Not a fact issue after all

In JLB Builders LLC v. Hernandez, the Texas Supreme Court reversed an en banc Fifth Court opinion about a construction-site accident. The issue was the general contractor’s right of control over the workplace, and the supreme court reached these conclusions about key aspects of that issue (all emphasis added):

• Direction. “Hernandez references his additional testimony that he had previously seen JLB supervisors talking to [the subcontractor’s] foremen and that the supervisors ‘appear[ed] to be giving instructions as to how our jobs were to be done.’ Without more, evidence of what JLB generally ‘appeared’ to be doing is no evidence that it was exercising actual control over the details of the injury-causing work.”
• Safety requirements. “A general contractor that promulgates mandatory safety requirementsand procedures owes only a narrow duty to ensure that those requirements and procedures generally do not ‘unreasonably increase, rather than decrease, the probability and severity of injury.'”
• Direction. “[T]here is no indication that JLB was aware that the wind posed a particular danger that day, and the testimony that JLB employees ‘could watch’ the supports being secured is not evidence that they did so or that they were aware the supports were improperly secured.”

(In my three-part system for categorizing Texas intermediate-court en banc opinions, JLB Builders would be a “successful failure,” in that it drew supreme court attention but for the purpose of reversal.)