In this Emerging Issues commentary, Thomas Fox discusses the "right of control" test that is used under Texas Law in determining contractor liability for its employees' acts. In addition, Mr. Fox provides guidance to businesses operating in Texas to help them avoid liability under this doctrine. He writes:
"The most basic test for a company to assume the liability through the acts of others the 'right of control' test. Conversely, a general contractor does not owe a duty to ensure that an independent contractor performs its work in a safe manner. When a business which entrusts work to an independent contractor, retains the control of any part of the work, it makes itself subject to liability for physical harm to others for whose safety the employer owes a duty to exercise reasonable care, when damage or injury is caused by his failure to exercise control with reasonable care. This duty can arise if the general contractor retains some control over the manner in which the independent contractor performs its work. The general contractor's duty of care is commensurate with the control it retains over the independent contractor's work."
"The Texas Supreme Court has held that a general contractor can retain the right to control an aspect of an independent contractor's work or project so as to give rise to a duty of care to that independent contractor's employees in two ways: by contract or by actual exercise of control. Unfortunately Texas courts have used the phrases 'right of control' or 'retained control' interchangeably. However the distinction remains important because determining what a contract says is generally a question of law for the court, while determining whether someone exercised actual control is a generally a question of fact for the jury."
"Companies operating in Texas need to be cognizant of the 'right of control' test and its two components, retention of the right of control through contract and exercise of the right of control in actual work environment. The clearest mechanism to retain such liability is through retention of the right of control by contract. However, even if a contract specifies that the independent contractor will retain the right of control over the methods and means of performing the work, if the general contractor exercises actual control it can assume liability."
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