Recent Arizona Opinion Preserves Limitations of Non-Delegable Duty for Landowners

Author: Michelle Ronan

Guest Editor: Catie R. Johnson

February 5, 2018 1:34pm

The Arizona Court of Appeals, Division Two recently issued an opinion evaluating the scope of the non-delegable duty in Arizona. In Vanoss v. BHP Copper, Inc., No. 2 CA-CV 2017-0033 (Ariz. App. January 8, 2018), plaintiffs (“appellants”)  in a wrongful death action arising out of the death of Jon Pierre Vanoss appeal from the trial court’s judgment in favor of defendant BHP Copper, Inc. (“BHP”). Appellants contend the trial court made a host of errors including granting partial summary judgment in favor of BHP regarding whether BHP owed a non-delegable duty to Vanoss pursuant to certain statutes and regulations.

Underlying Facts and Jury Verdict

In 2012, BHP began rebuilding and refurbishing certain facilities at the Pinto Valley Mine in Globe, Arizona. 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. On September 22, 2012, Tetra Tech employee, Jon Pierre Vanoss, who had been assigned to “fire watch” duty in the  secondary crusher building did not return from lunch. He was found on a conveyor belt at the bottom of a chute, having died from an apparent fall. Appellants sued BHP alleging negligence and negligence per se and seeking compensatory and punitive damages. The jury returned a verdict in favor of BHP.

Arguments on Appeal

On appeal, appellants contend the trial court erroneously granted partial summary judgment in favor of BHP alleging BHP owed a non-delegable duty to Vanoss pursuant to certain mine-safety statutes and regulations. As such, Appellants asserted BHP was vicariously liable for Tetra Tech’s failure to abide by required safeguards.

Under Arizona law, “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). Landowners may owe non-delegable duties to third parties for the tortious conduct of independent contractors but such duties do not extend to the employees of those contractors. See Sullins v. Third & Catalina Constr. P’ship, 124 Ariz. 114, 117 (App. 1979). This case law is supported by policy considerations including the state’s workers’ compensation program, which premiums are either directly or indirectly paid by a landowner when hiring an independent-contractor employer. The Court explained, recognizing a non-delegable duty to employees of independent contractors who are already covered by workers’ compensation would serve only to increase the liability of the landowner merely for having hired an independent contractor.

Appellants argued §424 of the Restatement (Second) of Torts imposes a non-delegable duty on BHP. Section 424 states, “One who by statute or by administrative regulation is under a duty to provide specified safeguards or precautions for the safety of others is subject to liability to the others for whose protection the duty is imposed for harm caused by the failure of a contractor employed by him to provide such safeguards or precautions.” The Court relied on prior rulings to determine §424 does not apply in the area of law governing the relationship of an owner of property to an employee of an independent contractor. The Court went on to say “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…”

Appellants then argued the language of A.R.S. §27-304(B) specifically imposes a non-delegable statutory duty on BHP. The pertinent language states, “[The operator] shall be responsible for the safe performance of all work under him and for the safety of all employees.” The Court again rejected appellants’ arguments and found when the entire subsection is read in context, A.R.S. §27-304(B) imposes a duty on BHP to operate a safe mine but it does not prohibit BHP from delegating that responsibility to an independent contractor and it does not necessarily impose vicarious liability on the operator for negligence of the independent contractor.

Lastly, appellants argued the statutes related to the mining industry came after the independent contractor rule and modified its application as it relates to BHP. The Court again rejected appellants’ arguments finding none of the duties imposed by the later-enacted statutes conflict with the independent contractor rule. The Court upheld the trial court’s summary judgment ruling determining BHP was not subject to vicarious liability for the negligence of Tetra Tech.

Takeaway

This case is a great reminder of Arizona law and provides insight into the Court’s unwillingness to expand the non-delegable duty in industry-specific cases. Appellants’ arguments were creative and extensive but the Court preserved the scope of the non-delegable duty allowing landowners in other cases to more accurately evaluate their potential exposure when an independent contractor’s employee is injured on the job.

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