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USCA1 Opinion
July 31, 1992 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 92-1107
EDITH DIODATO AND LOIS DIODATO,
AS ADMINISTRATRICES OF THE ESTATE OF
MICHAEL J. DIODATO,
Plaintiffs, Appellants,
v.
UNITED STATES OF AMERICA,
Defendant, Appellee.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Rya W. Zobel, U.S. District Judge]
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Before
Selya, Circuit Judge,
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Lay,* Senior Circuit Judge,
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and O'Scannlain,** Circuit Judge.
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Stephen G. Morte for appellants.
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Mary Elizabeth Carmody, Assistant U.S. Attorney, with whom Wayne
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A. Budd, United States Attorney, was on brief for appellee.
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* Of the Eighth Circuit, sitting by designation.
** Of the Ninth Circuit, sitting by designation.
Per Curiam. Plaintiffs appeal the district court's grant of
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summary judgment in favor of the United States in their action
under the Federal Tort Claims Act ("FTCA"). We affirm.
I
Michael Diodato, an employee of contractor Nova Group, Inc.,
was electrocuted while laying pipe in a trench at Hanscom Air
Force Base in Bedford, Massachusetts. Diodato was easing pipe
suspended from the boom of a crane into location for welding when
the boom contacted a live power line, or came into such close
proximity to the line that electricity arced to it. Diodato was
badly burned by the resulting electrical discharge, and
subsequently died from his injuries. The administratrices of his
estate, Edith and Lois Diodato, sued the utility company and the
crane manufacturer in state court, and brought a separate FTCA
action in federal court. The state court suit was removed to
federal court and consolidated with the FTCA action.
In an order entered September 3, 1991, the district court
granted the motions of the United States and the utility company
for summary judgment. The case against the crane manufacturer
remained unresolved. No separate document of final judgment was
entered. After denial of a motion for reconsideration, the
Diodatos filed a timely notice of appeal.
II
As a preliminary matter, we reject the government's argument that
we lack appellate jurisdiction. Although no separate document
setting forth judgment was entered, as required by Federal Rule
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of Appellate Procedure 4(a) and Federal Rule of Civil Procedure
58, the parties can waive that defect. See Bankers Trust Co. v.
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Mallis, 435 U.S. 381 (1978) (per curiam); Smith v. Massachusetts
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Dept. of Correction, 936 F.2d 1390, 1394 (1st Cir. 1991). We
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conclude that they have done so.
The government also points out that the summary judgment
order did not resolve all claims in the consolidated proceedings.
The rule in this circuit is that "where cases are consolidated
for purposes of convenience and judicial efficiency, the cases
retain their separate identity and judgments rendered in each
individual action are appealable as final judgments within the
meaning of 28 U.S.C. 1291 . . . even without the requisite
certification under Rule 54(b)." Federal Deposit Ins. Corp. v.
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Caledonia Inv. Corp., 862 F.2d 378, 381 (1st Cir. 1988). The
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summary judgment order completely resolved the action against the
United States. It is therefore appealable.
III
We likewise reject the assertion that the district court
ruled on the summary judgment motion prematurely, without
allowing sufficient time for discovery. The district court has
"broad discretion" to award summary judgment before the parties
have completed discovery. Mendez v. Belton, 739 F.2d 15, 18 (1st
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Cir. 1984). In particular, a "court may grant summary judgment
despite an opposing party's claim that additional discovery would
yield additional facts where the opposing party has not alleged
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specific facts that could be developed through such discovery."
Taylor v. Gallagher, 737 F.2d 134, 137 (1st Cir. 1984).
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Although plaintiffs requested more time for discovery in
their opposition to summary judgment, they did not cite to
specific facts they hoped to ascertain through such further
discovery. They mentioned only that they wished to examine
unspecified government documents and depose unnamed government
employees. Joint Appendix at 111-12. They "did not show,
through a Rule 56(f) affidavit or otherwise, how discovery could
have breathed life into [their] claim." Taylor, 737 F.2d at 137.
Accordingly, the district court did not err in granting summary
judgment without allowing further discovery.
IV
The Diodatos' primary contention on appeal is that summary
judgment was improperly entered because genuine issues of
material fact remained. Our review of the entry of summary
judgment is plenary. Petitti v. New England Tel. & Tel., 909
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F.2d 28, 30 (1st Cir. 1990). Summary judgment is proper if the
evidence "is so one sided that one party must prevail as a matter
of law." Id. (quoting Anderson v. Liberty Lobby, 477 U.S. 242,
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252 (1986)). In assessing the evidence, we view it in the light
most favorable to the non- moving party and indulge all
reasonable inferences favorable to that party. Id. at 31.
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The Diodatos concede that we must look to the substantive
law of Massachusetts in this FTCA suit. They also concede that
the United States is not vicariously liable for the torts of its
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independent contractors or their employees. Brooks v. A. R. & S.
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Enterprises, 622 F.2d 8, 10 (1st Cir. 1980). They advance three
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theories of direct liability: failure to supervise adequately the
subcontractor's work; failure to make the project areas
reasonably safe; and failure to comply with a statutory duty.
On the record before us, none of these theories is persuasive.
Because the contract specifically delegated responsibility
for the safety of the project to Nova Group, and the United
States did not retain supervisory control, we agree with the
district court that the United States cannot be held liable on a
theory of inadequate supervision. See Foley v. Rust
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International, 901 F.2d 183 (1st Cir. 1990). The contract
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specially required Nova Group to inform the government twenty-one
days in advance of any utility shut-down necessitated by the
project. In addition, Nova committed itself to ensuring that no
crane would be operated within ten feet of overhead electric
lines unless the power was shut off. The government was entitled
to rely on this agreement.
Plaintiffs cite a number of cases, all decided under the law
of other jurisdictions, for the proposition that an employer has
a non-delegable duty to supervise independent contractors engaged
in inherently dangerous work. See, e.g., Gardner v. United
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States, 780 F.2d 835, 838 (9th Cir. 1986) (California law);
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Barron v. United States, 654 F.2d 644, 646-47 (9th Cir. 1981)
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(Hawaii law); McGarry v. United States, 549 F.2d 587, 590 (9th
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Cir. 1976) (Nevada law). Unfortunately for plaintiffs,
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Massachusetts has specifically rejected this rule. Under
Massachusetts law, an employer of an independent contractor
performing dangerous work must take reasonable steps to protect
the public, but owes no special duty to the contractor's
employees. Vertentes v. Barletta Co., 466 N.E.2d 500, 501-02
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(Mass. 1984).
The Diodatos' second theory of liability is that the
government, as owner and possessor of the land on which the
accident occurred, owed decedent a duty to protect against or to
warn of dangerous conditions on the property. Under
Massachusetts law, a landowner owes a duty of reasonable care to
the employees of its independent contractors. Poirier v. Town of
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Plymouth, 372 N.E.2d 212, 227 (Mass. 1978). The property owner
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"must take those steps to prevent injury that are reasonable and
appropriate under all the circumstances," id., but has no duty to
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warn of obvious dangers. Young v. Atlantic Richfield Co., 512
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N.E.2d 272, 276 (Mass. 1987), cert. denied, 484 U.S. 1066 (1988).
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While the United States undoubtedly owed the decedent a duty
to "exercise ordinary prudence and care in the maintenance and
use of its power line," Gelinas v. New England Power Co., 268
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N.E.2d 336, 339 (Mass. 1971), plaintiffs have not argued that the
power lines were defective or poorly maintained. They rely
instead on evidence that many persons are unaware of the danger
inherent in uninsulated power lines. We are bound, however, by
the determination of the Supreme Judicial Court that, as a matter
of law, the danger of such lines is open and obvious to one aware
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of their presence. Burr v. Massachusetts Elec. Co., 248 N.E.2d
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492, 495 (Mass. 1969).1
The United States submitted uncontroverted evidence that
both the decedent and the crane operator noted the power lines
just before the accident occurred. As a matter of law,
therefore, the danger presented by the power lines must be deemed
obvious to the decedent.
Plaintiffs also point us to Massachusetts cases describing
electricity as a dangerous instrumentality, and holding those who
employ it to a correspondingly high degree of care. E.g., Gelinas
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v. New England Power Co., 268 N.E.2d 336, 339 (Mass. 1971).
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This special degree of care, however, "is limited to those cases
where the victim of the accident was, in relation to the
defendant, a member of the general public." Lawler v. General
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Elec. Co., 294 N.E.2d 535, 537 (Mass. App. 1973). Such was not
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the case here.
Finally, plaintiffs contend that the government violated
Massachusetts statutes governing the use of construction
equipment within six feet of live, unguarded power lines. Mass.
Gen. L. ch. 166, 21A, 21B (1976). By their terms, these
provisions do not appear to govern the conduct of persons not
directly responsible for the work. Moreover, plaintiffs
presented no evidence that the United States "require[d] or
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1Because, unlike Massachusetts, Ohio holds as a matter of law
that the dangers of electric wires are not readily apparent,
Angel v. United States, 775 F.2d 132 (6th Cir. 1985), decided
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under the law of Ohio, does not advance the plaintiff' cause.
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permit[ted]" Nova employees to operate the crane in close
proximity to live power lines.
V
For the foregoing reasons, we conclude that the district
court properly granted summary judgment for the United States.
Affirmed.
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Document Info
Docket Number： 92-1107
Filed Date： 7/31/1992
Precedential Status： Precedential
Modified Date： 9/21/2015