Timothy Vernon Commee v. Nucor Corporation

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-1089
TIMOTHY VERNON COMMEE,
Plaintiff - Appellant,
versus
NUCOR CORPORATION,
Defendant - Appellee.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Terrence W. Boyle,
District Judge. (CA-03-26-2-BO)
Submitted: November 21, 2005 Decided: March 8, 2006
Before WILKINS, Chief Judge, GREGORY, Circuit Judge, and Walter D.
KELLEY, Jr., United States District Judge for the Eastern District
of Virginia, sitting by designation.
Affirmed by unpublished per curiam opinion.
Raymond E. Dunn, Jr., EMANUEL & DUNN, P.L.L.C., New Bern, North
Carolina; J. Jefferson Newton, NEWTON LAW FIRM, Beaufort, North
Carolina, for Appellant. Joseph C. Moore, III, Arch T. Allen, III,
ALLEN & MOORE, L.L.P., Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).

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PER CURIAM:
Timothy Vernon Commee appeals the district court’s grant of
summary judgment to Nucor Corporation (“Nucor”) on Commee’s
negligence claims under North Carolina law. Commee was seriously
injured while employed by Lexicon, Inc. d/b/a Schueck Steel Company
(“Schueck”) in constructing a steel plant for Nucor. Because no
genuine issues of material fact exist and Nucor is entitled to
judgment as a matter of law, we affirm.
I.
Nucor, the largest producer of steel in the United States,
engaged Schueck and other independent contractors to construct a
steel mill on its land in Hertford County, North Carolina.
Specifically, in September and November of 1999, Nucor contracted
with Schueck for steel erection work in its roll mill bay. J.A.
29-71. Under the terms of the contracts, Schueck was to erect and
maintain “all safeguards for safety and protection of persons and
property” relating to its work. Id. at 32-33, 55-56. However,
Nucor retained some oversight of Schueck’s safety procedures during
the course of its construction activities. See, e.g., id. at 33,
56, 288-89. In addition, Nucor hired Gerald Beaumont to inspect
the job site every four to six weeks. During his visits, Beaumont
would report any hazards discovered to the relevant contractor’s
supervisor, and the problems would be corrected. Id. at 294-95.

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Nucor also maintained a presence at the construction site and
reserved the right to inspect and test Schueck’s work. Id. at 309.
Nucor was responsible for sequencing the work of the various
independent contractors active at the facility so that they would
not overcrowd any one area of the job site. Id. at 308-09.
Finally, Nucor’s contracts with Schueck required that Nucor be
named as an additional insured under Schueck’s comprehensive
liability insurance. Id. at 31-32, 54.
Schueck employed Commee, the plaintiff, as an ironworker for
its steel erection work at the Nucor Hertford mill. On May 12,
2000, Commee and other Schueck employees were installing a twenty-
six-foot steel beam at a height of sixteen feet in the roll mill
bay. One Schueck employee used a forklift to lift the beam into
the place where Commee was to weld it in. The beam struck an
unsecured overhead pipe rack (also installed by Schueck), which
caused the pipe rack to fall on Commee, sending him sixteen feet to
the ground. Commee sustained serious injuries as a result.
According to Commee’s expert, a forklift should not have been used
to lift a beam because it could not appropriately balance the load.
Id. at 371.
On May 7, 2003, Commee filed a complaint in the Eastern
District of North Carolina on the basis of diversity jurisdiction.
He sought to hold Nucor liable for his injuries under three
different theories of negligence under North Carolina law: (1)

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landowner liability; (2) retained control; and (3) non-delegable
duty based upon an inherently dangerous activity. After discovery,
Nucor moved for summary judgment. On December 13, 2004, the
district court granted Nucor’s motion because Commee could not
support the imposition of liability against Nucor under any of his
asserted theories.
II.
We review a district court’s grant of summary judgment de
novo. Castillo v. Emergency Med. Assocs., P.A., 372 F.3d 643, 646
(4th Cir. 2004). Summary judgment is appropriate if there is no
genuine issue of material fact and the movant is entitled to
judgment as a matter of law. Id. In reviewing the evidence, we
draw all reasonable inferences in favor of Commee, the nonmoving
party. Id.
III.
A federal court sitting in diversity applies the substantive
law of the state in which it sits, including the state’s
choice-of-law rules. Volvo Constr. Equip. N. Am., Inc. v. CLM
Equip. Co., 386 F.3d 581, 599-600 (4th Cir. 2004) (citing Erie R.R.
Co. v. Tompkins, 304 U.S. 64, 79 (1938) and Klaxon Co. v. Stentor
Elec. Mfg. Co., 313 U.S. 487, 496 (1941)). Based upon these

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1To the extent that there is a dispute between the parties as
to whether Nucor was acting as a general contractor, we do not
reach this issue because we do not find it dispositive of Commee’s
claims. Therefore, we will assume, without deciding, that Nucor
was acting as a general contractor.
5
principles, the substantive law of North Carolina applies. See
Boudreau v. Baughman, 368 S.E.2d 849, 853-54 (N.C. 1988).
Under North Carolina law, “one who employs an independent
contractor is not liable for the independent contractor’s
negligence” unless, as relevant here, either “the employer retains
the right to control the manner in which the contractor performs
his work” or the work involves an “inherently dangerous activity.”
Woodson v. Rowland, 407 S.E.2d 222, 234 (N.C. 1991). This general
rule applies with equal force regardless of whether we treat Nucor
as a landowner or a general contractor. 1 See id. Here, however,
Commee has attempted to assert liability based upon Nucor’s status
as a landowner in a separate claim from his assertion of liability
under the exceptions to the general rule. This, he cannot do. See
Vogh v. F.C. Geer Co., 88 S.E. 874, 876 (N.C. 1916) (holding that
as long as the work is not inherently dangerous, a landowner is
“permitted to free himself from liability by contract with another
for its execution”). See also Brown v. Texas Co., 76 S.E.2d 45, 47
(N.C. 1953) (landowner not liable for injuries to employees of an
independent contractor where the work was not inherently
dangerous); Cook v. Morrison, 413 S.E.2d 922, 926 (N.C. Ct. App.
1992) (noting that the “general rules on the tort liability of

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owners and occupiers . . . do not apply to the actual work
undertaken by independent contractors and their employees”).
Accordingly, Commee can only survive summary judgment,
regardless of whether Nucor was acting as a general contractor or
a landowner, if there is a genuine issue of material fact as to
whether one of the two asserted exceptions to the general rule
against liability applies. We therefore examine (1) whether Nucor
retained control of Schueck’s performance and, alternatively, (2)
whether the steel erection work here was inherently dangerous.
A.
Commee first argues that Nucor retained sufficient control of
Schueck’s work to hold Nucor liable. Under North Carolina law, one
who employs an independent contractor may be held liable if the
employer “retains the right to control the manner in which the
contractor performs his work.” Woodson, 407 S.E.2d at 234.
Specifically,
The proprietor may make himself liable by retaining the
right to direct and control the time and manner of
executing the work or by interfering with the contractor
and assuming control of the work, or of some part of
it[.] . . . But merely taking steps to see that the
contractor carries out the agreement, as having the work
supervised by an architect or superintendent, does not
make the employer liable, nor does reserving the right to
dismiss incompetent workmen.
Denny v. City of Burlington, 70 S.E. 1085, 1087 (N.C. 1911)
(internal quotation marks omitted). See also Hooper v. Pizzagalli

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2In the Maraman case, the Supreme Court of North Carolina
affirmed the portion of the court of appeals’s opinion that found
that neither the retained control nor inherently dangerous activity
exceptions applied to the general contractor defendant. 562 S.E.2d
at 421. It also clarified that this part of the lower court’s
opinion had been mislabeled as a dissent. Id.
7
Constr. Co., 436 S.E.2d 145, 149 (N.C. Ct. App. 1993) (applying
this language); O’Carroll v. Roberts Indus. Contractors, Inc., 457
S.E.2d 752, 756 (N.C. Ct. App. 1995) (same).
Applying these principles, the North Carolina appellate courts
have found that where an independent contractor is “free to perform
its job according to its own independent skill, knowledge,
training, and experience,” liability under a retained control
theory will not attach to the general contractor or landowner.
Hooper, 436 S.E.2d at 149. In addition, in the specific context of
retained control over safety measures, requiring that an
independent contractor take its own safety precautions or even
mandating compliance with the safety measures or requirements
initiated by the owner or general contractor does not amount to
control of the “method and manner” of performance. Maraman v.
Cooper Steel Fabricators, 555 S.E.2d 309, 323-24 (N.C. Ct. App.
2001), aff’d in part, rev’d in part, 562 S.E.2d 420 (N.C. 2002)
(per curiam). 2
Here, none of Nucor’s retained rights allowed it to control
the “method and manner” of Schueck’s performance of the steel
erection work. See id. Although Nucor maintained a supervisory

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presence on the site and retained the right to inspect Schueck’s
work, materials, and equipment, this does not amount to retained
control. See id. at 324; Denny, 70 S.E. at 1087. Likewise, under
Maraman, Nucor’s retained oversight over safety measures--such as
approving Schueck’s safety program, pointing out safety hazards,
and requiring that Schueck’s materials and practices live up to
safety regulations--does not support liability under the retained
control exception. See 555 S.E.2d at 324.
Nor does Commee’s remaining evidence support his contention
that Nucor retained control of Schueck’s performance. The fact
that Nucor contracted to be named as an insured on Schueck’s
comprehensive general liability insurance does not demonstrate a
retained right of control. Moreover, although Nucor was
responsible for sequencing the independent contractors’ work, we
cannot conclude that this general supervision constitutes control
over the method and manner of performance as meant by North
Carolina case law. Commee can point to no evidence that Nucor
instructed Schueck how to perform its steel erection work at the
site, “interfer[ed] with the contractor and assum[ed] control of
the work, or of some part of it,” see Denny, 70 S.E. at 1087, or
that Schueck was otherwise not “free to perform its job according
to its own independent skill, knowledge, training, and experience,”

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3Although not controlling, we also note that the Eighth
Circuit recently evaluated Nucor’s control over Schueck under
similar facts in a case arising in Nebraska. See Jordan v. Nucor
Corp., 295 F.3d 828, 836 (8th Cir. 2002). The court determined
under Nebraska law, that Nucor did not retain sufficient control
over Schueck’s performance to impose liability. Id.
4Commee’s brief also contains a discussion of the multi-
employer doctrine. The multi-employer doctrine provides that “an
employer who controls or creates a worksite safety hazard may be
liable under the Occupational Safety and Health Act [OSHA] even if
the employees threatened by the hazard are solely employees of
another employer.” Universal Constr. Co. v. Occupational Safety
and Health Review Comm’n, 182 F.3d 726, 728 (10th Cir. 1999).
North Carolina has accepted the multi-employer doctrine as a basis
for upholding OSHA citations of general contractors. See Comm’r of
Labor v. Weekley Homes, L.P., 609 S.E.2d 407 (N.C. Ct. App. 2005).
Commee does not argue this as a separate theory of liability.
See Br. of Appellant 11; Reply Br. of Appellant 6. Rather, as
relevant here, Commee appears to argue that the multi-employer
doctrine is evidence that Nucor retained control of Schueck’s
performance based upon contractual language that “[t]he parties
acknowledge that safety on the job site is of paramount importance
to Nucor” and “[a]ll Work, materials, and practices shall meet OSHA
requirements.” See Br. of Appellant 21-24 (quoting J.A. 32-33,
55). However, we do not believe that this demonstrates retained
control by Nucor. Rather, in the context of the full provision,
the language is directed toward Schueck’s responsibilities for
safety, not Nucor’s. See J.A. 32-33, 55.
9
see Hooper, 436 S.E.2d at 149. Indeed, the evidence shows that
Nucor employees were not even present when the accident occurred.3
For the foregoing reasons, the district court correctly
determined that Nucor did not retain sufficient control of
Schueck’s performance to be held liable to Commee. 4

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B.
Commee next argues that Nucor had a non-delegable duty to
ensure his safety because the steel erection work here was
inherently dangerous. “One who employs an independent contractor
to perform an inherently dangerous activity may not delegate to the
independent contractor the duty to provide for the safety of
others.” Woodson, 407 S.E.2d at 235. To impose liability under
this theory, Commee must show that: (1) the activity causing the
injury was inherently dangerous; (2) Nucor knew or should have
known that the activity was inherently dangerous; (3) Nucor failed
to take the necessary precautions to control the attendant risks;
and (4) that Nucor’s failure to take precautions proximately caused
Commee’s injury. Kinsey v. Spann, 533 S.E.2d 487, 492 (N.C. Ct.
App. 2000). Commee’s argument fails because he cannot show the
inherent danger of the steel erection work under the first prong of
the analysis.
In North Carolina, whether an activity is inherently dangerous
may be decided as a matter of law. Woodson, 407 S.E.2d at 235-38.
In making the determination of what is inherently dangerous, North
Carolina distinguishes between “inherently dangerous activities,
and those that are safe unless performed negligently.” Id. at 235.
To qualify under this exception, “[i]t is sufficient if there is a
recognizable and substantial danger inherent in the work, as
distinguished from a danger collaterally created by the independent

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negligence of the contractor, which latter might take place on a
job itself involving no inherent danger.” Evans v. Elliott, 17
S.E.2d 125, 128 (N.C. 1941).
Whether an activity is inherently dangerous can vary based
upon the circumstances in which the work is performed. For
example, digging a trench in a heavily populated area is inherently
dangerous as a matter of law, whereas trenching in a pasture might
not be. See Woodson, 407 S.E.2d at 236 (citing Evans, 17 S.E.2d at
130). With respect to the trench-digging scenario, which is a
recurrent subject in the North Carolina cases,
the focus is not on some abstract activity called
“trenching.” The focus is on the particular trench being
dug and the pertinent circumstances surrounding the
digging. It must be shown that because of these
circumstances, the digging of the trench itself presents
“a recognizable and substantial danger inherent in the
work, as distinguished from a danger collaterally created
by the independent negligence of the contractor.”
Id. at 237 (quoting Evans, 17 S.E.2d at 128). Thus, a
consideration of the attendant circumstances of the work is
relevant to the inquiry.
North Carolina courts have previously considered the inherent
danger of steel erection. In Vogh, the Supreme Court of North
Carolina faced a scenario in which the independent contractor’s
employee was engaged in steel and iron work on the fourth floor of
a building under construction. 88 S.E. at 875. The employee was
injured when a faulty wooden plank that had been laid across the
girders for workers to stand on broke. Id. The court held that

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the erection of a building was not inherently dangerous. Id. at
876.
Recently, the North Carolina courts addressed the inherent
danger of steel construction in a situation even more akin to the
present one. See Maraman, 555 S.E.2d at 324-25. In Maraman, the
independent contractor’s employee was standing on a girder without
a safety line at a height of thirty-one feet. Id. at 312. As he
attempted to position an eighty-five foot steel joist being lifted
by a crane, the joist struck him in the head, knocking him to the
ground. Id. The Court of Appeals of North Carolina held that this
steel construction work was not inherently dangerous as a matter of
law. Id. at 324-25 (finding the facts indistinguishable from
Vogh). In the analogous situation presented here, the steel
erection at the Nucor Hertford plant involved a shorter steel beam
(twenty-six feet) and a shorter height of installation (sixteen
feet). Thus, we are unable to distinguish the particular
circumstances of the present steel erection from the steel erection
work in Maraman in favor of Commee.
Commee attempts to counter this precedent on several fronts.
First, he points to his expert opinion that the use of the forklift
made the work dangerous because it was not the appropriate
equipment for the job. See J.A. 371. However, any danger created
by the use of the forklift was the result of negligence collateral
to the work performed, which, as discussed, does not reflect on the

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inherent danger of the activity. Compare Hooper, 436 S.E.2d at 149
(use of a thirteen-foot scaffold with no guardrails and without
being secured was collateral to the plumbing work being performed,
which was not inherently dangerous) with Lilley v. Blue Ridge Elec.
Membership Corp., 515 S.E.2d 483, 485, 487 (N.C. Ct. App. 1999)
(genuine issue of material fact as to whether setting one-ton
utility poles in “treacherous” mountain terrain was inherently
dangerous).
Next, Commee references the high mortality rate in the
construction industry, and offers an expert opinion that “steel
erection and construction activities associated with steel erection
are inherently dangerous activities” and that “there were
recognized and substantial dangers inherent in and peculiar to the
steel erection project at the Nucor plant in Hertford.” J.A. 370.
However, the expert’s general characterization of steel erection
work as inherently dangerous cannot overcome the law of North
Carolina. Nor does the expert’s assessment that the particular
circumstances here rendered the work inherently dangerous support
Commee’s claim; his expert’s stated reasons for this conclusion--
such as the improper use of the forklift--fail to distinguish the
present facts from the North Carolina precedent. See id. at 370-
71. As a result, we conclude that Commee has failed to show that
a genuine issue of material fact exists with respect to the
inherent danger of the steel erection at issue here. We therefore

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5Because we affirm the district court’s decision to grant
summary judgment on these bases, we do not reach Nucor’s
alternative grounds that Commee’s exclusive remedy is under the
North Carolina Workers’ Compensation Act or that the judgment can
be affirmed due to collateral or contributory negligence.
14
affirm the district court’s conclusion that the inherently
dangerous activity exception does not apply. 5
IV.
Because the district court correctly concluded that Commee’s
evidence does not support recovery for him under any of his
asserted theories of relief, we affirm its grant of summary
judgment to Nucor.
AFFIRMED

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