Ralph Martinez, Husband Mary Martinez, Wife v. Asarco Incorporated, a Foreign Corporation

We are presented, in this diversity case governed by the law of Arizona, with the question of whether a smelter operator has a duty to an invited independent contractor to make its premises reasonably safe, and if so, whether such duty can be met by warning of any danger.

I

Because this is an appeal from a grant of summary judgment for Asarco, the evidence is set forth in the light most favorable to appellants, the Martinezes. Ralph Martinez was an employee of James & Luther (“J & L”), a company that contracted with Asarco to perform maintenance work on a blast furnace in an Asarco smelter. The work included replacement of the top of the furnace’s settling chamber. In making the contract, it was understood that J & L had done similar work previously. Under the contract, J & L was to maintain at all times a competent supervisory staff and to retain responsibility for performing and supervising the repair work. J & L determined and used its own safety procedures in addition to those recommended by Asarco. J & L’s foreman determined and monitored the safety equipment used by J & L.

Prior to the commencement of the repair work, representatives of Asarco conducted a tour of the…