him unconscious, and then struck him several times. The altercation resulted in multiple injuries to Ramirez, including a fractured skull. West moved Ramirez to the parking lot and placed him in handcuffs. The police arrived and arrested Ramirez, but a grand jury later declined to indict Ramirez on the charge of assaulting a police officer. Ramirez sued West and the club for damages.

[791]*791Ramirez claims Fifth Club is vicariously liable for West’s conduct in spite of his independent contractor status because it controlled West’s security activities. Ramirez further claims that Fifth Club assumed a personal and nondelegable duty by contracting for security services to protect its property. Under Ramirez’s theory, the personal character of this duty, of hiring security personnel to protect business invitees and the premises, allows an employer to be hable for intentional acts of its independent contractor.

A jury found Fifth Club vicariously ha-ble for West’s conduct and for negligence and mahce in its hiring of West. The jury awarded Ramirez actual damages that included future mental anguish damages and exemplary damages. The court of appeals affirmed.2 144 S.W.3d 574, 592 (Tex. App. — Austin 2004, pet. granted).

Fifth Club contends there is legally insufficient evidence it retained sufficient control over West’s security activities to make it vicariously hable for his conduct. It also argues there is no personal character exception to the rule that insulates employers from the tortious acts of independent contractors. Fifth Club further asserts there is legally insufficient evidence to support the finding of mahce in its hiring of West. And finally, both Fifth Club and West claim there is legally insufficient evidence to support the award of future mental anguish damages. We address each argument in turn.

II. Fifth Club’s Liability for West’s Conduct

A. Control

Generally, an employer has no duty to ensure that an independent contractor performs its work in a safe manner. See Lee Lewis Constr., Inc., 70 S.W.3d at 783. However, an employer can be held vicariously liable for the actions of an independent contractor if the employer retains some control over the manner in which the contractor performs the work that causes the damage. See id. In Re-dinger v. Living, Inc., we explained that

[o]ne 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 owes a duty to exercise reasonable care, which is caused by his failure to exercise his control with reasonable care.

689 S.W.2d 415, 418 (Tex.1985) (quoting RESTATEMENT (SECOND) OF TORTS § 414 (1977)). We held the general contractor liable for the actions of the independent contractor in Redinger because the general contractor retained “the power to direct the order in which the work was to be done and to forbid the work being done in a dangerous manner.” Id.; see Coastal Marine Serv. of Tex., Inc. v. Lawrence, 988 S.W.2d 223, 226 (Tex.1999) (“The supervisory control must relate to the activity that actually caused the injury, and grant the owner at least the power to direct the order in which work is to be done or the power to forbid it being done in an unsafe manner.”). We further explained in Koch Refining Co. v. Chapa that a right of control requires more than

a general right to order the work stopped or resumed, to inspect its progress or to receive reports, to make sug[792]*792gestions or recommendations which need not necessarily be followed, or to prescribe alterations and deviations. Such a general right is usually reserved to employers, but it does not mean that the contractor is controlled as to his methods of work, or as to operative detail. There must be such a retention of a right of supervision that the contractor is not entirely free to do the work in his own way.

11 S.W.3d 153, 155 (Tex.1999) (quoting RESTATEMENT (SECOND) OF TORTS § 414 cmt. c (1965)). Employers can direct when and where an independent contractor does the work and can request information and reports about the work, but an employer may become liable for the independent contractor’s tortious acts only if the employer controls the details or methods of the independent contractor’s work to such an extent that the contractor cannot perform the work as it chooses. Id. at 155-56.

In this case, there was no evidence that Fifth Club gave more than general directions to West or that it retained the right to control the manner in which West performed his job. Fifth Club’s action in directing West to remove Ramirez from the premises did not rise to the level of directing how the work was to be performed or directing the safety of the performance because West retained the right to remove Ramirez by whatever method he chose. Fifth Club, therefore, cannot be held vicariously liable for West’s conduct.

B. Personal Character Exception

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Bluebook (online)
196 S.W.3d 788, 49 Tex. Sup. Ct. J. 863, 2006 Tex. LEXIS 638, 2006 WL 1792214, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fifth-club-inc-v-ramirez-tex-2006.