United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                     ___________

                                     No. 98-4124
                                     ___________

Julene H. Kistler, individually and as *
Trustee for the Heirs and Next of Kin  *
of Frank J. Kistler, deceased,         *
                                       *
      Plaintiff - Appellant,           * Appeal from the United States
                                       * District Court for the
      v.                               * District of Minnesota.
                                       *
Wal-Mart Stores, Inc., a Delaware      *
corporation,                           *      [UNPUBLISHED]
                                       *
      Defendant - Appellee.            *
                                  ___________

                              Submitted: October 22, 1999

                                   Filed: November 15, 1999
                                    ___________

Before WOLLMAN, Chief Judge, ROSS and LOKEN, Circuit Judges.
                             ___________

PER CURIAM.

       In early 1994, after extensively evaluating a site in Kalispell, Montana, Wal-Mart
Stores, Inc., decided that it would operate a new Wal-Mart store on the site but did not
wish to own the premises. A Wal-Mart “preferred developer,” Charles Fain, agreed
to develop the project and lease the completed store to Wal-Mart. Fain organized a
limited partnership, Jefferson Center, which entered into a lease agreement with Wal-
Mart. Jefferson Center agreed to build the store to Wal-Mart’s specifications and lease
the completed store to Wal-Mart. The lease agreement provided that Jefferson Center
“shall supervise and direct the Work” and “be solely responsible for and have control
over construction means, methods, techniques, sequences and procedures.” Jefferson
Center acquired the land and engaged TCI General Contractors, Inc., as general
contractor. Jefferson Center financed the project with a bank loan that was, in effect,
guaranteed by Wal-Mart.

       On November 29, 1994, after discussing the situation with Wal-Mart, Fain set
out for Kalispell to help maximize the amount of work done before winter. Fain left his
home in Missouri, flying a small airplane owned by his company, Fain, Inc. After stops
in Appleton and Eau Claire, Wisconsin, on business unrelated to the Kalispell project,
Fain stopped in LaCrosse, Wisconsin, to pick up Frank Kistler, a TCI employee, before
continuing on to Kalispell. The airplane crashed in Montana before reaching Kalispell,
killing both Fain and Kistler. In this diversity action, Kistler’s widow sued Wal-Mart
and others for negligence. The only issue on appeal is whether the district court1 erred
in granting summary judgment in favor of Wal-Mart on plaintiff’s claim that Wal-Mart
is vicariously liable for Fain’s alleged negligence as pilot of the airplane.

       Applying Minnesota law, the district court concluded that, to recover on a theory
of vicarious liability, plaintiff must prove that Fain was Wal-Mart’s employee acting
within the scope of his employment when the airplane crashed. The court then
analyzed the summary judgment record under the five-factor test used by the Minnesota
Supreme Court to distinguish an independent contractor from an employee, the most
important factor being whether Wal-Mart had the right to control the means and manner
of Fain’s contractual performance. See Ossenfort v. Associated Milk Producers, Inc.,

, 676 (Minn. 1977). See also Sutherland v. Barton, 

, 6
(Minn. 1997) (“we have only been willing to apply vicarious liability to a hiring


      1
        The HONORABLE ANN D. MONTGOMERY, United States District Judge
for the District of Minnesota.

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company in this situation [a construction project] when the company retains detailed
control over the specific project on which the employees are working”).
Acknowledging that Wal-Mart had substantial knowledge and authority in defining
Jefferson Center’s development tasks, the court concluded that plaintiff had no
probative evidence that Wal-Mart controlled the day-to-day activities at the
construction site, or the day-to-day activities of Fain as a developer who worked on
many real estate projects for Wal-Mart and others. After careful review of the record
and de novo review of the district court’s grant of summary judgment, we affirm for the
reasons stated in the court’s Memorandum Opinion and Order dated November 2,
1998. See 8th Cir. Rule 47B.

       The judgment of the district court is affirmed. Appellant’s motion to supplement
the record on appeal is denied as moot.

      A true copy.

             Attest:

                CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.




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