Hjelle v. Mid-State Consultants, Inc.
| Decision Date | 11 January 2005 |
| Docket Number | No. 03-8085.,03-8085. |
| Citation | 394 F.3d 873 |
| Parties | Gregg C. HJELLE, Plaintiff-Appellant, v. MID-STATE CONSULTANTS, INC., a Utah corporation, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Tenth Circuit |
George Santini of Ross, Ross & Santini, LLC, Cheyenne, Wyoming, for Plaintiff-Appellant.
Bruce S. Asay of Associated Legal Group, LLC, Cheyenne, Wyoming, for Defendant-Appellee.
Before MURPHY, ANDERSON, and HARTZ, Circuit Judges.
Plaintiff Gregg Hjelle, an employee of Ayrcom Contracting, Inc., was seriously injured when a large chunk of frozen dirt struck him during the backfilling of the trench in which he was working. At the bench trial of this diversity suit, see 28 U.S.C. § 1332, he argued that Defendant Mid-State Consultants, a third-party independent contractor, is liable because it assumed control over the jobsite on the day of the injury. Mid-State responded that its role was confined to inspecting and approving the work performed and that it did not exercise control. The district court granted judgment to Mid-State. Plaintiff appeals. We have jurisdiction under 28 U.S.C. § 1291 and affirm.
The following account is based on unchallenged fact findings by the district court and undisputed evidence. Plaintiff, a resident of North Dakota, was employed by Ayrcom when he was severely injured on December 7, 1996, in rural Wyoming. Ayrcom was an independent contractor employed by RT Communications to install fiber-optic cables and ancillary equipment in accordance with industry standards. This work was subject to inspection by RT Communications or its designee. RT Communications entered into a separate contract with Mid-State, a Utah corporation, to inspect Ayrcom's work and serve as project engineer.
On the morning of December 7, 1996, Plaintiff accompanied his friend and fellow Ayrcom employee Nate Johnson to the jobsite where Johnson and other members of his work crew were to finish installing a "remote"-a concrete vault where fiber-optic cables interconnect. Due to his excessive drinking the night before, Johnson became ill and Plaintiff took over the driving. The two arrived at about 12:30 p.m. Jerry Welfl, Mid-State's inspector at the jobsite, was the only person there when they arrived.
Welfl had come to the jobsite at 8:00 a.m. and waited for the Ayrcom crew to arrive and install the remote. While he waited, an Ayrcom employee came to the site to start the backhoe and then left. A second Ayrcom employee, project supervisor Sherman Lysne, also stopped by the jobsite and informed Welfl that a crew was on its way. Shortly before 11:00 a.m. Welfl left, but he soon returned when his supervisor, project engineer Jack Warren, called his cellular phone and informed him that the Ayrcom crew was on the way and that Ayrcom employee Larry Svenspladen would supervise the work crew. Plaintiff and Johnson arrived first. Plaintiff told Welfl that Johnson was sick.
Because Johnson was incapacitated, Welfl asked Plaintiff whether he could operate the backhoe. Plaintiff said he had a little experience operating tractors and similar equipment on the farm where he grew up. According to Welfl, Plaintiff's operation of the backhoe was satisfactory. But Plaintiff was unfamiliar with how to install a remote, so Welfl told him where to dig the trench for steel pipe that needed to be installed.
The rest of the Ayrcom work crew arrived in two groups after 1:00 p.m. About the time of the arrival of the first group, Jeff Hegg and Rod Cunningham, Johnson replaced Plaintiff on the backhoe. A half hour later the second group, Maurice Zikmund and Svenspladen, the supervisor, arrived, although Svenspladen, accompanied by Hegg, left the immediate vicinity of the remote-installation site and began work on a truck. He continued to work on the truck until Plaintiff's injury, at no time giving any instruction or direction to the work crew.
At least twice during the installation process Johnson operated the backhoe. At one point Johnson was awakened (while slumbering on the backhoe) to dig a trench. Johnson then resumed sleeping on the backhoe while Plaintiff, Zikmund, and Cunningham proceeded with installing the necessary pipes and duct work. When they finished, Welfl indicated that the installation was satisfactory so the trench could be filled. Johnson was then roused.
After approving the work, Welfl noticed a minor defect: the pipe at the bottom of the four-foot-deep trench was not adequately marked. Welfl told Plaintiff, who was in the trench along with Zikmund and Cunningham, to mark the pipe with scare tape. It was the usual practice for Ayrcom workers to stand in the trench during backfilling to be sure that the pipe and conduit did not move out of place. To mark the pipe, Plaintiff bent over in the trench to tie the tape to the end of the pipe. Johnson proceeded to fill the trench with the backhoe. Plaintiff was unaware that Johnson had commenced backfilling the trench and Johnson was unaware that Plaintiff was in it. Attempting to fill the trench, Johnson dislodged a large piece of frozen dirt, causing it to tumble over the dirt pile and into the trench, pinning Plaintiff against the trench wall. Plaintiff's only warning of Johnson's approach was someone's telling him in a normal tone of voice to "look out." Plaintiff suffered severe injuries, incurring medical expenses exceeding $100,000.
At the bench trial Plaintiff argued that Welfl, acting on behalf of Mid-State, "affirmatively assumed duties and exercised control over the manner in which Ayrcom, [Plaintiff's] employer, was accomplishing its contractual responsibilities." Aplt.App. at 21 ¶ 25. But the court found:
[Welfl]... did not affirmatively assume a pervasive and controlling role in the work being accomplished by the Ayrcom employees in this case. Welfl did not control the methods of work or the operative details involved in accomplishing the tasks at hand on the date in question. Rather, Welfl performed duties that were expressly related to his jobsite inspection responsibilities to assure that the project was completed in accordance with the applicable specifications. Welfl did not control the methods of work or operative details, and the Ayrcom crew performed the tasks required to install the remote in the manner in which they usually performed such tasks. Welfl was doing the very job that Mid-State[ ] was hired to perform; Ayrcom employees were doing the precise tasks that the contract between their employer and RT Communications required. Any crossover of functions between Welfl, acting as Mid-State['s] onsite inspector, and Ayrcom was incidental and not such that it establishes liability on the part of Mid-State Consultants.
Aplt.App. at 30-31 ¶ 32. The court concluded that Mid-State owed no duty of care to Plaintiff and that Welfl's conduct was not the proximate cause of Plaintiff's injury.
On appeal Plaintiff argues that the district court erred in its application of Wyoming law, clearly erred in its factual finding that Mid-State did not assume control over the work or assume a duty of jobsite safety, and failed to make adequate factual findings as to whether Mid-State assumed an affirmative duty for Plaintiff's safety during the backfilling operations.
In a diversity action such as this, we apply the same substantive law as would the forum state and review the district court's determination of that law de novo. Hays v. Jackson Nat'l Life Ins., 105 F.3d 583, 587 (10th Cir.1997). There is no dispute that Wyoming law governs.
Ayrcom and Mid-State were both retained as independent contractors by RT Communications. Plaintiff relies on Wyoming law regarding the duty of an owner to an employee of an independent contractor hired by the owner. Because it is undisputed that Mid-State was acting as an agent of the owner, RT Communications, we will assume with respect to Plaintiff's claims that Mid-State's liability would be no greater than if it had been the owner. Both parties have proceeded on this implicit assumption.
Wyoming law adopts the general rule that an owner "is not obligated to protect the employees of an independent contractor from hazards which are incidental to, or part of, the very work the contractor was hired to perform." Jones v. Chevron U.S.A., Inc., 718 P.2d 890, 894 (Wyo.1986). But there are two important exceptions: "(1) workplace owner/employer (owner) exercises controlling and pervasive role over the independent contractor's work; or (2) owner assumes affirmative safety duties." Franks v. Indep. Prod. Co., 96 P.3d 484, 490 (Wyo.2004). Liability under both exceptions derives from the exercise of control that is usually absent in the relationship between the owner and an independent contractor. "Because the [general rule of non-liability] is based on the owner's delegation of control to the contractor, it should not apply when the owner maintains control over the hazard that causes the harm." Jones, 718 P.2d at 895.
We first consider whether Mid-State (through Welfl) exercised a "controlling and pervasive role" over Ayrcom's (Plaintiff's) work. It is not enough to exercise the type of control customary in the relationship between an owner and an independent contractor.
[This] exception does not apply unless the employer (owner) has the right to control the details of the work. The owner may retain a broad general power of supervision and control as to the results of the work so as to insure satisfactory performance of the independent contract — including the right to inspect, the right to stop the work, the right to make suggestions or recommendations as to details of the work, the right to prescribe alterations or deviations in the work — without changing the relationship from that of the owner and independent contractor or the duties arising from that relationship.
Franks, 96...
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