PIERRE VANOSS AND LYNN VANOSS, HUSBAND AND WIFE; AND P.J.V. AND J.R.V., MINOR CHILDREN, Plaintiffs/Appellants,
BHP COPPER INC., A DELAWARE CORPORATION, Defendant/Appellee. ERIN HEALEY, AS PARENT AND GUARDIAN OF J.V., A MINOR CHILD, Plaintiff/Appellant,
BHP COPPER INC., A DELAWARE CORPORATION, Defendant/Appellee.
from the Superior Court in Pima County Nos. C20134884 and
C20135294 (Consolidated) The Honorable Catherine Woods, Judge
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
& Wilmer L.L.P., Phoenix By Mitchell Klein, John D.
Burnside, and Megan H. Tracy Counsel for Defendant/Appellee
BHP Copper Inc.
Judge Eckerstrom authored the opinion of the Court, in which
Presiding Judge Vásquez and Judge Eppich concurred.
ECKERSTROM, CHIEF JUDGE:
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
and Procedural History
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
In cases later consolidated, the Family brought this action
alleging negligence and negligence per se and seeking
compensatory and punitive damages. 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).
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.
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." 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).
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).
Relying on § 424, Restatement (Second) of Torts,
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. See A.R.S. §§ 27-301 to
27-318; Ariz. Admin. Code R11-1-101 to R11-1-152.
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
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.
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
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.").
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.
of Expert Testimony Concerning State and Federal Mining
Statutes and Regulations
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).
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.
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.
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
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).
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 ...