FILED
NOT FOR PUBLICATION JUL 16 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JUAN SALAZAR, No. 13-35352
Plaintiff - Appellant, D.C. No. 1:11-cv-00016-CSO
v.
MEMORANDUM*
A&J CONSTRUCTION OF MONTANA,
INC.,
Defendant - Appellee.
Appeal from the United States District Court
for the District of Montana
Carolyn S. Ostby, Magistrate Judge, Presiding**
Argued and Submitted July 11, 2014
Portland, Oregon
Before: PAEZ, WATFORD, and OWENS, Circuit Judges.
Plaintiff Juan Salazar (“Salazar”) appeals from a jury verdict finding
Defendant A&J Construction of Montana, Inc. (“A&J”) not liable for injuries
Salazar sustained when he fell while working at an A&J construction project. At
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The parties consented to proceed before a magistrate judge. See 28
U.S.C. § 636(c).
the time of his fall, Salazar was not wearing his fall protection harness. The jury
found that although A&J was negligent, A&J’s negligence did not cause Salazar’s
injuries. This is a diversity jurisdiction action governed by the substantive law of
Montana. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
Salazar contends that Montana law prohibited the district court from
admitting evidence that A&J imposed certain safety requirements on its
subcontractors. According to Salazar, the admission of such evidence permitted
A&J to argue that it had delegated to subcontractors its nondelegable duty under
the Montana Safety Act, Mont. Code Ann. § 50-71-201, to provide Salazar with a
safe work environment. See Olson v. Shumaker Trucking & Excavating
Contractors, Inc., 347 Mont. 1, 15 (2008).
We need not decide this question of Montana law, because even if the
district court erred by admitting evidence that A&J imposed safety requirements on
its subcontractors, the error was not prejudicial. The jury found that A&J was
negligent – i.e., breached its duty – but that A&J’s negligence did not cause
Salazar’s injury. If the jury believed that A&J had delegated its safety duty to
another party, the jury could not have found A&J to be in breach of that duty.
Thus, it is not probable that the error Salazar alleges tainted the verdict. See
Mahone v. Lehman, 347 F.3d 1170, 1172 (9th Cir. 2003).
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We also reject Salazar’s contention that Montana law precluded A&J from
raising a comparative negligence defense by introducing evidence of Salazar’s
failure to wear his fall protection harness. When an employer breaches its
nondelegable duty to provide a safe working environment, Montana law permits a
comparative negligence defense “if evidence demonstrates that . . . the worker has
some reasonable means or opportunity to avoid the hazard without endangering his
or her employment.” Olson, 347 Mont. at 18. Salazar had an opportunity to avoid
the hazard of falling without endangering his employment by wearing his harness.
Accordingly, the district court did not abuse its discretion by admitting evidence of
Salazar’s negligence.
Finally, we reject Salazar’s contention that the district court should have
judicially estopped A&J from arguing that Salazar should have been wearing his
harness at the time he fell. Judicial estoppel may be applied where a party
advances a position that is inconsistent with a position the same party previously
persuaded a court to adopt. New Edge Network, Inc. v. FCC, 461 F.3d 1105, 1114
(9th Cir. 2006). Salazar contends that in its summary judgment briefing, A&J
advanced a position that was inconsistent with the argument that Salazar should
have been wearing his harness. We need not decide whether A&J’s positions were
inconsistent because the district court denied summary judgment without adopting
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any of the positions that A&J advanced. Accordingly, the district court did not
abuse its discretion by refusing to apply judicial estoppel.
AFFIRMED.
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