"Black-letter law" does not mean much in the real world. Black-letter law simply tells us what the law would say before facts are applied to a given situation. But the law only matters when facts come into play. Businesses do not care about abstract principles of law, but rather about how the law, in application, affects them and their operations. Instead of black-letter law businesses want to know what practices will get them sued, what business practices they can follow so that they will prevail when that inevitable lawsuit is filed, and what business practices they can follow to avoid lawsuits in the first place.
An Industry-Specific Example: The Case of The Wary General Contractor For example, while Texas black-letter law is well settled that a general contractor is not routinely liable for injuries to its subcontractors' employees, Texas general contractors still often find themselves defendants in lawsuits brought by employees of subcontractors who are injured in the course and scope of their duties. The "why" is simple: most subcontractors carry worker's compensation insurance. One benefit of buying worker's compensation insurance is that, if injured, the employees cannot sue their employers, even if the injury is caused by the employer's negligence.
Take a typical injured subcontractor's employee - a roofer, a framer, etc. He cannot sue his employer, ABC Roofing or XYZ Framing, as that entity provides worker's compensation insurance. Who else is around, has insurance dollars and would make a ready target? The general contractor, of course. So despite "black-letter law" to the contrary, injured workers employed by subcontractors will often bring negligence claims against general contractors.
The Typical Claim Rather than trying to overturn the black-letter law, most injured subcontractor employee cases pick the two narrow exceptions to the law and try to argue their facts into the exceptions. The narrow exceptions have been repeatedly stated by appellate courts, including the Texas Supreme Court, as follows:
- When a general contractor retains control of the "means, methods and details" of a subcontractor's employees' work in the construction contract, then the general contractor can be liable to the subcontractor's employees for any injuries arising out of that control.
- When a general contractor does not have a contractual right of control, but nonetheless exercises actual control of the "means, methods and details" of subcontractor's employees' work, the general contractor can also be liable to the subcontractor's employees for any injuries arising out of that control.1
Because these rules have been consistently articulated by the courts for a number of years, the vast majority of general contractors carefully draft their contracts to avoid the situation posed in the first exception (and those very few who do not, should). Hence, the typical case against a general contractor is brought under the second exception. A creative plaintiff will allege that the general contractor exercised actual control over the means, methods and details of the subcontractor's work in some way.
What Does Black-Letter Suggest? So how does a general contractor avoid controlling the "means, methods and details" but remain in control of its worksite? What types of supervision can a general contractor provide before risking liability? Moreover, and of utmost importance to general contractors, what types of supervision must a general contractor avoid?
First of all, a general contractor can determine the order in which various trades will conduct work without creating liability. A general contractor can order the various trades to start and/or stop work. A general contractor can post a generic safety plan. A general contractor can conduct generic safety meetings for its own employees and -can also require its trades to conduct their own safety meetings with their employees. A general contractor can inspect the project to determine progress, compliance, and other project issues. A general contractor can also require that its subcontractors adhere to OSHA (Occupational Safety and Health Administration) Regulations, the MUTCD (Manual on Uniform Traffic Control Devices) or other applicable state and/or federal safety regulations and guidelines.