
USCA1 Opinion

	




        July 31, 1992           [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 92-1107                           EDITH DIODATO AND LOIS DIODATO,                         AS ADMINISTRATRICES OF THE ESTATE OF                                 MICHAEL J. DIODATO,                               Plaintiffs, Appellants,                                          v.                              UNITED STATES OF AMERICA,                                 Defendant, Appellee.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                       [Hon. Rya W. Zobel, U.S. District Judge]                                           ___________________                                 ____________________                                        Before                                 Selya, Circuit Judge,                                        _____________                             Lay,* Senior Circuit Judge,                                   ____________________                          and O'Scannlain,** Circuit Judge.                                             _____________                                 ____________________            Stephen G. Morte for appellants.            ________________            Mary Elizabeth Carmody,  Assistant U.S. Attorney, with whom  Wayne            ______________________                                       _____        A. Budd, United States Attorney, was on brief for appellee.        _______                                 ____________________                                 ____________________        _____________________        *  Of the Eighth Circuit, sitting by designation.        ** Of the Ninth Circuit, sitting by designation.               Per Curiam.  Plaintiffs appeal the district court's grant of               __________          summary  judgment in favor of  the United States  in their action          under the Federal Tort Claims Act ("FTCA").  We affirm.                                          I               Michael Diodato, an employee of contractor Nova Group, Inc.,          was electrocuted while  laying pipe  in a trench  at Hanscom  Air          Force Base in  Bedford, Massachusetts.   Diodato was easing  pipe          suspended from the boom of a crane into location for welding when          the boom contacted  a live power  line, or came  into such  close          proximity to the  line that electricity arced to it.  Diodato was          badly   burned  by  the   resulting  electrical   discharge,  and          subsequently died from his injuries.  The administratrices of his          estate,  Edith and Lois Diodato, sued the utility company and the          crane  manufacturer in state  court, and brought  a separate FTCA          action in  federal court.   The state court  suit was removed  to          federal court and consolidated with the FTCA action.               In  an order entered  September 3, 1991,  the district court          granted  the motions of the United States and the utility company          for summary judgment.   The case  against the crane  manufacturer          remained unresolved.  No separate  document of final judgment was          entered.   After  denial  of a  motion  for reconsideration,  the          Diodatos filed a timely notice of appeal.                                          II          As a preliminary matter, we reject the government's argument that          we lack  appellate jurisdiction.   Although no  separate document          setting forth judgment  was entered, as required by  Federal Rule                                         -2-                                          2          of Appellate  Procedure 4(a) and Federal Rule  of Civil Procedure          58, the parties can waive that defect.  See  Bankers Trust Co. v.                                                  ___  ____________________          Mallis, 435 U.S. 381 (1978) (per curiam); Smith  v. Massachusetts          ______                                    _______________________          Dept. of  Correction, 936 F.2d  1390, 1394 (1st  Cir. 1991).   We          ____________________          conclude that they have done so.               The  government also  points out  that the  summary judgment          order did not resolve all claims in the consolidated proceedings.          The  rule in this circuit  is that "where  cases are consolidated          for purposes  of convenience  and judicial efficiency,  the cases          retain  their separate  identity and  judgments rendered  in each          individual action  are appealable  as final judgments  within the          meaning of  28  U.S.C. 1291  .  . .  even  without the  requisite          certification  under Rule 54(b)."   Federal Deposit Ins. Corp. v.                                              _____________________________          Caledonia  Inv. Corp.,  862 F.2d  378, 381  (1st Cir.  1988). The          _____________________          summary judgment order completely resolved the action against the          United States.  It is therefore appealable.                                         III               We  likewise reject  the assertion  that the  district court          ruled  on  the  summary  judgment  motion  prematurely,   without          allowing sufficient time  for discovery.  The  district court has          "broad discretion"  to award summary judgment  before the parties          have completed discovery.  Mendez v. Belton, 739 F.2d 15, 18 (1st                                     ________________          Cir. 1984).  In  particular, a "court may grant  summary judgment          despite an opposing party's claim that additional discovery would          yield additional facts where  the opposing party has  not alleged                                         -3-                                          3          specific facts  that could be developed  through such discovery."          Taylor v. Gallagher, 737 F.2d 134, 137 (1st Cir. 1984).          ___________________               Although  plaintiffs  requested more  time for  discovery in          their opposition  to  summary  judgment, they  did  not  cite  to          specific  facts  they hoped  to  ascertain  through such  further          discovery.   They  mentioned  only that  they  wished to  examine          unspecified  government documents  and depose  unnamed government          employees.   Joint  Appendix  at 111-12.    They "did  not  show,          through a Rule 56(f) affidavit  or otherwise, how discovery could          have breathed life into [their] claim."  Taylor, 737 F.2d at 137.          Accordingly, the district  court did not err  in granting summary          judgment without allowing further discovery.                                          IV               The Diodatos'  primary contention on appeal  is that summary          judgment  was  improperly  entered   because  genuine  issues  of          material  fact  remained.   Our review  of  the entry  of summary          judgment is  plenary.  Petitti  v. New England  Tel. &  Tel., 909                                 _____________________________________          F.2d 28, 30  (1st Cir. 1990).  Summary judgment  is proper if the          evidence "is so one sided that one party must prevail as a matter          of  law." Id. (quoting Anderson  v. Liberty Lobby,  477 U.S. 242,                    ___          __________________________          252 (1986)).  In assessing the  evidence, we view it in the light          most  favorable  to   the  non-  moving  party  and  indulge  all          reasonable inferences favorable to that party. Id. at 31.                                                         ___               The Diodatos  concede that we  must look to  the substantive          law of Massachusetts in this  FTCA suit.  They also concede  that          the  United States is not vicariously liable for the torts of its                                         -4-                                          4          independent contractors or their employees.  Brooks v. A. R. & S.                                                       ____________________          Enterprises, 622 F.2d 8,  10 (1st Cir. 1980).  They advance three          ___________          theories of direct liability: failure to supervise adequately the          subcontractor's   work;  failure  to   make  the   project  areas          reasonably  safe; and failure to  comply with a  statutory  duty.          On the record before us, none of these theories is persuasive.               Because the contract  specifically delegated  responsibility          for  the safety  of the  project to  Nova Group,  and the  United          States  did not  retain supervisory  control, we  agree with  the          district court that  the United States cannot be held liable on a          theory   of  inadequate   supervision.     See   Foley  v.   Rust                                                     ___   ________________          International, 901  F.2d  183  (1st  Cir. 1990).    The  contract          _____________          specially required Nova Group to inform the government twenty-one          days in  advance  of any  utility shut-down  necessitated by  the          project.   In addition, Nova committed itself to ensuring that no          crane would be  operated   within ten feet  of overhead  electric          lines unless the power was shut off.  The government was entitled          to rely on this agreement.               Plaintiffs cite a number of cases, all decided under the law          of other jurisdictions, for the  proposition that an employer has          a non-delegable duty to supervise independent contractors engaged          in  inherently  dangerous  work.  See, e.g.,  Gardner  v.  United                                                        ___________________          States, 780  F.2d  835, 838  (9th  Cir. 1986)  (California  law);          ______          Barron v. United  States, 654  F.2d 644, 646-47  (9th Cir.  1981)          ________________________          (Hawaii  law); McGarry v. United  States, 549 F.2d  587, 590 (9th                         _________________________          Cir.  1976)   (Nevada  law).     Unfortunately  for   plaintiffs,                                         -5-                                          5          Massachusetts  has  specifically    rejected this  rule.    Under          Massachusetts  law,  an  employer of  an  independent  contractor          performing dangerous  work must take reasonable  steps to protect          the  public,  but  owes  no  special  duty  to  the  contractor's          employees.   Vertentes v.  Barletta Co.,  466 N.E.2d  500, 501-02                       __________________________          (Mass. 1984).               The  Diodatos'  second  theory  of  liability  is  that  the          government,  as  owner and  possessor of  the  land on  which the          accident  occurred, owed decedent a duty to protect against or to          warn   of  dangerous   conditions   on  the   property.     Under          Massachusetts  law, a landowner owes a duty of reasonable care to          the employees of its independent contractors.  Poirier v. Town of                                                         __________________          Plymouth, 372 N.E.2d  212, 227 (Mass.  1978). The property  owner          ________          "must  take those steps to prevent injury that are reasonable and          appropriate under all the circumstances," id., but has no duty to                                                    ___          warn  of obvious dangers.   Young v. Atlantic  Richfield Co., 512                                      ________________________________          N.E.2d 272, 276 (Mass. 1987), cert. denied, 484 U.S. 1066 (1988).                                        ____________               While the United States undoubtedly owed the decedent a duty          to "exercise ordinary  prudence and care  in the maintenance  and          use of its  power line," Gelinas  v. New England  Power Co.,  268                                   __________________________________          N.E.2d 336, 339 (Mass. 1971), plaintiffs have not argued that the          power  lines  were defective  or  poorly maintained.    They rely          instead on  evidence that many persons are unaware of the  danger          inherent in uninsulated power  lines.  We are bound,  however, by          the determination of the Supreme Judicial Court that, as a matter          of law, the danger of such lines is open and obvious to one aware                                         -6-                                          6          of their presence.  Burr v.  Massachusetts Elec. Co., 248  N.E.2d                              ________________________________          492, 495 (Mass. 1969).1                 The  United States  submitted  uncontroverted evidence  that          both the decedent and  the crane operator noted the   power lines          just  before  the  accident  occurred.    As  a  matter  of  law,          therefore, the danger presented by the power lines must be deemed          obvious to the decedent.                 Plaintiffs also  point us to Massachusetts  cases describing          electricity as a dangerous instrumentality, and holding those who          employ it to a correspondingly high degree of care. E.g., Gelinas                                                              ____  _______          v. New England  Power Co.,  268 N.E.2d   336,  339 (Mass.  1971).          _________________________          This  special degree of care, however, "is limited to those cases          where  the victim  of  the  accident  was,  in  relation  to  the          defendant,  a member of the  general public."   Lawler v. General                                                          _________________          Elec. Co., 294  N.E.2d  535, 537 (Mass. App.  1973). Such was not          _________          the case here.                 Finally, plaintiffs  contend  that the  government  violated          Massachusetts   statutes  governing   the  use   of  construction          equipment  within six feet of live, unguarded power lines.  Mass.          Gen.  L. ch.  166,  21A,  21B  (1976).   By  their  terms,  these          provisions do not  appear to  govern the conduct  of persons  not          directly  responsible   for  the  work.     Moreover,  plaintiffs          presented  no  evidence that  the  United  States "require[d]  or                                        ____________________          1Because, unlike Massachusetts,  Ohio holds  as a  matter of  law          that  the dangers  of  electric wires  are not  readily apparent,          Angel v. United  States, 775  F.2d 132 (6th  Cir. 1985),  decided          _______________________          under the law of Ohio, does not advance the plaintiff' cause.                                         -7-                                          7          permit[ted]"  Nova  employees  to  operate  the  crane  in  close          proximity to live power lines.                                           V               For  the foregoing  reasons, we  conclude that  the district          court properly granted summary judgment for the United States.                Affirmed.                ________                                         -8-                                          8
