Monk v. VI Water & Power Auth ( 1995 )

Opinions of the United
1995 Decisions States Court of Appeals
for the Third Circuit
4-20-1995
Monk v VI Water & Power Auth
Precedential or Non-Precedential:
Docket 94-7372
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UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 94-7372
___________
TED MARK MONK,
Appellant
v.
VIRGIN ISLANDS WATER & POWER AUTHORITY;
QUALITY ELECTRIC SUPPLY COMPANY
_______________________________________________
On Appeal from the District Court of the Virgin Islands
Division of St. Croix
(D.C. Civil Action No. 91-cv-00077)
___________________
Argued December 5, 1994
Before: SLOVITER, Chief Judge,
SCIRICA and COWEN, Circuit Judges
(Filed April 20, 1995)
THOMAS ALKON, ESQUIRE (Argued)
Alkon, Rhea & Hart
2115 Queen Street, Suite 101
Christiansted, St. Croix
U.S. Virgin Islands 00820
Attorney for Appellant
RHYS S. HODGE, ESQUIRE
Law Offices of Rhys S. Hodge
19 Norre Gade
P.O. Box 6520
Charlotte Amalie, St. Thomas
U.S. Virgin Islands 00804
Attorney for Appellee,
Virgin Islands Water
& Power Authority
R. ERIC MOORE, ESQUIRE (Argued)
Law Office of R. Eric Moore
Downtown Station
P.O. Box 3086
Christiansted, St. Croix
U.S. Virgin Islands 00822
Attorney for Appellee,
Quality Electric Supply Company
__________________
OPINION OF THE COURT
__________________
SCIRICA, Circuit Judge.
In this appeal, we are required to interpret and apply
various sections of the Restatement (Second) of Torts to a
lawsuit arising from a tragic construction accident in the Virgin
Islands. The primary issue is the viability of Restatement
section 343A, involving the doctrine of assumption of risk, in
light of the Virgin Islands' adoption of a comparative negligence
statute. We also consider whether employers may be liable for
injuries to their independent contractors' employees under
Restatement section 413 and similar provisions. The district
court granted summary judgment to the defendant landowner,
holding that the Restatement provisions shielded it from tort
claims by a worker injured on the property. We will affirm.
I.
In June 1990, a fire destroyed a building on St. Croix
owned by Quality Electric Supply Company. The following month
Quality Electric contracted with Benak Construction Company to
demolish the remains of the original structure and to construct a
new building. Ted Monk, Sr., a partner in Benak and head of the
project, named his son, Ted Monk, Jr. ("Monk"), as foreman of the
site.
At the time of construction, the Virgin Islands Water &
Power Authority ("WAPA") maintained 7,200-volt power lines
several feet above part of the proposed building. The power
lines were clearly visible, and there is no dispute that everyone
involved with the project knew about the lines and that any
contact with them would be dangerous.1 On November 8, 1990, a
crane was being used to lift steel joists that would connect the
columns of the building frame. The first joist was installed
with the use of a "tag line," a rope attached to the beam to
prevent it from swinging. Monk decided not to use a tag line to
install the next joist, however, because he thought he could
better control the joist from swinging by holding it directly
with his hands. At this point, Monk, Sr., yelled for his son to
use a tag line. As Monk prepared to do so, the steel joist
touched an overhead power line, sending an electrical current
through his body. He suffered severe burns that resulted in the
amputation of both his legs and his left arm.
1
. As the district court noted, the Benak supervisor at the
site, Paul Christoff, testified in his deposition that "everyone
present at the work site knew that the lines were energized. In
fact, Christoff heard Monk, Sr., specifically tell his son, the
plaintiff, to be careful of the lines because they were 'hot.'"
See Monk v. Virgin Islands Water & Power Auth., No. 91-0077, slip
op. at 3 n.2 (D.V.I. Jan. 24, 1994). For direct evidence of the
plaintiff's knowledge of the power lines and their danger, see
infra part II.C.
Monk then filed this suit for personal injuries against
Quality Electric and WAPA. The district court granted summary
judgment in favor of Quality Electric, but denied summary
judgment to WAPA. Monk v. Virgin Islands Water & Power Auth.,
No. 91-0077 (D.V.I. Jan. 24, 1994). Monk settled with WAPA, but
appealed the district court's judgment as to Quality Electric.
The district court had jurisdiction of the case
pursuant to 48 U.S.C. § 1612 (1988). We have jurisdiction under
28 U.S.C. § 1291 (1988), and our review of a grant of summary
judgment is plenary. Oritani Sav. & Loan Ass'n v. Fidelity &
Deposit Co., 989 F.2d 635, 637 (3d Cir. 1993). Summary judgment
is appropriate when "there is no genuine issue as to any material
fact" and "the moving party is entitled to a judgment as a matter
of law." Fed. R. Civ. P. 56(c).
II.
In the Virgin Islands, the various Restatements of law
provide the rules of decision in the absence of local laws to the
contrary. V.I. Code Ann. tit. 1, § 4 (1967);2 Williams v. Martin
Marietta Alumina, Inc., 817 F.2d 1030, 1033 (3d Cir. 1987). We
are called upon here to determine whether section 343A of the
2
. V.I. Code Ann. tit. 1, § 4 (1967) provides:
The rules of the common law, as
expressed in the restatements of the law
approved by the American Law Institute, and
to the extent not so expressed, as generally
understood and applied in the United States,
shall be the rules of decision in the courts
of the Virgin Islands in cases to which they
apply, in the absence of local laws to the
contrary.
Restatement (Second) of Torts (1965) survives enactment of the
Virgin Islands comparative negligence statute.
A.
At common law, a plaintiff's contributory negligence
barred any subsequent recovery for damages, even if the plaintiff
was only slightly at fault. W. Page Keeton et al., Prosser and
Keeton on the Law of Torts §§ 65, 67, at 451-52, 468-69 (5th ed.
1984); Restatement (Second) of Torts § 467. Similarly, the
common law doctrine of assumption of risk prevented recovery when
a plaintiff was deemed to have assumed the risk of a known
danger. Keeton et al., supra, § 68, at 495-96; Restatement §
496A.
While these rules were still in force throughout most
of the United States, the American Law Institute incorporated
section 343A on "Known or Obvious Dangers" into the Restatement
(Second) of Torts. Section 343A provides in relevant part:
A possessor of land is not liable to his
invitees3 for physical harm caused to them by
any activity or condition on the land whose
danger is known or obvious to them, unless
the possessor should anticipate the harm
despite such knowledge or obviousness.
3
. The Restatement definition of "invitee" includes a "business
visitor," which is defined as "a person who is invited to enter
or remain on land for a purpose directly or indirectly connected
with business dealings with the possessor of the land."
Restatement § 332. There is no dispute that Monk is an
"invitee," within the meaning of the Restatement.
(footnote added). Section 343A's focus on dangers "known or
obvious" to invitees, along with pertinent commentary,4 indicated
it was intended as a variation on the doctrine of assumption of
risk. See, e.g., Koutoufaris v. Dick, 604 A.2d 390, 395-96 (Del.
1992) (noting section "343A's apparent espousal of assumption of
risk as a bar to recovery").
Soon after adoption of the Second Restatement in 1965,
however, the principle of apportioning damages between negligent
plaintiffs and defendants under a comparative fault system began
"veritably sweeping the land." Keeton et al., supra, § 67, at
479. "Although by the mid-1960s only seven states had replaced
contributory negligence with comparative fault, several states
switched over in 1969, and the 1970s and early 1980s witnessed a
surge of legislative and judicial action accomplishing the
4
. For example, comment e to section 343A provides:
In the ordinary case, an invitee who
enters land is entitled to nothing more than
knowledge of the conditions and dangers he
will encounter if he comes. If he knows the
actual conditions, and the activities carried
on, and the dangers involved in either, he is
free to make an intelligent choice as to
whether the advantage to be gained is
sufficient to justify him in incurring the
risk by entering or remaining on the land.
The possessor of the land may reasonably
assume that he will protect himself by the
exercise of ordinary care, or that he will
voluntarily assume the risk of harm if he
does not succeed in doing so. Reasonable
care on the part of the possessor therefore
does not ordinarily require precautions, or
even warning, against dangers which are known
to the visitor, or so obvious to him that he
may be expected to discover them.
switch." Id. at 471 (footnotes omitted). All but four states
now have adopted the doctrine.5
The movement toward comparative negligence, however,
raised questions concerning the continued viability of the
assumption of risk defense,6 which often resembled contributory
negligence.7 See, e.g., id. § 68, at 495 ("The rise of
5
. Those four states are Alabama, Maryland, North Carolina, and
Virginia. See Jean W. Sexton, Recent Decision, Tort Law --
Assumption of Risk and Pennsylvania's Comparative Negligence
Statute: Howell v. Clyde, 67 Temp. L. Rev. 903, 903 & n.2 (1994);
see also Williams v. Delta Int'l Mach. Corp., 619 So. 2d 1330,
1333 (Ala. 1993); Harrison v. Montgomery County Bd. of Educ., 456
A.2d 894, 905 (Md. 1983); Campbell v. Baltimore Gas & Elec. Co.,
619 A.2d 213, 219 (Md. Ct. Spec. App.), cert. denied, 627 A.2d
538 (Md. 1993); Miller v. Miller, 160 S.E.2d 65, 73 (N.C. 1968);
Bowden v. Bell, 446 S.E.2d 816, 819 (N.C. Ct. App. 1994);
Litchford v. Hancock, 352 S.E.2d 335, 337 (Va. 1987).
6
. Our discussion involves only the implied form of assumption
of risk, not a defense based on an express contract. Defenses
based on express assumption of risk remain valid in virtually all
jurisdictions. See, e.g., W. Page Keeton et al., Prosser and
Keeton on the Law of Torts § 68, at 496 (5th ed. 1984) (footnotes
omitted) ("[A]bsent policy reasons for prohibiting contractual
disclaimers of this type in certain contexts, an express
assumption of risk by the plaintiff should continue to serve as a
total bar in comparative negligence cases."); 1 J.D. Lee & Barry
A. Lindahl, Modern Tort Law § 9.07, at 250 (1988) ("In
jurisdictions which have adopted comparative fault statutes, it
has generally been held that the defense of express assumption of
risk survives the enactment of such statutes."); 3 Stuart M.
Speiser et al., The American Law of Torts § 13:39, at 808 (1986)
("Express assumption of risk, as distinguished from implied
assumption of risk, has retained its viability as an absolute
defense despite the advent of comparative negligence. This
proposition is supported by cases from numerous jurisdictions.").
7
. For a discussion of the different forms of assumption of
risk, see infra part II.B; cf. Restatement § 496A cmt. c; Keeton,
supra, § 68, at 480-81 & 481 n.10. For purposes of this case, we
adhere to the distinctions noted in Keegan v. Anchor Inns, Inc.,
606 F.2d 35, 39-41 (3d Cir. 1979). As we explained in Keegan,
"Assumption of risk in its secondary sense is ordinarily
synonymous with contributory negligence and involves a failure to
comparative negligence has forced the courts and commentators to
consider afresh the proper role for the assumption of risk
defense."). Some jurisdictions that abolished contributory
negligence also eliminated assumption of risk by statute.8 Other
states left the issue for their courts to decide, which resulted
in a range of decisions across the spectrum.9 Most courts
rejected the defense,10 others continued it, and some supported
certain forms of it but rejected others.11
(..continued)
exercise reasonable care for one's own safety. . . . Assumption
of risk in its primary and strict sense involves voluntary
exposure to an obvious or known danger which negates liability."
Id. at 39 n.5 (citations omitted).
8
. "[S]everal comparative negligence statutes by their terms
abolish assumption of risk, in addition to contributory
negligence, as defenses that will bar liability altogether."
Keeton et al., supra, § 68, at 495-96 (citing several cases and
statutes); see also Speiser et al., supra, § 13:33, at 787
("There are a number of jurisdictions in which implied assumption
of risk was abolished by statute.").
9
. Keeton et al., supra, § 68, at 496 ("Most of the statutes,
however, are silent on assumption of risk, and so the matter has
been thrown over to the courts."); Speiser et al., supra, §
13:33, at 787 ("[I]n most jurisdictions, the statute by which
comparative negligence was enacted did not expressly deal with
assumption of risk, leaving it to the courts to deal with the
viability of the doctrine . . . .").
10
. See, e.g., Lee & Lindahl, supra, § 9.05, at 246 ("[M]ost
states have allowed the entire concept [of assumption of risk] to
be subsumed within comparative negligence by either abrogating it
or providing for its merger with comparative fault principles.");
Speiser et al., supra, § 13:33, at 787 ("[T]here are a number of
jurisdictions, decidedly representing a minority, in which
assumption of risk was retained as a separate defense under the
comparative negligence system.").
11
. For a state-by-state analysis of the viability of assumption
of risk after adoption of comparative negligence, see Speiser et
al., supra, §§ 13:33-:39, at 784-809; see also Keeton et al.,
Depending upon their position on the viability of
assumption of risk, courts also decided whether to continue using
section 343A of the Restatement. As with assumption of risk
generally, some courts opted to continue using section 343A,12
others decided against it, and still others decided the
applicability of section 343A depended on the type of assumption
of risk involved.13
B.
In 1973, the Virgin Islands abolished the common law
rule that a plaintiff's contributory negligence barred any
recovery. In its place, it adopted a comparative negligence
statute that apportioned fault between the plaintiff and
defendant. See V.I. Code Ann. tit. 5, § 1451 (Supp. 1993);14
(..continued)
supra, § 68, at 495-498; Lee & Lindahl, supra, § 9.05, at 245-
247.
12
. See, e.g., Carrender v. Fitterer, 469 A.2d 120, 124-25 (Pa.
1983).
13
. See, e.g., Koutoufaris v. Dick, 604 A.2d 390, 398 (Del.
1992) (rejecting use of section 343A when the alleged assumption
of risk was secondary type, but noting that it "might well" apply
when assumption of risk was primary type). For a summary of
judicial opinion regarding the applicability of section 343A in
comparative negligence jurisdictions, see id. at 395-98.
14
. V.I. Code Ann. tit. 5, § 1451(a) (Supp. 1993) provides in
relevant part:
In any action based upon negligence to
recover for injury to person or property, the
contributory negligence of the plaintiff
shall not bar a recovery, but the damages
shall be diminished by the trier of fact in
proportion to the amount of negligence
attributable to the plaintiff. The burden of
proving contributory negligence shall be on
the defendant. If such claimant is found by
Keegan v. Anchor Inns, Inc., 606 F.2d 35, 37-38 (3d Cir. 1979).
Monk contends this statute implicitly abolished assumption of
risk as a defense, thereby contradicting Restatement section 343A
and nullifying its viability.
In Keegan, id. at 37-41, we examined the Virgin Islands
comparative negligence statute and its effect on the doctrine of
assumption of risk. We held the statute abrogated one type of
the assumption of risk defense, but left the other form intact:
Assumption of risk is not necessarily
grounded on the concept of fault. Sometimes
the defense has been invoked when the
plaintiff's conduct could be characterized as
negligent; sometimes it has been invoked in
its "strict" or "primary" sense when the
conduct amounted to consent. In those cases
where the plaintiff's conduct amounts to
negligence, that fact should be accorded
weight only within the comparative scheme of
the statute. In such a case assumption of
risk is not available as a bar to recovery. .
. . It follows that when conduct amounts to
a voluntary waiver or consent the absolute
bar to recovery should remain.
(..continued)
the trier of fact to be more at fault than
the defendant, or, in the case of multiple
defendants, more at fault than the combined
fault of the defendants, the claimant may not
recover.
Id. at 40. We employed this distinction between the two types of
assumption of risk in Smollett v. Skayting Development Corp., 793
F.2d 547 (3d Cir. 1986). In Smollett, a woman injured while ice
skating sued the operator of the rink, complaining that the lack
of guardrails and the carpeted floor surrounding the ice caused
her injuries. The jury found for the plaintiff, and the district
court denied the defendant's motion for a judgment
notwithstanding the verdict. On appeal, we reversed and directed
the district court to enter judgment for the defendant, holding
that the evidence showed the plaintiff "fully understood the risk
of harm to herself and voluntarily chose to enter the area of
risk. She, therefore, implicitly assumed the risk of injury."
Id. at 548 (citation omitted). In so ruling, we reiterated the
comparative negligence statute's effect on assumption of risk:
Assumption of risk is still available as a
complete defense to a negligence claim but it
has been limited by enactment of the
comparative negligence statute. Assumption
of risk, to the extent it incorporates the
concept of fault on the part of the actor
and, therefore, overlaps with contributory
negligence, is no longer available as a
defense. However, assumption of risk can
still be applied to "non-negligent conduct
which constitutes waiver or consent" but
which involved no negligence. In such cases
the absolute bar to recovery remains.
Id. (quoting Keegan, 606 F.2d at 41 n.8). Therefore, the
"primary" form of assumption of risk remains a viable defense in
the Virgin Islands.15 Because Restatement section 343A requires
15
. We disagree with Monk's assertion that the judicial
rejection of sections 343 and 343A under federal admiralty law
controls this case. It is true that we have held those
a plaintiff's implicit acquiescence to "known or obvious
dangers," the essence of the primary form of assumption of risk,
this Restatement provision also remains valid under Virgin
Islands law.
We recognize our holding on assumption of risk may not
represent the view of a majority of jurisdictions.16 But many of
(..continued)
Restatement sections inapplicable to actions arising under the
Longshore and Harbor Workers' Compensation Act, 33 U.S.C. §
905(b). See Davis v. Portline Transportes Maritime
Internacional, 16 F.3d 532, 542 n.7 (3d Cir. 1994) (noting that
"[s]ome portions of the Restatement's approach, however, clearly
do not fit within the paradigm the Act constructs" and citing
section 343A as an example); Rich v. United States Lines, Inc.,
596 F.2d 541, 551 n.21 (3d Cir. 1979) ("Sections 343 and 343A of
the Restatement (Second) of Torts . . . are both inconsistent
with Section 905(b) and therefore should not be relied upon to
create a duty on the part of the ship owner."); see also Scindia
Steam Navigation Co. v. De Los Santos, 451 U.S. 156, 168 n.14
(1981) (stating that "those sections, while not irrelevant, do
not furnish sure guidance in cases such as this"). But we
rejected those sections because Congress, in amending the
Longshore and Harbor Workers' Compensation Act, expressly
indicated its intent to abolish assumption of risk when it
eliminated contributory negligence. See id. at 166 n.13 ("The
Committees also anticipated that in § 905(b) cases, as in other
admiralty cases, the rule of comparative negligence would apply
and the defense of assumption of risk would be barred."); H.R.
Rep. No. 1441, 92d Cong., 2d Sess. 8 (1972), reprinted in 1972
U.S.C.C.A.N. 4698, 4705 ("[T]he Committee intends that the
admiralty rule which precludes the defense of 'assumption of
risk' in an action by an injured employee shall also be
applicable."). Similarly, some state legislatures also barred
assumption of risk when they approved comparative negligence
statutes. See supra note 8 and accompanying text.
In abolishing contributory negligence, however, the
Virgin Islands legislature never gave any indication whether it
intended to bar assumption of risk. Thus, the maritime actions
are distinguishable. In any event, as the Supreme Court has
stated, "maritime negligence actions are not necessarily to be
governed by principles applicable in nonmaritime contexts."
Scindia Steam, 451 U.S. at 168 n.14.
16
. See supra note 10 and accompanying text.
the contrary cases are distinguishable, largely because relevant
statutes eliminating contributory negligence often expressly
barred the assumption of risk defense.17 Furthermore, we have
interpreted the statute in this manner consistently since its
1973 enactment. We acknowledge the existence of strong policy
reasons for completely abandoning the doctrine of assumption of
risk as an absolute bar to recovery,18 just as there are
compelling reasons to maintain the defense in its limited form.19
But unlike other jurisdictions, where the Restatement merely
serves as a summary of general legal principles for courts to
accept or reject, the Virgin Islands has designated the
Restatement as its law, until a contrary statute is approved.20
Therefore, if the Virgin Islands wishes to abrogate the doctrine
17
. See supra note 8 and accompanying text.
18
. See, e.g., Sexton, supra, at 905 ("[A]ssumption of risk
clearly circumvents the purpose of the comparative negligence
statute by precluding recovery even if the plaintiff's actions
were reasonable or caused only one percent of the total harm . .
. ."); see also id. at 903 & n.4 (listing commentators who
"advocate the complete abolition of the assumption of risk
defense").
19
. See, e.g., Keeton et al., supra, § 68, at 496 (footnotes
omitted) ("'[P]rimary' implied assumption of risk should also
logically continue to be an absolute bar after the adoption of
comparative fault . . . . This is because assumption of risk in
this form is really a principle of no duty, or no negligence, and
so denies the existence of any underlying cause of action.
Without a breach of duty by the defendant, there is thus
logically nothing to compare with any misconduct of the
plaintiff."); see also Sexton, supra, at 903 & n.3 (listing
commentators supportive of the continuation of assumption of risk
under comparative negligence).
20
. See supra note 2.
of assumption of risk, along with section 343A of the
Restatement, its legislature must say so, as it did in 1973 with
contributory negligence.
C.
In applying section 343A of the Restatement to this
case, the district court granted summary judgment to Quality
Electric because "it was Monk's decision not to use a tag line
and instead to hold onto the metal beam that precipitated his
injuries. Monk cannot now try to shift the liability to Quality
Electric simply because they owned the land where the work was
performed." Monk, No. 91-0077, slip op. at 12.
To the extent the district court based its decision on
Monk's negligence (or contributory negligence), we believe it
erred. Instead, the court should have focused on evidence
demonstrating Monk's awareness of and consent to a "known or
obvious" danger. Evidence of Monk's negligence is relevant only
to show the type of secondary assumption of risk that
"incorporates the concept of fault on the part of the actor and,
therefore, overlaps with contributory negligence." Smollett, 793
F.2d at 548. As we have held, such evidence is no longer
permitted in the Virgin Islands to bar a plaintiff's cause of
action, but rather only may be used to apportion fault between
plaintiffs and defendants. Id.; Keegan, 606 F.2d at 39-41.
Nevertheless, as in Smollett, we have little difficulty
in concluding as a matter of law that plaintiff "fully understood
the risk of harm to h[im]self and voluntarily chose to enter the
area of risk." 793 F.2d at 548. Although the issue of whether a
danger was "known or obvious" generally is a question of fact for
a jury, cf. Restatement § 496D cmt. e, there is no dispute in
this case that Monk actually knew of the risk posed by the power
lines. As the district court noted, "At all relevant times, the
Benak Construction crew knew that the power lines were energized
and posed a possible danger." Monk, No. 91-0077, slip op. at 3.
In his deposition, Monk admitted that "I did pay attention to the
location of the lines. I looked at them, everybody else on the
job had looked at them." He stated he knew that "if somebody
came in contact with [the power lines], then they were going to
get electrocuted, get hurt." Id. at 4 n.2. As foreman, Monk
testified he warned others about the danger posed by the power
lines: "[A]s I said earlier, I was always trying to stress how
dangerous they were and to be careful around them." Id.
Although Monk contends he did not know the lines were uninsulated
and the level of their voltage, these factors do not change the
fact that he knew the location of the lines and that they posed a
serious danger. Thus, he "assumed the risk of injury."
Smollett, 793 F.2d at 549.21
21
. Section 343A provides that owners of land are not liable to
invitees for "known or obvious" dangers, "unless the possessor
should anticipate the harm despite such knowledge or
obviousness." The Restatement commentary provides guidance on
the meaning of this exception to the rule:
Such reason to expect harm to the
visitor from known or obvious dangers may
arise, for example, where the possessor has
reason to expect that the invitee's attention
may be distracted, so that he will not
discover what is obvious, or will forget what
he has discovered, or fail to protect himself
against it. Such reason may also arise where
the possessor has reason to expect that the
invitee will proceed to encounter the known
or obvious danger because to a reasonable man
in his position the advantages of doing so
would outweigh the apparent risk.
D.
Monk also asserts that Quality Electric violated its
duties under section 343 of the Restatement (Second) of Torts,
which involves "Dangerous Conditions Known to or Discoverable by
Possessor."22 We cannot agree. The Restatement provides that
sections 343 and 343A "should be read together," with the latter
section dealing "with the effect of the fact that the condition
is known to the invitee, or is obvious to him . . . ."
(..continued)
Restatement § 343A cmt. f. This exception does not apply in
circumstances like the present, in which the visitor on the land
has been hired precisely for the work that involves or creates
the risk itself. In such circumstances, the landowner has no
reason to expect that the visitor will be distracted or forget
about the danger. Here, Monk's testimony reveals he was acutely
aware of the power lines at the time of the accident, and that is
why he chose to proceed without a tag line. See Monk, No. 91-
0077, slip. op. at 4 & n.3. Indeed, as foreman, Monk repeatedly
warned others to be careful around the power lines. See
discussion in text.
22
. Section 343 provides:
A possessor of land is subject to liability
for physical harm caused to his invitees by a
condition on the land if, but only if, he
(a) knows or by the exercise of
reasonable care would discover the condition,
and should realize that it involves an
unreasonable risk of harm to such invitees,
and
(b) should expect that they will not
discover or realize the danger, or will fail
to protect themselves against it, and
(c) fails to exercise reasonable care to
protect them against the danger.
Restatement § 343 cmt. a. By contrast, section 343 is intended
to apply "to protect invitees from non-obvious dangerous
conditions on the land." Rolick v. Collins Pine Co., 975 F.2d
1009, 1011 (3d Cir. 1992), cert. denied, 113 S. Ct. 1417
(1993).23 We have held that the power lines above Quality
Electric's land were both "known" and "obvious"; thus, section
343 does not apply here.
III.
Finally, Monk argues that Quality Electric
violated its duty under Restatement section
413, which involves an employer's "Duty to
Provide for Taking of Precautions Against
Dangers Involved in Work Entrusted to
Contractor." Section 413 provides: One
who employs an independent contractor to do
work which the employer should recognize as
likely to create, during its progress, a
peculiar unreasonable risk of physical harm
to others unless special precautions are
taken, is subject to liability for physical
23
. See also Rich v. United States Lines, Inc., 596 F.2d 541,
563 (3d Cir. 1979) (Garth, J., concurring) (citation omitted)
(Sections 343 and 343A "establish that the 'possessors of land
. . . are liable for physical harm caused to invitees by
dangerous conditions which are not obvious to the invitee (§
343), but are absolved from liability when dangerous conditions
are known or obvious, except when the possessor should anticipate
the harm despite the invitee's knowledge or the obviousness of
the condition. (§ 343A).'").
harm caused to them by the absence of such
precautions if the employer
(a) fails to provide in the contract
that the contractor shall take such
precautions, or
(b) fails to exercise reasonable care to
provide in some other manner for the taking
of such precautions.
At common law, the general rule was that "the employer
of an independent contractor is not liable for physical harm
caused to another by an act or omission of the contractor or his
servants." Restatement § 409; see also Williams v. Martin
Marietta Alumina, Inc., 817 F.2d 1030, 1036 (3d Cir. 1987). Yet,
courts began recognizing so many exceptions to that rule "that it
can now be said to be 'general' only in the sense that it is
applied where no good reason is found for departing from it."
Restatement § 409 cmt. b. The Restatement divided the exceptions
into those based on an employer's direct negligence, see §§ 410-
15, and those involving vicarious liability imposed on the
employer due to the negligence of the independent contractor, see
§§ 416-29. See Restatement ch. 15, topic 2, introductory note,
at 394. Therefore, any liability under section 413 must be based
on an employer's direct negligence.
Quality Electric urges us to consider whether the word
"others," under section 413 and elsewhere in chapter 15 of the
Restatement, even encompasses an independent contractor's
employees, thereby allowing them to file suit against their
employer's employer for injuries sustained on the job. Courts
for the Virgin Islands are divided on this issue,24 as are other
courts throughout the country. See Keeton et al., supra, § 71,
at 514 n.63 ("There is disagreement over whether the doctrine
protects third parties only or includes as well the contractor's
employees.").
24
. In 1975, the District Court of the Virgin Islands ruled that
the meaning of "others," under sections 416 and 427 of the
Restatement, did not encompass employees of an independent
contractor. Munson v. Duval, 11 V.I. 615, 630-33 (D.V.I. 1975).
A decade later, in "reaffirm[ing]" that rule, the court noted:
Time has proven the wisdom of Chief
Judge Christian's holding in Munson, supra,
as jurisdiction after jurisdiction issued a
ruling to the same effect. The net result is
that today, ten years later, the overwhelming
number of jurisdictions are uniform in their
interpretation of the word "others" in
Chapter 15 of the Restatement of Torts,
(Second), as excluding employees of
independent contractors.
Gibson v. Sullivan Trail Coal Co., 608 F. Supp. 390, 392
(D.V.I.), aff'd, 782 F.2d 1028 (3d Cir. 1985); see also Harris v.
No. 1 Contracting Corp. Excavation Constr. Co., 22 V.I. 3, 7-9
(V.I. T.C. 1986) (applying Gibson).
Other courts in the Virgin Islands have attempted to
limit such holdings to situations in which employers were sued
under a vicarious liability theory. See, e.g., Henry v. Hess Oil
V.I. Corp., 1991 St. Croix Supp. 115, slip op. at 23 (D.V.I.
1991) ("[S]ince the sole issue in [Gibson] was the employer's
vicarious liability, the court's citation of those sections
concerning direct liability was dictum. Therefore, the Third
Circuit's affirmation without opinion only went to the
proposition that the employer of an independent contractor is not
vicariously liable to the contractor's employees, which is
consistent with this opinion."); see also Olson v. Virgin Islands
Tel. Corp., 1986 St. Thomas Supp. 204, slip op. at 3 (D.V.I.
1986); Hood v. Hess Oil V.I. Corp., 650 F. Supp. 678, 679-80
(D.V.I. 1986). Thus, while the Virgin Islands courts agree that
employers cannot be held vicariously liable to employees of their
independent contractor, they are divided on whether such
employees can sue the employers for their direct negligence based
on Chapter 15 of the Restatement.
A.
Section 413, as well as sections 41625 and 427,26
essentially adopts the "peculiar risk" doctrine, which developed
in the latter half of the nineteenth century out of a recognition
that "a landowner who chose to undertake inherently dangerous
activity on his land should not escape liability for injuries to
others simply by hiring an independent contractor to do the
work." Privette v. Superior Court, 854 P.2d 721, 724-25 & n.2
(Cal. 1993) (in banc). The American Law Institute incorporated
this doctrine in the Second Restatement under certain provisions
of Chapter 15, which generally address the liability of employers
25
. Section 416 provides:
One who employs an independent contractor to
do work which the employer should recognize
as likely to create during its progress a
peculiar risk of physical harm to others
unless special precautions are taken, is
subject to liability for physical harm caused
to them by the failure of the contractor to
exercise reasonable care to take such
precautions, even though the employer has
provided for such precautions in the contract
or otherwise.
26
. Section 427 provides:
One who employs an independent contractor to
do work involving a special danger to others
which the employer knows or has reason to
know to be inherent in or normal to the work,
or which he contemplates or has reason to
contemplate when making the contract, is
subject to liability for physical harm caused
to such others by the contractor's failure to
take reasonable precautions against such
danger.
of independent contractors when they or their contractors have
been negligent.
An early draft of the Second Restatement of Torts
included a Special Note that excluded employees of the
independent contractor from filing suit under its provisions.
That note, which ultimately was not adopted, provided:
Special Note. The rules stated in this
Chapter are, in general, not applicable to
make the defendant who hires an independent
contractor liable to two classes of persons.
One consists of the employees, or
servants, of the defendant himself . . . .
. . . .
The other class of plaintiffs not
included in this Chapter consists of the
employees of the independent contractor. As
the common law developed, the defendant who
hired the contractor was under no obligation
to the servants of the contractor, and it was
the contractor who was responsible for their
safety. The one exception which developed
was that the servants of the contractor doing
work upon the defendant's land were treated
as invitees of the defendant, to whom he owed
a duty of reasonable care to see that the
premises were safe. This is still true. See
§ 343. In other respects, however, it is
still largely true that the defendant has no
responsibility to the contractor's servants.
One reason why such responsibility has not
developed has been that the workman's
recovery is now, with relatively few
exceptions, regulated by workmen's
compensation acts, the theory of which is
that the insurance out of which the
compensation is to be paid is to be carried
by the workman's own employer, and of course
premiums are to be calculated on that basis.
While workmen's compensation acts not
infrequently provide for third-party
liability, it has not been regarded as
necessary to impose such liability upon one
who hires the contractor, since it is to be
expected that the cost of the workmen's
compensation insurance will be included by
the contractor in his contract price for the
work, and so will in any case ultimately be
borne by the defendant who hires him.
Again, when the Sections in this Chapter
speak of liability to "another" or "others,"
or to "third persons," it is to be understood
that the employees of the contractor, as well
as those of the defendant himself, are not
included.
Restatement ch. 15 (Tentative Draft No. 7, 1962). The American
Law Institute omitted this note, however, at the recommendation
of William L. Prosser, the reporter for the Second Restatement.
39 A.L.I. Proc. 244-49 (1962). Prosser suggested the provision
be dropped because of a lack of uniformity on the issue,
particularly because of the effect of the various state workers'
compensation acts. Id. at 246. Nevertheless, he stated that
"certainly the prevailing point of view is that there is no
liability on the part of the employer of the independent
contractor." Id. at 247.
In the first decade after the adoption of the
Restatement, courts split on whether to permit a contractor's
employees to sue under the peculiar risk provisions of Chapter
15.27 Since the early 1980s, however, an overwhelming majority
27
. As the Washington Supreme Court noted in 1981:
Other jurisdictions which have faced
this issue are divided over whether employers
of an independent contractor owe to the
employees of the contractor a nondelegable
duty of care based on the presence of an
inherently dangerous activity. Several
jurisdictions have held that such a
of state high courts to consider the issue have held that
employers are not liable to such employees,28 with some even
overruling prior interpretations of the Restatement.29 A
majority of our sister circuits also have so ruled when called
(..continued)
nondelegable duty is owed to employees of
independent contractors. The overwhelming
number of jurisdictions which have resolved
this issue have found, however, that no duty
is owed by an owner to employees of an
independent contractor.
Tauscher v. Puget Sound Power & Light Co., 635 P.2d 426, 429
(Wash. 1981) (en banc) (citing numerous cases) (footnotes
omitted).
28
. See Privette v. Superior Court, 854 P.2d 721, 730-31 (Cal.
1993) (in banc); Dillard v. Strecker, 877 P.2d 371, 385 (Kan.
1994); Matteuzzi v. Columbus Partnership, L.P., 866 S.W.2d 128,
131-32 (Mo. 1993) (en banc) (citing Zueck v. Oppenheimer Gateway
Properties, Inc., 809 S.W.2d 384, 390 (Mo. 1991) (en banc));
Sierra Pac. Power Co. v. Rinehart, 665 P.2d 270, 273 (Nev. 1983);
Valdez v. Cillessen & Son, Inc., 734 P.2d 1258, 1263 (N.M. 1987)
(citing New Mexico Elec. Serv. Co. v. Montanez, 551 P.2d 634
(N.M. 1976)); Tauscher v. Puget Sound Power & Light Co., 635 P.2d
426, 429-31 (Wash. 1981) (en banc); Wagner v. Continental
Casualty Co., 421 N.W.2d 835, 841, 844 (Wis. 1988); Stockwell v.
Parker Drilling Co., 733 P.2d 1029, 1032 (Wyo. 1987) (citing
Jones v. Chevron U.S.A., Inc., 718 P.2d 890 (Wyo. 1986)); cf.
Rowley v. Mayor of Baltimore, 505 A.2d 494, 503 (Md. 1986);
Vertentes v. Barletta Co., 466 N.E.2d 500, 502-04 (Mass. 1984);
Conover v. Northern States Power Co., 313 N.W.2d 397, 404-07
(Minn. 1981); Whitaker v. Norman, 551 N.E.2d 579, 580 (N.Y.
1989); Fleck v. ANG Coal Gasification Co., 522 N.W.2d 445, 454
(N.D. 1994). But see Sievers v. McClure, 746 P.2d 885, 887 n.2
(Alaska 1987); Elliott v. Public Serv. Co., 517 A.2d 1185, 1188
(N.H. 1986).
29
. See, e.g., Privette, 854 P.2d at 726, 730 n.4 (overruling a
line of cases stretching back more than 30 years); Zueck, 809
S.W.2d at 390.
upon to resolve the issue in cases under state30 and federal31
law.
30
. See, e.g., Scofi v. McKeon Constr. Co., 666 F.2d 170, 172
(5th Cir. 1982) (Florida law); Anderson v. Marathon Petroleum
Co., 801 F.2d 936, 940-42 (7th Cir. 1986) (Illinois law); Vagle
v. Pickands Mather & Co., 611 F.2d 1212, 1217-19 (8th Cir. 1979)
(Minnesota law), cert. denied, 444 U.S. 1033 (1980); cf. Lipka v.
United States, 369 F.2d 288, 292-93 (2d Cir. 1966) (New York
law), cert. denied, 387 U.S. 935 (1967). But see Lindler v.
District of Columbia, 502 F.2d 495, 499 (D.C. Cir. 1974)
(District of Columbia law).
We have previously noted that at least one jurisdiction
within this circuit follows the "minority" rule. See Toole v.
United States, 588 F.2d 403, 407 (3d Cir. 1978) (citing Gonzalez
v. United States Steel Corp., 374 A.2d 1334, 1339 (Pa. Super. Ct.
1977)). This result, however, does not bind us here. First, the
Pennsylvania case we cited as our authority, Gonzalez, was
appealed to the Pennsylvania Supreme Court, which, in affirming,
declined to decide this issue. See Gonzalez v. United States
Steel Corp., 398 A.2d 1378, 1384 n.10 (Pa. 1979) ("U.S. Steel
argues that Section 410 (and Section 413) do not impose liability
upon an employer of an independent contractor for injuries
incurred by employees of the independent contractor. We agree,
however, with plaintiffs that this contention was not preserved
for our review."). But see Lorah v. Luppold Roofing Co., 622
A.2d 1383, 1386 n.2 (Pa. Super. Ct. 1993) ("[I]t is apparent that
the law in this Commonwealth is that employees of an independent
contractor are parties under §§ 416 and 427 to whom an obligation
can flow."). Second, an interpretation of the Restatement by one
jurisdiction within this circuit does not compel the same
interpretation for another such jurisdiction. In fact, we
already have predicted that New Jersey would reject the minority
rule that Pennsylvania may have adopted. See Merklin v. United
States, 788 F.2d 172, 176 (3d Cir. 1986) ("New Jersey would
prohibit the contractor's employees from recovering against the
employer. The traditional approach holds that the inherently
dangerous doctrine protects only third parties and not the
contractor's employees.").
31
. See, e.g., Chavis v. Finnlines, Ltd., O/Y, 576 F.2d 1072,
1081 (4th Cir. 1978); Hess v. Upper Miss. Towing Corp., 559 F.2d
1030, 1033-35 (5th Cir. 1977) (citing numerous cases), cert.
denied, 435 U.S. 924 (1978); Nelson v. United States, 639 F.2d
469, 474-79 (9th Cir. 1980); Eutsler v. United States, 376 F.2d
634, 635-37 (10th Cir. 1967); cf. Evans v. Transportacion
Most of these courts have not permitted employer
liability to a contractor's employees for four fundamental
reasons. First, following the reasoning of the Restatement's
unadopted Special Note, courts have noted that workers'
compensation statutes preclude employees from recovering against
the independent contractor, even though it oversaw and permitted
the unsafe working conditions, but do not bar suits against the
contractor's employer. This result appears inequitable,
particularly when the employer is indirectly paying the cost of
the workers' compensation premiums:
As one court observed, the "principal"
who hires an independent contractor should be
subject to no greater liability "than its
[independent contractor] agent," whose
exposure for injury to an employee is limited
to providing workers' compensation insurance.
Other courts have reasoned that the rule of
workers' compensation exclusivity, which
shields an independent contractor who pays
workers' compensation insurance premiums from
further liability to its employees for on-
the-job injuries, should equally protect the
property owner who, in hiring the contractor,
is indirectly paying for the cost of such
coverage, which the contractor presumably has
calculated into the contract price.
Privette, 854 P.2d at 728 (citation omitted).32
A second and related reason why courts have barred
employees from recovering against their employer's employer is
(..continued)
Maritime Mexicana S.S. Campeche, 639 F.2d 848, 859 (2d Cir.
1981).
32
. For additional authority on this point, see Dillard, 877
P.2d at 385; Zueck, 809 S.W.2d at 390; Fleck, 522 N.W.2d at 451-
52; Tauscher, 635 P.2d at 430-31; Wagner, 421 N.W.2d at 842-43;
Merklin, 788 F.2d at 176.
that such liability is not necessary to achieve the original aims
of the doctrine of peculiar risk. Liability under the doctrine
is not necessary, in cases of injuries to a contractor's
employees, because:
the workers' compensation system of recovery
regardless of fault achieves the identical
purposes that underlie recovery under the
doctrine of peculiar risk: it ensures
compensation for injury by providing swift
and sure compensation to employees for any
workplace injury; it spreads the risk created
by the performance of dangerous work to those
who contract for and thus benefit from such
work, by including the cost of workers'
compensation insurance in the price for the
contracted work; and it encourages industrial
safety.
Id. at 730; see also Fleck v. ANG Coal Gasification Co., 522
N.W.2d 445, 451 (N.D. 1994); Wagner v. Continental Casualty Co.,
421 N.W.2d 835, 842-43 (Wis. 1988).
In fact, the third reason cited by courts for
forbidding employer liability is that such liability may actually
decrease workplace safety. Most employers probably would have
little trouble determining those dangers that might be peculiarly
risky to passers-by uninvolved in a construction project. As the
Missouri Supreme Court noted, "Common sense permits a landowner
to identify the potential of harm which an activity may create to
persons not participating in the activity." Zueck v. Oppenheimer
Gateway Properties, Inc., 809 S.W.2d 384, 387 (Mo. 1991) (en
banc). Yet, the risks to a contractor's workers and the
protections necessary to reduce such risks "are often beyond the
owner's expertise." Id. Independent contractors are frequently,
if not usually, hired because the landowner is aware of his own
lack of expertise and seeks to have the work performed as safely
and efficiently as possible by hiring those possessing the
expertise he lacks.
If the landowner chooses to avoid the
additional liability imposed by the
inherently dangerous exception, he may choose
to direct his own employees to do the work
despite his and their lack of expertise.
That simple choice limits the landowner's
exposure to that provided under worker's
compensation. But that choice also increases
the risk of injury to the employees and to
innocent third parties.
Id. at 387-88 (footnote omitted).33 Furthermore, permitting
employer liability to a contractor's employees also ignores "the
fact that the economic system permits workers who presume to
undertake dangerous work to bargain for an enhanced reward for
assuming the danger." Id. at 390 (footnote omitted); see also
Dillard v. Strecker, 877 P.2d 371, 385 (Kan. 1994).
Finally, courts point out that employers need not be
held liable to employees of an independent contractor under the
peculiar risk provisions of Chapter 15 of the Restatement because
other remedies exist besides workers' compensation. A
contractor's employees, along with other invitees, still have the
right to sue for certain latent defects on the land, see
Restatement § 343, or for "known or obvious" dangers whose harm
should have been anticipated, see id. § 343A. Cf. Tauscher v.
33
. See also Dillard, 877 P.2d at 385; Fleck, 522 N.W.2d at 452;
Tauscher, 635 P.2d at 431; Wagner, 421 N.W.2d at 842.
Puget Sound Power & Light Co., 635 P.2d 426, 430 (Wash. 1981) (en
banc); Restatement Special Note (unadopted), supra.
B.
We are persuaded by the reasoning of these courts;
thus, we hold that, under Virgin Islands law, employees of an
independent contractor are not included within the protected
class of "others" under the peculiar risk provisions of Chapter
15 of the Restatement. We acknowledge that a minority of
jurisdictions have held to the contrary. And we understand the
concerns expressed by courts in those states, particularly that
of holding tortfeasors liable for their actions and protecting
workers on the job.34 But we believe the interpretation chosen
by the overwhelming majority of jurisdictions is the better rule,
for the reasons already expressed.
We also believe this rule is consistent with the
policies expressed in the Virgin Islands Workmen's Compensation
Act, V.I. Code Ann. tit 24, §§ 251-85 (1993). As we have noted,
this Act, like "other workers compensation legislation, is
designed to 'provide prompt payment of benefits without regard to
fault.'" Chinnery v. Government of V.I., 865 F.2d 68, 71 (3d
Cir. 1989) (citations omitted). But the Act's other fundamental
34
. Courts that have held employers liable to such employees
under section 413 offer a variety of reasons for their decisions.
A few courts, noting that section 413 is a theory of direct
liability, find it appropriate to hold employers liable for their
own acts of negligence. See, e.g. Moloso v. State, 644 P.2d 205,
214-15 (Alaska 1982). Some courts point out that the Special
Note to the Restatement, see supra part III.A, was not adopted
and thus is not entitled to deference. See, e.g., Lindler v.
District of Columbia, 502 F.2d 495, 498-99 (D.C. Cir. 1974).
Other courts apparently following the minority view simply seem
to be adhering to longtime precedent. See, e.g., Bosak v.
Hutchinson, 375 N.W.2d 333, 338 (Mich. 1985).
purpose is "to relieve employers and employees of the burden of
civil litigation." Id. We believe our interpretation of these
sections of the Restatement furthers the latter purpose of the
Act without impairing the former purpose.
As a final matter, we should clarify that this holding
extends to actions under the direct liability provision of
section 413, as well as the vicarious liability provisions of
sections 416 and 427. The courts for the Virgin Islands have
attempted to distinguish the two situations,35 but the same
reasoning applies to both.36 In fact, most courts have cited
section 413, as well as sections 416 and 427, in holding that
employers are not liable to a contractor's employees under the
doctrine of peculiar risk.37
35
. See supra note 24.
36
. See, e.g., Matteuzzi v. Columbus Partnership, L.P., 866
S.W.2d 128, 131 (Mo. 1993) (en banc) ("The same reasons . . . for
rejecting a claim under § 416 are equally persuasive to reject a
claim under § 413."); Stockwell v. Parker Drilling Co., 733 P.2d
1029, 1032 (Wyo. 1987) ("The same logic and reasoning applies to
§ 413, and we agree that § 413 also does not apply to the
employee of an independent contractor."). Courts considering the
issue have explicitly refused to distinguish between these
Restatement sections just because two are under the vicarious
liability part of Chapter 15 and the other is under the direct
liability heading. See Privette v. Superior Court, 854 P.2d 721,
725 n.2 (Cal. 1993) (in banc); cf. Dillard, 877 P.2d at 378.
37
. See Privette, 854 P.2d at 725-26 & 725 n.2 (citing sections
413 and 416); Dillard, 877 P.2d at 375-85 (adopting reasoning of
numerous cases deciding issue under sections 413, 416, and 427);
Matteuzzi, 866 S.W.2d at 131-32 (citing Zueck v. Oppenheimer
Gateway Properties, Inc., 809 S.W.2d 384, 386 (Mo. 1991) (en
banc)) (citing sections 413, 416, and 427); Sierra Pac. Power Co.
v. Rinehart, 665 P.2d 270, 273 (Nev. 1983) (citing sections 413
and 416); Valdez v. Cillessen & Son, Inc., 734 P.2d 1258, 1263
(N.M. 1987) (citing New Mexico Elec. Serv. Co. v. Montanez, 551
P.2d 634 (N.M. 1976)) (citing sections 413, 416, and 427);
C.
Applying this interpretation of the Restatement and its
underlying reasoning to the facts of this case, it becomes clear
why employers should not be held liable to an independent
contractor's employees under section 413. The contract between
the parties required Benak to obtain workers' compensation
insurance; thus, as in the cases already noted, Quality Electric
was "indirectly" paying for such coverage.
Furthermore, instead of using its own employees, who
may have been unfamiliar with such work, Quality Electric hired
Benak, a company experienced in working near power lines.38 The
accident here was tragic; such work, however, might routinely be
deadly if Quality Electric and other landowners used their own
inexperienced workers merely to avoid liability to third parties.
(..continued)
Tauscher v. Puget Sound Power & Light Co., 635 P.2d 426, 429-30
(Wash. 1981) (en banc) (citing sections 413, 414, 416, and 427);
Wagner v. Continental Casualty Co., 421 N.W.2d 835, 841, 844
(Wis. 1988) (citing sections 413, 416, and 427); Stockwell, 733
P.2d at 1032 (citing Jones v. Chevron U.S.A., Inc., 718 P.2d 890
(Wyo. 1986)) (citing sections 413 and 416).
Other state high courts have decided that employers are
not liable to an independent contractor's employees under
sections 416 and 427, but did not discuss whether the rule
applies to section 413. See, e.g., Vertentes v. Barletta Co.,
466 N.E.2d 500, 502-04 (Mass. 1984); Conover v. Northern States
Power Co., 313 N.W.2d 397, 404-07 (Minn. 1981); Fleck v. ANG Coal
Gasification Co., 522 N.W.2d 445, 454 (N.D. 1994); cf. Rowley v.
Mayor of Baltimore, 505 A.2d 494, 503 (Md. 1986).
38
. As the district court noted, deposition testimony revealed
that "Benak Construction had worked on other projects where the
power lines were in an even closer vicinity than in the instant
case, and Benak Construction did not consider the situation at
the Quality Electric site to be a problem." Monk, No. 91-0077,
slip op. at 10 n.9.
We also fail to see what more Quality Electric
reasonably could have done to increase safety. There is no
question that officials from Quality Electric and Benak discussed
the power lines and their dangers. Monk, No. 91-0077, slip op.
at 8-9. It also is beyond dispute that, after these discussions,
Benak supervisors contacted WAPA about the power lines and that
the contract required Benak to assume the responsibility for the
work site and related safety precautions. Id. at 9. Although
the power lines traveled over Quality Electric's land, they did
not service Quality Electric but rather an adjacent property.
Id. at 3 n.1. And it is clear that Quality Electric officials
had given control of the site over to the independent contractor
while they worked in temporary offices nearby. Id. at 7-8.
Under these circumstances, the contractor, not Quality Electric,
was in the best position to gauge what measures were necessary to
protect the workers at the site from danger.
IV.
Based on the foregoing reasons, we will affirm the
judgment of the district court.