PER CURIAM
We face two questions regarding liability following an accident between a tandem truck
Cuahutemoc ("Tim") Gonzalez, the owner and sole proprietor of Gonzalez Farms, agreed to harvest Chester Farms' silage
On October 5, 2009, Garcia brought to the farm several trucks he had previously used to transport the silage, along with a tandem truck and a new driver, Raymond Ramirez. On the tandem truck's first trip to the feed yard, a tire blew out, causing Ramirez to lose control and careen into oncoming traffic, colliding with the car in which Tammy Jackson and her fourteen-year-old daughter, Rexee Jo, were traveling. The collision tragically killed all three.
Samuel Lee Jackson — Rexee Jo's father and Tammy's former husband — filed suit in his individual capacity, as representative of Rexee Jo's estate, and as next friend of his minor son against Garcia and Gonzalez. As to Gonzalez, Jackson asserted direct claims for negligent overloading and negligent hiring and also sought to hold him vicariously liable for the actions of Garcia and Ramirez based on Gonzalez's alleged status as a motor carrier under both the Federal and Texas Regulations.
The Ramirezes later nonsuited their claims against Garcia. The trial court severed
The court of appeals affirmed as to Jackson's negligent overloading claim, but a divided court reversed as to the no-evidence summary judgment on Jackson's claim under the Texas Regulations and on the Ramirezes' negligence claims based on retained control, concluding that the plaintiffs had raised fact issues as to these claims.
We first address whether Gonzalez can be held liable as a motor carrier for Jackson's damages. The Federal Regulations impose various duties on motor carriers who classify their drivers as independent contractors in order to avoid liability for the drivers' negligence. Morris v. JTM Materials, Inc., 78 S.W.3d 28, 37-38 (Tex.App.-Fort Worth 2002, no pet.); see, e.g., 49 C.F.R. parts 376, 385, 387, 390, 391, 396. The Federal Regulations apply only to transportation in interstate commerce. See 49 C.F.R. §§ 387.3(a), 390.3(a). Jackson argues that, because motor vehicles are "the quintessential instrumentalities of modern interstate commerce," United States v. Bishop, 66 F.3d 569, 588 (3d Cir.1995), federal law governs this matter. But the Federal Regulations specifically define "interstate commerce" as
49 C.F.R. § 390.5.
Jackson alternatively argues that Gonzalez is liable as a motor carrier and employer under the Texas Regulations.
The court of appeals held that fact issues exist as to Gonzalez's status as a motor carrier and employer under the Texas Regulations, as to Garcia's and Ramirez's status as employees under the same, and, consequently, as to Gonzalez's vicarious liability for Garcia's negligence.
As an initial matter, we note that this line of cases has inadvertently confused federal and state law. Martinez relied on Morris and Sharpless v. Sim, 209 S.W.3d 825 (Tex.App.-Dallas 2006, pet. denied), for the general proposition that "[a] motor carrier is vicariously liable for the negligence of its `statutory employee' drivers." 355 S.W.3d at 184.
Martinez cited Morris's general proposition,
However, Jackson alternatively argued in the trial court and court of appeals that Gonzalez breached duties imposed on motor carriers by parts of the Federal Regulations that, unlike Part 376, have been adopted in Texas.
We review the evidence presented by a no-evidence motion for summary judgment and response "in the light most favorable to the party against whom the summary judgment was rendered, crediting evidence favorable to that party if reasonable jurors could, and disregarding contrary evidence unless reasonable jurors could not." Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex.2006).
As discussed above, Gonzalez was a "motor carrier" under the Texas Regulations if he "control[led], operate[d], or direct[ed]" the operation of the truck. TEX. TRANSP. CODE § 643.001(6). In analyzing whether a defendant is a motor carrier, we focus on the specific transaction at issue. See Camp v. TNT Logistics Corp., 553 F.3d 502, 507 (7th Cir.2009); Harris v. Velichkov, 860 F.Supp.2d 970, 979 (D.Neb. 2012) (holding that FedEx's authority to operate as a motor carrier was irrelevant in determining whether FedEx actually acted as a motor carrier).
In Martinez, Hays controlled the worksite and was ultimately responsible for hauling the dirt, but exercised no control over the route drivers took or which driver operated a particular truck. 355 S.W.3d at 185. However, when a driver reported to Hays, Hays checked the driver's proof of insurance and license, provided a hauling permit to the driver, loaded the dump truck, and informed the driver of the destination; upon delivery, the driver was given a receipt that he returned to Hays, and Hays indirectly paid the driver on a per-load basis. Id. at 174, 185. The court held that there was a fact issue whether Hays controlled, operated, or directed the operation of a truck involved in an accident while hauling the dirt. Id.
In Castillo, the court reached the opposite conclusion. 392 S.W.3d at 306. As Hellen, a Gulf Coast contractor driving a truck owned by a third party, backed the truck into Gulf Coast's designated unloading area at a livestock auction barn, he struck and injured Castillo. Id. at 301. Gulf Coast's website stated that hauling was available, but Gulf Coast explained that this meant only that Gulf Coast could find a truck and a driver when the cattle owner could not transport the cattle to the auction barn. Id. at 304-05. Gulf Coast did not perform the loading or direct the size of the load, direct the route to be taken by the drivers, or exercise any other control over the trucks or the drivers as they transported the livestock. Id. at 305.
Here, in holding that the evidence presented a fact issue as to Gonzalez's motor-carrier status, the court of appeals focused on the evidence that Gonzalez told the drivers where to pick up and deliver the silage, loaded the trucks and signaled when done, had the right to refuse to load a truck, and was "ultimately responsible" for getting the silage to the feed yard under his agreement with Chester Farms. 413 S.W.3d at 144-45 (citing Martinez, 355 S.W.3d at 185). In addition, Jackson notes that Gonzalez hired and paid Garcia to haul the silage and asked him to bring a tandem truck, and that Gonzalez held a motor-carrier license at the time of the accident.
Like the defendant in Martinez, Gonzalez controlled the loading site, was ultimately responsible for the hauling as part of an underlying agreement, and loaded the trucks, but did not control what driver operated a particular truck or what route the drivers took. Unlike Martinez, however, Gonzalez had nothing to do with verifying drivers' insurance and licenses or providing hauling permits, nor did he establish the manner or method of the drivers' payment. Thus, the facts that directly implicated control of the actual transportation of the property in Martinez are notably absent here.
Although the district court in Velichkov analyzed motor-carrier status under the Federal Regulations, we find the reasoning in that case instructive. There, FedEx contracted for transportation services with Fresh Start, which in turn hired Velichkov to drive the truck. Id. at 973. The court held that the plaintiffs' attempt to "`bootstrap' FedEx into `motor carrier' status by stretching the regulatory language fails because the definitions of motor carrier and employer ... describe precisely the role assumed by Fresh Start in this instance as an independent contractor." Id. at 980. Because Fresh Start assumed the pertinent motor-carrier duties, the plaintiffs were not deprived of their remedy. Id. The court declined to burden FedEx with the regulatory duties to conduct road tests and retain records for drivers with whom it had no relationship just because it had the ability to act as a motor carrier.
Under the circumstances presented here, where Jackson has shown only that Gonzalez told Garcia where to pick up and deliver — which any hauler would need to know
We turn next to the Ramirezes' claim that Gonzalez breached common-law duties he owed Ramirez as the employee of an independent contractor. Generally, an owner or general contractor does not owe a duty to its independent contractor's employees to ensure that they safely perform their work. Koch Ref. Co. v. Chapa, 11 S.W.3d 153, 155 & n. 1 (Tex.1999) (noting that a general contractor "owes the same duty as a premises owner to an independent contractor's employee"). But an owner or general contractor can be held vicariously liable for its independent contractor's actions if the owner retains some control over the manner in which the contractor performs the work that causes the damage. Fifth Club, Inc. v. Ramirez, 196 S.W.3d 788, 791 (Tex.2006). In discussing retained control, we explained in Chapa:
11 S.W.3d at 155 (quoting RESTATEMENT (SECOND) OF TORTS § 414 cmt. c (1965)). In turn, an owner or general contractor "can direct when and where an independent contractor does the work and can request information and reports about the work" without assuming vicarious liability. Fifth Club, 196 S.W.3d at 792.
In limiting liability in this way, we have explained that imposing liability on owners and general contractors who stop work perceived as unsafe "would deter [them] from setting even minimal safety standards." Dow Chem. Co. v. Bright, 89 S.W.3d 602, 607-09 (Tex.2002) (holding that the right to preclude work from beginning and the implementation of a safe-work permit system were insufficient to establish actual control); see also Chapa, 11 S.W.3d at 156 (holding that instructions to perform work in a safe manner and the authority to stop dangerous conduct was no evidence of actual control). We "have never concluded that a general contractor actually exercised control ... [when] there was no prior knowledge of a dangerous condition and no specific approval of any dangerous act." Bright, 89 S.W.3d at 609. And the "possibility of control is not evidence of a `right to control' actually retained or exercised." Coastal Marine
Here, the Ramirezes point to the following evidence to show Gonzalez's control over Garcia's work:
• Garcia's testimony that "[Gonzalez] told me to take those particular trucks.... That particular truck, he told me." But Garcia explained that this was "the only time that [Gonzalez] ever told me to bring the tandem trucks," and that Gonzalez said: "`If you want to bring your tandem trucks when we get started back again, if you want to bring your tandem trucks, bring them because ... the field that we are about to get into is really sandy and we are going to need your tandems.' And that's when he told me to bring them." (Emphasis added).
• Garcia's testimony that 3R/Garcia was obedient to Gonzalez's suggestions, which needed to be followed: "We would just bring whatever he told us.... They are the bosses, you know, so we will do what they say."
• Garcia's affidavit stating that (i) he and Gonzalez have to agree about what trucks to use, (ii) they both approved the use of the tandem truck, and (iii) Gonzalez had more control over the cutting operations, while Garcia had more control with respect to the hauling operations.
• Gonzalez's testimony that (i) he makes the decision whether to load a truck; (ii) the trucks looked up-to-date from a distance, and Gonzalez would not hire someone with unsafe trucks; (iii) in Gonzalez's absence, his brother Javier takes over his responsibilities and authority; and (iv) had he seen the condition of the truck on the date of the incident, he would not have loaded the truck because he "would have recognized the condition of the tandem as being dangerous."
• Javier's testimony that Gonzalez approves only safe trucks.
Even with every reasonable inference in favor of the Ramirezes, all this evidence shows is that Gonzalez could refuse to load a truck, that he knew about the tandem truck's condition only after the accident, that Garcia exercised more control over the transportation of the silage, that Gonzalez suggested but did not require that Garcia bring tandem trucks in light of the conditions at Chester Farms,
If the fact that the general contractor is the "boss" of a subcontractor were enough to create liability, the requirement of control would be obsolete.
We hold that the court of appeals erred in partially reversing the trial court's no-evidence summary judgment. We grant the petition for review, and, without hearing oral argument, we (1) reverse the court of appeals' judgment in part, (2) render judgment for Gonzalez on the Ramirezes' claims and on Jackson's claims asserted under the Federal and Texas Regulations, and (3) remand this case to the court of appeals to consider only Jackson's negligent-hiring claim.
