Court of Appeals of Texas,

Eastland.

Clara GARZA et al, Appellants

v.

Bob BECK d/b/a Bob Beck Tubular, Inc., Appellee.

No. 11-05-00067-CV.

 

June 8, 2006.

 

MEMORANDUM OPINION

 

AUSTIN McCLOUD, Senior Justice.

 

This is an appeal from a take-nothing summary judgment. Appellants,  [] who are family members of the victim of a fatal traffic accident, sued various individuals and entities associated with the wreck including Bob Beck d/b/a Bob Beck Tubular, Inc. (Beck). Beck had hired a trucking company to transport some oilfield equipment. While in transit, the trailer turned over and dumped a pump jack onto the highway. Gilbert Garza crashed into the pump jack and died instantaneously. Appellants asserted negligence claims against Beck. Beck moved for summary judgment on both no-evidence and traditional grounds. The trial court granted Beck’s motion. We affirm. []

 

In their petition, appellants essentially alleged that Beck was negligent in hiring and in supervising Pumpjacks, Etc. The elements of a negligence cause of action are a duty, a breach of that duty, and damages proximately caused by the breach of duty. Doe v. Boys Clubs of Greater Dallas, Inc., 907 S.W.2d 472, 477 (Tex.1995). The general rule is that a person employing an independent contractor does not have a duty to see to it that the independent contractor performs its work in a safe manner. Abalos v. Oil Dev. Co. of Tex., 544 S.W.2d 627 (Tex.1976); Jeffery v. Robertson Sales & Serv., Inc., 182 S.W.3d 65, 67 (Tex.App.-Eastland 2005, pet. filed); Howarton v. Minn. Mining and Mfg., Inc., 133 S.W.3d 820, 824 (Tex.App.-Eastland 2004, no pet.). However, if the person retains either actual or contractual control over the manner in which the work is done, a duty may arise as a result of that control. Elliott-Williams Co. v. Diaz, 9 S.W.3d 801 (Tex.1999); Hoechst-Celanese Corp. v. Mendez, 967 S.W.2d 354 (Tex.1998). Under the theory of negligent supervision, a person who employs and retains control over an independent contractor may be liable for failing to exercise reasonable care in supervising the independent contractor’s activity. Id.; Redinger v. Living, Inc., 689 S.W.2d 415, 418 (Tex.1985).

 

Under other circumstances, a person who employs an independent contractor may be liable for the negligent hiring of the independent contractor. See King v. Assocs. Commercial Corp., 744 S.W.2d 209, 213 (Tex.App.-Texarkana 1987, writ denied); Jones v. Sw. Newspapers Corp., 694 S.W.2d 455 (Tex.App.-Amarillo 1985, no writ); Tex. Am. Bank v. Boggess, 673 S.W.2d 398 (Tex.App.-Fort Worth 1984, writ dism’d by agr.); Moore v. Roberts, 93 S.W.2d 236 (Tex.Civ.App.-Texarkana 1936, writ ref’d). Texas recognizes a duty to use ordinary care in employing an independent contractor. Jones, 694 S.W.2d at 458. One hiring an independent contractor may be held responsible for the contractor’s negligent acts if the employer knew or should have known that the contractor was incompetent and a third person was injured because of the contractor’s incompetency. King, 744 S.W.2d at 213; Boggess, 673 S.W.2d at 400.

 

In their brief, appellants present twelve unnumbered issues challenging the summary judgment. In these issues, appellants specifically question whether Beck’s motion for summary judgment addressed all of the causes of action asserted against Beck, whether Beck satisfied his summary judgment burden, whether the affidavit was conclusory, whether perjury was assignable to the affidavit, whether the no-evidence motion was conclusory, whether a trial by affidavit occurred, whether the requirements and rules for a no-evidence summary judgment motion were met, whether the violation of a lease constituted proof of negligence, and whether Beck could avoid liability under federal law by claiming that the trucking company was an independent contractor.

 

We will apply the well-recognized standards of review for summary judgment. We must review a no-evidence summary judgment under the same standard as a directed verdict. King Ranch v. Chapman, 118 S.W.3d 742, 750-51 (Tex.2003). Accordingly, we examine the record in the light most favorable to the nonmovant and disregard all contrary evidence and inferences. Id.; Wal-Mart Stores, Inc. v. Rodriguez, 92 S.W.3d 502, 506 (Tex.2002). A trial court must grant a proper no-evidence motion for summary judgment unless the nonmovant produces more than a scintilla of probative evidence to raise a genuine issue of material fact. Tex.R. Civ. P. 166a(i); Wal-Mart, 92 S.W.3d at 506.

 

With respect to a traditional motion, a trial court must grant a traditional motion for summary judgment if the moving party establishes that no genuine issue of material fact exists and that he is entitled to judgment as a matter of law. Tex.R. Civ. P. 166a(c); Lear Siegler, Inc. v. Perez, 819 S.W.2d 470, 471 (Tex.1991). In order for a defendant to be entitled to summary judgment, he must either disprove an element of each cause of action or establish an affirmative defense as a matter of law. Am. Tobacco Co. v. Grinnell, 951 S.W.2d 420, 425 (Tex.1997). Once the movant establishes a right to a summary judgment, the nonmovant must come forward with evidence or law that precludes summary judgment. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678-79 (Tex.1979). When reviewing a summary judgment, the appellate court takes as true evidence favorable to the nonmovant. Am. Tobacco Co., 951 S.W.2d at 425; Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex.1985).

 

In his motion for summary judgment, Beck contended that he was entitled to summary judgment on the negligence claims brought against him, including negligent hiring and negligent supervision. Beck’s contentions with respect to the traditional motion for summary judgment were based upon the following facts: he hired an independent contractor to transport the oilfield equipment; he exercised no control over the independent contractor or its employees; he had no right to exercise any such control; and he had no knowledge of any deficiencies on the part of the independent contractor. Beck also asserted that there was no evidence that the independent contractor was incompetent or that Beck knew or should have known that the independent contractor was incompetent or inadequately equipped.

 

Attached to the motion were Beck’s affidavit and excerpts from the truck driver’s deposition. This summary judgment evidence showed that Beck hired Pumpjacks, Etc., an independent contractor, to load and transport some oilfield equipment. Other than hiring Pumpjacks, Etc. to load, transport, and unload oilfield equipment on this and other previous occasions, Beck had no affiliation with Pumpjacks, Etc. or its driver, Jesus Natividad Villescaz. The uncontroverted summary judgment evidence showed that Beck did not retain the right to control the work and that he did not in fact exercise any control over the work performed by Pumpjacks, Etc. and its employees. The evidence also showed that Pumpjacks, Etc. had previously transported pump jacks and other oilfield equipment for Beck without incident. These facts, as set forth in Beck’s affidavit and Villescaz’s deposition, were not conclusory and were properly considered by the trial court.

 

Appellants responded to Beck’s motion and objected to Beck’s affidavit. Appellants attached summary judgment evidence such as a contract between third parties for the plugging of the wells and some deposition excerpts. However, none of appellants’ summary judgment evidence raised a genuine issue of material fact as to Beck’s duty or his knowledge of the incompetence of Pumpjacks, Etc.

 

There was no summary judgment evidence indicating that Pumpjacks, Etc. was anything other than an independent contractor or that Beck was negligent in hiring Pumpjacks, Etc. Pumpjacks, Etc. was not a party to the agreement that was allegedly violated. Furthermore, contrary to appellants’ final contention, federal law under the Interstate Common Carrier Act  [] was not applicable to this case because it did not involve an interstate carrier or a leased truck. See generally Morris v. JTM Materials, Inc., 78 S.W.3d 28, 38- 39 (Tex.App.-Fort Worth 2002, no pet.).

 

We have considered all of appellants’ issues, and each is overruled. We hold that Beck was entitled to summary judgment as a matter of law on both the negligent hiring and the negligent supervision causes of action. With respect to the negligent supervision cause of action, the summary judgment evidence established that Beck hired an independent contractor and that Beck had no duty with respect to and no control over the independent contractor’s work. With respect to the negligent hiring cause of action, there was no evidence to support the element of that cause of action regarding Beck’s knowledge or imputed knowledge of the independent contractor’s incompetence.

 

The judgment of the trial court is affirmed.

 

Appellants are Clara Garza, individually and on behalf of the Estate of Gilbert Garza, deceased, and as next friend of Morgan Alyse Garza and Sierra Jane Garza, minors; Briana Rae Garza, individually and as the child of Gilbert Garza, deceased; and Juanita Villarreal Garza, individually.

 

The trial court entered an order severing appellants’ claims against Beck from those against the other defendants. Consequently, any claims against the remaining defendants are not at issue in this appeal.

 

See 49 U.S.C. §  14.102.

 

Austin McCloud, Retired Chief Justice, Court of Appeals, 11th District of Texas at Eastland sitting by assignment.

 

Not Reported in S.W.3d, 2006 WL 1554606 (Tex.App.-Eastland)