                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 05-1089



TIMOTHY VERNON COMMEE,

                                              Plaintiff - Appellant,

          versus


NUCOR CORPORATION,

                                              Defendant - Appellee.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.   Terrence W. Boyle,
District Judge. (CA-03-26-2-BO)


Submitted:   November 21, 2005             Decided:   March 8, 2006


Before WILKINS, Chief Judge, GREGORY, Circuit Judge, and Walter D.
KELLEY, Jr., United States District Judge for the Eastern District
of Virginia, sitting by designation.


Affirmed by unpublished per curiam opinion.


Raymond E. Dunn, Jr., EMANUEL & DUNN, P.L.L.C., New Bern, North
Carolina; J. Jefferson Newton, NEWTON LAW FIRM, Beaufort, North
Carolina, for Appellant. Joseph C. Moore, III, Arch T. Allen, III,
ALLEN & MOORE, L.L.P., Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

     Timothy Vernon Commee appeals the district court’s grant of

summary    judgment    to    Nucor      Corporation    (“Nucor”)   on    Commee’s

negligence claims under North Carolina law.              Commee was seriously

injured while employed by Lexicon, Inc. d/b/a Schueck Steel Company

(“Schueck”) in constructing a steel plant for Nucor.                   Because no

genuine issues of material fact exist and Nucor is entitled to

judgment as a matter of law, we affirm.



                                          I.

     Nucor, the largest producer of steel in the United States,

engaged Schueck and other independent contractors to construct a

steel    mill   on   its    land   in    Hertford    County,   North    Carolina.

Specifically, in September and November of 1999, Nucor contracted

with Schueck for steel erection work in its roll mill bay.                   J.A.

29-71.    Under the terms of the contracts, Schueck was to erect and

maintain “all safeguards for safety and protection of persons and

property” relating to its work.                Id. at 32-33, 55-56.      However,

Nucor retained some oversight of Schueck’s safety procedures during

the course of its construction activities.              See, e.g., id. at 33,

56, 288-89.     In addition, Nucor hired Gerald Beaumont to inspect

the job site every four to six weeks.              During his visits, Beaumont

would report any hazards discovered to the relevant contractor’s

supervisor, and the problems would be corrected.               Id. at 294-95.


                                          2
       Nucor also maintained a presence at the construction site and

reserved the right to inspect and test Schueck’s work.                 Id. at 309.

Nucor was responsible for sequencing the work of the various

independent contractors active at the facility so that they would

not overcrowd any one area of the job site.                      Id. at 308-09.

Finally, Nucor’s contracts with Schueck required that Nucor be

named    as   an   additional   insured      under    Schueck’s   comprehensive

liability insurance.        Id. at 31-32, 54.

       Schueck employed Commee, the plaintiff, as an ironworker for

its steel erection work at the Nucor Hertford mill.                    On May 12,

2000, Commee and other Schueck employees were installing a twenty-

six-foot steel beam at a height of sixteen feet in the roll mill

bay.    One Schueck employee used a forklift to lift the beam into

the place where Commee was to weld it in.                 The beam struck an

unsecured overhead pipe rack (also installed by Schueck), which

caused the pipe rack to fall on Commee, sending him sixteen feet to

the    ground.     Commee   sustained       serious   injuries    as    a   result.

According to Commee’s expert, a forklift should not have been used

to lift a beam because it could not appropriately balance the load.

Id. at 371.

       On May 7, 2003, Commee filed a complaint in the Eastern

District of North Carolina on the basis of diversity jurisdiction.

He sought to hold Nucor liable for his injuries under three

different theories of negligence under North Carolina law: (1)


                                        3
landowner liability; (2) retained control; and (3) non-delegable

duty based upon an inherently dangerous activity. After discovery,

Nucor moved for summary judgment.               On December 13, 2004, the

district court granted Nucor’s motion because Commee could not

support the imposition of liability against Nucor under any of his

asserted theories.



                                       II.

      We review a district court’s grant of summary judgment de

novo.    Castillo v. Emergency Med. Assocs., P.A., 372 F.3d 643, 646

(4th Cir. 2004).     Summary judgment is appropriate if there is no

genuine issue of material fact and the movant is entitled to

judgment as a matter of law.           Id.    In reviewing the evidence, we

draw all reasonable inferences in favor of Commee, the nonmoving

party.     Id.



                                       III.

      A federal court sitting in diversity applies the substantive

law   of   the   state   in    which   it     sits,   including   the   state’s

choice-of-law rules.          Volvo Constr. Equip. N. Am., Inc. v. CLM

Equip. Co., 386 F.3d 581, 599-600 (4th Cir. 2004) (citing Erie R.R.

Co. v. Tompkins, 304 U.S. 64, 79 (1938) and Klaxon Co. v. Stentor

Elec. Mfg. Co., 313 U.S. 487, 496 (1941)).                 Based upon these




                                        4
principles, the substantive law of North Carolina applies.                See

Boudreau v. Baughman, 368 S.E.2d 849, 853-54 (N.C. 1988).

     Under North Carolina law, “one who employs an independent

contractor    is   not   liable   for    the    independent       contractor’s

negligence” unless, as relevant here, either “the employer retains

the right to control the manner in which the contractor performs

his work” or the work involves an “inherently dangerous activity.”

Woodson v. Rowland, 407 S.E.2d 222, 234 (N.C. 1991).              This general

rule applies with equal force regardless of whether we treat Nucor

as a landowner or a general contractor.1          See id.     Here, however,

Commee has attempted to assert liability based upon Nucor’s status

as a landowner in a separate claim from his assertion of liability

under the exceptions to the general rule.         This, he cannot do.      See

Vogh v. F.C. Geer Co., 88 S.E. 874, 876 (N.C. 1916) (holding that

as long as the work is not inherently dangerous, a landowner is

“permitted to free himself from liability by contract with another

for its execution”).     See also Brown v. Texas Co., 76 S.E.2d 45, 47

(N.C. 1953) (landowner not liable for injuries to employees of an

independent    contractor    where      the    work   was   not    inherently

dangerous); Cook v. Morrison, 413 S.E.2d 922, 926 (N.C. Ct. App.

1992) (noting that the “general rules on the tort liability of


     1
      To the extent that there is a dispute between the parties as
to whether Nucor was acting as a general contractor, we do not
reach this issue because we do not find it dispositive of Commee’s
claims. Therefore, we will assume, without deciding, that Nucor
was acting as a general contractor.

                                     5
owners and occupiers . . . do not apply to the actual work

undertaken by independent contractors and their employees”).

     Accordingly,   Commee     can   only    survive    summary       judgment,

regardless of whether Nucor was acting as a general contractor or

a landowner, if there is a genuine issue of material fact as to

whether one of the two asserted exceptions to the general rule

against liability applies.     We therefore examine (1) whether Nucor

retained control of Schueck’s performance and, alternatively, (2)

whether the steel erection work here was inherently dangerous.



                                     A.

     Commee first argues that Nucor retained sufficient control of

Schueck’s work to hold Nucor liable. Under North Carolina law, one

who employs an independent contractor may be held liable if the

employer “retains the right to control the manner in which the

contractor   performs   his   work.”       Woodson,    407   S.E.2d    at   234.

Specifically,

     The proprietor may make himself liable by retaining the
     right to direct and control the time and manner of
     executing the work or by interfering with the contractor
     and assuming control of the work, or of some part of
     it[.] . . . But merely taking steps to see that the
     contractor carries out the agreement, as having the work
     supervised by an architect or superintendent, does not
     make the employer liable, nor does reserving the right to
     dismiss incompetent workmen.

Denny v. City of Burlington, 70 S.E. 1085, 1087 (N.C. 1911)

(internal quotation marks omitted).         See also Hooper v. Pizzagalli


                                       6
Constr. Co., 436 S.E.2d 145, 149 (N.C. Ct. App. 1993) (applying

this language); O’Carroll v. Roberts Indus. Contractors, Inc., 457

S.E.2d 752, 756 (N.C. Ct. App. 1995) (same).

      Applying these principles, the North Carolina appellate courts

have found that where an independent contractor is “free to perform

its   job   according    to    its   own     independent    skill,     knowledge,

training, and experience,” liability under a retained control

theory will not attach to the general contractor or landowner.

Hooper, 436 S.E.2d at 149.       In addition, in the specific context of

retained    control     over    safety       measures,     requiring    that   an

independent contractor take its own safety precautions or even

mandating compliance with the safety measures or requirements

initiated by the owner or general contractor does not amount to

control of the “method and manner” of performance.                     Maraman v.

Cooper Steel Fabricators, 555 S.E.2d 309, 323-24 (N.C. Ct. App.

2001), aff’d in part, rev’d in part, 562 S.E.2d 420 (N.C. 2002)

(per curiam).2

      Here, none of Nucor’s retained rights allowed it to control

the “method and manner” of Schueck’s performance of the steel

erection work.    See id.       Although Nucor maintained a supervisory



      2
      In the Maraman case, the Supreme Court of North Carolina
affirmed the portion of the court of appeals’s opinion that found
that neither the retained control nor inherently dangerous activity
exceptions applied to the general contractor defendant. 562 S.E.2d
at 421.   It also clarified that this part of the lower court’s
opinion had been mislabeled as a dissent. Id.

                                         7
presence on the site and retained the right to inspect Schueck’s

work, materials, and equipment, this does not amount to retained

control.   See id. at 324; Denny, 70 S.E. at 1087.       Likewise, under

Maraman, Nucor’s retained oversight over safety measures--such as

approving Schueck’s safety program, pointing out safety hazards,

and requiring that Schueck’s materials and practices live up to

safety regulations--does not support liability under the retained

control exception.      See 555 S.E.2d at 324.

     Nor does Commee’s remaining evidence support his contention

that Nucor retained control of Schueck’s performance.           The fact

that Nucor contracted to be named as an insured on Schueck’s

comprehensive general liability insurance does not demonstrate a

retained   right   of    control.       Moreover,   although   Nucor   was

responsible for sequencing the independent contractors’ work, we

cannot conclude that this general supervision constitutes control

over the method and manner of performance as meant by North

Carolina case law.       Commee can point to no evidence that Nucor

instructed Schueck how to perform its steel erection work at the

site, “interfer[ed] with the contractor and assum[ed] control of

the work, or of some part of it,” see Denny, 70 S.E. at 1087,           or

that Schueck was otherwise not “free to perform its job according

to its own independent skill, knowledge, training, and experience,”




                                    8
see Hooper, 436 S.E.2d at 149.           Indeed, the evidence shows that

Nucor employees were not even present when the accident occurred.3

     For   the   foregoing    reasons,     the     district court correctly

determined   that   Nucor    did   not    retain    sufficient   control   of

Schueck’s performance to be held liable to Commee.4




     3
      Although not controlling, we also note that the Eighth
Circuit recently evaluated Nucor’s control over Schueck under
similar facts in a case arising in Nebraska. See Jordan v. Nucor
Corp., 295 F.3d 828, 836 (8th Cir. 2002). The court determined
under Nebraska law, that Nucor did not retain sufficient control
over Schueck’s performance to impose liability. Id.
     4
      Commee’s brief also contains a discussion of the multi-
employer doctrine. The multi-employer doctrine provides that “an
employer who controls or creates a worksite safety hazard may be
liable under the Occupational Safety and Health Act [OSHA] even if
the employees threatened by the hazard are solely employees of
another employer.” Universal Constr. Co. v. Occupational Safety
and Health Review Comm’n, 182 F.3d 726, 728 (10th Cir. 1999).
North Carolina has accepted the multi-employer doctrine as a basis
for upholding OSHA citations of general contractors. See Comm’r of
Labor v. Weekley Homes, L.P., 609 S.E.2d 407 (N.C. Ct. App. 2005).

     Commee does not argue this as a separate theory of liability.
See Br. of Appellant 11; Reply Br. of Appellant 6.      Rather, as
relevant here, Commee appears to argue that the multi-employer
doctrine is evidence that Nucor retained control of Schueck’s
performance based upon contractual language that “[t]he parties
acknowledge that safety on the job site is of paramount importance
to Nucor” and “[a]ll Work, materials, and practices shall meet OSHA
requirements.” See Br. of Appellant 21-24 (quoting J.A. 32-33,
55). However, we do not believe that this demonstrates retained
control by Nucor. Rather, in the context of the full provision,
the language is directed toward Schueck’s responsibilities for
safety, not Nucor’s. See J.A. 32-33, 55.

                                     9
                                    B.

     Commee next argues that Nucor had a non-delegable duty to

ensure   his   safety   because   the    steel   erection   work   here   was

inherently dangerous.     “One who employs an independent contractor

to perform an inherently dangerous activity may not delegate to the

independent contractor the duty to provide for the safety of

others.”   Woodson, 407 S.E.2d at 235.           To impose liability under

this theory, Commee must show that: (1) the activity causing the

injury was inherently dangerous; (2) Nucor knew or should have

known that the activity was inherently dangerous; (3) Nucor failed

to take the necessary precautions to control the attendant risks;

and (4) that Nucor’s failure to take precautions proximately caused

Commee’s injury.    Kinsey v. Spann, 533 S.E.2d 487, 492 (N.C. Ct.

App. 2000).     Commee’s argument fails because he cannot show the

inherent danger of the steel erection work under the first prong of

the analysis.

     In North Carolina, whether an activity is inherently dangerous

may be decided as a matter of law.        Woodson, 407 S.E.2d at 235-38.

In making the determination of what is inherently dangerous, North

Carolina distinguishes between “inherently dangerous activities,

and those that are safe unless performed negligently.” Id. at 235.

To qualify under this exception, “[i]t is sufficient if there is a

recognizable and substantial danger inherent in the work, as

distinguished from a danger collaterally created by the independent


                                    10
negligence of the contractor, which latter might take place on a

job itself involving no inherent danger.”              Evans v. Elliott, 17

S.E.2d 125, 128 (N.C. 1941).

      Whether an activity is inherently dangerous can vary based

upon the circumstances in which the work is performed.                        For

example, digging a trench in a heavily populated area is inherently

dangerous as a matter of law, whereas trenching in a pasture might

not be.    See Woodson, 407 S.E.2d at 236 (citing Evans, 17 S.E.2d at

130).      With respect to the trench-digging scenario, which is a

recurrent subject in the North Carolina cases,

      the focus is not on some abstract activity called
      “trenching.” The focus is on the particular trench being
      dug and the pertinent circumstances surrounding the
      digging.    It must be shown that because of these
      circumstances, the digging of the trench itself presents
      “a recognizable and substantial danger inherent in the
      work, as distinguished from a danger collaterally created
      by the independent negligence of the contractor.”

Id.   at    237   (quoting   Evans,   17     S.E.2d    at   128).      Thus,    a

consideration     of   the   attendant     circumstances    of   the   work    is

relevant to the inquiry.

        North Carolina courts have previously considered the inherent

danger of steel erection.         In Vogh, the Supreme Court of North

Carolina faced a scenario in which the independent contractor’s

employee was engaged in steel and iron work on the fourth floor of

a building under construction.        88 S.E. at 875.       The employee was

injured when a faulty wooden plank that had been laid across the

girders for workers to stand on broke.           Id.    The court held that

                                      11
the erection of a building was not inherently dangerous.                      Id. at

876.

       Recently, the North Carolina courts addressed the inherent

danger of steel construction in a situation even more akin to the

present one.     See Maraman, 555 S.E.2d at 324-25.                 In Maraman, the

independent contractor’s employee was standing on a girder without

a safety line at a height of thirty-one feet.                     Id. at 312. As he

attempted to position an eighty-five foot steel joist being lifted

by a crane, the joist struck him in the head, knocking him to the

ground.   Id.   The Court of Appeals of North Carolina held that this

steel construction work was not inherently dangerous as a matter of

law.     Id. at 324-25 (finding the facts indistinguishable from

Vogh).       In the analogous situation presented here, the steel

erection at the Nucor Hertford plant involved a shorter steel beam

(twenty-six feet) and a shorter height of installation (sixteen

feet).       Thus,   we   are    unable    to    distinguish        the   particular

circumstances of the present steel erection from the steel erection

work in Maraman in favor of Commee.

       Commee attempts to counter this precedent on several fronts.

First, he points to his expert opinion that the use of the forklift

made   the    work   dangerous     because      it    was   not    the    appropriate

equipment for the job.          See J.A. 371.        However, any danger created

by the use of the forklift was the result of negligence collateral

to the work performed, which, as discussed, does not reflect on the


                                          12
inherent danger of the activity. Compare Hooper, 436 S.E.2d at 149

(use of a thirteen-foot scaffold with no guardrails and without

being secured was collateral to the plumbing work being performed,

which was not inherently dangerous) with Lilley v. Blue Ridge Elec.

Membership Corp., 515 S.E.2d 483, 485, 487 (N.C. Ct. App. 1999)

(genuine issue of material fact as to whether setting one-ton

utility poles in “treacherous” mountain terrain was inherently

dangerous).

      Next,   Commee   references   the   high   mortality    rate   in    the

construction industry, and offers an expert opinion that “steel

erection and construction activities associated with steel erection

are   inherently   dangerous   activities”       and   that   “there      were

recognized and substantial dangers inherent in and peculiar to the

steel erection project at the Nucor plant in Hertford.”          J.A. 370.

However, the expert’s general characterization of steel erection

work as inherently dangerous cannot overcome the law of North

Carolina.     Nor does the expert’s assessment that the particular

circumstances here rendered the work inherently dangerous support

Commee’s claim; his expert’s stated reasons for this conclusion--

such as the improper use of the forklift--fail to distinguish the

present facts from the North Carolina precedent.          See id. at 370-

71.   As a result, we conclude that Commee has failed to show that

a genuine issue of material fact exists with respect to the

inherent danger of the steel erection at issue here.          We therefore


                                    13
affirm   the   district    court’s   conclusion     that    the   inherently

dangerous activity exception does not apply.5



                                     IV.

     Because the district court correctly concluded that Commee’s

evidence does not support recovery for him under any of his

asserted   theories   of   relief,   we    affirm   its   grant   of   summary

judgment to Nucor.



                                                                       AFFIRMED




     5
      Because we affirm the district court’s decision to grant
summary judgment on these bases, we do not reach Nucor’s
alternative grounds that Commee’s exclusive remedy is under the
North Carolina Workers’ Compensation Act or that the judgment can
be affirmed due to collateral or contributory negligence.

                                     14
