UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-40733 Summary Calendar

CRISOFORO CASTRO, Individually and as Next Friends of Lorena Castro, Magnolia Castro, Christian Castro, Jose Armando Castro, Minors; YOLANDA CASTRO, Individually and as Next Friends of Lorena Castro, Magnolia Castro, Christian Castro, Jose Armando Castro, Minors,

Plaintiffs-Appellants,

versus

HERMANOS MORALES RANCH; ET AL.,

Defendants,

J. RICK DAY,

Defendant-Appellee. _________________________________________________________________

Appeal from the United States District Court for the Southern District of Texas (L-98-CV-103) _________________________________________________________________ November 26, 2001

Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.

PER CURIAM:*

Claiming Defendant J. Rick Day negligently hired and

supervised the independent contractor for whom Plaintiff Crisoforo

Castro worked, Plaintiffs contest the summary judgments awarded

Day. AFFIRMED.

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. I.

Castro was employed by Matias Serrata, who had been hired by

Day to build a fence on property Day was leasing for grazing.

While working on the fence, Castro’s shoelace became caught in an

auger being used to drill fence post holes, and his leg was

injured. Subsequently, Castro’s leg had to be amputated at the

knee.

Plaintiffs’ action claimed, inter alia: Day was negligent in

hiring Serrata; and Day negligently supervised Serrata. Summary

judgments were granted Day on each claim.

For the negligent supervision claim, the district court ruled:

Serrata was an independent contractor; and Day did not exercise the

requisite control over Serrata necessary to create liability on the

part of Day. Castro v. Serrata,

(S.D.

Tex. 2000). In regard to the negligent hiring claim, the district

court ruled that, under Texas law, the employee of an independent

contractor is not a “third person” in the contemplation of

Restatement of Torts (Second) § 411, which recognizes that an

employer is liable to third parties for the negligent hiring of a

contractor who performs any duty which that employer owes to a

third person. Castro v. Serrata,

(S.D.

Tex. 2001).

II.

2 We must determine whether: (1) an employee of an independent

contractor is a third person under Texas law to whom the party

employing the independent contractor can be liable for negligently

hiring the independent contractor; and (2) Day exercised the

requisite control over the fence project to subject him to

liability for any negligent supervision of the independent

contractor.

A summary judgment is reviewed de novo applying the identical

standard used by the district court. E.g., Stewart v. Murphy,

(5th Cir.), cert. denied,

(1999). Such

judgment should be granted if “the pleadings, depositions, answers

to interrogatories, and admissions on file, together with the

affidavits, if any, show that there is no genuine issue as to any

material fact and that the moving party is entitled to a judgment

as a matter of law.” FED. R. CIV. P. 56(c). “We view the pleadings

and summary judgment evidence in the light most favorable to the

nonmovant.” Stewart,

.

A.

Plaintiffs contend that the case law relied upon by the

district court in ruling on the negligent hiring claim is outdated,

and ask this court to look instead to other jurisdictions to hold

that Day can be liable for the alleged negligent hiring of Serrata.

Alternatively, Plaintiffs request that the question be certified to

the Texas Supreme Court.

3 In granting summary judgment on this issue, the district court

cited Simonton v. Perry et al.,

, 1091 (Tex. Civ. App.

1901, no writ), which unequivocally holds that an employee of an

independent contractor is not a third person to whom the party

employing the independent contractor is liable for the negligent

hiring of the contractor. Our court has recognized that this is

the law of Texas. See Sword v. Gulf Oil Corp.,

(5th Cir.) (“rule that an employer of an independent contractor is

liable to third persons for negligence of the independent

contractor in the performance of work inherently dangerous does not

extend to employees of the independent contractor”), cert. denied,

(1958). Plaintiffs, however, contend that, because

Texas now follows the Restatement (Second) of Torts, the result

should be different. Texas does follow Restatement (Second) of

Torts § 411, see MBank El Paso, N.A. v. Sanchez,

(Tex. 1992), which provides:

An employer is subject to liability for physical harm to third persons caused by his failure to exercise reasonable care to employ a competent and careful contractor

(a) to do work which will involve a risk of physical harm unless it is skillfully and carefully done, or

(b) to perform any duty which the employer owes to third persons.

The district court correctly observed, however, that Texas law

continues to recognize that, under situations analogous to those

4 contemplated in § 411, an employee of an independent contractor is

not a third person. For example, in both Hammack v. Conoco, Inc.,

(Tex. App. - Houston [1st Dist.] 1995, writ

denied), and Gray v. Baker & Taylor Drilling Co.,

(Tex. Civ. App. - Amarillo 1980, writ ref’d n.r.e.), Texas courts

determined that, while an independent contractor who is hired to

perform inherently dangerous work is liable to third persons for

injuries resulting from such activities, employees of independent

contractors are not third persons. In fact, the Court of Appeals

of Texas has expressly held, albeit in an unpublished,

nonprecedential decision, that, under Texas law, the employee of an

independent contractor is not considered a third person under §

411. See Rogers v. Pro-Tec Installations, Inc., No. 05-96-00049-

CV,

, at *9 (Tex. App. - Dallas 1997) (“Texas law

clearly holds that a subcontractor’s employee is not a third party

as that phrase is used in the strict liability cases.... We see no

reason why the phrase ‘third party’ should be interpreted

differently under section 411”).

Accordingly, we reject Plaintiffs’ contention that, under the

law of Texas, an employee of an independent contractor is a third

person under § 411. Accordingly, summary judgment was correctly

awarded Day on Plaintiffs’ negligent hiring claim. Concomitantly,

we deny the alternative, certified-question relief sought by

Plaintiffs.

5 B.

Plaintiffs next contend that genuine issues of material fact

preclude summary judgment on the negligent supervision claim.

Generally, the owner or occupier of land “does not have a duty to

see that an independent contractor performs work in a safe manner”.

Redinger v. Living, Inc.,

(Tex. 1985). In some

situations, however, the party employing an independent contractor

“does have a duty to warn an independent contractor’s employees of

any dangerous conditions arising out of the independent

contractor’s work”. Clayton W. Williams, Jr., Inc. v. Olivo,

(Tex. 1997). Such a duty arises where: the

employing party retains some control over the work to be performed

by the independent contractor; the employing party did not exercise

reasonable care in overseeing the independent contractor’s

activities; and the injury sustained by the plaintiff is

proximately caused by the breach of that duty. See Olivo,

(citing Restatement (Second) of Torts § 414);

Redinger,

(“when the general contractor exercises

some control over a subcontractor’s work he may be liable unless he

exercises reasonable care in supervising the subcontractor’s

activity”). The control exercised by the party employing the

independent contractor, however, “must be more than a general right

to order the work to start or stop, to inspect progress or receive

reports”. Redinger,

. Obviously, a premises

6 owner or occupier, such as Day, “must have some latitude to tell

its independent contractors what to do, in general terms, and may

do so without becoming subject to liability”. Koch Ref. Co. v.

Chapa,

(Tex. 1999).

Plaintiffs assert there are material fact issues on whether

Day retained some control over the fence project because Day’s

employee, Gonzales, visited the work site on a daily basis and gave

instructions to Serrata or Serrata’s employees regarding the

placement of the fence. Such instructions, however, are of the

general nature contemplated by Koch that do not expose Day to

liability. Theoretically, if entities such as Day are exposed to

liability for such rudimentary instructions to the independent

contractors they employ, Day would become liable for any

instructions beyond informing Serrata that he wanted him to build

a fence. Accordingly, the district court did not err in granting

summary judgment to Day as to this claim.

III.

For the foregoing reasons, the judgment is

AFFIRMED.

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