                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                 No. 97-3242
                                 ___________

Michael T. Mullins,                   *
                                      *
            Appellant,                *
                                      * Appeal from the United
                                         States
       v.                             * District Court for the
                                      * Western    District    of
                                         Missouri
Tyson Foods, Inc.,                    *
                                      *
            Appellee.                 *
                                 ___________

                                             Submitted:         February 13,
1998

                                                         Filed:         May 13,
1998
                                 ___________

Before McMILLIAN and WOLLMAN, Circuit Judges, and BOGUE,1
    District Judge.
                       ___________


McMILLIAN, Circuit Judge.


    Michael T. Mullins (Mullins) appeals from a final
order entered in the District Court for the Western

       1
       The Honorable Andrew W. Bogue, United States District Judge for the District
of South Dakota, sitting by designation.
District of Missouri granting summary judgment in favor
of




                          -2-
defendant Tyson Foods, Inc. (Tyson), on Mullins's
premises liability claim. Mullins v. Tyson Foods, Inc.,
No. 96-1065 (W.D. Mo. June 25, 1997) (order granting
summary judgment) (hereinafter “slip op.”).           For
reversal, Mullins argues that the district court erred in
relying upon a line of Missouri cases regarding landowner
liability that developed out of the “inherently dangerous
activity” doctrine. For the reasons discussed below, we
agree and reverse the judgment of the district court and
remand the case to the district court for further
proceedings .

                      Jurisdiction

    The present case was removed from state court
pursuant to 28 U.S.C. § 1441. Jurisdiction was proper in
the district court based upon 28 U.S.C. § 1332.
Jurisdiction on appeal is proper based upon 28 U.S.C. §
1291. The notice of appeal was timely filed under Rule
4(a) of the Federal Rules of Appellate Procedure.

                       Background

    The facts in this case, as set forth in the district
court’s order, are largely undisputed and presented in
the light most favorable to Mullins, the non-moving
party. Mullins was an employee of Little Rock Electrical
Contractors (LRE), an independent contractor hired by
Tyson to perform electrical work at Tyson’s production
plant in Sedalia, Missouri (“the plant”). LRE’s contract
work at the plant began in October 1993 and initially
involved running temporary lights throughout the plant.
LRE continued to perform electrical jobs at the plant

                           -3-
including, among other things, installing permanent
lights and electrical wire for motorized electrical doors
throughout the main hallway which runs through the north
side of the plant. LRE completed its work in the main
hallway by June 1994, but continued to perform other
electrical work at the plant.




                           -4-
    In June 1994 Tyson began processing operations in the
production area located on the west side of the plant.
Tyson employees transported chicken from the production
area, through the main hallway, to freezers located in
the northeast and east areas of the plant.      Waste and
fluids from the chickens sometimes fell to the floor in
the hallway while the chickens were being transported.
Tyson employees occasionally mopped the floor of the main
hallway using a liquid cleaner and cleaned the area using
large machines, but sometimes left behind cleaning
solution and the waste and fluid from the chickens.
Although the floor of the production area was covered
with a non-slick “toughcoat” surface, the main hallway
was not.

    On July 5, 1994, Mullins had been working on the
north side of the plant when he went on his lunch break.
He started to walk down the main hallway and, as he
turned the northeast corner of the main hallway, he
slipped and fell, injuring his back. It is assumed that
he slipped on a combination of waste and fluids from the
processed chickens, water, and cleaning solution.
Mullins filed a workers’ compensation claim and settled
with LRE’s workers’ compensation insurance carrier for
approximately $22,453.00.

    On September 11, 1996, Mullins filed the present
action in Missouri state court. Tyson removed the case
to the United States District Court for the Western
District of Missouri on the basis of diversity
jurisdiction.   Tyson subsequently moved for summary
judgment on the ground that relief for Mullins was



                           -5-
foreclosed under Matteuzzi v. Columbus Partnership, L.P.,
866 S.W.2d 128 (Mo. 1993) (en banc) (Matteuzzi)
(abolishing the “inherently dangerous activity doctrine”
for injuries sustained by an independent contractor’s
employee who is covered by workers’ compensation
insurance and holding that such employee may establish
negligence as an invitee only if the landowner retained
possession and control of the premises). The district
court granted Tyson’s motion holding that, under
Matteuzzi, for liability to attach, a landowner must
substantially control the job site, the physical
activities of the independent contractor’s employees, and
the details of the manner in which the work




                           -6-
was done, and that Tyson did not have such control in the
present case. Slip op. at 5, 12. This appeal followed.

                                    Discussion

    The central issue in this case is whether, in light
of Matteuzzi and other     Missouri cases, the Missouri
Supreme Court would hold that Tyson is exempt from
liability under the facts of this case.     Under Missouri
law, landowners generally are not liable for injuries to
employees of independent contractors who are engaged in
inherently dangerous activity2 and are covered by workers’
compensation.3 E.g., Matteuzzi, 866 S.W.2d at 131-32. We
must therefore determine whether the Missouri Supreme
Court would hold that this rule also precludes landowner
liability for injuries to such employees that arise from


      2
        Under the inherently dangerous activity doctrine, landowners bore a
nondelegable duty of care to employees of independent contractors engaged in
inherently dangerous activities. This doctrine was created to prevent landowners from
unfairly benefitting from hiring outsiders to perform dangerous work and to ensure that
employees of independent contractors would be compensated for injuries. Zueck v.
Oppenheimer Gateway Properties, Inc., 809 S.W.2d 384, 387-88 & n.1 (Mo. 1991) (en
banc). Once the workers’ compensation program was established, workers were
provided with a sure source of recovery and the “anomaly” created by the inherently
dangerous activity doctrine--that landowners would be liable for the negligence of
independent contractors hired for their expertise in dealing with the dangerous activity--
was corrected. Id. at 388.

      3
       The inherently dangerous activity doctrine is still applicable in causes of action
based upon a landowner’s vicarious liability where an injured third party, including an
employee of an independent contractor, is not covered by workers’ compensation. See
Matteuzzi v. Columbus Partnership, L.P., 866 S.W.2d 128, 131 (Mo. 1993) (en banc).

                                           -7-
conditions that are unrelated to the contracted work,
outside of the independent contractor’s control, and in
an area that is not part of the independent contractor’s
job site. In other words, we must determine whether the




                           -8-
Matteuzzi test for premises liability applies to any and
all tort claims of employees of independent contractors
who are covered by workers’ compensation.       After a
careful review of Missouri law, we hold that the
Matteuzzi standard does not extend to all such claims
and, more important, it does not apply to Mullins’s
premises liability claim. Accordingly, we reverse the
order of the district court.

I. The Matteuzzi Standard & Missouri Premises Liability
Law

    In Matteuzzi, the Missouri Supreme Court set forth
the standard for premises liability as follows:

    It is well settled that a property owner owes an
    invitee the duty to use reasonable and ordinary
    care to prevent injury to the invitee, . . . and
    that an employee of an independent contractor
    who has permission to use a landowner’s premises
    or facilities is such an invitee. If, however,
    the landowner relinquishes 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. On the
    other hand, to establish that the landowner
    retained possession and control of the premises
    and the attendant duty of care, [the plaintiff]
    must show that the landowner controlled the
    jobsite and the activities of the contractor. .
    . . “[T]he owner’s involvement in overseeing
    construction must be substantial . . . the
    control must go beyond securing compliance with
    the contracts; the owner must be controlling the



                           -9-
    physical activities of the employees of the
    independent contractors or the details of the
    manner in which the work is done.”

Id. at 132 (quoting Halmick v. SBC Corp. Serv., Inc.,
832 S.W.2d 925, 929 (Mo. Ct. App. 1992) (other citations
omitted)).   In an earlier case, Zueck v. Oppenheimer
Gateway Properties, Inc., 809 S.W.2d 384 (Mo. 1991) (en
banc) (Zueck), the Missouri Supreme Court overruled
extant caselaw by limiting the application of the
inherently dangerous activity doctrine to tort claims for
which workers’ compensation was not




                           -10-
recoverable. Id. (holding that landowner may no longer be
held vicariously liable for contractor’s negligence where
workers’ compensation is available).      Read together,
Matteuzzi and Zueck carved out an exception, based on
whether a landowner relinquished or maintained control
over the job site, to the common law exception exempting
landowners from liability for injuries sustained by
employees of independent contractors who are engaged in
inherently dangerous activity and covered by workers’
compensation.    See Matteuzzi, 866 S.W.2d at 131-32. In
short, Matteuzzi and Zueck restored the exception to the
general rule of landowner liability vis-a-vis invitees in
holding that landowners cannot be held directly or
vicariously liability for the injuries of employees of an
independent contractor when the landlord relinquishes
control of the premises to the independent contractor
during a period of construction and the injured employee
is covered by workers’ compensation. See Matteuzzi, 866
S.W.2d at 132; cf. Zueck, 809 S.W.2d at 390.

    Missouri courts applying the Matteuzzi standard have
defined its applicability in broad terms.      See, e.g.,
Horner v. Hammons, 916 S.W.2d 810, 814 (Mo. Ct. App. 1995)
(holding that Matteuzzi bars landowner liability “whether
or not the employee was engaged in an inherently dangerous
activity . . . and regardless of whether the liability
sought to be imposed is vicarious or direct”) (citations
omitted); Gillespie v. St. Joseph Light and Power Co., 937
S.W.2d 373, 379 (Mo. Ct. App. 1996) (Gillespie)
(“[L]andowners are not liable for injuries to employees of
independent contractors, even if the landowners were
directly negligent, if the employer of the injured



                           -11-
employee is liable for workers’ compensation.”). However,
these statements must be read in the context of the facts
of these cases which describe injuries that occurred in
the course of performing or preparing to perform the
contracted work. Moreover, neither Matteuzzi, Zueck, nor
their progeny have dismantled the long standing doctrine
that “a property owner owes an invitee the duty to use
reasonable and ordinary care to prevent injury to the
invitee, . . . and . . . an employee of an independent
contractor who has permission to use a landowner’s
premises or facilities is such an invitee.” Matteuzzi,




                           -12-
866 S.W.2d at 132 (internal cites omitted).        Indeed,
Matteuzzi did not address whether a landowner who retains
control of common areas unrelated to the performance of
the contracted work also retains the duty of care to
ensure that such areas are safe for employees of
independent contractors. Further, Missouri courts have
yet to hold that a landowner is not liable to an employee
of an independent contractor under those circumstances.
Moreover, the cases that extend the scope of Matteuzzi are
clearly distinguishable from the present case because, in
those cases, the employees of the independent contractor
were injured in the course of performing the contracted
work for which they were hired. See, e.g., Gosnell v.
Mullenix, 11 F.3d 780 (8th Cir. 1993) (Gosnell) (Missouri
law)   (plumber   fell   from   elevated  walkway   during
construction of apartment complex); Owens v. Shop 'N Save
Warehouse Foods, 866 S.W.2d 132 (Mo. 1993) (painter
slipped on scaffolding painted, at landowner’s insistence,
in a color not available in non-slick safety spray);
Gillespie, 937 S.W.2d at 374-75 (employee of independent
contractor fell through gap between steel beams hidden by
accumulated dust and insulation while installing cable on
top of beams); Lawrence v. Bainbridge Apartments, 919
S.W.2d 566 (Mo. Ct. App.1996) (window washer injured in
fall after landowner insisted windows be washed from
exterior of the building); Noble v. Bartin, 908 S.W.2d 390
(Mo. Ct. App. 1995) (carpenter fell through stairwell when
gaining access to area in unfinished residence to install
insulation); Halmick v. SBC Corp. Serv., Inc., 832 S.W.2d
925   (ironworker   slipped   off   steel  girders   while
refurbishing airplane hangar); Aubuchon v. Hyland, 820
S.W.2d 613 (Mo. Ct. App. 1991) (ironworker fell while



                           -13-
raising steel beams during construction of high rise
building).    See also Matteuzzi, 866 S.W.2d at 128
(carpenter replacing roof rafters injured when brick wall
supporting roof collapsed); Zueck, 809 S.W.2d at 385
(painter slipped off platform while painting rafters at
St. Louis’s Union Station).

    Accordingly, Matteuzzi has no application in the
present case beyond recognizing the principle that
employees of independent contractors are invitees and, as
such, are owed a duty of care by the landowner when that
duty has not been




                           -14-
transferred to the independent contractor. See id. Thus,
we need not decide under the Matteuzzi standard whether
Tyson retained control of LRE’s job site by controlling
the physical activities of LRE employees or the details of
the manner in which the work was performed because the
present case does not involve control of a job site or the
duty of care owed to employees of an independent
contractor, as such. Rather, the present case involves
the duty of care owed to invitees in common areas of which
a landowner has exclusive control and which are unrelated
to the performance of contracted work.



II. The District Court’s Memorandum and Order

    The district court relied on the Matteuzzi standard
to set forth the test for premises liability under
Missouri law.    Slip op. at 5-6.     In granting summary
judgment in favor of Tyson, the district court
specifically relied on the holding in Matteuzzi, 866
S.W.2d at 132, that a landowner is liable for the injuries
of the employee of an independent contractor who is
entitled to workers’ compensation only if, after
relinquishing possession and control of the premises, the
landowner   exercises   substantial    control  over   the
contractor   by   controlling   the  activities   of   the
contractor’s employees or the details of the manner in
which the contracted work is performed. See id. at 12,
16. Under this test, the district court held that summary
judgment in favor of Tyson was appropriate because Tyson
did not exercise substantial control over LRE employees




                           -15-
generally, or direct Mullins to use the main hallway for
ingress and egress in particular. Id. at 12-13, 16.

    The district court based its conclusions on its
erroneous interpretation of two cases applying Zueck and
Matteuzzi:   Gosnell, 11 F.3d at 781-82 (holding under
Missouri law that landowner not liable on premises
liability theory where plumber fell from an unprotected,
elevated walkway while working at a construction site and




                           -16-
received workers’ compensation benefits from independent
contractor for injury),and Noble, 908 S.W.2d 390
(affirming directed verdict on premises liability theory
in favor of landowner when contractor’s employee fell
through an open stairwell while preparing to insulate an
area of house still under construction).     The district
court cites Gosnell and Noble as support for the
proposition that a negligence claim by an employee of an
independent contractor injured on her way to the job site,
and away from the area under the contractor’s control, is
barred under Missouri law where workers’ compensation is
available. Slip op. at 12-14. The district court further
found that, because Mullins was at his job site and he was
covered by workers’ compensation, his injuries arose out
of and in the course of his employment with LRE, and,
therefore Tyson could not be liable.       Id. at 15-16.
However, as noted above, the district court failed to
recognize that, in each of these cases, the employees of
the independent contractors were engaged in contracted
work either by gaining immediate access to the job site or
during the performance of the actual work. Cf. Gillespie,
937 S.W.2d at 373 (holding that Matteuzzi barred failure
to warn claim by employee of independent contractor who
stepped through gap between steel beams hidden by dust and
insulation while installing cable on top of beams).

    In addition, the district court held that Tyson was
shielded from liability because the LRE job site included
“any place where the employee may reasonably be while he
[or she] is engaged in the furtherance of the employer’s
business, or in some activity incidental thereto.” Slip
op. at 13 (citing Horner v. Hammons, 916 S.W.2d 810, 815



                           -17-
(Mo. Ct. App. 1995); Yaffe v. St. Louis Children’s Hosp.,
648 S.W.2d 549, 550 (Mo. Ct. App. 1982)). This reasoning
confuses the doctrine limiting employer liability to
statutory employees, as they are defined by workers’
compensation law, with the Matteuzzi standard for
landowner liability to invitees who are employees of
independent contractors.     The definition of job site
employed by the district court was developed under
Missouri law in order to establish the scope of employer
liability for injuries to statutory employees under
Missouri’s workers’ compensation scheme. See




                           -18-
Mo. Ann. Stat. § 287.040(1)-(4) (defining statutory
employee and provisions for liability between landowners,
contractors, and subcontractors under Missouri’s workers’
compensation scheme); see also Jones Constr. Co. v.
Sanders, 875 S.W.2d 154 (Mo. Ct. App. 1994) (summarizing
the elements of statutory employment: “1) the work was
being performed pursuant to a contract; 2) the injury
occurred on or about the premises of the alleged statutory
employer; 3) when injured, the alleged statutory employee
was performing work which was in the usual course of
business of the alleged statutory employer”). By statute,
employees of independent contractors engaged in erecting,
demolishing,   altering,    or   repairing  premises   are
specifically precluded from being statutory employees.
See Mo. Ann. Stat. § 287.040(3). Indeed, the Missouri
legislature saw fit to exclude injuries to independent
contractors engaged in construction activities from the
limitations   on   recovery    imposed  by  the   workers’
compensation program. Thus, the definition of job site
used to determine the limits of liability for injuries to
statutory employees is not applicable to landowner
liability for injuries to employees of independent
contractors, and the district court’s reliance on this
definition of job site is misplaced.

III. Analysis

    We review a grant of summary judgment de novo. The
question before the district court, and this court on
appeal, is whether the record, when viewed in the light
most favorable to the non-moving party, shows that there
is no genuine issue as to any material fact and that the



                           -19-
moving party is entitled to judgment as a matter of law.
Fed. R. Civ. P. 56(c).      See, e.g., Celotex Corp. v.
Catrett, 477 U.S. 317, 322-23 (1986); Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 249-50 (1986); Get away Club,
Inc. v. Coleman, 969 F.2d 664, 666 (8th Cir. 1992); St.
Paul Fire & Marine Ins. Co. v. FDIC, 968 F.2d 695, 699 (8th
Cir. 1992). We review the district court’s determinations
of state law de novo. Salve Regina College v. Russell,
499 U.S. 225, 231 (1991).




                            -20-
    Mullins contends that Tyson maintained control over
the main hallway (and, therefore, owed a duty of care to
invitees) by commencing processing operations in the
plant, using the hallway to transport chickens, and
cleaning the hallway. As a result, Mullins argues, Tyson
controlled the hallway, as a matter of law, and further,
caused the conditions that resulted in his injury.
Accordingly, Mullins asserts that Tyson may be liable
under the general rule of premises liability for injuries
to invitees. We agree and, as stated earlier, we hold
that Matteuzzi does not extend to the facts of the present
case.

    Upon de novo review, we find that the district court
misapplied Missouri law, especially in its interpretation
of Matteuzzi, Gosnell, and Noble. In all three cases, the
employee was engaged in the contracted work when injured
and the landowner had relinquished possession and control
of the area where the injury occurred. Further, in Zueck,
the Missouri Supreme Court recognized that “[i]ndependent
contractors are frequently, if not usually, hired because
the landowner is aware of his [or her] own lack of
expertise and seeks to have the work performed as safely
and efficiently as possible by hiring those possessing the
expertise he [or she] lacks.” Zueck, 809 S.W.2d at 387-
88.   Thus, the holding in Zueck limiting employees of
independent contractors to workers’ compensation benefits
is premised at least in part on the notion that landowners
should not be penalized for hiring independent contractors
when construction or repairs demand skills exceeding the
landowner’s own expertise. See id.




                           -21-
    The Missouri Supreme Court also held that the “purpose
of Zueck is to promote the workers’ compensation system.”
Aubuchon v. Hyland, 820 S.W.2d at 617 (citing Zueck, 809
S.W.2d at 388). It follows then that the holding in Zueck
should be limited to injuries arising out of conditions
contemplated in the contract.        Indeed, a workers’
compensation program, like any insurance program, is a
cost-spreading mechanism, whereby liability is placed on
the party best able to bear the cost of injury. See id.
The




                           -22-
Zueck court recognized that once workers’ compensation
created a suitable means to spread the costs of workers’
injuries, the prior tort regime wherein parties best able
to avoid risk would bear liability, should be reinstated.
Zueck, 809 S.W.2d at 389.          Making an independent
contractor solely liable for dangers inherent in the
contracted work where there is workers’ compensation is
consistent with the idea that liability will be imposed on
the party best able to minimize the risks. Id. However,
limiting recovery to workers’ compensation held by the
independent   contractor    where   injury   arises   from
circumstances that are unrelated to the contracted work
and within the exclusive control of the landowner is
anathema to those ideals.    Indeed, LRE could not, except
through extraordinary measures, have exercised any
responsibility to minimize the risks created by Tyson’s
activities in the main hallway. Therefore, the facts in
this case are not inconsistent with the holding or
rationale in Zueck and Matteuzzi.        To be sure, the
Missouri legislature or Missouri Supreme Court may make
workers’ compensation the exclusive remedy for all
injuries to employees of independent contractors.
However, because it has not yet done so and in light of
the foregoing analysis, this court does not find support
in Missouri law for such a result.

    Thus, we hold that, under the facts at bar, the
Missouri Supreme Court would hold that an employee of an
independent contractor who is in an area that is not under
the contractor’s control and is not part of the job site,
and who can show that the landowner exercised control is




                           -23-
not precluded from bringing a premises liability claim by
the Matteuzzi line of cases.

                       Conclusion

    In sum, this court holds that, under Missouri law,
landowner owes a duty to an employee of an independent
contractor to use reasonable and ordinary care to prevent
injury to the employees caused by dangerous conditions
created by the landowner in an area of the landowner’s
premises that is controlled by the landowner and is not an




                           -24-
area where the employee is performing contracted work for
the landowner. For the reasons stated in this opinion,
the district court order granting summary judgment in
favor of Tyson is reversed, and the case is remanded to
the   district   court   for   further  proceedings   not
inconsistent with this opinion.

    A true copy.

           Attest:

                     CLERK, U.S. COURT OF APPEALS, EIGHTH
CIRCUIT.




                            -25-
