                                                                       F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                    UNITED STATES CO URT O F APPEALS
                                                                        July 12, 2007
                                TENTH CIRCUIT                       Elisabeth A. Shumaker
                                                                        Clerk of Court

 RAY HULL; KAREN K. HULL,

              Plaintiffs-Appellants,

 v.                                                      No. 06-5136
                                               (D.C. No. 04-CV-721-HDC-PJC)
 BARAN TELECOM , IN C,                                   (N .D. Okla.)

              Defendant-Appellee.



                           OR D ER AND JUDGM ENT *


Before M cCO NNELL, M cKA Y, and TYM KOVICH, Circuit Judges.


      This negligence action was filed against Baran Telecom, Inc., the general

contractor on a cellular telephone tower construction project, after Plaintiff, the

foreman for the subcontractor tower erection crew, fell 240 feet when a cable

used to hoist tow er sections snapped. The district court aw arded summary

judgment in favor of Baran Telecom, and this appeal followed.




      *
        This order and judgment is not binding precedent, except under the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.
                                   B ACKGROUND 1

      Plaintiff Ray Hull, an experienced tower construction specialist, accepted a

position with Innovative W ireless Construction (“IW C”) in an effort to resurrect

its failing cellular telephone tower construction business. M r. Hull’s first job

with IW C was the time-sensitive construction of a three-leg, 350-foot, self-

supporting cellular telephone tower in Fremont, Nebraska for Baran Telecom after

Baran’s original subcontractor defaulted.

      According to the undisputed material facts, IW C accepted the job on the

express condition that Baran Telecom w ould provide a hydraulic crane and crane

operators to assist IW C with the hoisting of pre-assembled tower sections into

position. M r. Hull and his crew immediately began assembly of the tower

sections and, using the crane supplied by Baran Telecom, erected the tower to a

height of 240 feet before the crane operator refused to continue working due to

windy conditions. The next morning the crane operator disassembled his crane

and left the work site over Baran Telecom’s on-site representative’s objections

because the crane was scheduled for another job.

      IW C and Baran agree that, because Baran Telecom could not secure another

crane, the job could only be completed on time with the use of a gin pole and




      1
       W e recount only those facts relevant to the issues before us, construing
them in the light most favorable M r. Hull, the non-movant.

                                         -2-
hoist. 2 Although IW C offered the use of its gin pole and hoist at additional cost,

M r. Hull was unable to retrieve it from its off-site location. Baran Telecom,

concerned over meeting the project deadline, secured the use of one of its gin

poles and hoists, which M r. Hull retrieved and brought to the construction site.

      M r. Hull and his crew inspected the gin pole and hoist system, erected it,

and tested its operation. M r. Hull then ascended the tower and secured his safety

rigging to the gin pole in preparation for the first hoist. Shortly after they began

the first hoist, however, the cable snapped under only seventeen percent of its

maximum load-bearing capability. This failure caused the gin pole, and M r. Hull

along with it, to fall some 240 feet to the ground. M r. Hull’s safety cable

attempted to arrest his fall after 200 feet, but snapped under the pressure, causing

him to free fall the last 40 feet.

      M r. Hull and his wife sued Baran Telecom for negligence under Nebraska

law 3 , alleging Baran Telecom ow ed him a duty of care as the general contractor

and site supervisor as well as the supplier of chattel. Baran Telecom moved for

summary judgment, which the district court granted in part and denied in part.



      2
        A gin pole and hoist consists of a mast, pulley and tackle assembly, and
either hand- or machine-powered hoist. The mast, or gin pole, is attached to the
tower with various clasp assemblies but protrudes above its highest section. New
tower sections are then attached to the cables, or tackle, and hoisted into position
and attached. The gin pole is then slid further up the tow er and the process
repeated.
      3
          The parties agree that Nebraska law controls.

                                          -3-
The district court granted Baran Telecom summary judgment with respect to the

supplier of chattel claim after concluding that Baran Telecom offered its gin pole

and hoist only as a favor. But genuine issues of material fact concerning the

precise nature of Baran Telecom’s supervision prevented the district court from

awarding Baran Telecom summary judgment on the supervisor claim.

      Baran Telecom moved for summary judgment a second time on the

supervisor claim after submitting newly obtained testimony. That testimony came

from Baran Telecom’s on-site representative, an employee of a company to which

Baran Telecom frequently subcontracted non-tower-related construction such as

fencing and ground work. The representative testified that as Baran Telecom’s

liaison he merely observed and reported on IW C’s progress. The district court

found this evidence persuasive enough to aw ard Baran Telecom summary

judgment on that remaining issue. Plaintiffs’ appeal challenges both awards of

summary judgment.


                                     A NALYSIS

A.    Standard of Review

      W e review summary judgment decisions de novo, taking the evidence in the

light most favorable to the non-moving party, in this case, M r. H ull’s favor. See

Zam ora v. Elite Logistics, Inc., 478 F.3d 1160, 1164 (10th Cir. 2007) (en banc).

Summary judgment is appropriate only “if the pleadings, depositions, answ ers to



                                         -4-
interrogatories, and admissions on file, together with the affidavits, if any, show

that there is no genuine issue as to any material fact and that the moving party is

entitled to a judgment as a matter of law .” Fed. R. Civ. P. 56(c).


B.    Duty O w ed by a G eneral Contractor

      A general contractor’s duty of care under N ebraska law is set forth in

Parrish v. Omaha Public Power District, 496 N.W .2d 902 (Neb. 1993). That

case, which distinguished between the duties of care owed by premise owners

versus general contractors in control of the premises, stated that general

contractors owe a duty of care to those lawfully on the premises “to keep the

premises in a reasonably safe condition while the contract is in the course of

performance.” Id. at 911 (quotation omitted). Under Parrish,

      to impose liability on a general contractor for injury to a
      subcontractor’s employee, the general contractor must have (1)
      supervised the work that caused the injury to the employee; (2) had
      actual or constructive knowledge of the danger w hich ultimately
      caused the injury; and (3) had the opportunity to prevent the injury,
      but negligently failed to prevent the injury.

Id. at 912. “‘N ormally when a general contractor has a supervisor on the site, it

will be able to exercise control over the premises.’” Id. at 911 (quoting Farris v.

Gen. Growth Dev. Corp., 354 N.W .2d 251, 254 (Iow a Ct. App. 1984)). However,

“[i]t is not enough that [the general contractor] has merely a general right to order

the work stopped or resumed, to inspect its progress or to receive reports, to make

suggestions or recommendations w hich need not necessarily be followed, or to

                                          -5-
prescribe alterations and deviations.” Restatement (Second) of Torts § 414, cmt.

c.

       The district court analyzed Plaintiffs’ factual assertions that Baran

Telecom’s on-site liaison supervised IW C’s work, but rejected those assertions as

insufficient proof that Baran Telecom “controlled the manner and details of H ull’s

work.” (A plts.’ A pp., v. 2, at 604 (O rder at 8 [hereinafter O rder II]).)

       Plaintiff argues that the district court applied the wrong law when it cited

Didier v. Ash Grove Cement Co., No. A-03-924, 2005 Neb. App. Lexis 226, at

*19-20 (N eb. Ct. App. Sept. 20, 2005), rev’d on other grounds, 718 N.W .2d 484

(Neb. 2006), in its general statement of negligence law for the proposition that

“[a] passive observer-representative of the defendant does not constitute

supervision.” (Aplts.’ App., v. 2, at 602 (Order II at 6).) Specifically, Plaintiff

contends that because Didier dealt with the duties of site owners as opposed to

general contractors, it assessed Plaintiff’s claim under the wrong standard. W e

disagree.

       The district court expressly stated in its first summary judgment decision

that while Parrish explained the distinction between site owners and general

contractors, only the latter applied to M r. Hull’s claims. In its second summary

judgment decision, the district court repeated Parrish’s command that general

contractors owe a duty of care to subcontractors when exercising supervisory

control. It only cited Didier to provide an example of actions incapable of

                                            -6-
amounting to “supervision.” W e do not believe that the district court’s reliance

on Didier in order to illustrate the nature of “supervision” is incorrect.

      Additionally, Plaintiffs have presented no facts indicating that Baran

Telecom’s on-site representative did anything more than occasionally

comm unicate IW C’s progress to Baran Telecom or that Baran Telecom in any

way attempted to control M r. Hull’s actions short of urging his timely completion

of the construction. Cf. Olson v. Pennzoil Co., 943 F.2d 881, 883 (8th Cir. 1991)

(relying on North Dakota Supreme Court decision addressing amount of retained

or exercised control necessary to invoke Restatement § 414, which held that “[a]n

employer who does not retain or actually exercise any control over a project of

the employees of an independent contractor, but, instead, is concerned primarily

only with the finished product should not be held liable for the negligence of the

independent contractor or its employees,” M adler v. M cKenzie Cty., 467 N.W .2d

709, 712 (N.D. 1991) (quotation omitted)). Plaintiffs’ assertions that such

supervision is sufficient to impose a duty of care on a general contractor are

contrary to the law .

      Thus, the district court’s grant of summary judgment in favor of Baran

Telecom on this issue is A FFIR M ED.


C.    Duty O w ed by a Supplier of a Defective Chattel

      Under Nebraska law , the supplier of a defective chattel may be held liable



                                          -7-
for negligence in certain circumstances. In Semler v. Sears, Roebuck & Co., 689

N.W .2d 327 (Neb. 2004), the Nebraska Supreme Court adopted the negligence

standard provided by the Restatement (Second) of Torts § 392:

      One who supplies to another, directly or through a third person, a
      chattel to be used for the supplier’s business purposes is subject to
      liability to those for whose use the chattel is supplied, or to those
      whom he should expect to be endangered by its probable use, for
      physical harm caused by the use of the chattel in the manner for
      which and by persons for whose use the chattel is supplied

      (a) if the supplier fails to exercise reasonable care to make the
      chattel safe for the use for which it is supplied, or

      (b) if he fails to exercise reasonable care to discover its dangerous
      condition or character, and to inform those whom he should expect
      to use it.

Id. at 864-65 (quoting Restatement (Second) of Torts § 392). W hen supplying

tools to another party’s employees,

      [o]ne who employs another to erect a structure or to do other work,
      and agrees for that purpose to supply the necessary tools and
      temporary structures, supplies them to the employees of such other
      for a business purpose. . . . On the other hand, if it is understood
      that the person w ho is to do the work is to supply his own
      instrumentalities, but the person for whom the work is to be done
      permits his own tools or appliances to be used as a favor to the
      person doing the w ork, the tools and appliances are supplied as a
      gratuity and not for use for the supplier’s business purposes.

Id. (quoting Restatement (Second) of Torts § 392, cmt. e).

      The district court determined that no duty of care arose when Baran

Telecom supplied the gin pole and hoist because Baran Telecom allowed IW C to

use the gin pole and hoist “as a favor.” (Aplts.’ App., v. 2, at 342 (Order at 9

                                         -8-
[hereinafter Order I]).) The district court rejected Plaintiffs’ contention that

because of the project’s rapidly approaching deadline, Baran Telecom’s lending

of the equipment served its business purposes. Rather, the district court stated:

“Hull does not provide any evidence by pointing to the contract between Baran

and IW C or otherwise that there was any understanding other than that IW C was

responsible for furnishing its own tools.” (Id. at 341 (Order I at 8).)

      This conclusion, however, ignores both the inclusion of the “or otherwise”

phrase as w ell as the undisputed facts of the case. According to the district court,

it is an undisputed material fact that “Hull accepted the contract on behalf of

IW C, on the express condition that a large crane would be available.” (Id. at 334

(Order I at 1) (emphasis added).) Indeed, Baran Telecom conceded the existence

of this condition at oral argument. (Oral Arg. at 21:33-37.) Despite this

concession, Baran Telecom attempts to argue that because the construction

contract stated that IW C would provide its own tools, Baran Telecom w as under

no obligation to supply either the crane or the gin pole and hoist. Baran

Telecom’s acknowledgment of IW C’s conditional acceptance, however, prevents

it from arguing to the contrary now.

      This undisputed condition establishes that Baran Telecom was obligated to

supply a crane in order to permit IW C to complete the project on time. The

undisputed facts indicate that Baran Telecom, through its on-site representative,

booked the crane for only one day and failed to persuade the crane operator to

                                          -9-
remain on-site. W hen the crane operator dismantled his crane and left due to

prior commitments, Baran Telecom was obligated to supply a suitable

replacement. The duty to supply safe equipment did not leave the job site with

the hydraulic crane. Accordingly, we REV ER SE the district court’s award of

summary judgment in favor of Baran Telecom on this issue, and REM AND to the

district court for further proceedings consistent with this opinion.


                                               Entered for the Court



                                               M onroe G. M cKay
                                               Circuit Judge




                                        -10-
