Clutts v. Manchester Energy, et al. CV-96-193-M 06/02/98 UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
James Clutts, Plaintiff
v. Civil No. 96-193-M
Manchester Energy, Inc., a/k/a Manchester Energy Group, Inc., Zahren Alternative Power Corp., Zapco Energy Tactics Corp., and Energy Tactics, Inc. Defendant(s)
O R D E R
Plaintiff, James Clutts, brings claims of negligence, strict
product liability, and breach of warranty, arising from a
workplace accident in which he was injured. Defendant, Energy
Tactics, Inc., Clutts's employer at the time of the accident,
moves for summary judgment on grounds that New Hampshire's
workers' compensation law bars plaintiff's claims. In response,
plaintiff contends that Energy Tactics is liable under applicable
exceptions to an employer's immunity, either under a "dual
capacity" theory or because the circumstances of the accident
constitute an intentional tort.
___________________ STANDARD OF REVIEW
Summary judgment is appropriate 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 judgment as a matter of law." Fed. R. Civ. P.
56(c). The moving party first must show the absence of a genuine
issue of material fact for trial. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 256 (1986). If that burden is met, the
opposing party can avoid summary judgment on issues that it must
prove at trial only by providing properly supported evidence of
disputed material facts that would reguire trial. Celotex Corp.
v. Catrett, 477 U.S. 317, 322 (1986) . The court interprets the
record in the light most favorable to the nonmoving party and
resolves all inferences in its favor. Saenger Organization v.
Nationwide Ins. Assoc., 119 F.3d 55, 57 (1st Cir. 1997) . Summary
judgment will be granted if the record shows no trialworthy
factual issue and if the moving party is entitled to judgment as
a matter of law. EEOC v. Green, 76 F.3d 19, 23 (1st Cir. 1996) .
No factual dispute exists for purposes of the present
summary judgment motion. Plaintiff's response to defendant's
motion, titled "Answer and Objection to Defendant Energy Tactics,
Inc.'s Motion for Summary Judgment," does not comply with the
local rules of this court. An objection to summary judgment
"shall be accompanied by a memorandum," LR 7.1(a)(2), and the
memorandum:
shall incorporate a short and concise statement of material facts, supported by appropriate record citations, as to which the adverse party contends a genuine dispute exists so as to reguire trial. All properly supported material facts set forth in the moving party's factual statement shall be deemed admitted unless properly opposed by the adverse party.
2 LR 7.2(b)(2). Plaintiff's "Answer and Objection" is not
accompanied by a memorandum of law, and, to the extent the
pleading itself was intended to serve as a memorandum, it does
not incorporate a statement of material facts nor does it include
appropriate record citations. Plaintiff's "Answer" in which
plaintiff "admits the first three sentences of paragraph 1 of
Defendant's . . . motion for summary judgment" and "denies" the
remainder is entirely ineffective as an objection to a motion for
summary judgment. Accordingly, the properly supported factual
statements in defendant's memorandum are deemed admitted for
purposes of the present motion.
BACKGROUND
At the time of plaintiff's accident. Energy Tactics, Inc.
was in the business of recovering landfill gas and using it to
produce electrical power. In January 1990, James Clutts began
working as supervisor of an Energy Tactics site on Dunbarton Road
in Manchester. The Dunbarton Road site was operated by Energy
Tactics for Manchester Energy Group, Inc., with machinery
designed and manufactured by Energy Tactics and owned by
Manchester Energy.
On April 17, 1993, Clutts responded to an after-hours alarm
at the Dunbarton Road site. He found the energy generating
machinery shut down and a reverse power problem. (Reverse power
occurs when the electrical generator begins to use rather than
generate power.) Clutts first called his off-site supervisor and
3 then began to investigate the problem. When Clutts opened the
door and entered the high voltage electrical components area of
the generator machinery, electricity arced, causing an explosion
that threw Clutts out of the area. Clutts remembers standing
outside of the generator machinery, burned and bleeding. He
managed to call 911 and was taken to Catholic Medical Center
where he was admitted for nine days of treatment.
Clutts obtained workers' compensation benefits for his work-
related injuries. He brought suit against Energy Tactics and
Manchester Energy (and Manchester Energy's alleged successor
corporations), based on Energy Tactics's design, manufacture,
and sale of the generating machinery involved in the accident.
DISCUSSION
Energy Tactics contends that New Hampshire's workers'
compensation law provides the exclusive remedy for Clutts's
workplace injuries and bars all of Clutts's claims against it,
his employer. Clutts acknowledges the immunity provided by the
statute to employers, but argues that intentional torts as well
as acts by an employer performed in a separate capacity are not
protected by that immunity.
A. Intentional Tort
4 To the extent Clutts has alleged an intentional tort1 by
Energy Tactics, that theory does not provide an escape from the
exclusivity of the workers' compensation remedy. While the
workers' compensation statute excepts intentional torts committed
by those acting on the employer's behalf, it bars all common-law
causes of action, including claims based on intentional torts,
against an employer. N.H. Rev. Stat. Ann. § 281-A:8; Miller v.
CBC Companies, Inc., 908 F. Supp. 1054, 1068 (D.N.H. 1995).
Thus, Clutts's intentional tort claims are barred by the
exclusivity provisions of the workers' compensation statute.
B. Dual Capacity Doctrine
Clutts next argues that in its independent capacity as
product manufacturer. Energy Tactics owed him different duties,
i.e. duties not arising from his employment relationship. As
product manufacturer, Clutts contends. Energy Tactics is liable
for injuries caused by its allegedly defective product. The
theory that an exception to workers' compensation immunity exists
when an employer operates in a capacity separate and distinct
from the employment context is known as the "dual capacity"
doctrine. See Michael A. DiSabatino, Anno.: Modern Status: "Dual
Capacity Doctrine" as Basis for Employee's Recovery from Employer
in Tort, 23 ALR 4th 1151, § 2 (1983) .
1"To constitute an intentional tort, the tortfeasor must have known that his conduct was substantially certain to result in injury." Thompson v. Forest, 136 N.H. 215, 220 (1992) .
5 While New Hampshire recognizes the dual capacity doctrine,
the New Hampshire Supreme Court has yet to find factual
circumstances warranting its application. See Ryan v. Hiller,
138 N.H. 348, 350-51 (1994). To maintain a product liability
claim against an employer under the dual capacity doctrine, an
employee must at least have been injured by a product designed
and manufactured by the employer and then sold to the public.
See Quinn v. National Gypsum, Co., 124 N.H. 418,421 (1984);
Robbins v. Seekamp, 122 N.H. 318, 321 (1982); DePaolo v.
Spaulding Fibre Company, Inc., 119 N.H. 89, 90 (1979). More
recently, the New Hampshire Supreme Court has focused on the
actual relationship between the employer and employee at the time
of the accident to determine whether dual capacity existed.
Ryan, 138 N.H. at 351. In Ryan, the court concluded that because
the "dominant relationship" at the time of the accident was
employment, the employer was not acting in a separate capacity
when driving his employees from one office to another. Id.
Few other jurisdictions recognize as broad a dual capacity
doctrine as might be suggested by the early New Hampshire cases.
See 6 Arthur Larson, Larson's Workers' Compensation §§ 72.81 and
72.83 at 14-290.124 (1993) (citing cases); see also Henning v.
General Motors Assembly Div., 419 N.W.2d 551, 559 (Wis. 1988)
(citing cases); R. Carol Terry, Anno.: Workmen's Compensation Act
As Furnishing Exclusive Remedy For Employee Injured By Product
Manufactured, Sold, or Distributed By Employer, 9 ALR4th 873 §§ 4
and 5 (Supp. 1997). Since the New Hampshire Supreme Court
6 decided Robbins v. Seekamp, in which it relied on cases from
other jurisdictions in describing the elements of dual capacity
for purposes of product liability claims, state law in those
jurisdictions has limited the dual capacity doctrine either by
statute or common law development. See, e.g., Grahn v. Tosco
Corp., 68 Cal. Rptr. 2d 806, 814 (Cal. C t . Ap p . 1997) (limited by
statute); Snyder v. Pocono Medical Center, 690 A.2d 1152, 1156-57
(Pa. 1997) (dual capacity doctrine not applicable when employee
performing work-related task); Hyman v. Sipi Metals, Corp., 509
N.E.2d 516, 520 (111. App. 1987) (employer's separate capacity
must also be a legally distinct persona of the employer). Thus,
the current trend in other jurisdictions is to reject the dual
capacity doctrine entirely, or to limit it -- reguiring either
dual employer persona or circumstances in which an employee's use
of the employer's product was not predominantly related to the
employee's work. See, e.g., Caraccioli v. RFC Mfg. Corp., 761 F.
Supp. 119, 121 (M.D. Fla. 1991); Hesse v. Champ Serv. Line, 707
So.2d 1295, 1297 (La. App. 1998); Sormani v. Orange County
Community College, 659 N.Y.S.2d 507, 508 (Sup.Ct. 1997); Hedglin
v. Stahl Specialty Co., 903 S.W.2d 922, 924 (Mo.Ct.App. 1995);
Ritchie v. Bridgestone/Firestone, 621 So.2d 288, 290 (Ala. 1993);
Estate of Coates v. Pacific Engineering, 791 P.2d 1257, 1259
(Haw. 19 90).
The New Hampshire Supreme Court has also limited the
applicability of the dual capacity doctrine to circumstances in
which the employee's injury is not work related, or the fact of
7 employment is not the dominant relationship between the injured
employee and his employer. See Ryan, 138 N.H. at 351; Mello v.
Gouin's Plumbing & Heating, 137 N.H. 675, 678 (1993) . Because
the dual capacity theories in Ryan and Mello did not involve the
employer's product or a product liability claim, those decisions
are not necessarily controlling precedent in this case. See
Mello, 137 N.H. at 678 ("it is an open question whether an
employee who has received workers' compensation may be able to
maintain a products liability suit against the employer").
The question appears to still be open. Nevertheless, given
the consistent development of the law in other jurisdictions and
the combined effect of the New Hampshire dual capacity cases, the
course the New Hampshire Supreme Court would likely take, if it
were now presented with a dual capacity issue in the context of a
product liability claim, is reasonably clear. See VanHaaren v.
State Farm Mut. Auto. Ins. Co., 989 F.2d 1, 3 (1st Cir. 1993)
(federal court may predict development of state law if course is
reasonably clear). To impose liability on an employer under a
dual capacity theory, the New Hampshire Supreme Court would
likely require both that the employer's product be in public
commerce and that the employee's injury, caused by the employer's
product, not be primarily work-related. Put another way, the
dual capacity doctrine may circumvent an employer's statutory
immunity under New Hampshire law only if the employer's role as
product manufacturer, as opposed to its role as employer. predominates in the circumstances surrounding the employee's
inj ury.
Since applicability of the dual capacity doctrine
necessarily depends on an employer's role and relationship to an
employee's injury caused by its product, circumstances
surrounding the injury will determine potential liability. The
more closely related the injury is to an employee's work, the
more the employer's role as employer will predominate, immunizing
the employer from liability. At the other end of the spectrum,
to the extent an employee is using or is exposed to the
employer's product as any other member of the public might be,
and not because of circumstances or reguirements of employment,
the employer's predominant relationship to the injury is more
likely to be cast as product manufacturer rather than as
employer.
When an accident involving an employer's product occurs
outside of the course or scope of an employee's work, workers'
compensation is not applicable and, accordingly, immunity would
not protect the manufacturer-employer. For example, if during a
family trip unrelated to work, a Firestone Tire Company employee
is involved in a car accident caused by defective Firestone
tires, his employer (Firestone) would be liable as product
manufacturer and would not be protected by workers' compensation
immunity. In that circumstance, the employer is obligated only
as product manufacturer, having no relationship to the injury as
employer. An employer's relationship to an injury, as employer, is
closer when the employer's product causes injury to an employee
during the course of employment, but under circumstances
unrelated to the employment itself. In that case, an employer
acts both as employer, protected by workers' compensation
immunity, and as manufacturer of a defective product, not
protected by immunity. When an employer acts in dual capacities,
it may be liable only if under the circumstances surrounding the
particular injury, its role as product manufacturer predominates
over its role as employer -- that is, if an employee's product-
related injury is only incidental or coincidental to employment,
the employer is more likely to be found to be acting in a
separate capacity.
For example, if a Firestone Tire Company sales person is
injured during a business sales trip in an accident caused by a
defective Firestone tire on her rental car (or someone else's
car) , the fact that the defective tire was manufactured by
Firestone, rather than Goodyear or Michelin, would be merely
coincidental to her employment. The employee's injury would have
occurred under circumstances that could as easily have involved
any other member of the public. Firestone's relationship to the
injury would be predominantly that of tire manufacturer, not
employer, and Firestone would likely be liable as product
manufacturer rather than immune as employer, even though its
employee was injured in the course of her employment. If,
however. Firestone were to designate an employee to service
10 Firestone tires that have been sold to rental car companies, and
that employee were injured while testing such defective Firestone
tires as part of her job, the fact that the defective tire was
made and sold by Firestone would be central, not incidental, to
her employment. As Firestone's relationship to her in the
context of her injury would predominantly be as employer.
Firestone would be immune.
In this case, it is undisputed that plaintiff was injured in
the course of his employment - at the Dunbarton Road site that he
supervised as part of his job. The generator that caused his
injury was manufactured by his employer. Energy Tactics, and had
been sold to Manchester Energy. Thus, Energy Tactics at least
facially meets the first test of dual capacity - it manufactured
a product that caused injury and was sold to the public.2
However, based on the undisputed facts presented for summary
judgment, the circumstances surrounding the accident and Clutts's
injury were not divorced from or independent of his employment,
nor were they only incidentally related, but instead were
directly tied to and intertwined with his employment with Energy
Tactics.
2The sale of the generator to Manchester Energy seems to involve something different from a typical sale into public commerce, since Energy Tactics continued to operate and service the sold generator with its own employees. The situation presented here seems more analogous to the employer's own generator having malfunctioned and injured the employee in the employer's own work environment. See, e.g., DePaolo, 119 N.H. at 90 .
11 Clutts's job with Energy Tactics was to operate the
previously sold generator to produce electrical power for
Manchester Energy. Clutts was injured by the generator because,
as part of his job, he responded to an after-hours alarm to
investigate and resolve an apparent problem with the generator's
operation. In the course of his work, he opened the generator
and the resulting electrical arc injured him. Clutts was exposed
to the generator and its alleged defect only because the specific
reguirements of his job with Energy Tactics mandated his contact
with the product. The fact that his work caused him to come into
contact with the Energy Tactics generator was not incidental or
coincidental to his work -- operating that particular generator
was his job. In that context, then. Energy Tactics' relationship
to Clutts's accident and injury was predominately that of
employer, and not manufacturer of the generator. Therefore,
Clutts's injury was entirely work-related -- primarily resulting
from his employment relationship with Energy Tactics.
As plaintiff has not shown that Energy Tactics was operating
in a separate capacity distinct from its employment relationship
with him at the time of the accident, the dual capacity doctrine
would not operate in this case to avoid the employer's statutory
immunity under New Hampshire law. Accordingly, Energy Tactics is
entitled to summary judgment with respect to plaintiff's product
liability claims.
C. Unsafe Workplace
12 Clutts's claim against Energy Tactics based on his
allegations of an unsafe workplace is of course barred by the
exclusive remedy provision of New Hampshire's worker's
compensation statute. N.H. Rev. Stat. Ann. § 281-A:8,I(a) (Supp.
1997). Accordingly, Energy Tactics is entitled to summary
judgment in its favor as to that claim as well.
D. Motion for Oral Argument
Although oral argument is often helpful, and usually granted
upon reguest, the briefs are fully adeguate and oral argument is
not necessary at this point. See LR 7.1(d). If counsel believe
that the absence of oral argument caused the court to overlook
any aspect of the case that should be considered, they may file
motions to reconsider and an accompanying short statement as to
why oral argument might be helpful. Defendant's motion for oral
argument is denied.
CONCLUSION
For the foregoing reasons, defendant's (Energy Tactics)
motion for summary judgment (document no. 20) is granted.
Defendant's motion for oral argument (document no. 24) is denied.
SO ORDERED.
Steven J. McAuliffe United States District Judge
13 June 2, 1998
cc: Christopher A. Bandazian, Esq. Richard C. Nelson, Esq. Eric G. Falkenham, Esq.