Vanoss v. BHP Copper Inc.

418 P.3d 457
CourtCourt of Appeals of Arizona
DecidedJanuary 8, 2018
DocketNo. 2 CA-CV 2017-0033
StatusPublished

This text of 418 P.3d 457 (Vanoss v. BHP Copper Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals of Arizona primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Vanoss v. BHP Copper Inc., 418 P.3d 457 (Ark. Ct. App. 2018).

Opinion

ECKERSTROM, Chief Judge:

¶ 1 Pierre and Lynn Vanoss, parents of the decedent, Jon Pierre Vanoss, and guardians of two of his minor children, along with Erin Healey, parent and guardian of a third child (collectively, "the Family"), appeal from the trial court's judgment following a jury trial and verdict in favor of BHP Copper Inc., alleging numerous claims of error. For the following reasons, we affirm the judgment of the trial court.

Factual and Procedural History

¶ 2 The following facts are not in dispute. In 2012, BHP began rebuilding and refurbishing certain facilities at the Pinto Valley Mine in Globe-facilities that had been inoperable for several years. BHP hired an independent contractor, Tetra Tech Construction Services, Inc. to refurbish the ore chute system in the secondary crusher building. BHP contractually required Tetra Tech to abide by a comprehensive safety program with specific procedures and training for all workers. BHP separately contracted with Stantec Consulting Services, Inc. to provide general construction and safety management for the project, and it hired Atwell Anderson, LLC as the project's general contractor. On September 22, 2012, Tetra Tech employee Jon Pierre Vanoss, who had been assigned to "fire watch" duty on the fourth floor of the secondary crusher building, did not return from lunch. Following a search, Vanoss was found on a conveyor belt at the bottom of the number eight chute, having died from an apparent fall.

¶ 3 In cases later consolidated, the Family brought this action alleging negligence and negligence per se and seeking compensatory and punitive damages.1 Following trial, the jury returned a verdict in favor of BHP and the court entered judgment pursuant to Rule 54(b), Ariz. R. Civ. P. After the court denied the Family's motion for new trial, this appeal followed. We have jurisdiction. A.R.S. §§ 12-120.21(A)(1), 12-2101(A)(1), (5)(a).

*461Non-Delegable Duty

¶ 4 The Family contends the trial court erroneously granted partial summary judgment in favor of BHP, alleging that, as a mine operator, BHP owed a non-delegable duty to Vanoss pursuant to certain mine-safety statutes and regulations. Accordingly, the Family urges that BHP is vicariously liable under the Restatement (Second) of Torts § 424 (1965), for Tetra Tech's failure to abide by required safeguards. We disagree with both contentions.

¶ 5 Whether one party owes another a duty of care is a question of law this court reviews de novo. Stanley v. McCarver , 208 Ariz. 219, ¶ 5, 92 P.3d 849, 851 (2004). A landowner who hires an independent contractor "owes no duty" to protect the employee of an independent contractor from that contractor's own negligence. E.L. Jones Constr. Co. v. Noland , 105 Ariz. 446, 455, 466 P.2d 740, 749 (1970). Indeed, "a landowner is not liable for the negligent conduct of an independent contractor unless the landowner has been independently negligent."2 Lee v. M & H Enters., Inc. , 237 Ariz. 172, ¶ 12, 347 P.3d 1153, 1157 (App. 2015). Although Arizona courts have recognized landowners may owe non-delegable duties to third parties for the tortious conduct of independent contractors, see Rand v. Porsche Fin. Servs. , 216 Ariz. 424, ¶ 36, 167 P.3d 111, 121 (App. 2007), such duties do not extend to the employees of those contractors, Sullins v. Third & Catalina Constr. P'ship , 124 Ariz. 114, 117, 602 P.2d 495, 498 (App. 1979).

¶ 6 Weighty policy considerations support this rule; most notably, employees are covered by our state's workers' compensation scheme-the premiums of which a landowner either directly or indirectly pays by hiring an independent-contractor employer. Welker v. Kennecott Copper Co. , 1 Ariz. App. 395, 404, 403 P.2d 330 (1965), rejected in part on other grounds by Lewis v. N.J. Riebe Enters., Inc. , 170 Ariz. 384, 388-89, 825 P.2d 5, 9-10 (1992). Indeed, recognizing a non-delegable duty to such employees would serve only to increase the liability of the landowner merely for having hired an independent contractor. Id. As other courts have observed, this would "encourage the landowner to use [his] less experienced employees rather than an experienced contractor," thereby increasing the risk of harm to both employees and third parties. Dillard v. Strecker , 255 Kan. 704, 877 P.2d 371, 385 (1994).

¶ 7 Relying on § 424, Restatement (Second) of Torts,3 the Family argues that certain mine-safety statutes and regulations impose a non-delegable duty on BHP. See A.R.S. § 27-304 ("The [mine] operator shall conduct his operation with due regard to health and safety."). However, we have previously determined § 424"does not apply in the area of the law governing the relationship of an owner of property to an employee of an independent contractor." Sullins , 124 Ariz. at 117

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418 P.3d 457, Counsel Stack Legal Research, https://law.counselstack.com/opinion/vanoss-v-bhp-copper-inc-arizctapp-2018.