Gass v. Virgin Islands Tel. Corp.
| Decision Date | 18 November 2002 |
| Docket Number | No. 01–2507.,01–2507. |
| Citation | 45 V.I. 649 |
| Parties | Chad S. GASS, Appellant v. VIRGIN ISLANDS TELEPHONE CORPORATION, RACO, Incorporated, and Ann Marie Estes |
| Court | U.S. Court of Appeals — Third Circuit |
OPINION TEXT STARTS HERE
Employee of contractor sued, inter alia, the contractor and contractor's employer to recover damages for injuries he suffered while repairing a telephone line. The District Court of the Virgin Islands, Thomas K. Moore, J., 149 F.Supp.2d 205, granted summary judgment to contractor and its employer, and employee appealed. The Court of Appeals, Fuentes, Circuit Judge, held that: (1) under Virgin Islands law, an injured employee of an independent contractor could sue the employer of the contractor for harm caused by the employer's own negligence, under sections of the Restatement (Second) of Torts on negligent instruction and negligent exercise of control retained by the employer, but (2) employee could not maintain suit against his own employer.
Affirmed in part, reversed in part, and remanded. Thomas Alkon [Argued], Thomas H. Hart, III, Alkon, Meaney & Hart, Christiansted, St. Croix, VI, for Appellant, Chad S. Gass.
R. Eric Moore [Argued], Law Offices of R. Eric Moore, Christiansted, VI, for Appellee, Virgin Islands Telephone Corporation.
Daryl C. Barnes, Carl A. Beckstedt, III [Argued], Bryant, Barnes & Moss, LLP, Christiansted, VI, Kelly L. Faglioni, W. Jeffrey Edwards, Hunton & Williams, Richmond, VA, for Appellee, RACO, Incorporated.
Before AMBRO, FUENTES, and GARTH, Circuit Judges.
As a result of the damage caused by Hurricane Marilyn, the Virgin Islands Telephone Company (“VITELCO”) hired an independent contractor, RACO, to repair phone lines in the Virgin Islands. Chad Gass, a RACO employee, was repairing a phone cable and was seriously injured when a car drove over the cable he was holding. Gass filed this negligence action against RACO, VITELCO, and the driver of the car. The primary issue in this appeal is whether an employee of an independent contractor may sue the hirer of the contractor under the direct liability theories set forth in sections 410 and 414 of Chapter 15 of the Restatement (Second) of Torts (1965 & App.1986) (“Restatement”).
The District Court granted summary judgment to defendant VITELCO because it found that an injured employee of an independent contractor has no cause of action in tort against the employer of the contractor under Restatement sections 410 and 414. The District Court granted summary judgment to defendant RACO because it held that RACO was shielded from liability by the exclusivity provision of the Virgin Islands Workmen's Compensation Act (“WCA”). The District Court denied summary judgment to defendant Ann Marie Estes.1 We will reverse the District Court's judgment with respect to VITELCO and affirm with respect to RACO.
In September of 1995, Hurricane Marilyn struck the Virgin Islands, bringing down many VITELCO telephone lines on the islands of St. Thomas and St. John. In the following months, VITELCO hired contractors to assist in repairing the damaged telephone lines. These contractors included RACO, a construction firm based in North Carolina. RACO employed Chad Gass. VITELCO also hired Carnes, Burkett, Wiltsee & Associates, the engineering firm whose employee, Phillip Day, developed the blueprints and plans for the repair sites in the Virgin Islands.
On February 5, 1996, a RACO supervisor directed a RACO foreman, Jack Bryson, to take two linemen, Lee Fowler and Gass, from St. Thomas to St. John the next morning to repair telephone lines. Bryson complained to the RACO supervisor that three men were not sufficient to perform the job safely and that RACO's trucks lacked certain safety equipment, including road signs. The RACO supervisor instructed Bryson to proceed to St. John with the safety equipment to follow. Bryson had been assured that safety equipment, additional workers, and a cellular phone which he had requested would be available in a few days.
The following morning, Bryson, Fowler, and Gass traveled to St. John. Bryson reported to Day, who provided the work blueprint for the job of stringing an aerial “slack span” cable between telephone poles on opposite sides of a road. Day also showed the men where to get most of the materials for the job and led them to the job site. After Day left, the crew first “framed” a pole on the left side of the two-lane road, then parked the bucket truck in the right lane. The crew placed at least one of the bucket truck's two traffic cones at one end of the truck, and turned on the truck's flashing lights. They did not block traffic in the left lane, thus allowing vehicles from either direction to drive along one side of the truck. When the road was clear of traffic, Bryson laid a cable in front of the bucket truck across the road surface from one telephone pole to another. Bryson left some slack in the cable so that he could reach it from the bucket and motorists could drive over it safely. At approximately the same time, Bryson sent Fowler away from the work site to obtain the additional wire needed to complete the assignment.
Bryson then got in the bucket and instructed Gass to hand him the end of the cable when there were no vehicles approaching. After Gass handed the cable to Bryson, Estes drove her car over the cable. The cable wrapped around the rear axle of her car. As she continued driving forward, not realizing what had just occurred, the cable jerked out of Bryson's hands, coiled around Gass, and flung Gass into the air and across the bucket truck. Gass suffered serious injuries.
The workmen's compensation insurance provided by RACO covered Gass's medical expenses. In total, he recovered over $500,000 in workmen's compensation from RACO's insurer. On December 31, 1997, Gass filed the Complaint in this case, alleging that the negligent acts of Estes, VITELCO, and RACO caused his substantial injuries. Each of the defendants moved for summary judgment. On April 20, 2001, the District Court entered an order denying Estes' motion and granting the motions of VITELCO and RACO. On May 29, 2001, after Gass and Estes reached a settlement, the District Court ordered the case closed. Gass filed a timely appeal from the entry of summary judgment in favor of VITELCO and RACO.
The District Court had diversity jurisdiction under 28 U.S.C. § 1332. We have jurisdiction over the District Court's final order granting summary judgment to VITELCO and RACO pursuant to 28 U.S.C. § 1291.
The standard of review applicable to an order granting summary judgment is plenary. SeeCurley v. Klem, 298 F.3d 271, 276–77 (3d Cir.2002). We apply the same test employed by a district court under Federal Rule of Civil Procedure 56(c). SeeKelley v. TYK Refractories Co., 860 F.2d 1188, 1192 (3d Cir.1988). Accordingly, the District Court's grant of summary judgment in favor of VITELCO and RACO was proper only if it appears that “there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). In evaluating the evidence, we are required “to view [the] inferences to be drawn from the underlying facts in the light most favorable to the party opposing the motion.” Bartnicki v. Vopper, 200 F.3d 109, 114 (3d Cir.1999) (citation omitted).
The District Court granted summary judgment to VITELCO because it found that an injured employee of an independent contractor does not have a cause of action against the employer of the contractor under sections 410 or 414 of Chapter 15 of the Restatement. SeeGass v. Virgin Islands Telephone Corp. et al., 149 F.Supp.2d 205, 220 (D.Vi.2001). The District Court based its conclusion on Monk v. Virgin Islands Water & Power Auth., 53 F.3d 1381 (3d Cir.1995). In a subsequent opinion by the District Court of the Virgin Islands sitting as a three-judge appellate panel reviewing a Territorial Court decision, the panel explicitly rejected the District Court's interpretation of Monk in this case and held that an injured employee of an independent contractor does have a cause of action against the employer of the contractor under section 414. Figueroa v. HOVIC, 198 F.Supp.2d 632 (D.Vi.2002). 2 We must decide here whether the District Court's view of section 410 and 414 hirer liability is correct.3 Chapter 15 of the Restatement, comprised of sections 409 through 429, covers the “Liability of an Employer of an Independent Contractor.” Restatement div. 2, ch. 15, at 369. The first provision recites the general rule of non-liability of the employer of an independent contractor. Restatement § 409.4 The Restatement divides the exceptions to that general rule 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 §§ 416–429. See Restatement ch. 15, topic 2, introductory note, at 394; Monk, 53 F.3d at 1389.
Gass argues that VITELCO is directly liable for its negligent acts under the sections 410 and 414.5 Gass's theory is that VITELCO is liable under section 410, the negligent instruction section, because Phillip Day, acting as a representative of VITELCO, negligently gave the orders that caused RACO, through its supervisor, to commit the acts and omissions resulting in Gass's injuries.6 Alternatively, Gass argues that VITELCO retained sufficient control over the performance of the job to render VITELCO liable under section 414, the negligent exercise of retained control section.
Rather than discussing the merits of Gass's claims, the District Court determined as a matter of law that Gass could not state a claim under either section 410 or 414 against VITELCO as the employer of the independent contractor. Gass, 149 F.Supp.2d at 220. The District Court interpreted this Court's decision in Monk as dictating this result. Id. at 219–20. The District...
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