                                                                          FILED
                                                              United States Court of Appeals
                                                                      Tenth Circuit

                                                                     March 25, 2014
                      UNITED STATES COURT OF APPEALS
                                                                  Elisabeth A. Shumaker
                                   TENTH CIRCUIT                      Clerk of Court



 MICHAEL DRUM,

          Plaintiff - Appellant,
                                                         No. 13-4034
 v.                                             (D.C. No. 2:11-CV-01086-CW)
                                                           (D. Utah)
 NORTHRUP 1 GRUMMAN
 SYSTEMS, a Delaware corporation,

          Defendant - Appellee.


                              ORDER AND JUDGMENT *


Before KELLY, HOLLOWAY, and PHILLIPS, Circuit Judges.


      Plaintiff-Appellant Michael Drum appeals the district court’s grant of

summary judgment in favor of Defendant-Appellee Northrop Grumman Systems

Corp. Drum v. Northrup Grumman Systems, No. 2:11-cv-01086-CW (D. Utah

Feb. 5, 2013). In this removal case, Mr. Drum, while an employee of Air

Liquide, slipped on ice while delivering liquid nitrogen for Air Liquide to

Northrop Grumman in Salt Lake City, Utah. The district court granted summary

      1
        The caption in this case misspells Northrop. We retain the misspelling
only to be consistent with the filings before this court and the district court.
      *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
judgment in favor of Northrop Grumman, finding that Mr. Drum failed to

establish that Northrop Grumman created the icy conditions and that his claim

was properly covered by workers’ compensation. Aplt. App. 122-23. The court

ruled on the motion from the bench and later issued a summary order adopting the

discussion. Aplt. App. 109. On appeal, Mr. Drum argues that the district court

erred by (1) not addressing his theory of direct negligence under Magana v. Dave

Roth Constr., 215 P.3d 143 (Utah 2009), Aplt. Br. 8; (2) improperly relying on

Privette v. Superior Court, 854 P.2d 721 (Cal. 1993), Aplt. Br. 6, 11; and (3)

failing to find that Northrop Grumman retained control of the Air Liquide area

sufficient to impose liability. Aplt. Br. 14. Exercising jurisdiction under 28

U.S.C. § 1291, we affirm.



                                   Background

      On a rainy night in December 2010, Mr. Drum was delivering liquid

nitrogen to Air Liquide tanks at Northrop Grumman when he stepped over an

equipment line, slipped on ice, and strained his lower back. Aplt. App. 59-60.

Although Mr. Drum received workers’ compensation from Air Liquide, Aplt.

App. 115, he brought suit against Northrop Grumman for negligence, Aplt. App.

26.

      The undisputed facts surrounding the accident include that (1) snow and ice

often accumulate around Air Liquide’s liquid-nitrogen tanks, especially in

                                        -2-
December, making the area slippery; (2) Mr. Drum noticed that it was slippery the

evening of the accident when he conducted a walk-through prior to filling the

tanks; (3) Mr. Drum knew about the equipment line he stepped over because he

had made deliveries with it there and knew to watch out for it; and (4) Mr. Drum

likely had ice on the bottom of his shoe when he stepped over the line from the

concrete pad onto the asphalt and lost his balance. Aplt. App. 62-63, 65. Mr.

Drum also admits that Air Liquide owns, installed, and maintains the liquid

nitrogen equipment at the accident site and that Northrop Grumman does not

supervise nor schedule Air Liquide’s deliveries to these tanks. Aplt. App. 64-65.

Mr. Drum “alleges and avers” that two Air Liquide entities are involved: the one

for whom he works, which supplies the liquid nitrogen, and another, Air Liquide

Field Services, which owns the equipment. Aplt. App. 64, 120; Aplt. Br. 4.

      Based primarily on Mr. Drum’s deposition testimony, Northrop Grumman

moved for summary judgment, arguing that even though it owned the accident

site, nothing established it as the possessor sufficient to impose liability; rather,

Mr. Drum’s sole remedy was a workers’ compensation claim against Air Liquide.

Aplt. App. 40-41. In support, Northrop Grumman relied on Hale v. Beckstead,

116 P.3d 263, 269 (Utah 2005), which recognizes that under Sections 343 and

343A of the Restatement (Second) of Torts, a landowner’s 2 duty does not extend

      2
       Confusion arises in this case from the imprecise use of the terms
“landowner” and “possessor” by both the parties and in Utah caselaw. For
example, Hale often refers to landowner liability despite the fact that it was

                                          -3-
to an open and obvious condition like the one that occurred here, and that unlike

Hale, Northrop Grumman did not install, own, or maintain the equipment at issue.

Aplt. App. 44-45. Mr. Drum responded by arguing that Northrop Grumman, as

the possessor of the land, owed him a duty, that Air Liquide retained no control

over the land, and that the open and obvious doctrine did not bar recovery

because Northrop Grumman knew that the only access to the tanks was via the

snow-covered asphalt pad. Aplt. App. 66-72.

      Following the parties’ briefing on the summary judgment motion, Mr.

Drum alerted the district court to supplemental authority: Berrett v. Albertsons

Inc., 293 P.3d 1108 (Utah Ct. App. 2012), cert. granted, 304 P.3d 469 (Utah May

13, 2013) (No. 20130165) (addressing a grocery store’s liability when a patron

fell into a parking lot manhole left open by an independent contractor servicing



addressing possessor liability under Sections 343 and 343A of the Restatement
(Second) of Torts. See, e.g., Hale, 116 P.3d at 268 (“Under section 343, if a
landowner ‘should expect that [an invitee] will ... fail to protect [himself] against
[a dangerous condition],’ the landowner must exercise reasonable care to protect
him.”) (citing § 343(b), (c)) (emphases added); compare with Restatement
(Second) of Torts, §§ 343, 343A (addressing dangerous conditions in regard to a
“possessor of land”) (emphasis added). The Restatement defines “possessor” as
“a person who is in occupation of the land with intent to control it.” Restatement
(Second) of Torts, § 328E(a); see also Stevens v. Colorado Fuel and Iron, 469
P.2d 3, 5 (Utah 1970) (recognizing the distinction between a landowner and a
possessor as defined by § 328E of the Restatement). In Hale, the possessor was
also the landowner, Hale, 116 P.3d at 265; thus, the distinction was unnecessary
even if the language was less than precise. However, the distinction is critical
here. Based on the plain language of §343, §343A, and §328E as recognized by
the Utah Supreme Court, we read Hale as applying only to possessor liability and
not landowner liability.

                                         -4-
the grocery store’s drains). Aplt. App. 87.

      At oral argument before the district court, Mr. Drum clarified that his

negligence claim was based on the peculiar risk doctrine, the general tort duty

owed by a business owner to an invitee, and direct negligence under Magana.

Aplt. App. 113-14, 119. When asked about the two Air Liquide entities, Mr.

Drum could not reference any evidence—other than his own say so—that an

entity other than his employer owned and maintained the equipment. Aplt. App.

120-21.

      The district court ruled in Northrop Grumman’s favor, explaining that

based on discussions of the peculiar risk doctrine in Berrett, Thompson v. Jess,

979 P.2d 322 (Utah 1999), and Privette, Mr. Drum’s injuries resulted from the

work he was doing for his employer, Air Liquide, and as such, his injuries were

covered by workers’ compensation; thus, he could not also recover tort damages

against Northrop Grumman. Aplt. App. 121-23.

       Mr. Drum timely appeals.



                                     Discussion

      Mr. Drum presents three challenges to the district court’s grant of summary

judgment: (1) the district court failed to address his theory of direct negligence

under Magana; (2) the district court impermissibly and sua sponte relied on

Privette to bar him from suing Northrop Grumman; and (3) Northrop Grumman

                                         -5-
was liable for his injuries because it retained possession and control of the ground

underneath the Air Liquide equipment. Aplt. Br. 8-17. Northrop Grumman

argues that Mr. Drum failed to preserve any argument that it had a duty to Mr.

Drum, but should the court decide otherwise, the undisputed evidence supports

the legal conclusion of no duty, or, alternatively, no breach of duty due to the

obvious snow danger. Aplee. Br. 7-8.

      In diversity cases, we apply the substantive law of the forum state to the

underlying claims but review de novo the grant of summary judgement under

federal law. Stickley v. State Farm Mut. Auto. Ins. Co., 505 F.3d 1070, 1076

(10th Cir. 2007). We review the evidence and its reasonable inferences in the

light most favorable to the non-movant, but summary judgment is warranted if

“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). We may affirm on any

grounds in the record sufficient to permit legal conclusions, even if the grounds

were not relied upon by the district court. Stickley, 505 F.3d at 1076.

1.    Magana is Inapplicable

      Magana was raised by Mr. Drum at oral argument before the district court.

Aplt. App. 119. Mr. Drum argues that the district court failed to address his

theory that Northrop Grumman was directly negligent in failing to clean the ice

and snow on the ground underneath Air Liquide’s equipment as established in

Magana. Aplt. Br. 8. Mr. Drum argues that to the extent Northrop Grumman

                                         -6-
contributed to the hazardous snow and ice conditions of the premises, it should be

held liable. Id. at 11. Though it is passing strange that Northrop Grumman never

discusses Magana in its response brief (after all, it is the first point of Mr. Drum’s

brief in chief), the district court apparently rejected its application, and we will

proceed to the merits. That said, nothing in the record supports that Northrop

Grumman—rather than Air Liquide—was directly responsible for the ice

accumulation.

      In Magana, the employee of a subcontractor was injured when a load of

trusses fell on him as it was being hoisted by crane from a truck. Magana, 215

P.3d at 146. The injured worker sued the general contractor that had hired the

subcontractor under two theories: vicarious liability for the subcontractor’s

conduct based on the retained control doctrine and direct negligence, because the

general contractor had helped the subcontractor rig the trusses. Id. at 146-47.

The Utah Supreme Court upheld the grant of summary judgment in favor of the

general contractor under the first theory, concluding that the general contractor

did not actively participate in the injury-causing activity such that it retained

control of the unloading. Id. at 148-49. However, the court reversed on the

second theory, finding that a question of fact remained as to the general

contractor’s direct negligence because the worker testified that he observed the

general contractor helping rig the trusses that fell and caused the injury. Id. at

152. Consequently, the Magana court held that “[o]nce an employer goes beyond

                                          -7-
mere direction or control of the contractor’s work and directly acts in such a way

that causes an injury, the employer may be liable for its own direct negligence.”

Id. at 151.

      The facts of this case are wholly different. Unlike Magana, no evidence

supports the assertion that Northrop Grumman directly contributed to the ice

buildup. Rather, Mr. Drum admits that Air Liquide owns and maintains all of the

liquid nitrogen equipment and that the nature of liquid nitrogen being stored

outside in tanks, especially on a cold, December evening, often results in snow

and ice accumulating on the surrounding ground. Accordingly, Magana does not

suggest a different result.

      Mr. Drum also argues that the failure to apply Magana provides Northrop

Grumman immunity from suit “for which it has paid no price,” in contravention to

Utah law allowing the allocation of fault to negligent third parties. Aplt. Br. 10

(citing Sullivan v. Scoular Grain Co. of Utah, 853 P.2d 877 (Utah 1993)

(superceded by statute on other grounds as recognized in Anderson v. United

Parcel Service, 96 P.3d 903, 907 (Utah 2004)). However, the district court did

not grant Northrop Grumman “immunity,” as Mr. Drum alleges. It merely

refrained from imposing tort liability where none was established. We also note

that Mr. Drum’s reliance on Sullivan is misplaced, as Sullivan recognizes that a

party dismissed from a negligence suit based on lack of fault as a matter of law

cannot be included in apportionment of fault. Sullivan, 853 P.2d at 878, 884.

                                        -8-
2.    Privette Controls Through Thompson v. Jess

      Mr. Drum also challenges the district court’s grant of summary judgment

by arguing that it impermissibly and sua sponte relied on Privette because (1)

Northrop Grumman is a negligent landowner; (2) Privette will discourage

workplace safety by allowing employers to escape liability; and (3) Mr. Drum

worked for a different Air Liquide entity than the one that owns the tanks. Aplt.

Br. 11-14. Northrop Grumman argues that Mr. Drum failed to preserve the

Privette issue, and, at any rate, the district court merely was commenting upon

supplemental authority. Aplee. Br. 32-34;

      First, Mr. Drum’s allegation that the district court sua sponte relied on

Privette is inaccurate. The district court referenced Privette in regard to the

peculiar risk doctrine; a doctrine that Mr. Drum brought to the attention of the

court by filing Berrett as supplemental authority. Because the issue of the

peculiar risk doctrine, including Privette, was before the district court, and the

district court relied on it for its ruling, we also reject Northrop Grumman’s

argument that the Privette issue was not preserved for appellate review. See

United States v. Hernandez-Rodriguez, 352 F.3d 1325, 1328 (10th Cir. 2003);

Trujillo v. Cyprus Amax Minerals Co. Ret. Plan Comm., 203 F.3d 733, 736 (10th

Cir. 2000) (review of a district court’s legal conclusions is plenary).

      Second, we agree with the district court that Privette, as recognized in

Thompson, limits Mr. Drum’s injury to a workers’ compensation claim.

                                         -9-
      In Privette, the California Supreme Court provided a thorough analysis of

the intersection of workers’ compensation and the peculiar risk doctrine, an

exception to the general rule of nonliability for a landowner who hires an

independent contractor to perform inherently dangerous work as recognized in

Sections 413, 416, and 427 of the Restatement (Second) of Torts. Privette, 854

P.2d at 691, 693; see also Thompson, 979 P.2d at 329. Ultimately, the Privette

court concluded that when the person injured by negligently performed contract

work is one of the contractor’s own employees—rather than an innocent

bystander—then the injury is compensable under worker’s compensation;

therefore, the peculiar risk doctrine should not apply because it would allow

recovery for the same injuries against the person who hired the contractor in

contravention of tort principles. Privette, 854 P.2d at 696.

      Relying on Privette in part, the Utah Supreme Court reached the same

conclusion. Thompson, 979 P.2d at 329. The Thompson court explained that an

employer often hires an independent contractor precisely because of that

contractor’s expertise; to then require the employer to anticipate what might be

inherently dangerous to the contractor’s employees puts the employer in an

“untenable position” of trying to foresee risks that are often beyond its expertise.

Thompson, 979 P.2d at 330. 3

      3
        Although Mr. Drum also brought Berrett to the district court’s attention,
the case is simply inapplicable. Berrett cites Thompson when discussing the
peculiar risk doctrine. Berrett, 293 P.3d at 1116. However, Berrett involves an

                                        - 10 -
      Here, the district court questioned Mr. Drum and confirmed that Mr. Drum

was injured while working for Air Liquide, a entity different from Northrop

Grumman; that Northrop Grumman did not maintain any of the Air Liquide

equipment at the accident site; and that Mr. Drum received workers’

compensation for his injuries. Aplt. App. 119-121. The district court then

concluded based on Privette, Berrett, and Thompson that the peculiar risk doctrine

did not apply because Mr. Drum worked for the independent contractor that

created the risk, and he received workers’ compensation. Aplt. App. 123.

      We are not persuaded by Mr. Drum’s argument that Privette is inapplicable

because Northrop Grumman was a negligent landowner when nothing in the

record establishes such. We also are not persuaded that the district court’s ruling

will discourage workplace safety, as Mr. Drum presents no evidence that

Northrop Grumman failed to maintain safe working conditions in an area

containing equipment owned and maintained by Air Liquide. Insofar as Mr.

Drum’s third argument that he worked for a different Air Liquide entity, nothing

in the record provides evidentiary support for such a conclusion.

3.    Northrop Grumman Had No Duty to Mr. Drum

      Finally, Mr. Drum argues that Northrop Grumman had a duty to keep the

accident site clear from ice and snow as the possessor of the area because (1) it



injury to an innocent bystander and not the employee of an independent
contractor. Id. at 1110.

                                        - 11 -
owned of the concrete pad and surrounding asphalt parking lot, (2) the area was

fenced, (3) a security guard protected the area and allowed Mr. Drum to enter in

order to fill the tanks, (4) nothing establishes that Air Liquide was required to

remove snow and ice, (5) the legal cause of his injuries was the snow and ice and

not his filling the tanks, and (6) under Section 422 of the Restatement (Second) of

Torts, Northrop Grumman resumed possession of the land after Air Liquide

installed its equipment. Aplt. Br. 14-17. We reject Northrop Grumman’s

argument that Mr. Drum never raised the issue of whether it had a duty, but agree

that it had no duty on this record.

      As Utah has long recognized, “[t]he assertion of mere legal title . . . [is] an

insufficient basis upon which to predicate the duty plaintiffs assert . . . . The duty

claimed is owed by the possessor of land. The possessor of land is a person who

is in occupation of the land with intent to control it.” Stevens v. Colorado Fuel

and Iron, 469 P.2d 3, 5 (Utah 1970) (citing Section 328E of the Restatement

(Second) of Torts).

      The undisputed facts of this case show that Air Liquide occupied the

accident site with the intent to control it sufficient to make it—and not Northrop

Grumman—the possessor. Air Liquide not only installed and owns the equipment

that caused Mr. Drum’s injury, it also maintains that equipment, and Northrop

Grumman does not supervise or schedule deliveries to the fenced equipment site.

Although a Northrop Grumman security guard allows access to Air Liquide


                                         - 12 -
employees, nothing in the record establishes that either the fence or the security

guard is used by Northrop Grumman for purposes of possession. Rather, Mr.

Drum admitted in his deposition testimony that the area is hazardous and that

only Air Liquide employees are allowed around the tanks. Aplt. App. 51.

      Although Mr. Drum argues that owning the concrete pad and asphalt

parking lot underneath Air Liquide’s equipment create possession, such passive

possession does not constitute control sufficient to impose liability. While Mr.

Drum is correct in noting that nothing in the record establishes that Air Liquide

was required to remove the snow and ice, we note that nothing in the record

establishes that Northrop Grumman was required to do so in a hazardous area

under the possession and control of its independent contractor. Thus, as the

landowner but not the possessor, Northrop Grumman had no duty to Mr. Drum as

an invitee. See Tallman v. City of Hurricane, 985 P.2d 892, 894 (Utah 1999)

(“[W]ithout a duty, there can be no negligence as a matter of law, and summary

judgment is appropriate.”) (internal quotation marks and citation omitted).

      In regard to Mr. Drum’s remaining arguments, we conclude that (1) even

though the failure to remove snow and ice may be the legal cause of Mr. Drum’s

injuries, this legal cause does not somehow transform Northrop Grumman into a

possessor; and (2) Section 422 of the Restatement (Second) is inapplicable, as it

addresses liability for a possessor who entrusts an independent contractor to build

a structure on the land it possesses. Restatement (Second) of Torts, § 422. No


                                        - 13 -
such scenario occurred here, as Air Liquide did not simply install the equipment

on behalf of Northrop Grumman but continues to operate the tanks. 4

      Having determined that summary judgment was correct as a matter of law,

we need not address Northrop Grumman’s alternative theory that the ice and snow

were an open and obvious condition.

      AFFIRMED.


                                      Entered for the Court


                                      Paul J. Kelly, Jr.
                                      Circuit Judge




      4
        Our conclusion that Northrop Grumman is not a possessor is consistent
with the recently released Utah Supreme Court decision filed by Mr. Drum with
this court under Fed. R. App. P. 28(J) motion: Hill v. Superior Prop. Mgmt.
Servs., No. 20120428, 2013 WL 5587843, at *4 (Utah Oct. 11, 2013) (defining
possession as including substantial control).

                                       - 14 -
