                                                                                 FILED
                                                                     United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                         Tenth Circuit

                             FOR THE TENTH CIRCUIT                           April 4, 2016
                         _________________________________
                                                                         Elisabeth A. Shumaker
                                                                             Clerk of Court
GEORGE J. CLARK, a Wyoming resident,

      Plaintiff - Appellant,

v.                                                          No. 15-8037
                                                  (D.C. No. 1:13-CV-00279-SWS)
KELLER TRANSPORT, INC., a Montana                            (D. Wyo.)
corporation,

      Defendant - Appellee.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before BRISCOE, LUCERO, and McHUGH, Circuit Judges.
                   _________________________________

      George Clark appeals following a jury verdict in favor of defendant Keller

Transport, Inc. (“Keller”). The jury found that Keller was negligent, but that its

negligence was not a cause of Clark’s alleged injuries. Exercising jurisdiction under

28 U.S.C. § 1291, we affirm.




      *
        After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
                                            I

      DMK Trucking (“DMK”) leased a tank trailer to Keller to haul crude oil from

a tank battery in Wyoming. A small number of the battery wells produced crude oil

containing H2S gas (“sour crude oil”). At certain levels, this gas is a toxic breathing

hazard, and short-term, high-level exposure to H2S can cause a person to collapse.

      Clark claimed he was injured when he fell off of the top of the tank trailer

while filling it. He asserted that he fell because he was overcome by H2S fumes, and

that he suffered significant injuries, including paralysis, from his fall. He alleged his

fall resulted from Keller’s negligence in failing to inform him of the dangers of H2S

or how to load or unload sour crude oil. Clark also alleged negligence in maintaining

the tank trailers. And Clark refuted Keller’s contention that it had delegated any duty

of care to DMK by arguing that Keller owed him a non-delegable duty to provide

necessary safety training and a safe workplace because the work involved

ultrahazardous activities.

      Keller disputed both that H2S exposure caused Keller’s fall, and that Keller

was injured in the fall. Keller presented evidence that: (1) on the day of the

accident, Clark said he fell off the trailer because he tripped over a spring, and did

not claim he had fallen due to H2S exposure until seven months later; (2) Clark’s

treating physicians determined that Clark was not paralyzed and that there was

nothing objectively wrong with him; (3) witnesses saw Clark walk, drive, and hunt

after the fall; and (4) Clark had been warned and trained about the hazards of H2S,

and there was signage at the tank battery warning of the same. Keller also contended

                                            2
that even if Clark had been injured due to H2S exposure, Keller was not liable

because Clark was not Keller’s employee.1

      After a nine-day trial, the jury found in favor of Keller. On the verdict form, it

answered “Yes” to the question, “Was Defendant Keller Transport negligent?” but

answered “No” to the question, “Was the negligence of Defendant Keller Transport a

cause of the injuries or damages claimed by Plaintiff George J. Clark?” Clark moved

for relief under Fed. R. Civ. P. 50 and 59, arguing that the district court erred in not

giving a requested jury instruction. The district court denied the motion, and Clark

appeals.

                                            II

      Clark alleges the district court erred in denying his request to include the

following jury instruction: “Where work activities involve an ultrahazardous

activity, the duty to maintain a safe place to work is nondelegable.” In diversity

cases, “the substance of a jury instruction is a matter of state law, but the grant or

denial of a tendered instruction is governed by federal law.” Blanke v. Alexander,

152 F.3d 1224, 1232 (10th Cir. 1998). Although we review the district court’s

refusal to give a particular instruction for an abuse of discretion, “[w]e review de

novo whether, as a whole, the district court’s jury instructions correctly stated the

governing law and provided the jury with an ample understanding of the issues and



      1
        The parties continue to dispute whether Clark was legally an employee of
Keller. We do not resolve this dispute as it is not material to our analysis.

                                            3
applicable standards.” Martinez v. Caterpillar, Inc., 572 F.3d 1129, 1132 (10th Cir.

2009) (quotation omitted).

      Clark’s sole argument is that, absent the instruction, the jury may have

concluded Keller’s negligence was not a cause of Clark’s claimed injuries because it

mistakenly believed that Keller could contractually delegate away the consequences

of its negligence and therefore escape liability under the causation analysis. But this

argument confuses the elements of his negligence claim. “The essential elements of

a negligence claim are duty, a breach of that duty, proximate causation, and an

injury.” Loredo v. Solvay Am., Inc., 212 P.3d 614, 630 (Wyo. 2009). Clark’s

proposed jury instruction relates only to whether Keller owed a duty of care. But the

jury agreed that Keller owed a duty to Clark, and breached that duty in its negligence.

Clark confuses this duty element—on which the jury found in his favor—with the

causation element. Allmaras v. Mudge, 820 P.2d 533, 541 (Wyo. 1991) (“In order

that a negligent actor shall be liable for another’s harm, it is necessary not only that

the actor’s conduct be negligent toward the other, but also that the negligence of the

actor be a legal cause of the other’s harm.” (quotation omitted)). The jury found

that—regardless of the source of Keller’s duty—Keller’s negligence did not cause

Clark injury. This finding was not unreasonable given the conflicting evidence as to

why Clark fell from the tank trailer and whether he was injured. Because the jury

reasonably concluded that Clark failed to demonstrate causation, a finding that Keller

had a non-delegable duty of care would not have impacted the outcome. Any error

regarding the non-delegation instruction was harmless. Accord Fed. Deposit Ins.

                                            4
Corp. v. Schuchmann, 235 F.3d 1217, 1224 (10th Cir. 2000) (requiring appellant to

demonstrate a “possibility the jury’s verdict finding an absence of proximate cause

would have been different” if the jury had premised negligence on a different theory

of breach).2

                                          III

      The district court judgment is AFFIRMED.



                                           Entered for the Court

                                           Carlos F. Lucero
                                           Circuit Judge




      2
         Moreover, the given instructions adequately advised the jury of the law
regarding ultrahazardous activities. See Martinez, 572 F.3d at 1134 (“[I]t is not error
to refuse to give a requested instruction if the same subject matter is adequately
covered in the general instructions.” (quotation omitted)). Specifically, two
instructions informed the jury that Keller owed Clark a duty to provide a reasonably
safe workplace if the work it contracted DMK to do was ultrahazardous. These
instructions correctly stated the governing law and provided the jury with an ample
understanding of the issues and applicable standards. Id. at 1132.

                                           5
