Monk v. Virgin Islands Water & Power Auth.

• Decision Date: 05 December 1994
• Docket Number: No. 94-7372,94-7372
• Citation: 32 V.I. 425
• Parties: TED MARK MONK, Appellant v. VIRGIN ISLANDS WATER & POWER AUTHORITY; QUALITY ELECTRIC SUPPLY COMPANY
• Court: U.S. Court of Appeals — Third Circuit

32 V.I. 425

TED MARK MONK, Appellant v. VIRGIN ISLANDS WATER & POWER AUTHORITY;QUALITY ELECTRIC SUPPLY COMPANY

No. 94-7372

United States Court of Appeals for the Third Circuit

December 5, 1994

Appeal by plaintiff in personal injury action from District Court order granting summary judgment to defendant landowner. Third Circuit, Scirica, J., affirmed, holding that Restatement (Second) of Torts, as adopted by the Virgin Islands, shielded the landowner from tort claims by a worker injured on the property.

[Headnotes classified to Virgin Islands Digest]THOMAS ALKON, ESQ., (Alkin, Rhea & Hart), St. Croix, U.S.V.I., for Appellant

RHYS S. HODGE, ESQ., St. Thomas, U.S.V.I., for Appellee, Virgin Islands Water & Power Authority

R. ERIC MOORE, ESQ., St. Croix, U.S.V.I., for Appellee, Quality Electric Supply Company

BEFORE: SLOVITER, Chief Judge, SCIRICA and COWEN, Circuit Judges

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 QualityElectric 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.

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.

[1] In the Virgin Islands, the various Restatements of law provide the rules of decision in the absence of local laws to the contrary. VI. 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 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.

(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 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 negli-gence.⁷ See, e.g., id. § 68, at 495 ("The rise of 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

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 courtsopted 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.

[2, 3] 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 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.

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 defendant⁷s 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

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