Date: 04-09-2018

Case Style: Katherine K. Morgan v. Baker Hughes Incorporated

District of Wyoming Federal Courthouse - Cheyenne, Wyoming

Case Number: 17-8002

Judge: Carlos F. Lucero

Court: United States Court of Appeals for the Tenth Circuit on appeal from the District of Wyoming (Laramie County)

Plaintiff's Attorney: Fred Harrison and Andy Vickery

Defendant's Attorney: Stephenson D. Emery, Stephen P. Laitinen, Mark Solbheim

Description: Katherine Morgan, as wrongful death representative of her deceased husband
David Morgan, appeals the district court’s grant of judgment as matter of law
(“JMOL”) in favor of Baker Hughes Incorporated, issued after trial but before the
case was submitted to the jury. Because material disputes in the evidence remain for
resolution by the jury, we conclude that JMOL was inappropriate. Exercising
jurisdiction under 28 U.S.C. § 1291, we reverse the grant of JMOL, while affirming
evidentiary rulings made during the course of trial.
* This order and judgment is not binding precedent, except under the doctrines
of law of the case, res judicata, and collateral estoppel. It may be cited, however, for
its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
FILED
United States Court of Appeals
Tenth Circuit
April 3, 2018
Elisabeth A. Shumaker
Clerk of Court
2
I
On August 16, 2012, David Morgan (“Morgan”) was fatally crushed by a
heavy chemical tote that fell from a forklift at his place of employment. At that time,
he worked as a Project Coordinator in the Casper, Wyoming warehouse of Baker
Petrolite Incorporated (“Baker Petrolite”). Baker Petrolite is a subsidiary of Baker
Hughes Incorporated (“Baker Hughes”), a “matrix organization” that owns more than
one hundred legal entities in eighty countries. Prior to the accident, Morgan had
worked with forklifts at the Casper warehouse for eighteen years, and had received
regular training on forklift operation for nine years. Morgan’s widow brought suit
against Baker Hughes, claiming the company negligently controlled safety operations
at the Casper warehouse, which caused Morgan’s accident.
In 2010, Baker Hughes acquired BJ Services Company, then-owner of the
Casper warehouse. Baker Hughes initially left the safety management systems of BJ
Services in effect, having determined that the safety procedures were in accord with
applicable Occupational Safety and Health Administration (“OSHA”) regulations. In
early 2011, however, Baker Hughes began to integrate the forklift safety systems of
BJ Services, Baker Petrolite, and another company—Baker Hughes Oilfield
Operation—into a single common system.
Prior to entry of JMOL, Richard Bui, Vice President of Health and Safety for
Baker Hughes, testified at trial that a “consistent” application of procedures within
Baker Hughes was important because of the numerous people moving between
organizations. Bui testified that Baker Petrolite controlled the forklift safety program
3
at the Casper warehouse, and that he was not directed by any Baker Hughes
employees on how to carry out his Baker Petrolite-related responsibilities. He
asserted that it was Morgan who was responsible for implementing safety measures at
the Casper warehouse, and that Morgan’s immediate contact for safety-related issues
was a Baker Petrolite employee.
Other witnesses testified that Baker Hughes promulgated a comprehensive
procedural manual on forklift safety that became effective approximately seven
months before Morgan’s death. Although it was available to employees of Baker
Hughes subsidiaries electronically, the manual was not specifically given to Morgan.
The manual’s contents established requirements for operation of forklifts by “Baker
Hughes employees and contract employees at Baker Hughes facilities and at client
sites.” Managers at Baker Hughes subsidiaries were obligated to ensure requirements
in the manual were implemented and verify that “employees and contract employees”
were trained to established standards in the manual. One of the documents included
in the manual was titled “Forklift Safe Work Practices User Guide.” All Baker
Hughes entities were required to address the User Guide in their training programs.
Bui testified that the manual was designed to provide high-level, generalized
procedures that each facility would be free to modify. Each individual facility was
ultimately responsible for applying the guidelines in the manual.
The section of the manual most directly implicated in Morgan’s death was
titled “Parking.” It instructed forklift operators to “fully lower” the load when
parking a forklift. Additionally, the section specified that when the operator is more
4
than fifteen feet away from the forklift, the forklift “should be turned off and the key
removed.”
Several years before the accident, one of Morgan’s co-workers noticed that
when forklifts were running, totes “crept” down the forks as a result of vibration. To
steady the tote, Morgan and his coworker developed a practice of roping totes to the
forklift to prevent them from moving. Bui, accompanied by a subordinate, visited the
Casper warehouse in June of 2012 and discussed forklift safety with Morgan.
Noticing a rope tied to a forklift, Bui suggested that the tote might be better secured
with a nylon cargo strap. At the time of this visit, Bui worked under the president of
Baker Petrolite and also reported to the “head guy of HSE [Health, Safety, and
Environment] at Baker Hughes Incorporated.”
On the day of the accident, Morgan was working alone in the Casper
warehouse. Having suspended a 4,500-pound chemical tote about eighteen inches off
the ground on a forklift, he proceeded to take a sample from a valve underneath the
tote. The tote tipped forward on top of Morgan and crushed him to death. After one
of Morgan’s coworkers discovered his body, an individual named David
Munzenmaier called OSHA’s after-hours phone line to report the fatality.
Munzenmaier identified himself as “with Baker Hughes” and his title as “HSES
[Health, Safety, Environment, and Security] Director of industrial service portfolio.”
A fatality narrative prepared by OSHA described “Baker Hughes and Baker Petrolite
Corporation personnel” as present during the OSHA examination of the accident site.
OSHA additionally described the accident scene as having been preserved by “Baker
5
Hughes and Baker Petrolite Corporation officials.” After Morgan’s death, Baker
Hughes issued a safety alert to all of its subsidiaries. The alert briefly described the
circumstances surrounding the accident. It also included immediate
recommendations for improving forklift operations, one of which was review of the
manual and local documents governing its implementation.
After the plaintiff rested her case, the district court considered and granted a
motion by Baker Hughes motion for JMOL under Fed. R. Civ. P. 50.
II
We review a district court’s grant of JMOL de novo. Strickland v. United
Parcel Serv., Inc., 555 F.3d 1224, 1228 (10th Cir. 2009). In this diversity action,
Wyoming law controls substantive issues, Mid-Continent Cas. Co. v. True Oil Co.,
767 F.3d 1000, 1003 (10th Cir. 2014), but federal law controls the procedural issue of
whether plaintiff presented sufficient evidence to withstand a motion for JMOL.
Sharon Steel Corp. v. Lakeshore, Inc., 753 F.2d 851, 853 (10th Cir. 1985). We must
“draw all reasonable inferences in support of the nonmoving party.” Haynes Trane
Serv. Agency Inc. v. Am. Standard, Inc., 573 F.3d 947, 955 (10th Cir. 2009). JMOL
is “only appropriate if the evidence points but one way and is susceptible to no
reasonable inferences which may support the opposing party’s position.” Strickland,
555 F.3d at 1228 (quotation omitted). When engaging in this review, we “refrain
from weighing the evidence, passing on the credibility of witnesses, or substituting
our judgment for that of the jury.” Bannister v. State Farm Mut. Auto. Ins. Co., 692
F.3d 1117, 1126 (10th Cir. 2012).
6
Wyoming has explicitly rejected “any doctrine of respondeat superior resulting
in liability on the part of a parent corporation for acts of its subsidiary.” Loredo v.
Solvay Am. Inc., 212 P.3d 614, 620 (Wyo. 2009). Instead, “a parent company can
only be held liable for the acts of its subsidiary where it assumed some independent
legal duty by retaining or exercising control over some aspect of the operation of a
subsidiary corporation which was involved in the incident resulting in the plaintiff’s
injuries.” Medina v. Four Winds Int’l Corp., 111 F. Supp. 2d 1164, 1166-67 (D.
Wyo. 2000) (quotation and brackets omitted). Merely advising a subsidiary on safety
matters—for example, by drafting company safety policies or investigating accidents
at the subsidiary—does not necessarily amount to the assumption of an independent
legal duty. See Fiscus v. Atl. Richfield, 773 P.2d 158, 162-63 (Wyo. 1989); Cline v.
State of Wyo., Dep’t of Family Servs., 927 P.2d 261, 264 (Wyo. 1996).1
In order for a parent to escape liability under this standard, the subsidiary must
be “entirely free to do the work its own way.” Loredo, 212 P.3d at 622. To be held
liable, a parent must have “retain[ed] or exercis[ed] control over some aspect of the
operation of a subsidiary corporation which was involved in the incident resulting in
the plaintiff’s injuries.” Fiscus, 773 P.2d 158 at 160. We must consider whether the
evidence presented at trial, viewed in the light most favorable to plaintiff, is
reasonably susceptible to the inference that Baker Hughes controlled operations at
1 Because the Wyoming Supreme Court has held that the “requirement that the
parent assume some independent legal duty by retaining or exercising control over
some aspect of the operation of a subsidiary” is “[e]ssentially . . . the same test that is
invoked in considering an owner’s liability to the employee of a contractor,” Fiscus,
773 P.2d at 160 (citations omitted), we consider independent contractor cases.
7
the Casper warehouse “to such a degree that it directed how” forklift safety “should
or should not be done.” Loredo, 212 P.3d at 624.
We conclude that plaintiff presented sufficient evidence to satisfy this
standard, and presented an evidentiary conflict that would have best been resolved by
the jury. For example, Bui testified that at the time of the accident, he was paid by
Baker Petrolite and also reported directly to its president. But he also testified that
he reported to the head of Health, Safety, Environment, and Security at Baker
Hughes. Bui explained that these dual reporting chains required him to submit
“strategic directions” received from Baker Hughes to Baker Petrolite’s president and
discuss “strategies that were appropriate for Baker Petrolite.” Although these
reporting chains standing alone might not suffice to impose liability on a parent
corporation, see Wessel v. Mapco, Inc., 752 P.2d 1363, 1367-68 (Wyo. 1988), when
viewed in context with other evidence presented, the dual reporting structure
reasonably supports the inference that Baker Hughes controlled the day-to-day safety
operations in the Casper warehouse. Various employees testified that they did not
know precisely which Baker Hughes subsidiary employed their co-workers at any
given time. Further, employees who were paid by Baker Petrolite described
themselves as “with Baker Hughes” and used Baker Hughes email addresses.2
2 The dissent states that a lack of clarity cannot make the “exercised or retained
control” issue a jury question. But we do not hold that this lack of clarity—demonstrated
by the structure of Baker Hughes, the extent to which employees maneuvered between
Baker Hughes and Baker Petrolite, and the forklift manual—constitutes dispositive
evidence. We merely recognize that this evidence cuts against other evidence on the
issue of whether Baker Hughes exercised or retained control over forklift operation at the
8
Evidence presented at trial also suggested that Baker Hughes exercised control
over the aspect of the subsidiary’s action that is in dispute—the safe operation of
forklifts—and did not merely offer generalized policies. See Loredo, 212 P.3d at
622-25. A manual governing the safe operation of forklifts provided such detail that
a reasonable jury could consider Baker Hughes’ control over Baker Petrolite to be far
more significant than the “general, generic” and optional guidelines at issue in
Loredo. Id. at 625.3 The manual established a number of mandatory requirements,
such as how many feet the operator must be from the machine before he can switch it
off and how many inches a load may be raised during transport. It is difficult to
imagine that a facility could develop its own individual safety policy within the
mandatory constraints set forth in the Baker Hughes manual. Plaintiff presented
evidence that these policies were created by Baker Hughes, were not imposed by
Casper warehouse. Even if “[t]here was ample room for a finding” that Baker Hughes
did not control Baker Petrolite, “we cannot substitute our judgment for that of the jury [ ]
because we, as jurors, would have arrived at a different conclusion.” Cities Serv. Oil Co.
v. Harvey, 148 F.2d 780, 783 (10th Cir. 1945).
3 The dissent notes that there is evidence indicating that Baker Hughes may not
have had control over the operation of forklifts in the Casper warehouse, such as the
testimony of a coworker of Morgan’s and the fact that Baker Petrolite was not in
compliance with the manual at the time of Morgan’s death. According to the dissent, this
evidence establishes that the forklift manual is not a proper basis on which a reasonable
jury could decide that Baker Hughes exercised sufficient control. We agree that the
forklift manual on its own might not be sufficient to prove that Baker Hughes “controlled
the aspect of the [forklift] operation that was involved in” Morgan’s death “to such a
degree that it directed how that aspect should or should not be done.” Loredo, 212 P.3d
at 624. However, a conflict in the evidence, like the one between the manual and other
evidence presented, is an issue for the jury to address. See Strickland, 555 F.3d at 1228
(JMOL is “only appropriate if the evidence points but one way” (quotation omitted)).
9
regulation,4 and that the manual applied to the Casper warehouse at the time of
Morgan’s death.
The organizational structure of Baker Hughes, the lack of clarity regarding
who worked for Baker Hughes as opposed to Baker Petrolite, and the level of detail
in Baker Hughes documents regulating forklift safety all reasonably support the
inference that Baker Hughes controlled forklift safety to an extent sufficient to
sustain liability under Wyoming law. Because there is “conflicting evidence or
insufficient evidence to warrant a one-way conclusion,” JMOL should have been
denied. Martin v. Unit Rig & Equip. Co., Inc., 715 F.2d 1434, 1438 (10th Cir. 1983).
III
The district court also made three evidentiary rulings during trial that plaintiff
challenges: (1) excluding evidence of similar incidents at Baker Hughes facilities,
(2) excluding evidence of negotiations with OSHA, and (3) declining to take judicial
notice of Baker Hughes’ Fed. R. Civ. P. 26 disclosures. We affirm all three rulings.5
4 As the appellant notes, the forklift parking requirements promulgated in the
manual were more conservative than applicable OSHA regulations, which only
required that an operator turn the forklift off and remove the key when the operator is
more than 25 feet away from the vehicle, and which made allowances for leaving the
loaded forks in an elevated position when the forklift is parked under certain
circumstances. 29 C.F.R. § 1910.178(m)(i-iii); Letter from John B. Miles, Jr., Dir. of
Compliance Programs, OSHA, U.S. Dep’t of Labor, to Mitchell S. Allen, re:
Standard No. 1910.178 (Apr. 28, 1995).
5 We conclude it is proper for us to decide these issues “for the guidance of the
district court on remand.” Colo. Visionary Acad. v. Medtronic, Inc., 397 F.3d 867,
876 (10th Cir. 2005).
10
A
During discovery, Baker Hughes produced a chart containing information
about other incidents involving tote and forklift accidents at its other facilities. The
court granted a pre-trial motion in limine brought by Baker Hughes to exclude all of
the incidents—save for a November 3, 2011 accident in which a tote slid forward off
of a forklift when it was lifted to allow fluid to move into another container.
We review a district court’s ruling regarding the admission of similar events
for abuse of discretion. Four Corners Helicopters Inc. v. Turbomeca, 979 F.2d 1434,
1440 (10th Cir. 1992). In deciding whether a district court abused its discretion, we
give the excluded evidence “its maximum reasonable probative value and minimum
reasonable risk of unfair prejudice or jury confusion.” Boardwalk Apartments L.C.
v. State Auto Prop. & Cas. Ins. Co., 816 F.3d 1284, 1288 (10th Cir. 2016). The
burden of proving substantial similarity between the incident at issue and the prior
events falls on the party seeking to admit the evidence. Wheeler v. John Deere Co.,
862 F.2d 1404, 1407 (10th Cir. 1988). “Evidence proffered to illustrate the existence
of a dangerous condition necessitates a high degree of similarity because it weighs
directly on the ultimate issue to be decided by the jury. The requirement is relaxed,
however, when the evidence of other accidents is submitted to prove notice or
awareness of the potential defect.” Id. at 1407-08.
Plaintiff contends that because Baker Hughes produced records of the
incidents at issue in response to discovery requests, Baker Hughes essentially
stipulated to its control over the various subsidiaries and to the prior events’
11
similarity to the circumstances surrounding Morgan’s death. Rejecting this
argument, the district court explained that plaintiff did not present evidence that
Baker Hughes had control over the operations at issue in the prior incidents or that
the prior incidents were substantially similar to the circumstances surrounding
Morgan’s death. We do not discern any error in the district court’s analysis.
Because plaintiff did not establish that Baker Hughes was responsible for the prior
incidents, she did not “establish the substantial similarity” of the prior incidents “to
the accident that caused the death of” Morgan. Black v. M & W Gear Co., 269 F.3d
1220, 1228 (10th Cir. 2001).
B
Plaintiff also sought to admit a statement made by counsel for Baker Hughes
and/or Baker Petrolite6 during the OSHA investigation of Morgan’s death.
Specifically, during negotiations with OSHA, counsel wrote a letter stating: “My
client has undertaken an extensive search, but couldn’t find any written procedures
governing how to take fluid samples from a tote, and/or documentation of training on
such procedures. In short, we can provide no documentation to show that Mr.
Morgan was trained not to do what he did.” Baker Hughes moved to exclude all
evidence related to the OSHA negotiation and the district court granted that motion.
6 The district court expressly declined to rule on whether the declarant
represented Baker Hughes or Baker Petrolite. Because the statement was made
during settlement negotiations, we hold that it was inadmissible for the purpose of
impeachment under Fed. R. Evid. 408. We therefore “need not resolve this factual
dispute,” as it is not “determinative of this appeal.” Resale Mobile Homes, Inc. v.
Comm’r of Internal Revenue, 965 F.2d 818, 821 (10th Cir. 1992).
12
We affirm the district court’s exclusion of this statement. Although evidence
of “a statement made during compromise negotiations about [a] claim” is not
admissible on “behalf of any party . . . to impeach by prior inconsistent statement,”
such evidence may be admitted for other purposes. Fed. R. Evid. 408(a)(2), 408(b).
Plaintiff argues that she should be permitted to introduce the statement because it
“contradicts” Baker Hughes’ position that Morgan was properly trained. Because the
statements plainly “were the result of settlement negotiations,” we hold that the
district court had “ample grounds for its ruling, and we do not consider it an abuse of
discretion to exclude this evidence.” Richards v. City of Topeka, 173 F.3d 1247,
1253 (10th Cir. 1999).
C
Finally, plaintiff challenges the district court’s refusal to take judicial notice of
Baker Hughes’ Fed. R. Civ. P. 26 disclosures. In those disclosures, Baker Hughes
identified Richard James, David Munzenmaier, and Todd Shilt as individuals likely
to possess discoverable information about the case. The disclosures described James
as “[f]irst with BJ Services Company and later with Baker Petrolite Corporation”;
Munzenmaier as “HSE Director, Baker Hughes”; and Shilt as “HSE Specialist, Baker
Hughes.” The district court declined to take judicial notice of the disclosures, stating
that it did not view these kinds of facts as appropriate to admit into evidence under
Fed. R. Evid. 201.
“We review a district court’s decision not to take judicial notice for abuse of
discretion.” O’Toole v. Northrop Grumman Corp., 499 F.3d 1218, 1224 (10th Cir.
13
2007). A court must take judicial notice of certain facts if a party requests it do so
and supplies the court with the necessary information. Fed. R. Evid. 201(c)(2). Facts
subject to judicial notice are those “not subject to reasonable dispute” because they
are “generally known within the trial court’s territorial jurisdiction” or “can be
accurately and readily determined from sources whose accuracy cannot reasonably be
questioned.” Fed. R. Evid. 201(b). Although not required to do so, a court “is
permitted to take judicial notice of its own files and records, as well as facts which
are a matter of public record.” Binford v. United States, 436 F.3d 1252, 1256 n.7
(10th Cir. 2006) (quotation omitted). However, such documents “may only be
considered to show their contents, not to prove the truth of the matters asserted
therein.” Tal v. Hogan, 453 F.3d 1244, 1264 n.24 (10th Cir. 2006) (quotation
omitted).
Based on the disclosures, plaintiff asked the court to admit as adjudicative
facts that: (1) the named employees worked for Baker Hughes, and (2) Baker Hughes
had admitted that it employed the named individuals. Because Rule 26 disclosures
are exchanged between parties, Fed. R. Civ. P. Rule 26(a), we do not typically
consider such disclosures “filed with the court.” See Nunez v. Allstate Ins. Co., 604
F.3d 840, 847 (5th Cir. 2010). Even if the disclosures were to constitute filings,
judicial notice of the disclosures’ contents would be inappropriate. Identity of the
employer of key witnesses in a case that hinges on whether a parent corporation
“assumed an independent duty vis-à-vis” an employee of a subsidiary is a critical
issue. Loredo, 212 P.3d at 626. It is not the kind of neutral and indisputable fact that
14
Fed. R. Civ. P. 201 was intended to address. We conclude that the district court did
not abuse its discretion in declining to take judicial notice of Baker Hughes’ Rule 26
disclosures.
IV
We REVERSE the district court’s grant of JMOL, AFFIRM its evidentiary
rulings, and REMAND for further proceedings.
Entered for the Court
Carlos F. Lucero
Circuit Judge
Case No. 17-8002, Morgan v. Baker Hughes Incorporated
O’BRIEN, J., concurring in part, dissenting in part.
Morgan’s1 evidence failed to show how Baker Hughes Incorporated (Baker
Hughes) retained or exercised control over forklift operation, safety, and training at Baker
Petrolite’s warehouse sufficient to hold it liable for Morgan’s death under Wyoming
law.2 Because the trial judge properly pretermitted the control issue with a judgment as a
matter of law (JMOL), I respectfully dissent from the Majority’s contrary opinion. On
the other hand, I join the Majority in affirming his evidentiary decisions.
Three entities are here involved: (1) Baker Hughes, (2) one of its many
subsidiaries, Baker Petrolite, and (3) the entity Baker Petrolite succeeded, BJ Services
Company, which was Morgan’s former employer and the previous owner of the Casper
warehouse. Even though Baker Petrolite was Morgan’s employer at the time of his death,
its liability is not at issue.3 Nor is the liability of BJ Services Company at issue—it was
not Morgan’s employer at the time of his death and had no control over the conditions of
1 Katherine Morgan was appointed as the wrongful death representative of David
Morgan. See Wyo. Stat. Ann. §§ 1-38-101 to -105. She is the plaintiff in this case.
Nevertheless, I will refer simply to David Morgan (Morgan).
2 “I would invoke those who fill the seats of justice, and all who minister at her
altar, that they execute the wholesome and necessary severity of the law.” Daniel
Webster’s Plymouth Oration, Plymouth, Massachusetts (Dec. 22, 1820). A tragic death
always strikes emotional chords. The trial judge set emotion aside and applied the law.
3 Because Baker Petrolite was Morgan’s employer at the time of his death, his
estate was entitled to worker’s compensation benefits. Those benefits were the estate’s
sole and exclusive remedy against Baker Petrolite, which was otherwise immune from
suit for workplace injuries under the Wyoming Worker’s Compensation Act. See Knight
ex rel. Knight v. Estate of McCoy, 341 P.3d 412, 415-16 (Wyo. 2015).
2
his employment.4 The only issue we face is whether Baker Hughes was liable for
Morgan’s death. The answer to that question turns on whether it owed Morgan a legal
duty, independent of that owed to him by its subsidiary and his employer, Baker
Petrolite.5 Loredo v. Solvay Am., Inc., 212 P.3d 614, 622 (Wyo. 2009). “Generally, the
question of whether a duty exists is a question of law . . . .” See Williams v. Plains Tire
& Battery Co., 405 P.3d 228, 232 (Wyo. 2017). However, Baker Hughes’ duty is defined
by its control of Baker Petrolite, which is ordinarily “a question of fact . . . but becomes
one of law when only one reasonable inference can be drawn.” Loredo, 212 P.3d at 622.
If Baker Hughes exercised or retained sufficient control over the particular aspect
of Baker Petrolite’s operation resulting in Morgan’s death it might be liable, but only if
that control constrained Baker Petrolite from conducting that aspect of its operation “in
[its] own way.” See Restatement (Second) of Torts § 414 cmt. c; see also Fiscus v. Atl.
Richfield, 773 P.2d 158, 160 (Wyo. 1989); Loredo, 212 P.3d at 624. In other words, only
discrete and pervasive levels of retained control are sufficient. See Franks v. Indep.
Prod. Co., 96 P.3d 484, 490-91 (Wyo. 2004), discussed infra note 17.
4 The judge dismissed BJ Services Company on this basis; Morgan has not
appealed from that dismissal.
5 The other elements of a negligence claim—breach of duty, causation, and
damages—are not at issue in this appeal. See Loredo, 212 P.3d at 622. That is because
without a duty, there can be no liability. See Johnson v. Dale C. & Helen W. Johnson
Family Revocable Trust, 345 P.3d 883, 887 (Wyo. 2015) (“[T]o establish a claim for
negligence, a plaintiff must show the following: (1) the defendant owed the plaintiff a
duty to conform to a specified standard of care; (2) the defendant breached the duty of
care; (3) the defendant’s breach of the duty of care proximately caused the plaintiff’s
injury or injuries; and (4) the plaintiff has suffered an injury that is compensable by
money damages.”).
3
The retention of control language derives from § 414 of the Restatement (Second)
of the Law of Torts. See Jones v. Chevron, U.S.A., Inc., 718 P.2d 890, 895-96 (Wyo.
1986); see also Merit Energy Co. v. Horr, 366 P.3d 489, 494 (Wyo. 2016). It provides:
One who entrusts work to an independent contractor, but who retains the control
of any part of the work, is subject to liability for physical harm to others for whose
safety the employer owes a duty to exercise reasonable care, which is caused by
his failure to exercise his control with reasonable care.
Restatement (Second) of Torts § 414 (1965) (emphasis added).
This section refers to the liability of an employer of an independent contractor [IC]
for injury to the IC’s employee. I agree with the Majority: whether a parent corporation
can be held liable for a subsidiary employee’s injury is essentially the same test used to
determine whether an IC’s employer can be held liable for injury to an IC’s employee.6
See Fiscus, 773 P.2d at 160. But that does not end the analysis. The commentary to
§ 414 (and Wyoming case law) clarifies what level of retained control is necessary to
subject a parent corporation to liability:
In order for [§ 414] to apply, the employer must have retained at least some degree
of control over the manner in which the work is done. It is not enough that he has
merely 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. Such
a general right is usually reserved to employers, but it does not mean that the
6 However, there is an important difference. The employer of an IC can be held
vicariously liable for the IC’s negligence under the doctrine of respondent superior if the
employer exercises a high level of control over the IC akin to that of a master-servant
relationship. See Merit Energy Co., 366 P.3d at 495-96. That said, Wyoming has
“rejected any doctrine of respondeat superior resulting in liability on the part of a parent
corporation for acts of its subsidiary. The parent company is entitled to the same legal
separation from its subsidiary, as well as the resulting protection from liability, that any
individual shareholder enjoys with respect to a corporation in which stock is held.”
Fiscus, 773 P.2d at 160 (citations omitted).
4
contractor is controlled as to his methods of work, or as to operative detail. There
must be such a retention of a right of supervision that the contractor is not entirely
free to do the work in his own way.
Restatement (Second) of Torts § 414 cmt. c (emphasis added); see also Merit Energy Co.,
366 P.3d at 494 (“The comments to § 414 provide helpful guidance as to the level of
control required . . . .”).
The trial judge defined the operation involved in Morgan’s death as “the operation
of the forklift and the training and the safety program relating to it.” (Jt. App’x Vol. 9 at
2162.) Neither party objects to that classification. However, the operation involved in
Morgan’s death was not the operation of a forklift in general, but rather the taking of a
liquid sample from the underside of a tote cradled, but not secured, on the tines of an
elevated forklift. That is, precisely, what Morgan was doing at the time of his death.
Morgan and his co-worker of 20-years, James Clore, had been taking samples
from totes suspended on an elevated forklift since their employment with BJ Services
Company began (well before 2010, when Baker Petrolite took over operations at the
Casper warehouse). Baker Hughes provided no direction or guidance concerning the
sampling process used in Baker Petrolite’s Casper warehouse7 and its February 2012
Forklift Safety Procedure manual (forklift safety manual) did not specifically address it.
7 During a June 2012 visit to the warehouse, Richard Bui, the “top safety guy” at
Baker Petrolite, noticed a rope tied to the forklift and asked Morgan about the strapping
of totes to the forklift. (Jt. App’x Vol. 11 at 2658.) Morgan informed him that BJ
Services Company had wanted him and Clore to use a nylon cargo strap rather than a
nylon rope. When Morgan said he thought a rope was sufficient, Bui disagreed,
preferring BJ Services Company’s policy. Be that as it may, the “advice” offered by
Baker Petrolite’s “top safety guy” does not establish the requisite level of control by
Baker Hughes.
5
As a matter of fact, in the late 1990’s, Morgan and Clore (who had considerable latitude
with respect to such practices) decided to secure the tote to the forklift with a rope or
strap when moving or sampling from it. Morgan used no restraints on the day of the
accident.
Because the judge granted JMOL to Baker Hughes at the close of Morgan’s
evidence under Fed. R. Civ. P. 50(a), our specific inquiry is: Whether Morgan presented
sufficient evidence from which a jury could reasonably conclude that Baker Hughes
exercised or retained sufficient control over Baker Petrolite’s forklift operations to
subject it to liability under Wyoming law. See Elm Ridge Expl. Co. v. Engle, 721 F.3d
1199, 1216 (10th Cir. 2013) (“[JMOL] is appropriate only if the evidence points but one
way and is susceptible to no reasonable inferences which may support the nonmoving
party’s position.”) (quotation marks omitted).8 I agree with the Majority that in making
8 The standard for reviewing judgments as a matter of law under Rule 50(a)
“mirrors the summary judgment standard in that ‘the trial judge must direct a verdict if,
under the governing law, there can be but one reasonable conclusion as to the verdict.’”
See Auraria Student Hous. at the Regency, LLC v. Campus Vill. Apartments, LLC, 843
F.3d 1225, 1247 (10th Cir. 2016) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
250 (1986)). “The primary difference between [motions for summary judgment and
motions for JMOL] is procedural; summary judgment motions are usually made before
trial and decided on documentary evidence, while [JMOL motions] are made at trial and
decided on the evidence that has been admitted.” Anderson, 477 U.S. at 251 (quotation
marks omitted).
In this case, the judge denied Baker Hughes’ motion for summary judgment on the
issue of control, because, on the record at the time, there appeared to be genuine issues of
material fact concerning that issue. Yet, after hearing ALL of Morgan’s evidence,
including the cross-examination of witnesses, he entered a JMOL in favor of Baker
Hughes (on the same issue) at the close of Morgan’s case. Morgan claims no impropriety
in that course of action. Nor could he. “[A] denial of summary judgment does not rule
out the possibility of [JMOL]” even if the evidence at the summary judgment stage is
substantially similar to that presented at trial. See Sandoval v. U.S. Smelting, Ref. &
6
this determination, we must review the evidence in the light most favorable to Morgan.
Bannister v. State Farm Mut. Auto. Ins. Co., 692 F.3d 1117, 1126 (10th Cir. 2012). But
that does not mean we consider only the evidence most favorable to him. Rather, we
refrain from cherry-picking and instead consider all of the evidence presented at that
point in the trial.9 See Lompe v. Sunridge Partners, LLC, 818 F.3d 1041, 1047 (10th Cir.
2016) (a party is “entitled to [JMOL] only if all of the evidence [in the trial record],
viewed in the light most favorable to the nonmoving party, reveals no legally sufficient
evidentiary basis to find for the nonmoving party.”) (emphasis added) (quotation marks
omitted).
The evidence relating to control, taken in the light most favorable to Morgan, was
limited to the following:
 Baker Hughes issued a “[m]andatory” forklift safety manual on February 1,
2012. (Trial Exs. Vol. 8 at 1224.) Ostensibly, the manual applied to its
subsidiaries and was available to its subsidiaries online.
Mining Co., 544 F.2d 463, 464 (10th Cir. 1976); see also Gross v. S. Ry. Co., 446 F.2d
1057, 1060 (5th Cir. 1971).
9 In footnotes 2 and 3, the Majority opinion seems to accuse me of weighing the
evidence. That is simply not so. I merely point out the undisputed evidence it ignores:
the Casper warehouse, operated by Baker Petrolite, was following BJ Services
Company’s forklift safety procedures at the time of Morgan’s death and the Baker
Hughes safety manual was not then and there in place or, apparently, even consulted.
Morgan’s own safety expert admitted this. Preferring dubious “lack of clarity” evidence
to undisputed testimony, the Majority does not, as it claims, studiously avoid fact finding;
conjuring the specter of speculation creates the illusion of a factual question on the issue
of control when there is none. This is not unlike a Fourth Amendment case, where the
Supreme Court rejected any “divide-and-conquer” approach when reviewing the totality
of the circumstances. See United States v. Arvizu, 534 U.S. 266, 274 (2002) (whether
reasonable suspicion exists to support a traffic stop must be based on the totality of the
circumstances; rejecting appellate court’s evaluation of disparate facts in isolation from
each other in deciding whether reasonable suspicion existed).
7
 In June 2012, Richard Bui and Todd Shilt visited the Casper warehouse. At
that time and at the time of Morgan’s death, Bui was the “top safety guy” at
Baker Petrolite (Jt. App’x Vol. 11 at 2658); he reported to both the
President of Baker Petrolite and the Vice President of Health, Safety,
Environment, and Security (HSE) at Baker Hughes. Shilt was a safety
representative employed by Baker Petrolite who was responsible for
providing support to the Casper warehouse regarding safety issues and
performing safety audits at the warehouse.
During their June visit, Bui and Shilt toured the warehouse. Bui noticed a
rope tied to the forklift and asked Morgan about the strapping of totes to the
forklift. Morgan informed him that BJ Services Company had wanted him
and Clore to use a nylon cargo strap rather than a nylon rope. When
Morgan said he thought a rope was sufficient, Bui disagreed, saying a strap
was “probably better.” (Jt. App’x Vol. 11 at 2688.)
 Baker Hughes issued a safety alert following Morgan’s death. It described
the circumstances surrounding his death and made “immediate
recommendations for forklift operations” including ensuring all employees
operating forklifts are properly trained and all loads are secure and fully
engaged by the forklift’s forks. (Trial Exs. Vol. 15 at 1343.) It also
described “actions to prevent reoccurrence” including using a tote stand if
available when working on or near an elevated tote.10 (Id.)
Neither the Majority nor Morgan relies on Bui and Shilt’s visit to the warehouse or
Bui’s preference for a nylon strap over a rope for securing a tote to the forklift. Rightly
so. Even assuming Baker Petrolite’s safety guys, Bui and Shilt, were acting on behalf of
10 The judge concluded the safety alert was inadmissible to show Baker Hughes
acted negligently because it contained “subsequent remedial measures.” See Fed. R.
Evid. 407 (“When measures are taken that would have made an earlier injury or harm less
likely to occur, evidence of the subsequent measures is not admissible to prove . . .
negligence.”). He did, however, admit the safety alert for the limited purpose of
considering Baker Hughes’ alleged control over forklift safety at the warehouse. Id.
(allowing court to admit evidence of subsequent remedial measures on the issues of
ownership or control, if disputed); see also Hull v. Chevron USA Inc., 812 F.2d 584, 586-
87 (10th Cir. 1987) (recognizing that subsequent remedial measures may be admissible
where issues of ownership or control are disputed).
8
Baker Hughes,11 visiting work sites and making safety recommendations are clearly
insufficient under Wyoming law to demonstrate the control necessary to establish parent
corporation liability. See, e.g., Loredo, 212 P.3d at 625 (“To impose liability upon
Solvay America [the parent corporation], it is not enough that Solvay America exercised
a general right to inspect the mine or to receive reports, to make suggestions or
recommendations which were not necessary to follow, or to prescribe alterations and
deviations to the work.”) (quotation marks omitted); Wayts v. Peter Kiewit Sons, Inc., No.
90-8022, 1991 WL 114736, at *2 (10th Cir. June 27, 1991) (unpublished) (refusing to
hold parent corporations liable for injuries sustained by a subsidiary’s employee even
though parent corporations “advised [subsidiary] regarding safety matters, injury
prevention, and company-wide safety policies” and “visited [the subsidiary] to monitor
compliance with general company-wide safety policies and federal regulations”). This is
especially true here, where Bui’s recommendation (use a cargo strap rather than a rope to
secure the tote to the forklift) had nothing to do with Morgan’s death. Morgan failed to
strap the tote to the forklift by any means.12
11 Bui testified the expenses for the June 2012 trip were paid for by Baker
Petrolite. Morgan, however, claimed they were paid for by Baker Hughes because the
expense reports refer to “Policy: [Baker Hughes Incorporated] Expense Policy.” (Trial
Exs. Vol. 4 at 1056, 1069.) Pretty thin.
12 Mentioning Morgan’s failure to secure the tote to the forklift is not intended to
prematurely suggest liability on his part (i.e., comparative negligence), although he did
admit at trial that he “had some fault.” (Jt. App’x Vol. 11 at 2622.) I mention it only to
de

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