After examining the briefs and appellate record, this panel has determined *

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument. This order and judgment is

not binding precedent, except under the doctrines of law of the case, res judicata,

and collateral estoppel. It may be cited, however, for its persuasive value

consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. 

F I LED

United States Court of Appeals

Tenth Circuit

February 6, 2007

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

WILLIAM BOSWELL,

Plaintiff-Appellant,

v.

COLLOID ENVIRONMENTAL

TECHNOLOGIES COMPANY,

doing business as CETCO;

AMCOL INTERNATIONAL

CORPORATION; AMERICAN

COLLOID COMPANY,

Defendants-Appellees.

No. 06-8043

(D.C. No. 05-CV-158-WCB)

(D. Wyo.)

ORDER AND JUDGMENT

*

Before PORFILIO, BALDOCK, and EBEL, Circuit Judges.
The parties agreed to proceed before a magistrate judge. See 28 U.S.C. 1

§ 636(c). 

Defendant American Colloid Co. (ACC) processes clay into bentonite that 2

it sells to CETCO. Defendant AMCOL International Corp. is the parent

corporation of ACC and CETCO. We refer to all defendants collectively as

“CETCO.”

-2-

Plaintiff William Boswell appeals the district court’s order granting 1

summary judgment in favor of defendants on his claims of negligence and

premises liability. We exercise jurisdiction under 28 U.S.C. § 1291 and affirm. 

Background

Mr. Boswell, a Nevada citizen, was employed by Freedom Trucking and

F & L Trucking (Freedom) as a commercial truck driver. Defendant Colloid

Environmental Technologies Co. (CETCO) hired Freedom as an independent 2

contractor to transport a shipment of BentoMat, a bentonite product, from

CETCO’s plant in Lovell, Wyoming, to a destination in California. On

September 27, 2001, Mr. Boswell arrived at the CETCO plant to pick up the

BentoMat. After signing a safety form that required, among other things, all

loads to be covered, Mr. Boswell drove his truck to the loading dock where

CETCO employees placed the rolls of BentoMat on his flatbed trailer. From

there, Mr. Boswell went to the designated tarping area where he climbed on top of

the load and began covering the load with tarps he carried with the trailer. While

doing so, he fell from the top of the trailer and sustained severe, permanent

injuries. 
Mr. Boswell has abandoned on appeal his collateral-estoppel argument. 3

-3-

Mr. Boswell filed suit alleging that defendants were liable for his injuries

based on negligence and premises-liability theories. The district court granted

summary judgment in favor of CETCO, holding that the undisputed facts

demonstrated that CETCO did not control how Mr. Boswell tarped his load, and

therefore, CETCO did not owe him a duty of care. In addition, the court

determined that the evidence did not show that CETCO affirmatively assumed

duties of safety to Mr. Boswell in order to create a duty of care. Later, the court

denied Mr. Boswell’s motion for reconsideration, a ruling that has not been

appealed and is not before us. 

On appeal, Mr. Boswell argues that the district court erred in holding that

CETCO did not owe him a duty of care. He maintains that CETCO owed him

such a duty because it exercised control over the hazard that caused his injuries.3

He also challenges the district court’s conclusion that the existence of disputed

material facts as to the degree to which CETCO had fall protection available was

irrelevant in the absence of a legal duty of care.

Discussion

Mr. Boswell brought suit in a Wyoming federal court invoking diversity

jurisdiction. See 28 U.S.C. § 1332(a). Accordingly, we apply the substantive law

of Wyoming, the forum state. Clark v. State Farm Mut. Auto. Ins. Co., 433 F.3d
-4-

703, 709 (10th Cir. 2005). “We review the district court’s determination of

[Wyoming] law de novo.” Kysar v. Amoco Prod. Co., 379 F.3d 1150, 1155

(10th Cir. 2004). 

We also review de novo the district court’s grant of summary judgment,

viewing the record in the light most favorable to the party opposing summary

judgment. Lanman v. Johnson County, 393 F.3d 1151, 1154-55 (10th Cir. 2004). 

Summary judgment is appropriate if there is no genuine issue of material fact and

the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c);

Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). 

The district court thoroughly analyzed Wyoming law governing

Mr. Boswell’s claims. After reviewing the record, the briefs, and the relevant

authorities, we find no error in the district court’s analysis or judgment. We

therefore affirm for the reasons given by the district court in its Order on Parties’

Cross-Motions for Summary Judgment filed May 9, 2006. 

The judgment of the district court is AFFIRMED.

Entered for the Court

Bobby R. Baldock

Circuit Judge