The Eighth District Court of Appeals for El Paso in Nowak Construction Co. Inc. v. Avalos recently upheld a jury’s award of damages to a construction worker who was injured while on the job. The worker was injured while working on a project to rehabilitate a part of a sewer system for the city of El Paso. The construction company, Nowak, argued that it did not have sufficient control over the trench safety system to be held liable. However, the jury determined that Nowak did in fact exercise or retain control.
The court recognized that normally a general contractor owes no duty to a subcontractor’s employees. However, a duty arises when the general contractor retains or exercises control over the subcontractor’s work. In this case, the court held that because Nowak had direct control in choosing which safety system to use, or not use, that this was sufficient to establish a duty. The jury determined that the accident could have been avoided had Nowak decided to use a certain safety system. Nowak testified that he decided to use a different safety system which ultimately led to Avalos’ injury.
In its final issue, the court of appeals upheld the separation of damage for pain and mental anguish as two separate elements of damages. The court of appeals held that the separation of pain and mental anguish did not result in two separate awards of money for the same loss.