LаDonna ANDERSON as Executor of the Estate of Donald Anderson, Plaintiff-Appellant, v. MARATHON PETROLEUM COMPANY, f/k/a Marathon Oil Company, Defendant-Appellee
No. 85-3016
United States Court of Appeals, Seventh Circuit
September 16, 1986
801 F.2d 936
Argued May 29, 1986.
In sum the record before us is inconclusive on the issue whether the discussions between Dow and the Secretary afforded Dow actual notice of the incidents it would have to address at the hearing. We have neither a transcript of, nor affidavits relating to, the contents of these discussions. In addition, as we noted above, the testimony concerning the discussions is ambiguous. The Secretаry has the burden of establishing fair notice, whether formal or actual. There is simply no record from which we can say whether the burden has been satisfied.
III
For the reasons stated above, we GRANT Dow‘s petition for review, DENY the Secretary‘s, and REMAND to the Commission with instructions to REMAND to the ALJ for a determination, consistent with this opinion, whether Dow was afforded fair notice of the charges against it. Each party is to bear its own costs on appeal.
SO ORDERED.
CUDAHY, Circuit Judge, concurring:
Although I think it was more than likely that, from various ancillary sources suggested in the majority opinion, Dow had actual notice of the cases with which the Secretary was concerned, I have no real objection to remand to determine whether the apparent lack of formal notice in the citation or in the complaint was prejudicial. The Secretary should not be encouraged to become slipshod in what may be important matters of procedure. I have the impression here that at times both sides were playing games, but certainly that can be clarified on remand.
I assume that, if the notice question is resolved in the Secretary‘s favor, he may raise again the question of sufficiency of the evidence to support the ALJ‘s determination that eleven of the incidents ques
These alleged recordkeeping violations are not trivial. I should think that adherence to the Secretary‘s recordkeeping prescriptions is central to the purposes of OSHA, and it is important that administrative and judicial enforcement procedures not become so cumbersome that the recordkeeping requirements become a dead letter.
Robеrt Brown, Ronald Tulin, Ltd., Charleston, Ill., for plaintiff-appellant.
Gary E. Snodgrass, Brown James & Rabbitt, P.C., St. Louis, Mo., for defendant-appellee.
Before BAUER and POSNER, Circuit Judges, and SWYGERT, Senior Circuit Judge.
POSNER, Circuit Judge.
This diversity personal-injury suit pits two residents of Illinois (Donald Anderson, who died while the case was on appeal, and his widow) against a nonresident corporation, Marathon Petroleum Compa
Anderson was an employee of Tri-Kote, Inc., which had a contract with Marathon to clean the inside of Marathon‘s oil storage tanks by sandblasting. The evidence, viewed most favorably to the Andersons, shows that sandblasting in a confined space creates clouds of silicon dust, which if breathed in over a long period of time cause silicosis, a serious lung disease from which, in fact, Anderson died. Anderson had begun working for Tri-Kote in 1970 as a sandblaster, mostly on the Marathon contract, and quit in 1983 when he was diagnosed as suffering from silicosis. During this period he averaged three or fоur days a week sandblasting Marathon storage tanks. Until 1980 the only form of mask that Tri-Kote supplied Anderson to protect him from silicon dust was a so-called “desert hood.” It had no fresh-air hose but only a wire mesh in front of the nose and mouth, and the dust could get in through the mesh. Supervisory personnel of Marathon often saw Anderson coming out of a storage tank with dust on his face after sandblasting and they knew that Tri-Kote had supplied him with just the patently inadequate “desert hood.” Yet Marathon did nothing to try to get Tri-Kote to proteсt its workers better. The two employees of Tri-Kote who sandblasted Marathon‘s storage tanks before Anderson came on the scene also died of silicosis.
The issue is the tort duty of a principal to the employees of his independent contractor. The duty could be vicarious or direct: vicarious if the principal is not himself at fault in the accident to the employee, direct if he is. Mrs. Anderson makes both sorts of claim, though her emphasis is on the former, and that is the one we shall discuss first. The district judge rejected both claims, and our practice is to give some deference to determinations of the law of a state by a district judge sitting in that state. Enis v. Continental Illinois Nat‘l Bank & Trust Co., 795 F.2d 39, 40 (7th Cir. 1986).
Generally a principal is not liable for an independent contractor‘s torts even if they are committed in the performance of the contract and even though a principal is liable under the doctrine of respondeat superior for the torts of his employees if committed in the furtherance of their employment. See, e.g., Gomien v. Wear-Ever Aluminum, Inc., 50 Ill. 2d 19, 21, 276 N.E.2d 336, 338 (1971); Kouba v. East Joliet Bank, 135 Ill. App. 3d 264, 267, 89 Ill. Dec. 774, 777, 481 N.E.2d 325, 328 (1985). Thе reason for distinguishing the independent contractor from the employee is that, by definition of the relationship between a principal and an independent contractor, the principal does not supervise the details of the independent contractor‘s work and therefore is not in a good position to prevent negligent performance, whereas the essence of the contractual relationship known as employment is that the employee surrenders to the employеr the right to direct the details of his work, in exchange for receiving a wage. The independent contractor commits himself to providing a specified output, and the principal monitors the contractor‘s performance not by monitoring inputs—i.e., supervising the contractor—but by inspecting the contractually specified output to make sure it conforms to the specifications. This method of monitoring works fine if it is feasible for the principal to specify and monitor output, but sometimes it is not feasible, particularly if the output consists of the joint product of many separate producers whose specific contributions are difficult (sometimes impossible) to disentangle. In such a case it may be more efficient for the principal to monitor inputs rather than output—the producers rather than the product. By becoming an employee a producer in effect submits himself to that kind of monitoring, receiving payment for the work he puts in rather than for the output he produces.
Since an essential element of the employment relationship is thus the employer‘s monitoring of the employee‘s work, a prin
The rule is not applied, however, when the activity for which the independent contractor was hired is “abnormally dangerous,” see
True, the principal would in any event be liable indirectly if the price it paid the independent contractor fully reflected the dangers of the undertaking; but this condition would be fulfilled only if the contractor were fully answerable for an accident if one occurred. And though fully liable in law, the independent contractor would not be fully liable in fact if a damage judgment would exceed his net assets. The likelihood of the independent contractor‘s insolvency is greater the more hazardous the activity; by definition, expected accident costs are greater. Another thing making them greater is that the contractor will be strictly liable for accidents caused by the abnormally dangerous character of his activity, see
Is sandblasting abnormally dangerous? A district judge in Louisiana, in the only case we have found on the question, held not. Touchstone v. G.B.Q. Corp., 596 F. Supp. 805, 815 (E.D. La. 1984). In the absence of any precedent establishing the
Mrs. Anderson presses on us cases which suggest that something lеss than abnormal danger may be enough to take a case out of the rule that a principal is not liable for the torts of its independent contractors. An example is Johnson v. Central Tile & Terrazzo Co., 59 Ill. App. 2d 262, 276-77, 207 N.E.2d 160, 167 (1965), which says that “if one employs another to do work which he should recognize as involving some peculiar risk to others unless special precautions are taken, the one doing the employing will remain liable if harm results because these precautions are not taken,” even though the person “employed” is actually an indеpendent contractor. See also Donovan v. Raschke, 106 Ill. App. 2d 366, 370, 246 N.E.2d 110, 113 (1969); 5 Harper, James & Gray, The Law of Torts § 26.11, at pp. 88-89 (2d ed. 1986). The words “peculiar risk” bring to mind
The distinction between an abnormal risk on the one hand and a peculiar or inherent risk on the other hand is easiest to understand in situations where the activity, though not always or generally hazardous, is so in the particular case. Thus in Donohue v. George W. Stiles Construction Co., 214 Ill. App. 82, 89-91 (1919), discussed and distinguished in Johnson, the prime contractor hired a subcontractor to do structural steel repair work in a post office, right over the heads of the postal employees—and sure enough, one of them was injured. The present case is dissimilar. And even if the present case is within the “peculiar risk” or “inherent danger” exception as recognized by the Illinois cases, Mrs. Anderson must lose. With rare exceptions, some based on statutes such as the omnipresent scaffolding acts (see, e.g.,
There is a reason for the distinction between the plaintiff who is an employee of the independent contractor and the plaintiff who is not. If a nuclear reactor blows up and thousands of people are irradiated, we would not allow the reactor company to slough off all liability for the accident onto a careless independent contractor, who, not having the resources to compensate the victims of his tort, had lacked adequate incentives to take care. Similarly, we would not want Marathon to be able to avoid liability to its neighbors caused by its hiring contractors, who turn out to be careless, to perform abnormally dangerous jobs. But the only people endangered in this case were the contractor‘s employees; and they are compensated for the risks of their employment by a combination of wages, benefits, and entitlement to workers’ compensation in the event of an accident. The principal pays for the package indirectly, in the contract price, which is calculated to cover the contractor‘s labor as well as other costs. Moreover, as we shall see, if the contractor does not carry workers’ compensation insurance and proves unable to pay benefits out of its own pocket, the principal must pay the benefits. The principal thus has every incentive to assure safe working conditions in order to reduce its contract costs and its contingent liability for workers’ compensаtion; so there is no danger of the shell game that is played when the firm causing the accident is insolvent and its principal is not liable because the tortfeasor was an independent contractor rather than an employee.
Since the principal is the indirect employer of its contractor‘s employees, to make the principal liable in common law tort for the accidents befalling those employees would be inconsistent with the bedrock principle that workers’ compensation rights are exclusive of common law tort rights. It is true that workers are allowed to maintain product liability suits against the suppliers of machines that injure them on the job, thereby bypassing in an economic if not legal sense the exclusivity of workers’ compensation rights. See, e.g., Dukes v. J.I. Case Co., 137 Ill. App. 3d 562, 91 Ill. Dec. 710, 483 N.E.2d 1345 (1985). But the supplier of a machine is not an indirect employer of the workers who man the machine; the employer‘s principal is.
Mrs. Anderson presses on us the Illinois Supreme Court‘s decision in Chicago Economic Fuel Gas Co. v. Myers, 168 Ill. 139, 146, 48 N.E. 66, 68 (1897), which applied in favor of an employee of the independent contractor an “intrinsically dangerous” exception to the rule that a principal is not liable for its independent contractor‘s torts. But the case was decided before the first workmen‘s compensation law was enacted in Illinois and is in any event distinguishable from the present case because the “independent” contractor was an alter ego of the principal, cf. Northern Indiana Public Service Co. v. Carbon County Coal Co., 799 F.2d 265, 271 (7th Cir. 1986).
The position urged by Mrs. Anderson would bring about profound changes in liability for industrial accidents. Firms engaged in activities that are dangerous if proper precautions are not taken (and which activity is not?) would become the virtual insurers of their contractors’ employees. Indeed, imagine a case where a homeowner hired a contractor to fix the roof, and one of his workers fell off the roof and was injured. The risk of falling would be in some sense inherent in or peculiar to the work; could the worker therefore sue the hоmeowner? That would be a revolution in liability. Even if the principal‘s vicarious liability to its independent contractors’ employees were confined to firms, there would be (besides the problems already discussed) the problem of reconciling such liability with the provision of Illinois workmen‘s compensation law that any firm which engages in “extra hazardous” activities, including “maintaining ... any structure” (which would appear to cover
Up to now we have treated the case as one in which the principal is alleged to be vicariously liable for its contractors’ torts, but Mrs. Anderson also argues that there was enough evidence of Marathon‘s negligence to make the directed verdict improper even if Tri-Kote‘s negligence cannot be imputed to Marathon. Supervisory employees of Marathon testified that on occasion they had seen Mr. Anderson coming out of the storage tanks with dust on his face, and they knew he did not have an adequate mask. Even so, this does not show that Marathon was negligent in hiring Tri-Kote initially; so this conventional avenue of principal‘s liability, see, e.g., Gomien v. Wear-Ever Aluminum, Inc., supra, 50 Ill. 2d at 21, 276 N.E.2d at 338;
But suppose that a principal, having hired an independent contractor after a careful investigation which showed that the contractor was careful and responsible, discovers that he is careless yet takes no steps to correct his unsafe practices or terminate him; can the victim of the contractor‘s carelessness get damages from the principal? We assume the answer is “yes” if the victim is a third party, but Mrs. Anderson has cited no case in which an Illinois court has allowed an employee of thе independent contractor to recover damages on this basis. The majority view is that he may not. See Eutsler v. United States, 376 F.2d 634 (10th Cir. 1967); Hess v. Upper Mississippi Towing Corp., 559 F.2d 1030, 1033-34 (5th Cir. 1977); Futo v. Lykes Bros. S.S. Co., 742 F.2d 209, 214 (5th Cir. 1984). Again the reason is that the employee is protected by his workers’ compensation rights; again there is a division of authority (see the comprehensive discussion in Nelson v. United States, 639 F.2d 469 (9th Cir. 1980)); again we have no reason to think that Illinois would adopt the minority view. It might; but federal court is not the place to press innovative theories of state law. This precept is particularly apropos in a case such as this where residents file suit in federal court against a nonresident defendant. The choice of the federal forum in such a case cannot be laid to fear of prejudice against a nonresident. The plaintiff is not the nonresident—the defendant is. (It would be different if the Andersons had filed this suit in state court and Marathon had removed it to federal court.) The plaintiffs’ appellate counsel could not remember why this suit was brought in federal rather than state court, so we take this occasion to remind that resident litigants who seеk adventurous departures in state common law are advised to sue in state rather than federal court.
AFFIRMED.
SWYGERT, Senior Circuit Judge, dissenting.
The majority‘s cost/benefit analysis does not provide an adequate basis for rejecting the holding in Chicago Economic Fuel Gas Co. v. Myers, 168 Ill. 139, 146, 48 N.E. 66, 68-69 (1897), in which the Illinois Supreme Court held that employers of independent contractors owe a nondelegable duty to the contractor‘s employees when those employees are involved in inherently dangerous work or work which carries with it a peculiar risk of injury. Although the majority is correct that Myers involved a finding of alter ego, that finding was merely an alternative holding to the one set forth above and therefore does not undermine its validi
Given this, we ought to think very carefully before rejecting Myers out of hand. This is particularly true since another district court sitting in Illinois found, although admittedly without much explanation, that under Illinois law the employer‘s nondelegable duty runs to the contractor‘s employees. See Fried v. United States, 579 F. Supp. 1212, 1216 (N.D. Ill. 1983). Moreover, application of Myers only gives the plaintiff a cause of action. It does not subject Marathon to automatic liability. The jury must first determine that the sandblasting involved here was “inherently dangerous” and that Marathon breached its nondelegable duty before Marathon will be held liable. Thus, the majority‘s dire prediction that homeowners will be subject to unlimited liability is highly unlikely to come true since juries are unlikely to find that routine household maintenance is an inherently hazardous activity.
Thus, the question becomes whether sandblasting is “peculiarly or inherently dangerous.” In Illinois the question whether an instrumentality or conduct is inherently or peculiarly dangerous is not answered by looking solely at its inherent nature, but also at the manner of its particular use at the time and place of the occurrence. See Donovan v. Raschke, 106 Ill. App. 2d 366, 370, 246 N.E.2d 110, 113 (1st Dist. 1969); Snow v. Judy, 96 Ill. App. 2d 420, 423, 239 N.E.2d 327 (4th Dist. 1968); Johnson v. Central Tile & Terrazzo Co., 59 Ill. App. 2d 262, 276-77, 207 N.E.2d 160, 167 (1965). At trial the plаintiffs presented the following expert testimony. Their medical expert testified that
silica in the lungs is a toxic poison, and that in an area of really intense exposure, where there is not good ventilation, where the particle concentration is extremely high, the only acceptable kind of prevention is an external air source used throughout the procedure with a tight fitting hood [and] external oxygen source or backpack oxygen ... [where the concentration of silica particlеs is intense], you have to use more and more rigorous methods to protect against exposure.
In this case, there was also additional evidence that Anderson sandblasted three to four times a week in tanks no more than twelve feet in diameter and fifteen feet high, using approximately 2000-2500 pounds of sand, and that Anderson used only a tarpaulin head covering with no fresh air supply. In Illinois, the question of whether an activity is inherently or peculiarly dangerous is one for a jury, see, e.g., Snow, 96 Ill. App. 2d at 423-24, 239 N.E.2d at 329-30, and the Andersons certainly presented sufficient evidence to reach the jury on this issue.
Thus, because I agree with the majority that there was insufficient evidence of Marathon‘s negligent retention of the independent contractor, the order of the district court directing a verdict in favor of Marathon on the issue of its alleged breach of its nondelegable duty should be reversed and the cause remanded for a new trial.