United States District Court, D. North Dakota
ORDER GRANTING MCKENZIE ELECTRIC COOPERATIVE,
INC.'S MOTION FOR SUMMARY JUDGMENT AGAINST
L. HOVLAND, CHIEF JUDGE UNITED STATES
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
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.
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.
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.
STANDARD OF REVIEW
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.
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
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.
Meyer's Negligence Claim
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.
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 ...