Martinez v. Asarco Inc.

• Decision Date: 23 November 1990
• Docket Number: No. 88-1654,88-1654
• Citation: 918 F.2d 1467
• Parties: Ralph MARTINEZ, husband; Mary Martinez, wife, Plaintiffs-Appellants, v. ASARCO INCORPORATED, a foreign corporation, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1467

918 F.2d 1467

Ralph MARTINEZ, husband; Mary Martinez, wife, Plaintiffs-Appellants, v. ASARCO INCORPORATED, a foreign corporation, Defendant-Appellee.

No. 88-1654.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 14, 1989.

Decided Nov. 23, 1990.

Bernard I. Rabinovitz, Rabinovitz & Associates, Tucson, Ariz., for plaintiffs-appellants.

David F. Gaona, DeConcini, McDonald, Brammer, Yetwin & Lacy, Phoenix, Ariz., for defendant-appellee.

Appeal from the United States District Court for the District of Arizona.

Before HUG, HALL and O'SCANNLAIN, Circuit Judges.

PER CURIAM:

We are presented, in this diversity case governed by the law of Arizona, with the question of whether a smelter operator has a duty to an invited independent contractor to make its premises reasonably safe, and if so, whether such duty can be met by warning of any danger.

I

Because this is an appeal from a grant of summary judgment for Asarco, the evidence is set forth in the light most favorable to appellants, the Martinezes. ¹ Ralph Martinez was an employee of James & Luther ("J & L"), a company that contracted with Asarco to perform maintenance work on a blast furnace in an Asarco smelter. The work included replacement of the top of the furnace's settling chamber. In making the contract, it was understood that J & L had done similar work previously. Under the contract, J & L was to maintain at all times a competent supervisory staff and to retain responsibility for performing and supervising the repair work. J & L determined and used its own safety procedures in addition to those recommended by Asarco. J & L's foreman determined and monitored the safety equipment used by J & L.

Prior to the commencement of the repair work, representatives of Asarco conducted a tour of the smelter for several of J & L's safety and supervisory personnel. The purpose was to apprise J & L of any possible and known safety hazards, and the main focus was on the settling chamber. Asarco informed the J & L representatives that the reason for removing the settling chamber's top was to neutralize acidic mud accumulated underneath and that proper safety precautions should be taken. Asarco did not, however, inform J & L of the amount of the acidic mud, the presence of hot gases, or the likelihood of the gases or the mud escaping upon removal of the settling chamber's top. Asarco was aware that J & L would encounter toxic dust during the removal.

J & L subsequently conducted a safety meeting with its own employees. Among the topics discussed was the removal of the settling chamber's top. No mention was made at the meeting of hot gases or acidic mud or the possibility of these blowing out upon removal.

On February 10, 1986, pursuant to a timetable agreed upon by Asarco and J & L, Martinez was assigned by J & L to assist in removing the top of the settling chamber. Martinez understood that the furnace had been shut off for 72 hours when, in fact, it had been shut off only 18-19 hours before the work began. Before previous repair work on the settling chamber had been conducted in 1984, the furnace had been allowed to cool for a longer period, at least exceeding one day and possibly two.

Martinez was one of the first welders to remove a section of the top of the settling chamber. Upon his prying loose a section and lifting it up, hot gases and mud containing sulfuric acid and arsenic as by-products of the smelting process flew out from underneath the section. When these struck Martinez, they burned his eyes, face, and throat, while inhalation of fumes injured his lungs. In attempting to escape from the hot gases and acidic mud, Martinez hit a catwalk railing pipe and injured his jaw. Martinez's skin is permanently scarred and he continues to have difficulty breathing.

Martinez and his wife, Mary, filed suit in the United States District Court for the District of Arizona on the basis of diversity of citizenship. See 28 U.S.C. Sec. 1332 (1988). ² The Martinezes asserted negligence claims against Asarco based on the aforesaid events. Asarco answered, denied liability, and asserted a third-party complaint against J & L for indemnification of any amount that the Martinezes might recover from Asarco. J & L answered and counterclaimed against Asarco. Asarco answered and all the issues were joined.

Asarco filed a motion for summary judgment of the Martinezes' complaint. Over the Martinezes' opposition, the district court granted the motion. The district court's brief order addressed only the question of "whether a landowner owes a duty to the employee of an independent contractor." Order at 1-2 (Dec. 31, 1987). The court concluded that Asarco neither retained control over the work nor owed any duty to an employee of an independent contractor. However, the court did not discuss the Martinezes' theory that Asarco had breached a duty to Martinez which existed simply because Martinez was Asarco's invitee regardless of any retention of control by Asarco. The Martinezes' complaint was dismissed with prejudice.

The Martinezes timely appeal. We have jurisdiction under 28 U.S.C. Sec. 1291.

II

Because this is a case under the federal diversity jurisdiction, we must first determine the applicable state substantive law. ³ See American Triticale, Inc. v. Nytco Servs., Inc., 664 F.2d 1136, 1141 (9th Cir.1982) ("It is well settled that a federal court exercising diversity jurisdiction must apply substantive state law.") (citing Erie R.R. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938)). Arizona's choice-of-law principles will clearly govern this case: the Martinezes filed the action in the District of Arizona, and a federal court sitting in diversity must apply the choice-of-law principles of the forum state. See Day & Zimmermann, Inc. v. Challoner, 423 U.S. 3, 4-5, 96 S.Ct. 167, 167-68, 46 L.Ed.2d 3 (1975); Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496-97, 61 S.Ct. 1020, 1021-22, 85 L.Ed. 1477 (1941).

We must therefore determine, under Arizona's choice-of-law principles, which state's tort law should govern this action between a citizen of New Jersey (Asarco) and citizens of Arizona (the Martinezes). In Arizona, "courts are to resolve tort issues under the law of the state having the most significant relationship to both the occurrence and the parties with respect to any particular question." Bates v. Superior Court, Maricopa County, 156 Ariz. 46, 49, 749 P.2d 1367, 1370 (1988). For courts determining which state has the "most significant relationship," Arizona has identified four "especially relevant contacts":

1. The place where the injury occurred;

2. The place where the conduct causing the injury occurred;

3. The domicile, residence, nationality, place of incorporation and place of business of the parties;

4. The place where the relationship, if any, between the parties is centered.

Id. Arizona--where the Martinezes reside, Asarco does business, the injury and the conduct causing it (under any proffered explanation) occurred, and the relationship between Martinez and Asarco is centered-- clearly has "the most significant relationship to both the occurrence and the parties." Id. The parties do not disagree. We will therefore apply Arizona's substantive law of torts. ⁴

III

The Martinezes presented two theories of tort recovery in the district court. First, they argued that Asarco had breached a duty to Ralph Martinez by handing over to J & L an unsafe workplace and that this action had caused him injury. Second, they contended that Asarco had retained control of the workplace and was therefore liable for J & L's alleged negligence. In its order granting summary judgment, the district court discussed only the latter "retained control" theory. We examine each in turn.

A

To establish a negligence case under Arizona law, the plaintiff must show that the defendant owed him a duty, that defendant breached the duty, and that defendant's breach was a proximate cause of injury to the plaintiff. Boyle v. City of Phoenix, 115 Ariz. 106, 107, 563 P.2d 905, 906 (1977). What, if any, duty was owed is a question of law to be determined by the court. Markowitz v. Arizona Parks Bd., 146 Ariz. 352, 356, 706 P.2d 364, 368 (1985). Whether defendant breached the duty owed is ordinarily reserved for the trier of fact. Flowers v. K-Mart Corp., 126 Ariz. 495, 497, 616 P.2d 955, 957 (Ct.App.1980). The question of proximate cause is not relevant to this appeal.

Thus, our role in this case is to determine what, if any, duty Asarco owed to Martinez and, if a duty was owed, whether the Martinezes met their burden of producing evidence from which a reasonable jury might reasonably conclude that Asarco had breached the duty.

In determining whether Asarco owed Martinez a duty, "[t]he question is whether the relationship of the parties was such that [Asarco] was under an obligation to use some care to avoid or prevent injury to [Martinez]." Markowitz, 146 Ariz. at 356, 706 P.2d at 368. The parties agree that Martinez was Asarco's invitee. There can therefore be no gainsaying that Asarco owed Martinez a duty: "The law is clear in Arizona that a proprietor of a business is under an affirmative duty to make the premises reasonably safe for use by invitees...." Tribe v. Shell Oil Co., 133 Ariz. 517, 519, 652 P.2d 1040, 1042 (1982).

In formulating this duty owed to business invitees, Arizona has relied on the Restatement (Second) of Torts. See, e.g., id.; Pruett v. Precision Plumbing, Inc., 27 Ariz.App. 288, 290, 554 P.2d 655, 657 (1976). There are two pertinent Restatement sections. Section 343 provides:

Dangerous Conditions Known to or Discoverable by Possessor

A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if, but only if, he

(a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such...