On Appeal from the United States District Court of the Virgin Islands, St. Croix, D.C. Civil No. 83-0301.
Sloviter, Stapleton and Rosenn, Circuit Judges. Rosenn, Circuit Judge, dissenting.
Martin Marietta Alumina, Inc. appeals from the denial of its motion for judgment n.o.v. or in the alternative for remittitur or a new trial following a $600,000 jury award in favor of Vance Williams for injuries suffered when he fell while working on the roof of a building on Martin Marietta's property. At the time of his injury, Vance Williams was working as a pipefitter for Riggers and Erectors (Riggers), an independent contractor hired by Martin Marietta to relocate an oil tank on Martin Marietta's property. Williams' job was to relocate oil lines on a building roof.
The roof of the substation on which Williams was working was of two heights because a structure had been added at the western part of the building in 1979. An air conditioning duct had been installed on the upper roof and a stationary ladder was permanently affixed to the west side of the building which provided access to the upper roof. There was no ladder giving access to the lower roof three feet below, which topped the remainder of the building. Williams' work site was on the west side of the lower roof, near the upper roof.
The parties gave conflicting stories concerning the events leading to Williams' fall. Williams testified that when he arrived at the work site the first time, he was with Felix Diaz, his Riggers' supervisor, and Sylvester Gonzales, Martin Marietta's project representative. According to Williams, they pointed out the pipes on the lower roof that were to be relocated and when he asked how to get to the lower roof, Gonzales told him "Follow me". App. at 74. Williams testified that Gonzales then demonstrated how to gain access to the lower roof by climbing eight feet up the affixed ladder and then stepping from the ladder sideways onto a row of plasticoated electrical conduit pipes which led to the lower roof. App. at 75.
Williams' testimony in this respect was unequivocal. Pointing to a diagram, he told the jury, "[Gonzales] took me up this ladder, come up the ladder, come across on these pipes, and onto this roof." App. at 75. In response to the question, "Did Mr. Gonzales go up on the roof with you?", he answered, "Yes, sir, he went up first and then Tito [Diaz] then me." Id. Williams' testimony was confirmed by that of Raphael Phillip, a Riggers welder, who said, "Judging by this ladder here, this was the way that Mr. Sylvester Gonzales and Tito Diaz went up to show us what he wanted done." Tr. at 93.
Williams testified that he used this method of access three to four times a day for the two weeks he worked there. App. at 84. According to Williams, Gonzales observed him working on the roof several times and never mentioned another way to obtain access. App. at 75.
Contrary testimony was given by Gonzales who testified that he did not instruct either Williams or Phillip how to gain access to the lower roof, App. at 170, and that he had no knowledge that Riggers' employees were using the ladder for access to the lower roof. App. at 174.
Williams injured his back when he fell eight feet when he was moving from the ladder to the conduit pipes while trying to gain access to the lower roof. Williams sued Martin Marietta, contending that it was negligent both because it failed to provide a safe access to the work area on the lower roof and because Gonzales instructed him to use an unsafe method for gaining access to the lower roof. Tr. at 10, 493-95. The district court instructed the jury that it could find Martin Marietta liable for Williams' injuries if it found that Martin Marietta selected the means of access to the work site and that Martin Marietta did not exercise reasonable care in selecting that means of access or if it found that Williams' injury was caused by a condition on Martin Marietta's land that Martin Marietta knew of or by the exercise of reasonable care should have known posed an unreasonable risk to Williams as a business invitee. The court also told the jury that if Martin Marietta retained control over the manner in which the work was performed, it could find Martin Marietta liable for any injury to Williams caused by the negligence of Riggers. Tr. at 559-63.
The jury returned a general verdict in favor of Williams and awarded him $600,000 in compensatory damages.
Failure to Provide Safe Access to the Work Site
Williams predicated his case on two theories of negligence, one being Martin Marietta's failure to provide him with a safe access to the work site and the other being the negligence of Gonzales, Martin Marietta's representative on the site, in directing access by an unsafe route. Williams' first theory is based on section 343 of the Restatement (Second) of Torts (1965), dealing with the "special liability of possessors of land to invitees," which provides:
§ 343. Dangerous Conditions Known to or Discoverable by Possessor
A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if, but only if, he
(a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and
(b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and
(c) fails to exercise reasonable care to protect them against the danger.
The district court instructed the jury on this theory as follows:
A possessor of land such as Martin Marietta is also subject to liability for physical harm caused to its business invitees such as Vance Williams, by a condition on the land if, but only if, the possessor, that is, Martin Marietta knows, or by the exercise of reasonable care would discover the condition and should realize that it involves an unreasonable risk of harm to such invitee, and should expect that the invitee will not discover or realize the danger or will fail to protect himself against that danger and that the possessor fails to exercise reasonable care to protect the invitee against the danger in question.
Many jurisdictions hold that a possessor of land is not liable to the employees of an independent contractor for open and obvious dangers. See S. Speiser, C. Krause & A. Gans, The American Law of Torts § 14.12, at 916-17 (1986). However, in the Virgin Islands, in the absence of local laws to the contrary, the principles of the Restatement provide the rules of decision. 1 V.I.C. § 4. Section 343A of the Restatement (Second) of Torts permits imposition of liability even for known or obvious dangers when the possessor should anticipate the harm. Thus, the court instructed the jury as follows:
However, such a possessor of land as Martin Marietta is not liable to the invitee, Vance Williams, for physical harm caused to the invitee, by any action or condition on the land who's [sic] danger is known or obvious to the invitee unless the possessor should anticipate the harm despite such knowledge or obviousness.
Martin Marietta does not argue that the district court did not correctly state the applicable law. Instead, it argues that the court should not have submitted this issue to the jury because it was not the legal possessor of the work site where Williams was injured, and therefore Martin Marietta had no duty to provide Williams, a business invitee, with a safe workplace. Martin Marietta relies for its argument primarily on two cases in which the possessor of land was held not to be liable to the employee of an independent contractor injured at the workplace.
In Fisher v. United States, 441 F.2d 1288 (3d Cir. 1971), an employee of a subcontractor was injured while working at the site of the construction of a dam on land owned by the United States. The government had contracted with a general contractor to construct the dam, and it in turn engaged a subcontractor who in turn engaged the subcontractor for whom the plaintiff worked to perform the structural steel work for the support of concrete for the dam. The plaintiff Fisher was injured when a wooden "spreader" used to hold apart a form for the concrete on which he was walking broke, causing him to fall. The district court imposed liability on the United States under section 318 of the Restatement which establishes the duty of a possessor of land to control the conduct of its licensees so as to prevent harm to third persons. We reversed because we held that there was insufficient evidence that the United States was in possession of the property at the time. We stated that under applicable Pennsylvania law the presence of a few government employees, such as an engineer with authority to require the contractor's compliance with a safety plan and two inspectors whose duties included seeing that work was done in accordance with specifications and enforcing safety regulations, at "the construction site of a large dam" was not evidence that the United States was in possession of the site. Id. at 1291-92.
In the second case, Hader v. Coplay Cement Mfg. Co., 410 Pa. 139, 189 A.2d 271 (1963), also cited in Fisher, the injured plaintiff was the employee of an independent contractor who had been hired by the landowner, Coplay Cement, to install a stone crusher weighing two and a quarter million pounds in an open quarry and to erect a 50 foot high structure to house the crusher. Hader was injured ...