Ricky Spaulding v. Conopco , 740 F.3d 1187 ( 2014 )

United States Court of Appeals
For the Eighth Circuit
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No. 12-3966
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Ricky Spaulding
lllllllllllllllllllll Plaintiff - Appellant
v.
Conopco, Inc.
lllllllllllllllllllll Defendant - Appellee
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Appeal from United States District Court
for the Western District of Missouri - Kansas City
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Submitted: September 24, 2013
Filed: January 29, 2014
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Before WOLLMAN, BEAM, and SMITH, Circuit Judges.
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SMITH, Circuit Judge.
Ricky Spaulding worked as an employee of an independent contractor that
provided industrial cleaning services to Conopco, Inc. ("Conopco") at its Unilever
plant in Independence, Missouri. While cleaning a large tank, Spaulding fell into it
and suffered severe personal injuries. Spaulding sued Conopco, asserting negligence
based on a variety of Conopco's alleged acts and omissions. The district court1 granted
Conopco's motion for summary judgment. The district court concluded that Conopco
owed Spaulding no legal duty of care because it did not exercise substantial control
over the jobsite or Spaulding's work activities. Spaulding argues on appeal that (1)
Conopco exercised substantial control over the jobsite and Spaulding's work activities
such that Conopco, as landowner, owed Spaulding a duty to exercise reasonable and
ordinary care, and (2) Conopco owed Spaulding a duty to warn independent of
Conopco's level of control. We affirm.
I. Background
Spaulding usually worked for Crown Services, Inc. ("Crown"), but occasionally
Crown assigned Spaulding to work as a temporary employee for Vac-Con Industrial
Services, Inc. ("Vac-Con"). When working for Vac-Con, Spaulding "hydroblasted"
industrial machinery. Hydroblasting is an industrial-cleaning technique employing a
high-pressure water gun. Hydroblasters are similar to commercial pressure washers
except more powerful.
On May 15, 2010, Crown assigned Spaulding to work for Vac-Con to clean
areas of Conopco's Unilever plant. Vac-Con personnel instructed Spaulding to clean
a particular tank known as the Kettle 910. Although he had cleaned other tanks,
Spaulding had never hydroblasted or otherwise cleaned the Kettle 910. A protective
steel heat shield prevented Spaulding from accessing certain interior portions of the
Kettle 910. To reach these areas, Spaulding climbed atop some railing located above
the Kettle 910. While standing on this wet railing, Spaulding slipped and plummeted
headfirst into the Kettle 910. Spaulding alleges that the blades located within the
Kettle 910 somehow became activated such that the tank pulled him by his collar into
the tank. Because of the fall, Spaulding suffered severe personal injuries, including
1
The Honorable Beth Phillips, United States District Judge for the Western
District of Missouri.
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injuries that would require a partial amputation of his right leg. Spaulding filed for and
received workers' compensation benefits through Crown as a result of this accident.
On March 31, 2011, Spaulding brought this diversity action against Conopco.
Spaulding asserted that Conopco negligently failed to provide a scaffold, ladder, or
lift to allow him to access all portions of the tank. Spaulding contended that Conopco's
failure made the Kettle 910 a defective and dangerous condition on Conopco's
premises that was not reasonably safe for Spaulding as an invitee. Furthermore,
Spaulding contended that Conopco failed to exercise ordinary care to warn him of this
dangerous condition and in maintaining it.
Conopco countered by asserting that it owed Spaulding no duty of care under
Missouri premises-liability law because Conopco did not exercise substantial control
over the jobsite or Spaulding's work activities. The district court agreed with Conopco
and granted summary judgment in its favor. Spaulding timely appealed.
II. Discussion
On appeal, Spaulding argues that the district court erroneously granted
summary judgment in Conopco's favor because (1) Conopco exercised substantial
control over the jobsite and Spaulding's work activities such that Conopco, as
landowner, owed Spaulding a duty to exercise reasonable and ordinary care, and (2)
Conopco owed Spaulding a duty to warn independent of Conopco's level of control.
In response, Conopco argues that it did not maintain control over the jobsite
where Vac-Con employees cleaned or the activities of Vac-Con employees
highlighting eight facts. First, Conopco emphasizes that it never provided
hydroblasting training or equipment to Spaulding or other Vac-Con employees.
Second, Conopco highlights Spaulding's deposition testimony stating that his
immediate Vac-Con supervisor "controlled the jobsite." Third, only Vac-Con
employees determined how to hydroblast the tanks and machines, such as determining
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the amount of water pressure to be used. The Unilever employees merely identified
the tanks to be cleaned. Fourth, Spaulding only spoke to Unilever plant personnel
about non-work related matters when exchanging greetings or mere pleasantries. No
Unilever plant personnel instructed Spaulding as to hydroblasting or how he should
otherwise conduct his work. Fifth, on the day of the accident, no Unilever plant
employees were in sight or otherwise present. Sixth, neither the Unilever plant
Maintenance Planner nor the Unilever plant Building Mechanic instructed Spaulding
how to conduct his hydroblasting activities. Seventh, Vac-Con management attended
Conopco's annual safety-training sessions. Vac-Con management should have
instructed Spaulding as to any relevant safety matters. These training sessions did not
include hydroblasting instructions. Finally, only Vac-Con employees attended the
daily safety meetings, including the meeting that occurred on the day of Spaulding's
accident.
A court properly grants summary judgment when "the movant shows that there
is no genuine dispute as to any material fact and the movant is entitled to judgment as
a matter of law." Fed. R. Civ. P. 56(a). A material fact is "genuine" when the evidence
would allow a reasonable jury to return a verdict in favor of the nonmoving party.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Facts must be viewed in
a light most favorable to the nonmoving party when genuine disputes of fact arise at
the summary-judgment stage. Scott v. Harris, 550 U.S. 372, 380 (2007). A nonmoving
party who bears the burden of proof at trial must "make a showing sufficient to
establish the existence of an element essential to that party's" claim at the summary-
judgment stage, for "a complete failure of proof concerning an essential element of the
nonmoving party's case necessarily renders all other facts immaterial." Celotex Corp.
v. Catrett, 477 U.S. 317, 322–23 (1986). Missouri law applies in this diversity case.
See Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78 (1938).
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A. Control
The crux of this dispute is whether Conopco exercised sufficient control over
the jobsite and Spaulding's work activities to be held liable for injury to its
independent contractor's employee.
Under Missouri law, a property owner owes an invitee the duty to use
reasonable and ordinary care to prevent injury. Matteuzzi v. Columbus P'ship, L.P.,
866 S.W.2d 128, 132 (Mo. 1993) (en banc). "An 'invitee' is 'a person who is invited
to enter or remain on land for a purpose directly or indirectly connected with business
dealings with the possessor of the land.'" Harris v. Niehaus, 857 S.W.2d 222, 225
(Mo. 1993) (en banc) (quoting Restatement (Second) of Torts § 332 (1965)).
Employees of an independent contractor who have permission to use the landowner's
facilities or premises are invitees. Matteuzzi, 866 S.W.2d at 132. It is undisputed that
Spaulding, an employee of an independent contractor, was an invitee for purposes of
Missouri premises-liability law.
In Matteuzzi, the Supreme Court of Missouri established a significant exception
to the general rule that property owners owe invitees a duty to exercise reasonable
care to prevent invitee injury, stating, "If, however, the landowner relinquishes
possession and control of the premises to an independent contractor during a period
of construction, the duty of care shifts to the independent contractor. The landowner,
no longer considered the possessor of the land, is thus relieved of potential liability."
Id.
Missouri courts have offered multiple explanations for this exception. First,
where the landowner relinquishes possession and control of the premises to an
independent contractor, the independent contractor should be charged as the party
most capable of avoiding risks of harm that could strike the contractor's employees.
Zueck v. Oppenheimer Gateway Props., Inc., 809 S.W.2d 384, 386 (Mo. 1991) (en
banc). Second, with the advent of workers' compensation, employees of independent
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contractors can recover money for accidents that occur while on the job.2 See Gillespie
v. St. Joseph Light & Power Co., 937 S.W.2d 373, 376 (Mo. Ct. App. 1996). The
contractors purchase workers' compensation insurance, and they pass these costs on
to the landowners with whom they contract. Id.
Matteuzzi requires that the employee show that the landowner controlled the
jobsite and the activities of the contractor. Matteuzzi, 866 S.W.2d at 132. Furthermore,
the landowner's involvement in overseeing construction must be substantial, for it
must go beyond securing compliance with contracts. Id. The landowner must control
"the physical activities of the employees of the independent contractors or the details
of the manner in which the work is done." Id. (quotation and citation omitted). Bare
assertions of control will not suffice. See id. We have recognized that Missouri courts
have applied Matteuzzi broadly. See Mullins v. Tyson Foods, Inc., 143 F.3d 1153,
1156 (8th Cir. 1998).
a. Safety Policies
As proof of Conopco's control over the jobsite, Spaulding highlights the
"lockout/tagout" procedures as evidence of Conopco's control over the jobsite.
Lockout/tagout is the safety protocol that Conopco adopted to ensure that various
tanks and machines are properly powered off before and during maintenance. Kyle
Blessing, a Vac-Con employee who worked with Spaulding on the day of the accident,
testified that he had never seen the lockout/tagout procedures because it was
Conopco's responsibility to lockout/tagout the machines. Conopco, as the owner,
2
If the landowner is held liable for an injury that the independent contractor's
employee sustains, then the landowner would essentially be paying twice for the
employee's injury. In fact, this court has previously articulated the Matteuzzi rule as
"a landowner is not liable for injuries to the employees of independent contractors for
work done on the premises if the employees are covered by the independent
contractor's workers' compensation insurance. This is true even in cases where the
landowner was directly negligent." Mouser v. Caterpillar, Inc., 336 F.3d 656, 664–65
(8th Cir. 2003) (citing Matteuzzi, 866 S.W.2d at 131–32).
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possessed the requisite familiarity with the plant's tanks and machines to perform the
lockout/tagout. William Akins, the general manager of Vac-Con, when deposed, also
testified that Conopco had lockout/tagout responsibility. Spaulding contends that
Conopco's control over the lockout/tagout procedures illustrate that Conopco
sufficiently controlled the jobsite for purposes of premises liability.
Spaulding also emphasizes that Conopco implemented unique and specific
safety rules for visitors to the Unilever plant. Blessing testified that Conopco required
all persons entering the plant to follow certain safety, security, environmental, and
manufacturing rules. Conopco gave these rules to visitors through handouts and
instructional videos. Conopco's Safety, Health, and Environmental Coordinator, Kevin
Guthrie, testified at deposition that Conopco required all contractors who entered the
Unilever plant to participate annually in its safety-training sessions. Vac-Con
management personnel attended these sessions, but Spaulding never participated in
them. Conopco and Vac-Con created a program known as the Pre-Job Hazard
Assessment (PJHA) whereby Conopco and Vac-Con personnel participated in an
initial walkthrough of the plant followed by daily meetings of Vac-Con employees
where they would identify potential safety risks that were present during the day's
tasks. Spaulding argues that these specific and unique safety practices demonstrate
that Conopco retained control over the jobsite and over Vac-Con employees. To
summarize Conopco's level of control, Spaulding highlights a portion of Akins's
testimony in which he stated,
The procedure normally is when we arrive at the plant we park where
we're told to park, we go through the gate we're told to go through, we
go through the door we're told to go through, report to the individuals
we're going to report to, they take you to the supervisor, sometimes the
whole crew, and show them the work that's to be done that day and the
procedure how they want it, what they want cleaned, how they want it
cleaned, and then the Pre-Job Hazard Assessment is put into effect from
our part [that] covers all the hazards of the day to include lockout/tagout,
other things that are either deemed necessary by the plant or our
personnel.
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A landowner's adoption of general safety policies will not suffice to establish
control over the jobsite. Smart v. Chrysler Corp., 991 S.W.2d 737, 746 (Mo. Ct. App.
1999). In Smart, an employee of a subcontractor was injured when he fell from a
construction platform while working at a vacant Chrysler plant. Id. at 739. Chrysler
had provided safety guidelines and instructions as well as stationed safety personnel
throughout the construction site. Id. at 740. The court determined that those efforts
were insufficient to demonstrate Chrysler's control of the workplace and affirmed
summary judgment on Chrysler's behalf. Id. at 747. The court deemed Chrysler's
activities as necessary merely to secure compliance with the contract and thus
insufficient to impose liability. Id. at 746. Similarly, in Werdehausen v. Union Electric
Co., an employee of an independent contractor was injured when another employee
of the independent contractor accidentally kicked wood off of a scaffold that landed
on plaintiff. 801 S.W.2d 358, 361 (Mo. Ct. App. 1990). Plaintiff argued that the
landowner should have placed toe boards on the scaffold to prevent materials from
sliding off. Id. The Missouri Court of Appeals reversed a jury verdict for plaintiff,
noting that the landowner's ability to stop work at any time for safety concerns did not
amount to sufficient control over the jobsite. Id. at 364–65.
Conopco's adoption of general safety policies is not enough to establish that
Conopco retained control over the jobsite. See, e.g., Smart, 991 S.W.2d at 746;
Werdehausen, 801 S.W.2d at 364–65. Conopco's requirement that independent
contractors attend safety-training sessions conducted annually also does not establish
Conopco maintained control. These sessions apparently involved only management
of the independent contractors. Furthermore, the annual session did not include safety
instructions related to hydroblasting. These safety-training sessions were merely a
routine requirement applicable to all independent contractors who planned to enter the
Unilever plant that covered a broad array of safety concerns. In both Smart and
Werdehausen, Missouri courts determined that more intrusive methods of safety
oversight—stationing of landowner personnel throughout the jobsite and veto power
for safety concerns over any actions of the independent contractor—failed to establish
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retention of control as a matter of law. Thus, the less-intrusive method of requiring
annual attendance at a safety seminar also fails to establish the requisite control.
Additionally, the creation of the PJHA does not constitute the requisite retention
of control. Spaulding has failed to demonstrate that Conopco representatives
participated in the PJHA program other than as part of an initial walkthrough of the
plant. The PJHA functions merely as a means for Vac-Con employees to meet to
discuss general safety concerns and equipment details. It did not serve as an oversight
mechanism for Conopco to direct the activities of Vac-Con's employees. Thus,
Conopco's safety policies do not show that it retained substantial control over the
jobsite or Vac-Con's employees.
b. Job Task
Spaulding also finds it significant that Conopco selected the tanks to be
hydroblasted. As proof of substantial control, Spaulding cites Blessing's deposition
testimony. Blessing testified that, typically, a Conopco representative identified the
specific tanks to be cleaned.
A landowner's selection of the independent contractor's immediate job task will
not suffice to shift liability to landowner. Lawrence v. Bainbridge Apartments, 919
S.W.2d 566, 570 (Mo. Ct. App. 1996). In Lawrence, the Missouri Court of Appeals
affirmed a trial court's grant of summary judgment to a landowner when the employee
of an independent contractor injured himself while washing windows. 919 S.W.2d at
568. To support his contention that the landowner retained sufficient possession and
control over the premises, the employee noted that an agent of the landowner checked
employee into the jobsite each morning, unlocked the door to the rooftop and scaffold
equipment, and removed screens from windows so they could be washed. Id. at
569–70. The court concluded that merely providing access to necessary areas does not
constitute control over the physical activities or the details of the manner in which
contract work was performed. Id. at 570.
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Furthermore, a landowner's insistence that the independent contractor perform
the contract in a certain manner does not necessitate a finding that the landowner
retained possession and control over the premises. In Lawrence, the Missouri Court
of Appeals rejected an employee's contention that the landowner maintained
possession and control over the jobsite when the landowner required the employees
of the independent contractor to wash windows from the outside rather than the inside.
Id. at 569–70. The court determined that the defendant did not control the details of
the manner in which the independent contractor performed window washing; rather,
the defendant contracted for a completely different job—window washing from the
outside rather than the inside. Id. at 570. Relatedly, in Owens v. Shop 'N Save
Warehouse Foods, Inc., the Supreme Court of Missouri affirmed the trial court's grant
of summary judgment to a landowner who owned a store where the employee of an
independent contractor was injured. 866 S.W.2d 132, 133–35 (Mo. 1993) (en banc).
The employee, who was to paint the store ceiling, slipped off of a scaffold due to wet
paint. Id. at 133. The landowner insisted on a paint color that was unavailable in fast-
drying "safety spray" form, so the employee had to use a slicker, oil-based paint. Id.
The court determined that selection of a paint color even after being informed of its
potential safety hazard did not constitute sufficient control to impose liability. Id. at
134–35.
In the present case, Spaulding fails to demonstrate how Conopco controlled the
manner and means for Vac-Con to clean these tanks, including the Kettle 910. As
shown in Lawrence, selecting items to be cleaned and providing access to the plant
do not constitute sufficient control to impose liability on Conopco from an injured
invitee. Conopco selected the Kettle 910 for cleaning per its contract with Vac-Con.
In fact, the lockout/tagout protocols were also a mere means of allowing Vac-Con
employees to access the tanks, much like the grants of access in Lawrence.
Nevertheless, Spaulding emphasizes Brister v. Ikenberry, 300 S.W.3d 588, 592
(Mo. Ct. App. 2009), and Stephens v. Crown Equipment Corp., 22 F.3d 832, 836 (8th
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Cir. 1994), in support of his contention that Conopco maintained possession and
control over the premises. In Brister, the Missouri Court of Appeals reversed a trial
court's grant of summary judgment to a landowner who the trial court found was not
in control of the jobsite where the employee of an alleged independent contractor3 was
electrocuted while working. In holding that genuine issues remained as to who
controlled the premises, the court acknowledged that the landowner instructed the
independent contractor on the work it was to perform and when to perform it. Id. at
593. Spaulding also points to Stephens where this court affirmed a jury verdict that
found a landowner liable for injuries sustained by an employee of an independent
contractor. 22 F.3d at 836. The employee was injured when he wedged his ankle
between a wall and the forklift that he was operating. Id. at 834. In affirming the jury's
verdict finding the landowner liable, we emphasized the importance of the
landowner's "pick cards" that directed the work an independent contractor's employees
were to complete each day as indicative of the landowner's retention of control. Id. at
834–35.
Both Brister and Stephens, however, are distinguishable. First, the Brister court
observed that the landowner determined the tasks that the independent contractor was
to perform. However, several additional facts demonstrated the landowner retained
control. These facts included: daily meetings between representatives of both
companies, landowner instructions that certain employees of the independent
contractor be pulled from certain jobs to work on other jobs, a "clean-up" list of work
for the independent contractor to perform, landowner training of the independent
contractor's employees, landowner supply of materials and tools, two-way radio
contact between the two companies on several subjects dealing with the manner in
which the independent contractor's employees performed their work, and direct
3
The Brister court could not determine as a matter of law whether the company
there was actually an independent contractor; however, the court nonetheless treated
the employee as an invitee such that its conclusions on landowner control apply here.
Brister, 300 S.W.3d at 594.
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supervision of landowner over the project. Brister, 300 S.W.3d at 593. Thus, the
degree of landowner control in Brister was significantly greater than the control
Conopco retained.
Second, the pick cards in Stephens relayed much more information than the
employee's work assignment. The independent contractor's employees "relied
exclusively on the information in the cards to perform their work." Stephens, 22 F.3d
at 835. Furthermore, "[t]he pick cards provided all of the information needed for [the
independent contractor's] employees to complete their daily assignments, and, indeed,
were vital to their ability to function at all." Id. The landowner in question also owned
the equipment that the independent contractor's employees used and had exclusive
control over this equipment. Id. The landowner also retained discretion over the
number of employees that the independent contractor could use on the landowner's
projects. Id. at 836. Stephens also involved Iowa's arguably less stringent standard for
imposing liability on a landowner. In Iowa, landowners may be liable for injuries to
an employee of an independent contractor when the landowner "retains some degree
of control over any part of the work." Id. at 835 (emphases added). Thus, Stephens,
too, is distinguishable.
c. Blessing's Testimony
As proof of substantial control, Spaulding notes that Blessing also testified that
Conopco representatives typically identified tanks to be cleaned and how they wanted
the tanks cleaned. Spaulding also relies on Blessing's testimony that Conopco
prepared the Kettle 910 to be cleaned by draining the tank and powering it off.
Blessing also stated that Conopco alone controlled the Kettle 910's surrounding
platform configurations, which prohibited access to the tank. Blessing's view of
Conopco's control over the platform configurations led Blessing to conclude that
Conopco controlled the jobsite. Based on his observations, Blessing opined that
Conopco exercised control over the activities of the contractors.
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The district court determined that this testimony consisted of "bare legal
conclusions" that it refused to consider on a motion for summary judgment. Spaulding
now contends that Blessing's assessment as to who "controlled" the jobsite and Vac-
Con's employees was not legal but factual in nature, for "control" is both a legal term
of art and a word used in everyday language outside of a legal context. We agree with
the district court, however, that Blessing's answer was not really a factual observation
at all. In response to the leading question, "The plant owner exercises control over the
activities of the contractors, right." Blessing replied, "Correct." "We consider only
admissible evidence and disregard portions of various affidavits and depositions that
. . . purport[] to state legal conclusions as fact." Murphy v. Mo. Dep't of Corr., 372
F.3d 979, 982 (8th Cir. 2004). Furthermore, Blessing's testimony was inconsistent. He
also testified that Conopco representatives never told him how to conduct his work,
including hydroblasting. Thus, the district court properly disregarded Blessing's
conclusions, for Missouri law requires more landowner control than what Spaulding
has demonstrated.
d. Summary
In sum, the district court properly granted Conopco's motion for summary
judgment. Conopco owed Spaulding no duty to act with ordinary and reasonable care
where Conopco did not retain sufficient control over the jobsite or over Vac-Con's
employees. Additionally, Conopco did not voluntarily assume a duty to exercise
reasonable care to prevent injury to Spaulding. See Smart, 991 S.W.2d at 746
(rejecting plaintiff's assumption-of-duty argument where defendant lacked sufficient
control over the premises).
B. Failure To Warn Absent Retention of Control
Spaulding argues alternatively that Conopco had a duty to warn him of
dangerous conditions like the Kettle 910 regardless of Conopco's retention of control.
Spaulding cites three cases where Missouri courts imposed this duty without
discussion of the landowner's retention of control. See Redman v. Earle M. Jorgenson
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Co., 491 S.W.2d 304, 307 (Mo. 1973) (en banc); Guthrie v. Reliance Constr. Co., Inc.,
612 S.W.2d 366, 369 (Mo. Ct. App. 1980); Schneider v. Sw. Bell Tel. Co., 354 S.W.2d
315, 318 (Mo. Ct. App. 1962).
Conopco correctly points out that Missouri courts do not follow a rule that
landowners owe employees of independent contractors a duty to warn of dangerous
conditions. Conopco relies on Gillespie where the Missouri Court of Appeals
recognized that "[b]eginning in 1977 . . . Missouri's rules governing landowner
liability to employees of independent contractors began a series of changes." 937
S.W.2d at 376. Furthermore, the Gillespie court noted that Missouri courts no longer
consider the nature of the landowner's activity but the landowner's degree of control
over the premises. Id. at 377. Finally, the Gillespie court determined that courts should
focus on landowner control rather than the landowner's activities when the employee
brings a failure-to-warn claim as well. Id. at 378 The Gillespie court stated:
We cannot distinguish [landowner's] alleged negligent failure to
warn about or correct the dangerous condition of the beams in this case
from the landowner's direct negligence in not correcting an unsafe brick
wall [that] fell on the employee in Matteuzzi . . . . Yet, in Matteuzzi, . . .
the landowner was not held liable because it did not control the details
of the work. This is the rule we must apply in this case, also.
Id. Missouri courts, therefore, inquire into the degree of the landowner's control to
determine whether the landowner owed an employee of an independent contractor a
duty to warn. Because Spaulding has not shown that Conopco retained control over
the jobsite or the manner of Spaulding's performance, Conopco had no duty to warn
Spaulding of potential dangers surrounding the Kettle 910.
III. Conclusion
Accordingly, we affirm the district court's judgment.
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