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Vanoss v. BHP Copper Inc.

Court of Appeals of Arizona, Second Division

January 8, 2018

PIERRE VANOSS AND LYNN VANOSS, HUSBAND AND WIFE; AND P.J.V. AND J.R.V., MINOR CHILDREN, Plaintiffs/Appellants,
v.
BHP COPPER INC., A DELAWARE CORPORATION, Defendant/Appellee. ERIN HEALEY, AS PARENT AND GUARDIAN OF J.V., A MINOR CHILD, Plaintiff/Appellant,
v.
BHP COPPER INC., A DELAWARE CORPORATION, Defendant/Appellee.

         Appeal from the Superior Court in Pima County Nos. C20134884 and C20135294 (Consolidated) The Honorable Catherine Woods, Judge

          Robert J. Hommel, P.C., Scottsdale By Robert J. Hommel and Orien P. Nelson Counsel for Plaintiffs/Appellants Vanoss and Healey

          Phillips Law Group, P.C., Phoenix By Kurt D. Maahs and Timothy G. Tonkin Counsel for Plaintiff/Appellant Healey

          Snell & Wilmer L.L.P., Phoenix By Mitchell Klein, John D. Burnside, and Megan H. Tracy Counsel for Defendant/Appellee BHP Copper Inc.

          Chief Judge Eckerstrom authored the opinion of the Court, in which Presiding Judge Vásquez and Judge Eppich concurred.

          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).

         Non-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 (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 (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 (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 (App. 2007), such duties do not extend to the employees of those contractors, Sullins v. Third & Catalina Constr. P'ship, 124 Ariz. 114, 117 (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 (1965), rejected in part on other grounds by Lewis v. N.J. Riebe Enters., Inc., 170 Ariz. 384, 388-89 (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, 877 P.2d 371, 385 (Kan. 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. In Sullins, we reasoned "[t]hat section . . . could create a non-delegable duty owed by a property owner to an employee of an independent contractor, " a principle "Arizona courts have expressly rejected." Id., citing Welker, 1 Ariz.App. at 403. Further, although Arizona's mine-safety statutes and regulations impose numerous requirements for the protection of miners, nothing in them indicates the legislature intended to create a right of action by imposing a non-delegable duty that supersedes the well-established rule in Arizona: a landowner is not liable to the employee of an independent contractor for the negligence of that contractor.[4] See A.R.S. §§ 27-301 to 27-318; Ariz. Admin. Code R11-1-101 to R11-1-152.

         ¶8 The Family also asserts "[t]he concept and application of non-delegable duties is now well established in Arizona." They observe that in Rand, 216 Ariz. 424, n.5, this court both recognized a non-delegable duty and also adopted § 424. But Rand is unavailing here because the plaintiff there was a third party and not the employee of an independent contractor. 216 Ariz. 424, ¶¶ 4, 22. Likewise, the Family's reliance on Koepke v. Carter Hawley Hale Stores, Inc. is misplaced because the injured party there was a third-party customer of the landowner, not an employee of an independent contractor. 140 Ariz. 420, 423 (App. 1984); see also Ft. Lowell-NSS Ltd. P'ship v. Kelly, 166 Ariz. 96, 98, 104 (1990) (landowner liable to employee of a third-party business operator for negligence of independent contractor).[5]

         ¶9 At oral argument, the Family argued the legislature abrogated the common-law independent-contractor rule for mining operations when it enacted our state's mine-safety statutes. See § 27-304; 1968 Ariz. Sess. Laws, ch. 111, § 5. But we can find no language therein that indicates any intent to do so. See § 27-304.

         ¶10 The Family specifically maintains that § 27-304(B) imposes a non-delegable statutory duty on BHP. Part of that subsection reads: "[The operator] shall be responsible for the safe performance of all work under him and for the safety of all employees." But the Family overlooks that the preceding sentence appears to contemplate delegation of specific safety responsibilities: "The operator, or some responsible person with authority appointed by him, shall be on duty at all times when employees are working." § 27-304(B) (emphasis added). In context, then, this section imposes a duty on BHP to operate a safe mine. But it does not expressly prohibit the operator from delegating that responsibility to an independent contractor. Nor does that language necessarily impose vicarious liability on the operator for the negligence of the independent contractor.

         ¶11 In the absence of such language, the Family emphasizes the relative dates of Welker (1965), our jurisprudence applying the independent-contractor rule in the mining context, and the statutes, which it claims modify that rule (1968). But none of the duties imposed by the later-enacted statutes conflict with the independent-contractor rule. See Carrow Co. v. Lusby, 167 Ariz. 18, 21 (1990) ("[A]bsent a manifestation of legislative intent to repeal a common law rule, we will construe statutes as consistent with the common law.").[6]

         ¶12 Here, the parties agree both that Vanoss was an employee of Tetra Tech and that Tetra Tech was an independent contractor hired by BHP. Thus, we conclude summary judgment on the issue of vicarious liability was appropriate because Arizona law does not impose non-delegable duties on landowners to the employees of independent contractors. See Sullins, 124 Ariz. at 117. Accordingly, the trial court correctly determined BHP was not subject to vicarious liability for the negligence of Tetra Tech.

         Admissibility of Expert Testimony Concerning State and Federal Mining Statutes and Regulations

         ¶13 The Family asserts the trial court erred by preventing its mine-safety expert, Jack Spadaro, from testifying about certain mine-safety statutes and regulations. Rule 702, Ariz. R. Evid., provides that a properly qualified expert "may testify in the form of an opinion or otherwise if, " among other requirements, "the testimony is based on sufficient facts or data" and "the expert has reliably applied the principles and methods to the facts of the case." We review a trial court's determinations on the admissibility of expert testimony for an abuse of discretion. Escamilla v. Cuello, 230 Ariz. 202, ¶ 20 (2012).

         ¶14 Here, the trial court permitted Spadaro to testify provided "his testimony includes a differentiation of which defendant had what duty and what the defendant did to breach that duty, " and on condition there be "timely disclosure of his opinions on duty and breach of duty." After reviewing the disclosure, the court noted that Spadaro's opinions depended on attributing vicarious liability to BHP for Tetra Tech's failure to comply with certain mine-safety statutes and regulations. Because the court had correctly granted summary judgment in favor of BHP on vicarious liability and non-delegable duty, see supra ¶¶ 4-12, it precluded Spadaro from testifying about the statutes and regulations. Our review of Spadaro's disclosure leads us to the same conclusion. His opinions regarding any failure to comply with mine-safety statutes and regulations depended on vicarious liability based on a non-delegable-duty theory of liability rather than BHP's independently tortious conduct.[7]

         ¶15 The Family asserts the statutes and regulations were relevant as a measure of BHP's duty to provide adequate safety supervision. Although the court permitted Spadaro to testify about BHP's safety-oversight obligation, it correctly precluded any opinion based on mine-safety statutes and regulations because the opinions Spadaro disclosed "depend[ed] on . . . non-delegable duty and . . . strict liability." Indeed, the statutes and regulations at issue do not prescribe how a mine owner must oversee the work of its independent contractors; rather they either impose general safety obligations or require the use of certain equipment and procedures. See A.R.S. §§ 27-301 to 27-318; Ariz. Admin. Code R11-1-101 to R1-11-152.

         ¶16 The Family frames the issue as whether statutes and regulations, generally, may operate as the standard of care in a negligence action. But the trial court did not preclude Spadaro's testimony on this ground. Rather, the court's implicit reasoning was that any opinion based on the statutes and regulations at issue was only minimally probative of whether BHP failed to supervise Tetra Tech and risked confusing or misleading the jury by introducing the theory that BHP may be vicariously liable for the failures of Tetra Tech. Therefore, we cannot say the court abused its discretion.[8]

         Admissibility of Deposition

         ¶17 The Family also complains the trial court improperly sustained BHP's untimely objections to "critical" portions of the deposition of Stantec employee Tracy Fischer, a former field-safety representative at the Pinto Valley Mine. Relying on Rule 32, Ariz. R. Civ. P., the Family insists BHP waived any objections not made during the deposition and, therefore, the court erred in excluding certain portions of it. We review admissibility determinations for an abuse of discretion. Gemstar Ltd. v. Ernst & Young, 185 Ariz. 493, 506 (1996).

         ¶18 Rule 32(d)(3)(A), then in force, provided, "Objections to . . . the competency, relevancy, or materiality of testimony are not waived by failure to make them before or during the taking of the deposition, unless the ground of the objection is one which might have been obviated or removed if presented at that time." 106 Ariz. LXIII (1970). Rule 32, however, cannot transform evidence that is otherwise inadmissible into admissible evidence merely by operation of waiver. See Finn v. J. H. Rose Truck Lines, 1 Ariz.App. 27, 32 (1965) (counsel there cited "no authority holding that . . . evidence, not ordinarily admissible . . ., is rendered admissible by reason of the fact that there is no objection made at the time of the taking of a deposition"). Thus, a trial court may redact portions of a deposition that are "inadmissible under any theory of the rules of evidence." Rivera v. Hancock, 79 Ariz. 199, 207 (1955), overruled in ...


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