Magana v. Dave Roth Const.

Decision Date21 July 2009
Docket NumberNo. 20080629.,20080629.
Citation2009 UT 45,215 P.3d 143
PartiesCelso MAGANA and Yolanda Magana, Plaintiffs and Petitioners, v. DAVE ROTH CONSTRUCTION, ABM Crane Rental, and John Does I-V, Defendants and Respondent.
CourtUtah Supreme Court

DURRANT, Associate Chief Justice:


¶ 1 In the spring of 2005, Celso Magana worked for an independent contractor that subcontracted with Dave Roth Construction ("DRC") to frame the walls for a planned restaurant. While Magana was working at the construction site, a load of trusses slipped from its rigging during the off-loading process and fell on Magana. As a result, Magana suffered spinal injuries and is now paraplegic.

¶ 2 Magana filed a negligence claim against DRC and ABM Crane Rental, asserting, in part, that DRC's superintendent, Brett Campbell, negligently rigged the bundle of trusses that fell on Magana. DRC later moved for summary judgment, claiming that Campbell did not actively participate in the off-loading of the trusses and, therefore, DRC was shielded from liability by the retained control doctrine. In response, Magana argued liability under two negligence theories: retained control and direct negligence.

¶ 3 The district court granted DRC's motion for summary judgment, dismissing Magana's negligence claim against DRC. The court of appeals affirmed the district court's decision. Both courts determined that even if Campbell directly participated in rigging the trusses, he did not actively participate in the rigging process in such a way as to retain sufficient control to expose DRC to liability for the negligent rigging of the trusses. Neither court addressed Magana's direct negligence argument outside the context of the retained control doctrine.

¶ 4 We granted certiorari on the question of whether the court of appeals erred in its analysis of Magana's active participation argument. For the reasons discussed below, we hold that (1) the court of appeals correctly analyzed Magana's retained control argument, but (2) erred in failing to consider Magana's direct negligence argument outside the context of the retained control doctrine. Accordingly, we reverse the court of appeals' decision, and we remand this case to the district court to further consider Magana's direct negligence claim.


¶ 5 Because we are reviewing a grant of summary judgment, we view "`the facts and all reasonable inferences drawn therefrom in the light most favorable'" to Magana, the nonmoving party.1 Accordingly, we recount the facts in the light most favorable to Magana.

¶ 6 The owner of a future restaurant hired DRC as the general contractor on the construction project. As general contractor, DRC was responsible for overseeing the construction of the building, purchasing building materials for the project, and securing necessary subcontractors. DRC hired Brett Campbell to superintend and manage the project. Among other duties, Campbell's job description included inspecting and ensuring quality control of the work completed by the subcontractors, including Circle T Construction ("Circle T").

¶ 7 DRC subcontracted with Circle T to provide "framing labor and crane work." Circle T conducted most of the framing work, and Campbell and DRC participated in related tasks. For example, Campbell worked with Circle T's owner, Ted Alexander, to determine where to place the walls, and Campbell snapped the lines marking their location. Further, DRC supplied the lumber and arranged for the shipping of the framing materials to the project site. In addition, Magana claims that DRC was responsible for determining where on the construction site the lumber should be placed.

¶ 8 On the day before the accident, Campbell notified Alexander that truss joists were arriving that day and that Circle T was responsible for off-loading the joists by crane. Alexander later learned that the crane company Circle T normally used was not available and notified Campbell. Campbell offered to help Alexander find another crane company, and both agreed to start calling crane companies. Campbell eventually found an available crane company and scheduled it to off-load the truss joists the following day.

¶ 9 The next morning, Campbell "got Ted Alexander and the truck driver [of the truck carrying the trusses] together to work out the exact place to unload the trusses." The crane showed up later that morning, and Alexander directed the crane's operator where to set up the crane and where to off-load the trusses. After the crane was set up, Alexander and Campbell began off-loading the trusses. Before lifting the first load of trusses from the truck bed, the bundles were rigged to a hoist. The crane off-loaded the first bundle without any help or direction from Campbell, after which Circle T employees removed the rigging straps and returned them to Alexander.

¶ 10 Magana testified that after the first bundle of trusses was off-loaded, he saw Campbell on the bed of the flatbed truck with Alexander, and both were placing straps around the second bundle of trusses.

¶ 11 While this second bundle was being carried to the off-loading site, the bundle became unbalanced and fell on Magana. As a result, Magana suffered spinal injuries and is now paraplegic. When the load fell on Magana, Campbell was on the truck bed helping Alexander unload boxes of blocking.

¶ 12 The off-loading process was solely Circle T's responsibility. Campbell and Alexander both testified that even if Campbell had helped in rigging the trusses, he did not retain any control over the process or direct, instruct, or control the manner in which the truss joists were rigged or off-loaded. Both also testified that if Campbell had assisted Alexander to rig the trusses, Alexander would have retained complete control over Campbell's rigging work.

¶ 13 ABM Crane Rental did not bill either DRC or Circle T for its work on the date of the accident. But the owner of the crane company stated that he would have billed DRC for the work, not Circle T.

¶ 14 Following the accident, Magana filed a complaint alleging that ABM Crane Rental's and DRC's negligence caused Magana's injuries. Magana subsequently settled with ABM Crane Rental. DRC moved for summary judgment. In support of the motion, DRC argued that Circle T, not Campbell, controlled the manner in which the trusses were rigged and off-loaded and, therefore, DRC was not liable for Campbell's negligence, even if Campbell were the one who negligently rigged the trusses.

¶ 15 In response, Magana asserted two negligence theories. First, Magana made a direct negligence argument. Specifically, Magana claimed that Campbell directly helped rig the second load of truss joists and that there was an issue of fact as to whether Campbell was the one who "failed to safely rig the second load of truss joists." Magana also made this argument before the court of appeals and does so before us as well.

¶ 16 Second, Magana argued that because Campbell (1) was responsible for on-site safety, (2) determined where to place the walls and snapped a line marking their location, (3) hired the crane company, (4) directed the crane where to set up and off-load the trusses, and (5) directly participated in rigging the second load, DRC actively participated in Circle T's work and was liable for Magana's injuries under the retained control doctrine.

¶ 17 The district court granted DRC's motion and determined that the central issue in the matter was whether DRC, through Campbell, actively participated in the off-loading process. The court found that DRC did not actively participate, and, based on that finding, the court granted the summary judgment motion. Magana appealed the decision to the Utah Court of Appeals, which likewise held that Magana failed to show that Campbell exercised sufficient control over Alexander or Circle T to meet the active participation standard.2

¶ 18 Magana subsequently filed a petition for certiorari review, which we granted. Pursuant to our jurisdiction under Utah Code section 78A-3-102(3)(a) (2008), we now review the court of appeals' decision and determine whether the court of appeals correctly applied the active participation standard to Magana's claims.


¶ 19 On certiorari, we review the court of appeals' decision for correctness.3


¶ 20 We hold that the court of appeals' analysis of the active participation standard, as it relates to DRC's argument that it did not retain control, was correct. But the active participation standard does not apply to Magana's direct negligence argument. Because a question of fact remains regarding Campbell's direct negligence in causing Magana's injuries, the court of appeals erred in affirming the district court's dismissal of Magana's negligence claim against DRC.


¶ 21 Magana contends that DRC, through its agent Campbell, is liable for the negligence that caused Magana's injuries because Campbell "actively participated" in the construction project. We disagree. Active participation is a term of art that describes the level of control necessary to find an employer liable for its contractor's actions. In this case, DRC and its agent Campbell are the employer while Circle T and its agent Alexander are the contractor as those terms are used in applying the active participation standard.4

¶ 22 "Utah adheres to the general common law rule that `the employer of an independent contractor is not liable for physical harm caused to another by an act or omission of the contractor or his servants.'"5 "This general rule recognizes that one who hires an independent contractor and does not participate in or control the manner in which the contractor's work is performed owes no duty of care...

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