Indemnity denied where manufacturer did not assume responsibility for workplace safety and did not create the dangerous condition.

Hemond v. Frontier Communications of America, Inc., 2015 VT 67 (Hemond III)

REIBER, C.J.   Plaintiff alleged, among other things, negligence in the design, manufacture, installation, and construction of the substation, negligent selection and installation of the switch, and defective manufacture, design, and distribution of the switch. Defendant Frontier Communications of America, Inc. appeals decisions denying its cross-claims for indemnity against three codefendants, a consulting firm that provided services to Frontier in connection with the reconstruction of the Richford substation; the manufacturer of the switch; and the distributor of the switch. Frontier asserts that it is entitled to implied indemnification from all three codefendants, and that the court erred in granting summary judgment because there are disputed questions of fact. We affirm.

Implied indemnity will apply “only when the party seeking indemnity is vicariously liable to the third person because of a legal relationship or because of the party’s failure to discover a dangerous condition caused by the indemnifying party, ‘who is primarily responsible for the condition.’ ”  Hemond II, 2015 VT 66, ¶ 9 (quoting White, 170 Vt. at 29, 742 A.2d at 737).  Frontier has failed to meet the standard for implied indemnity because this case presents no facts that could demonstrate that its liability to plaintiffs was vicarious through Stantec, Turner, or Graybar, or that Frontier was not primarily responsible for creating the dangerous condition that caused the accident.  

Frontier asserts that it did not engage in “active” negligence, but rather that its negligence, if any, was in failing to discover that the switch was dangerous when used in a particular circumstance.  But Frontier has failed to demonstrate that those entities assumed the primary responsibility for ensuring safety.  As explained in Hemond II, it was Frontier’s responsibility to design a safe substation.  Frontier failed to show that any of the codefendants assumed primary responsibility for safely designing the substation or choosing the switch.  At most, the evidence highlighted by Frontier suggests that Frontier relied on Turner and Graybar to indicate whether the switch was suitable for its intended purpose.  Frontier has failed to show that it delegated primary responsibility over safety to any of its codefendants.

Further,  the undisputed facts show that Frontier’s own acts, not those of any other defendant, created the dangerous condition which led to plaintiff’s injury.  Implied indemnity is limited to circumstances where the violation of the duty was “ ‘the primary fault’ ” of the indemnitor. See Restatement (First) of Restitution § 95 (explaining that a party’s negligent failure to make safe a dangerous condition is excused only when the danger was caused by the act of another who, as between the two, is primarily responsible for the condition). 

The critical fact—undisputed by Frontier—is that Frontier retained responsibility for the safety of its equipment and its workplace, and that the injury was primarily caused by Frontier’s own actions in choosing, and installing the switch.