Petition — Sewell v. Phillips Petroleum Co.
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| Supreme Court, U. a
Fil ED
DEC 8 1980
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MICHAEL ROD
in the Supreme Court of the
Hnited States
OcToBER TERM, 1980
GLENN H. SEWELL,
Petitioner,
v.
PHILLIPS PETROLEUM COMPANY,
a Delaware Corporation,
Respondent.
PETITION FOR A WRIT OF CERTIORARI
TO, OR FOR AN ORDER REQUIRING
EN BANC REVIEW BY, THE
UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
SAMUEL KING
301 Gump & Ayers Building
2120 South 1800 East
Salt Lake City, Utah 84106
Attorney for Petitioner,
801-486-3751
RAY R. CHRISTENSEN
900 Kearns Building
Salt Lake City, Utah 84101
Attorney for Respondent
801-355-3431
QUESTIONS PRESENTED FOR REVIEW
In this case, one party or the other submitted an
intentionally misleading brief in order to lead the Circuit
Court into a mistaken opinion. The Court acknowledged
this happened, but refused to review to determine
whether its opinion was in error, whether it had followed
the false brief, and so refused to review whether it had
done justice or injustice.
From this factual context, the following issues arise:
I. When an appellate court buys the Brooklyn
Bridge from a man in a checkered suit, what duty has
it to rectify the situation
II. Is it not the duty of an appellate court to
wrestle with the tar baby of attorney misconduct, when
only by doing so can it be assured that it has not done
injustice to a litigant?
III. Is it appropriate for an appellate court, when
it acknowledges that it does not know the facts of the
case due to it being misled as to them by one attorney
or the other, to dispose of the case on the basis that by
referring the matter of misconduct to an outside agency
over which it has no control, here a Bar Commission,
it is doing justice ?
IV. When an appellate court has to face the fact
that it has been misled, is it appropriate for that appel-
late court to refuse to review the Findings of Fact of
the trial judge on second, non-jury trial, and to deny
any hearing on the issue of fraud on the court on a
it
motion pursuant to Rule 60(b) (3) FRCP.
V. Due process. As a litigant’s interest in a judg-
ment is a constitutionally protected property right, does
due process entitle him to have his case factually re-
viewed on appeal?
VI. Encouraging candor by litigants. Whether it
is the duty of an appellate court, when it acknowledges
that one party or the other has attempted to mislead it,
to determine what misconduct has occurred and deal
with the offenders appropriately, so that such conduct
is discouraged, so that the stature of the law and the
courts is not diminished and to serve as a warning that
appellate briefs must be candid so appellate courts can
more expeditiously and accurately perform their func-
tions.
VII. Punitive damages. Whether punitive dam-
ages are not appropriate to deter an intentional industry-
wide labor practice expressly forbidden by safety laws,
under circumstances in which each violation has a low
probability of death or injury, but the violations are re-
peated so many thousands of times each year that mathe-
matically such consequences are bound to occur
VIII. As the United States Supreme Court acts
as initial reviewer of errors occurring in the first instance
in the United States Circuit Courts, shouldn’t Certiorari
or other appropriate relief, as here return to the Circuit
Court with an order requiring an en banc review, issue
more readily than in cases where appellate courts have
had prior opportunity to correct error occurring at lower
judicial levels ?
111
IX. Does an attorney have the duty to persevere
when his client is the victim of judicial injustice both in
order to do justice to his client, and also to protect the
judicial system of which he is a part?
X. Can it really happen in the federal courts of the
United States that a party can lose a legitirnate case
because an appellate court cannot bring itself to admit
it was misled, and that counsel before it have learned
how to manipulate it?
XI. The Federal Rules of Appellate Procedure,
28(c) FRAP, allow a respondent to freely reject and
restate the facts of a case. Should not this rule be re-
vised to require the respondent, as many state courts
require, to specifically cite to the record for each state-
ment he denies and for such substitution he proposes,
so as to bind him tightly to the facts and make it easier
for the reviewing court to pinpoint and resolve disputes,
and to identify the parties who stray from the record?
(See Utah Rules of Civil Procedure, 75(p) (2) ).
Vv
TABLE OF CONTENTS
Page
OPE BPE MUPEE Ee MEME APE ovcevcccecbiccescsnseccssseceardcuccscecaneces 2
MT IY orice ccscckcccccccnsesacsonacsusnckceeccsceceses. 2
QUESTIONS PRESENTED FOR REVIEW | i
PROVISIONS OF LAW uno... ccccccccccsccesesedecesese. 2
EMRE Me NSIe De OR ACTS occncncncs on cscccccscsesececess. es 3
FEDERAL JURISDICTION IN
MOONE RIUM PANO cov ccdcncncnsesiccesececncsseesecscrcarsz 22
REASONS FOR ALLOWANCE OF WRIT .. 22
CONCLUSION
APPENDIX A-.
First opinion of the Tenth Circuit
I I oe oars cchesnrverccossccssecedens A-!
APPENDIX B—
Opinion of the District Court for the
I ci aia ethaentecce B-1
APPENDIX C—
Second opinion of the Tenth Circuit
PIE OE Fe iano cscs sasctcccceseseceascccoseccose C-1
APPENDIX D—
Uniform Building Code, Chapter 70,
Excavating and Grading 2.0.0...0......cccccccecesseceeee. D-1
APPENDIX E—
OSHA Regulations 2.0.0.0... ccc cccecceccssesseeoeeoes 1-1
Page
APPENDIX F—
Salt Lake Tribune Newspaper Article ............ k-1
APPENDIX G —
Circuit Court Order, Sept. 10, 1980.00.00... G-1
CASES CITED
Buehler v. Whalen and Ford Motor Company,
374 NE2d 460 (Ill. 1977) 000.000.0000 24
Dartmouth College v. Woodard,
a Ltt... . 26
Dayton v. Free, 148 P 408 (Utah 1937) 17
Davis v. Summerfield,
45 SE 654 (N.C. 1908) ooo ccccccccccecccceeeees 17
Funk v. General Motors Corp.,
220 NWe2d 641 (Mich. 1974) 0000. 17
Green v. Shepherd Construction Co.
(N.D. Ga.) as cited in Bollard v.
Volkswagon of America, Inc., 56 FRD 569
at note pp. 582-583 0... scheint 23
Henigan v. Atlantic Refining Co.,
282 FS 667 (E.D. Penn. 1967) _....... 17
Lehnen v. Dickson, 148 U.S. (1893) at 26
Lindler v. District of Columbia,
502 F2d 495 (D.C. Cir., 1974) 0. 17
Nauman v. Harold K. Beecher & Assoc.,
467 P2d 610 (Utah 1970) 0 18
Page
Nelson v. Mecham, 155 F.1 (9th Cir.) 2.0.0.0. 19
Olson v. Hayden Holding Co.,
eS | 17
Parrott v. Ford Motor Company,
52 FRD 120 (D.C. Mo. 1969) ....cccccccccccceececoe. 24
Percival Construction Co. v. Miller and Miller
Auctioneers, 532 F2d 166 (10th Cir., 1976) .... 8
Quinones v. Township of Upper Moreland,
oe vee tee Oe. 2907) .............................. 17
Ross v. Hartman, 139 2d 14 (D.C. App. 1943) .... 18
Rozier v. Ford Motor Company,
578 F2d 1882 (5th Cir. 1978) 0.0... 23
Semanchuck v. Fifth Ave. & Thirty-Seventh St.
Corp., 49 NE2d 507 (N.Y. 1948) oo... 18
Sposito v. Zeitz, 127 NW2d 45 (Wis. 1965) .......... 17
Summers v. Crown Constr. Co.,
458 F2d 998 (C.A. 4, 1974) ooo. ecccccccccceccccccseeee 17
Tennant v. Peoria & P.U.R. Co.,
821 US 29 (1944), reh den 321 US 802 ............ 8
Trecartin v. Mahony Troast Constr. Co.,
87 A2d 349 (NJ. 1952) occ ccccceeeccceccseecsseeseees 17
U.S. v. Jefferson Electric M anufacturing Company,
EY SOTSSISS a 27
U.S. v. Ohio Power Co., 353 US 98 ....... 19
Vit
Page
CONSTITUTIONAL PROVISIONS
Fifth Amendment, United States Constitution .... ii, 26
RULES
Rule 75(p) (2), Utah Rules of Civil Procedure ...... iii
Rule 00th) (8) PCP ooo 1, 2,3
PE M,N Reichman, iii
STATUTES
a te 22
OP UG SRE ah TO a 1, 2
AUTHORITIES
41 AmJr 2d, Ind. Contractors, §83, 37 ...........000.00-.. 18
57 AmJr 2d, Negligence, §24, 25, 36, 40, 239 .......... 18
Restatement of Torts, 2d Edition,
§410, 413, 415, 424, 427, 496EB ooo. 18
MISCELLANEOUS
Uniform MI Ra tno OE CO 8, 12
Occupational Safety and Health Act
NT 8, 12
Bee eae
in the Supreme Court of the
Hnited States
OctTospER TERM, 1980
GLENN H. SEWELL,
Petitioner,
V.
PHILLIPS PETROLEUM COMPANY,
a Delaware Corporation,
Respondent.
PETITION FOR A WRIT OF CERTIORARI
TO, OR FOR AN ORDER REQUIRING
EN BANC REVIEW BY, THE
UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
Petitioner, Glenn H. Sewell, respectfully prays
that a Writ of Certiorari issue to review the denial of
his motion for hearing pursuant to Rule 60(b) (3),
FRCP, alternatively for relief under the “All Writs
Act,” 28 USC §1651(a), (b).
Alternatively Petitioner seeks the court enter its
Order requiring the Circuit Court grant Petitioner an
2
en banc hearing of his motion for hearing under Rule
60(b) (3) and 28 USC §1651(a), (b):
Petitioner believes an order of this court requiring
the en banc hearing in the Circuit Court will be ade-
quate for his purposes.
OPINIONS BELOW
The two opinions of the Court of Appeals, unre-
ported, appear in the appendices hereto, the first opin-
ion being Appendix A, and the second as Appendix C.
The opinion of the District Court for the District of
Utah, Central Division, appears as Apendix B.
The Circuit Court order denying petitioner a hear-
ing pursuant to Rule 60(b) (3), FRCP, or relief pur-
suant to 28 USC 1651(a) (b), appears as Annex G.
JURISDICTION
The order of the Court of Appeals, Tenth Cir-
cuit, was dated and entered September 10, 1980, and
this Petition for Certiorari is timely filed within 90 days
of that date. This Court’s jurisdiction is invoked under
28 USC, §1254, 11.
PROVISIONS OF LAW
CONSTITUTION OF THE UNITED STATES,
AMENDMENT V.
“No person shall be . . . deprived of life, liberty,
or property without due process of law... .”
UNIFORM BUILDING CODE (UBC) is Ap-
pendix D.
3
OCCUPATIONAL SAFETY AND HEALTH
ACT (OSHA) is Appendix E.
28 USC §1651(a) (b).
Rule 60(b) (3), FRCP.
Rule 75 (p) (2) Utah Rules of Civil Procedure.
STATEMENT OF FACTS
As petitioner had a fair trial, but was denied due
process in the Circuit Court, this Statement of Facts
must cover the actual facts of the accident, and also
the events on appeal that led to dismissal of his case.
The interstices possible to alter a cases facts at
the appellate level are the crux of this petition.
At trial, the judge and jury hear the testimony, and
counsel are locked into argument and law consistent
with that testimony.
To the contrary, on appeal the court knows nothing
of the facts, and must rely on the briefs for the facts
and for the law appropriate to those facts.
This case is a study in how an appellate court can
be manipulated.
It is also a study in how difficult it is for the appel-
late court to acknowledge that it can be manipulated.
Here, a jury verdict, subsequently factually affirm-
ed by the trial judge at second trial rested on the testi-
mony of the respondent's own executives and employees.
The prevailing party, petitioner here, appealed,
even though he had won, claiming that not only should
he have had the general and special damages awarded
4
by the jury, but also punitive damages which the trial
judge refused to allow to go to the jury.
The appeal was important to respondent, the com-
pany, because the precedent to be announced by the
United States Circuit Court of Appeals would probably
stop a financially rewarding work practice that the com-
pany had carried out continuously for many years. The
practice would be stopped by the circuit decision be-
cause it was illegal and unsafe, producing deaths and
injuries. The facts of the case themselves are quite clear,
not complex, and they support the injured workman,
petitioner.
Recognizing the complexities an appellate court has
in evaluating facts, the company, through its lawyers,
simply filed a fictional brief. In that brief, every im-
portant fact was intentionally altered, the workman’s
theory of law which was valid, was modified into a
strawman theory which was not valid, the fact that the
work was illegal was supressed in the company’s brief,
so that in sum the Circuit Court was faced with a brief
setting forth a set of facts unrelated to the facts at trial,
and wrote its opinion not realizing that the work project
was illegal, and did not realize that the company in-
sisted the work be done, by the independent contractors
that it used, in that illegal manner.
The Circuit Court relying in good faith chose be-
tween two irreconcilably conflicting briefs by adopting
the fictional brief and wrote its opinion based thereon.
This resulted in an appellate opinion contrary to the
jury verdict.
5
On non-jury retrial, the trial judge summarized the
facts showing them clearly to be in favor of the working
man and opposed to the company’s position. The trial
judge, however, referred the matter back to the Circuit
Court for further consideration stating that he was
bound by is opinion of dismissal.
On second appeal, heard by a three judge panel,
the Circuit Court had before it the Findings of Fact
of the trial judge and also Petitioners brief meticu-
lously outlining the falsities of the company’s position in
its prior brief. It affirmed its first opinion.
Based thereon, one judge dissented stating, “There
has been a miscarriage of justice.”
The concurring judge agreed factually with the dis-
sent but nevertheless sided with the writer of the ma-
jority opinion for two reasons. First, he acknowledged
that the briefs were irreconcilable and that one attorney
or the oth r had misled the court, but dealt with this by
referring the matter to the State Bar Commission of the
attorneys as a solution to the ethical problem. In so
doing he lost sight of the fact that he was denying
justice to one party and rewarding the misleading party
with a judicial victory. Second, he ruled that the second
appeal was simply a belated attempt at rehearing of the
first appeal and so ineffective. Nevertheless, he sided
factually with the dissenting opinion.
The writer of the majority opinion had written the
original majority opinion, and refused absolutely to re-
view the findings of fact of the trial judge on second
6
trial, stating remariably that there was no new evidence
to be reviewed.
On subsequent submission of the matter to the Utah
State Bar Commission, it refused to review the conduct
of the Company's attorney, he being a past president of
the State Bar Association, (see Appendix F) but
bought Petitioner's attorney before it on charges of un-
ethical conduct for having filed a brief in which he com-
plained of misconduct of opposng counsel. After ex-
haustive factual hearing, the attorney was exonerated,
it appearing that all of his charges of misconduct were
specifically documented.
Accordingly, the case is one where a jury, a trial
judge, a State Bar Commission and two appellate judges
acknowledge that the petitioner has a_ legitimate
case and is entitled to his verdict.
Only the single judge author of the majority opin-
ion persists alone in the view that the case was properly
decided by him on the first appeal.
When Petitioner filed his Rule 60(b) (3) Motion
on review, the Circuit Court, acting though two judges,
the majority and concurring judges, refused to recon-
sider the matter nor to submit it to the Circuit Court
for en banc review as prayed, and summarily dismissed
the working man’s motion without hearing before a re-
sponsive brief from Respondent had even been filed.
Petitioner's back was broken by a cave-in of a dirt
excavation wall 11 feet high, at a service station owned
>
by Respondent. The excavation was to be used to house
a gasoline tank. It’s walls were vertical, neither sloped
nor shored.
To avoid repetition, the reader is referred to the
findings of Trial Judge Anderson, Appendix B and to
the dissenting opinion of Circuit Judge Doyle, Appen-
dix C. The heart of these findings was stated by Judge
Anderson as follows:
“Here the defendant company had vast experi-
ence in excavation and installation work, had an
engineering department trained in precisely this
kind of work and in this very community had pre-
viously contacted for many such jobs and been
familiar with the local law requiring sloping. Not-
withstanding, the company drew plans for the
work leaving out the sloping, an expensive addi-
tion, and put it out to bid. The trial court was
persuaded that under such circumstances, where
the company gained an economic benefit from
putting out a job for bid with a drawing of the
work without sloping, an issue of whether this
was negligence of the company should be pre-
sented to the jury, the theory being that such may
be an exercise of control that would deprive the
company of protection of the contract placing
responsibility with the independent contractor,
but without making the company the plainiff’s
employer.”
The fundamental concept to be applied in under-
standing the factual problems at the appellate level is
that on appeal, the party not entitled to favorable re-
view candidly admit evidence supporting the opposing
party. Petitioner was entitled to such favorable review.
8
Tennant v. Peoria & P.U.R. Co., 8321 US 29 (1944),
reh den 321 US 802, Percival Construction Co. v. Mill-
er and Miller Auctioneers, 532 F.2d 166 (10th Cir.,
1976).
The evidence taken a: trial which led to Judge
Anderson’s factual conclusions was not admitted by re-
spondent on appeal. As conclusions grow from evidence,
this led the Circuit Court to wrong conclusions when
it adopted the companies brief as the basis for its de-
cision.
This specific testimony must be reviewed.
The job was illegal.
The Uniform Building Code was first enacted
in 1924, and since has been generally adopted nation-
wide. It requires as a mandatory condition that no
excavation over 5 feet deep be made without first
obtaining an excavation permit. This permit will not
issue unless the application indicates adequate detail
for sloping or shoring to insure that the excavation can
be done safely. OSHA has similar requirements. Be-
cause OSHA is enforceable by government, not private
litigants, its use at trial was evidentiary of safe labor
practice rather than the mandatory standard imposed
by the UBC.
Because the excavation admittedly conformed with
neither the Uniform Building Code nor OSHA, the
company stipulated at trial to pertinent excerpts from
9
those being received as physica! exhibits by the jury.
They were appended verbatim to petitioner's original
brief on appeal, and are appended here as appendices
“D’ and “E.”
The independent contractor, Mr. Eckman, hired by
the Company to do the job was per se negligent due to
his violation of the safety law.
The only question at trial was whether respondent
shared in Kckman’s negligence.
The company’s brief on appeal never mentions
either the UBC or OSHA. This was for a purpose.
Its intent to mislead the Circuit Court is clear. The
UBC was the law of the case. There was no possible
legitimate manner in which the company could omit
dealing with it in its brief. To do so though could well
have led the appellate court to find the company was
liable on a theory of non-delegable duty imposed by law.
Omitting this law from its brief was comparable to
an auto accident litigant hiding on appeal that he ad-
mitted at trial that he ran a red light, and instead pre-
senting his case on appeal as one of negligence being
solely a matter of reasonable conduct as the only legal
issue in a case with no traffic controls present.
In this, the company brilliantly succeeded.
Having been guided away from the basic, manda-
tory safety law of the case, the Circuit Court addressed
itself to customary negligence issues such as the exist-
10
ence of known dangers, and never recognized the cen-
tral fact that the work was specifically illegal.
The Circuit Court in its opinion, made no refer-
ence to the Uniform Building Code at all, and indicated
no awareness that the project was illegal from the out-
set because of the failure to obtain the excavation
permit, and in process of work by failing to have the
excavation walls either sloped or shored.
In this, it followed respondent's brief which made
no reference at all to the Uniform Building Code, but
referred only vaguely to “technically required local ord-
inances.” This omission of the Uniform Building Code
and its specific requirements is reflected in the appellate
opinion which indicates generally that if any laws were
to have been complied with the contractor was to havc
done that.
Just as the Circuit Court failed to understand the
basic and specific illegality of the project, its finding
that respondent could reasonably rely on the contractcr
to comply with whatever general laws there were, was
also based on respondent’s brief which so stated, rather
than the evidence.
On this point, the evidence was substantial. The
contractor, Mr. Eckman, had over 30 years’ experience
in this specific line of work. Respondent's personnel
who testified were a construction inspector, Mr. How-
ell, with over 20 years’ experience, his superior, Mr.
Neuzil, in charge of these projects for three states, and
ll
his superior, Mr. Cameron, who was in charge of the
entire Western States Marketing Region.
All of these witnesses testified that without a single
exception respondent had never required the mandatory
excavation permit from its contractors.
This course of conduct covered over 20 years and
thousands of projects. Throughout that period, the com-
panies written contract required its contractors to obtain
the permit, but the company never in practice enforced
the contract, but instead invariably approved and paid
for work done illegally without the permit.
Accordingly, this contractual provision was abso-
lutely waived by Respondent. Its purpose was to avoid
the cost of sloping or shoring, and the simple mechanism
it used was to avoid giving notice of its excavations to
local government. It had learned it could succeed in
this practice because as the excavations are only open
one or two days, they would escape inspection.
For Respondent to admit either that the work was
illegal, or that it invariably required that the work be
done that way, would be virtually a confession of judg-
ment, as it would not then be entitled to the innocent
landowners exemption from liability.
On appeal, to avoid that consequence, the company
stated repeatedly that it relied in entire good faith on
the contract provision requiring the contractor to “ob-
tain all necessary permits,” and in good faith, believed
he would do so.
12
In so stating, the company kicked 20 years’ of experi-
ence under the carpet, and falsified the testimony of
its own personnel. Its submitted to the appellate court
facts that would win even though they were contrary
to the testimony of its own witnesses.
Thus, the appellate court’s finding that “Eckman
was under a contractual duty to comply with proper pro-
cedures,” is mistaken, a vital mistake of fact which
changes the entire posture of the case.
The appellate court failed to realize that the written
contract with proper immunizing language for respond-
ent, had no function other than to immunize, because it
had no relationship at all to respondent's invariable,
actual trade practice.
Perhaps the most startling example of intentional
falsifying bore on the issue of illegality of the work as
found by the trial judge to be known by the company.
The UBC and OSHA requirements are part of
standardized nation wide law. Both Mr. Cameron and
Mr. Neuzil testified precisely that they knew these re-
quirements and knew this job was illegal as were all the
jobs like it. UBC is, after all, “Uniform.”
The company could not admit it knew the job was
illegal and still maintain its posture of good faith reli-
ance that it believed the job was proceeding legally.
Accordingly, in an incredible distortion of the
record, it stated in its appellate brief that it did not
know and had no reason to know the “technically re-
13
quired local ordinances” and left these, if any, to the
contractor. The Circuit accepted this as true.
Having disposed of the specific requirements of
law as being the legal standard, the company had to
persuade the appellate court that there was no claim
against it arising for negligence from known dangers.
It did this by falsifying the facts relating to the
accident itself.
The original Circuit Court opinion found that the
work project was safe, in stable soil, and had no in-
herent hazards. In so finding, again it quoted respon-
dent's brief which stated, “There was no evidence as to
the cause of the cave-in,” that the excavation was in
“clay, which is stable,” that no person who saw the
excavation was aware of any hazards and that the ex-
cavation was safe.
Again, the testimony at trial was different from that
claimed by defendant.
Petitioner had a key witness, qualified as an expert
in soil mechanics, who testified that cave-ins are inevit-
able in excavations, the only question being whether
they will occur when a worker is in the excavation doing
his work of leveling its base so that the fuel tank can
sit solidly. The expert’s testimony was that moist soil
is plastic, and that almost all underground soil is moist.
He further testified that because soil weighs over 100
pounds per cubic foot, the pressure applied at the bot-
14
tom of an 11 foot excavation by the weight of earth
above it acts on the plastic character of the bottom earth
to force it to bulge out into the unsupported area. As
it bulges, it moves downward separating it from the
earth above, which then caves in.
This hazard analysis was confirmed by respondent’s
Mr. Neuzil, who has a degree in engineerng.
Mr. Neuzil testified on direct examination as a re-
spondent witness, that he thought the excavation safe.
On cross-examination, he not only made the above
quoted admission of his knowledge of the hazards of
cave-ins in general, but also admitted that he had been
so concerned about the safety of this particular excava-
tion that he had gone by the night before, but never-
theless did nothing, because he was bound by the in-
dustry practice of never sloping or shoring.
Again, the company had a problem, as to admit
that the project was unsafe, and it knew it was unsafe,
would probably lose the case.
Accordingly, it hid this evidence, and in its brief
on appeal, urged the project was safe as follows.
Petitioners key expert completely disappeared
from respondent’s brief, his testimony never mentioned,
and the impeaching izstimony by Mr. Neuzil was sim-
ilarly omitted. This, in turn, led the Circuit Court to
its mistaken conclusion that the work project was safe.
In fact, it stated,“ Mr. Neuzil was concerned about the
15
safety of an open pit and felt the excavation was safe
to work in.” It entirely missed the actual evidence.
Yet another instance of misleading is that Judge
Andrson and Judge Doyle both referred to respondent's
economic gains by omitting sloping and shoring. At
trial, appellant proved respondent had economic control
of the manner of work.
The Circuit Court stated, to the contrary, that re-
spondent paid for sloping and shoring. Respondent's
brief so claimed. What was the evidence?
The contractor, Mr. Eckman, had 42 of these jobs
to do at the time for respondent, had completed and
been paid for a number of them, and all had been un-
sloped and unshored.
Mr. Neuzil added to this. He prepared the draw-
ings and costs for the jobs, and then Mr. Cameron ap-
proved these before they were let out for actual bid.
Both men admitted that the jobs made no allowance for
the cost of sloping or shoring, made no allowance in the
size of excavation shown in the drawings for the space
involved in sloping or shoring, and any bid including
the cost of sloping and shoring would be too high and
not accepted by the company.
Mr. Mathis, partner of Mr. Eckman, testified that
if he included the cost of sloping and shoring in a bid,
he would not get the job, and if he included the cost _
16
as an extra during course of work, he would not be paid.
Thus, Judge Anderson's and Doyle’s findings are
supported by the record, while the Circuit Court, led by
respondent, is clearly in error on the vital point of re-
spondent paying for sloping or shoring.
Mr. Cameron was in charge of the department
which paid the contractors. He admitted that he
couldn't remember a single instance in his entire
experience with respondent in which he had paid for
the full scale sloping or shoring required by law.
Why did the company state in its brief that it would
pay for the cost of sloping or shoring when the evidence
was opposite
Again, this is simply another pivotal fact. The im-
portance of this fact cannot be overstated.
If the company admitted that, through the eco-
nomic coercion of refusal to pay for safety work, it knew
its contractors would do the project without such work,
then its claim that it expected the contractors to do the
work safely would be utterly impeached. This would
lead it to liability on the theory that it had an actual
and effective control of the unsafe manner of work by
control of the economic circumstances under which the
work was done. The Circuit missed this issue too.
The law considered by the Circuit Court and ap-
plied by it in its original opinion had similar miscon-
ceptions.
17
Petitioner had made no claim that respondent had
actual physical control of the contractor during the day
to day work. Petitioner’s theory was that such was im-
material because the character of the work had been en-
tirely shaped by respondent's plans, and economic
policies.
The knowledgeable landowner is liable when, as
here, every act done by the contractor was approved by
the landowner, if such acts are illegal or unsafe.
Funk v. General Motors Corp., 220 NW2d 641 (Mich.
1974)
Olson v. Hayden Holding Co., 70 P2d 463 (Utah 1937)
Dayton v. Free, 148 P 408 (Utah 1914)
Trecartin v. Mahony Troast Constr. Co., 87 A2d 349
(N.J. 1952)
Henigan v. Atlantic Refining Co., 282 FS 667 (E.D.
Penn. 1967 )
Quinones v. Township of Upper Moreland, 293 F 2d 743
(3d Cir., 1961)
Sposito v. Zeitz, 127 NW2d 45 (Wis. 1965)
Summers v. Crown Constr. Co., 453 F2d 998, (C.A. 4,
1974)
Lindler v. District of Columbia, 502 F2d 495 (D.C.
Cir., 1974) .
Davis v. Summerfield, 45 SE. 654 (N.C. 1903)
18
Semanchuck v. Fifth Ave. & Thirty-Seventh St. Corp.,
49 NE2d 507 (N.Y. 1943)
Nauman v. Harold K. Beecher & Assoc., 467 P2d 610
(Utah 1970)
Ross v. Hartman, 139 F 2d 14 (D.C.App. 1943)
41 AmJur 2d, Ind. Contractors, §33, 37
57 AmJur ud, Negligence, §24, 25, 36, 40, 239
Restatement of Torts, 2d Edition, §410, 413, 415, 424,
427, 496E
In respondent’s brief, it omitted petitioner's cited
cases, but instead set up a straw-man in which the issue
at trial was actual physical control by respondent of the
contractor, demonstrated that petitioner had not proved
this, and so argued that it was entitled to a reversal of
the jury verdict.
The Circuit Court in its opinion did not mention
petitioner's cases but only respondent's cases, based its
decision on lack of actual control, and commented in
passing that petitioner's other legal theories had not been
established. It stated factually that “on this record”
petitioner did not have a case.
That petitioner’s brief simply was not given ade-
quate reading by the Circuit Court when it wrote its
opinion is clear.
The matter now turns to post-appeal events.
19
On receiving the initial Circuit Court opinion, peti-
tioner chose to return in compliance with its mandate
to the trial court. Because the Circuit Court entirely
missed the salient facts of the case and petitioner's
theory of law, petitioner's research convinced him that
Judge Anderson could act in regard to those, the man-
date applying only to facts and theories it had covered.
U. S. v. Ohio Power Co., 353 US 98; Nelson v. Me-
cham, 155 F.. 1 (9th Cir.).
On retrial, Judge Anderson dismissed stating spec-
ifically that he had to do so because he had no choice
under the appellate opinion, but then set out the actual
facts of the case to serve as a guide to the appellate
court on its reconsideration, these facts being in dia-
metric opposition to those originally found by the Cir-
cuit and as submitted to it by respondent.
On the second appeal, petitioner submitted a brief
very precisely documenting the discrepancies between
the trial testimony and respondent's brief.
In its final and second opinion, the Circuit Court
dismissed petitioner's case with prejudice stating that
it had previously ruled on the facts and did not need to
review them. It refused to consider, review or even
mention Judge Anderson’s findings of fact.
The concurring opinion acknowledged that Judge
Doyle's dissent was prot#bly accurate on the facts, but
indicated that it was not the duty of the appellate court
to review conflicting charges between counsel and so
concurred to form a majority.
20.
The dissenting opinion found that on the facts peti-
tioner had an entirely legitimate case, that he had been
denied justice in appellate court and that his case should
be reinstated.
Petitioner then filed for Writ of Ceriorari to the
Supreme Court which was denied.
Petitioner then filed again with the Circuit Court
for review based on fraud on the court and himself.
It is from the peremptory Genial of that motion
that he now petitions for relief.
Two other actions of the Company on appeal serve
to illustrate the practiced case, and immunity from re-
prisal, with which it maneuvered the Circuit Court.
One was that it filed a motion to dismiss the first
appeal of petitioner on the ground that it was improp-
erly filed.
Petitioner responded with a short brief that pointed
out that the companies own citations supported peti-
tioner, and that the motion was groundless.
The Circuit Court agreed as it dismissed the com-
panies motion per curiam.
In so doing the court awarded no fees, imposed
no sanctions.
Thereby the company was the winner as its mo-
21
tion had stalled the legal machinery for months. One
of the major advantages a corporate litigant has over an
individual is staying power, and here the company gain-
ed a time advantage. The delay also gave it secondary
gain — if it couldn't avoid an adverse ultimate prece-
dent, by delay it could continue its work practice longer.
This gain persists today, five years after trial.
The second action of maneuver was the use of
Workmans Compensation laws as a defense to the law-
suit.
The company raised it as a defense in its answer
It then waived the issue at pretrial and trial because it
could only claim to be a third party beneficiary of the
Workmans Compensation ban against suit against an
employees employer if it admitted that it was in actual
control of the immediate employer.
As the company was not willing to concede this
actual control, it abandoned the defense, producing no
evidence on it at trial, submitting no instruction on it,
and not preserving it previously as a legal issue at pre-
trial.
Having thus utterly waived Workman’s Compensa-
tion as a defense at trial, what did the company do
with that defense on appeal when it needed any defense
it could find ¢
Right.
The company put a third of its appellate brief into
Workman’s Compensation as a viable defense.
yr
22
In so doing it made no mention of its having waived
the issue at trial, no mention of any kind, even though
a party on appeal has a clear duty to bring new or omit-
ted issues to the attention of the appellate court, so that
it can consider not only the issue, but also its standing.
Petitioner filed a rebuttal brief documenting the
waiver, which the Circuit Court accepted because it has
no word on Workman’s Compensation in its opinion.
The companies tactic was justified. It risked noth-
ing. The appellate court didn’t touch the problem of
the companies having deliberately raised an issue as
live rather than dead.
These last two examples don’t deal now directly
with the merits of the case, having been defeated. Their
only relevance is that they show again the willingness
of the companies attorneys to stop at nothing in their
attempt to win.
They also show why lawyers do this — there is no
penalty.
FEDERAL JURISDICTION
IN F<(RST INSTANCE
This case originally was brought in the United
States District Court for the District of Utah, Central
Division, invoking jurisdiction through 28 USC §1332.
REASONS FOR ALLOWANCE OF WRIT
In his concurring opinion, Judge McKay wrote:
“In a growing number of cases, adversarial riv-
alry has degenerated into accusations of un-
ethical conduct.”
23
There was a time after the Rules of Civil Pro-
cedure were first enacted when they served as a breath
of fresh air cleaning the body juris of stagnant growths.
Their high purpose was stated at the very outset
as Rule 1, which has three simple, magnificent, adjec-
tives. Civil litigation was to be “just,” “speedy,” and
“inexpensive.”
Since then, many attorneys and clients have real-
ized that the goals of their particular client are best
served by reversing the three concepts of Rule 1.
In the area of corporate law, for example, a corp-
oration which has a defective product will not want to
yield readily the complete details of the defects. As a
matter of corporate policy, it will want to do everything
in its power to obstruct verdicts against it. This is not
improper on the part of the corporation. It is not bound
by a professional code of ethics, but rather has respons-
ibilities to its stockholders.
Such a corporation will want an attorney who will
serve this corporate policy.
The question is whether the attorney will comply,
or will impose his professional standards.
As an example, the following are four recent cita-
tions involving one of the most respected American
corporations. In these opinions, it could scarcely receive
stronger adverse judicial language. However noth-
ing happened to it nor its counsel. Rozier v. Ford
Motor Company, 573 F 2d 18382 (5th Cir. 1978), Green
24
v. Shepherd Construction Co., (N.D. Ga.) as cited in
Bollard v. Volkswagon of America, Inc., 56 FRD 569,
at note 3 pp. 582-583, Parrett v. Ford Motor Company,
52 FRD 120 (D.C. Mo. 1969), Buehler v. Whalen and
Ford Motor Company, 374 NE2d 460 (Ill. 1977).
The conscientious attorney greatly needs the help
of the courts to tell his client, “No, you can’t get away
with this, you will have your pleadings stricken, and I
will be in trouble with the court.”
Other attorneys have no such moral dilemmas.
Their pragmatic approach is simply to determine what
has to be done to get the job done and do it, the end
justifying the means. ‘They proceed without ethical self-
examination. Ethics are spelled “WIN.”
This burden of holding litigants firmly to Rule 1
must be met by the courts themselves.
The knowledgeable attorney representing prestig-
ious clients knows that he is immune from disciplinary
proceedings by his Bar. Attached as Appendix F is a
newspaper article in Salt Lake City. Utah, in Novem-
ber, 1979. The pertinent item in the article is the state-
men, which was unrebutted, that no member of a pres-
tigious firm in Utah had been subject to Bar sanctions
in the preceding 25 years.
The above reflects only practice in a small state,
but to counsel’s understanding, it is typical of others.
This means that if courts are to protect themselves and
if courts are to assist counsel who have ethical and fi-
25
nancial dilemmas, and control attorneys who don't, the
courts must respond to this “growing number of cases”
by acting affirmatively.
A common tactic is the refusal to admit adverse
facts. The attorney sees that if he admits certain facts,
his client may well lose the case, and then he may well
lose the client. Fictions are substituted for those facts.
As Aaron Burr cynically observed, “The law is that
which is plausibly argued.” The tragedy is that he based
his observation on experience.
Judge McKay referred to the improper “charges
and countercharges of adversial misconduct,” and said
these should be in side briefs so as to not distract from
the main issues.
His wish to keep the mud outdoors is understand-
able, but he failed to make a vital distinction. In some
cases squabbling can be only that, distasteful but unim-
portant conflict. In other cases, and this is what h over-
looked, it is not matter that can be separated from the
main issues because it deals with them directly. That
occurs when the party with a losing case seeks to esca-
late it to a winner by improper tactics.
When that occurs, opposing counsel, to protect his
client and to keep the court from being led into error,
has the positive duty of clearly calling the matter to the
attention of the court.
There is a cheerful side to the judicial scrutiny. It
will frequently lead the court to a right verdict.
26
This case is a classic example. The appellate court
was so far misled that it actually reversed based on the
courts major instruction to the jury on the facts and on
the law, being so far wrong on both fact and law as to be
reversible error. If this were so, surely respondent would
have fought the instruction at trial and on appeal. How-
ever, respondent did, not mention the instruction once
in its brief on appeal.
In petitioner's Petition for Rehearing to the Cir-
cuit Court, he acknowledgd the mechanical difficulty
of the Circuit Court doing minute review of conflicting
argument and suggested that such matter could be re-
ferred to masters, to the trial court, or even to law
schools for an amicus report on the accuracy of the
pleadings.
The Circuit Court chose to do none of these and
allowed the injustice so stingingly attacked by J udge
Doyle in his dissenting opinion to become permanent
by simply dismissing the case.
A chose in action and a judgment are property
rights, and so protected by the Fifth Amendment.
A basic premise of due process of law is that the
court must find what the facts were. Lehnen v. Dick.
son, 148 US 71 (1893) at p. 77. Daniel Webster, in his
argument in the Dartmouth College case, Dartmouth
College v. Woodard, 4 US 518, (1819), declared what
is meant by due process of law is “a law which hears be-
fore it condemns; which proceeds upon inquiry and
renders judgment only after trial.”
27
In the event of irreconcilable conflict between
briefs, it was the duty of the court to accept those facts
most favorable to petitioner. U.S. v. Jefferson Electric
Manufacturing Company, 291 US 386. In the instant
case, the Circuit Court of Appeals failed to review the
findings of the Trial Judge, and refused to examine
the conflicting claims. Nevertheless, it entered its
opinion, denying petitioner his right to favorable review.
Excavation work is dangerous. Fach year there
are casualties in cave-ins. This is a case where a prece-
dent will serve to save lives.
CONCLUSION
For these reasons, a Writ of Certiorari should issue
to review the judgment and opinion of the Tenth Cir-
cuit, or alternatively, that the case be returned to the
Circuit Court for appropriate en banc review.
Respectfully submitted,
SAMUEL KING
301 Gump & Ayers Building
2120 South 1300 Fast
Salt Lake City, Utah 84106
Counsel for Petitioner
December 20, 1979.
ST
APPENDIX A
NOT FOR ROUTINE PUBLICATION
United States Court of Appeals
Tenth Circuit
Nos. 76-1030-31
GLENN H. SEWELL,
Appellant,
V.
PHILLIPS PETROLEUM COMPANY
a Delaware corporation,
Appellee.
Appeal From The
United States District Court
For The District of Utah
Central Division
(D. C. No. C 74-40)
Samuel King, Salt Lake City, Utah, for Appellant.
Ray R. Christensen, of Christensen, Gardiner, Jensen
& Evans, Salt Lake City, Utah, and Chris Wangsgard,
of Van Cott, Bagley, Cornwall & McCarthy, Salt Lake
City, Utah, for Appellee.
Before SETH and HOLLOWAY, Circuit Judges,
and CHII.SON, United States Senior District Judge*
SETH, Circuit Judge.
* Of the District of Colorado,
Sitting by Designation.
A-2
The plaintiff brought this action against the de-
fendant for personal injuries received when part of the
side of an excavation fell on him. The plaintiff was em-
ployed as a laborer by Harvey W. Eckman & Associ-
ates which had contracted with the defendant to install
10,000-gallon underground gasoline storage tanks at
forty-two of defendant’s service stations. The accident
occurred when the plaintiff was working at the bottom
of an excavation eleven and one-half feet deep.
The case was tried to a jury which returned a gen-
eral verdict for plaintiff, who is the appellant. The ap-
peal is taken from the refusal by the trial court to submit
the issue of punitive damages to the jury. The appellee
has taken a cross-appeal on the general verdict on the
ground that the instructions given as to the relationship
between the landowner and an independent contractor
were erroneous.
The defendant provided Eckman with the plans,
drawings, and specification for the installation of the
tanks. The drawings or specifications did not include
shoring or sloping of the walls of the pit. The contract
between the defendant and Eckman provided that the
defendant had the right to inspect the work being done,
and reserved “the right of suspending the whole or any
part of the work to be done hereunder at any time its
best interest appears to be served by so doing.” Eck-
man had the contractual duty to obtain all necessary
permits and to comply with all laws, building regula-
tions, and codes. He was to “diligently perform the
work in accordance with good industry practices and in
A-3
a workmanlike manner” along with the “entire respons-
ibility for examination of the site of the work and for
acquaintance with conditions that may exist or develop
during the term of the contract.” Eckman was also to
adhere to and enforce all safety and fire protection rules
of the defendant during the performance of the work.
Evidence was introduced that the defendant could
also inspect for safety. The defendant's representative
Neuzil knew that the excavation did not conform to
OSHA regulations. Such regulations were not applic-
able to the job. They were considered during the trial
as an expression of opinion as to proper practice. Neuzil
was concerned about the safety of an open pit and felt
that the excavation was safe for men to work in.
There is no question that Eckman was an inde-
pendent contractor. The plaintiff thus sought to impose
liability on the defendant on the theory that a land-
owner had breached a duty to a business invitee; or on
the theory that there was an exception to the inde-
pendent contractor rule because the owner retained con-
trol of the work; or that the work was inherently dan-
gerous.
The plaintiff submitted evidence on a punitive
damages allegation. The allegation was that the de-
fendant had deliberately and wrongfully acted in not
having the excavations shored or sloped and had shown
an indifference as to whether or not others were harmed.
This issue was not submitted to the jury because of in-
sufficient evidence.
A-4
To impose liability on the defendant there must be
shown an exception to the general rule of nonliability for
torts of an independent contractor either through the
exercise by the defendant of control over a delegable
duty, or by showing a nondelegable duty. Dayton v.
Free, 46 Utah 277, 148 P. 408.
On the matter of retained control, the evidence
shows that defendant had the right to inspect the work,
and could stop the work, according to the contract,
+. any time its best interest appears to be served by
so doing.” However this reservation does not of itself
override the general rule of nonliability by control.
United States v. Page, 350 ¥'.2d 28 (10th Cir.). There
was shown no active participation in the work by the
defendant's inspections of the job site. The defendant
never exercised control of the work and Eckman was
under a contractual duty to comply with proper pro-
cedures. Eckman had the basic duty to provide the
plaintiff with a safe place to work and guard against
dangers created by the work. Dayton v. Free, 46 Utah
277, 148 P. 408; Texaco, Inc. v. Pruitt, 396 I°.2d 237
(10th Cir.).
The plaintiff urges that the defendant actively par-
ticipated in the work because the drawings and specifi-
cations did not provide for sloping or shoring. It is
also asserted that the defendant acquiesced in unsafe
practices by its failure to correct them, by accepting the
work complete as evidenced by the payment, and by
having the contract provide that the work be performed
“to the entire satisfaction of the Company Representa-
A-5
tive in accordance with the drawings, plans, and speci-
fications furnished” by the defendant. The plaintiff
argues that by this the defendant was exercising control
over the manner in which the excavation was to be per-
formed, and was inherently dangerous. Dayton v. Free,
46 Utah 277, 148 P. 408.
Evidence was adduced that the bids by Eckman
were made without any allowance for sloping or shoring
and in accordance with the drawings. The contract
specifically provided that Eckman was to obtain all
necessary permits and to comply with all safety regu-
lations. Eckman testified that he was not aware of any
particular sk ping or shoring regulations. He testified
that his bids were based on a normal excavation with
firm soil for stable walls and without any water or other
problems. This particular excavation did have some
water which was pumped out but Eckman thought it
was safe. Eckman testified that if he encountered soil
problems, he would slope to the degree he felt necessary
to provide a safe excavation and the defendant always
paid him for it with no questions asked. The contract
had a provision for extra work. Under these circum-
stances, although the drawings and specifications did
not specify sloping, they in themselves do not show con-
trol in the absence of some affirmative act. United
States v. Page, 350 F.2d 28 (10th Cir. )
The court’s jury instruction No. 18 did not ade-
quately state the necessary “retained and exercised con-
trol” over the work to find liability for the cave-in. The
instruction required that the owner be aware of a known
A-6
risk or should have known and been aware of the con-
tractor's failure to guard against it, and that the owner
reserve the right to stop the work at any time when
safety requirements are not met. The awareness and the
right to stop do not show a “retained and exercised con-
trol” without some other active participation. ‘The in-
struction was clearly erroneous. The defendant, on this
record, did not retain control of the work.
The Utah courts have held that an injured party
has a cause of action against an architect who had know!-
edge or should have known of an unshored trench where
the architect had the contractual right and the duty to
stop the work until the unsafe condition had been
remedied. By the contract the architect was “to super-
vise and inspect all phases of the work being done”
along with the reserved right to stop work for noncom-
pliance. Nauman v. Harold K. Beecher & Associates,
19 Utah 2d 101, 426 P.2d 621. But in the subsequent
case, Nauman v. Harold K. Beecher & Associates, 24
Utah 2d 172, 467 P.2d 610, the court held that there
was insufficient evidence to show a breach of a duty
or conduct below a standard of care for an architect
where the walls of the excavation were sloped and the
plaintiff knew of the conditions and found them to be
safe. In a later case, Peterson v. Fowler, 27 Utah 2d
159, 493 P.2d 997, the court found no duty owed by the
archiect to the injured employee because he had noth-
ing to do with the scaffolding and his duty ran to the
owner to see that the building was properly erected so
that it would be safe for its intended purposes. The
distinction for the existence of a duty is based on one of
A-7
control because in Nauman the architect had the affirm-
ative duty to “supervise and inspect all phases” of the
job, whereas in Peterson he did not have this control.
The plaintiff urges that because the landowner
knew of the failure to slope or shore, it had a duty to
war or correct this violation, aud having failed to do
so, the landowner is liable for injuries to business visit-
ors. The landowner is under a duty to warn or guard
against concealed or latent conditions of danger on the
premises of which he has or ought to have knowledge
and of which the employee has none. Texaco, Inc. v.
Pruitt, 396 F.2d 237 (10th Cir.) ; Titan Steel Corp. v.
Walton, 365 I'.2d 542 (10th Cir.). Yet the danger of
the excavation is not inherent in the premises them-
selves, but it is a danger which arose from the prosecu-
tion of the work itself. Furthermore the danger of an
excavation caving in is not concealed or latent, and the
plaintiff had knowledge of this danger.
As for nondelegable duties which are described as
being “inherently dangerous work,” an excavation of
this type is not inherently dangerous although there are
safety precautions to be taken. Work that is inherently
dangerous is work that will probably, and not merely
may, cause injury if proper precautions are not taken.
Dayton v. Free, 46 Utah 277, 148 P. 408. Predict-
ability makes for a fine distinction between probably
and may, but this excavation does not fall under the
former. Furthermore, this Circuit has expressed “serious
doubts as to whether the doctrine of nondelegable duty
as here involved applies to injuries to employees of the
A-8
independent contractor.” United States v. Page, 350 F.
2d 28 (10th Cir.). Dayton was cited by Page to sup-
port this proposition by its dictum.
The plaintiff urges that it was error for the trial
judge to refuse to instruct the jury on the issue of puni-
tive damages. The trial judge found that the evidence
did not develop an issue on punitive damages. Smith
v. Mill Creek Court, Inc., 457 F.2d 589 (10th Cir.).
We must agree with this view because in order to
justify an award of punitive damages in Utah, there
must be a wrongful invasion of the plaintiff's rights
which was done wilfully and maliciously. Palombi v.
D & C Builders, 22 Utah 2d 297, 452 P.2d 325; Amoss
v. Broadbent, 30 Utah 2d 165, 514 P.2d 1284. It de-
pends not on the classification of the wrongful act but
on the manner and intent with which it was done. Pow-
ers v. Taylor, 14 Utah 2d 152, 379 P.2d 380. In any
event, the defendant owed no duty to plaintiff.
The judgment of the trial court is REVERSED,
and the case is remanded for a new trial.
APPENDIX B
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
CENTRAL DIVISION
GLENN H. SEWELL,
Plaintiff,
v.
PHILLIPS PETROLEUM COMPANY,
a Delaware corporation,
Defendant.
ORDER OF DISMISSAL WITH PREJUDICE
OF PLAINTIFF’S COMPLAINT
In Lieu of Findings of Fact and
Conclusions of Law
No. C74-40
Defendant is a major petroleum producer and
entered into a contract with Eckman & Associates, Inc.,
for the installation of gasoline tanks at a service station
at 702 East 3300 South in Salt Lake City, Utah. The
contract provided the contractor was to be an independ-
ent contractor and to provide the materials and labor,
get the necessary licenses, and observe all laws in exca-
vating the premises and installing the tanks. The con-
tract further provided the contractor was to have com-
plete control over the work.
Plaintiff was an employee of Eckman and working
on the excavation when a cave-in occurred causing in-
juries for which this action was brought. There had
B-2
been no sloping of the sides of the excavation as local
law required. ‘he plans for the work were provided by
the defendant and contained no requirement of sloping.
A representative of defendant had visited the project
occasionally and the company, from much past experi-
ence, reasonably could expect bidders would follow the
plan provided. No Phillips representative was present
when it happened.
The trial court first granted defendant's motion for
summary judgment, holding the plaintiff's employer was
an independent contractor and defendant, under applic-
able law, was insulated from any responsibility.
Upon a motion for reconsideration the trial court
became persuaded it was a case that presented a jury
question. Here the defendant company had vast experi-
ence in excavation and installation work, had an engin-
eering departinent trained in precisely this kind of work
and in this very community had previously contracted
for many such jobs and been familiar with the local law
requiring sloping. Notwithstanding the company drew
plans for the work leaving out sloping, an expensive
addition, and put it out to bid. The trial court was per-
suaded that under such circumstances, where the com-
pany gained an economic benefit from putting out a job
for bid with a drawing for the work without sloping,
an issue of whether this was negligence of the company
should be presented to the jury, the theory being that
such may be an exercise of control that would deprive
the company of the protection of the contract placing
responsibility with the independent contractor, but with-
out making the company the plaintiff's employer.
B-3
The case was presented to the jury and plaintiff
was awarded a verdict of $25,000. Plaintiff appealed
the court’s dismissal of the claim of punitive damages
and defendant cross-appealed, contending there were no
issues of fact for the jury and that, as a matter of law,
judgment should be entered in favor of defendant no
cause of action on plaintiff's complaint. The case was
argued to the Court of Appeals in November, 1976, and
on March 21, 1977, the Court handed down its de-
cision reversing the judgment and remanding the case
for a new trial.
Thereafter the trial court met with counsel for the
parties to hold a pretrial in preparation for a retrial. It
was stipulated that all of the evidence had been pre-
sented at the first trial and that the matter should be
presented to the trial court, based on the records and
- brief of counsel, for its decision.
The court has carefully reviewed the facts in the
record, the ruling of the Circuit Court of Appeals for
the Tenth Circuit, the briefs of counsel and, deeming
itself fully advised, enters the following as its ruling
and verdict in the matter.
IT IS HEREBY ORDERED that defendant
be granted a verdict of no cause of action on plaintiff's
complaint.
The court believes that under the facts and the law
provided by the Circuit this is the only verdict that
could be entered. On page 3 of the opinion of the Ap-
pellate Court the Court ruled:
B-4
There is no question that Eckman was an inde-
pendent contractor.
To impose liability on the defendant there
must be shown an exception to the general rule
of non-liability for torts of an independent con-
tractor either through the exercise by the defend-
ant of control over a delegable duty, or by show-
ing a non-delegable duty.
The opinion then proceeds to demonstrate that
neither of the two alternatives is present in this case.
It follows, therefore, that plaintiff can establish no
basis for liability.
In holding that the defendant retained no control
of the work (over a delegable duty), the Court said:
There was shown no active participation in the
work by defendant’s inspections of the job site.
The defendant never exercised control of the
work and Kckman was under a contractual duty
to comply with proper procedures.
* * *
[a]lthough the drawings and specifications did
not specify sloping, they in themselves do not
show control in the absence of some affirmative
act.
+ * &
The defendant, on this record, did not retain con-
trol of the work. (Emphasis added. )
Since the parties have no more evidence to pre-
sent, this ruling is determinative in this alternative.
As to the possibility of its being a situation of a
non-delegable duty, the Appellate Court said:
B-5
As for nondelegable duties which are described
as being “inherently dangerous” . . . this Circuit
has expressed “serious doubts as to whether the
doctrine of nondelegable duty as here involved
applies to injuries to employees of the independ-
ent contractor.”
In concluding the opinion, the Court added:
In any event, the defendant owed no duty to
plaintiff. (Emphasis added. )
With the parties stipulating there is no more evi-
dence to present, under the opinion of the Circuit there
is nothing left to try.
Judgment, therefore, should be, and is, entered for
defendant, no cause of action on plaintiff's complaint.
DATED this 20th day of September, 1977.
ALDON J. ANDERSON
United States District Judge
APPENDIX C
NOT FOR ROUTINE PUBLICATION
United States Court of Appeals
Tenth Circuit
No. 77-2072
GLENN H. SEWELL,
Appellant,
V.
PHILLIPS PETROLEUM COMPANY,
a Delaware corporation,
Appellee.
Appeal From The
United States District Court
For The District Of Utah
Central Division
(D.C. No. C 74-40)
Samuel King, Salt Lake City, Utah, for Appellant.
Ray R. Christensen, of Christensen, Gardiner, Jensen
& Evans, Salt Lake City, Utah, and Chris Wangsgard,
of Van Cott, Bagley, Cornwall & McCarthy, Salt Lake
City, Utah, for Appellee.
Before SETH, Chief Judge, DOYLE and McKAY,
Circuit Judges.
SETH, Circuit Judge.
C-2
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 re-
manded for a new trial. The parties stipulated to the
trial judge on remand that no issue remained to be deter-
mined 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 entitled to
judgment as a matter of law, and that our previous hold-
ing relied on misstatements of the facts in the defend-
ant’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 prev-
ious holding. The case involved a suit for damages for
injuries sustained by plaintiff while working in an ex-
cavated eleven-foot hole. Plaintiff was employed by
C-3
Harvey W. Eckman & Associates which had contracted
with the defendant to install 10,000-gallon gasoline stor-
age 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 injuries. 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, 148 P. 408 (Utah). We noted further
that no evidence presented at trial indicated the de-
fendant 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 re-
mand. 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 defend-
ant's brief. The record clearly shows a lack of evidence
supporting the “retained control” theory. Furthermore,
on 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.
C-4
No. 77-2072 — GLENN H. SEWELL, Appellant,
vs. PHILLIPS PETROLEUM COMPANY, Ap-
pellee.
McKAY, Circuit Judge, concurring in the result:
Although I believe that the dissenting opinion may
correctly characterize the result which should have been
reached in the prior appeal brought in this case, I be-
lieve the instant appeal is in substance only a much-
belated petition for rehearing. Rightly or wrongly, the
issues that divide the other panel members were de-
cided in the earlier appeal, and the time for asking this
court's reconsideration of its determination has long
since expired. All purported defects in the earlier dis-
position would have been known to appellant during the
period in which filing for rehearing would have been
timely. I therefore agree with the decision to affirm.
Nonetheless, I believe a troubling subsidiary mat-
ter should be addressed. There appears to be a sub-
stantial likelihood that disciplinary proceedings are in
order. If counsel for appellant is correct, counsel for
appellee deliberately misstated material facts to this
court in the brief he filed in the prior appeal. If counsel
for appellee is correct ,counsel for appellant has leveled
false charges of serious professional impropriety against
a member of the bar. Both charges are extremely grave.
If either is true, disciplinary sanctions are in order.
We have not investigated the charges and counter-
charges raised in this case, nor is such an undertaking
C-5
the proper responsibility of this court in the first in-
stance. I am, however, mailing a copy of this opinion
to the Commissioners of the Utah State Bar, of which
both attorneys are members, for their appropriate dis-
position. I will also direct the clerk of this court to
supply the Commissioners with copies of the relevant
materials.
In a growing number of cases, adversarial rivalry
has degenerated into accusations of unethical conduct.
‘This court will not tolerate false charges of this variety.
Neither will it abide the filing of dishonest statements
by practitioners. We expect the highest standard of
care by attorneys in correctly citing facts and cases.
If necessary, when deliberate or grossly negligent mis-
citations occur, we will strike the briefs and leave the
clients who are damaged thereby to malpractice rem-
edies. We intend to apply an equal standard to false
accusations of unethical conduct.
When misstatements of the type discussed here do
occur, opposing counsel should note the errors in a re-
sponsive brief. Misconduct should not be so character-
ized in the briefs on appeal, lest the argument shift to
focusing on the integrity of practitioners rather than the
substantive issues raised in the appeal. Where the mis-
statements suggest the likelihood of misconduct, oppos-
ing counsel should file a charge with the appropriate
bar authorities. We will ourselves be alert to whether
the challenged statements suggest the propriety of dis-
ciplinary proceedings and will, as in the instant case,
initiate appropriate action when the opposing attorney
has not already done so.
C-6
Having outlined our views in this matter generally,
we repeat that we express no view at this time concern-
ing which attorney is correct in the instant dispute. We
assume that the matter will be resolved in a more ap-
propriate forum so that the rights of the litigants will
not be further affected by this controversy.
I am authorized to state that Chief Judge Seth con-
curs in the views expressed in this opinion on the matter
of professional misconduct on the part of attorneys who
practice before us.
No. 77-2072 — GLENN H. SEWELL v. PHIL-
LIPS PETROLEUM COMPANY
DOYLE, Circuit Judge, dissenting.
I respectfully dissent.
This case was appealed on a previous occasion. It
was reversed and remanded for a new trial. ‘The panel,
with the exception of Chief Judge Seth, was different
on the prior appeal.
The complaint was originally filed in this case on
Kebruary 8, 1974. Plaintiff was injured as a result of
the cave-in of an excavation wall in a pit in which he
was working. This excavation was made on behalf of
Phillips Petroleum Company, the defendant herein.
The depth of this was 116”. The sides, however, were
perpendicular and it is said that this is what caused it
to cave.
C-7
It is not disputed that both the Uniform Building
Code which was in effect in Salt Lake City and also
OSHA, the United States agency, which was con-
cerned with employee safety, required sloping and shor-
ing. See United States v. Dye Construction Company,
510 F.2d 78 (10th Cir. 1975).
In this instance the pit was excavated for the pur-
pose of installing a gasoline storage tank at a retail serv-
ice station. An independent contractor performed the
work. However, he did not apply for a permit. Had
he done so there would have been an inspection to-
gether with orders requiring the sloping in accordance
with the city ordinance and OSHA regulations.
The evidence established that the particular ex-
,cavation was one of a large number in Salt Lake City
by Phillips in order to store unleaded gasoline. Phillips
was fully aware of the manner of excavating and was
aware that it was illegal. There was evidence to show
that proceeding without a permit and not sloping or
shoring was the policy of Phillips. The evidence also
showed that Phillips furnished the blueprint or plan for
the excavation and installation of the tank. This called
for a pit with perpendicular walls.
Plaintiff made the mistake of appealing the trial
courts denial of punitive damages. The defendant
cross-appealed the judgment on the merits. This court
rejected plaintiffs appeal and adopted that of Phillips.
The theory was that Phillips was shielded by the inde-
pendent contractor concept.
C-8
The source of this disagreement goes back to the
first appeal following the original trial of the case. The
trial had been to a jury in early October 1975. On that
occasion special interrogatories were submitted to the
jury, and as a consequence of the jury's responses a
verdict in the amount of $25,000 was returned in favor
of the plaintiff. In answering the interrogatories, the
jury responded that the defendant Phillips Petroleum
Company was the proximate cause of the injury to the
degree of 100%. Judgment was entered accordingly.
The appeal which is referred to above followed.
This court reversed in an opinion filed March 21,
1977. It emphasized that Mr Eckman had been em-
ployed by Phillips under an explicit contract which pro-
vided that he was an independent contractor. He was
to dig an 11’6” pit in which the gasoline tank would be
placed. In general, this court's opinion followed the
proposition that in order to impose liability on the de-
fendant, considering that Eckman was an independent
contractor, it would have to appear that an exception
existed to nonliability for torts of an independent con-
tractor. The court went on to find that such exception
was not present.
The basis on which the verdict was rendered at the
trial was that Phillips, in truth, controlled the project ;
that it was hazardous to fail to perform sloping and
shoring in a pit this deep; that such sloping and shoring
was required by the County of Salt Lake and also
by OSHA, a federal agency. It was also brought out
that Phillips was fully aware of the fact that these pre-
C-9
cautions which were required by law had not been
taken. Indeed, Phillips prepared the drawings and
specifications which called for a perpendicular pit and
which did not provide for sloping or shoring. It was
also shown that this particular contractor was regularly
employed, had excavated a large number of these in
accordance with Phillips’ plans, and with the full knowl-
edge of Phillips. ‘These facts resulted in Phillips having
independent responsibility for the injury.
The opinion of this court remanded the case for a
new trial. However, the trial judge concluded that he
was unable to conduct a new trial in view of the de-
cision. The court proceeded to enter an order of dis-
missal of the complaint with prejudice. In that order
of dismissal it was pointed out that the contract pro-
vided that the contractor was to be an independent con-
tractor, who would provide the necessary materials and
labor, get the necessary licenses and observe all laws in
excavating the premises and installing the tanks. The
wording of the contract also provided that the con-
tractor was to have complete control over the work.
While plaintiff, the order continued, was working
on the excavation, a cave-in occurred causing his in-
juries. “There had been no sloping of the sides of the
excavation as local law required. The plans for the
work were provided by the defendant and contained no
requirement of sloping.” A representative of defendant
had visited the project occasionally and the company,
from past experience, could expect bidders would follow
the plan provided. No Phillips’ representative was
present when it happened.
C-10
The trial court wrote that it had first granted the
defendant's motion for summary judgment on the basis
that defendant was insulated from responsibility, but
upon reconsideration it became persuaded that it was
a case that presented a jury question considering that
the defendant company had vast experience in excava-
tion and installation work, had an engineering depart-
ment trained in this kind of work, and “in this very
community had previously contracted for many such jobs
and been familiar with the local law requiring sloping,
not withstanding that the company drew plans leaving
out sloping, an expensive addition, and put it out to bid.”
The court said that since the company had gained an
economic benefit from putting out a job for bid with a
drawing for the work without sloping, the issue of
whether this was negligence should be presented to the
jury, on the theory that such may be an exercise of
control that would deprive the company of the protec-
tion of the contract which placed responsibility with the
independent contractor. The court then went on to say:
The case was presented to the jury and plaintiff
was awarded a verdict of $25,000. Plaintiff appealed
the court's dismissal of the claim of punitive damages
and defendant cross-appealed, contending there were
no issues of fact for the jury and that, as a matter of
law, judgment should be entered in favor of defendant
no cause of action on plaintiff's complaint. The case
was argued to the Court of Appeals in November, 1976,
and on March 22, 1977, the Court handed down its de-
cision reversing the judgment and remanding the case
for a new trial.
C-1l
Thereafter the trial court met with counsel for the
parties to hold a pretrial in preparation for a retrial. It
was stipulated that all of the evidence had been pre-
sented at the first trial and that the matter should be
presented to the trial court, based on the records and
brief of counsel, for its decision.
The court has carefully reviewed the facts in the
record, the ruling of the Circuit Court of Appeals for
the Tenth Circuit, the briefs of counsel and, deeming
itself fully advised, enters the following as its ruling and
verdict in the matter.
IT IS HEREBY ORDERED that defendant
be granted a verdict of no cause of action on plaintiff's
complaint.
The court believes that under the facts and the law
provided by the Circuit this is the only verdict that
could be entered. On page 3 of the opinion of the Ap-
pellate Court the Court ruled:
There is no question that Eckman was an inde-
pendent contractor.
To impose liability on the defendant there must
be shown an exception to the general rule of non-
liability for torts of an independent contractor
either through the exercise by the defendant of
control over a delegable duty, or by showing a
non-delegable duty.
The opinion then proceeds to demonstrate that
neither of the two alternatives is present in this case.
It follows, therefore, that plaintiff can establish no basis
for liability.
C-12
In holding that the defendant retained no control
of the work (over a delegable duty), the Court said:
There was shown no active participation in the
work by defendant's inspections of the job site.
The defendant never exercised control of the
work and Eckman was under a contractual duty
to comply with proper procedures.
[a]lthough the drawings and specifications did
not specify sloping, they in themselves did not
show control in the absence of some affirmative
act.
The defendant, on this record, did not retain con-
trol of the work. (Emphasis added.)
Since the parties have no more evidence to present,
this ruling is determinative in this alternative.
As to the possibilty of its being a situation of a
non-delegable duty, the Appellate Court said:
As for nondelegable duties which are described
as being “inherently dangerous” . . . this Circuit
has expressed “serious doubts as to whether the
doctrine of nondelegable duty as here involved
applies to injuries of” employees of the independ-
ent contractor.”
In concluding the opinion, the Court added:
In any event, the defendant owed no duty to
plaintiff. (Hmphasis added. )
With the parties stipulating there is no more evi-
dence to present, under the opinion of the Circuit there
is nothing left to try.
C-13
Judgment, therefore, should be, and is, entered for
defendant, no cause of action on plaintiff's complaint.
DATED this 20th day of September, 1977.
I have quoted and shown the trial court’s opinion
on remand in detail for the reason that it shows, in my
opinion, that the trial court was somewhat startled to
receive this court’s opinion, and I must confess that I
had similar feelings when I first heard the case on the
present appeal. My first exposure to the case was the
occasion of oral arguments on the second appeal.
Being of the opinion that there has been a miscar-
riage of justice, it is my conclusion that the judgment
of the district court should be at this time reinstated in
the interest of justice. Such action has been taken on
past occasions.
The reason for my dissent is my conviction that the
concept of independent contractor is capable of shroud-
ing a great many sins; that it will not succeed where, as
here, a statute or ordinance imposes a duty to provide
specified safeguards or precautions for the safety of
others. This is expressed in the Restatement of the
aw Second, § 424, which provides:
Precautions Required by Statute or Regulation
One who by staute or by administrative regula-
tion is under a duty to provide specified safe-
guards or precautions for the safety of others is
subject to liability to the others for whese pro-
tection the duty is imposed for harm caused by
the failure of a contractor employed by him to
provide such safeguards or precautions.
C-14
So, under this principle, the owner will not be
heard to say that it was the duty of the contractor to
fulfill the duties imposed by statute This is because the
duty is on the owner to comply with the law and he can-
not pass the buck. If he could, avoidance would be
quite simple. The owner could avoid the law by enter-
ing an airtight contract with an “independent con-
tractor.”
The guiding principles are set forth in somewhat
more detail and clarity in an annotation reported in 41
Am. Jur. 2d, Independent Contractors § 37 (1968), at
799-780:
Generally speaking there are many situations
in which a person cannot absolve himself from
liability by Dcadien his duties to an independ-
ent contractor. An employer has a nondelegable
duty with respect to the taking of precautions
during work which is dangerous in the absence
of such precautions, which is inherently or in-
trinsically dangerous, or which from its nature is
likely to render the premises dangerous to in-
vitees, and also has a nondelegable duty with re-
spect to the conduct of ultrahazardous work.
Where a person, either by contract or by law,
owes an obligation to another, he cannot escape
liability for negligence in performance of such
obligation by delegating the duty 'to an independ-
ent contractor. Thus, if a statute or ordinance
requires a person to take certain precautions
when work is being done, and such precautions
are not taken, it is no defense that an independ-
ent contractor was employed to do the work and
that the failure to take the precautions was due
to the contractor’ negligence. Likewise, one
who, by a specific agreement, undertakes to do
C-15
some particular thing, or to do it in a certain
manner, cannot, by employing an independent
contractor, avoid responsibility for an injury re-
sulting from the nonperformance of any duty or
duties which, under the express terms of the
agreement or by implication of law, are assumed
by the cn at An exception to the general
rule of nonliability of an employer for the negli-
gence of an independent contractor or the latter’s
servants exists where the employer has assumed
a contractual obligation to perform the work.
At bar we have an activity which is inherently haz-
ardous. The hazard is recognized by statute and ordin-
ance. In addition, we have an owner who provides
plans which do not attempt to adopt safeguards. In
fact, it knowingly encourages the doing of the work
without taking safeguards. Phillips would be liable for
the failure of the contractor to follow its orders. It is
certainly liable where the contractor follows its orders
and thereby creates the risk.
One recent example is that which occurred in
Pierce v. Cook & Co., Inc., 518 F.2d 720 (10th Cir.
1975). In Pierce v. Cook, supra, the action was for
wrongful death in an automobile collision. The truck
driver had been hauling wheat for the defendant-ap-
pellee in the case, Cook & Co., Inc. The trial court
entered summary judgment. This was appealed and af-
firmed by this court. The judgment became final in
1971. The accident had actually happened in 1968.
Relief was sought in the federal court based upon a
change of law in the Oklahoma state court. The Okla-
homa Supreme Court had overruled the prior decision
C-16
which had strictly applied the independent contractor
rule and had concluded that where there is a foresee-
able risk of harm to others unless precautions are taken,
one who is regularly engaged in a commercial enter-
prise as an integral part of the business is responsible
for failure to exercise care in selecting a competent car-
rier. Failure to do so rendered him liable.
When this change of law was announced, a motion
for relief was filed by the aggrieved party under Rule
60(b). Notwithstanding that this court’s prior decision
had become final in 1971, relief was granted following
presentation of the case to this court en banc. ‘The cause
had been removed to federal court, and after the state
court rule was changed, we held in an opinion by Judge
Breitenstein that in this extraordinary condition, the
plaintiff was the victim of an injustice, and although we
did not reverse the decision of the trial court, we com-
mended the Rule 60(b) motion to it.
While an appellate court will generally refuse to
reopen a final judgment entered in a prior appeal, it will
do so when substantial justice warrants. See 9 Moore’s
Federal Practice { 110.25[2], at 274-75 (2d ed. 1975).
The law of the case doctrine bars a second review of
established law unless compelling circumstances war-
rant the action.
The Supreme Court has long recognized that an
appellate court may review its earlier decision in a case
and reopen that case when circumstances warrant it.
See Messenger v. Anderson, 225 U.S. 486 (1912).
C-17
Bromley v. Crisp, 561 F.2d 1351, 1363 (10th Cir.
1977), cert. denied, 435 U.S. 908 (1978), recognized
that this court could depart from its own earlier de-
cision in the identical case when circumstances war-
ranted such departure.
Other circuits have also recognized that where cir-
cumstances warrant reopening of an earlier appellate
decision in the same case, such procedure may be pur-
sued.
The Kighth Circuit has said that the earlier judg-
ment will not be disturbed unless clearly erroneous and
manifestly unjust See Wrist-Rocket Mfg. Co. v. Saund-
ers Archery Co., 578 F.2d 727, 730-31 (8th Cir. 1978).
The Fifth Circuit has said that a second review is
permissible “if considerations of substantial justice war-
rant it.” Lehrman v. Gulf Oil Corp., 500 F.2d 659, 663
(5th Cir. 1974), cert. denied, 420 U.S. 929 (1975).
Clearly a prior decision is not to be reopened and re-
versed except upon the basis of cogent reasons and to
avoid manifest injustice. See Terrell v. Household
Goods Carriers’ Bureau, 494 F.2d 16, 19-20 (5th Cir.),
cert. dismissed, 419 U.S. 987 (1974).
The Sixth Circuit has refused to review a prior de-
cision unless a new statute or intervening Supreme
Court decision raises questions as to the viability of the
earlier decision. Hawkes v. Internal Revenue Service,
507 F.2d 481, 482 n.1 (6th Cir. 1974).
C-18
In one instance the First Circuit refused to reopen
a civil case, but recognized that it could be done in the
case in which the previous error constituted a manifest
injustice. White v. Higgins, 116 F.2d 312, 317 (Ist
Cir. 1974).
In the present case the mix-up occurred because of
the fact that the contract between Phillips Petroleum
Company and the independent contractor purported to
place all of the responsibility on the independent con-
tractor, but when the case was tried a far different con-
dition was revealed. It was shown that Phillips in actu-
ality had exercised a good deal of control over the pro-
ject and that it was the author of the plans which took
the less expensive way out, that of not taking steps to
prevent cave-ins. Thus, where it had control of the con-
dition and acted negligently, that is, where it could rea-
sonably foresee that a workman was going to be injured
from this practice, it should be held responsible to the
workman for its own negligent conduct. That is what
the trial court held and that is the correct approach to
the case. It is an approach that is not at odds with Utah
law.
Here we have an activity that was contrary to law,
both local and federal, which plainly created a hazard
and thus the trial court was plainly correct in the first
case in submitting the case to the jury. The jury’s ver-
dict was well founded both in law and in fact. A plain
injustice occurred as a result of the reversal. The trial
court was unable to carry out the mandate which ord-
ered a new trial because the law of the case contained
C-19
in this court’s decision closed the door to a new trial.
There was nothing for the trial court to do except vacate
the judgment based upon the jury verdict and enter
judgment for Phillips, which it did.
In this case the injustice which the litigant has
suffered is clear. There is not and was not any way
which would allow Phillips to shift responsibility to the
contractor. To allow it to do so constituted grave error
which should be corrected.
The case should be reopened in the interest of
justice.
APPENDIX D
UNIFORM BUILDING CODE
CHAPTER 70
IXCAVATING AND GRADING
PURPOSE
Sec. 7001. The purpose of this Chapter is to safe-
guard life, limb, property and the public welfare by
regulating grading on private property.
SCOPE
Sec. 7002. This Chapter sets forth rules and regu-
lations to control excavation, grading and earthwork
construction, including fills and embankments; estab-
lishes the administrative procedure for issuance of per-
mits; and provides for approval of plans and inspection
of grading construction.
PERMITS REQUIRED
Sec. 7003. No person shall do any grading without
first having obtained a grading permit from the Build-
ing Official except for the following:
2. An excavation below finished grade for base-
ments and footings of a building, retaining wall or other
structure authorized by a valid building permit. This
shall not exempt any fill made with the material from
such excavation nor exempt any excavation having an
unsupported height greater than 5 feet after the com-
pletion of such structure.
D-2
8. An excavation which (a) is less than 2 feet in
depth, or (b) which does not create a cut slope greater
than 5 feet in height and steeper than one and one-half
horizontal to one vertical.
DEFINITIONS
Sec. 7005. For the purposes of this Chapter the
definitions listed hereunder shall be construed as speci-
fied in this Section.
EXCAVATION is the mechanical removal of
earth material.
GRADE shall mean the vertical location of the
ground surface.
GRADING is any excavating or filling or com-
bination therof.
GRADING PERMIT REQUIREMENTS
Sec. 7006. (a) Permits Required. Except as ex-
empted in Section 7003 of this Code, no person shall
do any grading without first obtaining a grading permit
from the Buiding Official. A separate permit shall be
required for each site, and may cover both excavations
and fills.
(b) Application. The provisions of Section 301 (b)
are applicable to grading and in addition the application
shall state the estimated quantities of work involved.
(c) Plans and Specifications. When required by
the Building Official, each application for a grading
D-3
permit shall be accompanied by two sets of plans and
specifications, and supporting data consisting of a soil
engineering report and engineering geology report. The
f ‘ns and specifications shall be prepared and signed
by a civil engineer when required by the Building Of-
ficial.
(d) Information on Plans and Specifications.
Plans shall be drawn to scale upon substantial paper or
cloth and shall be of sufficient clarity to indicate the
nature and extent of the work proposed and show in
detail that they will conform to the provisions of this
Code and all relevant laws, ordinances, rules and regu-
lations. The first sheet of each set of plans shall give
the location of the work and the name and address of
the owner and the person by whom they were prepared.
The plans shall include the following information:
1. General vicinity of the proposed site.
2. Property limits and a.curate contours of exist-
ing ground and details of terrain and area drainage
8. Limiting dimensions, elevations or finish con-
tours to be achieved by the grading, and proposed drain-
age channels and related construction.
4. Detailed plans of all surface and subsurface
drainage devices, walls, cribbing, dams and other pro-
tective devices to be constructed with, or as a part of,
the proposed work together with a map showing the
drainage area and the estimated runoff of the area
served by any drains.
APPENDIX E
OSHA REGULATIONS
§1926.651 Specific excavation requirements.
(c) The walls and faces of all excavations in which
employees are exposed to danger from moving ground
shall be guarded by a shoring system, sloping of the
ground, or some other equivalent means.
(e) The determination of the angle of repose and
design of the supporting system shall be based on care-
ful evaluation of pertinent factors such as: Depth of
cut; possible variation in water content of the material
while the excavation is open; anticipated changes in
materials from exposure to air, sun, water, or freezing;
loading imposed by structures, equipment, overlying
material, or stored material; and vibration from equip-
ment, blasting, traffic, or other sources.
(g) All slopes shall be excavated to at least the
angle of repose except for areas where solid rock allows
for line drilling or splitting.
§1926.652
(a) Banks more than 5 feet high shall be shored,
laid back to a stable slope, or some other equivalent
means of protection shall be provided where employees
may be exposed to moving ground or cave-ins. Refer to
Table P-1 as a guide in sloping of banks. Trenches less
than 5 feet in depth shall also be effectively protected
when examination of the ground indicates hazardous
ground movement may be expected.
E-2
(b) Sides of trenches in unsable or soft material,
5 feet or more in depth, shall be shored, sheeted, braced,
sloped, or otherwise supported by means of sufficient
strength to protect the employees working with them.
See Tables P-1, P-2 (following paragraph (g) of this
section }) .
(c) Sides of trenches in hard or compact soil, in-
cluding embankments, shall be shored or otherwise sup-
ported when the trench is more than 5 feet in depth
and 8 feet or more in length. In lieu of shoring, the
sides of the trench above the 5-foot level may be sloped
to preclude collapse, but shall not be steeper than a 1-
foot rise to each 14-foot horizontal. When the outside
diameter of a pipe is greater than 6 feet, a bench of
4-foot minimum shall be provided at the toe of the
sloped portion.
APPENDIX F
‘Should Be Free’
Court Hears Arguments
On Control of Attorneys
By Dave Jonsson
Tribune Staff Writer
Utah lawyers should be free to join or
not to join the Utah State Bar and this
should have no bearing on their right to
practice law, the Utah Supreme Court
was told Monday.
Compulsory membership in the bar is
a violation of attorneys’ rights to
associate or not associate with whom
they wish, attorney Daniel L. Berman
told the court.
The court heard arguments on a
petition signed by 56 attorneys asking
the high court to abolish the
“‘integrated’"’ bar and allow member-
ship to be voluntary. Lawyers now must
be members of the bar before they are
allowed to practice law.
Dues Required
With membership comes the obliga-
tion to pay dues and Mr. Berman
complained ‘‘I don’t think it’s right to
require attorneys to pay fees to support
such things as hiring of lobbyists to
support or oppose legislation.
“The bar paid $10,000 last year for
someone to lobby the Legislature in
opposition. to a bill that would end
— of the bar,”’ Mr. Berman
said.
Integration means that the bar and
Supreme Court are formal partners in
the admission and discipline of the
members of the profession.
‘‘No other profession has a situation
where membership in an organization
is compulsory before a person can
practice his profession,’’ Mr. Berman
said.
Both Offensive
Under the Constitution, he said,
“‘compelled association is just as offen-
sive as compelled disassociation.”
Arguing against the petition was
Harold G. Christensen, former bar
president, who said the bar commission
“thas been very careful in taking
positions on partisan political issues.’’
He noted that the petitioners com-
prise only about 2 percent of the bar’s
3,000 members.
Over the years, Mr. Christensen said,
the partnership between the bar and the
court has been ‘‘a good functioning
system.”’
Better Remedy
“The remedy is not to dissolve the
bar, but to correct the deficiencies
found,’’ Mr Christensen said.
In his brief Mr. Berman told the court
that dues paid by members have gone
into contributions to the International
Women’s Year, to support those oppos-
ing amnesty for Vietnam veterans and
to back certain forms of no-fault
insurance legislation.
‘Discipline of its members has been
weak,’’ Mr. Berman said.
None in 26 Years
“In fact, no lawyer with a major or
significant law firm has been disci-
plined in the past 25 years... they
just go after the criminal violators aan
the oddballs. ae
“It would be naive to think that the
only ethical problems we have are
those that have come to the point of
disciplinary proceedings, ‘‘ Mr. Ber-
man said.
Arguing another position, Steven W.
Allred of the legislative general cour-
sel’s office, asked the court to consider
taking only a ‘‘cautious look”’ at any
requested changes in the current organ-
ization.
APPENDIX G
JULY TERM — SEPTEMBER 10, 1980
Before Honorable Oliver Seth and Honorable Monroe
G. McKay, Circuit Judges.
No. 80-1861
GLENN H. SEWELL,
Petitioner,
VS.
PHILLIPS PETROLEUM COMPANY,
Respondent.
This matter comes on for consideration of the mo-
tion of petitioner requesting the Court to issue a Writ
of Review to review all proceedings in cases Nos. 76-
1030 and 76-1031, the mandates of which issued April
12, 1977, and No. 77-2072, the mandate of which issued
October 9, 1979. Petitioner moves the Court to reverse
its judgment entered August 24, 1979, and enter judg-
ment for him, remanding for new trial on general and
special damages and for other relief. The petitioner sug-
gests en banc review.
Upon consideration whereof, it is ordered:
1. The relief sought by appellant in its motion for
relief filed August 19, 1980, is denied.
2. The panel members did not request a vote on
the suggestion for en banc review.
Judge William E. Doyle, a member of the panel
that rendered the decision sought to be reviewed, did
not participate.
HOWARD K. PHILLIPS
Clerk
ee en ae
CERTIFICATE OF SERVICE
I hereby certify that on this 21st day of December,
1979, three copies of the Petition for Writ of Certiorari
were mailed, postage prepaid, to Ray E. Christensen,
attorney for respondent, 900 Kearns Building, Salt Lake
City, Utah 84101. I further certify that all parties re-
quired to be served have been served.
SAMUEL KING
301 Gump & Ayres Building
2120 South 1300 East
Salt Lake City, Utah 84106
Counsel for Petitioner
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.