Drum v. Northrup Grumman Sys., Corp.
| Decision Date | 25 March 2014 |
| Docket Number | D.C. No. 2:11-CV-01086-CW,No. 13-4034,13-4034 |
| Parties | MICHAEL DRUM, Plaintiff - Appellant, v. NORTHRUP GRUMMAN SYSTEMS, a Delaware corporation, Defendant - Appellee. |
| Court | U.S. Court of Appeals — Tenth Circuit |
(D. Utah)
ORDER AND JUDGMENT*Before KELLY, HOLLOWAY, and PHILLIPS, Circuit Judges.
Plaintiff-Appellant Michael Drum appeals the district court's grant of summary judgment in favor of Defendant-Appellee Northrop Grumman Systems Corp. Drum v. Northrup Grumman Systems, No. 2:11-cv-01086-CW (D. Utah Feb. 5, 2013). In this removal case, Mr. Drum, while an employee of Air Liquide, slipped on ice while delivering liquid nitrogen for Air Liquide to Northrop Grumman in Salt Lake City, Utah. The district court granted summaryjudgment in favor of Northrop Grumman, finding that Mr. Drum failed to establish that Northrop Grumman created the icy conditions and that his claim was properly covered by workers' compensation. Aplt. App. 122-23. The court ruled on the motion from the bench and later issued a summary order adopting the discussion. Aplt. App. 109. On appeal, Mr. Drum argues that the district court erred by (1) not addressing his theory of direct negligence under Magana v. Dave Roth Constr., 215 P.3d 143 (Utah 2009), Aplt. Br. 8; (2) improperly relying on Privette v. Superior Court, 854 P.2d 721 (Cal. 1993), Aplt. Br. 6, 11; and (3) failing to find that Northrop Grumman retained control of the Air Liquide area sufficient to impose liability. Aplt. Br. 14. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.
On a rainy night in December 2010, Mr. Drum was delivering liquid nitrogen to Air Liquide tanks at Northrop Grumman when he stepped over an equipment line, slipped on ice, and strained his lower back. Aplt. App. 59-60. Although Mr. Drum received workers' compensation from Air Liquide, Aplt. App. 115, he brought suit against Northrop Grumman for negligence, Aplt. App. 26.
The undisputed facts surrounding the accident include that (1) snow and ice often accumulate around Air Liquide's liquid-nitrogen tanks, especially inDecember, making the area slippery; (2) Mr. Drum noticed that it was slippery the evening of the accident when he conducted a walk-through prior to filling the tanks; (3) Mr. Drum knew about the equipment line he stepped over because he had made deliveries with it there and knew to watch out for it; and (4) Mr. Drum likely had ice on the bottom of his shoe when he stepped over the line from the concrete pad onto the asphalt and lost his balance. Aplt. App. 62-63, 65. Mr. Drum also admits that Air Liquide owns, installed, and maintains the liquid nitrogen equipment at the accident site and that Northrop Grumman does not supervise nor schedule Air Liquide's deliveries to these tanks. Aplt. App. 64-65. Mr. Drum "alleges and avers" that two Air Liquide entities are involved: the one for whom he works, which supplies the liquid nitrogen, and another, Air Liquide Field Services, which owns the equipment. Aplt. App. 64, 120; Aplt. Br. 4.
Based primarily on Mr. Drum's deposition testimony, Northrop Grumman moved for summary judgment, arguing that even though it owned the accident site, nothing established it as the possessor sufficient to impose liability; rather, Mr. Drum's sole remedy was a workers' compensation claim against Air Liquide. Aplt. App. 40-41. In support, Northrop Grumman relied on Hale v. Beckstead, 116 P.3d 263, 269 (Utah 2005), which recognizes that under Sections 343 and 343A of the Restatement (Second) of Torts, a landowner's2 duty does not extendto an open and obvious condition like the one that occurred here, and that unlike Hale, Northrop Grumman did not install, own, or maintain the equipment at issue. Aplt. App. 44-45. Mr. Drum responded by arguing that Northrop Grumman, as the possessor of the land, owed him a duty, that Air Liquide retained no control over the land, and that the open and obvious doctrine did not bar recovery because Northrop Grumman knew that the only access to the tanks was via the snow-covered asphalt pad. Aplt. App. 66-72.
Following the parties' briefing on the summary judgment motion, Mr. Drum alerted the district court to supplemental authority: Berrett v. Albertsons Inc., 293 P.3d 1108 (Utah Ct. App. 2012), cert. granted, 304 P.3d 469 (Utah May 13, 2013) (No. 20130165) (addressing a grocery store's liability when a patron fell into a parking lot manhole left open by an independent contractor servicingthe grocery store's drains). Aplt. App. 87.
At oral argument before the district court, Mr. Drum clarified that his negligence claim was based on the peculiar risk doctrine, the general tort duty owed by a business owner to an invitee, and direct negligence under Magana. Aplt. App. 113-14, 119. When asked about the two Air Liquide entities, Mr. Drum could not reference any evidence—other than his own say so—that an entity other than his employer owned and maintained the equipment. Aplt. App. 120-21.
The district court ruled in Northrop Grumman's favor, explaining that based on discussions of the peculiar risk doctrine in Berrett, Thompson v. Jess, 979 P.2d 322 (Utah 1999), and Privette, Mr. Drum's injuries resulted from the work he was doing for his employer, Air Liquide, and as such, his injuries were covered by workers' compensation; thus, he could not also recover tort damages against Northrop Grumman. Aplt. App. 121-23.
Mr. Drum timely appeals.
Mr. Drum presents three challenges to the district court's grant of summary judgment: (1) the district court failed to address his theory of direct negligence under Magana; (2) the district court impermissibly and sua sponte relied on Privette to bar him from suing Northrop Grumman; and (3) Northrop Grummanwas liable for his injuries because it retained possession and control of the ground underneath the Air Liquide equipment. Aplt. Br. 8-17. Northrop Grumman argues that Mr. Drum failed to preserve any argument that it had a duty to Mr. Drum, but should the court decide otherwise, the undisputed evidence supports the legal conclusion of no duty, or, alternatively, no breach of duty due to the obvious snow danger. Aplee. Br. 7-8.
In diversity cases, we apply the substantive law of the forum state to the underlying claims but review de novo the grant of summary judgement under federal law. Stickley v. State Farm Mut. Auto. Ins. Co., 505 F.3d 1070, 1076 (10th Cir. 2007). We review the evidence and its reasonable inferences in the light most favorable to the non-movant, but summary judgment is warranted if "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). We may affirm on any grounds in the record sufficient to permit legal conclusions, even if the grounds were not relied upon by the district court. Stickley, 505 F.3d at 1076.
Magana was raised by Mr. Drum at oral argument before the district court. Aplt. App. 119. Mr. Drum argues that the district court failed to address his theory that Northrop Grumman was directly negligent in failing to clean the ice and snow on the ground underneath Air Liquide's equipment as established in Magana. Aplt. Br. 8. Mr. Drum argues that to the extent Northrop Grummancontributed to the hazardous snow and ice conditions of the premises, it should be held liable. Id. at 11. Though it is passing strange that Northrop Grumman never discusses Magana in its response brief (after all, it is the first point of Mr. Drum's brief in chief), the district court apparently rejected its application, and we will proceed to the merits. That said, nothing in the record supports that Northrop Grumman—rather than Air Liquide—was directly responsible for the ice accumulation.
In Magana, the employee of a subcontractor was injured when a load of trusses fell on him as it was being hoisted by crane from a truck. Magana, 215 P.3d at 146. The injured worker sued the general contractor that had hired the subcontractor under two theories: vicarious liability for the subcontractor's conduct based on the retained control doctrine and direct negligence, because the general contractor had helped the subcontractor rig the trusses. Id. at 146-47. The Utah Supreme Court upheld the grant of summary judgment in favor of the general contractor under the first theory, concluding that the general contractor did not actively participate in the injury-causing activity such that it retained control of the unloading. Id. at 148-49. However, the court reversed on the second theory, finding that a question of fact remained as to the general contractor's direct negligence because the worker testified that he observed the general contractor helping rig the trusses that fell and caused the injury. Id. at 152. Consequently, the Magana court held that "[o]nce an employer goes beyondmere direction or control of the contractor's work and directly acts in such a way that causes an injury, the employer may be liable for its own direct negligence." Id. at 151.
The facts of this case are wholly different. Unlike Magana, no evidence supports the assertion that Northrop Grumman directly contributed to the ice buildup. Rather, Mr. Drum admits that Air Liquide owns and maintains all of the liquid nitrogen equipment and that the nature of liquid nitrogen being stored outside in tanks, especially on a cold, December evening, often results in snow and ice accumulating on the surrounding ground. Accordingly, Magana does not suggest a different result.
Mr. Drum also argues that the failure to apply Magana provides Northrop Grumman immunity from suit "for which it has paid no price," in contravention to Utah law allowing the allocation of fault to negligent third parties. Aplt. Br. 10 (citing Sullivan v. Scoular Grain Co. of Utah, 853 P.2d 877 (Utah 1993) (superceded by statute on other grounds as recognized in Anderson v. United Parcel Service, 96 P.3d 903, 907 (Utah 2004)). However, the district court...
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