Vanoss v. BHP Copper Inc., 782 Ariz. Adv. Rep. 21 (App. Div. II, January 8, 2018) (J. Ekerstrom)

EMPLOYER IS NOT VICARIOUSLY LIABLE FOR INDEPENDENT CONTRACTORS' NEGLIGENCE IN CAUSING DEATH OF INDEPENDENT CONTRACTOR'S EMPLOYEE/EXCLUDING EXPERT TESTIMONY DEPENDENT UPON VICARIOUS LIABILITY APPROPRIATE/TRIAL COURT MAY REDACT DEPOSITIONS READ TO JURY AND IS NOT REQUIRED TO FIND A WAIVER OF ATTORNEY CLIENT PRIVILEGE FOR DISCOVERY ABUSE

Plaintiffs' decedent died from an apparent fall while working for an independent contractor responsible for refurbishing an ore chute for defendant.  A Pima County jury returned a defense verdict and plaintiffs' appealed from that and the denial of their motion for new trial.  The Arizona Court of Appeals affirmed.

The trial court did not err in granting BHP partial summary judgment.  A landowner who hires an independent contractor "owes no duty"  to protect the employee of an independent contractor from that contractor's own negligence. Although Arizona courts have recognized landowners may owe non-delegable duties to third parties for the tortious conduct of independent contractors, such duties do not extend to the employees of those contractors.

Precluding plaintiffs' expert from testifying to violations of certain federal mine safety standards was also proper where the foundation for such testimony was a finding of vicarious liability on behalf of BHP for the independent contractor employer. Because the trial court properly granted summary judgment on the issue of vicarious liability there was no basis for this testimony.

Further, a trial court has the discretion to strike or redact inadmissible deposition testimony based upon any evidentiary ground, even objections to form which otherwise would be waived und Rule 32 of the Arizona Rules of Civil Procedure if not timely made at the deposition. Here testimony that BHP was warned of the dangerous fall condition was properly excluded where it was unclear whether the notice came before or after plaintiffs' decedent's death.

Finally the trial court has discretion to award fees and other sanctions short of finding a waiver of the work product and attorney client privilege for an unduly late and incomplete privilege log disclosure.