                    United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 05-4455
                                   ___________

 Renee Pauley; Kelsey Pauley, by         *
 and through Next Friend, Renee          * Appeal from the United States
 Pauley,                                 * District Court for the
                                         * Western District of Missouri
             Plaintiffs - Appellants,    *
                                         *    [PUBLISHED]
      v.                                 *
                                         *
 Ball Metal Beverage Container           *
 Corporation; Geoenergy                  *
 International Corporation; Don          *
 Vandersypen,                            *
                                         *
             Defendants - Appellees.     *
                                    ___________

                            Submitted: June 15, 2006
                                Filed: August 18, 2006
                                ___________

Before ARNOLD and BEAM, Circuit Judges, and DOTY,1 District Judge
                           ___________

DOTY, District Judge.

      Renee Pauley and Kelsey Pauley, by and through her next friend, Renee
Pauley, sued Ball Metal Beverage Container Corporation (“Ball Metal”), GeoEnergy

      1
      The Honorable David S. Doty, United States District Judge for the District of
Minnesota, sitting by designation.
International Corporation (“GeoEnergy”) and Don Vandersypen, alleging the
wrongful death of Mark Pauley. The district court2 granted summary judgment in
favor of defendants. Plaintiffs appeal and we affirm.


I.    BACKGROUND


       Decedent Mark Pauley was married to plaintiff Renee Pauley, with whom he
had a daughter, plaintiff Kelsey Pauley. He worked for Ace Pipe Cleaning, Inc.
(“Ace”). On March 21, 2000, Ball Metal contracted with GeoEnergy to upgrade a
regenerative thermal oxidizer (“RTO”) at Ball Metal’s plant in Kansas City, Missouri.
An RTO is the size of a small room and serves to eliminate pollution from fumes
emitted during production processes. The upgrade involved removing fused ceramic
material, which was many feet thick, from inside the RTO and installing new ceramic
material. On July 5, 2000, GeoEnergy hired Ace as a subcontractor to remove the
ceramic material from the RTO. In particular, Ace agreed to “furnish the dry vacuum
truck, piping, 100 feet of vacuum hose, operator and laborer to remove the media.”
The means, manner and method of removal were the responsibility of Ace.


       GeoEnergy’s primary employee on the RTO project was field supervisor
Donald Vandersypen, who was responsible for coordinating between Ball Metal and
Ace. Specifically, Vandersypen’s job was to “hire contractors, assign work, make
sure that the job was being completed on time, make sure that the work was done in
a quality manner, [and] make sure that there was safety on the job.” Ace foreman
Gary Cook was responsible for coordinating with GeoEnergy and ensuring the safety
of Ace employees. Vandersypen instructed Cook on how to properly remove the

      2
       The Honorable Dean Whipple, United States District Judge for the Western
District of Missouri. When Judge Whipple granted summary judgment in this case,
he was Chief Judge for the Western District of Missouri.

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ceramic material from the RTO, and Cook then instructed Ace employees. The
proper method of removal involved digging no further than two feet into the material
if not stair-stepped or sloped.


       Early in the day on August 1, 2000, Ball Metal employees began pressuring the
employees of GeoEnergy and Ace to speed up the removal process so as to complete
the work by 8:00 p.m. that evening. From approximately 2:00 p.m. until 3:00 p.m.,
Vandersypen worked inside the RTO by using a jackhammer to dig a trench in the
fused ceramic material. When he left, the trench was approximately thirty inches
wide and thirty-eight inches deep with stair-stepping. Thereafter, Mr. Pauley worked
in the RTO to remove ceramic material. Another Ace employee, Melvin Phillips, and
possibly Cook were the only other individuals in the RTO at that time. At around
3:30 p.m., a large piece of ceramic broke off and pinned Mr. Pauley. He asphyxiated
and died. The record is unclear as to exactly how the accident occurred and where
Mr. Pauley was working when he was pinned by the piece of ceramic.


       Mr. Pauley’s estate filed a worker’s compensation claim with Ace. Plaintiffs
brought this wrongful death action against Ball Metal, GeoEnergy and Vandersypen
in state court, and defendants removed the case to the United States District Court for
the Western District of Missouri. The district court granted summary judgment to the
defendants. On appeal, plaintiffs contend that GeoEnergy is not immune from their
common law claim because it is not Mr. Pauley’s statutory employer under Missouri’s
Workers’ Compensation Act. Plaintiffs also argue that Vandersypen is not immune
from liability because he engaged in dangerous activity that a reasonable person
would recognize as hazardous. Finally, plaintiffs contend that Ball Metal is liable as
the owner of the property because it exercised substantial control over the details of
the ceramic removal.




                                         -3-
II.   DISCUSSION


      We review de novo the district court’s grant of summary judgment in favor of
defendants. Mayer v. Nextel W. Corp., 318 F.3d 803, 806 (8th Cir.).



        A dispute is genuine if the evidence is such that it could cause a reasonable
jury to return a verdict for either party. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 252 (1986). We view all evidence and inferences in a light most favorable to the
nonmoving party. See id. at 255. The nonmoving party, however, may not rest upon
mere denials or allegations in the pleadings, but must set forth specific facts sufficient
to raise a genuine issue for trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 324
(1986).


      A.     GeoEnergy’s Liability


       Pursuant to Missouri’s Workers’ Compensation Act, employers are immune
from common law actions arising out of an employee’s accidental injury or death
while in the course of employment. Mo. Ann. Stat. § 287.120.1. Rather, the remedy
for such an injury or death is a claim for compensation under the Act. Id. §
287.120.2. In such cases, the Missouri Labor and Industrial Relations Commission
has exclusive subject matter jurisdiction. See State ex rel. Taylor v. Wallace, 73
S.W.3d 620, 621 (Mo. 2002). Contractors and subcontractors may qualify as
employers under the Workers’ Compensation Act. See Mo. Ann. Stat. § 287.040. In
this case, the district court determined that GeoEnergy was Mr. Pauley’s statutory
employer, relying upon the following provision:




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      The provisions of this section shall not apply to the owner of premises
      upon which improvements are being erected, demolished, altered or
      repaired by an independent contractor but such independent contractor
      shall be deemed to be the employer of the employees of his
      subcontractors and their subcontractors when employed on or about the
      premises where the principal contractor is doing work.

Id. § 287.040.3 (2000).3 We review de novo the district court’s interpretation of state
law. Salve Regina College v. Russell, 499 U.S. 225, 231 (1991).


      It is undisputed that GeoEnergy was hired as an independent contractor by Ball
Metal to make improvements and repairs on Ball Metal’s premises. Further, it is
undisputed that GeoEnergy hired Mr. Pauley’s employer, Ace, as a subcontractor to
perform work on the same premises. Based on these facts, GeoEnergy was Mr.
Pauley’s employer as set forth in section 287.040.3 of the Workers’ Compensation
Act. Plaintiffs imply that GeoEnergy must also qualify as a statutory employer under
section 287.040.14 to be immune from suit. The Missouri Supreme Court has
expressly rejected that argument, however, and held that section 287.040.3 provides
an independent basis for statutory employment. See Vatterott v. Hammerts Iron
Works, Inc., 968 S.W.2d 120, 122-23 (Mo. 1998). For these reasons, the district
court properly granted summary judgment in favor of GeoEnergy based on the
determination that it was a statutory employer of Mr. Pauley and therefore immune
from suit.




      3
        In 2005, this provision was renumbered 287.040.2. See 2005 Mo. Legis.
Serv. S.B. 130.
      4
       Section 287.040.1 provides that an employer is one “who has work done
under contract on or about his premises which is an operation of the usual business
which he there carries on.”

                                         -5-
      B.     Vandersypen’s Liability


       An employer’s immunity under the Workers’ Compensation Act from common
law liability for an employee’s injury or death also extends to co-employees. Groh
v. Kohler, 148 S.W.3d 11, 14 (Mo. Ct. App. 2004). A co-employee may be sued,
however, for his affirmative negligent acts outside the scope of the employer’s
responsibility to provide a safe workplace. Id. In other words, for liability to attach,
the co-employee must do “something more” beyond a breach of general supervision
and safety so as to affirmatively cause or increase a fellow employee’s risk of injury.
Id. Whether a co-employee has committed an affirmative negligent act is decided “on
a case-by-case basis with close reference to the facts in each individual case.” State
ex rel. Taylor, 73 S.W.3d at 622.


       An affirmative negligent act may include (1) a failure to safely perform an act
outside the scope of the co-employee’s duties or (2) directing a fellow employee to
perform acts that are dangerous and that a reasonable person would recognize as
hazardous and beyond the usual requirements of the employment. See Tauchert v.
Boatmen’s Nat’l Bank of St. Louis, 849 S.W.2d 573, 574 (Mo. 1993) (rigging
elevator hoist system that injured fellow worker may constitute affirmative negligent
act outside scope of responsibility to provide safe workplace); Hedglin v. Stahl
Specialty Co., 903 S.W.2d 922, 927 (Mo. Ct. App. 1995) (co-employee may be liable
for directing plaintiff to climb makeshift crane above vat of scalding water). By
contrast, a co-employee’s negligent failure to discharge his work duties in a safe
manner does not constitute an affirmative negligent act. State ex rel. Taylor, 73
S.W.2d at 622 (injury of fellow worker caused by failure to drive safely is not
“something more” than failure to provide safe working environment); Sexton v.
Jenkins & Assocs., 41 S.W.3d 1, 5-6 (Mo. Ct. App. 2000) (co-employees who
designed and built elevator shaft railing not liable for fellow worker’s fall).



                                          -6-
        Because GeoEnergy was Mr. Pauley’s statutory employer, Vandersypen was
a co-employee who receives immunity from liability for alleged breaches of general
supervision and safety. Plaintiffs claim that Vandersypen is nonetheless liable
because his acts rose to the level of affirmative negligence based on his admission
that he personally dug an unstable, dangerous trench that collapsed on Mr. Pauley.
(See Appellants’ Reply Br. at 2.) Plaintiffs misstate the record. Vandersypen
testified that digging deeper than two feet into the ceramic material without stair-
stepping or sloping would be dangerous. He also testified that the trench he dug was
approximately thirty-eight or thirty-nine inches deep and “stepped off.” Based on
these facts, there is no indication that Vandersypen admitted creating or actually
created an unstable or dangerous condition. Rather, he properly stair-stepped a trench
that was deeper than two feet. Even if plaintiffs could show that Vandersypen
improperly dug the trench, however, such a showing indicates at most a negligent
failure to discharge his work duties in a safe manner. For these reasons, the district
court properly granted summary judgment to Vandersypen based on the determination
that he is immune from suit.


      C.     Ball Metal’s Liability


       “[A] property owner owes an invitee the duty to use reasonable and ordinary
care to prevent injury to the invitee.” Lawrence v. Bainbridge Apartments, 919
S.W.2d 566, 569 (Mo. Ct. App. 1996). When a landowner relinquishes possession
and control of the premises to an independent contractor, however, the landowner is
relieved of liability because the duty of care shifts to the contractor during the period
of relinquishment. Id.; see Gillespie v. St. Joseph Light & Power Co., 937 S.W.2d
373, 378-79 (Mo. Ct. App. 1996) (discussing relationship between owner liability and
independent contractor liability). The landowner may remain liable if the injured
party can show that the owner did not relinquish possession and control but rather had
substantial involvement in overseeing the contractor’s work. Lawrence, 919 S.W.2d

                                          -7-
at 569. The retention of control “must go beyond securing compliance with the
contracts,” such as controlling the details of the manner in which the work is done.
Id. at 569-70 (no liability where owner merely checked workers in, unlocked access
doors, removed screens from windows and insisted that windows be washed from
outside rather than inside).


      Plaintiffs argue that Ball Metal retained substantial control over the premises,
pointing to Ball Metal’s contract with GeoEnergy and certain actions by Ball Metal
employees. As to the contract, plaintiffs point to the fact that Ball Metal had the
authority to control the timing of the project, to set forth safety rules and to remove
workers or cancel the contract for inadequate supervision. Contrary to plaintiffs’
argument, the contractual control retained by Ball Metal did not touch upon the
manner of work. Rather, GeoEnergy was responsible for safety while Ace was
responsible for the manner of removing the ceramic.


       As to actions by Ball Metal employees, plaintiffs allege that they applied undue
pressure to rush the job, authorized the use of certain equipment for removing the
ceramic material and failed to remove Vandersypen from the project.5 At most,
plaintiffs’ allegations demonstrate that Ball Metal was securing compliance with the
contract or exercising minimal control over details apart from the manner in which
ceramic was removed from the RTO. See Owens v. Shop ‘N Save Warehouse Foods,
Inc., 866 S.W.2d 132, 134-35 (Mo. 1993) (no liability where owner insists upon color
of paint not available in safety spray because selection of color separate from activity
of painting); Callahan v. Alumax Foils, Inc., 973 S.W.2d 488, 491 (Mo. Ct. App.
1998) (no liability where owner ensured satisfactory progress and directed location


      5
        Ball Metal argues that some employee statements relied upon by plaintiffs are
not admissible. We need not resolve that issue, however, because such evidence does
not raise a genuine issue of material fact.

                                          -8-
and type of piping); Horner v. Hammons, 916 S.W.2d 810, 815 (Mo. Ct. App. 1995)
(no liability where owner does not dictate the proper method or details of work);
Halmick v. SBC Corporate Servs., Inc., 832 S.W.2d 925, 928 (Mo. Ct. App. 1992)
(no liability where owner had its employees monitor contractor’s work to insure it
proceeded properly). Finally, plaintiffs’ assertion that Ball Metal should have
exercised its authority to remove Vandersypen for safety reasons is immaterial to the
issue of whether it actually retained possession and control of the premises.


       For all of the above reasons, plaintiffs have failed to show that Ball Metal
retained possession and control over the RTO project. We conclude that the district
court properly granted summary judgment in favor of Ball Metal.


III.   CONCLUSION


      For the reasons stated, we affirm the district court’s grant of summary judgment
in favor of defendants.
                        ______________________________




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