Diodato v. United

• Court: Court of Appeals for the First Circuit
• Decided: July 31, 1992
• Docket: 92-1107
• Status: Published

Opinion

USCA1 Opinion

July 31, 1992           [NOT FOR PUBLICATION]

                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT
                                 ____________________

No. 92-1107

                           EDITH DIODATO AND LOIS DIODATO,
                         AS ADMINISTRATRICES OF THE ESTATE OF
                                 MICHAEL J. DIODATO,

                               Plaintiffs, Appellants,

                                          v.

                              UNITED STATES OF AMERICA,

                                 Defendant, Appellee.

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                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                          FOR THE DISTRICT OF MASSACHUSETTS

                       [Hon. Rya W. Zobel, U.S. District Judge]
                                           ___________________

                                 ____________________

                                        Before

                                 Selya, Circuit Judge,
                                        _____________
                             Lay,* Senior Circuit Judge,
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                          and O'Scannlain,** Circuit Judge.
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                                 ____________________

            Stephen G. Morte for appellants.
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            Mary Elizabeth Carmody,  Assistant U.S. Attorney, with whom  Wayne
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        A. Budd, United States Attorney, was on brief for appellee.
        _______

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        *  Of the Eighth Circuit, sitting by designation.
        ** Of the Ninth Circuit, sitting by designation.

Per Curiam.  Plaintiffs appeal the district court's grant of
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          summary  judgment in favor of  the United States  in their action

          under the Federal Tort Claims Act ("FTCA").  We affirm.

                                          I

               Michael Diodato, an employee of contractor Nova Group, Inc.,

          was electrocuted while  laying pipe  in a trench  at Hanscom  Air

          Force Base in  Bedford, Massachusetts.   Diodato was easing  pipe

          suspended from the boom of a crane into location for welding when

          the boom contacted  a live power  line, or came  into such  close

          proximity to the  line that electricity arced to it.  Diodato was

          badly   burned  by  the   resulting  electrical   discharge,  and

          subsequently died from his injuries.  The administratrices of his

          estate,  Edith and Lois Diodato, sued the utility company and the

          crane  manufacturer in state  court, and brought  a separate FTCA

          action in  federal court.   The state court  suit was removed  to

          federal court and consolidated with the FTCA action.

               In  an order entered  September 3, 1991,  the district court

          granted  the motions of the United States and the utility company

          for summary judgment.   The case  against the crane  manufacturer

          remained unresolved.  No separate  document of final judgment was

          entered.   After  denial  of a  motion  for reconsideration,  the

          Diodatos filed a timely notice of appeal.

                                          II

          As a preliminary matter, we reject the government's argument that

          we lack  appellate jurisdiction.   Although no  separate document

          setting forth judgment  was entered, as required by  Federal Rule

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of Appellate  Procedure 4(a) and Federal Rule  of Civil Procedure

          58, the parties can waive that defect.  See  Bankers Trust Co. v.
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          Mallis, 435 U.S. 381 (1978) (per curiam); Smith  v. Massachusetts
          ______                                    _______________________

          Dept. of  Correction, 936 F.2d  1390, 1394 (1st  Cir. 1991).   We
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          conclude that they have done so.

               The  government also  points out  that the  summary judgment

          order did not resolve all claims in the consolidated proceedings.

          The  rule in this circuit  is that "where  cases are consolidated

          for purposes  of convenience  and judicial efficiency,  the cases

          retain  their separate  identity and  judgments rendered  in each

          individual action  are appealable  as final judgments  within the

          meaning of  28  U.S.C. 1291  .  . .  even  without the  requisite

          certification  under Rule 54(b)."   Federal Deposit Ins. Corp. v.
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          Caledonia  Inv. Corp.,  862 F.2d  378, 381  (1st Cir.  1988). The
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          summary judgment order completely resolved the action against the

          United States.  It is therefore appealable.

                                         III

               We  likewise reject  the assertion  that the  district court

          ruled  on  the  summary  judgment  motion  prematurely,   without

          allowing sufficient time  for discovery.  The  district court has

          "broad discretion"  to award summary judgment  before the parties

          have completed discovery.  Mendez v. Belton, 739 F.2d 15, 18 (1st
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          Cir. 1984).  In  particular, a "court may grant  summary judgment

          despite an opposing party's claim that additional discovery would

          yield additional facts where  the opposing party has  not alleged

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specific facts  that could be developed  through such discovery."

          Taylor v. Gallagher, 737 F.2d 134, 137 (1st Cir. 1984).
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               Although  plaintiffs  requested more  time for  discovery in

          their opposition  to  summary  judgment, they  did  not  cite  to

          specific  facts  they hoped  to  ascertain  through such  further

          discovery.   They  mentioned  only that  they  wished to  examine

          unspecified  government documents  and depose  unnamed government

          employees.   Joint  Appendix  at 111-12.    They "did  not  show,

          through a Rule 56(f) affidavit  or otherwise, how discovery could

          have breathed life into [their] claim."  Taylor, 737 F.2d at 137.

          Accordingly, the district  court did not err  in granting summary

          judgment without allowing further discovery.

                                          IV

               The Diodatos'  primary contention on appeal  is that summary

          judgment  was  improperly  entered   because  genuine  issues  of

          material  fact  remained.   Our review  of  the entry  of summary

          judgment is  plenary.  Petitti  v. New England  Tel. &  Tel., 909
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          F.2d 28, 30  (1st Cir. 1990).  Summary judgment  is proper if the

          evidence "is so one sided that one party must prevail as a matter

          of  law." Id. (quoting Anderson  v. Liberty Lobby,  477 U.S. 242,
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          252 (1986)).  In assessing the  evidence, we view it in the light

          most  favorable  to   the  non-  moving  party  and  indulge  all

          reasonable inferences favorable to that party. Id. at 31.
                                                         ___

               The Diodatos  concede that we  must look to  the substantive

          law of Massachusetts in this  FTCA suit.  They also concede  that

          the  United States is not vicariously liable for the torts of its

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independent contractors or their employees.  Brooks v. A. R. & S.
                                                       ____________________

          Enterprises, 622 F.2d 8,  10 (1st Cir. 1980).  They advance three
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          theories of direct liability: failure to supervise adequately the

          subcontractor's   work;  failure  to   make  the   project  areas

          reasonably  safe; and failure to  comply with a  statutory  duty.

          On the record before us, none of these theories is persuasive.

               Because the contract  specifically delegated  responsibility

          for  the safety  of the  project to  Nova Group,  and the  United

          States  did not  retain supervisory  control, we  agree with  the

          district court that  the United States cannot be held liable on a

          theory   of  inadequate   supervision.     See   Foley  v.   Rust
                                                     ___   ________________

          International, 901  F.2d  183  (1st  Cir. 1990).    The  contract
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          specially required Nova Group to inform the government twenty-one

          days in  advance  of any  utility shut-down  necessitated by  the

          project.   In addition, Nova committed itself to ensuring that no

          crane would be  operated   within ten feet  of overhead  electric

          lines unless the power was shut off.  The government was entitled

          to rely on this agreement.

               Plaintiffs cite a number of cases, all decided under the law

          of other jurisdictions, for the  proposition that an employer has

          a non-delegable duty to supervise independent contractors engaged

          in  inherently  dangerous  work.  See, e.g.,  Gardner  v.  United
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          States, 780  F.2d  835, 838  (9th  Cir. 1986)  (California  law);
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          Barron v. United  States, 654  F.2d 644, 646-47  (9th Cir.  1981)
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          (Hawaii  law); McGarry v. United  States, 549 F.2d  587, 590 (9th
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          Cir.  1976)   (Nevada  law).     Unfortunately  for   plaintiffs,

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Massachusetts  has  specifically    rejected this  rule.    Under

          Massachusetts  law,  an  employer of  an  independent  contractor

          performing dangerous  work must take reasonable  steps to protect

          the  public,  but  owes  no  special  duty  to  the  contractor's

          employees.   Vertentes v.  Barletta Co.,  466 N.E.2d  500, 501-02
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          (Mass. 1984).

               The  Diodatos'  second  theory  of  liability  is  that  the

          government,  as  owner and  possessor of  the  land on  which the

          accident  occurred, owed decedent a duty to protect against or to

          warn   of  dangerous   conditions   on  the   property.     Under

          Massachusetts  law, a landowner owes a duty of reasonable care to

          the employees of its independent contractors.  Poirier v. Town of
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          Plymouth, 372 N.E.2d  212, 227 (Mass.  1978). The property  owner
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          "must  take those steps to prevent injury that are reasonable and

          appropriate under all the circumstances," id., but has no duty to
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          warn  of obvious dangers.   Young v. Atlantic  Richfield Co., 512
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          N.E.2d 272, 276 (Mass. 1987), cert. denied, 484 U.S. 1066 (1988).
                                        ____________

               While the United States undoubtedly owed the decedent a duty

          to "exercise ordinary  prudence and care  in the maintenance  and

          use of its  power line," Gelinas  v. New England  Power Co.,  268
                                   __________________________________

          N.E.2d 336, 339 (Mass. 1971), plaintiffs have not argued that the

          power  lines  were defective  or  poorly maintained.    They rely

          instead on  evidence that many persons are unaware of the  danger

          inherent in uninsulated power  lines.  We are bound,  however, by

          the determination of the Supreme Judicial Court that, as a matter

          of law, the danger of such lines is open and obvious to one aware

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of their presence.  Burr v.  Massachusetts Elec. Co., 248  N.E.2d
                              ________________________________

          492, 495 (Mass. 1969).1  

               The  United States  submitted  uncontroverted evidence  that

          both the decedent and  the crane operator noted the   power lines

          just  before  the  accident  occurred.    As  a  matter  of  law,

          therefore, the danger presented by the power lines must be deemed

          obvious to the decedent.  

               Plaintiffs also  point us to Massachusetts  cases describing

          electricity as a dangerous instrumentality, and holding those who

          employ it to a correspondingly high degree of care. E.g., Gelinas
                                                              ____  _______

          v. New England  Power Co.,  268 N.E.2d   336,  339 (Mass.  1971).
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          This  special degree of care, however, "is limited to those cases

          where  the victim  of  the  accident  was,  in  relation  to  the

          defendant,  a member of the  general public."   Lawler v. General
                                                          _________________

          Elec. Co., 294  N.E.2d  535, 537 (Mass. App.  1973). Such was not
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          the case here.  

               Finally, plaintiffs  contend  that the  government  violated

          Massachusetts   statutes  governing   the  use   of  construction

          equipment  within six feet of live, unguarded power lines.  Mass.

          Gen.  L. ch.  166,  21A,  21B  (1976).   By  their  terms,  these

          provisions do not  appear to  govern the conduct  of persons  not

          directly  responsible   for  the  work.     Moreover,  plaintiffs

          presented  no  evidence that  the  United  States "require[d]  or

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          1Because, unlike Massachusetts,  Ohio holds  as a  matter of  law
          that  the dangers  of  electric wires  are not  readily apparent,
          Angel v. United  States, 775  F.2d 132 (6th  Cir. 1985),  decided
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          under the law of Ohio, does not advance the plaintiff' cause.

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permit[ted]"  Nova  employees  to  operate  the  crane  in  close

          proximity to live power lines. 

                                          V

               For  the foregoing  reasons, we  conclude that  the district

          court properly granted summary judgment for the United States. 

               Affirmed. 
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