UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

C. N. MCLEAN; LINDA MCLEAN,

Plaintiffs-Appellants,

v.

FEDERAL STREET CONSTRUCTION

COMPANY, INCORPORATED,

Defendant-Appellee,

and

No. 94-2093

POLING AND BACON CONSTRUCTION

COMPANY, INCORPORATED; ANKER

ENERGY CORPORATION; MORGANTOWN

ENERGY ASSOCIATES; MIDATLANTIC

ENERGY COMPANY; DOMINION COGEN

WV, INCORPORATED; HICKORY POWER

CORPORATION,

Defendants.

Appeal from the United States District Court

for the Northern District of West Virginia, at Elkins.

Robert E. Maxwell, District Judge.

(CA-92-115-C)

Argued: April 6, 1995

Decided: February 12, 1996

Before RUSSELL and WIDENER, Circuit Judges, and

CHAPMAN, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Jeffrey Vernon Mehalic, SEGAL & DAVIS, L.C.,

Charleston, West Virginia, for Appellants. Boyd Lee Warner,

WATERS, WARNER & HARRIS, Clarksburg, West Virginia, for

Appellee. ON BRIEF: Scott S. Segal, SEGAL & DAVIS, L.C.,

Charleston, West Virginia, for Appellants. Thomas G. Dyer,

WATERS, WARNER & HARRIS, Clarksburg, West Virginia, for

Appellee.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

Appellants C.N. and Linda McLean (plaintiffs)1 appeal from a

summary judgment in favor of defendant Federal Street Construction

Company in an action arising from an injury sustained by McLean in

November 1990 in Morgantown, West Virginia while he was operating a bulldozer in the course of his employment on a pipeline construction project. For the reasons stated below, we affirm the grant of

summary judgment to Federal Street.

Briefly, the facts of this case are as follows. McLean was employed

by Poling & Bacon, a subcontractor of Federal Street on the Steam

Line Transmission Project, which was owned by Morgantown Energy

Associates. While operating a bulldozer on a hillside, McLean's seat

gave out, his foot fell off the machine's brake, and the machine slid,

rolled or fell backward down the hillside. McLean jumped from the

machine and was injured. Prior to the incident, there had been complaints to Poling & Bacon about defects in the bulldozer's seat and

brakes.

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1 The injury was suffered by C.N. McLean. Mrs. McLean's claims are

for loss of consortium and thus derivative.

 2
The McLeans sued Poling & Bacon, Federal Street, and Morgantown Energy, among others, in a West Virginia state court. They

argued that Federal Street, as general contractor, had a duty to provide

McLean with a safe workplace which it breached by failing to correct

a defect in the bulldozer, causing his injury. The defendants removed,

Morgantown Energy was dismissed, and the district court granted

summary judgment in favor of Poling & Bacon and Federal Street on

July 21, 1994. The McLeans' appeal of the Poling & Bacon judgment

has been dismissed.2

Under West Virginia law, a general contractor has a duty to provide its subcontractors' employees with a reasonably safe working

environment. See Hall v. Nello Teer Co., 203 S.E.2d 145, 149 (W.

Va. 1974). However, the district court did not err in finding that plaintiffs provided no evidence that Federal Street breached this duty. Poling & Bacon, not Federal Street, owned, supplied, and maintained the

bulldozer. Plaintiffs do not dispute that Federal Street had no knowledge of the bulldozer's defective condition, and offer no evidence that

Federal Street was otherwise negligent in supervising Poling &

Bacon's operations or in providing plaintiff with a reasonably safe

working environment.

Instead, plaintiffs' principal argument is that they seek to attribute

Poling & Bacon's negligence to Federal Street with respect to the

alleged defects, on the basis of a contract between Poling & Bacon

and Federal Street which plaintiff claims gives Federal Street significant control over, and responsibility for, the safety of the workplace

under the statements in Pasquale v. Ohio Power Co., 418 S.E.2d 738

(W. Va. 1992). Plaintiffs contend that this contract establishes that

Federal Street either was obligated to discover the defect in Poling &

Bacon's bulldozer or was charged with Poling & Bacon's knowledge

of that defect.

However, the contract at issue imposes primary liability for the

safety of Poling & Bacon's employees on Poling & Bacon. Plaintiffs

have presented no evidence that Federal Street exercised any signifi-

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2 That claim was similar to that in Mandolidas v. Elkins Industries, Inc.,

246 S.E.2d 907 (W. Va. 1978), and was resolved by the district court by

summary judgment in favor of Poling & Bacon.

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cant control over the safety of Poling & Bacon's operations, nor have

they in any event suggested how Federal Street was negligent in

supervising the safety of Poling & Bacon's operations.

In fact, the contract between Poling & Bacon and Federal Street

states that Poling & Bacon "understands and agrees that neither Contractor nor Architect will make continuous or exhaustive inspections

to assure Subcontractor's compliance with applicable safety rules,

regulations or requirements." Absent any evidence of actual control

over the safety of Poling & Bacon's operations, we think it plain that

this contractual provision would not support a finding that Federal

Street retained by contract any significant control over the safety of

those operations.

Thus, we agree with the district court that plaintiff seeks to impose

absolute or vicarious liability on a contractor for the negligence of its

subcontractors in a case in which the contractor-subcontractor contract does not impose significant liability on the contractor for the

safety of the subcontractor's operations. This position is not well

taken. The plaintiffs have presented us with no West Virginia case

that supports this position, and we have found none. Plaintiffs had the

burden of showing that Federal Street was itself negligent in failing

to provide Poling & Bacon's employees with a reasonably safe working environment, and they have simply failed to meet that burden. We

thus find that the Poling & Bacon-Federal Street contract imposed no

liability on Federal Street for the negligence of Poling & Bacon.

Finally, plaintiff argues that a contract between Federal Street and

Morgantown Energy Associates, the owner of the Project, imposes

liability on Federal Street for the conduct of subcontractors. This

argument is meritless. The Morgantown Energy contract merely

establishes that as between Federal Street and Morgantown Energy,

Federal Street will indemnify and hold Morgantown Energy harmless

for certain acts or omissions of Federal Street or a subcontractor for

which Morgantown Energy was liable. It does not establish Federal

Street's liability for the negligence of subcontractors.

In sum, the district court was correct in concluding that plaintiff

produced no evidence that Federal Street knew of the defect in the

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bulldozer or was negligent in supervising Poling & Bacon's operations.

The judgment of the district court is accordingly

AFFIRMED.

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