## F I L E D United States Court of Appeals Tenth Circuit 

### APR 6 2000 

### PATRICK FISHER Clerk 

### UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

MICHELLE E. HALE, Plaintiff-Appellant, and CLARENCE HALE; RENIE HALE, Plaintiff,

v. DANNY’S CONSTRUCTION COMPANY, INC., Defendant-Third-Party Defendant, WILLIAMS STEEL COMPANY, a corporation, Defendant Counterclaimant, Third Party Plaintiff, and H AND M CONSTRUCTION, a corporation, Defendant-Cross Claimant Cross-Defendant-Appellee,

v. No. 99-4040 (D.C. 95-CV-660) (Utah)* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. -2- FINGERHUT COMPANIES, INC., acorporation; WESTERN DISTRIBUTION, INC. a corporation; NEWCORE CORPORATION, a corporation, dba Vulcraft, Defendant Cross Claim Defendant.



### ORDER AND JUDGMENT *

Before SEYMOUR , Chief Judge, BRORBY and EBEL, Circuit Judges.

Michele Hale brought this diversity action in the U tah Federal District Court after her husband, John Hale, was killed in aconstruction accident. The defendant, H&M Construction Company (H&M), was the general contractor of the warehouse construction project at which the acc ident occurred. H&M entered into a subcontract with Williams Steel Company (Wil liams) to provide and install the steel framework of the warehouse. Williams the n entered into a subcontract with Danny’s Construction, Inc. (Danny’s) to erect and install the structural steel. At the time of the accident Mr. Hale was an employe e of Danny’s, which was1 After examining the briefs and appellate record, th is panel has determined

unanimously to honor the parties’ request for a dec ision on the briefs without oral argument. See F ED . R. A PP . P. 34(f); 10th Cir. R. 34.1(A)(2). The case is therefore ordered submitted without oral argument. -3- immune from suit under Utah’s worker’s compensationscheme. Following a bench trial, the District Court entered judgment fo r H&M after finding that it did not owe a duty of care to Mr. Hale under Utah law. Mrs. Hale appeals, and we affirm. 1 Under Utah tort law, the 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 concerning the safety of the manner or method of performance implemented.” Thompson v. Jess , 979 P.2d 322, 325 (Utah 1999). However, Utah recognizes the “retained control” theory of liability as an exception to this rule in contractor cases. Id. at 327. This doctrine as applied in Utah holds that the employer of an in dependent contractor may owe the contractor a limited duty of care if it exercis es sufficient control over the contracted work. See id. at 326 (citing Restatement (Second) of Torts § 414 (1965)). Thus, the scope of any duty is defined bythe amount of control the general contractor actually retains over the work. See, e,g, id. ; Lewis v. Riebe Enters., Inc. , 825 P.2d 5, 9 (Ariz. 1992). One way a general contractor can retain control is by actually exercising2 Ms. Hale makes much of the fact that the court in Thompson relied on

Lewis and dropped the following footnote, which she argu es leaves open the issue of whether, in Utah, a duty of care may be imposed solely as a result of a contractual reservation: The term “retained control” may have a more syntact ically correct application to sophisticated parties who, by contra ct, stipulate which party will control the manner or method of work or the sa fety measures to be taken–such as in contracts between general contract ors and subcontractors involved in construction projects. . . . The issue, however, . . . is not before us. Thompson , 979 P.2d at 328 n.3 (citations omitted). The pre sence of this footnote, Ms. Hale contends, indicates that the issue is unse ttled, and she urges us to certify the matter to the Utah Supreme Court. We decline t o do so. Ms. Hale relies on Lewis and Corsetti v. The Stone Co. , 483 N.E.2d 793 (Mass. 1985), for her contention that retained control can be determined solely based on contract language. However, both of those cases make it clear that the issue is one of fact based on contractual language and actual control. See Lewis , 825 P.2d at 11; Corsetti , 483 N.E.2d at 798-99. We have no reason to belie ve the Utah Supreme Court would go beyond Lewis and Corsettito hold a general contractor liable as a matter of law based solely o n language in the general contract. -4- control over the manner or methods of job performance. See Thompson , 979 P.2d at 328. Courts in other states have also held thata contractual provision assuming responsibility for safety at the site is relevant t o determining whether control is retained. See Lewis , 825 P.2d at 12. 2 In the present case, the district court looked to both of these factors – contract terms and actua l behavior – in reaching its conclusion that H&M had not retained control. The issue of whether a general contractor has retai ned sufficient control over the performance of work is a question of fact which should ordinarily be left to the fact-finder. See Lewis , 825 P.2d at 10 (citing cases); Corsetti v. The Stone3 There were three relevant contracts containing safe ty provisions in this

case: the original contract between the project own er and H&M, the subcontract between H&M and Williams, and the subcontract betwe en Williams and Danny’s. The district court determined that none of the cont racts read separately would settle who was to be responsible for the safety of the steel erection work as between Danny’s and H&M, so it examined the three c ontracts together. This decision was a legal one, see Morris v. Mountain States Telephone and Telegra ph Co. , 658 P.2d 1199, 1200 (Utah 1983), which we review de novo, and with which we agree. The district court’s assessments of the relationship between the three contracts and the parties’ intentions with respect to this relationship, however, are findings of fact subject to the clearly erroneo us standard of review. See Crowther v. Carter , 767 P.2d 129, 131 (Utah 1989). The court determi ned that the three contracts taken together gave responsibil ity for the safety of the steel erection to Danny’s. We do not believe this decisi on to be in error. -5- Co. , 483 N.E.2d 793, 798 (Mass. 1985)

. Because the proceedings below took the form of a bench trial, the district court assumed t he role of fact-finder, and we may not set aside its findings unless they are clearly erroneous. See F ED . R. C IV . P. 52(a); Mid-West Conveyor Co. v. Jervis B. Webb Co. , 92 F.3d 992, 997 (10th Cir. 1996). “A finding of fact is ‘clearly erroneo us’ if it is without factual support in the record or if the appellate court, af ter reviewing all the evidence, is left with a definite and firm conviction that a mistake has been made.” Manning v. United States , 146 F.3d 808, 812 (10th Cir. 1998) (citation omitted). The district court was quite thorough in setting fo rth the bases for its findings. Its order analyzes the contracts between all of the parties, 3 as well as H&M’s behavior with respect to the manner and metho d of the work performed. The court determined that Danny’s contractually ass umed primary responsibility-6-

for the manner and method of the steel erection work and that H&M did not actually control the day-to-day performance of the steel erection work. There is ample support for these findings in the record and we are not convinced the district court, after hearing the testimony, making credibility findings, and reviewing the documentary evidence, made a mistake. Finally, Ms. Hale argues that the district court mi sapplied the law when it concluded that H&M did not owe Mr. Hale a duty because Danny’s had assumed “primary responsibility” for the safety of the stee l erection. Ms. Hale urges us to adopt the following reasoning: the term “primary re sponsibility” connotes that H&M must have at least had “secondary responsibility;” if H&M had such secondary responsibility, it can be said to have re tained some measure of control; therefore, H&M owed Mr. Hale a duty of care such th at it should be liable for his injury. We are not persuaded. Ms. Hale asks us to read a great deal into the district court’s single use of the term “primary re sponsibility.” The court makes no reference to “secondary responsibility,” and we cannot justify making the “inferential leap” that the court intended to imbue H&M with it. Ramey Const. Co. v. Apache Tribe of the Mescalero Reservation , 616 F.2d 464, 467 (10th Cir. 1980) (refusing to interpret trial court’s findings and conclusions beyond extent discussed in order). The district court’s finding that Danny’s had primary responsibility for the safety of the steel erection was simply a logical step toward-7-

its conclusion that H&M did not retain sufficient c ontrol over the steel erection to create a duty owed to Mr. Hale. This straightforward reading of the district court’s application of the retained control doctrin e fits well with the principle that the duty a general contractor owes is confined in s cope to the extent of the control asserted. We will not distort the district court’s logic in order to arrive at a conclusion that misapplies the doctrine. Accordingly, we AFFIRM the decision of the district court and DENY Ms. Hale’s motion for certification. ENTERED FOR THE COURT Stephanie K. Seymour Chief Judge