Meyer v. McKenzie Electric Cooperative, Inc.

Filing 50

ORDER by Chief Judge Daniel L. Hovland granting 21 Motion for Summary Judgment (NH)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NORTH DAKOTA
Nicholas Meyer,

)
)
Plaintiff,
)
ORDER GRANTING MCKENZIE
)
ELECTRIC COOPERATIVE, INC.’S
vs.
)
MOTION FOR SUMMARY
)
JUDGMENT AGAINST PLAINTIFF
McKenzie Electric Cooperative, Inc.,
)
)
Case No. 1:16-cv-365
Defendant and Third-Party )
Plaintiff,
)
)
vs.
)
)
4T Construction, Inc.,
)
)
Third-Party Defendant,
)
______________________________________________________________________________
Before the Court is McKenzie Electric Cooperative, Inc.’s motion for summary judgment
against Plaintiff Nicholas Meyer filed on April 27, 2018. See Docket No. 21. Nicholas Meyer
filed a response in opposition to the motion on June 25, 2018. See Docket No. 40. On July 10,
2018, McKenzie Electric Cooperative, Inc. filed a reply. See Docket No. 44. For the reasons set
forth below, McKenzie Electric Cooperative, Inc.’s motion for summary judgment is granted.

I.

BACKGROUND
This case arises from an accident that occurred on January 20, 2015, near Watford City,

North Dakota. See Docket No. 1, p. 2. At the time of the accident, the Plaintiff, Nicholas Meyer,
was working as an apprentice lineman for 4T Construction, Inc. (“4T Construction”).

4T

Construction, an Idaho corporation, is a power line construction contractor. See Docket Nos. 5
and 10. 4T Construction was contracted by McKenzie Electric Cooperative, Inc. (“McKenzie
Electric”), an electric cooperative, to complete work on the Bear Ben Road Reconductor Project
(“the Project”) which consisted of live power lines on 40-foot poles. See Docket No. 1, p. 2. While
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working on the Project, Meyer was electrocuted and sustained serious burns to his hands, forearms,
and right thigh. As a result of the burns on his hands, Meyer’s left hand was amputated.
On October 17, 2016, Meyer commenced this lawsuit against McKenzie Electric for
negligence and ultrahazardous activity, seeking damages for the injuries he sustained as a result of
the accident. See Docket No. 1. On November 22, 2016, McKenzie Electric filed a third-party
complaint against 4T Construction for contractual indemnification. See Docket No. 5.
On April 27, 2018, McKenzie Electric filed a motion for summary judgment against
Meyer, arguing McKenzie Electric owed no duty to Meyer because 4T Construction was an
independent contractor of McKenzie Electric, and McKenzie Electric retained no control over 4T
Construction’s work. See Docket Nos. 21 and 22. On June 25, 2018, Meyer filed a response in
opposition to the motion. See Docket No. 40. On July 10, 2018, McKenzie Electric filed a reply.
See Docket No. 44.

II.

STANDARD OF REVIEW
Summary judgment is appropriate when the evidence, viewed in a light most favorable to

the non-moving party, indicates no genuine issues of material fact exist and the moving party is
entitled to judgment as a matter of law. Davison v. City of Minneapolis, Minn., 490 F.3d 648, 654
(8th Cir. 2007); Fed. R. Civ. P. 56(a). Summary judgment is not appropriate if there are factual
disputes that may affect the outcome of the case under the applicable substantive law. Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). An issue of material fact is genuine if the
evidence would allow a reasonable jury to return a verdict for the non-moving party. Id.
The Court must inquire whether the evidence presents sufficient disagreement to require
the submission of the case to a jury or if it is so one-sided that one party must prevail as a matter
of law. Diesel Mach., Inc. v. B.R. Lee Indus., Inc., 418 F.3d 820, 832 (8th Cir. 2005). The moving
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party bears the burden of demonstrating an absence of a genuine issue of material fact. Forrest v.
Kraft Foods, Inc., 285 F.3d 688, 691 (8th Cir. 2002). The non-moving party may not rely merely
on allegations or denials; rather, it must set out specific facts showing a genuine issue for trial. Id.

III.

LEGAL DISCUSSION
McKenzie Electric argues it is entitled to summary judgment in its favor. Specifically,

McKenzie Electric argues it owed no duty to Meyer because 4T Construction was an independent
contractor of McKenzie Electric, and McKenzie Electric retained no control over 4T
Construction’s work; thus, it is not liable for 4T Construction’s allegedly negligent actions. See
Docket Nos. 21 and 22. In addition, McKenzie Electric argues Meyer’s claim for ultra hazardous
activity fails as a matter of law because such a claim does not exist under North Dakota law, and
even if it did, the transmission of high-voltage electricity through transmission lines is not an
abnormally dangerous activity. See Docket No. 22.

i. Meyer’s Negligence Claim
In a diversity action, federal courts apply state substantive law; thus, North Dakota law
applies. See White v. Lavigne., 741 F.3d 229, 230 (8th Cir. 1984). “Actionable negligence consists
of a duty on the part of an allegedly negligent party to protect the plaintiff from injury, a failure to
discharge that duty, and a resulting injury proximately caused by the breach of the duty.” Groleau
v. Bjornson Oil Co., Inc., 2004 ND 55, ¶ 6, 676 N.W.2d 763. In order to establish a cause of action
for negligence, the plaintiff must demonstrate that the defendant had a duty to protect the plaintiff
from injury. Id. Generally, the determination of whether a duty exists is a question of law for the
court to decide. Id. “However, if the existence of a duty depends upon the resolution of factual

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issues, the facts must be resolved by the trier of fact.” Id. “If no duty exists on the part of the
defendant, there is no negligence.” Hurt v. Freeland, 1999 ND 12, ¶ 11, 589 N.W.2d 551.
“It is well-established in North Dakota that, as a general rule, an employer is not liable for
the torts of an independent contractor.” Vandewarker v. Continental Res., Inc., No. 4:13-cv00070, 2015 WL 9855894, *3 (D.N.D. Sept. 16, 2015); see also Grewal v. North Dakota Ass’n of
Counties, 2003 ND 156, ¶ 10, 670 N.W.2d 336; Crocker v. Morales-Santana, 2014 ND 182, ¶ 30,
854 N.W.2d 663. However, Section 414 of the Restatement (Second) of Torts recognizes an
exception to that general rule of employer non-liability. See Restatement (Second) of Torts § 414
(1965). Section 414 states:
One who entrusts work to an independent contractor, but who retains the control of
any part of the work, is subject to liability for physical harm to others for whose
safety the employer owes a duty to exercise reasonable care, which is caused by his
failure to exercise his control with reasonable care.
Id. Thus, this exception permits an employer to be subject to liability for its independent
contractor’s acts, if the employer retains sufficient control over the work. Gasal v. CHS Inc., 798
F. Supp. 2d 1007, 1012 (D.N.D. 2011); Grewal, 2003 ND 156 at ¶ 10. “The duty created by
Section 414 may arise through an express contractual provision retaining the right to control some
part of the operative details of the independent contractor’s work, or through the employer’s actual
exercise of retained control of the work.” Grewal, 2003 ND 156 at ¶ 11.
“The liability created by Section 414 arises only when the employer retains the right to
control the method, manner, and operative detail of the work” performed. Iverson v. Bronco
Drilling Co., Inc., 667 F. Supp. 2d 1089, 1094-95 (D.N.D. 2009). “[I]t is not enough that the
employer merely retains the right to inspect the work or to make suggestions which need not be
followed.” Id. (quoting Fleck v. ANG Coal Gasification Co., 522 N.W.2d 445, 448 (N.D. 1994)).
Comments to the Restatement (Second) of Torts § 414 further clarify this concept:

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In order for the rule stated in this Section to apply, the employer must have retained
at least some degree of control over the manner in which the work is done. It is not
enough that he has merely a general right to order the work stopped or resumed, to
inspect its progress or to receive reports, to make suggestions or recommendations
which need not necessarily be followed, or to prescribe alterations and deviations.
Such a general right is usually reserved to employers, but it does not mean that the
contractor is controlled as to his methods of work, or as to operative detail. There
must be such a retention of a right of supervision that the contractor is not entirely
free to do the work in his own way.
Restatement (Second) of Torts § 414 cmt. c (1965). It is clear under North Dakota law that the
determination of whether an exception to the general rule of employer non-liability applies is a
question of law the Court must resolve before allowing the jury to hear the evidence. Schlenk v.
Northwestern Bell Telephone Co., Inc., 329 N.W.2d 605, 608 (N.D. 1983); Iverson, 667 F. Supp.
2d at 1095.
McKenzie Electric asserts it employed 4T Construction as its independent contractor, and
it is not liable for 4T Construction’s alleged torts. In support of its position, McKenzie Electric
points to the plain language of the parties’ contract which explicitly provides as such:
As CONTRACTOR [4T Construction] is an independent contractor performing its
work to the requirements as set out by MEC [McKenzie Electric] but without
supervision of MEC or its employees, CONTRACTOR agrees to hold harmless,
indemnify, and defend MEC as set out in Exhibit “C” attached hereto and made a
part hereof for all services and materials provided by CONTRACTOR for or on
behalf of MEC.
See Docket No. 25-4, p. 2. Meyer’s response argues the contract is ambiguous, it did not
memorialize the parties’ entire agreement, and argues the parties “ostensibly . . . entered into the
Contract without any sincere intent to review, understand, negotiate, and/or actually abide by its
terms, but merely as an ineffective attempt to seem official . . . .” See Docket No. 40, p. 6. The
Court does not find Meyer’s argument to be persuasive. A contract’s language governs its
interpretation if the language is “clear and explicit and does not involve an absurdity.” N.D.C.C.
§ 9-07-02. Here, the contract plainly and unambiguously states 4T Construction is an independent

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contractor that performs its work for McKenzie Electric without the supervision of McKenzie
Electric or its employees. See Docket No. 25-4, p. 2.
Nevertheless, Meyer argues there are disputed factual issues about whether 4T
Construction was “truly” an independent contractor. See Docket No. 40. Thus, this Court must
determine whether McKenzie Electric retained sufficient control over the method, manner, and
operative details of 4T Construction’s day-to-day work to invoke liability under Section 414.
4T Construction president, John Gulley, testified at his deposition that McKenzie Electric
was concerned with the finished product, but did not direct or instruct 4T Construction on how to
do the job. See Docket No. 25-2, pp. 33-34. 4T Construction’s vice president, Lance Wood, also
testified McKenzie Electric did not supervise or give input to 4T Construction except for
scheduling, i.e. when the work needed to be started or completed. See Docket No. 25-10, p. 16.
Jared Dehaven, a journeyman lineman and 4T Construction’s crew foreman on site the day of the
accident, testified 4T Construction would report to McKenzie Electric on how the job is going, but
McKenzie Electric did not oversee 4T Construction’s work or safety program. See Docket No.
25-7, pp. 35, 39-40. McKenzie Electric’s CEO, John Skurupey, testified McKenzie Electric did
not supervise, monitor, or inspect 4T Construction’s work, and McKenzie Electric was concerned
only with the finished product. See Docket No. 25-1, pp. 13, 37. In fact, the Plaintiff testified that
during the entire time he was employed by 4T Construction, he had never met anyone from
McKenzie Electric. See Docket No. 26, p. 46.
The Court finds the record demonstrates 4T Construction was an independent contractor
of McKenzie Electric who was free to perform the work in its own way. McKenzie Electric neither
contractually retained the right to exercise control over the work performed by its independent
contractor (4T Construction), nor did McKenzie Electric exercise actual control over the work
performed by 4T Construction or Meyer. The record clearly reveals that McKenzie Electric
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exercised no actual control over the method, manner, or operative details of the work performed
by 4T Construction or Meyer. 4T Construction was hired as an independent contractor to complete
electrical work on the Project. Meyer was an employee of 4T Construction and was directed by
4T Construction to perform the electrical work requested by McKenzie Electric. McKenzie
Electric did not supervise, direct, or instruct 4T Construction or Meyer on the method, manner, or
operative details of how the work was to be performed. Meyer was free to perform the work as he
saw fit. Consequently, McKenzie Electric is not liable for any of its independent contractor’s
actions or inactions.
Meyer also argues McKenzie Electric owed a duty to Meyer to provide a safe work
environment or equipment. See Docket No. 40. McKenzie Electric argues Meyer cannot
demonstrate that McKenzie Electric had sufficient control over the Project to the extent it owed
Meyer a duty. See Docket No. 22. In support of its position, McKenzie Electric cites to
Vandewarker, 2015 WL 9855894. See Docket No. 22, p. 17.
In Vandewarker, the plaintiff was responsible for emptying and hauling wastewater from
holding tanks at various well sites for Great Western Resources, his employer, who was an
independent contractor of the well site owner, Continental Resources. 2015 WL 9855894 at *1.
The plaintiff asserted he fell while working at Continental’s well site after climbing improperly
attached stairs attached to a holding tank owned by Continental. Id. The plaintiff sued Continental
for negligence and sought “to impose liability on Continental based on Continental’s ownership
of the stairs and storage tanks at the well site.” Id. at *4. This Court summarily dismissed the
plaintiff’s negligence claim, noting:
[T]he Court finds as a matter of law that Continental’s ownership of the tanks or
the stairs at the well site is irrelevant to the issue of Continental’s duty to the
plaintiff. “[M]erely providing equipment is not the kind of control that creates a
duty.” Kristianson v. Flying J Oil & Gas, Inc., 553 N.W.2d 186, 190 (N.D. 1996).
“Instead, ‘a duty arises only if the employer, in addition to providing the equipment,
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also directly supervises or controls its use, or instructs the independent contractor’s
employee on the use of the equipment.’” Id. (internal citations omitted).
Id. Further, this Court found Continental had no special duty to provide a safe work environment
for the plaintiff since Continental retained no direct control over Great Western Resources,
Continental’s independent contractor, at the well site. Id.
In Pechtl v. Conoco, Inc., the North Dakota Supreme Court determined the question of
whether an employer of an independent contractor has a duty to provide a safe workplace is
“governed by [the] resolution of the issue of retained control under Section 414.” 1997 ND 161,
¶ 21, 567 N.W.2d 813. The plaintiff in Pechtl argued Conoco could not shift its duty to provide a
safe workplace to an independent contractor. The North Dakota Supreme Court disagreed, holding
an employee of an independent contractor could not bring a claim against an employer of the
independent contractor for an injury allegedly caused by the employer’s hazardous or dangerous
worksite. Id. at ¶ 22 (citing Fleck, 522 N.W.2d 445).
In this case, Meyer cannot maintain a cause of action against McKenzie Electric for failure
to provide a safe work environment as McKenzie Electric retained no direct control over the
Project. 4T Construction was responsible for its own safety procedures. Meyer, an employee of
4T Construction, was responsible for following 4T Construction’s safety procedures and for his
own safety in performing his job duties. Further, McKenzie Electric was under no duty to “make
specific inquiry as to the work and safety practices of an independent contractor” as this would be
contrary to the principal that an employer has a right to rely on the presumption that its independent
contractors will perform the work in a safe manner. See Schlenk, 329 N.W.2d at 613-614.
Although McKenzie Electric was interested in the safety of all employees of its
independent contractors, “interest in safety at the jobsite, however, does not rise to the level of
control required under Section 414.” Pechtl, 1997 ND 161, ¶ 17. Therefore, the Court finds as a

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matter of law that McKenzie Electric owed no duty to Meyer regarding conditions at the Project,
and it cannot be held liable for injuries sustained by Meyer.

ii. Meyer’s Ultra Hazardous Activity Claim
McKenzie Electric also argues Meyer’s claim for ultra hazardous activity fails as a matter
of law because such a claim does not exist under North Dakota law, and even if it did, the
transmission of high-voltage electricity through transmission lines is not an abnormally dangerous
activity. See Docket No. 22. Meyer’s briefing does not specifically address or respond to
McKenzie Electric’s arguments regarding Meyer’s claim for ultra hazardous activity. See Docket
No. 40.
“It is clear North Dakota has not yet decided whether to adopt a cause of action for strict
liability for ultrahazardous or abnormally dangerous activities.” Mehl v. Canadian Pacific Ry.,
Ltd., 417 F. Supp. 2d 1104, 1118 (D.N.D. 2006); see also Lowder v. Slawson Exploration Co.,
Inc., No. 4:14-cv-17, 2014 WL 4352182, *2 (D.N.D. Sept. 2, 2014) (refusing to certify question
of whether strict liability for extra-hazardous activity existed in North Dakota, but noting “[t]his
court . . . has rejected causes of action based on strict liability for extra-hazardous activity.”);
Armes v. Petro-Hunt, LLC, No. 4:10-cv-078, 2012 WL 1493740, * 3 (D.N.D. April 27, 2012)
(noting the “North Dakota Supreme Court has yet to recognize a claim premised on abnormally
dangerous activities.”). Further, this Court has noted, “[t]he North Dakota Supreme Court has
given no indication that it would adopt strict liability for ultrahazardous or abnormally dangerous
activities . . . .” Mehl, 417 F. Supp. 2d at 1118.
In Wirth v. Mayrath Industries, Inc., the plaintiff’s husband was electrocuted and
subsequently died after his grain auger came in contact with the phase wire of an electrically
charged power line. 278 N.W.2d 789, 790 (N.D. 1979). The Plaintiff commenced a wrongful
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death action against the local electric cooperative that owned the power line. Id. The Plaintiff
argued strict liability for abnormally dangerous activities as specified in the Restatement (Second)
of Torts §§ 519 and 520 should apply to the electric cooperative due to its activity of maintaining
electrically charged power lines. Id. at 790-91. The North Dakota Supreme Court, while not
specifically adopting or rejecting the Restatement test, concluded the provisions in the Restatement
(Second) of Torts §§ 519 and 520 were “inapplicable” to the case. Id. at 794. Further, the North
Dakota Supreme Court noted that the question of whether the maintenance of an uninsulated high
voltage transmission line constitutes an “abnormally dangerous activity” is a matter “appropriate
only for legislative consideration.” Id. at 792-93.
This Court has previously rejected causes of action based on strict liability for extrahazardous activity as North Dakota has not yet decided whether to adopt a cause of action for strict
liability for ultrahazardous or abnormally dangerous activities. The Plaintiff has failed to point to
any controlling authority to support its claim for “ultra hazardous activity” or to even meaningfully
respond to McKenzie Electric’s arguments regarding this claim. Accordingly, the Court finds
McKenzie Electric is entitled to summary judgment in its favor on this claim.

IV.

CONCLUSION
The Court has carefully reviewed the entire record, the parties’ briefs, and relevant case

law. For the reasons set forth above, McKenzie Electric’s motion for summary judgment against
the Plaintiff (Docket No. 21) is GRANTED.
IT IS SO ORDERED.
Dated this 1st day of October, 2018.
/s/ Daniel L. Hovland
Daniel L. Hovland, Chief Judge
United States District Court
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