Elliot v. Turner Const. Co.

• Decision Date: 24 August 2004
• Docket Number: No. 03-1209.,03-1209.
• Citation: 381 F.3d 995
• Parties: Eugene ELLIOT, Plaintiff-Appellee, v. TURNER CONSTRUCTION COMPANY, a New York corporation; B & C Steel, Inc., a Colorado corporation, Defendants-Appellants, and Bud Boyd, Defendant.
• Court: U.S. Court of Appeals — Tenth Circuit

381 F.3d 995

Eugene ELLIOT, Plaintiff-Appellee, v. TURNER CONSTRUCTION COMPANY, a New York corporation; B & C Steel, Inc., a Colorado corporation, Defendants-Appellants, and Bud Boyd, Defendant.

No. 03-1209.

United States Court of Appeals, Tenth Circuit.

August 24, 2004.

Appeal from the United States District Court for the District of Colorado, Marcia Krieger, J.

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Peter H. Doherty, Overturf & McGath, P.C., Denver, CO, for the defendants-appellants.

Diane Vaskdal Smith (Holly Baer Kammerer with her on the brief), Burg Simpson Eldredge Hersh & Jardine, P.C., Englewood, CO, for the plaintiff-appellee.

Before SEYMOUR, BRISCOE, Circuit Judges, and PAYNE, Chief District Judge.¹

BRISCOE, Circuit Judge.

In this diversity action, defendants Turner Construction Company and B & C Steel, Inc., appeal a jury verdict finding them negligent and awarding plaintiff Eugene Elliot damages for personal injuries he suffered while assisting in the launch of a pedestrian bridge. We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and affirm in part and reverse in part.

I.

Turner Construction was hired as the general contractor for construction of Invesco Field at Mile High Stadium in Denver, Colorado. As part of the construction, the company was required to place a temporary pedestrian bridge across the Platte River to accommodate pedestrian traffic. Turner Construction entered into a rental agreement with Mabey Bridge and Shore for the component parts for the bridge. Mabey agreed to provide a site demonstrator (Elliot) for three days during construction of the bridge. Turner Construction also subcontracted with B & C to construct and launch the bridge.

As site demonstrator for the project, Elliot testified that his job responsibilities included:

go[ing] to a job site ... and show[ing] the contractor basically how the bridge was put together, how a launch ... was enacted, what equipment is suggested as far as what you would use to push or launch the bridge with, making sure that the bridge is put together correctly, mak[ing] sure that all the bolts are tight and sort of an inspector, basically.

App. II at 226-27. He testified that prior to a typical job, he would "prep" the contractors on the tools and equipment needed and make sure "everybody had everything together." Id. at 227. Additionally, he would go to the site and demonstrate how to correctly build and launch the bridge, and discuss which launch method should be used for the bridge in question. As his job responsibilities suggest, Elliot's function was in part as a consultant and in part as an inspector. He testified that as the panels were hooked together, he "would climb up and down throughout the bridge, checking and making sure that all th[e] pins had the retaining clips on, all the bolts were tightened, all the pieces were in the right place facing the right way, not upside down, or so on." Id. at 280. He stated that "thorough inspection was [his] job" and that, in the hours before the launch, he inspected the bridge again and held a pre-launch meeting to "let everybody know what to expect and what's going to go on." Id. at 281-82.

Other workers corroborated Elliot's testimony regarding his job responsibilities. John Goodrich, the project superintendent on the Invesco Field construction, testified it was his "understanding that Mr. Elliot was there to help direct the erection of the bridge, of putting the parts and pieces together." App. III at 549. According to Goodrich, Elliot "was there to assure that the quality of the bridge being put together was up to Mabey Bridge's standards, and he offered help and advice to the actual iron workers that put the pieces and parts together." Id. Similarly, William Farmer, B & C's foreman iron worker in charge of overseeing assembly of the bridge for B & C, testified that during the week of the launch, Elliot "observed us working and ma[de] sure we were doing it right, putting it together." Id. at 586.

The bridge was launched on August 7, 1999. It was decided that a crane-assisted launch would be employed. Under this procedure, the bridge is constructed in one complete unit. Rollers are placed on the edge of the launching side and the bridge is pushed 40-45 percent across the water. Just before the point where the bridge's weight would cause it to tip into the water, a crane on the other side of the river lifts the front of the bridge and pulls it across while a bulldozer pushes the bridge from the launching side. When the bridge is nearly across the river, it is lifted from the rollers and set down.

When the launch began, Elliot was on the side of the river where the bridge was launched. The bridge was suspended in air over the river with a crane on the other side of the river attached to a corner of the bridge by a nylon strap. Elliot observed that the retaining wall which was supporting the crane on the other side of the river was beginning to collapse, causing the crane to begin to tip sideways. He saw Bud Boyd, owner of B & C, standing between the crane and the bridge, attempting to remove the nylon strap attached to the corner of the bridge. At this time, the bridge was about twenty feet across the water and four feet in the air. Elliot was concerned that if Boyd removed the nylon strap, the bridge would fall into the water. Elliot decided to walk across the bridge to tell Boyd to stop. When he was on top of the bridge, he gave "the OSHA all-stop signal, not to move anything," id. at 294, but the bridge moved and Elliot fell. As a result, Elliot sustained numerous pelvic injuries, including a severed urethra.

Elliot filed a negligence action against Turner and B & C in Colorado state court alleging negligence and negligent supervision, and seeking damages.² Turner and B & C removed the action to federal court. B & C moved for summary judgment arguing it owed no duty to Elliot because it was not foreseeable that Elliot would walk across the bridge as it was being moved by the crane. Turner also moved for summary judgment claiming Elliot's claims were barred by the Colorado worker's compensation act because Turner was a "statutory employer" as defined in Colo.Rev.Stat. § 8-41-401(1)(a). The court denied both motions for summary judgment and the case proceeded to a jury trial. The jury returned a verdict for Elliot against Turner Construction and B & C, finding damages in the amount of $28,166.30 for economic losses, $1,195,364 for non-economic injuries, and $1,195,364 for permanent impairment. The jury found that each party—Turner Construction, B & C, and Elliot-bore 33.3 percent of the fault. Turner renewed its motion for judgment as a matter of law and filed a separate motion for new trial. B & C filed a motion for judgment as a matter of law, or in the alternative, for reconsideration of the court's denial of its motion for summary judgment. The district court denied the motions and entered judgment against defendants, requiring each to pay $1,033.863.07.

II.

In a diversity action, we apply the substantive laws of the forum state, including its choice of law rules. New York Life Ins. Co. v. K N Energy, Inc., 80 F.3d 405, 409 (10th Cir.1996). Here, the forum state was Colorado. Under Colorado's choice of law rules, the law of the state with the most significant relationship to the claims will be used. Morgan v. United Air Lines, Inc., 750 F.Supp. 1046, 1054 (D.Colo.1990). Applying these principles, the parties do not dispute that Colorado law applies to Elliot's tort claims.

"Statutory employer" status under Colorado law

Turner Construction contends it was Elliot's "statutory employer," as defined by Colo.Rev.Stat. § 8-41-401(1), and was therefore immune from suit. The determination of whether a person or entity is a statutory employer is a question of fact. Virginians Heritage Square Co. v. Smith, 808 P.2d 366, 368 (Colo.Ct.App.1991). However, whether a legal conclusion based upon undisputed facts is correct is a matter of law. Id. This court reviews de novo a trial court's determination of state law. Salve Regina College v. Russell, 499 U.S. 225, 231, 111 S.Ct. 1217, 113 L.Ed.2d 190 (1991).

The primary purpose of the Colorado workers' compensation act "is to provide a remedy for job-related injuries, without regard to fault." Finlay v. Storage Tech. Corp., 764 P.2d 62, 63 (Colo.1988). Through an interrelated set of provisions, "[t]he statutory scheme grants an injured employee compensation from the employer without regard to negligence and, in return, the responsible employer is granted immunity from common-law negligence liability." Id. To be afforded this immunity, an employer must be a "statutory employer" as defined by the act. Id. Section 8-41-401(1)(a) provides the starting point for determining whether a party qualifies as a "statutory employer":

Any person, company, or corporation operating or engaged in or conducting any business by leasing or contracting out any part of all of the work thereof to any lessee, sublessee, contractor, or subcontractor... shall be construed to be an employer as defined in articles 40 to 47 of this title and shall be liable ... to pay compensation for injury or death resulting therefrom to said lessees, sublessees, contractors, and subcontractors and their employees or employees' dependents.

Colo.Rev.Stat. § 8-41-401(1)(a). Relying on this language, the district court concluded that Turner Construction was not a statutory employer because it did "not fall within Section 8-41-401 with regard to its dealings with Mabey." App. IV at 748. The court read the statute as only covering those situations where Mabey was a "lessee, sublessee, contractor, or subcontractor." Id. at 749. The court found that Mabey leased the temporary pedestrian bridge to Turner Construction and, therefore was "a lessor to Turner, not a lessee from Turner." Id. at 748. The court reasoned that, because the...