Porter v. Nutter
| Decision Date | 01 August 1990 |
| Docket Number | No. 89-1834,89-1834 |
| Citation | 913 F.2d 37 |
| Parties | John S. PORTER, Plaintiff, Appellant, v. Harold NUTTER, et al., Defendants, Appellees. . Heard |
| Court | U.S. Court of Appeals — First Circuit |
Lee C. Nyquist, with whom Devine and Nyquist and Merrick C. Weinstein, were on brief for plaintiff, appellant.
Andrew D. Dunn, with whom Devine, Millimet, & Branch and Cynthia A. Satter, were on brief for defendants, appellees.
Before CAMPBELL and SELYA, Circuit Judges, and BOWNES, Senior Circuit Judge.
Invoking diversity jurisdiction, 28 U.S.C. Sec. 1332, plaintiff-appellant John S. Porter, a Floridian, sued several local citizens, including appellee Ronald Griffin, in the United States District Court for the District of New Hampshire. 1 The district court, acting on a Rule 12(b)(6) motion, dismissed Porter's complaint against Griffin for failure to state a cognizable claim. Following entry of judgment under Fed.R.Civ.P. 54(b), Porter appeals.
"In reviewing a Rule 12(b)(6) dismissal, we take the well-pleaded facts as they appear in the complaint, indulging every reasonable inference in plaintiff's favor." Correa-Martinez v. Arrillaga-Belendez, 903 F.2d 49, 51 (1st Cir.1990). Utilizing this approach, Porter's amended complaint, read in its most flattering mien, reveals the following:
1. Griffin, Porter, and Raycraft worked for a common employer, Rockingham Venture, Inc. (RVI), which owned and operated a racetrack in Salem, New Hampshire. Griffin was a supervisor whose duties included reviewing safety precautions and directing work crews. Porter and Raycraft were subordinates who did plumbing repairs and general labor.
2. On July 20, 1987, the three men were toiling near the ladies' rest room at the racetrack. Performance of the job required Porter to work in a trench. He was not furnished with any headgear or other protective equipment.
3. Several times, Porter asked Griffin to remove a propane tank hovering near the trench's edge. Griffin had both the authority and the wherewithal to relocate the tank, but neglected to do so. Eventually, misfortune struck. Raycraft, said by plaintiff to be a "known user and abuser of alcohol," attempted to leap across the fissure, causing the omnipresent tank to fall into the trench. The tank struck Porter, seriously injuring him.
The district court, reading these facts liberally in plaintiff's favor, nonetheless believed Griffin to be immune from suit. We agree.
State substantive law controls in this diversity case. See Erie R. Co. v. Tompkins, 304 U.S. 64, 78, 58 S.Ct. 817, 822, 82 L.Ed. 1188 (1938); Moores v. Greenberg, 834 F.2d 1105, 1107 (1st Cir.1987). We begin our exposition by remarking that, under New Hampshire law, tort liability between coemployees is something of a gray area. The state supreme court in recent years has wrestled with the problem and determined that an employee may not sue a fellow employee for negligently-inflicted injuries sustained in the course of the employment if the putative defendant was simply carrying out the employer's nondelegable duty to maintain a safe workplace. See Rounds v. Standex International, 131 N.H. 71, 76-77, 550 A.2d 98, 101-02 (1988); see also Taylor v. Nutting, --- N.H. ----, ----, 578 A.2d 347, 348 (1990) (summarizing holding in Rounds ). To rule otherwise, the court reasoned, "would vitiate the purpose of the workers' compensation law." Rounds, 550 A.2d at 102. Thus, an employee can be liable in negligence to a coemployee only for the breach of some duty "distinct from the employer's duty to maintain a safe workplace." Id.
The New Hampshire Supreme Court amplified the purport of Rounds in Tyler v. Fuller, --- N.H. ----, 569 A.2d 764 (1990). There, the court rejected a proposed distinction premised on "active" versus "passive" negligence, 569 A.2d at 767, and observed that, for one employee to owe a separate and distinct duty to another, "something extra" was required: "It must be 'an affirmative act which increase[s] the risk of injury' and is beyond the scope of the employer's nondelegable duty to provide a safe workplace." Id. 569 A.2d at 769 (quoting Kruse v. Schieve, 61 Wis.2d 421, 213 N.W.2d 64 (1973)). The court's use of the conjunctive is noteworthy; to be actionable, the actor's conduct must not only increase the risk to plaintiff but must also exceed, and arise independent of, the responsibilities that the actor, standing in the employer's shoes, was required all along to fulfill.
The theory and burden of this line of cases is apparent. In New Hampshire, as elsewhere, an employer has a nondelegable duty to provide employees with a safe place to work. See, e.g., Moore v. Company, 89 N.H. 332, 335, 197 A. 707, 710 (1938). The sweep of the duty is broad: "The working conditions must be as safe as the nature of the place of employment reasonably permits...." Wasley v. Kosmatka, 50 Wis.2d 738, 744, 184 N.W.2d 821, 824-25 (1971). Although the duty is itself nondelegable, it is routinely implemented through agents, supervisory employees entrusted by the employer with carrying out the employer's common-law duty. When a supervisor's alleged negligence comprises conduct in derogation of this duty, an injured coemployee cannot sue the supervisor; after all, "[t]he duty of proper supervision is a duty owed by a ... supervisory employee to the employer, not to a fellow employee," and breach of it is, therefore, not actionable by the latter (the injured party being remanded, in effect, to his rights under the workers' compensation statutes). Tyler, 569 A.2d at 768 (quoting Kruse, 213 N.W.2d at 67). It is only when the supervisor's conduct transcends the scope of the employer's duty that negligence will ground a suit by an injured fellow employee. Hence, a right of action inures when the act or omission occurs "in the [supervisor's] separate and distinct capacity as coemployee[ ]." Id. 569 A.2d at 769.
We think that these authorities are dispositive of the instant appeal. Griffin was the overseer at the job site and, as the amended complaint unambiguously alleges, was in charge of safety precautions. In carrying out that responsibility, he was carrying out RVI's nondelegable duty to its work force. Requiring Porter to perform his chores in the presence of a known, curable hazard presumably violated RVI's duty to furnish Porter a safe place to work. Leaving the dangerous condition in place, particularly after attention had been called to it, presumably violated Griffin's duty to RVI. Yet, nothing in the amended complaint's factual scenario suggests that Griffin was guilty of any act or omission apart from, or beyond the scope of, RVI's duty to ensure that "[t]he working conditions [would] be as safe as the nature of the place of employment [here, the trench] reasonably permit[ted]." Wasley, 184 N.W.2d at 824-25. In short, the claimed negligence occurred while appellee was "merely executing the employer's duty." Tyler, 569 A.2d at 766. "Something extra" was lacking. 2
Appellant focuses obsessively on a single excerpt from the Tyler opinion:
An important factor to consider is the nature of the alleged negligence. If there is some direct involvement which creates a personal duty of care, liability may be asserted notwithstanding Rounds if such an independent duty is breached by a supervisory employee acting in the capacity of a co-worker/co-employee.
569 A.2d at 769. From this passage, he divines that cases like this one turn not on the scope of the employer's duty, but on the degree of the supervisor's involvement. But, this conclusion stands logic on its ear. Read in context, the analysis which Tyler directs starts not with the relationship between fellow employees, but with the relationship between the negligent actor and the employer; not with the supervisor's conduct, but with the scope of the employer's duty. If the negligence occurs in connection with the "supervisory duties which the defendant performs for the employer," then the defendant "has breached a duty owed to the employer and not to the employee." Id. It is only when the defendant "steps out of his or her role as a supervisor" that a personal duty of care to the injured employee arises. Id. And unless such a duty can be shown, the degree of the actor's involvement is immaterial. See id. (requiring, conjunctively, that conduct sued upon be both risk-increasing and beyond the scope of the employer's nondelegable duty to furnish a safe place to work). 3
Here, the facts alleged in no sense show that Griffin acted (or more precisely put, failed to act) beyond his supervisory capacity. Despite his...
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