Vanoss v. BHP Copper Inc. – 1/8/2018

February 7, 2018

Arizona Court of Appeals Division Two holds that a mine owner does not owe a non-delegable duty to the employees of an independent contractor.

BHP hired an independent contractor, Tetra Tech, to refurbish an ore chute system as part of a mine refurbishing project.  Tetra Tech employee Vanoss was found dead at the bottom of a chute, apparently having fallen.  Vanoss’s family sued BHP for negligence and negligence per se. 

The Court of Appeals affirmed the trial court’s grant of partial summary judgment on the issue of duty of care, holding that BHP did not owe Vanoss a non-delegable duty of care and was not vicariously liable for Tetra Tech’s failure to abide by required safeguards.  Under Arizona law, a landowner who hires an independent contractor owes no duty to protect the independent contractor’s employee from the independent contractor’s negligence.  Nothing in Arizona’s mine-safety statutes alters this rule.  The statutes impose a duty on mine operators to operate a safe mine, but they do not prohibit mine operators from delegating that duty to an independent contractor.

The Court of Appeals also affirmed the judgment based on the verdicts from a jury trial, rejecting several arguments made by Vanoss’s family.  It held that the trial court correctly precluded the family’s mine-safety expert from testifying about opinions that depended on attributing vicarious liability to BHP for Tetra Tech’s failure to comply with mine-safety statutes and regulations.  The Court of Appeals further held that the trial court did not err by refusing to instruct the jury about mine-safety regulations and statutes and negligence per se because the proposed instructions did not distinguish between the duties retained by BHP and those that BHP had delegated to its independent contractors.

The Court of Appeals also held that the trial court did not abuse its discretion by excluding portions of a deposition even though BHP failed to object during the deposition.  Although Rule 32 of the Arizona Rules of Civil Procedure suggests that objections to testimony are waived by failure to object during the deposition when “the ground of the objection is one which might have been obviated or removed if presented at that time,” the waiver is not absolute.  The trial court retains discretion to redact portions of the deposition that are inadmissible under the rules of evidence.  The Court of Appeals concluded that all of the testimony at issue was either inadmissible under the rules of evidence, or exclusion was harmless because it would have been cumulative of other statements not redacted.

Finally, the Court of Appeals held that the trial court did not abuse its discretion by not ordering that BHP had waived its attorney-client and work-product privileges as a sanction for failure to timely comply with privilege-log requirements.  Rule 37(c) of the Arizona Rules of Civil Procedure authorizes sanctions for disclosure failures but does not enumerate waiver as an available sanction, let alone mandate waiver as a matter of law.

Chief Judge Eckerstrom authored the opinion of the Court, in which Presiding Judge Vásquez and Judge Eppich concurred.