Jordan v. Nucor Corp., 01-2367NE.

• Decision Date: 08 July 2002
• Docket Number: No. 01-2367NE.,01-2367NE.
• Citation: 295 F.3d 828
• Parties: Paul Danny JORDAN, Appellant, v. NUCOR CORPORATION, a Delaware Corporation, and Carlisle Construction Co., Inc., a Kentucky Corporation, Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

295 F.3d 828

Paul Danny JORDAN, Appellant, v. NUCOR CORPORATION, a Delaware Corporation, and Carlisle Construction Co., Inc., a Kentucky Corporation, Appellees.

No. 01-2367NE.

United States Court of Appeals, Eighth Circuit.

Submitted: February 15, 2002.

Filed: July 8, 2002.

Rehearing and Rehearing En Banc Denied: August 15, 2002.

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James Harris, argued, Omaha, Nebraska, for appellant.

Thomas E. Morrow, Jr., argued, Omaha, Nebraska, for appellee, Nucor Corporation.

R. Douglas Stave, argued, Omaha, Nebraska, for appellee, Carlisle Construction.

Before HANSEN, Chief Judge, HEANEY and RICHARD S. ARNOLD, Circuit Judges.

RICHARD S. ARNOLD, Circuit Judge.

Paul Danny Jordan was injured when a piece of steel girder fell from a crane and struck him while he was working at a construction site in Norfolk, Nebraska. Mr. Jordan filed a negligence action in the District Court of Douglas County, Nebraska, against the owner of the construction site, NUCOR Corporation, and the owner and lessor of the crane involved in the accident, Carlisle Construction Company. NUCOR and Carlisle removed the case to the District Court on the basis of diversity jurisdiction. Both parties consented to the exercise of jurisdiction by a United States Magistrate Judge.¹ NUCOR and Carlisle moved for summary judgment. The Court granted both motions. Mr. Jordan appeals.

Mr. Jordan argues that the District Court erred in granting summary judgment in favor of NUCOR for the following reasons: first, that the Court erred in determining that NUCOR was not acting as its own general contractor because it maintained possession of the premises and was substantially involved in overseeing the construction at the site; second, that the Court misinterpreted Nebraska law by failing to hold that NUCOR, acting as a general contractor, had a nondelegable duty to provide a safe place for a contractor's employees to work; third, that the Court erred in failing to determine that NUCOR retained enough control to implement whatever safety precautions it deemed necessary, including compliance with OSHA regulations; fourth, that the Court erred in failing to categorize NUCOR as a "multi-employer" subject to OSHA regulations; and fifth, that the Court erred in failing to hold that the use of the crane constituted a peculiar risk or inherently dangerous activity giving rise to liability. We affirm the decision of the District Court in all respects with regard to NUCOR.

Mr. Jordan contends that the District Court erred in granting summary judgment in favor of Carlisle for the following reasons: first, that the District Court failed to hold that the crane was an inherently dangerous instrument and that Carlisle, as lessor, was subject to liability; second, that the Court failed to hold Carlisle liable for the negligent performance of its undertaking as the crane's lessor; third, that the Court erred in holding that the crane horn was operational and sounded before the lift that culminated in Mr. Jordan's injuries; fourth, that the Court erred in failing to determine that Mr. Jordan was entitled to the presumption that he would have heeded a proper warning had one been given; and fifth, that the Court erred in failing to infer that Carlisle failed to produce certain evidence under its control because that evidence would have been unfavorable to Carlisle. We affirm the decision of the District Court in all respects with regard to Carlisle.

I.

Mr. Jordan was an employee of Lexicon, Inc.,² one of five independent contractors constructing an addition to the NUCOR steel plant in Norfolk, Nebraska. On the date of the accident, Lexicon employees were fabricating deflector shields at the NUCOR site. This process involved attaching pieces of steel to a crane in order to move them to another area where the shields would be assembled. The crane was being operated by Kenneth Spencer, the equipment foreman at the job site. Immediately before the accident, Mr. Spencer lifted a load, consisting of several pieces of steel, six to eight inches off the ground, but determined that the load was not level. He then lowered it back to the ground, adjusted the load, and lifted it again. Mr. Spencer testified that he sounded the horn when the load was lifted off the ground in order to warn other employees located near the crane. After being lifted twelve to fifteen feet, the load started to fall apart. Mr. Spencer tried to swing it to the side to avoid causing any injuries. When he did so, a piece of steel fell from the crane and struck Mr. Jordan, who was standing below on a platform. Mr. Jordan fell fifteen feet off the platform, and sustained injuries to his back, lungs, ribs, and shoulder.

The construction site where the accident occurred is owned by NUCOR. The relationship between NUCOR and Lexicon is that of an owner and an independent contractor. The contract between the two parties specifically states:

The relationship established by this Agreement is solely that of Owner and Contractor. Nucor is not acting, and nothing contained within this Agreement shall constitute Nucor, as a general contractor or construction manager. Nothing contained within this Agreement shall constitute Contractor as an agent, partner or joint venturer of Nucor and nothing contained herein shall grant Contractor the right or authority to create any obligation of any kind on behalf of Nucor.

Joint Appendix (J.A.) 48. NUCOR employees did participate in deliveries that took place on the construction site, and NUCOR employees were located throughout the plant. However, NUCOR employees did not instruct Lexicon employees how to perform their individual duties. Mr. Spencer testified that he was never told by NUCOR how to operate the crane or what particular job was to be completed on any given day. More specifically, he was not supervised with respect to, or directed to pick up, the load that injured Mr. Jordan by any NUCOR employee. J.A. 304. Additionally, Mr. Jordan stated that he never talked to the NUCOR employees present at the construction site. J.A. 249.

NUCOR did retain the right to ensure that the contract was being carried out in accordance with the plans and specifications of the project, but only in certain situations did NUCOR have the right to gain control over the entire project. The contract specifically provides that in the case of a default or if Lexicon "neglects to carry out the Work in accordance with the Contract Documents or fails to perform any provision of this Agreement," NUCOR has the right to "terminate the employment of Contractor and take possession of the job Site and of all materials, equipment, tools, construction equipment and machinery thereon owned by Contractor and may finish the Work to be performed by Contractor by whatever method it deems expedient."³ J.A. 54.

NUCOR also specifically delegated all safety duties to Lexicon according to the terms of the contract. This provision states:

Contractor agrees to use its best efforts to insure the safety of (a) all employees on the work force and all other persons who may be affected by the Work, (b) the Work, itself, and (c) all material and equipment to be incorporated into the Work, and any other property at the job site or adjacent to the Work.

J.A. 47. Lexicon held weekly safety meetings for employees and checked certain instrumentalities, including the crane involved in the accident, on a weekly basis.

The crane involved in the accident was leased to Lexicon on September 26, 1996, by Carlisle. The Equipment Rental Agreement delegated the duty to repair and maintain the crane to Lexicon.⁴ The record indicates that the crane was delivered with a safety horn, and that this horn was functioning properly when it was delivered. In November 1996, Carlisle was notified that there were problems with the horn. A new horn button was ordered and sent to Lexicon. There is no record of any repairs sought or made near the time of Mr. Jordan's accident in March 1997.⁵

Mr. Spencer, who was operating the crane, testified that on the date of the accident, he sounded the horn several times before the lift that resulted in Mr. Jordan's injuries. J.A. 405. He stated that he also remembered checking the horn the week before the accident and that there were no problems with it. Mr. Spencer specifically testified that he heard the horn sound when he picked up the load that injured Mr. Jordan. J.A. 407. Marvin Wallace, the superintendent of the construction site, also testified that the day before the accident, he remembered that the crane was in working order, though he could not recall whether or not he heard the horn sound on that day. J.A. 333.

These facts are disputed by Mr. Jordan. He alleges that the warning horn on the crane was not working on the day of the accident, nor was it working during the four days before the accident. He testified that another Lexicon employee, Billy Dean, had been verbally warning other employees when the crane was about to pick up a load. J.A. 239. However, Mr. Jordan stated that Mr. Dean did not warn Mr. Jordan before the lift that resulted in his injuries, nor did Mr. Jordan hear the horn sound.

II.

Mr. Jordan contends that the District Court erred in granting summary judgment in favor of NUCOR and Carlisle. We review a grant of summary judgment de novo. Iowa Coal Min. Co. v. Monroe County, 257 F.3d 846, 852 (8th Cir.2001). After reviewing the record in the light most favorable to the nonmoving party, the Court will affirm the decision if there are no genuine issues of material fact. Id.

In a diversity action for negligence, we apply the law of the forum state. Fogelbach v. Wal-Mart Stores, Inc., 270 F.3d 696, 698 (8th Cir.2001). Under Nebraska law, an action for negligence exists when a defendant owes a legal duty to a plaintiff, the defendant fails to discharge that duty, and damage results from the failure to perform the duty. Brown ex rel....