                                                           F I L E D
                                                   United States Court of Appeals
                                                           Tenth Circuit
            UNITED STATES COURT OF APPEALS                 APR 6 2000

                            TENTH CIRCUIT            PATRICK FISHER
                                                               Clerk



MICHELLE E. HALE,

     Plaintiff-Appellant,

     and

CLARENCE HALE; RENIE HALE,

     Plaintiff,

v.

DANNY’S CONSTRUCTION
COMPANY, INC.,

     Defendant-Third-Party
     Defendant,

WILLIAMS STEEL COMPANY, a
corporation,
                                          No. 99-4040
     Defendant Counterclaimant,
                                        (D.C. 95-CV-660)
     Third Party Plaintiff,
                                              (Utah)
     and

H AND M CONSTRUCTION, a
corporation,

     Defendant-Cross Claimant
     Cross-Defendant-Appellee,

v.
 FINGERHUT COMPANIES, INC., a
 corporation; WESTERN DISTRI-
 BUTION, INC. a corporation;
 NEWCORE CORPORATION, a
 corporation, dba Vulcraft,

          Defendant Cross Claim
          Defendant.




                        ORDER AND JUDGMENT *


Before SEYMOUR, Chief Judge, BRORBY and EBEL, Circuit Judges.



      Michele Hale brought this diversity action in the Utah Federal District

Court after her husband, John Hale, was killed in a construction accident. The

defendant, H&M Construction Company (H&M), was the general contractor of

the warehouse construction project at which the accident occurred. H&M entered

into a subcontract with Williams Steel Company (Williams) to provide and install

the steel framework of the warehouse. Williams then entered into a subcontract

with Danny’s Construction, Inc. (Danny’s) to erect and install the structural steel.

At the time of the accident Mr. Hale was an employee of Danny’s, which was


      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.

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immune from suit under Utah’s worker’s compensation scheme. Following a

bench trial, the District Court entered judgment for H&M after finding that it did

not owe a duty of care to Mr. Hale under Utah law. Mrs. Hale appeals, and we

affirm. 1

       Under Utah tort law, the general rule “recognizes that one who hires an

independent contractor and does not participate in or control the manner in which

the contractor’s work is performed owes no duty of care concerning the safety of

the manner or method of performance implemented.” Thompson v. Jess, 979 P.2d

322, 325 (Utah 1999). However, Utah recognizes the “retained control” theory of

liability as an exception to this rule in contractor cases.         Id. at 327. This doctrine

as applied in Utah holds that the employer of an independent contractor may owe

the contractor a limited duty of care if it exercises sufficient control over the

contracted work.     See id. at 326 (citing Restatement (Second) of Torts § 414

(1965)). Thus, the scope of any duty is defined by the amount of control the

general contractor actually retains over the work.            See, e,g, id. ; Lewis v. Riebe

Enters., Inc. , 825 P.2d 5, 9 (Ariz. 1992).

       One way a general contractor can retain control is by actually exercising




       After examining the briefs and appellate record, this panel has determined
       1

unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See F ED . R. A PP . P. 34(f); 10th Cir. R. 34.1(A)(2). The case is
therefore ordered submitted without oral argument.

                                              -3-
control over the manner or methods of job performance.             See Thompson , 979 P.2d

at 328. Courts in other states have also held that a contractual provision assuming

responsibility for safety at the site is relevant to determining whether control is

retained. See Lewis , 825 P.2d at 12.   2
                                            In the present case, the district court looked

to both of these factors – contract terms and actual behavior – in reaching its

conclusion that H&M had not retained control.

       The issue of whether a general contractor has retained sufficient control

over the performance of work is a question of fact which should ordinarily be left

to the fact-finder.   See Lewis , 825 P.2d at 10 (citing cases);      Corsetti v. The Stone


       2
        Ms. Hale makes much of the fact that the court in Thompson relied on
Lewis and dropped the following footnote, which she argues leaves open the issue
of whether, in Utah, a duty of care may be imposed solely as a result of a
contractual reservation:
       The term “retained control” may have a more syntactically correct
       application to sophisticated parties who, by contract, stipulate which party
       will control the manner or method of work or the safety measures to be
       taken–such as in contracts between general contractors and subcontractors
       involved in construction projects. . . . The issue, however, . . . is not before
       us.
Thompson, 979 P.2d at 328 n.3 (citations omitted). The presence of this footnote,
Ms. Hale contends, indicates that the issue is unsettled, and she urges us to certify
the matter to the Utah Supreme Court. We decline to do so.
       Ms. Hale relies on Lewis and Corsetti v. The Stone Co., 483 N.E.2d 793
(Mass. 1985), for her contention that retained control can be determined solely
based on contract language. However, both of those cases make it clear that the
issue is one of fact based on contractual language and actual control. See Lewis,
825 P.2d at 11; Corsetti, 483 N.E.2d at 798-99. We have no reason to believe the
Utah Supreme Court would go beyond Lewis and Corsetti to hold a general
contractor liable as a matter of law based solely on language in the general
contract.

                                              -4-
Co. , 483 N.E.2d 793, 798 (Mass. 1985)      . Because the proceedings below took the

form of a bench trial, the district court assumed the role of fact-finder, and we

may not set aside its findings unless they are clearly erroneous.        See F ED . R. C IV .

P. 52(a); Mid-West Conveyor Co. v. Jervis B. Webb Co.          , 92 F.3d 992, 997 (10th

Cir. 1996). “A finding of fact is ‘clearly erroneous’ if it is without factual

support in the record or if the appellate court, after reviewing all the evidence, is

left with a definite and firm conviction that a mistake has been made.”             Manning

v. United States , 146 F.3d 808, 812 (10th Cir. 1998) (citation omitted).

       The district court was quite thorough in setting forth the bases for its

findings. Its order analyzes the contracts between all of the parties,        3
                                                                                  as well as

H&M’s behavior with respect to the manner and method of the work performed.

The court determined that Danny’s contractually assumed primary responsibility



       3
        There were three relevant contracts containing safety provisions in this
case: the original contract between the project owner and H&M, the subcontract
between H&M and Williams, and the subcontract between Williams and Danny’s.
The district court determined that none of the contracts read separately would
settle who was to be responsible for the safety of the steel erection work as
between Danny’s and H&M, so it examined the three contracts together. This
decision was a legal one, see Morris v. Mountain States Telephone and Telegraph
Co., 658 P.2d 1199, 1200 (Utah 1983), which we review de novo, and with which
we agree. The district court’s assessments of the relationship between the three
contracts and the parties’ intentions with respect to this relationship, however,
are findings of fact subject to the clearly erroneous standard of review. See
Crowther v. Carter, 767 P.2d 129, 131 (Utah 1989). The court determined that
the three contracts taken together gave responsibility for the safety of the steel
erection to Danny’s. We do not believe this decision to be in error.

                                             -5-
for the manner and method of the steel erection work and that H&M did not

actually control the day-to-day performance of the steel erection work. There is

ample support for these findings in the record and we are not convinced the

district court, after hearing the testimony, making credibility findings, and

reviewing the documentary evidence, made a mistake.

      Finally, Ms. Hale argues that the district court misapplied the law when it

concluded that H&M did not owe Mr. Hale a duty because Danny’s had assumed

“primary responsibility” for the safety of the steel erection. Ms. Hale urges us to

adopt the following reasoning: the term “primary responsibility” connotes that

H&M must have at least had “secondary responsibility;” if H&M had such

secondary responsibility, it can be said to have retained some measure of control;

therefore, H&M owed Mr. Hale a duty of care such that it should be liable for his

injury. We are not persuaded. Ms. Hale asks us to read a great deal into the

district court’s single use of the term “primary responsibility.” The court makes

no reference to “secondary responsibility,” and we cannot justify making the

“inferential leap” that the court intended to imbue H&M with it.    Ramey Const.

Co. v. Apache Tribe of the Mescalero Reservation     , 616 F.2d 464, 467 (10th Cir.

1980) (refusing to interpret trial court’s findings and conclusions beyond extent

discussed in order). The district court’s finding that Danny’s had primary

responsibility for the safety of the steel erection was simply a logical step toward


                                           -6-
its conclusion that H&M did not retain sufficient control over the steel erection to

create a duty owed to Mr. Hale. This straightforward reading of the district

court’s application of the retained control doctrine fits well with the principle that

the duty a general contractor owes is confined in scope to the extent of the control

asserted. We will not distort the district court’s logic in order to arrive at a

conclusion that misapplies the doctrine.

      Accordingly, we AFFIRM the decision of the district court and         DENY Ms.

Hale’s motion for certification.

                                         ENTERED FOR THE COURT


                                         Stephanie K. Seymour
                                         Chief Judge




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