Figueroa v. Hess Oil Virgin Islands Corp.

• Decision Date: 16 April 2002
• Docket Number: No. D.C.CIV.APP.1999/001.,D.C.CIV.APP.1999/001.
• Citation: 198 F.Supp.2d 632
• Parties: Anita FIGUEROA, Plaintiff/Appellant, v. HESS OIL VIRGIN ISLANDS CORPORATION (HOVIC), Defendant/Appellee.
• Court: U.S. District Court — Virgin Islands

198 F.Supp.2d 632

Anita FIGUEROA, Plaintiff/Appellant, v. HESS OIL VIRGIN ISLANDS CORPORATION (HOVIC), Defendant/Appellee.

No. D.C.CIV.APP.1999/001.

District Court, Virgin Islands, Appellate Division, D. St. Croix.

Considered: December 7, 2000.

Filed: April 16, 2002.

COPYRIGHT MATERIAL OMITTED

On Appeal from the Territorial Court of the Virgin Islands.

Ronald E. Russell, Esq., St. Croix, U.S. Virgin Islands, for Appellant.

Lad Mingus, Esq., Law Office of R. Eric Moore, St. Croix, U.S. Virgin Islands, for Appellee.

Before: RAYMOND L. FINCH, Chief Judge of the District Court of the Virgin Islands; THOMAS K. MOORE,^* Judge of the District Court of the Virgin Islands; and RHYS S. HODGE, Judge of the Territorial Court of the Virgin Islands, Sitting by Designation.

ORDER OF THE COURT

AND NOW this 16th day of April, 2002, having considered the arguments and submissions of the parties, and for the reasons set forth in the Court's accompanying opinion of even date, it is hereby

ORDERED that the appellant's motion to recuse District Judge Thomas K. Moore from this Panel is DENIED. It is further

ORDERED AND ADJUDGED that this matter is REVERSED, and REMANDED for a new trial consistent herewith.

OPINION OF THE COURT

HODGE, Judge.

In this appeal, we are required to consider whether the employer of an independent contractor can be liable for injuries to the independent contractor's employee under section 414 of the Restatement (Second) of Torts ("Restatement"). At the close of the plaintiff's case, the Territorial Court granted the defendant's Rule 50 motion for judgment as a matter of law, holding that section 414 of the Restatement does not allow the employee of the independent contractor to maintain an action for damages against the employer of the independent contractor. The court also ruled that the plaintiff failed to present any evidence to establish the defendant-landowner's liability under section 343 of the Restatement. For the reasons set forth below, we will reverse.

I. FACTS AND PROCEDURAL HISTORY

On October 24, 1996, Anita Figueroa ("Appellant"), a diner worker for United Ogden Services ("United Ogden"), fell near a salad bar at the Port-a-Kamp cafeteria on the premises of Hess Oil Virgin Islands Corporation ("HOVIC"). United Ogden is an independent contractor hired by HOVIC to provide cleaning and laundry services, and to maintain the Port-a-Kamp cafeteria. As United Ogden's employee, Figueroa was charged with restocking the salad bars in the cafeteria, preparing salads for the next shift, and generally maintaining the area around the salad bar. On October 24, 1996, while on a fifteen-minute break, Figueroa left the cafeteria's kitchen area and walked through the dining area to the soda machines. On the way back to the kitchen, she slipped on water that had accumulated on the floor where a hose running from the salad bar had slipped from its drain. She sustained injuries to her wrist, leg and back.

Figueroa brought this negligence action against HOVIC, asserting various theories of liability, including the tort of negligent exercise of retained control as set forth in Restatement section 414. At the close of Figueroa's evidence presented at trial, HOVIC moved for judgment as a matter of law on the ground that plaintiff had failed to establish a claim upon which relief can be granted. The trial judge granted HOVIC's motion and dismissed the action. This timely appeal followed.

II. DISCUSSION

A. Jurisdiction and Standard of Review.

This court has appellate jurisdiction to review judgments and orders of the Territorial Court in all civil cases. V.I. CODE ANN. tit. 4, § 33 (1997 & Supp. 2001); Revised Organic Act of 1954 § 23A.¹ We exercise plenary review over a trial court's judgment as a matter of law. Carty v. Hess Oil Virgin Islands Corporation, 42 V.I. 125, 78 F.Supp.2d 417 (D.V.I. 1999).

B. Liability for the Negligent Exercise of Retained Control under Restatement § 414.

The appellant was employed by United Ogden, an independent contractor hired by HOVIC to operate and maintain the cafeteria, and to provide personnel for laundry and janitorial services. Pursuant to its contract, HOVIC provided all necessary equipment while United Ogden was responsible for preparing and serving all meals in the cafeteria and for cleaning and maintaining the dining and kitchen areas in accordance with HOVIC's standards. HOVIC repaired and modified the floor area of the cafeteria, installed white tiles on the floor and provided and installed the salad bars and draining mechanisms. At trial, Plaintiff relied upon the Restatement (Second) of Torts sections 343², 343A³, 413⁴, 414⁵, and 416⁶. The trial court granted HOVIC's motion for judgment as a matter of law on the plaintiff's claims based on sections 413, 414 and 416, relying on Monk v. V.I. Water & Power Authority, 32 V.I. 425, 53 F.3d 1381 (3d Cir.1995) for the proposition that an independent contractor's employees may not sue the contractor's employer under any provision of Chapter 15 of the Restatement (Second) of Torts.

1. Monk v. Virgin Islands Water & Power Authority

In Monk, the Court of Appeals for the Third Circuit considered "whether the word `others,' in section 413 ... encompasses an independent contractor's employees." Monk, 53 F.3d at 1390. After extensive analysis, the court concluded that, under Virgin Islands law, "employees of an independent contractor are not included within the protection of `others' under the peculiar risk provisions of Chapter 15 of the Restatement." Monk, 53 F.3d at 1393 (emphasis added). Therefore, with respect to Plaintiff's peculiar risk claims, premised on sections 413 and 416 of the Restatement, the trial court correctly applied Monk. Figueroa contends, however, that the trial court erred in relying on Monk to dismiss her claim under section 414, negligent exercise of retained control, because that section is not a peculiar risk provision. We are thus faced with the question of whether the reasoning and analysis of Monk was properly applied by the trial court to bar the plaintiff's section 414 claim.

2. Chapter 15 of the Restatement (Second) of Torts, Monk, and Virgin Islands Law

Chapter 15 of the Restatement (Second) of Torts covers the liability of an employer of an independent contractor for injuries caused to others by the acts or omissions of the contractor. See Restatement div. 2, ch. 15, at 369. The first provision, section 409, recites the general rule of non-liability: "General Principle. Except as stated in sections 410-429, 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. Thus, sections 410 through 415 describe those situations in which an employer may nevertheless be liable for injuries to others caused by the contractor.⁷

Of these exceptions, the Monk court clearly limited its analysis to the meaning "of `others' under the peculiar risk provisions of Chapter 15 of the Restatement." Monk, 53 F.3d at 1393 (emphasis added). As the court stated, its "holding extends to actions under the direct liability provisions of section 413, as well as the vicarious liability provisions of sections 416 and 427" dealing with the doctrine of peculiar risk. Monk, 53 F.3d at 1394. Thus, it is clear that Monk did not extend to section 414 of the Restatement (Second) of Torts because that section is not a peculiar risk provision.

In a recent decision, Gass v. Virgin Islands Tel. Corp., 149 F.Supp.2d 205 (D.Vi. 2001),⁸ the trial division of this court held that the employee of an independent contractor may not sue his employer's employer under section 414 because Monk "impliedly eliminated the presence or absence of circumstances of peculiar risk as a factor to be considered". Id. at 220 (emphasis added). We are unpersuaded by this reasoning and find it to be an insufficient basis for rejecting what we find to be settled law in this jurisdiction—namely, that one who undertakes to perform an affirmative duty will be liable for his own negligence.⁹

Monk's holding was specifically limited to the peculiar risk provisions of Chapter 15 and was heavily influenced by California law. In particular, the California Supreme Court decision Privette v. Superior Court, 5 Cal.4th 689, 21 Cal.Rptr.2d 72, 854 P.2d 721 (1993), was heavily relied upon. That case held that an employee of a contractor may not sue the hirer of the contractor under either version of the peculiar risk doctrine, that is, under either section 413 or section 416. Privette, 5 Cal.4th 689, 21 Cal.Rptr.2d 72, 854 P.2d 721 (1993); see also Toland v. Sunland Housing Group, Inc., 18 Cal.4th 253, 264 n. 2, 74 Cal.Rptr.2d 878, 955 P.2d 504 (1998); Camargo v. Tjaarda Dairy, 25 Cal.4th 1235, 108 Cal.Rptr.2d 617, 25 P.3d 1096 (2001) (applying the peculiar risk analysis of Privette to section 410, negligent hiring, and holding hirer not liable for the negligent performance of a hired contractor for injuries to the contractor's employees). When considering a hirer's liability under the peculiar risk provisions, the courts consistently distinguished the issue before them from the tort theory set forth in section 414. Toland, 74 Cal. Rptr.2d 878, 955 P.2d at 511 n. 2 (holding that the "grant of review did not extend to and therefore we do not decide ... whether Privette ... would preclude an employee of an independent contractor from seeking tort recovery from workplace injuries under the theory of section 414"); Camargo, 25 Cal.4th at 1245, n. 2, 108 Cal.Rptr.2d 617, 25 P.3d 1096 (concluding that the consideration of section 410 should "not be read as having prejudged" application to section 414). As the California Supreme Court explained, Privette's conclusion simply does not extend to section 414.¹⁰ Hooker v. Dept. of Trans., 27 Cal.4th 198, 115 Cal.Rptr.2d 853, 38 P.3d 1081 (2002).

Hence, there is simply no basis in law, to hold that one who...