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SETH, Circuit Judge. We previously considered this case in Sewell v. Phillips Petroleum Company, Inc., Nos. 76-1030-31 (10th Cir. March 21,1977). We held there that the crucial “retained control” jury instruction for imputing liability to an owner for injuries caused by a negligent independent contractor was erroneous, and that the evidence clearly failed to support plaintiff’s alternative theories for imposing liability on the defendant. We reversed the general verdict in favor of plaintiff and remanded for a new trial. The parties stipulated to the trial judge on remand that no issue remained to be determined and agreed to submit the liability issue to the trial judge on the basis of the trial record. They also agreed that if the trial judge found in favor of plaintiff on the liability issue, then the case would proceed to a jury for a determination of damages. Since there was no further evidence to be presented, the trial judge entered judgment for the defendant in light of our holding.
Appellant complains here that he was éntitled to judgment as a matter of law, and that our previous holding relied on misstatements of the facts in the defendant’s brief. He also maintains entitlement to remand on the punitive damages issue which we considered and denied in our previous holding.
We believe it unnecessary to reiterate the relevant facts because they are discussed in detail in our previous holding. The case involved a suit for damages for injuries sustained by plaintiff while working in an excavated eleven-foot hole. Plaintiff was employed by Harvey W. Eckman & Associates which had contracted with the defendant to install 10,000-gallon gasoline storage tanks at defendant’s gasoline stations. Plaintiff’s principal theory at trial was that defendant “retained and exercised control” over the contractor’s work and was therefore liable for plaintiff’s inju
*276 ries. The relevant jury instruction failed to explain the necessity for “active participation” by the defendant as required by Utah law. United States v. Page, 350 F.2d 28 (10th Cir.); Dayton v. Free, 46 Utah 277, 148 P. 408. We noted further that no evidence presented at trial indicated the defendant could be held liable under this theory or the alternative theories.Appellant raises here the same issues discussed previously. No further evidence was produced on remand. We see no purpose in repeating the basis for our previous holding. Appellant’s arguments are simply unpersuasive.
We do address, however, the contention that the previous holding relied on misstatements in the defendant’s brief. The record clearly shows a lack of evidence supporting the “retained control” theory. Furthermore, oh plaintiff’s alternative business invitee theory, the danger arose from the work performed on the premises and was readily apparent to the plaintiff. Defendant was under no duty to guard against such an obvious danger. Texaco, Inc. v. Pruitt, 396 F.2d 237 (10th Cir.). Appellant’s contention has no merit because the record provides the evidence necessary for determining that defendant was not liable as a matter of law.
AFFIRMED.
Document Info
Docket Number: 77-2072
Citation Numbers: 606 F.2d 274, 1979 U.S. App. LEXIS 12266
Judges: Seth, Doyle, McKay
Filed Date: 8/24/1979
Precedential Status: Precedential
Modified Date: 10/19/2024