McLean v. Federal Street ( 1996 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
C. N. MCLEAN; LINDA MCLEAN,
Plaintiffs-Appellants,
v.
FEDERAL STREET CONSTRUCTION
COMPANY, INCORPORATED,
Defendant-Appellee,
and
No. 94-2093
POLING AND BACON CONSTRUCTION
COMPANY, INCORPORATED; ANKER
ENERGY CORPORATION; MORGANTOWN
ENERGY ASSOCIATES; MIDATLANTIC
ENERGY COMPANY; DOMINION COGEN
WV, INCORPORATED; HICKORY POWER
CORPORATION,
Defendants.
Appeal from the United States District Court
for the Northern District of West Virginia, at Elkins.
Robert E. Maxwell, District Judge.
(CA-92-115-C)
Argued: April 6, 1995
Decided: February 12, 1996
Before RUSSELL and WIDENER, Circuit Judges, and
CHAPMAN, Senior Circuit Judge.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
ARGUED: Jeffrey Vernon Mehalic, SEGAL & DAVIS, L.C.,
Charleston, West Virginia, for Appellants. Boyd Lee Warner,
WATERS, WARNER & HARRIS, Clarksburg, West Virginia, for
Appellee. ON BRIEF: Scott S. Segal, SEGAL & DAVIS, L.C.,
Charleston, West Virginia, for Appellants. Thomas G. Dyer,
WATERS, WARNER & HARRIS, Clarksburg, West Virginia, for
Appellee.
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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
Appellants C.N. and Linda McLean (plaintiffs)1 appeal from a
summary judgment in favor of defendant Federal Street Construction
Company in an action arising from an injury sustained by McLean in
November 1990 in Morgantown, West Virginia while he was operat-
ing a bulldozer in the course of his employment on a pipeline con-
struction project. For the reasons stated below, we affirm the grant of
summary judgment to Federal Street.
Briefly, the facts of this case are as follows. McLean was employed
by Poling & Bacon, a subcontractor of Federal Street on the Steam
Line Transmission Project, which was owned by Morgantown Energy
Associates. While operating a bulldozer on a hillside, McLean's seat
gave out, his foot fell off the machine's brake, and the machine slid,
rolled or fell backward down the hillside. McLean jumped from the
machine and was injured. Prior to the incident, there had been com-
plaints to Poling & Bacon about defects in the bulldozer's seat and
brakes.
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1 The injury was suffered by C.N. McLean. Mrs. McLean's claims are
for loss of consortium and thus derivative.
2
The McLeans sued Poling & Bacon, Federal Street, and Morgan-
town Energy, among others, in a West Virginia state court. They
argued that Federal Street, as general contractor, had a duty to provide
McLean with a safe workplace which it breached by failing to correct
a defect in the bulldozer, causing his injury. The defendants removed,
Morgantown Energy was dismissed, and the district court granted
summary judgment in favor of Poling & Bacon and Federal Street on
July 21, 1994. The McLeans' appeal of the Poling & Bacon judgment
has been dismissed.2
Under West Virginia law, a general contractor has a duty to pro-
vide its subcontractors' employees with a reasonably safe working
environment. See Hall v. Nello Teer Co., 203 S.E.2d 145, 149 (W.
Va. 1974). However, the district court did not err in finding that plain-
tiffs provided no evidence that Federal Street breached this duty. Pol-
ing & Bacon, not Federal Street, owned, supplied, and maintained the
bulldozer. Plaintiffs do not dispute that Federal Street had no knowl-
edge of the bulldozer's defective condition, and offer no evidence that
Federal Street was otherwise negligent in supervising Poling &
Bacon's operations or in providing plaintiff with a reasonably safe
working environment.
Instead, plaintiffs' principal argument is that they seek to attribute
Poling & Bacon's negligence to Federal Street with respect to the
alleged defects, on the basis of a contract between Poling & Bacon
and Federal Street which plaintiff claims gives Federal Street signifi-
cant control over, and responsibility for, the safety of the workplace
under the statements in Pasquale v. Ohio Power Co., 418 S.E.2d 738(W. Va. 1992). Plaintiffs contend that this contract establishes that
Federal Street either was obligated to discover the defect in Poling &
Bacon's bulldozer or was charged with Poling & Bacon's knowledge
of that defect.
However, the contract at issue imposes primary liability for the
safety of Poling & Bacon's employees on Poling & Bacon. Plaintiffs
have presented no evidence that Federal Street exercised any signifi-
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2 That claim was similar to that in Mandolidas v. Elkins Industries, Inc.,
246 S.E.2d 907 (W. Va. 1978), and was resolved by the district court by
summary judgment in favor of Poling & Bacon.
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cant control over the safety of Poling & Bacon's operations, nor have
they in any event suggested how Federal Street was negligent in
supervising the safety of Poling & Bacon's operations.
In fact, the contract between Poling & Bacon and Federal Street
states that Poling & Bacon "understands and agrees that neither Con-
tractor nor Architect will make continuous or exhaustive inspections
to assure Subcontractor's compliance with applicable safety rules,
regulations or requirements." Absent any evidence of actual control
over the safety of Poling & Bacon's operations, we think it plain that
this contractual provision would not support a finding that Federal
Street retained by contract any significant control over the safety of
those operations.
Thus, we agree with the district court that plaintiff seeks to impose
absolute or vicarious liability on a contractor for the negligence of its
subcontractors in a case in which the contractor-subcontractor con-
tract does not impose significant liability on the contractor for the
safety of the subcontractor's operations. This position is not well
taken. The plaintiffs have presented us with no West Virginia case
that supports this position, and we have found none. Plaintiffs had the
burden of showing that Federal Street was itself negligent in failing
to provide Poling & Bacon's employees with a reasonably safe work-
ing environment, and they have simply failed to meet that burden. We
thus find that the Poling & Bacon-Federal Street contract imposed no
liability on Federal Street for the negligence of Poling & Bacon.
Finally, plaintiff argues that a contract between Federal Street and
Morgantown Energy Associates, the owner of the Project, imposes
liability on Federal Street for the conduct of subcontractors. This
argument is meritless. The Morgantown Energy contract merely
establishes that as between Federal Street and Morgantown Energy,
Federal Street will indemnify and hold Morgantown Energy harmless
for certain acts or omissions of Federal Street or a subcontractor for
which Morgantown Energy was liable. It does not establish Federal
Street's liability for the negligence of subcontractors.
In sum, the district court was correct in concluding that plaintiff
produced no evidence that Federal Street knew of the defect in the
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bulldozer or was negligent in supervising Poling & Bacon's opera-
tions.
The judgment of the district court is accordingly
AFFIRMED.
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