Opinions of the United
1995 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-20-1995

Monk v VI Water & Power Auth
Precedential or Non-Precedential:

Docket 94-7372




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            UNITED STATES COURT OF APPEALS
                FOR THE THIRD CIRCUIT

                     ___________

                     No. 94-7372
                     ___________


                    TED MARK MONK,
                              Appellant

                          v.

        VIRGIN ISLANDS WATER & POWER AUTHORITY;
            QUALITY ELECTRIC SUPPLY COMPANY


    _______________________________________________

On Appeal from the District Court of the Virgin Islands
                 Division of St. Croix
          (D.C. Civil Action No. 91-cv-00077)
                  ___________________


               Argued December 5, 1994

           Before: SLOVITER, Chief Judge,
          SCIRICA and COWEN, Circuit Judges

                (Filed April 20, 1995)


                           THOMAS ALKON, ESQUIRE (Argued)
                           Alkon, Rhea & Hart
                           2115 Queen Street, Suite 101
                           Christiansted, St. Croix
                           U.S. Virgin Islands 00820

                               Attorney for Appellant


                           RHYS S. HODGE, ESQUIRE
                           Law Offices of Rhys S. Hodge
                           19 Norre Gade
                           P.O. Box 6520
                           Charlotte Amalie, St. Thomas
                           U.S. Virgin Islands 00804
Attorney for Appellee,
Virgin Islands Water
  & Power Authority
                                   R. ERIC MOORE, ESQUIRE (Argued)
                                   Law Office of R. Eric Moore
                                   Downtown Station
                                   P.O. Box 3086
                                   Christiansted, St. Croix
                                   U.S. Virgin Islands 00822

                                   Attorney for Appellee,
                                   Quality Electric Supply Company

                          __________________

                       OPINION OF THE COURT
                        __________________


SCIRICA, Circuit Judge.


           In this appeal, we are required to interpret and apply

various sections of the Restatement (Second) of Torts to a

lawsuit arising from a tragic construction accident in the Virgin

Islands.   The primary issue is the viability of Restatement

section 343A, involving the doctrine of assumption of risk, in

light of the Virgin Islands' adoption of a comparative negligence

statute.   We also consider whether employers may be liable for

injuries to their independent contractors' employees under

Restatement section 413 and similar provisions.     The district

court granted summary judgment to the defendant landowner,

holding that the Restatement provisions shielded it from tort

claims by a worker injured on the property.      We will affirm.

                                  I.

           In June 1990, a fire destroyed a building on St. Croix

owned by Quality Electric Supply Company.      The following month

Quality Electric contracted with Benak Construction Company to

demolish the remains of the original structure and to construct a
new building.     Ted Monk, Sr., a partner in Benak and head of the

project, named his son, Ted Monk, Jr. ("Monk"), as foreman of the

site.

          At the time of construction, the Virgin Islands Water &

Power Authority ("WAPA") maintained 7,200-volt power lines

several feet above part of the proposed building.    The power

lines were clearly visible, and there is no dispute that everyone

involved with the project knew about the lines and that any

contact with them would be dangerous.1    On November 8, 1990, a

crane was being used to lift steel joists that would connect the

columns of the building frame.    The first joist was installed

with the use of a "tag line," a rope attached to the beam to

prevent it from swinging.    Monk decided not to use a tag line to

install the next joist, however, because he thought he could

better control the joist from swinging by holding it directly

with his hands.    At this point, Monk, Sr., yelled for his son to

use a tag line.    As Monk prepared to do so, the steel joist

touched an overhead power line, sending an electrical current
through his body.    He suffered severe burns that resulted in the

amputation of both his legs and his left arm.



1
 . As the district court noted, the Benak supervisor at the
site, Paul Christoff, testified in his deposition that "everyone
present at the work site knew that the lines were energized. In
fact, Christoff heard Monk, Sr., specifically tell his son, the
plaintiff, to be careful of the lines because they were 'hot.'"
See Monk v. Virgin Islands Water & Power Auth., No. 91-0077, slip
op. at 3 n.2 (D.V.I. Jan. 24, 1994). For direct evidence of the
plaintiff's knowledge of the power lines and their danger, see
infra part II.C.
            Monk then filed this suit for personal injuries against

Quality Electric and WAPA.    The district court granted summary

judgment in favor of Quality Electric, but denied summary

judgment to WAPA.    Monk v. Virgin Islands Water & Power Auth.,

No. 91-0077 (D.V.I. Jan. 24, 1994).    Monk settled with WAPA, but

appealed the district court's judgment as to Quality Electric.

            The district court had jurisdiction of the case

pursuant to 48 U.S.C. § 1612 (1988).    We have jurisdiction under

28 U.S.C. § 1291 (1988), and our review of a grant of summary

judgment is plenary.   Oritani Sav. & Loan Ass'n v. Fidelity &

Deposit Co., 

, 637 (3d Cir. 1993).    Summary judgment

is appropriate when "there is no genuine issue as to any material

fact" and "the moving party is entitled to a judgment as a matter

of law."    Fed. R. Civ. P. 56(c).

                                II.

            In the Virgin Islands, the various Restatements of law

provide the rules of decision in the absence of local laws to the

contrary.   V.I. Code Ann. tit. 1, § 4 (1967);2 Williams v. Martin

Marietta Alumina, Inc., 

, 1033 (3d Cir. 1987).   We

are called upon here to determine whether section 343A of the
2
.   V.I. Code Ann. tit. 1, § 4 (1967) provides:

                 The rules of the common law, as
            expressed in the restatements of the law
            approved by the American Law Institute, and
            to the extent not so expressed, as generally
            understood and applied in the United States,
            shall be the rules of decision in the courts
            of the Virgin Islands in cases to which they
            apply, in the absence of local laws to the
            contrary.
Restatement (Second) of Torts (1965) survives enactment of the

Virgin Islands comparative negligence statute.

                                A.

          At common law, a plaintiff's contributory negligence

barred any subsequent recovery for damages, even if the plaintiff

was only slightly at fault.   W. Page Keeton et al., Prosser and

Keeton on the Law of Torts §§ 65, 67, at 451-52, 468-69 (5th ed.

1984); Restatement (Second) of Torts § 467.   Similarly, the

common law doctrine of assumption of risk prevented recovery when

a plaintiff was deemed to have assumed the risk of a known

danger.   Keeton et al., supra, § 68, at 495-96; Restatement §

496A.

          While these rules were still in force throughout most

of the United States, the American Law Institute incorporated

section 343A on "Known or Obvious Dangers" into the Restatement

(Second) of Torts.   Section 343A provides in relevant part:

          A possessor of land is not liable to his

          invitees3 for physical harm caused to them by

           any activity or condition on the land whose

           danger is known or obvious to them, unless

           the possessor should anticipate the harm

           despite such knowledge or obviousness.


3
 . The Restatement definition of "invitee" includes a "business
visitor," which is defined as "a person who is invited to enter
or remain on land for a purpose directly or indirectly connected
with business dealings with the possessor of the land."
Restatement § 332. There is no dispute that Monk is an
"invitee," within the meaning of the Restatement.
(footnote added).    Section 343A's focus on dangers "known or

obvious" to invitees, along with pertinent commentary,4 indicated

it was intended as a variation on the doctrine of assumption of

risk.   See, e.g., Koutoufaris v. Dick, 

, 395-96 (Del.

1992) (noting section "343A's apparent espousal of assumption of

risk as a bar to recovery").

            Soon after adoption of the Second Restatement in 1965,

however, the principle of apportioning damages between negligent

plaintiffs and defendants under a comparative fault system began

"veritably sweeping the land."    Keeton et al., supra, § 67, at

479.    "Although by the mid-1960s only seven states had replaced

contributory negligence with comparative fault, several states

switched over in 1969, and the 1970s and early 1980s witnessed a

surge of legislative and judicial action accomplishing the

4
.   For example, comment e to section 343A provides:

                 In the ordinary case, an invitee who
            enters land is entitled to nothing more than
            knowledge of the conditions and dangers he
            will encounter if he comes. If he knows the
            actual conditions, and the activities carried
            on, and the dangers involved in either, he is
            free to make an intelligent choice as to
            whether the advantage to be gained is
            sufficient to justify him in incurring the
            risk by entering or remaining on the land.
            The possessor of the land may reasonably
            assume that he will protect himself by the
            exercise of ordinary care, or that he will
            voluntarily assume the risk of harm if he
            does not succeed in doing so. Reasonable
            care on the part of the possessor therefore
            does not ordinarily require precautions, or
            even warning, against dangers which are known
            to the visitor, or so obvious to him that he
            may be expected to discover them.
switch."   

(footnotes omitted).   All but four states

now have adopted the doctrine.5

           The movement toward comparative negligence, however,

raised questions concerning the continued viability of the

assumption of risk defense,6 which often resembled contributory

negligence.7   See, e.g., 

at 495 ("The rise of

5
 . Those four states are Alabama, Maryland, North Carolina, and
Virginia. See Jean W. Sexton, Recent Decision, Tort Law --
Assumption of Risk and Pennsylvania's Comparative Negligence
Statute: Howell v. Clyde, 67 Temp. L. Rev. 903, 903 & n.2 (1994);
see also Williams v. Delta Int'l Mach. Corp., 

,
1333 (Ala. 1993); Harrison v. Montgomery County Bd. of Educ., 

, 905 (Md. 1983); Campbell v. Baltimore Gas & Elec. Co.,

, 219 (Md. Ct. Spec. App.), cert. denied, 

(Md. 1993); Miller v. Miller, 

, 73 (N.C. 1968);
Bowden v. Bell, 

, 819 (N.C. Ct. App. 1994);
Litchford v. Hancock, 

, 337 (Va. 1987).
6
 . Our discussion involves only the implied form of assumption
of risk, not a defense based on an express contract. Defenses
based on express assumption of risk remain valid in virtually all
jurisdictions. See, e.g., W. Page Keeton et al., Prosser and
Keeton on the Law of Torts § 68, at 496 (5th ed. 1984) (footnotes
omitted) ("[A]bsent policy reasons for prohibiting contractual
disclaimers of this type in certain contexts, an express
assumption of risk by the plaintiff should continue to serve as a
total bar in comparative negligence cases."); 1 J.D. Lee & Barry
A. Lindahl, Modern Tort Law § 9.07, at 250 (1988) ("In
jurisdictions which have adopted comparative fault statutes, it
has generally been held that the defense of express assumption of
risk survives the enactment of such statutes."); 3 Stuart M.
Speiser et al., The American Law of Torts § 13:39, at 808 (1986)
("Express assumption of risk, as distinguished from implied
assumption of risk, has retained its viability as an absolute
defense despite the advent of comparative negligence. This
proposition is supported by cases from numerous jurisdictions.").
7
 . For a discussion of the different forms of assumption of
risk, see infra part II.B; cf. Restatement § 496A cmt. c; Keeton,
supra, § 68, at 480-81 & 481 n.10. For purposes of this case, we
adhere to the distinctions noted in Keegan v. Anchor Inns, Inc.,

, 39-41 (3d Cir. 1979). As we explained in Keegan,
"Assumption of risk in its secondary sense is ordinarily
synonymous with contributory negligence and involves a failure to
comparative negligence has forced the courts and commentators to

consider afresh the proper role for the assumption of risk

defense.").   Some jurisdictions that abolished contributory

negligence also eliminated assumption of risk by statute.8     Other

states left the issue for their courts to decide, which resulted

in a range of decisions across the spectrum.9   Most courts

rejected the defense,10 others continued it, and some supported

certain forms of it but rejected others.11

(..continued)
exercise reasonable care for one's own safety. . . . Assumption
of risk in its primary and strict sense involves voluntary
exposure to an obvious or known danger which negates liability."

n.5 (citations omitted).
8
 . "[S]everal comparative negligence statutes by their terms
abolish assumption of risk, in addition to contributory
negligence, as defenses that will bar liability altogether."
Keeton et al., supra, § 68, at 495-96 (citing several cases and
statutes); see also Speiser et al., supra, § 13:33, at 787
("There are a number of jurisdictions in which implied assumption
of risk was abolished by statute.").
9
 . Keeton et al., supra, § 68, at 496 ("Most of the statutes,
however, are silent on assumption of risk, and so the matter has
been thrown over to the courts."); Speiser et al., supra, §
13:33, at 787 ("[I]n most jurisdictions, the statute by which
comparative negligence was enacted did not expressly deal with
assumption of risk, leaving it to the courts to deal with the
viability of the doctrine . . . .").
10
 . See, e.g., Lee & Lindahl, supra, § 9.05, at 246 ("[M]ost
states have allowed the entire concept [of assumption of risk] to
be subsumed within comparative negligence by either abrogating it
or providing for its merger with comparative fault principles.");
Speiser et al., supra, § 13:33, at 787 ("[T]here are a number of
jurisdictions, decidedly representing a minority, in which
assumption of risk was retained as a separate defense under the
comparative negligence system.").
11
 . For a state-by-state analysis of the viability of assumption
of risk after adoption of comparative negligence, see Speiser et
al., supra, §§ 13:33-:39, at 784-809; see also Keeton et al.,
            Depending upon their position on the viability of

assumption of risk, courts also decided whether to continue using

section 343A of the Restatement.      As with assumption of risk

generally, some courts opted to continue using section 343A,12

others decided against it, and still others decided the

applicability of section 343A depended on the type of assumption

of risk involved.13

                                 B.

            In 1973, the Virgin Islands abolished the common law

rule that a plaintiff's contributory negligence barred any

recovery.   In its place, it adopted a comparative negligence

statute that apportioned fault between the plaintiff and

defendant. See V.I. Code Ann. tit. 5, § 1451 (Supp. 1993);14
(..continued)
supra, § 68, at 495-498; Lee & Lindahl, supra, § 9.05, at 245-
247.
12
 . See, e.g., Carrender v. Fitterer, 

, 124-25 (Pa.
1983).
13
 . See, e.g., Koutoufaris v. Dick, 

, 398 (Del.
1992) (rejecting use of section 343A when the alleged assumption
of risk was secondary type, but noting that it "might well" apply
when assumption of risk was primary type). For a summary of
judicial opinion regarding the applicability of section 343A in
comparative negligence jurisdictions, see 

14
 . V.I. Code Ann. tit. 5, § 1451(a) (Supp. 1993) provides in
relevant part:

                 In any action based upon negligence to
            recover for injury to person or property, the
            contributory negligence of the plaintiff
            shall not bar a recovery, but the damages
            shall be diminished by the trier of fact in
            proportion to the amount of negligence
            attributable to the plaintiff. The burden of
            proving contributory negligence shall be on
            the defendant. If such claimant is found by
Keegan v. Anchor Inns, Inc., 

, 37-38 (3d Cir. 1979).

Monk contends this statute implicitly abolished assumption of

risk as a defense, thereby contradicting Restatement section 343A

and nullifying its viability.

          In Keegan, 

we examined the Virgin Islands

comparative negligence statute and its effect on the doctrine of

assumption of risk.   We held the statute abrogated one type of

the assumption of risk defense, but left the other form intact:

          Assumption of risk is not necessarily

          grounded on the concept of fault.   Sometimes

          the defense has been invoked when the

          plaintiff's conduct could be characterized as

          negligent; sometimes it has been invoked in

          its "strict" or "primary" sense when the

          conduct amounted to consent.   In those cases

          where the plaintiff's conduct amounts to

          negligence, that fact should be accorded

          weight only within the comparative scheme of

          the statute.   In such a case assumption of

          risk is not available as a bar to recovery. .

          . .   It follows that when conduct amounts to

          a voluntary waiver or consent the absolute

          bar to recovery should remain.
(..continued)
          the trier of fact to be more at fault than
          the defendant, or, in the case of multiple
          defendants, more at fault than the combined
          fault of the defendants, the claimant may not
          recover.


  We employed this distinction between the two types of

assumption of risk in Smollett v. Skayting Development Corp., 

(3d Cir. 1986).   In Smollett, a woman injured while ice

skating sued the operator of the rink, complaining that the lack

of guardrails and the carpeted floor surrounding the ice caused

her injuries.   The jury found for the plaintiff, and the district

court denied the defendant's motion for a judgment

notwithstanding the verdict.     On appeal, we reversed and directed

the district court to enter judgment for the defendant, holding

that the evidence showed the plaintiff "fully understood the risk

of harm to herself and voluntarily chose to enter the area of

risk.   She, therefore, implicitly assumed the risk of injury."

(citation omitted).    In so ruling, we reiterated the

comparative negligence statute's effect on assumption of risk:
          Assumption of risk is still available as a
          complete defense to a negligence claim but it
          has been limited by enactment of the
          comparative negligence statute. Assumption
          of risk, to the extent it incorporates the
          concept of fault on the part of the actor
          and, therefore, overlaps with contributory
          negligence, is no longer available as a
          defense. However, assumption of risk can
          still be applied to "non-negligent conduct
          which constitutes waiver or consent" but
          which involved no negligence. In such cases
          the absolute bar to recovery remains.

606 F.2d at 41 n.8).     Therefore, the

"primary" form of assumption of risk remains a viable defense in

the Virgin Islands.15   Because Restatement section 343A requires

15
 . We disagree with Monk's assertion that the judicial
rejection of sections 343 and 343A under federal admiralty law
controls this case. It is true that we have held those
a plaintiff's implicit acquiescence to "known or obvious

dangers," the essence of the primary form of assumption of risk,

this Restatement provision also remains valid under Virgin

Islands law.

          We recognize our holding on assumption of risk may not

represent the view of a majority of jurisdictions.16 But many of
(..continued)
Restatement sections inapplicable to actions arising under the
Longshore and Harbor Workers' Compensation Act, 33 U.S.C. §
905(b). See Davis v. Portline Transportes Maritime
Internacional, 

, 542 n.7 (3d Cir. 1994) (noting that
"[s]ome portions of the Restatement's approach, however, clearly
do not fit within the paradigm the Act constructs" and citing
section 343A as an example); Rich v. United States Lines, Inc.,

, 551 n.21 (3d Cir. 1979) ("Sections 343 and 343A of
the Restatement (Second) of Torts . . . are both inconsistent
with Section 905(b) and therefore should not be relied upon to
create a duty on the part of the ship owner."); see also Scindia
Steam Navigation Co. v. De Los Santos, 

, 168 n.14
(1981) (stating that "those sections, while not irrelevant, do
not furnish sure guidance in cases such as this"). But we
rejected those sections because Congress, in amending the
Longshore and Harbor Workers' Compensation Act, expressly
indicated its intent to abolish assumption of risk when it
eliminated contributory negligence. See 

n.13 ("The
Committees also anticipated that in § 905(b) cases, as in other
admiralty cases, the rule of comparative negligence would apply
and the defense of assumption of risk would be barred."); H.R.
Rep. No. 1441, 92d Cong., 2d Sess. 8 (1972), reprinted in 1972
U.S.C.C.A.N. 4698, 4705 ("[T]he Committee intends that the
admiralty rule which precludes the defense of 'assumption of
risk' in an action by an injured employee shall also be
applicable."). Similarly, some state legislatures also barred
assumption of risk when they approved comparative negligence
statutes. See supra note 8 and accompanying text.

          In abolishing contributory negligence, however, the
Virgin Islands legislature never gave any indication whether it
intended to bar assumption of risk. Thus, the maritime actions
are distinguishable. In any event, as the Supreme Court has
stated, "maritime negligence actions are not necessarily to be
governed by principles applicable in nonmaritime contexts."
Scindia 

n.14.
16
 .   See supra note 10 and accompanying text.
the contrary cases are distinguishable, largely because relevant

statutes eliminating contributory negligence often expressly

barred the assumption of risk defense.17   Furthermore, we have

interpreted the statute in this manner consistently since its

1973 enactment.   We acknowledge the existence of strong policy

reasons for completely abandoning the doctrine of assumption of

risk as an absolute bar to recovery,18 just as there are

compelling reasons to maintain the defense in its limited form.19

But unlike other jurisdictions, where the Restatement merely

serves as a summary of general legal principles for courts to

accept or reject, the Virgin Islands has designated the

Restatement as its law, until a contrary statute is approved.20

Therefore, if the Virgin Islands wishes to abrogate the doctrine


17
 .   See supra note 8 and accompanying text.
18
 . See, e.g., 

("[A]ssumption of risk
clearly circumvents the purpose of the comparative negligence
statute by precluding recovery even if the plaintiff's actions
were reasonable or caused only one percent of the total harm . .
. ."); see also 

& n.4 (listing commentators who
"advocate the complete abolition of the assumption of risk
defense").
19
 . See, e.g., Keeton et al., supra, § 68, at 496 (footnotes
omitted) ("'[P]rimary' implied assumption of risk should also
logically continue to be an absolute bar after the adoption of
comparative fault . . . . This is because assumption of risk in
this form is really a principle of no duty, or no negligence, and
so denies the existence of any underlying cause of action.
Without a breach of duty by the defendant, there is thus
logically nothing to compare with any misconduct of the
plaintiff."); see also 

& n.3 (listing
commentators supportive of the continuation of assumption of risk
under comparative negligence).
20
 .   See supra note 2.
of assumption of risk, along with section 343A of the

Restatement, its legislature must say so, as it did in 1973 with

contributory negligence.
                                 C.

            In applying section 343A of the Restatement to this

case, the district court granted summary judgment to Quality

Electric because "it was Monk's decision not to use a tag line

and instead to hold onto the metal beam that precipitated his

injuries.   Monk cannot now try to shift the liability to Quality

Electric simply because they owned the land where the work was

performed."    Monk, No. 91-0077, slip op. at 12.

            To the extent the district court based its decision on

Monk's negligence (or contributory negligence), we believe it

erred.   Instead, the court should have focused on evidence

demonstrating Monk's awareness of and consent to a "known or

obvious" danger.   Evidence of Monk's negligence is relevant only

to show the type of secondary assumption of risk that

"incorporates the concept of fault on the part of the actor and,

therefore, overlaps with contributory negligence."     

.   As we have held, such evidence is no longer

permitted in the Virgin Islands to bar a plaintiff's cause of

action, but rather only may be used to apportion fault between

plaintiffs and defendants.    Id.; 

.
            Nevertheless, as in Smollett, we have little difficulty

in concluding as a matter of law that plaintiff "fully understood

the risk of harm to h[im]self and voluntarily chose to enter the

area of 

.     Although the issue of whether a

danger was "known or obvious" generally is a question of fact for

a jury, cf. Restatement § 496D cmt. e, there is no dispute in
this case that Monk actually knew of the risk posed by the power
lines.   As the district court noted, "At all relevant times, the

Benak Construction crew knew that the power lines were energized

and posed a possible danger."   Monk, No. 91-0077, slip op. at 3.

In his deposition, Monk admitted that "I did pay attention to the

location of the lines.   I looked at them, everybody else on the

job had looked at them."   He stated he knew that "if somebody

came in contact with [the power lines], then they were going to

get electrocuted, get hurt."    

n.2.   As foreman, Monk

testified he warned others about the danger posed by the power

lines:   "[A]s I said earlier, I was always trying to stress how

dangerous they were and to be careful around them."    

contends he did not know the lines were uninsulated

and the level of their voltage, these factors do not change the

fact that he knew the location of the lines and that they posed a

serious danger.   Thus, he "assumed the risk of injury."

.21

21
 . Section 343A provides that owners of land are not liable to
invitees for "known or obvious" dangers, "unless the possessor
should anticipate the harm despite such knowledge or
obviousness." The Restatement commentary provides guidance on
the meaning of this exception to the rule:

                Such reason to expect harm to the
           visitor from known or obvious dangers may
           arise, for example, where the possessor has
           reason to expect that the invitee's attention
           may be distracted, so that he will not
           discover what is obvious, or will forget what
           he has discovered, or fail to protect himself
           against it. Such reason may also arise where
           the possessor has reason to expect that the
           invitee will proceed to encounter the known
           or obvious danger because to a reasonable man
           in his position the advantages of doing so
           would outweigh the apparent risk.
                                   D.

          Monk also asserts that Quality Electric violated its

duties under section 343 of the Restatement (Second) of Torts,

which involves "Dangerous Conditions Known to or Discoverable by

Possessor."22   We cannot agree.   The Restatement provides that

sections 343 and 343A "should be read together," with the latter

section dealing "with the effect of the fact that the condition

is known to the invitee, or is obvious to him . . . ."

(..continued)

Restatement § 343A cmt. f. This exception does not apply in
circumstances like the present, in which the visitor on the land
has been hired precisely for the work that involves or creates
the risk itself. In such circumstances, the landowner has no
reason to expect that the visitor will be distracted or forget
about the danger. Here, Monk's testimony reveals he was acutely
aware of the power lines at the time of the accident, and that is
why he chose to proceed without a tag line. See Monk, No. 91-
0077, slip. op. at 4 & n.3. Indeed, as foreman, Monk repeatedly
warned others to be careful around the power lines. See
discussion in text.
22
 .   Section 343 provides:

          A possessor of land is subject to liability
          for physical harm caused to his invitees by a
          condition on the land if, but only if, he

               (a) knows or by the exercise of
          reasonable care would discover the condition,
          and should realize that it involves an
          unreasonable risk of harm to such invitees,
          and

               (b) should expect that they will not
          discover or realize the danger, or will fail
          to protect themselves against it, and


                (c) fails to exercise reasonable care to

          protect them against the danger.
Restatement § 343 cmt. a.     By contrast, section 343 is intended

to apply "to protect invitees from non-obvious dangerous

conditions on the land."    Rolick v. Collins Pine Co., 

, 1011 (3d Cir. 1992), cert. denied, 

(1993).23   We have held that the power lines above Quality

Electric's land were both "known" and "obvious"; thus, section

343 does not apply here.

                                 III.

            Finally, Monk argues that Quality Electric

            violated its duty under Restatement section

            413, which involves an employer's "Duty to

            Provide for Taking of Precautions Against

            Dangers Involved in Work Entrusted to

            Contractor."   Section 413 provides:       One

            who employs an independent contractor to do

            work which the employer should recognize as

            likely to create, during its progress, a

            peculiar unreasonable risk of physical harm

            to others unless special precautions are

            taken, is subject to liability for physical



23
 . See also Rich v. United States Lines, Inc., 

,
563 (3d Cir. 1979) (Garth, J., concurring) (citation omitted)
(Sections 343 and 343A "establish that the 'possessors of land
. . . are liable for physical harm caused to invitees by
dangerous conditions which are not obvious to the invitee (§
343), but are absolved from liability when dangerous conditions
are known or obvious, except when the possessor should anticipate
the harm despite the invitee's knowledge or the obviousness of
the condition. (§ 343A).'").
             harm caused to them by the absence of such

             precautions if the employer

                  (a) fails to provide in the contract
             that the contractor shall take such
             precautions, or

                  (b) fails to exercise reasonable care to
             provide in some other manner for the taking
             of such precautions.


             At common law, the general rule was that "the employer

of an independent contractor is not liable for physical harm

caused to another by an act or omission of the contractor or his

servants."     Restatement § 409; see also Williams v. Martin
Marietta Alumina, Inc., 

, 1036 (3d Cir. 1987).      Yet,

courts began recognizing so many exceptions to that rule "that it

can now be said to be 'general' only in the sense that it is

applied where no good reason is found for departing from it."

Restatement § 409 cmt. b.     The Restatement divided the exceptions

into those based on an employer's direct negligence, see §§ 410-

15, and those involving vicarious liability imposed on the

employer due to the negligence of the independent contractor, see

§§ 416-29.    See Restatement ch. 15, topic 2, introductory note,

at 394.   Therefore, any liability under section 413 must be based

on an employer's direct negligence.

             Quality Electric urges us to consider whether the word

"others," under section 413 and elsewhere in chapter 15 of the

Restatement, even encompasses an independent contractor's

employees, thereby allowing them to file suit against their

employer's employer for injuries sustained on the job.       Courts
for the Virgin Islands are divided on this issue,24 as are other

courts throughout the country.   See Keeton et al., supra, § 71,

at 514 n.63 ("There is disagreement over whether the doctrine

protects third parties only or includes as well the contractor's

employees.").
24
 . In 1975, the District Court of the Virgin Islands ruled that
the meaning of "others," under sections 416 and 427 of the
Restatement, did not encompass employees of an independent
contractor. Munson v. Duval, 

, 630-33 (D.V.I. 1975).
A decade later, in "reaffirm[ing]" that rule, the court noted:

               Time has proven the wisdom of Chief
          Judge Christian's holding in 

,
          as jurisdiction after jurisdiction issued a
          ruling to the same effect. The net result is
          that today, ten years later, the overwhelming
          number of jurisdictions are uniform in their
          interpretation of the word "others" in
          Chapter 15 of the Restatement of Torts,
          (Second), as excluding employees of
          independent contractors.

Gibson v. Sullivan Trail Coal Co., 

, 392
(D.V.I.), aff'd, 

(3d Cir. 1985); see also Harris v.
No. 1 Contracting Corp. Excavation Constr. Co., 

, 7-9
(V.I. T.C. 1986) (applying Gibson).

          Other courts in the Virgin Islands have attempted to
limit such holdings to situations in which employers were sued
under a vicarious liability theory. See, e.g., Henry v. Hess Oil
V.I. Corp., 1991 St. Croix Supp. 115, slip op. at 23 (D.V.I.
1991) ("[S]ince the sole issue in [Gibson] was the employer's
vicarious liability, the court's citation of those sections
concerning direct liability was dictum. Therefore, the Third
Circuit's affirmation without opinion only went to the
proposition that the employer of an independent contractor is not
vicariously liable to the contractor's employees, which is
consistent with this opinion."); see also Olson v. Virgin Islands
Tel. Corp., 1986 St. Thomas Supp. 204, slip op. at 3 (D.V.I.
1986); Hood v. Hess Oil V.I. Corp., 

, 679-80
(D.V.I. 1986). Thus, while the Virgin Islands courts agree that
employers cannot be held vicariously liable to employees of their
independent contractor, they are divided on whether such
employees can sue the employers for their direct negligence based
on Chapter 15 of the Restatement.
                                A.

          Section 413, as well as sections 41625 and 427,26

essentially adopts the "peculiar risk" doctrine, which developed

in the latter half of the nineteenth century out of a recognition

that "a landowner who chose to undertake inherently dangerous

activity on his land should not escape liability for injuries to

others simply by hiring an independent contractor to do the

work."   Privette v. Superior Court, 

, 724-25 & n.2

(Cal. 1993) (in banc).   The American Law Institute incorporated

this doctrine in the Second Restatement under certain provisions

of Chapter 15, which generally address the liability of employers


25
 .   Section 416 provides:

          One who employs an independent contractor to
          do work which the employer should recognize
          as likely to create during its progress a
          peculiar risk of physical harm to others
          unless special precautions are taken, is
          subject to liability for physical harm caused
          to them by the failure of the contractor to
          exercise reasonable care to take such
          precautions, even though the employer has
          provided for such precautions in the contract
          or otherwise.
26
 .   Section 427 provides:

          One who employs an independent contractor to
          do work involving a special danger to others
          which the employer knows or has reason to
          know to be inherent in or normal to the work,
          or which he contemplates or has reason to
          contemplate when making the contract, is
          subject to liability for physical harm caused
          to such others by the contractor's failure to
          take reasonable precautions against such
          danger.
of independent contractors when they or their contractors have

been negligent.

          An early draft of the Second Restatement of Torts

included a Special Note that excluded employees of the

independent contractor from filing suit under its provisions.

That note, which ultimately was not adopted, provided:
               Special Note. The rules stated in this
          Chapter are, in general, not applicable to
          make the defendant who hires an independent
          contractor liable to two classes of persons.

               One consists of the employees, or
          servants, of the defendant himself . . . .

                  . . . .

               The other class of plaintiffs not
          included in this Chapter consists of the
          employees of the independent contractor. As
          the common law developed, the defendant who
          hired the contractor was under no obligation
          to the servants of the contractor, and it was
          the contractor who was responsible for their
          safety. The one exception which developed
          was that the servants of the contractor doing
          work upon the defendant's land were treated
          as invitees of the defendant, to whom he owed
          a duty of reasonable care to see that the
          premises were safe. This is still true. See
          § 343. In other respects, however, it is
          still largely true that the defendant has no
          responsibility to the contractor's servants.
          One reason why such responsibility has not
          developed has been that the workman's
          recovery is now, with relatively few
          exceptions, regulated by workmen's
          compensation acts, the theory of which is
          that the insurance out of which the
          compensation is to be paid is to be carried
          by the workman's own employer, and of course
          premiums are to be calculated on that basis.
          While workmen's compensation acts not
          infrequently provide for third-party
          liability, it has not been regarded as
          necessary to impose such liability upon one
           who hires the contractor, since it is to be
           expected that the cost of the workmen's
           compensation insurance will be included by
           the contractor in his contract price for the
           work, and so will in any case ultimately be
           borne by the defendant who hires him.

                Again, when the Sections in this Chapter
           speak of liability to "another" or "others,"
           or to "third persons," it is to be understood
           that the employees of the contractor, as well
           as those of the defendant himself, are not
           included.


Restatement ch. 15 (Tentative Draft No. 7, 1962).     The American

Law Institute omitted this note, however, at the recommendation

of William L. Prosser, the reporter for the Second Restatement.

39 A.L.I. Proc. 244-49 (1962).     Prosser suggested the provision

be dropped because of a lack of uniformity on the issue,

particularly because of the effect of the various state workers'

compensation acts.   

   Nevertheless, he stated that

"certainly the prevailing point of view is that there is no

liability on the part of the employer of the independent

contractor."   

           In the first decade after the adoption of the

Restatement, courts split on whether to permit a contractor's

employees to sue under the peculiar risk provisions of Chapter

15.27   Since the early 1980s, however, an overwhelming majority

27
 .   As the Washington Supreme Court noted in 1981:

                Other jurisdictions which have faced
           this issue are divided over whether employers
           of an independent contractor owe to the
           employees of the contractor a nondelegable
           duty of care based on the presence of an
           inherently dangerous activity. Several
           jurisdictions have held that such a
of state high courts to consider the issue have held that

employers are not liable to such employees,28 with some even

overruling prior interpretations of the Restatement.29   A

majority of our sister circuits also have so ruled when called




(..continued)
          nondelegable duty is owed to employees of
          independent contractors. The overwhelming
          number of jurisdictions which have resolved
          this issue have found, however, that no duty
          is owed by an owner to employees of an
          independent contractor.

Tauscher v. Puget Sound Power & Light Co., 

, 429
(Wash. 1981) (en banc) (citing numerous cases) (footnotes
omitted).
28
 . See Privette v. Superior Court, 

, 730-31 (Cal.
1993) (in banc); Dillard v. Strecker, 

, 385 (Kan.
1994); Matteuzzi v. Columbus Partnership, L.P., 

,
131-32 (Mo. 1993) (en banc) (citing Zueck v. Oppenheimer Gateway
Properties, Inc., 

, 390 (Mo. 1991) (en banc));
Sierra Pac. Power Co. v. Rinehart, 

, 273 (Nev. 1983);
Valdez v. Cillessen & Son, Inc., 

, 1263 (N.M. 1987)
(citing New Mexico Elec. Serv. Co. v. Montanez, 

(N.M. 1976)); Tauscher v. Puget Sound Power & Light Co., 

, 429-31 (Wash. 1981) (en banc); Wagner v. Continental
Casualty Co., 

, 841, 844 (Wis. 1988); Stockwell v.
Parker Drilling Co., 

, 1032 (Wyo. 1987) (citing
Jones v. Chevron U.S.A., Inc., 

(Wyo. 1986)); cf.
Rowley v. Mayor of Baltimore, 

, 503 (Md. 1986);
Vertentes v. Barletta Co., 

, 502-04 (Mass. 1984);
Conover v. Northern States Power Co., 

, 404-07
(Minn. 1981); Whitaker v. Norman, 

, 580 (N.Y.
1989); Fleck v. ANG Coal Gasification Co., 

, 454
(N.D. 1994). But see Sievers v. McClure, 

, 887 n.2
(Alaska 1987); Elliott v. Public Serv. Co., 

, 1188
(N.H. 1986).
29
 . See, e.g., 

, 730 n.4 (overruling a
line of cases stretching back more than 30 years); 

.
upon to resolve the issue in cases under state30 and federal31

law.


30
 . See, e.g., Scofi v. McKeon Constr. Co., 

, 172
(5th Cir. 1982) (Florida law); Anderson v. Marathon Petroleum
Co., 

, 940-42 (7th Cir. 1986) (Illinois law); Vagle
v. Pickands Mather & Co., 

, 1217-19 (8th Cir. 1979)
(Minnesota law), cert. denied, 

(1980); cf. Lipka v.
United States, 

, 292-93 (2d Cir. 1966) (New York
law), cert. denied, 

(1967). But see Lindler v.
District of Columbia, 

, 499 (D.C. Cir. 1974)
(District of Columbia law).

          We have previously noted that at least one jurisdiction
within this circuit follows the "minority" rule. See Toole v.
United States, 

, 407 (3d Cir. 1978) (citing Gonzalez
v. United States Steel Corp., 

, 1339 (Pa. Super. Ct.
1977)). This result, however, does not bind us here. First, the
Pennsylvania case we cited as our authority, Gonzalez, was
appealed to the Pennsylvania Supreme Court, which, in affirming,
declined to decide this issue. See Gonzalez v. United States
Steel Corp., 

, 1384 n.10 (Pa. 1979) ("U.S. Steel
argues that Section 410 (and Section 413) do not impose liability
upon an employer of an independent contractor for injuries
incurred by employees of the independent contractor. We agree,
however, with plaintiffs that this contention was not preserved
for our review."). But see Lorah v. Luppold Roofing Co., 

, 1386 n.2 (Pa. Super. Ct. 1993) ("[I]t is apparent that
the law in this Commonwealth is that employees of an independent
contractor are parties under §§ 416 and 427 to whom an obligation
can flow."). Second, an interpretation of the Restatement by one
jurisdiction within this circuit does not compel the same
interpretation for another such jurisdiction. In fact, we
already have predicted that New Jersey would reject the minority
rule that Pennsylvania may have adopted. See Merklin v. United
States, 

, 176 (3d Cir. 1986) ("New Jersey would
prohibit the contractor's employees from recovering against the
employer. The traditional approach holds that the inherently
dangerous doctrine protects only third parties and not the
contractor's employees.").
31
 . See, e.g., Chavis v. Finnlines, Ltd., O/Y, 

,
1081 (4th Cir. 1978); Hess v. Upper Miss. Towing Corp., 

, 1033-35 (5th Cir. 1977) (citing numerous cases), cert.
denied, 

(1978); Nelson v. United States, 

, 474-79 (9th Cir. 1980); Eutsler v. United States, 

, 635-37 (10th Cir. 1967); cf. Evans v. Transportacion
           Most of these courts have not permitted employer

liability to a contractor's employees for four fundamental

reasons.   First, following the reasoning of the Restatement's

unadopted Special Note, courts have noted that workers'

compensation statutes preclude employees from recovering against

the independent contractor, even though it oversaw and permitted

the unsafe working conditions, but do not bar suits against the

contractor's employer.   This result appears inequitable,

particularly when the employer is indirectly paying the cost of

the workers' compensation premiums:
               As one court observed, the "principal"
          who hires an independent contractor should be
          subject to no greater liability "than its
          [independent contractor] agent," whose
          exposure for injury to an employee is limited
          to providing workers' compensation insurance.
          Other courts have reasoned that the rule of
          workers' compensation exclusivity, which
          shields an independent contractor who pays
          workers' compensation insurance premiums from
          further liability to its employees for on-
          the-job injuries, should equally protect the
          property owner who, in hiring the contractor,
          is indirectly paying for the cost of such
          coverage, which the contractor presumably has
          calculated into the contract price.

(citation omitted).32

           A second and related reason why courts have barred

employees from recovering against their employer's employer is
(..continued)
Maritime Mexicana S.S. Campeche, 

, 859 (2d Cir.
1981).
32
 . For additional authority on this point, see 

; 

; 

-
52; 

; 

;

.
that such liability is not necessary to achieve the original aims

of the doctrine of peculiar risk.    Liability under the doctrine

is not necessary, in cases of injuries to a contractor's

employees, because:
          the workers' compensation system of recovery
          regardless of fault achieves the identical
          purposes that underlie recovery under the
          doctrine of peculiar risk: it ensures
          compensation for injury by providing swift
          and sure compensation to employees for any
          workplace injury; it spreads the risk created
          by the performance of dangerous work to those
          who contract for and thus benefit from such
          work, by including the cost of workers'
          compensation insurance in the price for the
          contracted work; and it encourages industrial
          safety.

see also Fleck v. ANG Coal Gasification Co., 

, 451 (N.D. 1994); Wagner v. Continental Casualty Co.,

, 842-43 (Wis. 1988).

          In fact, the third reason cited by courts for

forbidding employer liability is that such liability may actually

decrease workplace safety.    Most employers probably would have

little trouble determining those dangers that might be peculiarly

risky to passers-by uninvolved in a construction project.    As the

Missouri Supreme Court noted, "Common sense permits a landowner

to identify the potential of harm which an activity may create to

persons not participating in the activity."    Zueck v. Oppenheimer
Gateway Properties, Inc., 

, 387 (Mo. 1991) (en

banc).   Yet, the risks to a contractor's workers and the

protections necessary to reduce such risks "are often beyond the

owner's expertise."   

are frequently,
if not usually, hired because the landowner is aware of his own

lack of expertise and seeks to have the work performed as safely

and efficiently as possible by hiring those possessing the

expertise he lacks.

               If the landowner chooses to avoid the
          additional liability imposed by the
          inherently dangerous exception, he may choose
          to direct his own employees to do the work
          despite his and their lack of expertise.
          That simple choice limits the landowner's
          exposure to that provided under worker's
          compensation. But that choice also increases
          the risk of injury to the employees and to
          innocent third parties.

(footnote omitted).33   Furthermore, permitting

employer liability to a contractor's employees also ignores "the

fact that the economic system permits workers who presume to

undertake dangerous work to bargain for an enhanced reward for

assuming the danger."   

0 (footnote omitted); see also

Dillard v. Strecker, 

, 385 (Kan. 1994).

          Finally, courts point out that employers need not be

held liable to employees of an independent contractor under the

peculiar risk provisions of Chapter 15 of the Restatement because

other remedies exist besides workers' compensation.   A

contractor's employees, along with other invitees, still have the

right to sue for certain latent defects on the land, see

Restatement § 343, or for "known or obvious" dangers whose harm

should have been anticipated, see 

  Cf. Tauscher v.

33
 . See also 

; 

;

; 

.
Puget Sound Power & Light Co., 

, 430 (Wash. 1981) (en

banc); Restatement Special Note 

.
                                  B.

           We are persuaded by the reasoning of these courts;

thus, we hold that, under Virgin Islands law, employees of an

independent contractor are not included within the protected

class of "others" under the peculiar risk provisions of Chapter

15 of the Restatement.    We acknowledge that a minority of

jurisdictions have held to the contrary.    And we understand the

concerns expressed by courts in those states, particularly that

of holding tortfeasors liable for their actions and protecting

workers on the job.34    But we believe the interpretation chosen

by the overwhelming majority of jurisdictions is the better rule,

for the reasons already expressed.

           We also believe this rule is consistent with the

policies expressed in the Virgin Islands Workmen's Compensation

Act, V.I. Code Ann. tit 24, §§ 251-85 (1993).    As we have noted,

this Act, like "other workers compensation legislation, is

designed to 'provide prompt payment of benefits without regard to

fault.'"   Chinnery v. Government of V.I., 

, 71 (3d

Cir. 1989) (citations omitted).    But the Act's other fundamental

34
 . Courts that have held employers liable to such employees
under section 413 offer a variety of reasons for their decisions.
A few courts, noting that section 413 is a theory of direct
liability, find it appropriate to hold employers liable for their
own acts of negligence. See, e.g. Moloso v. State, 

,
214-15 (Alaska 1982). Some courts point out that the Special
Note to the Restatement, 

part III.A, was not adopted
and thus is not entitled to deference. See, e.g., Lindler v.
District of Columbia, 

, 498-99 (D.C. Cir. 1974).
Other courts apparently following the minority view simply seem
to be adhering to longtime precedent. See, e.g., Bosak v.
Hutchinson, 

, 338 (Mich. 1985).
purpose is "to relieve employers and employees of the burden of

civil litigation."   

our interpretation of these

sections of the Restatement furthers the latter purpose of the

Act without impairing the former purpose.

          As a final matter, we should clarify that this holding

extends to actions under the direct liability provision of

section 413, as well as the vicarious liability provisions of

sections 416 and 427.     The courts for the Virgin Islands have

attempted to distinguish the two situations,35 but the same

reasoning applies to both.36    In fact, most courts have cited

section 413, as well as sections 416 and 427, in holding that

employers are not liable to a contractor's employees under the

doctrine of peculiar risk.37

35
 .   See supra note 24.
36
 . See, e.g., Matteuzzi v. Columbus Partnership, L.P., 

, 131 (Mo. 1993) (en banc) ("The same reasons . . . for
rejecting a claim under § 416 are equally persuasive to reject a
claim under § 413."); Stockwell v. Parker Drilling Co., 

, 1032 (Wyo. 1987) ("The same logic and reasoning applies to
§ 413, and we agree that § 413 also does not apply to the
employee of an independent contractor."). Courts considering the
issue have explicitly refused to distinguish between these
Restatement sections just because two are under the vicarious
liability part of Chapter 15 and the other is under the direct
liability heading. See Privette v. Superior Court, 

,
725 n.2 (Cal. 1993) (in banc); cf. 

.
37
 . See 

& 725 n.2 (citing sections
413 and 416); 

(adopting reasoning of
numerous cases deciding issue under sections 413, 416, and 427);

(citing Zueck v. Oppenheimer
Gateway Properties, Inc., 

, 386 (Mo. 1991) (en
banc)) (citing sections 413, 416, and 427); Sierra Pac. Power Co.
v. Rinehart, 

, 273 (Nev. 1983) (citing sections 413
and 416); Valdez v. Cillessen & Son, Inc., 

, 1263
(N.M. 1987) (citing New Mexico Elec. Serv. Co. v. Montanez, 

(N.M. 1976)) (citing sections 413, 416, and 427);
                               C.

          Applying this interpretation of the Restatement and its

underlying reasoning to the facts of this case, it becomes clear

why employers should not be held liable to an independent

contractor's employees under section 413.    The contract between

the parties required Benak to obtain workers' compensation

insurance; thus, as in the cases already noted, Quality Electric

was "indirectly" paying for such coverage.

          Furthermore, instead of using its own employees, who

may have been unfamiliar with such work, Quality Electric hired

Benak, a company experienced in working near power lines.38   The

accident here was tragic; such work, however, might routinely be

deadly if Quality Electric and other landowners used their own

inexperienced workers merely to avoid liability to third parties.
(..continued)
Tauscher v. Puget Sound Power & Light Co., 

, 429-30
(Wash. 1981) (en banc) (citing sections 413, 414, 416, and 427);
Wagner v. Continental Casualty Co., 

, 841, 844
(Wis. 1988) (citing sections 413, 416, and 427); 

(citing Jones v. Chevron U.S.A., Inc., 

(Wyo. 1986)) (citing sections 413 and 416).

          Other state high courts have decided that employers are
not liable to an independent contractor's employees under
sections 416 and 427, but did not discuss whether the rule
applies to section 413. See, e.g., Vertentes v. Barletta Co.,

, 502-04 (Mass. 1984); Conover v. Northern States
Power Co., 

, 404-07 (Minn. 1981); Fleck v. ANG Coal
Gasification Co., 

, 454 (N.D. 1994); cf. Rowley v.
Mayor of Baltimore, 

, 503 (Md. 1986).
38
 . As the district court noted, deposition testimony revealed
that "Benak Construction had worked on other projects where the
power lines were in an even closer vicinity than in the instant
case, and Benak Construction did not consider the situation at
the Quality Electric site to be a problem." Monk, No. 91-0077,
slip op. at 10 n.9.
          We also fail to see what more Quality Electric

reasonably could have done to increase safety.   There is no

question that officials from Quality Electric and Benak discussed

the power lines and their dangers.   Monk, No. 91-0077, slip op.

at 8-9.   It also is beyond dispute that, after these discussions,

Benak supervisors contacted WAPA about the power lines and that

the contract required Benak to assume the responsibility for the

work site and related safety precautions.   

  Although

the power lines traveled over Quality Electric's land, they did

not service Quality Electric but rather an adjacent property.

n.1.   And it is clear that Quality Electric officials

had given control of the site over to the independent contractor

while they worked in temporary offices nearby.   

Under these circumstances, the contractor, not Quality Electric,

was in the best position to gauge what measures were necessary to

protect the workers at the site from danger.

                               IV.

          Based on the foregoing reasons, we will affirm the

judgment of the district court.