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Meyer v. McKenzie Electric Cooperative, Inc.

United States District Court, D. North Dakota

October 1, 2018

Nicholas Meyer, Plaintiff,
v.
McKenzie Electric Cooperative, Inc., Defendant and Third-Party Plaintiff,
v.
4T Construction, Inc., Third-Party Defendant,

          ORDER GRANTING MCKENZIE ELECTRIC COOPERATIVE, INC.'S MOTION FOR SUMMARY JUDGMENT AGAINST PLAINTIFF

          DANIEL L. HOVLAND, CHIEF JUDGE UNITED STATES

         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 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 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 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-cv-00070, 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 ...


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