                                                                           FILED
                            NOT FOR PUBLICATION                             JUL 16 2014

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


JUAN SALAZAR,                                    No. 13-35352

              Plaintiff - Appellant,             D.C. No. 1:11-cv-00016-CSO

  v.
                                                 MEMORANDUM*
A&J CONSTRUCTION OF MONTANA,
INC.,

              Defendant - Appellee.


                   Appeal from the United States District Court
                            for the District of Montana
                  Carolyn S. Ostby, Magistrate Judge, Presiding**

                        Argued and Submitted July 11, 2014
                                 Portland, Oregon

Before: PAEZ, WATFORD, and OWENS, Circuit Judges.

       Plaintiff Juan Salazar (“Salazar”) appeals from a jury verdict finding

Defendant A&J Construction of Montana, Inc. (“A&J”) not liable for injuries

Salazar sustained when he fell while working at an A&J construction project. At

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

        **  The parties consented to proceed before a magistrate judge. See 28
U.S.C. § 636(c).
the time of his fall, Salazar was not wearing his fall protection harness. The jury

found that although A&J was negligent, A&J’s negligence did not cause Salazar’s

injuries. This is a diversity jurisdiction action governed by the substantive law of

Montana. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

      Salazar contends that Montana law prohibited the district court from

admitting evidence that A&J imposed certain safety requirements on its

subcontractors. According to Salazar, the admission of such evidence permitted

A&J to argue that it had delegated to subcontractors its nondelegable duty under

the Montana Safety Act, Mont. Code Ann. § 50-71-201, to provide Salazar with a

safe work environment. See Olson v. Shumaker Trucking & Excavating

Contractors, Inc., 347 Mont. 1, 15 (2008).

      We need not decide this question of Montana law, because even if the

district court erred by admitting evidence that A&J imposed safety requirements on

its subcontractors, the error was not prejudicial. The jury found that A&J was

negligent – i.e., breached its duty – but that A&J’s negligence did not cause

Salazar’s injury. If the jury believed that A&J had delegated its safety duty to

another party, the jury could not have found A&J to be in breach of that duty.

Thus, it is not probable that the error Salazar alleges tainted the verdict. See

Mahone v. Lehman, 347 F.3d 1170, 1172 (9th Cir. 2003).


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      We also reject Salazar’s contention that Montana law precluded A&J from

raising a comparative negligence defense by introducing evidence of Salazar’s

failure to wear his fall protection harness. When an employer breaches its

nondelegable duty to provide a safe working environment, Montana law permits a

comparative negligence defense “if evidence demonstrates that . . . the worker has

some reasonable means or opportunity to avoid the hazard without endangering his

or her employment.” Olson, 347 Mont. at 18. Salazar had an opportunity to avoid

the hazard of falling without endangering his employment by wearing his harness.

Accordingly, the district court did not abuse its discretion by admitting evidence of

Salazar’s negligence.

      Finally, we reject Salazar’s contention that the district court should have

judicially estopped A&J from arguing that Salazar should have been wearing his

harness at the time he fell. Judicial estoppel may be applied where a party

advances a position that is inconsistent with a position the same party previously

persuaded a court to adopt. New Edge Network, Inc. v. FCC, 461 F.3d 1105, 1114

(9th Cir. 2006). Salazar contends that in its summary judgment briefing, A&J

advanced a position that was inconsistent with the argument that Salazar should

have been wearing his harness. We need not decide whether A&J’s positions were

inconsistent because the district court denied summary judgment without adopting


                                          3                                    13-35352
any of the positions that A&J advanced. Accordingly, the district court did not

abuse its discretion by refusing to apply judicial estoppel.

      AFFIRMED.




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