Texas SC: Contractor can't bring premises condition claim unless defect concealed

By Steve Korris | Jun 18, 2008

Justice Scott Brister

AUSTIN – General Electric Company bears no liability for injuries a contractor suffered when his bungee cord broke and he fell from a loading ramp at a GE warehouse, the Texas Supreme Court ruled June 13.

Five of nine justices agreed that Arthur Moritz could not bring a negligence claim against GE for failing to install a hand rail on the ramp.

"If Moritz wanted to use bungee cords and lean over backwards, that was his business; but he could not require GE to keep him safe no matter how he chose to do his own work," wrote Justice Scott Brister.

Three justices dissented, arguing that Moritz's status as a contractor did not relieve GE of a duty to warn him of defects on its premises.

Moritz worked for a company that delivered GE parts to customers. Every working day he drove a pickup truck to a loading dock at a GE warehouse in Tarrant County. He either backed his truck up a ramp through a door and into the warehouse, or parked at ground level below a door that lacked a ramp.

One day, with supplies blocking both doors, he parked on the ramp. Two GE employees helped him fill the bed of his pickup with electrical conduit.

He secured the load with ratchet straps and began to tighten it with a bungee cord. As he leaned back to stretch the cord, it broke. Moritz fell from the side of the ramp. He fractured his pelvis, a hip and a thumb.

He sued GE, alleging negligence in activities and in conditions of the premises.

Tarrant County District Judge Robert McCoy granted summary judgment in GE's favor on both theories, but the 2nd District appeals court in Fort Worth reversed McCoy.

On appeal, the Supreme Court cleared GE.

There was some evidence that GE controlled where Moritz loaded his truck, Brister wrote, but there was no evidence that GE controlled how he secured his load.

Brister wrote that "the truck, straps and rubber cords he used for that purpose were entirely his own."

He wrote, "Moritz admitted at his deposition that he could have driven off the ramp before securing this load."

He wrote that a contractor can't bring a premises condition claim unless an existing defect was concealed.

The absence of rails on the ramp was obviously not concealed, he wrote.

"Like any other negligence action, a defendant in a premises case is liable only to the extent it owes the plaintiff a legal duty," he wrote.

"Whether such a duty exists is a question of law for the court; it is not for the jury to decide under comparative negligence or anything else," he wrote.

"When a defendant hires an independent contractor to come on premises and perform work as it sees fit, the defendant may reasonably expect the contractor to instruct its own employees on the safe means and manner of doing so," Brister wrote.

Justices Nathan Hecht, Dale Wainwright, David Medina and Don Willett joined Brister.

Chief Justice Wallace Jefferson and Justices Paul Green and Phil Johnson dissented.

"The Court today abandons long standing principles of premises liability law in its effort to shield landowners and occupiers from liability for known premises defects," Green wrote.

Moritz had no authority to alter the premises conditions, he wrote, and could not require the placement of rails along the ramp.

"GE owed a duty to either warn Moritz of the dangerous premises condition or to make it safe," he wrote.

Justice Harriet O'Neill did not participate in the decision.

Robert Arredondo represented GE. Frank Giunta represented Moritz.

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