Antitrust Law Daily Wrap Up, FRANCHISING & DISTRIBUTION—WDTex: Wal-Mart Not Liable for Injuries to Store Employee, Had No Duty Under Franchise Agreement With Store Operator, (Nov 8, 2012)

By John W. Arden, J.D., LLM.

Wal-Mart Stores, Inc. was not liable in a personal injury negligence action filed by an employee at a San Antonio store because the employee was not a direct employee and Wal-Mart Stores, Inc. had no duty towards the employee under a franchise agreement with Wal-Mart Stores Texas, the operator of the store, according to the federal district court in San Antonio (Calvasina v. Wal-Mart Real Estate Business Trust, November 5, 2012, Rodriquez, X.). Thus, Wal-Mart Stores was granted summary judgment on the employee’s liability claim.

On February 24, 2009, Peter Calvasina was working as a Service Writer/Greeter in the Tire Lube Express of a Wal-Mart store in San Antonio. While working on the upper level of a tire rack system, he fell from the platform and was severely injured. The store video showed that a guardrail and a tire fell with him.

Wal-Mart store workers like Calvasina are generally employed by Wal-Mart Associates, Inc., which leases them to entities such as Wal-Mart Texas, the operator of a store under a franchise agreement and lease with Wal-Mart Stores.

Calvasina brought a personal injury negligence action against Wal-Mart Stores Texas, Wal-Mart Stores, Inc. (the Corporation), and others. The defendants previously argued that they were Peter’s employers and were entitled to assert the exclusive workers’ compensation remedy defense. Calvasina argued that the defendants were not his employers because they did not exercise control over the details of the work giving rise to the injury. The court granted Calvasina’s motion for summary judgment on the worker’s compensation exclusive remedy defense.

Ironically, in the present motion for summary judgment, Wal-Mart Stores Texas and the Corporation argued the opposite point—that they owed Calvasina no duty because they did not exercise the control necessary to make them his employers.

Duty

A party may have a duty to provide a safe workplace if it has actual control or a right of control over the specific aspect of the safety and security of premises that led to a person’s injury. However, the Texas Supreme Court has held that sufficient control exists only if a defendant has the right to control the employee “in the details of the work performed.” Accordingly, the Corporation maintained that it did not have a legal duty owed to Calvasina, since it did not have the ability to control the specific details of Calvasina’s work that led to his injury.

The exact relationship between Calvasina and the Corporation was unclear, the court noted. “The Corporation is contractually tied to Wal-Mart Texas through the Franchise Agreement and also to [Wal-Mart] Associates through the Master Services Agreement,” the court stated. “Thus, it seems that the general contractor/independent contractor relationship is the most analogous, considering that Plaintiff relies on the Franchise Agreement to show that the Corporation retained control over all store employees, including those leased to Wal-Mart Texas by Associates.”

Under Texas law, the duties owed by premises operators and general contractors to employees of independent contractors are generally the same. The nature of the duty turns on whether the injury arose from activities or a premises defect.

Calvasina eschewed any duty that would arise from an employer-like control over the means, methods, and details of the work. He argued that he was employed solely by Associates. Therefore, the court should consider only those duties owed by non-employers that do not involve employer-like controls for the purpose of determining apply applicable duties owed by Wal-Mart Texas or the Corporation.

Exercise of Control

Absent an exercise of control, a premises operator or general contractor has no duty to ensure that an independent contractor and its employees perform their work in a safe manner. Control may be proved in two ways: (1) by evidence of a contractual agreement explicitly assigning the right to control to the premises operator and (2) by evidence that the premises operator actually exercised control.

However, one in control of premises may also be liable for premises defects. They may be (1) those existing when an independent contractor enters the premises or created from some means unrelated to the activity of the injured employee and (2) those created by the independent contractor’s work. Third parties not in control of premises may owe a duty to make safe a known dangerous condition if they created the dangerous condition.

Wal-Mart Texas may owe Calvasina a duty in its capacity as operator of the premises. There was deposition testimony that the defective installation of the guardrail had occurred in 2000 and that nearly nine years was a sufficient time to impose constructive knowledge on Wal-Mart Texas. Thus, Wal-Mart Texas was not entitled to summary judgment on Calvasina’s negligence claim.

However, Calvasina failed to establish that the Corporation owed it any duty. Calvasina argued that the Corporation took on the broad and general obligation to ensure workplace safety at the San Antonio Wal-Mart store. However, the franchise agreement assigned control over operations to Wal-Mart Texas, although the Corporation maintained a continuing advisory relationship that included providing operations manuals with standards, specifications, procedures, and techniques of the franchise system. The franchise agreement also assigned Wal-Mart Texas the responsibility to maintain the business premises and all equipment, fixtures, and facilities in a manner required by law as well as control over health standards.

The franchise agreement’s requirement that Wal-Mart Texas conform to the Corporation’s standards of health, safety, training, maintenance, and sanitation did not give rise to an unqualified duty to ensure workplace safety, in the court’s view. These requirements implicated only the narrow duty of care not to increase the risk of severity of harm.

“Plaintiff has not shown that the franchise agreement gave the Corporation the right to control workplace safety or gave the Corporation control over the means, method, or details of the work at Wal-Mart Texas sufficient to impose an unqualified duty to ensure workplace safety (and such a position would conflict with Plaintiff’s position that the Corporation did not exercise the type of control sufficient to make it an employer),” according to the court. “Merely exercising or retaining a general right to recommend a safe manner for the independent contractor’s employees to perform their work is not enough to establish liability.”

Moreover, Calvasina failed to establish that the Corporation actually controlled workplace safety sufficiently to give rise to a duty. Promoting a safe workplace and requiring the facility to have a Safety Team did not demonstrate actual control over workplace safety. Requiring Wal-Mart Texas to train employees on safety issued did not give rise to any duty, the court found. There was no evidence of any training materials related to the use of the tire rack or tire rack safety.

Contentions that the Corporation controlled the selection, design, and maintenance of the tire rack were unavailing. There was no evidence that the Corporation’s selection of the tire rack created a dangerous condition or that the Corporation had control over the way the tire rack was installed. The Corporation expressly assigned the duty to maintain the tire rack to Wal-Mart Texas and did not take over any supervisory control.

In the absence of any duty of safety toward Calvasina, the Corporation could not be liable for negligence toward Calvasina, the court concluded. Thus, the Corporation’s motion for summary judgment was granted. However, Calvasina’s premises liability claim against Wal-Mart Texas survived summary judgment.

The case is Civil Action No. SA-09-CA-1024-XR.

James Allon Hall (Branton Hall Rodriguez Cruz) for Calvasina. James K. Floyd (Daw & Ray, L.L.P.) for Wal-Mart Stores Texas, LLC.

Cases: FranchisingDistribution TexasNews