1995 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

4-20-1995

Monk v VI Water & Power Auth

Precedential or Non-Precedential:

Docket 94-7372

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Recommended Citation

"Monk v VI Water & Power Auth" (1995). 1995 Decisions. Paper 106.

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 UNITED STATES COURT OF APPEALS 

 FOR THE THIRD CIRCUIT 

 ___________ 

 No. 94-7372 

 ___________ 

 TED MARK MONK, 

 Appellant 

v. 

 VIRGIN ISLANDS WATER & POWER AUTHORITY; 

 QUALITY ELECTRIC SUPPLY COMPANY 

 _______________________________________________ 

 On Appeal from the District Court of the Virgin Islands 

 Division of St. Croix 

 (D.C. Civil Action No. 91-cv-00077) 

 ___________________ 

 Argued December 5, 1994 

 Before: SLOVITER, Chief Judge, 

 SCIRICA and COWEN, Circuit Judges

 (Filed April 20, 1995) 

 THOMAS ALKON, ESQUIRE (Argued) 

 Alkon, Rhea & Hart 

 2115 Queen Street, Suite 101 

 Christiansted, St. Croix 

 U.S. Virgin Islands 00820 

 Attorney for Appellant 

 RHYS S. HODGE, ESQUIRE 

 Law Offices of Rhys S. Hodge 

 19 Norre Gade 

 P.O. Box 6520 

 Charlotte Amalie, St. Thomas 

 U.S. Virgin Islands 00804 
 Attorney for Appellee, 

 Virgin Islands Water 

 & Power Authority 
 R. ERIC MOORE, ESQUIRE (Argued) 

 Law Office of R. Eric Moore 

 Downtown Station 

 P.O. Box 3086 

 Christiansted, St. Croix 

 U.S. Virgin Islands 00822 

 Attorney for Appellee, 

 Quality Electric Supply Company 

 __________________ 

 OPINION OF THE COURT 

 __________________ 

SCIRICA, Circuit Judge. 

 In this appeal, we are required to interpret and apply 

various sections of the Restatement (Second) of Torts to a 

lawsuit arising from a tragic construction accident in the Virgin 

Islands. The primary issue is the viability of Restatement 

section 343A, involving the doctrine of assumption of risk, in 

light of the Virgin Islands' adoption of a comparative negligence 

statute. We also consider whether employers may be liable for 

injuries to their independent contractors' employees under 

Restatement section 413 and similar provisions. The district 

court granted summary judgment to the defendant landowner, 

holding that the Restatement provisions shielded it from tort 

claims by a worker injured on the property. We will affirm. 

I. 

 In June 1990, a fire destroyed a building on St. Croix 

owned by Quality Electric Supply Company. The following month 

Quality Electric contracted with Benak Construction Company to 

demolish the remains of the original structure and to construct a 
new building. Ted Monk, Sr., a partner in Benak and head of the 

project, named his son, Ted Monk, Jr. ("Monk"), as foreman of the 

site. 

 At the time of construction, the Virgin Islands Water & 

Power Authority ("WAPA") maintained 7,200-volt power lines 

several feet above part of the proposed building. The power 

lines were clearly visible, and there is no dispute that everyone 

involved with the project knew about the lines and that any 

contact with them would be dangerous.1 On November 8, 1990, a 

crane was being used to lift steel joists that would connect the 

columns of the building frame. The first joist was installed 

with the use of a "tag line," a rope attached to the beam to 

prevent it from swinging. Monk decided not to use a tag line to 

install the next joist, however, because he thought he could 

better control the joist from swinging by holding it directly 

with his hands. At this point, Monk, Sr., yelled for his son to 

use a tag line. As Monk prepared to do so, the steel joist 

touched an overhead power line, sending an electrical current 

through his body. He suffered severe burns that resulted in the 

amputation of both his legs and his left arm. 

 

1. As the district court noted, the Benak supervisor at the 

site, Paul Christoff, testified in his deposition that "everyone 

present at the work site knew that the lines were energized. In 

fact, Christoff heard Monk, Sr., specifically tell his son, the 

plaintiff, to be careful of the lines because they were 'hot.'" 

See Monk v. Virgin Islands Water & Power Auth., No. 91-0077, slip 

op. at 3 n.2 (D.V.I. Jan. 24, 1994). For direct evidence of the 

plaintiff's knowledge of the power lines and their danger, see 

infra part II.C. 
 Monk then filed this suit for personal injuries against 

Quality Electric and WAPA. The district court granted summary 

judgment in favor of Quality Electric, but denied summary 

judgment to WAPA. Monk v. Virgin Islands Water & Power Auth., 

No. 91-0077 (D.V.I. Jan. 24, 1994). Monk settled with WAPA, but 

appealed the district court's judgment as to Quality Electric. 

 The district court had jurisdiction of the case 

pursuant to 48 U.S.C. § 1612 (1988). We have jurisdiction under 

28 U.S.C. § 1291 (1988), and our review of a grant of summary 

judgment is plenary. Oritani Sav. & Loan Ass'n v. Fidelity & 

Deposit Co., 989 F.2d 635, 637 (3d Cir. 1993). Summary judgment 

is appropriate when "there is no genuine issue as to any material 

fact" and "the moving party is entitled to a judgment as a matter 

of law." Fed. R. Civ. P. 56(c). 

II. 

 In the Virgin Islands, the various Restatements of law 

provide the rules of decision in the absence of local laws to the 

contrary. V.I. Code Ann. tit. 1, § 4 (1967);2 Williams v. Martin 

Marietta Alumina, Inc., 817 F.2d 1030, 1033 (3d Cir. 1987). We 

are called upon here to determine whether section 343A of the 

 

2. V.I. Code Ann. tit. 1, § 4 (1967) provides: 

 The rules of the common law, as 

expressed in the restatements of the law 

approved by the American Law Institute, and 

to the extent not so expressed, as generally 

understood and applied in the United States, 

shall be the rules of decision in the courts 

of the Virgin Islands in cases to which they 

apply, in the absence of local laws to the 

contrary. 
Restatement (Second) of Torts (1965) survives enactment of the 

Virgin Islands comparative negligence statute. 

A. 

 At common law, a plaintiff's contributory negligence 

barred any subsequent recovery for damages, even if the plaintiff 

was only slightly at fault. W. Page Keeton et al., Prosser and 

Keeton on the Law of Torts §§ 65, 67, at 451-52, 468-69 (5th ed. 

1984); Restatement (Second) of Torts § 467. Similarly, the 

common law doctrine of assumption of risk prevented recovery when 

a plaintiff was deemed to have assumed the risk of a known 

danger. Keeton et al., supra, § 68, at 495-96; Restatement § 

496A. 

 While these rules were still in force throughout most 

of the United States, the American Law Institute incorporated 

section 343A on "Known or Obvious Dangers" into the Restatement 

(Second) of Torts. Section 343A provides in relevant part: 

 A possessor of land is not liable to his 

invitees3 for physical harm caused to them by 

any activity or condition on the land whose 

danger is known or obvious to them, unless 

the possessor should anticipate the harm 

despite such knowledge or obviousness. 

 

3. The Restatement definition of "invitee" includes a "business 

visitor," which is defined as "a person who is invited to enter 

or remain on land for a purpose directly or indirectly connected 

with business dealings with the possessor of the land." 

Restatement § 332. There is no dispute that Monk is an 

"invitee," within the meaning of the Restatement. 
(footnote added). Section 343A's focus on dangers "known or 

obvious" to invitees, along with pertinent commentary,4 indicated 

it was intended as a variation on the doctrine of assumption of 

risk. See, e.g., Koutoufaris v. Dick, 604 A.2d 390, 395-96 (Del. 

1992) (noting section "343A's apparent espousal of assumption of 

risk as a bar to recovery"). 

 Soon after adoption of the Second Restatement in 1965, 

however, the principle of apportioning damages between negligent 

plaintiffs and defendants under a comparative fault system began 

"veritably sweeping the land." Keeton et al., supra, § 67, at 

479. "Although by the mid-1960s only seven states had replaced 

contributory negligence with comparative fault, several states 

switched over in 1969, and the 1970s and early 1980s witnessed a 

surge of legislative and judicial action accomplishing the 

 

4. For example, comment e to section 343A provides: 

 In the ordinary case, an invitee who 

enters land is entitled to nothing more than 

knowledge of the conditions and dangers he 

will encounter if he comes. If he knows the 

actual conditions, and the activities carried 

on, and the dangers involved in either, he is 

free to make an intelligent choice as to 

whether the advantage to be gained is 

sufficient to justify him in incurring the 

risk by entering or remaining on the land. 

The possessor of the land may reasonably 

assume that he will protect himself by the 

exercise of ordinary care, or that he will 

voluntarily assume the risk of harm if he 

does not succeed in doing so. Reasonable 

care on the part of the possessor therefore 

does not ordinarily require precautions, or 

even warning, against dangers which are known 

to the visitor, or so obvious to him that he 

may be expected to discover them. 
switch." Id. at 471 (footnotes omitted). All but four states 

now have adopted the doctrine.5 

 The movement toward comparative negligence, however, 

raised questions concerning the continued viability of the 

assumption of risk defense,6 which often resembled contributory 

negligence.7 See, e.g., id. § 68, at 495 ("The rise of 

 

5. Those four states are Alabama, Maryland, North Carolina, and 

Virginia. See Jean W. Sexton, Recent Decision, Tort Law --

Assumption of Risk and Pennsylvania's Comparative Negligence 

Statute: Howell v. Clyde, 67 Temp. L. Rev. 903, 903 & n.2 (1994); 

see also Williams v. Delta Int'l Mach. Corp., 619 So. 2d 1330, 

1333 (Ala. 1993); Harrison v. Montgomery County Bd. of Educ., 456 

A.2d 894, 905 (Md. 1983); Campbell v. Baltimore Gas & Elec. Co., 

619 A.2d 213, 219 (Md. Ct. Spec. App.), cert. denied, 627 A.2d 

538 (Md. 1993); Miller v. Miller, 160 S.E.2d 65, 73 (N.C. 1968); 

Bowden v. Bell, 446 S.E.2d 816, 819 (N.C. Ct. App. 1994); 

Litchford v. Hancock, 352 S.E.2d 335, 337 (Va. 1987). 

6. Our discussion involves only the implied form of assumption 

of risk, not a defense based on an express contract. Defenses 

based on express assumption of risk remain valid in virtually all 

jurisdictions. See, e.g., W. Page Keeton et al., Prosser and 

Keeton on the Law of Torts § 68, at 496 (5th ed. 1984) (footnotes 

omitted) ("[A]bsent policy reasons for prohibiting contractual 

disclaimers of this type in certain contexts, an express 

assumption of risk by the plaintiff should continue to serve as a 

total bar in comparative negligence cases."); 1 J.D. Lee & Barry 

A. Lindahl, Modern Tort Law § 9.07, at 250 (1988) ("In 

jurisdictions which have adopted comparative fault statutes, it 

has generally been held that the defense of express assumption of 

risk survives the enactment of such statutes."); 3 Stuart M. 

Speiser et al., The American Law of Torts § 13:39, at 808 (1986) 

("Express assumption of risk, as distinguished from implied 

assumption of risk, has retained its viability as an absolute 

defense despite the advent of comparative negligence. This 

proposition is supported by cases from numerous jurisdictions."). 

7. For a discussion of the different forms of assumption of 

risk, see infra part II.B; cf. Restatement § 496A cmt. c; Keeton, 

supra, § 68, at 480-81 & 481 n.10. For purposes of this case, we 

adhere to the distinctions noted in Keegan v. Anchor Inns, Inc., 

606 F.2d 35, 39-41 (3d Cir. 1979). As we explained in Keegan, 

"Assumption of risk in its secondary sense is ordinarily 

synonymous with contributory negligence and involves a failure to 
comparative negligence has forced the courts and commentators to 

consider afresh the proper role for the assumption of risk 

defense."). Some jurisdictions that abolished contributory 

negligence also eliminated assumption of risk by statute.8 Other 

states left the issue for their courts to decide, which resulted 

in a range of decisions across the spectrum.9 Most courts 

rejected the defense,10 others continued it, and some supported 

certain forms of it but rejected others.11

(..continued) 

exercise reasonable care for one's own safety. . . . Assumption 

of risk in its primary and strict sense involves voluntary 

exposure to an obvious or known danger which negates liability." 

Id. at 39 n.5 (citations omitted). 

8. "[S]everal comparative negligence statutes by their terms 

abolish assumption of risk, in addition to contributory 

negligence, as defenses that will bar liability altogether." 

Keeton et al., supra, § 68, at 495-96 (citing several cases and 

statutes); see also Speiser et al., supra, § 13:33, at 787 

("There are a number of jurisdictions in which implied assumption 

of risk was abolished by statute."). 

9. Keeton et al., supra, § 68, at 496 ("Most of the statutes, 

however, are silent on assumption of risk, and so the matter has 

been thrown over to the courts."); Speiser et al., supra, § 

13:33, at 787 ("[I]n most jurisdictions, the statute by which 

comparative negligence was enacted did not expressly deal with 

assumption of risk, leaving it to the courts to deal with the 

viability of the doctrine . . . ."). 

10. See, e.g., Lee & Lindahl, supra, § 9.05, at 246 ("[M]ost 

states have allowed the entire concept [of assumption of risk] to 

be subsumed within comparative negligence by either abrogating it 

or providing for its merger with comparative fault principles."); 

Speiser et al., supra, § 13:33, at 787 ("[T]here are a number of 

jurisdictions, decidedly representing a minority, in which 

assumption of risk was retained as a separate defense under the 

comparative negligence system."). 

11. For a state-by-state analysis of the viability of assumption 

of risk after adoption of comparative negligence, see Speiser et 

al., supra, §§ 13:33-:39, at 784-809; see also Keeton et al., 
 Depending upon their position on the viability of 

assumption of risk, courts also decided whether to continue using 

section 343A of the Restatement. As with assumption of risk 

generally, some courts opted to continue using section 343A,12

others decided against it, and still others decided the 

applicability of section 343A depended on the type of assumption 

of risk involved.13 

B. 

 In 1973, the Virgin Islands abolished the common law 

rule that a plaintiff's contributory negligence barred any 

recovery. In its place, it adopted a comparative negligence 

statute that apportioned fault between the plaintiff and 

defendant. See V.I. Code Ann. tit. 5, § 1451 (Supp. 1993);14

(..continued) 

supra, § 68, at 495-498; Lee & Lindahl, supra, § 9.05, at 245-

247. 

12. See, e.g., Carrender v. Fitterer, 469 A.2d 120, 124-25 (Pa. 

1983). 

13. See, e.g., Koutoufaris v. Dick, 604 A.2d 390, 398 (Del. 

1992) (rejecting use of section 343A when the alleged assumption 

of risk was secondary type, but noting that it "might well" apply 

when assumption of risk was primary type). For a summary of 

judicial opinion regarding the applicability of section 343A in 

comparative negligence jurisdictions, see id. at 395-98. 

14. V.I. Code Ann. tit. 5, § 1451(a) (Supp. 1993) provides in 

relevant part: 

 In any action based upon negligence to 

recover for injury to person or property, the 

contributory negligence of the plaintiff 

shall not bar a recovery, but the damages 

shall be diminished by the trier of fact in 

proportion to the amount of negligence 

attributable to the plaintiff. The burden of 

proving contributory negligence shall be on 

the defendant. If such claimant is found by 
Keegan v. Anchor Inns, Inc., 606 F.2d 35, 37-38 (3d Cir. 1979). 

Monk contends this statute implicitly abolished assumption of 

risk as a defense, thereby contradicting Restatement section 343A 

and nullifying its viability. 

 In Keegan, id. at 37-41, we examined the Virgin Islands 

comparative negligence statute and its effect on the doctrine of 

assumption of risk. We held the statute abrogated one type of 

the assumption of risk defense, but left the other form intact: 

 Assumption of risk is not necessarily 

grounded on the concept of fault. Sometimes 

the defense has been invoked when the 

plaintiff's conduct could be characterized as 

negligent; sometimes it has been invoked in 

its "strict" or "primary" sense when the 

conduct amounted to consent. In those cases 

where the plaintiff's conduct amounts to 

negligence, that fact should be accorded 

weight only within the comparative scheme of 

the statute. In such a case assumption of 

risk is not available as a bar to recovery. . 

. . It follows that when conduct amounts to 

a voluntary waiver or consent the absolute 

bar to recovery should remain. 

(..continued) 

the trier of fact to be more at fault than 

the defendant, or, in the case of multiple 

defendants, more at fault than the combined 

fault of the defendants, the claimant may not 

recover. 
Id. at 40. We employed this distinction between the two types of 

assumption of risk in Smollett v. Skayting Development Corp., 793 

F.2d 547 (3d Cir. 1986). In Smollett, a woman injured while ice 

skating sued the operator of the rink, complaining that the lack 

of guardrails and the carpeted floor surrounding the ice caused 

her injuries. The jury found for the plaintiff, and the district 

court denied the defendant's motion for a judgment 

notwithstanding the verdict. On appeal, we reversed and directed 

the district court to enter judgment for the defendant, holding 

that the evidence showed the plaintiff "fully understood the risk 

of harm to herself and voluntarily chose to enter the area of 

risk. She, therefore, implicitly assumed the risk of injury." 

Id. at 548 (citation omitted). In so ruling, we reiterated the 

comparative negligence statute's effect on assumption of risk: 

 Assumption of risk is still available as a 

complete defense to a negligence claim but it 

has been limited by enactment of the 

comparative negligence statute. Assumption 

of risk, to the extent it incorporates the 

concept of fault on the part of the actor 

and, therefore, overlaps with contributory 

negligence, is no longer available as a 

defense. However, assumption of risk can 

still be applied to "non-negligent conduct 

which constitutes waiver or consent" but 

which involved no negligence. In such cases 

the absolute bar to recovery remains. 

Id. (quoting Keegan, 606 F.2d at 41 n.8). Therefore, the 

"primary" form of assumption of risk remains a viable defense in 

the Virgin Islands.15 Because Restatement section 343A requires 

 

15. We disagree with Monk's assertion that the judicial 

rejection of sections 343 and 343A under federal admiralty law 

controls this case. It is true that we have held those 
a plaintiff's implicit acquiescence to "known or obvious 

dangers," the essence of the primary form of assumption of risk, 

this Restatement provision also remains valid under Virgin 

Islands law. 

 We recognize our holding on assumption of risk may not 

represent the view of a majority of jurisdictions.16 But many of 

(..continued) 

Restatement sections inapplicable to actions arising under the 

Longshore and Harbor Workers' Compensation Act, 33 U.S.C. § 

905(b). See Davis v. Portline Transportes Maritime 

Internacional, 16 F.3d 532, 542 n.7 (3d Cir. 1994) (noting that 

"[s]ome portions of the Restatement's approach, however, clearly 

do not fit within the paradigm the Act constructs" and citing 

section 343A as an example); Rich v. United States Lines, Inc., 

596 F.2d 541, 551 n.21 (3d Cir. 1979) ("Sections 343 and 343A of 

the Restatement (Second) of Torts . . . are both inconsistent 

with Section 905(b) and therefore should not be relied upon to 

create a duty on the part of the ship owner."); see also Scindia 

Steam Navigation Co. v. De Los Santos, 451 U.S. 156, 168 n.14 

(1981) (stating that "those sections, while not irrelevant, do 

not furnish sure guidance in cases such as this"). But we 

rejected those sections because Congress, in amending the 

Longshore and Harbor Workers' Compensation Act, expressly 

indicated its intent to abolish assumption of risk when it 

eliminated contributory negligence. See id. at 166 n.13 ("The 

Committees also anticipated that in § 905(b) cases, as in other 

admiralty cases, the rule of comparative negligence would apply 

and the defense of assumption of risk would be barred."); H.R. 

Rep. No. 1441, 92d Cong., 2d Sess. 8 (1972), reprinted in 1972 

U.S.C.C.A.N. 4698, 4705 ("[T]he Committee intends that the 

admiralty rule which precludes the defense of 'assumption of 

risk' in an action by an injured employee shall also be 

applicable."). Similarly, some state legislatures also barred 

assumption of risk when they approved comparative negligence 

statutes. See supra note 8 and accompanying text. 

 In abolishing contributory negligence, however, the 

Virgin Islands legislature never gave any indication whether it 

intended to bar assumption of risk. Thus, the maritime actions 

are distinguishable. In any event, as the Supreme Court has 

stated, "maritime negligence actions are not necessarily to be 

governed by principles applicable in nonmaritime contexts." 

Scindia Steam, 451 U.S. at 168 n.14. 

16. See supra note 10 and accompanying text. 
the contrary cases are distinguishable, largely because relevant 

statutes eliminating contributory negligence often expressly 

barred the assumption of risk defense.17 Furthermore, we have 

interpreted the statute in this manner consistently since its 

1973 enactment. We acknowledge the existence of strong policy 

reasons for completely abandoning the doctrine of assumption of 

risk as an absolute bar to recovery,18 just as there are 

compelling reasons to maintain the defense in its limited form.19 

But unlike other jurisdictions, where the Restatement merely 

serves as a summary of general legal principles for courts to 

accept or reject, the Virgin Islands has designated the 

Restatement as its law, until a contrary statute is approved.20 

Therefore, if the Virgin Islands wishes to abrogate the doctrine 

 

17. See supra note 8 and accompanying text. 

18. See, e.g., Sexton, supra, at 905 ("[A]ssumption of risk 

clearly circumvents the purpose of the comparative negligence 

statute by precluding recovery even if the plaintiff's actions 

were reasonable or caused only one percent of the total harm . . 

. ."); see also id. at 903 & n.4 (listing commentators who 

"advocate the complete abolition of the assumption of risk 

defense"). 

19. See, e.g., Keeton et al., supra, § 68, at 496 (footnotes 

omitted) ("'[P]rimary' implied assumption of risk should also 

logically continue to be an absolute bar after the adoption of 

comparative fault . . . . This is because assumption of risk in 

this form is really a principle of no duty, or no negligence, and 

so denies the existence of any underlying cause of action. 

Without a breach of duty by the defendant, there is thus 

logically nothing to compare with any misconduct of the 

plaintiff."); see also Sexton, supra, at 903 & n.3 (listing 

commentators supportive of the continuation of assumption of risk 

under comparative negligence). 

20. See supra note 2. 
of assumption of risk, along with section 343A of the 

Restatement, its legislature must say so, as it did in 1973 with 

contributory negligence. 
C. 

 In applying section 343A of the Restatement to this 

case, the district court granted summary judgment to Quality 

Electric because "it was Monk's decision not to use a tag line 

and instead to hold onto the metal beam that precipitated his 

injuries. Monk cannot now try to shift the liability to Quality 

Electric simply because they owned the land where the work was 

performed." Monk, No. 91-0077, slip op. at 12. 

 To the extent the district court based its decision on 

Monk's negligence (or contributory negligence), we believe it 

erred. Instead, the court should have focused on evidence 

demonstrating Monk's awareness of and consent to a "known or 

obvious" danger. Evidence of Monk's negligence is relevant only 

to show the type of secondary assumption of risk that 

"incorporates the concept of fault on the part of the actor and, 

therefore, overlaps with contributory negligence." Smollett, 793 

F.2d at 548. As we have held, such evidence is no longer 

permitted in the Virgin Islands to bar a plaintiff's cause of 

action, but rather only may be used to apportion fault between 

plaintiffs and defendants. Id.; Keegan, 606 F.2d at 39-41. 

 Nevertheless, as in Smollett, we have little difficulty 

in concluding as a matter of law that plaintiff "fully understood 

the risk of harm to h[im]self and voluntarily chose to enter the 

area of risk." 793 F.2d at 548. Although the issue of whether a 

danger was "known or obvious" generally is a question of fact for 

a jury, cf. Restatement § 496D cmt. e, there is no dispute in 

this case that Monk actually knew of the risk posed by the power 
lines. As the district court noted, "At all relevant times, the 

Benak Construction crew knew that the power lines were energized 

and posed a possible danger." Monk, No. 91-0077, slip op. at 3. 

In his deposition, Monk admitted that "I did pay attention to the 

location of the lines. I looked at them, everybody else on the 

job had looked at them." He stated he knew that "if somebody 

came in contact with [the power lines], then they were going to 

get electrocuted, get hurt." Id. at 4 n.2. As foreman, Monk 

testified he warned others about the danger posed by the power 

lines: "[A]s I said earlier, I was always trying to stress how 

dangerous they were and to be careful around them." Id. 

Although Monk contends he did not know the lines were uninsulated 

and the level of their voltage, these factors do not change the 

fact that he knew the location of the lines and that they posed a 

serious danger. Thus, he "assumed the risk of injury." 

Smollett, 793 F.2d at 549.21

 

21. Section 343A provides that owners of land are not liable to 

invitees for "known or obvious" dangers, "unless the possessor 

should anticipate the harm despite such knowledge or 

obviousness." The Restatement commentary provides guidance on 

the meaning of this exception to the rule: 

 Such reason to expect harm to the 

visitor from known or obvious dangers may 

arise, for example, where the possessor has 

reason to expect that the invitee's attention 

may be distracted, so that he will not 

discover what is obvious, or will forget what 

he has discovered, or fail to protect himself 

against it. Such reason may also arise where 

the possessor has reason to expect that the 

invitee will proceed to encounter the known 

or obvious danger because to a reasonable man 

in his position the advantages of doing so 

would outweigh the apparent risk. 
D. 

 Monk also asserts that Quality Electric violated its 

duties under section 343 of the Restatement (Second) of Torts, 

which involves "Dangerous Conditions Known to or Discoverable by 

Possessor."22 We cannot agree. The Restatement provides that 

sections 343 and 343A "should be read together," with the latter 

section dealing "with the effect of the fact that the condition 

is known to the invitee, or is obvious to him . . . ." 

(..continued) 

Restatement § 343A cmt. f. This exception does not apply in 

circumstances like the present, in which the visitor on the land 

has been hired precisely for the work that involves or creates 

the risk itself. In such circumstances, the landowner has no 

reason to expect that the visitor will be distracted or forget 

about the danger. Here, Monk's testimony reveals he was acutely 

aware of the power lines at the time of the accident, and that is 

why he chose to proceed without a tag line. See Monk, No. 91-

0077, slip. op. at 4 & n.3. Indeed, as foreman, Monk repeatedly 

warned others to be careful around the power lines. See

discussion in text. 

22. Section 343 provides: 

 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. 
Restatement § 343 cmt. a. By contrast, section 343 is intended 

to apply "to protect invitees from non-obvious dangerous 

conditions on the land." Rolick v. Collins Pine Co., 975 F.2d 

1009, 1011 (3d Cir. 1992), cert. denied, 113 S. Ct. 1417 

(1993).23 We have held that the power lines above Quality 

Electric's land were both "known" and "obvious"; thus, section 

343 does not apply here. 

III. 

 Finally, Monk argues that Quality Electric 

violated its duty under Restatement section 

413, which involves an employer's "Duty to 

Provide for Taking of Precautions Against 

Dangers Involved in Work Entrusted to 

Contractor." Section 413 provides: One 

who employs an independent contractor to do 

work which the employer should recognize as 

likely to create, during its progress, a 

peculiar unreasonable risk of physical harm 

to others unless special precautions are 

taken, is subject to liability for physical 

 

23. See also Rich v. United States Lines, Inc., 596 F.2d 541, 

563 (3d Cir. 1979) (Garth, J., concurring) (citation omitted) 

(Sections 343 and 343A "establish that the 'possessors of land 

. . . are liable for physical harm caused to invitees by 

dangerous conditions which are not obvious to the invitee (§ 

343), but are absolved from liability when dangerous conditions 

are known or obvious, except when the possessor should anticipate 

the harm despite the invitee's knowledge or the obviousness of 

the condition. (§ 343A).'"). 
harm caused to them by the absence of such 

precautions if the employer 

 (a) fails to provide in the contract 

that the contractor shall take such 

precautions, or 

 (b) fails to exercise reasonable care to 

provide in some other manner for the taking 

of such precautions. 

 At common law, the general rule was that "the employer 

of an independent contractor is not liable for physical harm 

caused to another by an act or omission of the contractor or his 

servants." Restatement § 409; see also Williams v. Martin 

Marietta Alumina, Inc., 817 F.2d 1030, 1036 (3d Cir. 1987). Yet, 

courts began recognizing so many exceptions to that rule "that it 

can now be said to be 'general' only in the sense that it is 

applied where no good reason is found for departing from it." 

Restatement § 409 cmt. b. The Restatement divided the exceptions 

into those based on an employer's direct negligence, see §§ 410-

15, and those involving vicarious liability imposed on the 

employer due to the negligence of the independent contractor, see

§§ 416-29. See Restatement ch. 15, topic 2, introductory note, 

at 394. Therefore, any liability under section 413 must be based 

on an employer's direct negligence. 

 Quality Electric urges us to consider whether the word 

"others," under section 413 and elsewhere in chapter 15 of the 

Restatement, even encompasses an independent contractor's 

employees, thereby allowing them to file suit against their 

employer's employer for injuries sustained on the job. Courts 
for the Virgin Islands are divided on this issue,24 as are other 

courts throughout the country. See Keeton et al., supra, § 71, 

at 514 n.63 ("There is disagreement over whether the doctrine 

protects third parties only or includes as well the contractor's 

employees."). 

 

24. In 1975, the District Court of the Virgin Islands ruled that 

the meaning of "others," under sections 416 and 427 of the 

Restatement, did not encompass employees of an independent 

contractor. Munson v. Duval, 11 V.I. 615, 630-33 (D.V.I. 1975). 

A decade later, in "reaffirm[ing]" that rule, the court noted: 

 Time has proven the wisdom of Chief 

Judge Christian's holding in Munson, supra, 

as jurisdiction after jurisdiction issued a 

ruling to the same effect. The net result is 

that today, ten years later, the overwhelming 

number of jurisdictions are uniform in their 

interpretation of the word "others" in 

Chapter 15 of the Restatement of Torts, 

(Second), as excluding employees of 

independent contractors. 

Gibson v. Sullivan Trail Coal Co., 608 F. Supp. 390, 392 

(D.V.I.), aff'd, 782 F.2d 1028 (3d Cir. 1985); see also Harris v. 

No. 1 Contracting Corp. Excavation Constr. Co., 22 V.I. 3, 7-9 

(V.I. T.C. 1986) (applying Gibson). 

 Other courts in the Virgin Islands have attempted to 

limit such holdings to situations in which employers were sued 

under a vicarious liability theory. See, e.g., Henry v. Hess Oil 

V.I. Corp., 1991 St. Croix Supp. 115, slip op. at 23 (D.V.I. 

1991) ("[S]ince the sole issue in [Gibson] was the employer's 

vicarious liability, the court's citation of those sections 

concerning direct liability was dictum. Therefore, the Third 

Circuit's affirmation without opinion only went to the 

proposition that the employer of an independent contractor is not 

vicariously liable to the contractor's employees, which is 

consistent with this opinion."); see also Olson v. Virgin Islands 

Tel. Corp., 1986 St. Thomas Supp. 204, slip op. at 3 (D.V.I. 

1986); Hood v. Hess Oil V.I. Corp., 650 F. Supp. 678, 679-80 

(D.V.I. 1986). Thus, while the Virgin Islands courts agree that 

employers cannot be held vicariously liable to employees of their 

independent contractor, they are divided on whether such 

employees can sue the employers for their direct negligence based 

on Chapter 15 of the Restatement. 
A. 

 Section 413, as well as sections 41625 and 427,26

essentially adopts the "peculiar risk" doctrine, which developed 

in the latter half of the nineteenth century out of a recognition 

that "a landowner who chose to undertake inherently dangerous 

activity on his land should not escape liability for injuries to 

others simply by hiring an independent contractor to do the 

work." Privette v. Superior Court, 854 P.2d 721, 724-25 & n.2 

(Cal. 1993) (in banc). The American Law Institute incorporated 

this doctrine in the Second Restatement under certain provisions 

of Chapter 15, which generally address the liability of employers 

 

25. Section 416 provides: 

 One who employs an independent contractor to 

do work which the employer should recognize 

as likely to create during its progress a 

peculiar risk of physical harm to others 

unless special precautions are taken, is 

subject to liability for physical harm caused 

to them by the failure of the contractor to 

exercise reasonable care to take such 

precautions, even though the employer has 

provided for such precautions in the contract 

or otherwise. 

26. Section 427 provides: 

 One who employs an independent contractor to 

do work involving a special danger to others 

which the employer knows or has reason to 

know to be inherent in or normal to the work, 

or which he contemplates or has reason to 

contemplate when making the contract, is 

subject to liability for physical harm caused 

to such others by the contractor's failure to 

take reasonable precautions against such 

danger. 
of independent contractors when they or their contractors have 

been negligent. 

 An early draft of the Second Restatement of Torts 

included a Special Note that excluded employees of the 

independent contractor from filing suit under its provisions. 

That note, which ultimately was not adopted, provided: 

 Special Note. The rules stated in this 

Chapter are, in general, not applicable to 

make the defendant who hires an independent 

contractor liable to two classes of persons. 

 One consists of the employees, or 

servants, of the defendant himself . . . . 

 . . . . 

 

 The other class of plaintiffs not 

included in this Chapter consists of the 

employees of the independent contractor. As 

the common law developed, the defendant who 

hired the contractor was under no obligation 

to the servants of the contractor, and it was 

the contractor who was responsible for their 

safety. The one exception which developed 

was that the servants of the contractor doing 

work upon the defendant's land were treated 

as invitees of the defendant, to whom he owed 

a duty of reasonable care to see that the 

premises were safe. This is still true. See 

§ 343. In other respects, however, it is 

still largely true that the defendant has no 

responsibility to the contractor's servants. 

One reason why such responsibility has not 

developed has been that the workman's 

recovery is now, with relatively few 

exceptions, regulated by workmen's 

compensation acts, the theory of which is 

that the insurance out of which the 

compensation is to be paid is to be carried 

by the workman's own employer, and of course 

premiums are to be calculated on that basis. 

While workmen's compensation acts not 

infrequently provide for third-party 

liability, it has not been regarded as 

necessary to impose such liability upon one 
who hires the contractor, since it is to be 

expected that the cost of the workmen's 

compensation insurance will be included by 

the contractor in his contract price for the 

work, and so will in any case ultimately be 

borne by the defendant who hires him. 

 Again, when the Sections in this Chapter 

speak of liability to "another" or "others," 

or to "third persons," it is to be understood 

that the employees of the contractor, as well 

as those of the defendant himself, are not 

included. 

Restatement ch. 15 (Tentative Draft No. 7, 1962). The American 

Law Institute omitted this note, however, at the recommendation 

of William L. Prosser, the reporter for the Second Restatement. 

39 A.L.I. Proc. 244-49 (1962). Prosser suggested the provision 

be dropped because of a lack of uniformity on the issue, 

particularly because of the effect of the various state workers' 

compensation acts. Id. at 246. Nevertheless, he stated that 

"certainly the prevailing point of view is that there is no 

liability on the part of the employer of the independent 

contractor." Id. at 247. 

 In the first decade after the adoption of the 

Restatement, courts split on whether to permit a contractor's 

employees to sue under the peculiar risk provisions of Chapter 

15.27 Since the early 1980s, however, an overwhelming majority 

 

27. As the Washington Supreme Court noted in 1981: 

 Other jurisdictions which have faced 

this issue are divided over whether employers 

of an independent contractor owe to the 

employees of the contractor a nondelegable 

duty of care based on the presence of an 

inherently dangerous activity. Several 

jurisdictions have held that such a 
of state high courts to consider the issue have held that 

employers are not liable to such employees,28 with some even 

overruling prior interpretations of the Restatement.29 A 

majority of our sister circuits also have so ruled when called 

(..continued) 

nondelegable duty is owed to employees of 

independent contractors. The overwhelming 

number of jurisdictions which have resolved 

this issue have found, however, that no duty 

is owed by an owner to employees of an 

independent contractor. 

Tauscher v. Puget Sound Power & Light Co., 635 P.2d 426, 429 

(Wash. 1981) (en banc) (citing numerous cases) (footnotes 

omitted). 

28. See Privette v. Superior Court, 854 P.2d 721, 730-31 (Cal. 

1993) (in banc); Dillard v. Strecker, 877 P.2d 371, 385 (Kan. 

1994); Matteuzzi v. Columbus Partnership, L.P., 866 S.W.2d 128, 

131-32 (Mo. 1993) (en banc) (citing Zueck v. Oppenheimer Gateway 

Properties, Inc., 809 S.W.2d 384, 390 (Mo. 1991) (en banc)); 

Sierra Pac. Power Co. v. Rinehart, 665 P.2d 270, 273 (Nev. 1983); 

Valdez v. Cillessen & Son, Inc., 734 P.2d 1258, 1263 (N.M. 1987) 

(citing New Mexico Elec. Serv. Co. v. Montanez, 551 P.2d 634 

(N.M. 1976)); Tauscher v. Puget Sound Power & Light Co., 635 P.2d 

426, 429-31 (Wash. 1981) (en banc); Wagner v. Continental 

Casualty Co., 421 N.W.2d 835, 841, 844 (Wis. 1988); Stockwell v. 

Parker Drilling Co., 733 P.2d 1029, 1032 (Wyo. 1987) (citing 

Jones v. Chevron U.S.A., Inc., 718 P.2d 890 (Wyo. 1986)); cf.

Rowley v. Mayor of Baltimore, 505 A.2d 494, 503 (Md. 1986); 

Vertentes v. Barletta Co., 466 N.E.2d 500, 502-04 (Mass. 1984); 

Conover v. Northern States Power Co., 313 N.W.2d 397, 404-07 

(Minn. 1981); Whitaker v. Norman, 551 N.E.2d 579, 580 (N.Y. 

1989); Fleck v. ANG Coal Gasification Co., 522 N.W.2d 445, 454 

(N.D. 1994). But see Sievers v. McClure, 746 P.2d 885, 887 n.2 

(Alaska 1987); Elliott v. Public Serv. Co., 517 A.2d 1185, 1188 

(N.H. 1986). 

29. See, e.g., Privette, 854 P.2d at 726, 730 n.4 (overruling a 

line of cases stretching back more than 30 years); Zueck, 809 

S.W.2d at 390. 
upon to resolve the issue in cases under state30 and federal31

law. 

 

30. See, e.g., Scofi v. McKeon Constr. Co., 666 F.2d 170, 172 

(5th Cir. 1982) (Florida law); Anderson v. Marathon Petroleum 

Co., 801 F.2d 936, 940-42 (7th Cir. 1986) (Illinois law); Vagle 

v. Pickands Mather & Co., 611 F.2d 1212, 1217-19 (8th Cir. 1979) 

(Minnesota law), cert. denied, 444 U.S. 1033 (1980); cf. Lipka v. 

United States, 369 F.2d 288, 292-93 (2d Cir. 1966) (New York 

law), cert. denied, 387 U.S. 935 (1967). But see Lindler v. 

District of Columbia, 502 F.2d 495, 499 (D.C. Cir. 1974) 

(District of Columbia law). 

 We have previously noted that at least one jurisdiction 

within this circuit follows the "minority" rule. See Toole v. 

United States, 588 F.2d 403, 407 (3d Cir. 1978) (citing Gonzalez 

v. United States Steel Corp., 374 A.2d 1334, 1339 (Pa. Super. Ct. 

1977)). This result, however, does not bind us here. First, the 

Pennsylvania case we cited as our authority, Gonzalez, was 

appealed to the Pennsylvania Supreme Court, which, in affirming, 

declined to decide this issue. See Gonzalez v. United States 

Steel Corp., 398 A.2d 1378, 1384 n.10 (Pa. 1979) ("U.S. Steel 

argues that Section 410 (and Section 413) do not impose liability 

upon an employer of an independent contractor for injuries 

incurred by employees of the independent contractor. We agree, 

however, with plaintiffs that this contention was not preserved 

for our review."). But see Lorah v. Luppold Roofing Co., 622 

A.2d 1383, 1386 n.2 (Pa. Super. Ct. 1993) ("[I]t is apparent that 

the law in this Commonwealth is that employees of an independent 

contractor are parties under §§ 416 and 427 to whom an obligation 

can flow."). Second, an interpretation of the Restatement by one 

jurisdiction within this circuit does not compel the same 

interpretation for another such jurisdiction. In fact, we 

already have predicted that New Jersey would reject the minority 

rule that Pennsylvania may have adopted. See Merklin v. United 

States, 788 F.2d 172, 176 (3d Cir. 1986) ("New Jersey would 

prohibit the contractor's employees from recovering against the 

employer. The traditional approach holds that the inherently 

dangerous doctrine protects only third parties and not the 

contractor's employees."). 

31. See, e.g., Chavis v. Finnlines, Ltd., O/Y, 576 F.2d 1072, 

1081 (4th Cir. 1978); Hess v. Upper Miss. Towing Corp., 559 F.2d 

1030, 1033-35 (5th Cir. 1977) (citing numerous cases), cert. 

denied, 435 U.S. 924 (1978); Nelson v. United States, 639 F.2d 

469, 474-79 (9th Cir. 1980); Eutsler v. United States, 376 F.2d 

634, 635-37 (10th Cir. 1967); cf. Evans v. Transportacion 
 Most of these courts have not permitted employer 

liability to a contractor's employees for four fundamental 

reasons. First, following the reasoning of the Restatement's 

unadopted Special Note, courts have noted that workers' 

compensation statutes preclude employees from recovering against 

the independent contractor, even though it oversaw and permitted 

the unsafe working conditions, but do not bar suits against the 

contractor's employer. This result appears inequitable, 

particularly when the employer is indirectly paying the cost of 

the workers' compensation premiums: 

 As one court observed, the "principal" 

who hires an independent contractor should be 

subject to no greater liability "than its 

[independent contractor] agent," whose 

exposure for injury to an employee is limited 

to providing workers' compensation insurance. 

Other courts have reasoned that the rule of 

workers' compensation exclusivity, which 

shields an independent contractor who pays 

workers' compensation insurance premiums from 

further liability to its employees for onthe-job injuries, should equally protect the 

property owner who, in hiring the contractor, 

is indirectly paying for the cost of such 

coverage, which the contractor presumably has 

calculated into the contract price. 

Privette, 854 P.2d at 728 (citation omitted).32 

 A second and related reason why courts have barred 

employees from recovering against their employer's employer is 

(..continued) 

Maritime Mexicana S.S. Campeche, 639 F.2d 848, 859 (2d Cir. 

1981). 

32. For additional authority on this point, see Dillard, 877 

P.2d at 385; Zueck, 809 S.W.2d at 390; Fleck, 522 N.W.2d at 451-

52; Tauscher, 635 P.2d at 430-31; Wagner, 421 N.W.2d at 842-43; 

Merklin, 788 F.2d at 176. 
that such liability is not necessary to achieve the original aims 

of the doctrine of peculiar risk. Liability under the doctrine 

is not necessary, in cases of injuries to a contractor's 

employees, because: 

 the workers' compensation system of recovery 

regardless of fault achieves the identical 

purposes that underlie recovery under the 

doctrine of peculiar risk: it ensures 

compensation for injury by providing swift 

and sure compensation to employees for any 

workplace injury; it spreads the risk created 

by the performance of dangerous work to those 

who contract for and thus benefit from such 

work, by including the cost of workers' 

compensation insurance in the price for the 

contracted work; and it encourages industrial 

safety. 

Id. at 730; see also Fleck v. ANG Coal Gasification Co., 522 

N.W.2d 445, 451 (N.D. 1994); Wagner v. Continental Casualty Co., 

421 N.W.2d 835, 842-43 (Wis. 1988). 

 In fact, the third reason cited by courts for 

forbidding employer liability is that such liability may actually 

decrease workplace safety. Most employers probably would have 

little trouble determining those dangers that might be peculiarly 

risky to passers-by uninvolved in a construction project. As the 

Missouri Supreme Court noted, "Common sense permits a landowner 

to identify the potential of harm which an activity may create to 

persons not participating in the activity." Zueck v. Oppenheimer 

Gateway Properties, Inc., 809 S.W.2d 384, 387 (Mo. 1991) (en 

banc). Yet, the risks to a contractor's workers and the 

protections necessary to reduce such risks "are often beyond the 

owner's expertise." Id. Independent contractors are frequently, 
if not usually, hired because the landowner is aware of his own 

lack of expertise and seeks to have the work performed as safely 

and efficiently as possible by hiring those possessing the 

expertise he lacks. 

 If the landowner chooses to avoid the 

additional liability imposed by the 

inherently dangerous exception, he may choose 

to direct his own employees to do the work 

despite his and their lack of expertise. 

That simple choice limits the landowner's 

exposure to that provided under worker's 

compensation. But that choice also increases 

the risk of injury to the employees and to 

innocent third parties. 

Id. at 387-88 (footnote omitted).33 Furthermore, permitting 

employer liability to a contractor's employees also ignores "the 

fact that the economic system permits workers who presume to 

undertake dangerous work to bargain for an enhanced reward for 

assuming the danger." Id. at 390 (footnote omitted); see also

Dillard v. Strecker, 877 P.2d 371, 385 (Kan. 1994). 

 Finally, courts point out that employers need not be 

held liable to employees of an independent contractor under the 

peculiar risk provisions of Chapter 15 of the Restatement because 

other remedies exist besides workers' compensation. A 

contractor's employees, along with other invitees, still have the 

right to sue for certain latent defects on the land, see

Restatement § 343, or for "known or obvious" dangers whose harm 

should have been anticipated, see id. § 343A. Cf. Tauscher v. 

 

33. See also Dillard, 877 P.2d at 385; Fleck, 522 N.W.2d at 452; 

Tauscher, 635 P.2d at 431; Wagner, 421 N.W.2d at 842. 
Puget Sound Power & Light Co., 635 P.2d 426, 430 (Wash. 1981) (en 

banc); Restatement Special Note (unadopted), supra. 
B. 

 We are persuaded by the reasoning of these courts; 

thus, we hold that, under Virgin Islands law, employees of an 

independent contractor are not included within the protected 

class of "others" under the peculiar risk provisions of Chapter 

15 of the Restatement. We acknowledge that a minority of 

jurisdictions have held to the contrary. And we understand the 

concerns expressed by courts in those states, particularly that 

of holding tortfeasors liable for their actions and protecting 

workers on the job.34 But we believe the interpretation chosen 

by the overwhelming majority of jurisdictions is the better rule, 

for the reasons already expressed. 

 We also believe this rule is consistent with the 

policies expressed in the Virgin Islands Workmen's Compensation 

Act, V.I. Code Ann. tit 24, §§ 251-85 (1993). As we have noted, 

this Act, like "other workers compensation legislation, is 

designed to 'provide prompt payment of benefits without regard to 

fault.'" Chinnery v. Government of V.I., 865 F.2d 68, 71 (3d 

Cir. 1989) (citations omitted). But the Act's other fundamental 

 

34. Courts that have held employers liable to such employees 

under section 413 offer a variety of reasons for their decisions. 

A few courts, noting that section 413 is a theory of direct 

liability, find it appropriate to hold employers liable for their 

own acts of negligence. See, e.g. Moloso v. State, 644 P.2d 205, 

214-15 (Alaska 1982). Some courts point out that the Special 

Note to the Restatement, see supra part III.A, was not adopted 

and thus is not entitled to deference. See, e.g., Lindler v. 

District of Columbia, 502 F.2d 495, 498-99 (D.C. Cir. 1974). 

Other courts apparently following the minority view simply seem 

to be adhering to longtime precedent. See, e.g., Bosak v. 

Hutchinson, 375 N.W.2d 333, 338 (Mich. 1985). 
purpose is "to relieve employers and employees of the burden of 

civil litigation." Id. We believe our interpretation of these 

sections of the Restatement furthers the latter purpose of the 

Act without impairing the former purpose. 

 As a final matter, we should clarify that this holding 

extends to actions under the direct liability provision of 

section 413, as well as the vicarious liability provisions of 

sections 416 and 427. The courts for the Virgin Islands have 

attempted to distinguish the two situations,35 but the same 

reasoning applies to both.36 In fact, most courts have cited 

section 413, as well as sections 416 and 427, in holding that 

employers are not liable to a contractor's employees under the 

doctrine of peculiar risk.37 

 

35. See supra note 24. 

36. See, e.g., Matteuzzi v. Columbus Partnership, L.P., 866 

S.W.2d 128, 131 (Mo. 1993) (en banc) ("The same reasons . . . for 

rejecting a claim under § 416 are equally persuasive to reject a 

claim under § 413."); Stockwell v. Parker Drilling Co., 733 P.2d 

1029, 1032 (Wyo. 1987) ("The same logic and reasoning applies to 

§ 413, and we agree that § 413 also does not apply to the 

employee of an independent contractor."). Courts considering the 

issue have explicitly refused to distinguish between these 

Restatement sections just because two are under the vicarious 

liability part of Chapter 15 and the other is under the direct 

liability heading. See Privette v. Superior Court, 854 P.2d 721, 

725 n.2 (Cal. 1993) (in banc); cf. Dillard, 877 P.2d at 378. 

37. See Privette, 854 P.2d at 725-26 & 725 n.2 (citing sections 

413 and 416); Dillard, 877 P.2d at 375-85 (adopting reasoning of 

numerous cases deciding issue under sections 413, 416, and 427); 

Matteuzzi, 866 S.W.2d at 131-32 (citing Zueck v. Oppenheimer 

Gateway Properties, Inc., 809 S.W.2d 384, 386 (Mo. 1991) (en 

banc)) (citing sections 413, 416, and 427); Sierra Pac. Power Co. 

v. Rinehart, 665 P.2d 270, 273 (Nev. 1983) (citing sections 413 

and 416); Valdez v. Cillessen & Son, Inc., 734 P.2d 1258, 1263 

(N.M. 1987) (citing New Mexico Elec. Serv. Co. v. Montanez, 551 

P.2d 634 (N.M. 1976)) (citing sections 413, 416, and 427); 
C. 

 Applying this interpretation of the Restatement and its 

underlying reasoning to the facts of this case, it becomes clear 

why employers should not be held liable to an independent 

contractor's employees under section 413. The contract between 

the parties required Benak to obtain workers' compensation 

insurance; thus, as in the cases already noted, Quality Electric 

was "indirectly" paying for such coverage. 

 Furthermore, instead of using its own employees, who 

may have been unfamiliar with such work, Quality Electric hired 

Benak, a company experienced in working near power lines.38 The 

accident here was tragic; such work, however, might routinely be 

deadly if Quality Electric and other landowners used their own 

inexperienced workers merely to avoid liability to third parties. 

(..continued) 

Tauscher v. Puget Sound Power & Light Co., 635 P.2d 426, 429-30 

(Wash. 1981) (en banc) (citing sections 413, 414, 416, and 427); 

Wagner v. Continental Casualty Co., 421 N.W.2d 835, 841, 844 

(Wis. 1988) (citing sections 413, 416, and 427); Stockwell, 733 

P.2d at 1032 (citing Jones v. Chevron U.S.A., Inc., 718 P.2d 890 

(Wyo. 1986)) (citing sections 413 and 416). 

 Other state high courts have decided that employers are 

not liable to an independent contractor's employees under 

sections 416 and 427, but did not discuss whether the rule 

applies to section 413. See, e.g., Vertentes v. Barletta Co., 

466 N.E.2d 500, 502-04 (Mass. 1984); Conover v. Northern States 

Power Co., 313 N.W.2d 397, 404-07 (Minn. 1981); Fleck v. ANG Coal 

Gasification Co., 522 N.W.2d 445, 454 (N.D. 1994); cf. Rowley v. 

Mayor of Baltimore, 505 A.2d 494, 503 (Md. 1986). 

38. As the district court noted, deposition testimony revealed 

that "Benak Construction had worked on other projects where the 

power lines were in an even closer vicinity than in the instant 

case, and Benak Construction did not consider the situation at 

the Quality Electric site to be a problem." Monk, No. 91-0077, 

slip op. at 10 n.9. 
 We also fail to see what more Quality Electric 

reasonably could have done to increase safety. There is no 

question that officials from Quality Electric and Benak discussed 

the power lines and their dangers. Monk, No. 91-0077, slip op. 

at 8-9. It also is beyond dispute that, after these discussions, 

Benak supervisors contacted WAPA about the power lines and that 

the contract required Benak to assume the responsibility for the 

work site and related safety precautions. Id. at 9. Although 

the power lines traveled over Quality Electric's land, they did 

not service Quality Electric but rather an adjacent property. 

Id. at 3 n.1. And it is clear that Quality Electric officials 

had given control of the site over to the independent contractor 

while they worked in temporary offices nearby. Id. at 7-8. 

Under these circumstances, the contractor, not Quality Electric, 

was in the best position to gauge what measures were necessary to 

protect the workers at the site from danger. 

 IV. 

 Based on the foregoing reasons, we will affirm the 

judgment of the district court.