Hodge v. Virgin Islands Telephone Corp.
Opinion of the Court
MEMORANDUM OPINION
(April 11, 2014)
Pending before the Court are Defendant Virgin Islands Telephone Corp.’s October 24, 2013, Motion for Summary Judgment
FACTUAL AND PROCEDURAL HISTORY
Plaintiff filed a Complaint on June 6, 2012, which she amended for a second time on April 8, 2013, alleging that as a result of Defendants’ negligence, Plaintiff suffered injuries, including being temporarily knocked unconscious, when she was hit by a falling cable in Súbase, St. Thomas on May 23, 2012. Specifically, Plaintiff alleges that Defendant Virgin Islands Telephone Corp. (“VITELCO”) was negligent in its supervision of Defendant Bonneville Group Virgin Islands, Corp. (“Bonneville”), with whom VITELCO contracted to install hybrid fiber-optic coaxial cable as part of its modernization project across St. Thomas. Plaintiff further alleges that Bonneville and Bonneville’s sub-contractor, Defendant Nolasco Communications Inc. (“Nolasco”), were negligent in supervising their employees to ensure that the area was secured and that all appropriate safety measures were taken before the accident.
STANDARD
Rule 56 of the Federal Rules of Civil Procedure, made applicable to the Virgin Islands Superior Court through Superior Court Rule 7, provides that summary judgment is appropriate only
if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show 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.3
In considering a motion for summary judgment, a court must “draw ... all reasonable inferences from the underlying facts in the light most favorable to the non-moving party.”
ANALYSIS
The factual allegations are largely not in dispute in this matter. Specifically, the Defendant VITELCO and Plaintiff agree that VITELCO entered into a contract on October 13, 2011, with Bonneville to provide “the service of qualified construction personnel and equipment, materials, tools, vehicles, etc. ... to perform and/or superintend the performance of... the installation of underground telecommunication fiber optic cable under the direction of VITELCO management,” also known as the “HFC project.”
Defendant VITELCO and Plaintiff also do not dispute that Nolasco workers failed to abide by proper safety precautions and, as a result, Plaintiff was injured when a cable fell and struck Plaintiff on the head. Specifically, VITELCO and Plaintiff do not dispute that at the time of the accident on May 23, 2012, Nolasco workers were installing fiber optic coaxial cable above-ground in Súbase. The process of installation involved first tensing a stranded steel cable affixed to two poles, draping the fiber optic coaxial cable across between the two poles, and then attaching the fiber optic coaxial cable to the stranded steel cable with wire
While the facts are largely agreed, VITELCO and Plaintiff disagree on whether VITELCO is vicariously liable under these facts for the alleged negligence of the Nolasco workers under several sections of the Restatement (Second) of Torts and the Restatement (Third) of Torts.
(1) whether any Virgin Islands courts have previously adopted a particular rule;
(2) the position taken by a majority of courts from other jurisdictions; and
*111 (3) most importantly, which approach represents the soundest rule for the Virgin Islands.14
Here, it appears that no local statute or binding precedent addresses the nondelegable duty exceptions to the generally accepted common law principle, adopted by the Supreme Court in Joseph v. Hess Oil Virgin Islands Corp.,
Defendant VITELCO argues generally that because the exceptions to the general rule, as outlined in RESTATEMENT (SECOND) OF TORTS §§ 410-429, have not been previously adopted in this jurisdiction other than § 414, none of these exceptions are applicable in this jurisdiction. The Court disagrees with Defendant’s sweeping proposition. Specifically, while the Joseph Court only explicitly adopted the Restatement (SECOND) OF Torts § 414,
To establish a plausible claim for negligence, a plaintiff must allege sufficient facts that establish “(1) a duty of care, (2) a breach of that duty by defendant, which (3) was the factual and proximate (legal) cause of (4) damages to plaintiff.”
I. Banks Analysis of the Restatement (Second) of Torts § 417
Conducting a Banks analysis, the Court finds that the RESTATEMENT (SECOND) OF Torts § 417 is an expression of the common law of this jurisdiction and finds it proper to adopt and apply § 417 here. Specifically, Restatement (Second) of Torts § 417 provides that:
One who employs an independent contractor to do work in a public place which unless carefully done involves a risk of making the physical condition of the place dangerous for the use of members of the public, is subject to liability for physical harm caused to members of the public by a negligent act or omission of the contractor which makes the physical condition of the place dangerous for their use.
Under the first Banks factor, while several Virgin Islands cases have addressed a situation where the injured individual was an employee of an independent contractor
Additionally, the Court does not find the second Banks factor — the position taken by a majority of courts from other jurisdictions — particularly dispositive in the Court’s analysis because, as previously discussed, the nondelegable duty exceptions, although accepted by a majority of jurisdictions as a general principle, are applied in nuanced ways in each jurisdiction.
*115 is located in a public way ... there can be no doubt that in its maintenance he assumes an affirmative duty to exercise reasonable care to know that it is... in a reasonably safe [condition]... [and] [w]hatever public safety reasonably requires is the measure of the diligence of precaution to be observed by him, for his use is subordinate to the public rights.28
Thus, this duty to the public is of such importance that it may not be delegated to a contractor, even if liability is explicitly apportioned to the contractor in the contract.
II. Applying the Restatement (Second) of Torts § 417 to the Present Undisputed Facts
Having adopted the Restatement (Second) of Torts § 417, the Court now applies it to the present undisputed facts and finds that Plaintiff is entitled to judgment as a matter of law regarding liability. It is undisputed that Defendant VITELCO hired Bonneville to do work in a public place, on the public highways and sidewalks of St. Thomas, “to perform and/or superintend the performance of certain telecommunications and/or construction work, namely the installation of underground telecommunication fiber optic cable under the direction of VITELCO management,” also known as the “HFC Project.”
III. Banks Analysis of the Restatement (Second) of Torts § 428
Applying a Banks analysis, the Court also finds that the Restatement (Second) of Torts § 428 is an expression of the common law of this jurisdiction and finds it proper to adopt and apply § 428 here. Specifically, Restatement (Second) of Torts § 428 provides that:
An individual or a corporation carrying on an activity which can be lawfully carried on only under a franchise granted by public authority and which involves an unreasonable risk of harm to others, is subject to liability for physical harm caused to such others by the negligence*119 of a contractor employed to do work in carrying on the activity.
The Banks analysis regarding the Restatement (Second) of Torts § 428 is more straightforward than that regarding the Restatement (Second) of Torts § 417 because, here, each factor weighs in favor of adopting the Restatement (Second) of Torts § 428 as a reflection of the common law of this jurisdiction. Specifically, under the first Banks factor, the District Court of the Virgin Islands has explicitly applied the RESTATEMENT (SECOND) OF TORTS § 428 in Roberts v. Gonzalez,
[w]ere the rule otherwise, a carrier could escape liability for the negligence of its independent contractors, thus reducing the incentive for careful supervision and depriving those who are injured of the financial responsibility of those to whom the privilege was granted. For these reasons, the carrier’s duties are nondelegable, and it is only when the carrier is “not regulated” at all that the rule is otherwise.
Second, as previously discussed, the Restatement (Second) of Torts § 428 has been adopted in this jurisdiction as well as in a majority of jurisdictions, reflecting the longstanding common law nondelegable duty held by certain franchise holders. As a result, the Court finds that the Restatement (Second) of Torts § 428 is the soundest rule for this jurisdiction, and, considering all the Banks factors, a proper reflection of the common law of this jurisdiction.
Having adopted the Restatement (Second) of Torts § 428, the Court now applies it to the present undisputed facts and finds that Plaintiff is also entitled to judgment as a matter of law regarding liability on this basis.
As a threshold matter, Defendant VITELCO argues that the Restatement (Second) of Torts § 428, particularly in its adoption in Roberts, is exclusive to common carriers such as airlines, and therefore, is inapplicable to the facts of this case. The Court disagrees because, while § 428 most often applies to common carriers, it is generally “applicable to public service corporations which, as such, are permitted by their franchise to use instrumentalities
The Court finds that Defendant VITELCO is a public service corporation that is lawfully carrying on an activity under a franchise granted by a public authority subject to both financial regulation and safety regulations. It is undisputed that on October 1, 1959, pursuant to Act No. 317 and Act No. 504, the Third Legislature of the Virgin Islands
perpetual easement... to... public buildings, bridges and other public property as well as streets, sidewalks, alleys and public roads, making excavations therein and restoring the same, for the purpose of erecting, attaching, maintain and using poles, pole lines, under-ground conduits, manholes, cables, wires and other faculties necessary to the services herein provided for.60
Finally, this non-transferable franchise agreement also contemplated the continuation and modernization of the Virgin Islands telecommunications system.
The Court also finds that “build[ing], rebuilding], replacing], constructing], equip [ping], operating] and maintaining] a local, toll, inter-island, interstate and international public telephone system,”
Finally, the Court finds Defendant VITELCO had a nondelagable duty to Plaintiff and is liable pursuant to the Restatement (Second) of
CONCLUSION
For the foregoing reasons, the Court will deny Defendant Virgin Islands Telephone Corp.’s October 24, 2013, Motion for Summary Judgment and grant Plaintiff Taynacleone Creque Hodge’s November 4, 2013, Cross-Motion for Summary Judgment. An Order consistent with this Opinion shall follow.
Plaintiff’s Cross-Motion also included a reply to Defendant Virgin Islands Telephone Corp.’ s Motion for Summary Judgment. As the Hon. Judge Christian noted in Jo Anne Stickler v. Mandahl Bay Holding, Inc., Case No. ST-10-CV-331, Memorandum Opinion, August 28, 2013, n.2, “[t]he incorporation of a cross-motion within a memorandum in response to opposition to an existing motion is not authorized by the federal or local rules of procedure.” As a result, the attorneys are advised to closely follow all applicable rales of procedure such as LRCl 7.3 in future motions filed before this Court.
Defendant Virgin Islands Telephone Corp. responded to Plaintiff’s Reply and Cross-Motion on November 21, 2013, to which Plaintiff responded on December 2, 2013.
Fed. R. CIV. P. 56. See V.I. Housing Auth. v. Santiago, 57 V.I. 256, 264 (V.I. 2012).
Battaglia v. McKendry, 233 F.3d 720, 722 (3d Cir. 2000); see Arlington Funding Services, Inc. v. Geigel, 51 V.I. 118, 127 (V.I. 2009).
See, e.g., Galloway v. Islands Mechanical Contractor, Inc., 2012 U.S. Dist. LEXIS 129014 (D. V.I. Sept. 11, 2012); Andersen v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986) (noting an issue is “genuine” if areasonable jury could possibly hold in the nonmovant’s favor with regard to that issue).
Defendant Virgin Islands Telephone Corp.’s Motion for Summary Judgment, Oct. 24, 2013, Exhibit B (Oct. 13,2011, Agreement between Bonneville and VITELCO).
Defendant Virgin Islands Telephone Corp.’s Motion for Summary Judgment, Oct. 24, 2013, Exhibit B (Nov. 1, 2011, Agreement between Nolasco and VITELCO).
See 5 V.I.C. § 1451.
In Banks v. Int'l Rental & Leasing Corp., 55 V.I. 967 (V.I. 2011), the Supreme Court of the Virgin Islands held that, while the Restatements may be persuasive authority in determining the common law, they “no longer constitute binding legal authority in this jurisdiction” because 1 V.I.C. § 4 has been impliedly repealed. Gov’t of the V.I. v. Connor, 60 V.I. 599, 602 (V.I. 2014). As a result, the Court ordered the parties to submit supplemental briefing on the applicable common law in this matter. Defendant submitted a supplemental brief on March 18,2014. Plaintiff also submitted a supplemental brief on March 21,2014, to which Defendant replied on April 3, 2014.
60 V.I. at 605 (holding that the Superior Court may be summarily reversed if it does not perform a Banks analysis in the first instance).
Id. at 604 (noting that the Superior Court may not “mechanistic[ally] and uncritical[ly]” rely on the Restatements when determining the common law).
See Simon v. Joseph, 59 V.I. 611 (V.I. 2013) (interpreting Banks), Matthew v. Herman, 56 V.I. 674 (V.I. 2012).
Connor, 60 V.I. at 602.
Simon, 59 V.I. at 623.
54 V.I. 657 (V.I. 2011). The Joseph Court adopted verbatim the language of Restatement (SECOND) OF Torts § 409. Joseph, 54 V.I. at 665-666 (citing Figueroa v. Hess Oil Virgin Islands Corp., 198 F. Supp. 2d 632 (D. V.I. 2002)). This common law principle is mirrored in the language of Restatement (Third) OF Torts § 57, providing that, as a general rule, “an actor who hires an independent contractor is not subject to vicarious liability for physical harm caused by the tortious conduct of the contractor.” Of note, Joseph predates Banks by a couple of months and appears to blindly adopt RESTATEMENT (SECOND) OF TORTS § 409 upon the basis of the implicitly repealed 1 V.I.C. § 4. See Joseph, 54 V.I. at 665, n.3. While the Connor Court indicated that the Superior Court is not necessarily bound by precedent that mechanistically and automatically applies the Restatement, Connor, 60 V.I. at 607 n.1, the Court does not find it necessary to depart from the Joseph Court’s holding, and concludes a Banks analysis is unnecessary to apply the common law principle here. Further, the general rule, as outlined both by RESTATEMENT (SECOND) OF TORTS § 409 and RESTATEMENT (Third) of Torts § 57, not only has been repeatedly applied in the Virgin Islands, see, e.g., Joseph, 54 V.I. at 665, Figueroa, 198 F. Supp. 2d at 637, but a review of the case citations in the relevant Restatement sections reveals that this principle has been adopted in a vast majority of jurisdictions.
Restatement (Second) of Torts § 409.
Restatement (Second) of Torts § 414 provides that “[o]ne who entrusts work to an independent contractor, but who retains the control of any part of the work, is subject to liability for physical harm to others for whose safety the employer owes a duty to exercise reasonable care, which is caused by his failure to exercise his control with reasonable care.” Considering the Court resolves this matter on other grounds, the RESTATEMENT (Second) OF TORTS § 414 need not be addressed here.
United Indus., Serv., Transp., Prof'l & Gov’t Workers of N. Am. Seafarers Int’l Union ex rel. Bason v. Gov’t of V.I., 746 F.3d 115 (3d Cir. 2014), as amended (Mar. 21, 2014) (holding that, pursuant to the language of H.R. 6116, the Third Circuit Court of Appeals retains certiorari jurisdiction over proceedings that were filed in Virgin Islands courts before the enactment date of H.R. 6116.).
Gassv. V.I. Tele. Corp., 45 V.I. 649, 661 (3d Cir. 2002). The Court recognizes that the Gass Court limited its discussion to a situation where the injured person is an employee of the independent contractor, and further, that it appears that the Gass Court, similarly to the Joseph Court, based its reliance on the Restatements on 1 V.I.C. § 4. See supra at n.15.
Kosick v. Bar-Sela, 49 V.I. 3, 6 (V.I. Super. Ct. 2007). While it appears the Supreme Court has not explicitly conducted a Banks analysis to adopt the common law elements of negligence, those have been implicitly adopted in many of its decisions. See, e.g., Brady v. Cintron, 55 V.I. 802, 823 (V.I. 2011). Further, the essential elements of negligence are so widely accepted and fundamental to the practice of law in the United States and the Virgin Islands, that requiring a Banks analysis in this instance would yield the same result.
See, e.g., Smith v. Lucky Stores, 61 Cal. App. 3d 826, 828, 132 Cal. Rptr. 628 (1976) (recognizing that Restatement (Second) OF Torts § § 416 to 429 are often “overlapping”).
See generally 23 A.L.R. 984 (originally published in 1923) (noting that this policy originates as far back as 1881); City of Chicago v. Robbins, 67 U.S. 418, 426, 17 L. Ed. 298 (1862) (noting that an owner of a premises cannot “escape liability by letting work out like this to a contractor, and shift responsibility on to him if an accident occurs” where the work creates a public nuisance on a sidewalk adjacent to the premises.)
See, e.g.,Monk v. V.I. Water and Power Authority, 53F.3d 1381, 1393, 32 V.I. 425 (3d Cir. 1995); Gass, 45 V.I. 649.
Joseph, 54 V.I. at 665.
Notably, a review of early case law cited in the RESTATEMENT (SECOND) OFTORTS § 417, suggests that the early form of this common law principle originally arose out of the tort of
See supra at n.21. For instance, several cases apply the principle embodied in Restatement (Second) of Torts § 418, which provides that “[o]ne who is under a duty to construct or maintain a highway in reasonably safe condition for the use of the public, and who entrusts its construction, maintenance, or repair to an independent contractor, is subject to the same liability for physical harm to persons using the highway while it is held open for travel during such work, caused by the negligent failure of the contractor to make it reasonably safe for travel, as though the employer had retained the work in his own hands.” Thus, while § 418 applies only to a government entity — such as a municipality — the Restatement (Second) OF Torts § 417 may also analogously apply in a situation where the government entity hires an independent contractor to perform work in an effort to maintain a highway. See, e.g., Wiggs v. City of Phoenix, 198 Ariz. 367, 370, 10 P.3d 625, 628 (2000).
Restatement (Second) of Torts § 417 (collecting cases); see also La. Prac. Constr. Law § 9:1 (2013 ed.) (suggesting Louisiana has codified the generally accepted rule that “a
Brown Hotel Co. v. Sizemore, 303 Ky. 431, 434, 197 S.W.2d 911, 913 (1946).
Id,.; see generally 41 Am. JUR. 2d, Independent Contractors § 43, p. 518 (2005) (while liability may not be apportioned to the contractor via a contract provision, this does not imply that an employer cannot recover from the independent contractor in the form of indemnification from the contractor).
See N. Indiana Pub. Serv. Co. v. Otis, 145 Ind. App. 159, 212, 250 N.E.2d 378, 411 (1969) (concurrently applying RESTATEMENT (SECOND) OF TORTS § 417 and an “imminently dangerous” standard).
See Brown v. Gustafson, 264 Minn. 126, 130, 117 N.W.2d 763, 766 (1962) (citing Lamb v. S. Unit Jehovah’s Witnesses, 232 Minn. 259, 45 N.W.2d 403 (1950)) (“As a general rule, an employer is not liable for the acts of an independent contractor or his servants. However, there are so many exceptions to the rule that an employer is not liable for the negligence of an independent contractor whom he employs ‘that the rule is now primarily important as a preamble to the catalog of its exceptions. ’ One of the exceptions is that of a person under a duty to the public to see that the work he is about to have done is carefully performed so as to avoid injury to others. In such case, the party causing the work to be done cannot, by letting it to a contractor, avoid liability in case the work is negligently done to the injury of another. The principle that a contractor may be employed to do a particular job under circumstances which leave the owner of premises charged with the duty which regularly attaches to him to see that the work does not endanger the safety of others, and that such absolute duty is nondelegable to an independent contractor, has been applied by this court in a number of similar cases.”) (internal citations omitted).
See Tytell v. Battery Beer Distrib., Inc., 202 A.D.2d 226, 608 N.Y.S.2d 225, 226 (1994) (adopting a rule analogous to Restatement (Second) of Torts § 417).
See Brinkley v. Gallahar, 50 Tenn. App. 129,137, 359 S.W.2d 857, 861 (1962).
See supra at n.28, 29.
Defendant VITELCO’s Supplemental Brief In Support of Its Previously Filed Motion for Summary Judgment, Mar. 18, 2014, at page 5.
It is this Court’s view that the Supreme Court — as the highest Court in this jurisdiction that “possesses the inherent power to shape the common law in the Virgin Islands,” Banks, 55 V.I. at976 — may consider adopting the Restatement (Third) ofTorts § 64(b) because it appears to reflect a more accurate image of the practical application of the RESTATEMENT (SECOND) OF Torts § 417. Restatement (Third) § 64(b) provides that “[a]n actor who hires an independent contractor for activity in a public place is subject to vicarious liability for physical harm if the independent contractor’s negligence is a factual cause of any such harm within the scope of liability.” This revised language removes the distinction between an “unsafe condition” and “negligent activity,” because, “although many cases invoking § 417 involve unsafe conditions rather than negligent activity, the cases do not usually turn on this distinction.” RESTATEMENT (Third) OF Torts § 64(b) cmt. d. However, despite the Superior Court’s concurrent authority to shape the common law in absence of binding precedent to the contrary, the Superior Court is hesitant to adopt the Restatement (Third) of Torts here because it appears few Courts have explicitly considered the adoption of the RESTATEMENT (THIRD) OF Torts § 64, and the Supreme Court of the Virgin Islands in Joseph ex
See Restatement (Second) of Torts Intro. (1965).
See Joseph, 54 V.I. at 665.
Defendant Virgin Islands Telephone Corp.’s Motion for Summary Judgment, Oct. 24, 2013, Exhibit B (Oct. 13, 2011, Agreement between Bonneville and VITELCO).
While the contract specifically enumerates “underground” cable, the language of the contract is broad, such that it also clearly encompasses the installation of “aboveground” cable.
Defendant argues that in order to invoke the RESTATEMENT (SECOND) OFTORTS § 417, the Plaintiff must show a ‘peculiar risk’ pursuant to the Restatement (Third) of Torts § 59. First, the Court finds a plain language reading of the standard enumerated in the Restatement (Second) ofTorts § 417 to be straightforward. Thus, it is unnecessary to look to persuasive sources that may elaborate on what constitutes a “risk of making the physical condition of the place dangerous for the use of members of public.” Second, even assuming arguendo that the Court adopted Defendant’s standard — that “an activity poses a peculiar risk when, if reasonable care is not taken, the resulting risk differs from the types of risk that are usual in the community,” RESTATEMENT (THIRD) OF TORTS § 59 cmt. b — the installation of cables above public sidewalks clearly falls into this category because falling cables are not a “usual” risk to the community.
Similarly to theapproach taken by the Restatement (Third) of Torts § 64(b), we do not attempt to distinguish between a dangerous condition and dangerous activity. Similarly to the Supreme Court of New York’s approach in Tytell v. Battery Beer Distrib., Inc., 608 N.Y.S.2d at 226, the Court finds that a dangerous condition and an activity that creates a dangerous condition are indistinguishable forthe purposes of RESTATEMENT (SECOND) OFTORTS § 417.
495 F. Supp. 1310, 17 V.I. 571, 580 (D. V.I. 1980).
Restatement (Second) of Torts § 428 (collecting cases).
See Ex parte Hicks, 537 So. 2d 486, 489 (Ala. 1988) (relying on a common law principle that limits francise liability to “motor carriers,” but citing to the Restatement (Second) OF Torts § 428 as persuasive authority).
See Serna v. Pettey Leach Trucking, Inc., 110 Cal. App. 4th 1475, 2 Cal. Rptr. 3d 835 (2003) (discussing in detail the evolution of the nondelegable duty principle embodied in the Restatement (Second) of Torts § 428 in California).
See Hamid v. Metro Limo, Inc., 619 So. 2d 321, 322 (Fla. Dist. Ct. App. 1993) (“Acommon carrier of passengers cannot, without specific legislative authority, relieve itself from liability for violation of a contract or its general duty to the public, or for torts, by means of a lease or other contract for the operation of its facilities by another company.”) (emphasis added) (internal citations omitted).
See Reith v. Gen. Tel. Co. of Illinois, 22 Ill. App. 3d 337, 341, 317 N.E.2d 369, 373 (1974) (“The defendant^ a telephone company,] had an affirmative, non-delegable duty to take precautions against the possible and probable injuries around an excavation site constructed through its franchise or permission obtained from the state and local authority. This duty, being non-delegable, remains on the defendant irrespective of a contract...”).
See Barry v. Keeler, 322 Mass. 114, 127, 76 N.E.2d 158, 164 (1947).
See Williamson v. Sw. Bell Tel. Co., 265 S.W.2d 354, 357 (Mo. 1954).
See Felbrant v. Able, 80 N.J. Super. 587, 594, 194 A.2d 491, 495 (App. Div. 1963) (distinguishing between circumstances that were “disassociated” and associated with (or within the scope of) “the field controlled” by the franchise agreement).
See Bouziden v. Alfalfa Elec. Co-op., Inc., 2000 OK 50, 16 P.3d 450, 455-56 (recognizing Restatement (Second) OF Torts § 428, but also discussing the “inherently dangerous activities” standard).
Barry v. Keeler, 16 N.E.2d at 164.
Cal. Rptr. 3d 835, 843-44 (2003) (emphasis added).
Similar to the Court’s rationale set forth in note 36, it is this Court’s view that the Supreme Court may consider adopting the Restatement (Third) of Torts § 64(a). The Restatement (Third) of Torts § 64(a) provides that “[a]n actor engaged in an activity that can be lawfully carried out only under a franchise granted by public authority is subject to vicarious liability for physical harm when the actor hires an independent contractor to carry out the activity and the independent contractor’s negligence is a factual cause of any such harm within the scope of liability.” Comparatively, the Restatement (Third) OF Torts § 64(a) omits the language of the Restatement (Second) OF Torts § 428 requiring an “unreasonable risk of harm” because it is duplicative of the Restatement provisions outlining the ‘peculiar risk’ doctrine. In other words, under either the Second or Third Restatement nondelagable duty exceptions, an employer of an independent contractor may be liable where a member of the public is injured by the negligence of the independent contractor who em
Black’s Law Dictionary, Instrumentality (9th ed. 2009) (“A thing used to achieve an end or purpose.”).
Restatement (Second) of Torts § 428 cmt. a (emphasis added).
See Reith, 22 Ill. App. 3d 337, 317 N.E.2d 369, 373 (1974) (recognizing a telephone company, operating under a franchise agreement, as holding a nondelegable duty to the public); See Williamson 265 S.W.2d 354.
Plaintiff’s Reply to VITELCO’s Opposition to Cross-Motion for Partial Summary Judgment, Dec. 2, 2013, Exhibit 9, ¶ 1 (Hereinafter “Franchise Agreement”).
Franchise Agreement, ¶ 2.
Franchise Agreement, ¶¶ 3, 10; V.I. Rules & Regulations 30 § 13-141.
V.I. Rules & Regulations 30 § 13-129 (“The company shall construct, operate and maintain its lines along or across any public or private way and the equipment used in connection therewith in a reasonably adequate and safe manner...”). Further, the V.I. Rules & Regulations 30 § 13-1 specifically states that “[tjelephone public utilities rendering service between points in the United States Virgin Islands are subject to the General Rules and Regulations of the Public Utilities Commission as well as to these Special Regulations.”
Franchise Agreement, ¶ 1.
Compare Bouziden, 16 P.3d at 458 (“Companies engaged in transmitting electricity are engaged in a business that is inherently dangerous. An electric transmission company, in using an easement or right of way for its poles, wires, and appliances, must use that degree
Roberts, 17 V.I. at 581 (citing RESTATEMENT (SECOND) OF TORTS § 428 cmt. a).
Id:,see, e.g., Ex parte Hicks, 537 So. 2d at 489 (Ala. 1988) (citing Hodges v. Johnson, 52 F. Supp. 488 (W.D.Va. 1943)) (“[Transportation of freight upon public highways, often by means of large trucks and trailers, is fraught with an enormous danger to the traveling public.”).
See Bouziden, 16 F.3d at 455-56 (“Duty depends upon the relationship between the parties and the general risks involved in the undertaking; and, whether a defendant stands in such relationship that the law will impose upon the defendant an obligation to the plaintiff is a question of law. Whether a duty is nondelegable is also a matter of law.”).
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