Peck v. Horrocks Engineers, Inc., 96-4029

• Decision Date: 10 February 1997
• Docket Number: No. 96-4029,96-4029
• Citation: 106 F.3d 949
• Parties: 97 CJ C.A.R. 239 Mary Kathryn PECK, Natural Mother of Zachery Eugene Peck, a minor, Plaintiff-Appellant, v. HORROCKS ENGINEERS, INC., Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 949

106 F.3d 949

97 CJ C.A.R. 239

Mary Kathryn PECK, Natural Mother of Zachery Eugene Peck, a minor, Plaintiff-Appellant, v. HORROCKS ENGINEERS, INC., Defendant-Appellee.

No. 96-4029.

United States Court of Appeals Tenth Circuit.

Feb. 10, 1997.

Mark L. Anderson of Christensen & Jensen, Salt Lake City, UT (L. Rich Humpherys, with him on brief), for Plaintiff-Appellant.

M. Dayle Jeffs of Jeffs & Jeffs, Provo, UT, for Defendant-Appellee.

Before EBEL, KELLY and BRISCOE, Circuit Judges.

EBEL, Circuit Judge.

Appellant Mary Peck ("Peck") appeals the district court's grant of summary judgment in favor of Appellee Horrocks Engineering ("Horrocks") in a wrongful death case concerning the death of her son, Zachery Peck ("Zachery"). Peck argues that the district court erred both in finding that Horrocks owed no duty of care to Zachery as a matter of law, and in refusing to consider an expert witness's affidavit. We find both of these arguments lacking in merit; accordingly, we AFFIRM the judgment of the district court.

BACKGROUND

Zachery Peck was killed on July 28, 1992, when a trench wall collapsed on him during the construction of a culinary water system ("the project") to be used by the City of Talmage, Utah. At that time, Zachery was an employee of K & P Plumbing ("K & P"), a contractor which had been selected by the Duchesne County Upper Country Water District ("Water District") to install the pipeline on the project. Horrocks is an engineering firm, which had been hired by the Water District to design and inspect the construction and progress of the project.

The pipeline was installed by pipe layers into a 5'4"' deep trench dug by a track hoe. OSHA and industry standards require that a trench of more than five feet in depth be either sloped or shored (using supportive beams) to protect against collapse. On the day of the collapse, the trench reached a depth of eight feet to allow the pipe to be laid underneath a steel culvert that crossed the path of the pipeline. An employee of Horrocks was involved in the decision to lay the pipe under the culvert, as opposed to over it. Zachery was laying pipe 20 feet away from the culvert, where the depth of the trench was seven feet, when the trench collapsed on him and he was killed. In violation of OSHA regulations, the trench was neither sloped nor shored.

Following the accident, Peck sued Horrocks and the Water District for wrongful death. In opposition to Horrocks' motion for summary judgment, Peck provided the district court with an affidavit from Rex Radford, a construction expert, that claimed the Water District and Horrocks had an obligation to see that the trench complied with safety standards.

The district court determined that neither Horrocks nor the Water District owed any duty to Zachery and that each was therefore free from liability as a matter of law. The district court rejected Peck's argument that Horrocks had contractually assumed a duty of care with regard to issues of safety when it agreed to monitor operations. The district court also rejected Peck's argument that Horrocks had assumed a duty of care by concurring in the decision to deepen the trench below five feet without requiring that safety precautions be taken. In granting summary judgment, the district court refused to consider the Radford affidavit because it was conclusory and failed to set forth specific facts showing a genuine issue for trial.

Peck appeals both the court's grant of summary judgment to Horrocks and its refusal to consider the Radford affidavit. Peck does not appeal the district judge's decision to grant summary judgment to the Water District.

DISCUSSION

We review the grant of summary judgment de novo, applying the same legal standards used by the district court pursuant to Fed.R.Civ.P. 56(c). Kaul v. Stephan, 83 F.3d 1208, 1212 (10th Cir.1996). "Summary judgment is appropriate 'if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.' " Kaul, 83 F.3d at 1212 (quoting Fed.R.Civ.P. 56(c)). "When applying this standard, we examine the factual record and reasonable inferences therefrom in the light most favorable to the party opposing summary judgment." Applied Genetics Int'l, Inc. v. First Affiliated Sec., Inc., 912 F.2d 1238, 1241 (10th Cir.1990). If there is no genuine issue of material fact in dispute, we next determine if the district court correctly applied the substantive law. Id.

I. APPLICABLE LAW

Jurisdiction of this case arose in the district court under 28 U.S.C. § 1332(a)(1) diversity jurisdiction; accordingly, we must apply state law to the substantive issues of this appeal. See Wood v. Eli Lilly & Co., 38 F.3d 510, 513 (10th Cir.1994); Erie R.R. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). To determine which state's law applies, we apply the forum state's choice of law rule--in this case, Utah's. Trierweiler v. Croxton & Trench Holding Corp., 90 F.3d 1523, 1532 (10th Cir.1996). Utah applies the law of the state with the "most significant relationship" to the claim. Rocky Mountain Helicopters, Inc. v. Bell Helicopter Textron, 24 F.3d 125, 128 (10th Cir.1994) (citing Forsman v. Forsman, 779 P.2d 218, 219-20 (Utah 1989)).

The parties agree that Utah has the most significant relationship to the claim. The allegedly tortious conduct occurred in Utah, the injury occurred in Utah, the plaintiff is a resident of Utah, and the relationship of the parties is centered in Utah. See Restatement (Second) of Conflict of Laws § 145(2) (1971). Thus, Utah law applies.

II. ENGINEER LIABILITY

Before Horrocks can be held liable for the death of Zachery, Peck must establish that Horrocks owed a duty of care to Zachery. Whether a duty of care exists is a question of law, although expert testimony may be helpful on the issue. Weber, By and Through Weber v. Springville City, 725 P.2d 1360, 1363 (Utah 1986); Wycalis v. Guardian Title of Utah, 780 P.2d 821, 827 n. 8 (Utah.Ct.App.1989). Only after it has been determined that a duty of care exists can a jury determine whether that duty was breached. W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 37, at 236-37 (5th ed.1984).

As a general rule, an engineer with construction inspection responsibility over a construction project owes no duty to an independent contractor's employees. See Peterson v. Fowler, 27 Utah 2d 159, 493 P.2d 997, 999 (1972) (holding that an architect with inspection responsibility over construction owes no duty to an independent contractor's employees). Nonetheless, an engineer may acquire a duty of care toward an independent contractor's employees by contractually assuming a duty to maintain safety, and several courts in other states have also ruled that a duty may be created by the engineer exercising control over worker safety issues at the job site. See Balagna v. Shawnee County, 233 Kan. 1068, 668 P.2d 157, 163 (1983); Peterson v. City of Golden Valley, North, 308 N.W.2d 550, 554-555 (N.D.1981).

Peck argues that Horrocks' duty to maintain safety in the manner in which K & P did its work arose both by contract, in which it assumed such a duty, as well as by the actual exercise of control over safety issues at the job site. We disagree with both contentions.

A. Contractual Assumption of Duty

For purposes of determining what obligations and responsibilities were contractually assumed by Horrocks and K & P, we look to two documents: (1) the Engineering Agreement entered into between the Water District and Horrocks (the "Engineering Agreement"); and (2) the Construction Contract entered into between the Water District and K & P (the "Construction Contract").

Peck points to two provisions of the Engineering Agreement to support his claim that Horrocks assumed a duty to maintain worker safety. First, Horrocks agreed to "physically oversee ... the work ... to determine that the work performed [was] in accordance with the plans and specifications." (Engineering Agreement p 6.2(1)). Because the plans and specifications included the requirement that K & P abide by Utah OSHA excavation standards (Construction Contract Special Provisions p 1-24), Peck argues that Horrocks contractually agreed to assume responsibility for the supervision of safety compliance. Second, the Engineering Agreement provides that Horrocks "will comply with and assist the owner to require all contractors ... employed in the completion of the project to comply with all applicable Federal, State and Local laws. In addition, [Horrocks] will conform to the requirements of the Utah State Division of Health...." (Engineering Agreement p 1.1).

Horrocks replies that any effort by Peck to infer a duty on behalf of Horrocks to maintain safety from Horrocks' duty to provide general supervision is foreclosed by Horrocks' express disavowal of any responsibility to maintain safety in both the Engineering Agreement and the Construction Contract. Paragraph 2.11 of the Engineering Agreement provides that "[Horrocks] shall not be responsible for construction means, methods, techniques, sequences or procedures, or for safety precautions and programs in connection with the work." (Engineering Agreement, p 2.11). This same provision is also found in p 27.3 of the Construction Contract.

Moreover, the Construction Contract expressly allocates responsibility for safety to K & P by providing that "[K & P] will be responsible for initiating, maintaining and supervising all safety precautions and programs in connection with the Work. He will take all necessary precautions for the safety of, and will provide the necessary protection to prevent damage, injury or loss to all employees on the work...." (Construction Contract, p 11.1). This delegation is consistent with the Construction Contract's requirement that K & P carry...