# Kathy Thomas, Personal Representative of the Estate of Martin Duane Thomas, Deceased v. Tennessee Valley Authority

> Court of Appeals for the Sixth Circuit · August 2, 1985 · 769 F.2d 367

URL: https://www.frixlaw.com/law-library/cases/9473822

## Case

- **Full name:** Kathy THOMAS, Personal Representative of the Estate of Martin Duane Thomas, Deceased, Plaintiff-Appellant, v. TENNESSEE VALLEY AUTHORITY, Defendant-Appellee
- **Court:** Court of Appeals for the Sixth Circuit
- **Decided:** August 2, 1985
- **Citations:** 769 F.2d 367; 1985 U.S. App. LEXIS 21062
- **Precedential status:** Published
- **Opinion:** Concurrence by Wellford
- **Judges:** Merritt, Wellford, Edwards
- **Cited by:** 5 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

WELLFORD, Circuit Judge,
concurring:
I believe that the only proper basis for jurisdiction in this case was based upon a federal question, not diversity, for the reasons and on the basis of the authority herein indicated. If this were properly deemed a diversity case, however, I am in substantial agreement with Judge Edwards’ conclusions set out in his opinion.
First, if the rules of diversity applied in this case, Kentucky law would be applicable. Erie Railroad v. Thompkins, 304 U.S. 64 , 58 S.Ct. 817 , 82 L.Ed. 1188 (1938). *372 I agree further that TVA exercised reasonable care under the circumstances. TVA’s instructions given to the independent contractor, Jones, constituted a reasonable response to the hazard discovered prior to the plaintiff’s distressing accident. TVA, indeed, had no basis for foreseeing that Jones would disregard its instructions, and, I believe, it neither had nor assumed a responsibility to Jones’ employees under the contractual arrangement or otherwise for Jones’ safety oversights. Accordingly, I am also in agreement with Judge Edwards’ rationale that, to the extent Restatement of Torts, Second, § 324A is relevant here, basic principles of tort liability would not render TVA liable to Thomas. Furthermore, Haddad v. Louisville Gas & Electric Co., 449 S.W.2d 916 (Ky.Ct.App. 1970), provides no support for appellant’s claims of liability against TVA under the circumstances.
I write further to set out my views on the basis of jurisdiction and on the importance of the contractual provisions in this case.
Whether the basis for jurisdiction is questioned previously or on appeal, determination of proper jurisdiction must first be decided by a federal court. We approved such a determination in an earlier case involving TVA. See Jackson v. Tennessee Valley Authority, 462 F.Supp. 45, 49-55 (M.D.Tenn.1978), aff'd, 595 F.2d 1120, 1121 (6th Cir.1979). See also Monsanto Co. v. Tennessee Valley Authority, 448 F.Supp. 648, 650 (N.D.Ala.1978). These cases hold that the question of TVA liability is a federal question.
I believe that the issue before this court must be precisely understood. There should be no question that Jones Construction Co. would ordinarily be the party possessing the exclusive duty of care toward its own employees in fulfilling its end of a contractual bargain with another party. There is also no doubt that Jones Construction Co. was proximately responsible for this tragic accident involving its employee. Thus the only issue here is whether TVA’s actions represented assumption under the contract of a special duty of care toward the deceased and his co-employees.
The pertinent facts of the contract between Thomas’ employer, J.A. Jones Construction Company (“Jones”), and TVA are set out in Judge Edwards’ opinion. I would emphasize the following language specifically applicable to the circumstances of this case:
The Contractor [Jones] shall be an independent Contractor for all purposes in this contract, and all persons engaged in carrying out any of the Contractor’s obligations shall be the servants of the Contractor ... not ... TVA.
The Contractor shall be responsible for enforcing regulations in accordance with the American National Standards Institute and other recognized national codes____ Any work attempted to be made or actually accomplished in violation of any existing applicable law ... or approved safety practice shall be the Contractor’s sole responsibility.
The Contractor shall cooperate fully with TVA’s safety representatives____
(Emphasis added).
The contract language is unambiguous and precise that Jones is solely responsible for safety practices and violations of safety standards. TVA had every right to rely upon Jones’ cooperation with TVA’s representatives when, as, and if the latter discovered what was considered to be a safety problem. This court, moreover, in Feyers v. United States, 749 F.2d 1222, 1226 (6th Cir.1984), has recently held that the government is not liable in tort to a third party employee for any alleged failure by the government regarding inspection and provision of safety training in a railyard where a contractor-operator had been delegated safety responsibility. Feyers relied in part on United States v. U.S.A. Empresa de Viacao Aerea Rio Grandense, — U.S. —, 104 S.Ct. 2755 , 81 L.Ed.2d 660 (1984), wherein the Federal Aviation Commission was held not liable for an alleged failure to inspect adequately certain aspects of aircraft design resulting in alleged injury to a third party. Even more recent *373 ly a panel of this court addressed a plaintiffs argument “that the T.V.A. and its employees had a duty to insure plaintiffs safety as an employee of an independent contractor,” and affirmed a Tennessee district court’s decision that, as a matter of law, plaintiff could not recover from TVA for its alleged breach of “duty to inspect the site for safety hazards.” Marsh v. Tennessee Valley Authority, 765 F.2d 145 (6th Cir.1985). This court also held to the same effect on the question of a governmental entity’s liability for alleged failure to inspect for building code violations resulting in injury to purchaser of a building. See Texaus Investment Corp., N.V. v. Haendiges, 761 F.2d 252 (6th Cir.1985) (no municipal liability due to lack of specific duty).
The agreement between TVA and Jones was clear as a matter of law that TVA did not assume a duty for safety violations on the project, for which Jones was solely responsible. I see no difference between the plaintiff’s claim here that TVA was negligent with respect to a safety inspection at the jobsite under a contract, and the claims in other cases of negligent failure to inspect.
This court as well as other circuits have interpreted such contractual language as reserving “ ‘the right, but not the duty’ [of the government] to inspect the work and the contractor’s equipment.” Grogan v. United States, 341 F.2d 39, 43 (6th Cir.1965), affirming and quoting language of the district court opinion in 225 F.Supp. 821, 826 (W.D.Ken.1963); See, e.g., Cannon v. United States, 328 F.2d 763, 765 (7th Cir.1964); Kirk v. United States, 270 F.2d 110, 117 (9th Cir.1959); see also Harris v. Pettibone, 488 F.Supp. 1129, 1136 (E.D.Tenn.1980); Musgrave v. Tennessee Valley Authority, 391 F.Supp. 1330, 1332 (M.D.Ala.1975); Rogers v. Tennessee Valley Authority, No. 1-76-320 (E.D.Tenn. March 3, 1977) (citing and following Grogan on contractual reservation of right but no assumption of duty).
Whether there is a duty owed by TVA to a plaintiff for alleged negligence is a question of law, and was properly decided as a matter of summary judgment by the district court. Dollar v. Haralson County, Georgia, 704 F.2d 1540, 1543 (11th Cir.), cert. denied, — U.S. ——, 104 S.Ct. 399 , 78 L.Ed.2d 341 (1983); Stratioti v. Bick, 704 F.2d 1052 , 1054 (8th Cir.1983); W. Prosser, Handbook of the Law of Torts § 37 at 206 (4th ed. 1971); 57 Am.Jur.2d “Negligence” § 36 at 384 (1971). The record in this case reflects that TVA had not inspected the guard rails at the particular locale where Thomas fell. Thomas does not even claim that TVA negligently failed to warn about a safety condition of which it had particular knowledge at the specific place of the accident. Cf. Lowe v. United States, 466 F.Supp. 895, 897 (M.D.Fla.1979), affd, 611 F.2d 76 (5th Cir.1980). Appellant also concedes in her brief that “decedent did not perform work that was inherently dangerous.”
There was simply no basis for Thomas to rely upon TVA under the circumstances, for safety requirements on the project. There was no legal duty imposed upon TVA based upon its prior knowledge of the condition of the guardrails at the place Thomas fell.
Kentucky law, even if applicable, is not to the contrary regarding the issue of a contractual duty. King v. Shelby Rural Elec. Co-Op Corp., 502 S.W.2d 659 (Ky.App.1973), cert, denied, 417 U.S. 932 , 94 S.Ct. 2644 , 41 L.Ed.2d 235 (1974), recognized the “general rule that the employer is not liable for physical harm caused to another by the act or omission of an independent contractor.” Id. at 660 (citing Restatement of Torts, Second § 409). In that case the court noted that workmen’s compensation laws would generally cover and protect the injured employee of an independent contractor. Id. at 662. The later Caskey v. Hammonds Construction, Inc., 536 S.W.2d 449 (Ky.1976), case involved an employee of a subcontractor not covered by workmen’s compensation insurance. In Caskey there was no contractual agreement between the owner and the independent contractor, as here, that imposed sole *374 responsibility upon the independent contractor for safety violations. I would find no duty owed here by TVA to a Jones employee in respect to a safety hazard for which his responsible, bonded employer carrying workmen’s compensation insurance had “primary” safety responsibility. See Raymer v. United States, 660 F.2d 1136, 1143 (6th Cir.1981), cert. denied, 456 U.S. 944 , 102 S.Ct. 2009 , 72 L.Ed.2d 466 (1982).
It is for these reasons, in addition to those stated by Senior Circuit Judge EDWARDS, that I would Affirm the judgment of the district court.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9473822. Public record. Not legal advice.