This memorandum opinion was not selected for pub lication in the New Mexico Reports. Please 1 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 2 Please also note that this electronic memorandum opinion may contain computer-generated 3 errors or other deviations from the official paper version filed by the Court of Appeals and does 4 not include the filing date. 5 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 6

FABIAN VILLAGRAN , 7 Plaintiff-Appellant, 8

v. NO. 30,802 9 FRANKEN CONSTRUCTION CO., INC. , 10 Defendant-Appellee. 11

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 12 Shannon C. Bacon, District Judge 13 Narciso Garcia, Jr. 14 Albuquerque, NM 15 for Appellant 16 Eaton Law Office, P.C. 17 P. Scott Eaton 18 Albuquerque, NM 19 for Appellee 20 MEMORANDUM OPINION 21 VIGIL, Judge. 22 Plaintiff appeals the grant of summary judgment to Defendant in this personal 23 injury case. We proposed to affirm on the basis that there were no issues of material 242 fact relating to Defendant’s right to cont rol the work of its subcontractor (MSS) for 1 whom Plaintiff worked. Both parties have timely responded to our proposal. We 2 have considered the arguments and affirm. 3 In our notice, we proposed to concludethat there was nothing in the contract 4 between Franken and MSS indi cating that Franken retainedcontrol over the work of 5 MSS. Plaintiff responds that he was relyi ng on more than the contract to argue that 6 Franken retained the right to control the work. First, he argues that Franken had 7 prepared a fall protection plan to be usedby MSS. As is clear from the record, no 8 Franken-prepared fall protection plan wa s presented by Plaintiff in support his 9 argument. 10 Second, Plaintiff argues that Franken provided the ropes for the fall protection 11 plan and they were totally inadequate. He also argues that Franken provided the 12 manner and means in which the roofing material was delivered to the roof, thus 13 retaining control over the work of the MSS employees. It is not clear from the record 14 that Plaintiff argued these facts to the distri ct court. However, we have often stated 15 that the preservation requirements do not apply in an appeal from the grant of 16 summary judgment. See Phifer v. Herbert , 115 N.M. 135, 138, 848 P.2d 5, 8 (Ct. 17 App. 1993) (holding that a different preservation rule applies when the party opposing 18 summary judgment attempts to call to the atte ntion of the appellate court facts in the 193 record not specifically brought to the attention of the district court), rev’d on other 1 grounds by Spectron Dev. Lab. , 1997-NMCA-025, 123 N.M. 170, 936 P.2d 852. 2 Thus, we will consider these new arguments relating to facts not specifically argued 3 to the district court. 4 With regard to the ropes for the fall protection system, th e evidence was that 5 Franken provided the ropes at the request of MSS. [RP 330, 341] While it appears that 6 Franken knew what the ropes were being usedfor, there is nothing in the evidence 7 suggesting that Franken instructed MSS employees what to do with the ropes. Simply 8 providing the ropes that the subcontractor planned to use in its fall protection plan 9 does not give Franken control over the work of MSS employees. 10 With regard to the manner and means of delivering the roofing materials, it 11 appears that Franken provided a crane and th e crane operator. [RP 566-567] It appears 12 that the crane operator was instructed “to he lp them out; lift their loads for them.” [RP 13 567] It also appears that after that he spoke to somebody from MSS in order to 14 coordinate the lifting of the bundles of roofing material. [RP 568] It does not appear 15 from any of the deposition testimony that th e crane operator’s actual method of lifting 16 the materials was directed by Franken, but rather was directed by MSS. [RP 569, 571] 17 The crane operator picked up the loads as they were rigged by MSS employees and 18 then he lifted them to where hewas directed by MSS employees. 194 Plaintiff argues that Franken had walkie-talkies that the crane operator could 1 have used so that Plaintiff would not have had to go to the edge of the roof to direct 2 the crane operator. That apparently is the case, but it is left to the crane operator to 3 determine whether he needed a walkie-talkie or not. [RP 573] They are apparently 4 only used when there was no line of sight. [RP 570] However, simply because there 5 were walkie-talkies available does not mean that Franken had control over the work 6 of the crane operator such that it could be held liable for Plaintiff’s injuries. 7 Plaintiff argues that this case is just like Fresquez v. Sw. Indus. Contractors & 8 Riggers, Inc. , 89 N.M. 525, 554 P.2d 986 (Ct. App. 1976), where the crane operator 9 was an employee of the general contractor, butperformed work at the direction of the 10 subcontractor. In Fresquez , the crane operator, although his work was entirely 11 directed by the subcontractor , was responsible for safety issues. The evidence in 12 Fresquezwas that the crane operator complained about safety issues to the 13 subcontractor but did not then also complain to his employer. There was also 14 evidence in that case that th e crane operator could stop operation if he felt that it was 15 too dangerous. 16 There is no such evidence in this case. There was no evidence that the crane 17 operator was responsible for safety issues or that he could stop the work if he felt it 18 was too dangerous. While the crane operator did testify that he uses a walkie-talkie 195 sometimes to assist direction on where to drop the load, it was only where he could 1 not see signals. Here, he was given hand signals by MSS employees so there was no 2 need for the walkie-talkies. Contrary to the facts in Fresquez , there is nothing here 3 creating a factual question regarding who wa s responsible for the manner in which the 4 crane operator conducted his work. He was directed where to lift the roofing materials 5 by MSS employees who used hand signals to direct him. 6 We conclude that Plaintiff did not create any issues of material fact regarding 7 Franken’s control over the work of MSS. Therefore, summary judgment was properly 8 granted. 9 In our notice, we pointed out that Plaintiff’s reliance on Franken’s knowledge 10 of violations of OSHA regulations as creating a duty was misplaced. Plaintiff argues 11 that we misconstrued his argument. He appears to be arguing that violation of OSHA 12 regulations may be considered as evidence of negligence. That may be true. 13 However, the issue here is whether Franken owed any duty to Plaintiff. That duty 14 cannot be established by know ledge of OSHA violations. See Valdez v. Cillessen & 15 Son, Inc. , 105 N.M. 575, 578, 734 P.2d 1258, 1261 (1987). 16 Finally, in our notice, we proposed to conclude that the grant of summary 17 judgment was not premature here. Plaintiff argued that his motion to compel 18 disclosure by Franken of its fall protection plan had not been acted on before the 196 district court granted summary judgment. It does not appear, however, that Plaintiff 1 told the district court that it wanted to wait on the motion for summary judgment until 2 after the motion to compel had been acted on. There is nothing in the record 3 indicating that Plaintiff notified the court that discovery was incomplete. 4 The rules of procedure allow for add itional time for discovery. Rule 1-056(F) 5 NMRA. However, Plaintiff must have rais ed the issue before the trial court. We 6 decline to find that the district court abused its discretion in ruling on a summary 7 judgment motion where there was no indication that further discovery was pending 8 or that the matter was not fully briefed and ready for decision. Cf. Bierner v. City of 9 Truth or Consequences , 2004-NMCA-093, ¶ 25, 136 N.M. 197, 96 P.3d 322 (applying 10 factors to consider in determining if summary judgment has been granted 11 prematurely). 12 For the reasons stated herein and inthe notice of proposed disposition, we 13 affirm. 14 IT IS SO ORDERED

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_______________________________ 16 MICHAEL E. VIGIL, Judge 177 WE CONCUR: 1

____________________________ 2 JAMES J. WECHSLER, Judge 3

____________________________ 4 TIMOTHY L. GARCIA, Judge 5