Independent Contractors Cannot Invoke the Necessary-Use Exception for Open-and-Obvious Jobsite Hazards

I. Introduction

In JMI Contractors, LLC v. Jose Manuel Medellin (Tex. June 26, 2026), the Supreme Court of Texas reversed a $4.3 million judgment obtained by Jose Medellin, an experienced roofing worker functioning as an independent contractor, after he fell approximately 30 feet from an unguarded roof edge while helping pull a rubberized roofing membrane across a roof at the Oaks on Bandera Apartments. Medellin sued the general contractor, JMI Contractors, LLC (“JMI”), and the jury found for Medellin on both negligent activity and premises liability.

The Court framed the dispute around two recurring issues in Texas tort law: (1) how to classify workplace-injury claims as negligent activity (malfeasance) versus premises liability (nonfeasance), and (2) whether an independent contractor may recover in premises liability for injuries caused by an open and obvious danger by invoking the “necessary-use exception.”

II. Summary of the Opinion

  • Claim classification: Medellin’s injury was caused by nonfeasance—an unguarded roof edge—so the claim sounds in premises liability, not negligent activity.
  • No negligent-activity liability on this record: The alleged instruction to pull the membrane was not attributable to JMI, and the evidence did not satisfy the narrow “retained-control” pathway associated with Lee Lewis Construction, Inc. v. Harrison.
  • New holding (core precedent): The Court held that independent contractors may not invoke the necessary-use exception to overcome the open-and-obvious doctrine in premises-liability claims.
  • Disposition: The Court reversed and rendered a take-nothing judgment for JMI.

III. Analysis

A. Precedents Cited

1. The open-and-obvious doctrine and the “necessary-use exception”

The Court rooted its premises-liability analysis in the longstanding no-duty/open-and-obvious principle from Houston National  Bank v. Adair, which held that a premises owner generally owes no duty to protect an invitee from conditions that are “open, visible and obvious.”

The “necessary-use exception” traces to Parker  v. Highland Park, Inc., where a visitor confronted an unavoidable, known danger (a defective, poorly lit staircase) because it was effectively the only way to exit. The Court treated Parker as a limited carve-out that applies when the invitee must encounter the hazard and the owner should anticipate the invitee cannot take measures to avoid the risk.

Modern clarification came from Austin v.  Kroger Texas, L.P., which narrowed and systematized the exception: while an invitee might sometimes recover despite awareness of the hazard, employees generally cannot invoke the exception when their job requires them to remedy the very condition at issue. The Austin Court also embedded “open and obvious” into the duty formulation—i.e., the duty is to warn or make safe concealed dangers the invitee is not aware of.

Two later decisions supplied the doctrinal “setup” for the new rule announced here:

  • General Electric Co. v. Moritz expressed skepticism that the necessary-use exception fits independent contractors because hiring parties generally expect contractors to account for open and obvious defects in deciding how to do the work, what equipment to use, and what warnings are needed.
  • SandRidge Energy, Inc. v. Barfield reiterated that doubt, but did not resolve the question because the plaintiff failed to show that the landowner should anticipate the contractor was unable to avoid the risk.

This case converts those prior “suggestions” into a holding: independent contractors cannot use the necessary-use exception to impose premises liability for injuries caused by open and obvious jobsite dangers.

2. Negligent activity vs. premises liability (malfeasance vs. nonfeasance)

The Court’s classification analysis relied on a long line separating injuries caused by contemporaneous negligent conduct from injuries caused by a dangerous property condition:

  • Keetch v. Kroger Co. drew the signature distinction: negligent activity requires injury by or as a contemporaneous result of the activity itself, not a condition created by the activity.
  • Clayton W. Williams, Jr., Inc. v. Olivo. applied Keetch to workplace debris: thread protectors left by a prior shift were a premises condition, not contemporaneous negligent activity.
  • Timberwalk Apartments, Partners, Inc.  v. Cain. and Del Lago Partners, Inc. v. Smith treated inadequate security and escalating danger as premises liability grounded in nonfeasance—failure to remedy an unreasonably dangerous condition—despite contemporaneous third-party conduct.
  • Austin v.  Kroger Texas, L.P., Occidental Chemical  Corp. v. Jenkins, and Sampson v. University of  Texas at Austin each rejected attempts to re-label static hazards (wet floor/cleanup method, faulty system, unsecured extension cord) as negligent activity.
  • United Scaffolding, Inc. v. Levine consolidated the modern framework: these are separate and distinct theories; the court must determine as a matter of law whether the claim is premises defect; and plaintiffs cannot circumvent premises-liability limits by pleading “general negligence.”
  • The Court also cited State v. Shumake (premises liability is based on the property itself being unsafe) and H.E. Butt  Grocery Co. v. Warner (courts look to the “fairly read” gravamen of the pleadings/claim).

Against this backdrop, the Court concluded Medellin’s harm flowed from an unguarded roof edge—nonfeasance—placing the claim in premises liability rather than negligent activity.

3. “Retained control” in the independent-contractor context

Medellin invoked JMI’s alleged control over jobsite safety. The Court treated Lee Lewis Construction, Inc. v. Harrison as a narrow path to negligence liability when a hiring party fully controls the relevant safety means and methods and thereby creates or heightens the danger that causes the injury.

But the Court emphasized that Lee Lewis must be read through later refinements:

  • Dow Chem. Co. v. Bright held that general safety programs, manuals, or a general right to stop unsafe work do not constitute the requisite control, and that a “failure to implement” additional safety is “not actual control.”
  • General Electric Co. v. Moritz required a tight causal fit: it is not enough to show control over one aspect of the work if the injury arose from another.

The Court also relied on general attribution principles by citing Exxon Mobil Corp. v. Rincones (agency/attribution) and reinforced the “control must relate directly to the injury” concept with Massage Heights  Franchising, LLC v. Hagman.

4. Appellate review and “forfeiture”

The Court declined to resolve whether JMI preserved in the trial court its argument about the necessary-use exception’s inapplicability to independent contractors. Instead, it held that because the court of appeals decided the legal question, the Supreme Court could review it as part of reviewing the court of appeals’ final judgment (citing Texas Rule of Appellate Procedure 53.1 and TEX. GOV’T CODE § 22.001(a)).

In support, the Court invoked federal and state appellate principles and authorities, including Cooper Indus., Inc. v. Aviall Servs., Inc. (and Webster v.  Fall) on what counts as precedent, Estrada v. Smart on review of issues “pressed or passed on” below, and Ex parte Sanders by analogy under the Texas Court of Criminal Appeals’ practice. The Court further clarified terminology using Borusan Mannesmann Pipe US, Inc. v. Hunting Energy Servs., LLC, Bertucci v. Watkins, and United States v. Olano to distinguish forfeiture from waiver.

B. Legal Reasoning

1. Channeling the claim into the correct doctrinal “lane”

Consistent with United Scaffolding, Inc. v. Levine and related cases, the Court treated classification as a legal question and looked past labels to the gravamen: Medellin’s complaint was that the roof edge was not adequately safeguarded. That is classic premises nonfeasance.

2. Why negligent activity failed on this record

Even assuming a case could sometimes involve both premises liability and negligent activity (an issue the Court again left open, noting Austin v.  Kroger Texas, L.P.), Medellin’s negligent-activity submission failed for two independent reasons:

  • No attribution of the alleged negligent instruction to JMI: the instruction to “pull the roll” came from Reybel Rodriguez, an independent contractor, and there was no jury finding or evidentiary basis establishing an agency relationship making Reybel’s conduct attributable to JMI (cf. Exxon Mobil Corp. v. Rincones).
  • Insufficient “retained control” proof: the jury found only that JMI exercised or retained “some control” over fall protection measures; under Dow Chem. Co. v. Bright and General Electric Co. v. Moritz, that general finding does not equate to the particularized, injury-linked control that could trigger Lee Lewis-type liability.

3. Why premises liability failed as a matter of law

Medellin conceded the unguarded roof edge was an open and obvious danger. Under the open-and-obvious doctrine (as incorporated into the premises-duty analysis), JMI owed no duty regarding that hazard unless the necessary-use exception applied.

The Court then announced the central rule of the case: independent contractors cannot invoke the necessary-use exception. The Court’s rationale was both doctrinal and policy-based:

  • Independent contracting presumes the ability—and expectation—to evaluate obvious hazards, choose methods and equipment, and decide whether to accept the job (drawing on General Electric Co. v. Moritz and analogizing to Austin v.  Kroger Texas, L.P.).
  • Allowing contractors to invoke necessary-use would create an incongruity: employees (who are obligated to perform assigned work) cannot use the exception in the “fix-the-hazard” setting, yet independent contractors (who can refuse work) could.
  • Parker’s motivating scenario—an ordinary invitee compelled to traverse a defect to exit—does not map neatly onto specialized, voluntary commercial work performed by a contractor on a jobsite.

C. Impact

1. Substantive impact on construction and industrial-injury litigation

  • Significant narrowing of contractor premises-liability claims: independent contractors injured by open and obvious jobsite hazards (like roof edges, unguarded elevations, visible energized lines, or plainly apparent drop-offs) face a categorical barrier to using the necessary-use exception to establish a duty.
  • Reallocation of safety incentives: the decision places greater legal weight on contractors’ responsibility to assess and mitigate known hazards through their own expertise, equipment choices, and acceptance/refusal of work.
  • More dispositive duty rulings at the summary-judgment/directed-verdict stage: by making the exception unavailable as a matter of law for independent contractors, courts can resolve duty without sending “necessary use” fact questions to juries in many jobsite cases.

2. Doctrinal/pleading impact

  • Reinforced anti-relabeling principle: plaintiffs cannot evade open-and-obvious limits by repleading safety omissions as “negligent activity.” Courts must determine the correct theory and apply its elements.
  • Higher demands for control evidence: generalized “safety control” evidence (manuals, site oversight, or the idea that more safety should have been implemented) will be less effective unless it connects directly to the injury-causing act and satisfies the narrow control concepts articulated in Dow Chem. Co. v. Bright and General Electric Co. v. Moritz.

3. Appellate practice impact

The Court’s approach suggests that when a court of appeals squarely decides a legal issue that forms the basis of its judgment, the Supreme Court may review that legal conclusion without first resolving trial-court preservation disputes—potentially encouraging litigants to ensure legal issues are distinctly addressed in the intermediate appellate court.

IV. Complex Concepts Simplified

  • Premises liability vs. negligent activity: premises liability targets a dangerous condition of property (typically a failure to make it safe—nonfeasance); negligent activity targets dangerous conduct occurring contemporaneously (malfeasance).
  • Open and obvious danger: a hazard a reasonable person can perceive; if it is open and obvious (or otherwise known), the landowner generally owes no duty to warn or make safe as to that hazard.
  • Necessary-use exception: a narrow doctrine allowing recovery despite an open and obvious hazard when the invitee must confront it and the owner should anticipate the invitee cannot take measures to avoid the risk. This opinion holds the exception does not apply to independent contractors.
  • Retained control: a limited basis for imposing liability on someone who hires an independent contractor, when the hirer controls the manner/means/details of the specific injury-causing work in a way that creates or heightens danger.
  • Forfeiture vs. waiver: forfeiture is failing to timely raise an issue; waiver is intentionally giving up a known right.

V. Conclusion

JMI Contractors, LLC v. Jose Manuel Medellin makes two practical moves and one major doctrinal one. Practically, it reinforces that workplace-fall cases tied to static site conditions are ordinarily premises-liability claims, and it demands tight proof that any alleged negligent activity is attributable to the defendant and causally linked through legally sufficient control. Doctrinally, it establishes a new, categorical rule: independent contractors cannot invoke the necessary-use exception to avoid the open-and-obvious doctrine. For Texas jobsite litigation, the opinion significantly narrows duty-based theories against general contractors and landowners where the hazard is apparent and inherent in the contracted work.