Magana v. Dave Roth Constr.

2009 UT 45
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
----oo0oo----
Celso Magana and Yolanda Magana, 	No. 20080629
Plaintiffs and Petitioners,
v.
Dave Roth Construction,
ABM Crane Rental, and
John Does I-V, 	F I L E D
Defendants and Respondent. 	July 21, 2009
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Third District, Salt Lake
The Honorable Kate A. Toomey
No. 050914998
Attorneys: 	Daniel F. Bertch, Kevin K. Robson, Salt Lake City,
for petitioners
Peter H. Barlow, Ryan P. Atkinson, Salt Lake City,
for respondent
---
On Certiorari to the Utah Court of Appeals
DURRANT, Associate Chief Justice:
INTRODUCTION
¶1 	In the spring of 2005, Celso Magana worked for an
independent contractor that subcontracted with Dave Roth
Construction (“DRC”) to frame the walls for a planned restaurant.
While Magana was working at the construction site, a load of
trusses slipped from its rigging during the off-loading process
and fell on Magana. 	As a result, Magana suffered spinal injuries
and is now paraplegic.
¶2 	Magana filed a negligence claim against DRC and ABM
Crane Rental, asserting, in part, that DRC’s superintendent,
Brett Campbell, negligently rigged the bundle of trusses that
fell on Magana. 	DRC later moved for summary judgment, claiming

1 R&R Indus. Park, L.L.C. v. Utah Prop. & Cas. Ins. Guar.
Ass’n, 2008 UT 80, ¶ 18, 199 P.3d 917 (quoting Orvis v. Johnson,
2008 UT 2, ¶ 6, 177 P.3d 600).
No. 20080629 	2
that Campbell did not actively participate in the off-loading of
the trusses and, therefore, DRC was shielded from liability by
the retained control doctrine. 	In response, Magana argued
liability under two negligence theories: 	retained control and
direct negligence.
¶3 	The district court granted DRC’s motion for summary
judgment, dismissing Magana’s negligence claim against DRC. 	The
court of appeals affirmed the district court’s decision. 	Both
courts determined that even if Campbell directly participated in
rigging the trusses, he did not actively participate in the
rigging process in such a way as to retain sufficient control to
expose DRC to liability for the negligent rigging of the trusses.
Neither court addressed Magana’s direct negligence argument
outside the context of the retained control doctrine.
¶4 	We granted certiorari on the question of whether the
court of appeals erred in its analysis of Magana’s active
participation argument. 	For the reasons discussed below, we hold
that (1) the court of appeals correctly analyzed Magana’s
retained control argument, but (2) erred in failing to consider
Magana’s direct negligence argument outside the context of the
retained control doctrine. 	Accordingly, we reverse the court of
appeals’ decision, and we remand this case to the district court
to further consider Magana’s direct negligence claim.
BACKGROUND
¶5 	Because we are reviewing a grant of summary judgment,
we view “‘the facts and all reasonable inferences drawn therefrom
in the light most favorable’” to Magana, the nonmoving party. 1
Accordingly, we recount the facts in the light most favorable to
Magana.
¶6 	The owner of a future restaurant hired DRC as the
general contractor on the construction project. 	As general
contractor, DRC was responsible for overseeing the construction
of the building, purchasing building materials for the project,
and securing necessary subcontractors. 	DRC hired Brett Campbell
to superintend and manage the project. 	Among other duties,
Campbell’s job description included inspecting and ensuring
quality control of the work completed by the subcontractors,
including Circle T Construction (“Circle T”).

3 	No. 20080629
¶7 	DRC subcontracted with Circle T to provide “framing
labor and crane work.” 	Circle T conducted most of the framing
work, and Campbell and DRC participated in related tasks. 	For
example, Campbell worked with Circle T’s owner, Ted Alexander, to
determine where to place the walls, and Campbell snapped the
lines marking their location. 	Further, DRC supplied the lumber
and arranged for the shipping of the framing materials to the
project site. 	In addition, Magana claims that DRC was
responsible for determining where on the construction site the
lumber should be placed.
¶8 	On the day before the accident, Campbell notified
Alexander that truss joists were arriving that day and that
Circle T was responsible for off-loading the joists by crane.
Alexander later learned that the crane company Circle T normally
used was not available and notified Campbell. 	Campbell offered
to help Alexander find another crane company, and both agreed to
start calling crane companies. 	Campbell eventually found an
available crane company and scheduled it to off-load the truss
joists the following day.
¶9 	The next morning, Campbell “got Ted Alexander and the
truck driver [of the truck carrying the trusses] together to work
out the exact place to unload the trusses.” 	The crane showed up
later that morning, and Alexander directed the crane’s operator
where to set up the crane and where to off-load the trusses.
After the crane was set up, Alexander and Campbell began off-
loading the trusses. 	Before lifting the first load of trusses
from the truck bed, the bundles were rigged to a hoist. 	The
crane off-loaded the first bundle without any help or direction
from Campbell, after which Circle T employees removed the rigging
straps and returned them to Alexander.
¶10 	Magana testified that after the first bundle of trusses
was off-loaded, he saw Campbell on the bed of the flatbed truck
with Alexander, and both were placing straps around the second
bundle of trusses.
¶11 	While this second bundle was being carried to the off-
loading site, the bundle became unbalanced and fell on Magana.
As a result, Magana suffered spinal injuries and is now
paraplegic. 	When the load fell on Magana, Campbell was on the
truck bed helping Alexander unload boxes of blocking.
¶12 	The off-loading process was solely Circle T’s
responsibility. 	Campbell and Alexander both testified that even
if Campbell had helped in rigging the trusses, he did not retain
any control over the process or direct, instruct, or control the

2 Magana v. Dave Roth Constr., 2008 UT App 240U.
No. 20080629 	4
manner in which the truss joists were rigged or off-loaded. 	Both
also testified that if Campbell had assisted Alexander to rig the
trusses, Alexander would have retained complete control over
Campbell’s rigging work.
¶13 	ABM Crane Rental did not bill either DRC or Circle T
for its work on the date of the accident. 	But the owner of the
crane company stated that he would have billed DRC for the work,
not Circle T.
¶14 	Following the accident, Magana filed a complaint
alleging that ABM Crane Rental’s and DRC’s negligence caused
Magana’s injuries. 	Magana subsequently settled with ABM Crane
Rental. 	DRC moved for summary judgment. 	In support of the
motion, DRC argued that Circle T, not Campbell, controlled the
manner in which the trusses were rigged and off-loaded and,
therefore, DRC was not liable for Campbell’s negligence, even if
Campbell were the one who negligently rigged the trusses.
¶15 	In response, Magana asserted two negligence theories.
First, Magana made a direct negligence argument. 	Specifically,
Magana claimed that Campbell directly helped rig the second load
of truss joists and that there was an issue of fact as to whether
Campbell was the one who “failed to safely rig the second load of
truss joists.” 	Magana also made this argument before the court
of appeals and does so before us as well.
¶16 	Second, Magana argued that because Campbell (1) was
responsible for on-site safety, (2) determined where to place the
walls and snapped a line marking their location, (3) hired the
crane company, (4) directed the crane where to set up and off-
load the trusses, and (5) directly participated in rigging the
second load, DRC actively participated in Circle T’s work and was
liable for Magana’s injuries under the retained control doctrine.
¶17 	The district court granted DRC’s motion and determined
that the central issue in the matter was whether DRC, through
Campbell, actively participated in the off-loading process. 	The
court found that DRC did not actively participate, and, based on
that finding, the court granted the summary judgment motion.
Magana appealed the decision to the Utah Court of Appeals, which
likewise held that Magana failed to show that Campbell exercised
sufficient control over Alexander or Circle T to meet the active
participation standard. 2

3 Massey v. Griffiths, 2007 UT 10, ¶ 8, 152 P.3d 312.
4 For purposes of the general non-liability rule, the terms
“employer” and “independent contractor” are used generally. 	For
example, the term “employer” could mean an owner who hires a
contractor to oversee the construction of a building, in which
case the contractor would be considered the “independent
contractor.” 	The term “employer” could also mean a contractor
who hires a subcontractor to complete a specific part of the
construction, in which case the subcontractor would be the
“independent contractor.” 	In the current case, the employer is
(continued...)
5 	No. 20080629
¶18 	Magana subsequently filed a petition for certiorari
review, which we granted. 	Pursuant to our jurisdiction under
Utah Code section 78A-3-102(3)(a) (2008), we now review the court
of appeals’ decision and determine whether the court of appeals
correctly applied the active participation standard to Magana’s
claims.
STANDARD OF REVIEW
¶19 	On certiorari, we review the court of appeals’ decision
for correctness. 3
ANALYSIS
¶20 	We hold that the court of appeals’ analysis of the
active participation standard, as it relates to DRC’s argument
that it did not retain control, was correct. 	But the active
participation standard does not apply to Magana’s direct
negligence argument. 	Because a question of fact remains
regarding Campbell’s direct negligence in causing Magana’s
injuries, the court of appeals erred in affirming the district
court’s dismissal of Magana’s negligence claim against DRC.
I. 	THE COURT OF APPEALS CORRECTLY APPLIED THE ACTIVE
PARTICIPATION STANDARD
¶21 	Magana contends that DRC, through its agent Campbell,
is liable for the negligence that caused Magana’s injuries
because Campbell “actively participated” in the construction
project. 	We disagree. 	Active participation is a term of art
that describes the level of control necessary to find an employer
liable for its contractor’s actions. 	In this case, DRC and its
agent Campbell are the employer while Circle T and its agent
Alexander are the contractor as those terms are used in applying
the active participation standard. 4

4 (...continued)
DRC and the contractor is Circle T.
5 Thompson v. Jess, 1999 UT 22, ¶ 13, 979 P.2d 322 (quoting
Restatement (Second) of Torts § 409 (1965)).
6 Id.
7 Begaye v. Big D Constr. Corp., 2008 UT 4, ¶ 8, 178 P.3d
343 (alterations in original) (quoting Thompson, 1999 UT 22,
¶ 13).
8 Id. ¶ 8 (quoting Thompson, 1999 UT 22, ¶ 15).
9 Id. ¶¶ 8-9.
No. 20080629 	6
¶22 	“Utah adheres to the general common law rule that ‘the
employer of an independent contractor is not liable for physical
harm caused to another by an act or omission of the contractor or
his servants.’” 5 	“This general rule recognizes that one who
hires an independent contractor and does not participate in or
control the manner in which the contractor’s work is performed
owes no duty of care concerning the safety of the manner or
method of performance implemented.” 6 	By the rule’s plain
language, the scope of the rule is limited to circumstances in
which the direct act or omission of the contractor, not the
employer, causes an injury.
¶23 	Despite the general non-liability rule, the employer of
a contractor remains liable for the contractor’s actions when the
employer “‘participate[s] in or control[s] the manner in which
the contractor’s work is performed,’ and therefore ‘owes [a] duty
of care concerning the safety of the manner or method of
performance implemented.’” 7 	This exception to the general non-
liability rule is called the retained control doctrine, and it is
applied narrowly in “‘unique circumstance[s] where an employer of
an independent contractor exercises enough control over the
contracted work to give rise to a limited duty of care.’” 8
¶24 	In determining whether an employer exercised sufficient
control to create liability under the retained control doctrine,
we apply the active participation standard. 9 	Under that
standard, an employer has a duty to ensure the safety of its
contractor’s work where the employer “actively participates” in

10 Thompson, 1999 UT 22, ¶ 19.
11 Begaye, 2008 UT 4, ¶ 9 (emphasis omitted) (quoting
Thompson, 1999 UT 22, ¶ 19).
12 Thompson, 1999 UT 22, ¶ 20 (quoting Restatement (Second)
of Torts § 414 cmt. c (1965)).
7 	No. 20080629
the contractor’s work. 10 	An employer actively participates if
the employer “‘directs that the contracted work be done by use of
a certain mode or otherwise interferes with the means and methods
by which the work is to be accomplished.’” 11 	In contrast, an
employer does not actively participate in an activity when the
employer merely exercises “‘a general right to order the work
stopped or resumed, to inspect its progress or to receive
reports, to make suggestions or recommendations which need not
necessarily be followed, or to prescribe alterations and
deviations.’” 12
¶25 	Accordingly, the retained control doctrine and the
accompanying active participation standard establish a two-step
analysis. 	The first step is to determine whether the employer
actively participated in the contractor’s work and, therefore,
had a limited duty of care to ensure that the work was conducted
safely. 	When an employer actively participates, the next step is
to determine whether the employer breached that duty of care.
¶26 	Magana asserts that DRC is liable for Magana’s injuries
because Campbell actively participated by: 	(1) snapping the
lines for the walls and determining where to place them; (2)
deciding with Circle T where to off-load the lumber shipped to
the site; (3) hiring the crane company that assisted in the off-
loading; (4) bearing responsibility for on-site safety; and (5)
directly participating in rigging the load of truss joists that
fell on Magana. 	The first three facts that Magana relies upon
fail to meet the active participation standard because they
exceed the scope of the injury-causing activity. 	The fourth fact
fails to meet the standard because a duty over general on-site
safety cannot establish active participation. 	Finally, the fifth
fact fails to meet the standard because it does not demonstrate
that Magana retained control over the means and methods of
rigging the trusses.
A. 	Scope of the Injury-Causing Activity
¶27 	Under the retained control doctrine, an employer is
liable for the actions of an independent contractor when the
employer exerts sufficient control over the independent

13 Begaye, 2008 UT 4, ¶ 11 (emphasis added) (quoting
Thompson, 1999 UT 22, ¶ 21).
14 Mitchell v. Pearson Enters., 697 P.2d 240, 245-46 (Utah
1985) (quoting State v. Lawson, 688 P.2d 479, 482 n.3 (Utah
1984)).
15 Begaye, 2008 UT 4, ¶ 5 n.2; see also Thompson, 1999 UT
22, ¶ 24 (refusing to find an employer liable for the acts of an
independent contractor where the extent of the employer’s control
(continued...)
No. 20080629 	8
contractor “such that [the contractor cannot] ‘carry out the
injury-causing aspect of the work’ in its own way.” 13 	An aspect
of the work constitutes an injury-causing aspect when the aspect
is a legal cause of the plaintiff’s injuries. 	An event is the
legal or proximate cause of the plaintiff’s injury when the event
“‘in natural and continuous sequence, (unbroken by an efficient
intervening cause), produces the injury and without which the
result would not have occurred. 	It is the efficient cause--the
one that necessarily sets in operation the factors that
accomplish the injury.’” 14
¶28 	Magana was injured when a load of trusses slipped from
their straps and fell from the crane that was carrying them,
landing on Magana. 	The rigging process involved strapping the
load of trusses to the crane. 	Neither Campbell’s snapping the
lines for the walls and determining where to place them, his
deciding with Circle T where to off-load the lumber shipped to
the site, nor his hiring the crane company that assisted in the
off-loading was the legal cause of Magana’s injuries. 	Each of
the above listed activities occurred prior to the rigging of the
load of trusses, which rigging constituted an efficient
intervening cause of Magana’s injuries. 	Further, Magana fails to
offer any explanation or theory as to how any of the above stated
actions relate to off-loading the trusses. 	Accordingly, each
falls outside the scope of the injury-causing aspect of Circle
T’s work and, therefore, fails to show that DRC, through
Campbell, actively participated in the process.
B. 	General Responsibility for On-Site Safety
¶29 	Only Campbell’s general responsibility for on-site
safety spanned the period during and after the load was rigged.
Yet we have held that a general obligation to oversee safety on a
project “does not equate to exerting control over the method and
manner of the injury-causing aspect of [the sub-contractor’s]
work.” 15 	The same is true even where the general contractor has

15 (...continued)
“amounted merely to control over the desired result” of a
project).
16 Begaye, 2008 UT 4, ¶ 11 n.4.
17 Id. (quoting Martens v. MCL Constr. Corp., 807 N.E.2d
480, 490 (Ill. App. Ct. 2004)).
18 Id. ¶ 9 (emphasis omitted) (quoting Thompson, 1999 UT 22,
¶ 19).
19 Thompson, 1999 UT 22, ¶ 21.
20 Id. ¶ 20 (quoting Restatement (Second) of Torts § 414
cmt. c (1965)).
9 	No. 20080629
closely monitored on-site safety. 16 	In support of this rule, we
have noted that “[p]enalizing a general contractor’s efforts to
promote safety and coordinate a general safety program among
various independent contractors at a large jobsite hardly serves
to advance the goal of work site safety.” 17 	Therefore,
Campbell’s general responsibility for on-site safety does not
amount to actively participating in an injury-causing aspect of
the work.
C. 	Retaining Control of the Means and Methods of the Work
¶30 	Finally, Magana asserts that DRC is liable for Magana’s
injuries under the retained control doctrine because Campbell
actively participated by assisting Alexander in rigging the load
of truss joists that fell on Magana. 	We disagree.
¶31 	Under the retained control doctrine, the employer must
“‘direct[] that the contracted work be done by use of a certain
mode or otherwise interfere[] with the means and methods by which
the work is to be accomplished.’” 18 	In other words, this
standard requires that an employer “exert such control over the
means utilized that the contractor cannot carry out the injury-
causing aspect of the work in his or her own way.” 19 	Thus, the
question of whether an employer actively participated is not
simply whether an employer participated in an injury-causing
activity, but whether the employer controlled the means and
methods by which the injury-causing activity was performed. 20

21 825 P.2d 5, 7-8 (Ariz. 1992).
22 Thompson, 1999 UT 22, ¶ 22.
23 Id. (citing Lewis, 825 P.2d at 7-8).
24 Id.
25 Id.
26 Id. (citing Lewis, 825 P.2d at 7-8).
27 Id. ¶ 23 (citing Lewis, 825 P.2d at 14–15).
28 See id. ¶¶ 22, 24.
No. 20080629 	10
¶32 	As we noted in an earlier decision, the Arizona Supreme
Court’s decision in Lewis v. N.J. Riebe Enterprises, Inc. 21
illustrates the degree of control necessary to meet the active
participation standard. 22 	In Lewis, a general contractor ordered
a subcontractor to reinstall a roof using a different method than
that generally used by the subcontractor. 23 	The contractor’s
method was faster but less safe than that normally used by the
subcontractor. 24 	Employing the new method resulted in numerous
sheets of plywood lying unfastened on top of the roof’s beams. 25
One of the subcontractor’s employees later stepped on one of the
loose sheets and fell through the roof. 26 	The Arizona Supreme
Court held that, under these facts, the contractor interfered
with the subcontractor’s normal method of performing the work
and, therefore, was subject to retained control liability. 27 	We
agreed and held that this was the degree of control necessary to
meet our active participation standard. 28
¶33 	Applying this standard to the case at hand, we affirm
the court of appeals’ conclusion that Campbell did not actively
participate in rigging the load of trusses.
¶34 	The undisputed evidence shows that Circle T, through
its agent Alexander, controlled the off-loading process.
Alexander decided where to place the truss joists and was solely
responsible for the method and means used to off-load the
trusses. 	Both Campbell and Alexander testified that, even if
Campbell helped rig the second load, he did not direct, instruct,
or control the manner in which Circle T conducted the operation.
Magana did not contest their testimony. 	Rather, he suggests that
by participating in rigging the second load, Campbell actively
participated in off-loading the trusses. 	However, participation
alone is not sufficient to show active participation for purposes

29 Begaye v. Big D Constr. Corp., 2008 UT 4, ¶ 8, 178 P.3d
343.
11 	No. 20080629
of the retained control doctrine. 	Because Magana failed to offer
any testimony or other evidence supporting a claim that Campbell
directed or controlled the manner in which Circle T off-loaded
the trusses, his argument fails.
¶35 	In sum, the court of appeals correctly held that DRC,
through Campbell, did not actively participate for purposes of
the retained control doctrine in off-loading the trusses when he
determined where to place the walls, snapped the lines to mark
the location of the walls, hired the crane company, decided with
Circle T where to place the trusses, bore responsibility for on-
site safety, or helped Alexander rig the second load of trusses.
Each of these activities either exceeds the scope of the injury-
causing activity or fails to show that DRC exercised sufficient
control over Circle T’s work. 	Accordingly, DRC did not owe
Magana a duty to ensure that Circle T conducted the off-loading
process safely and is not liable under the retained control
doctrine for Magana’s injuries.
II. 	THE RETAINED CONTROL DOCTRINE DOES NOT IMMUNIZE A CONTRACTOR
FROM ITS OWN NEGLIGENT ACTS
¶36 	We now turn to Magana’s direct negligence theory.
Although the court of appeals correctly held that Campbell’s
assistance in rigging the second load of trusses did not
constitute retaining control of the subcontractor’s actions, the
court erred in affirming the dismissal of Magana’s negligence
claim. 	The court made this error because it only considered
Magana’s negligence claim under the retained control doctrine.
The court failed to separately consider Magana’s claim under the
direct negligence theory that Magana also advanced.
¶37 	The retained control doctrine is separate and distinct
from a direct negligence theory. 	Specifically, the retained
control doctrine does not apply when a plaintiff alleges that an
employer’s own actions were negligent. 	Rather, the doctrine is
limited to circumstances where the plaintiff alleges that the
employer of a contractor is liable for the contractor’s
negligence because the employer retained sufficient control over
the contractor’s actions to owe the plaintiff a duty of care
regarding the contractor’s actions. 29 	Likewise, the common law
general non-liability rule only recognizes that employers are not

30 Thompson v. Jess, 1999 UT 22, ¶ 13, 979 P.2d 322
(“‘[T]he employer of an independent contractor is not liable for
physical harm caused to another by an act or omission of the
contractor or his servants.’” (emphasis added) (quoting
Restatement (Second) of Torts § 409 (1965))).
31 See W. Page Keeton et al., Prosser and Keeton on the Law
of Torts 510 (1984) (“Quite apart from any question of vicarious
responsibility, the employer may be liable for any negligence of
his own in connection with the work to be done.”).
32 See, e.g., Thompson, 1999 UT 22, ¶¶ 22-23.
33 DRC contends that Magana’s testimony regarding Campbell
rigging the trusses is inconsistent and should, therefore, be
disregarded. 	We disagree.
In Webster v. Sill, we explained that “when a party takes a
clear position in a deposition, that is not modified on cross-
examination, he may not thereafter raise an issue of fact by his
own affidavit which contradicts his deposition, unless he can
provide an explanation of the discrepancy.” 	675 P.2d 1170, 1172-
73 (Utah 1983).
Magana’s deposition testimony was unclear and his subsequent
affidavit provided a sufficient explanation of the discrepancy.
In his deposition, Magana first testified that he saw someone
(continued...)
No. 20080629 	12
liable for the actions of their contractors. 30 	The rule does not
speak to an employer’s liability for its own actions. 31
¶38 	Once an employer goes beyond mere direction or control
of the contractor’s work and directly acts in such a way that
causes an injury, the employer may be liable for its own direct
negligence. 	It is not a defense that the employer was conducting
the work of the independent contractor when the employer caused
the injury. 	Simply because an employer submits to the means and
methods chosen by the contractor does not change the fact that
the employer remains the contractor’s employer. 	If while
assisting the contractor the employer were to decide to change
the means and methods of the work, the employer would be at
liberty to do so. 32 	Accordingly, we conclude that an employer
remains liable for its own direct actions, even if the employer
is assisting its contractor and acting according to the means and
methods that the contractor has prescribed.
¶39 	Magana testified that he observed Campbell and
Alexander both rigging the load of trusses that subsequently
slipped and fell on Magana. 33 	DRC accepts this fact as true for

(...continued)
helping Alexander rig the second load, and then changed his
testimony by stating he was not sure whether he saw someone
helping. 	This inconsistency within the testimony itself suggests
that his position was unclear. 	During cross-examination, Magana
modified his statement by stating that someone did help Alexander
rig the second load. 	In a subsequent affidavit, Magana explained
that in regard to his answer that he was not sure whether he saw
someone help rig the load, there was either a mis-translation or
he had misunderstood the question. 	Under Webster this is a
sufficient explanation of the discrepancy such that we decline to
disregard Magana’s testimony.
13 	No. 20080629
purposes of its summary judgment motion. 	Whether Campbell indeed
assisted in the rigging of the load of trusses that slipped and
fell on Magana is a question of fact regarding Campbell’s direct
negligence. 	Accordingly, the court of appeals erred in affirming
the district court’s grant of summary judgment.
CONCLUSION
¶40 	The court of appeals correctly held that DRC, through
its agent Campbell, did not retain control of the off-loading of
the truss joists by determining where to place the walls of the
restaurant, deciding with Circle T where to off-load the lumber
on-site, hiring the crane company that assisted in the off-
loading, bearing responsibility for on-site safety, and directly
participating in rigging the second load of truss joists. 	In
each instance, Magana’s claims either exceeded the scope of the
injury-causing aspect of Circle T’s work or failed to meet the
active participation standard. 	But the active participation
standard does not apply to Magana’s direct negligence theory. 	By
asserting that Campbell himself negligently rigged the truss
joists, Magana’s negligence claim exceeds the scope of the
retained control doctrine because the assertion relates to
Campbell’s acts, and not the acts of Circle T. 	Further, Magana’s
testimony that he witnessed Campbell rig the second load is
sufficient to create a factual issue as to direct negligence.
Therefore, we reverse the court of appeals’ decision and remand
this case to the district court for further proceedings
consistent with this opinion.
---
¶41 	Chief Justice Durham, Justice Wilkins, Justice Parrish,
and Justice Nehring concur in Associate Chief Justice Durrant’s
opinion.