Knisely v. Centeral Vermont Hospital

Knisely v. Central Vermont Hospital (99-159); 171 Vt. 644; 769 A.2d 5 

[Filed 12-Oct-2000]
[Motion for Reargument Denied 5-Jan-2001]


                                 ENTRY ORDER

                       SUPREME COURT DOCKET NO. 99-158

                               MAY TERM, 2000


Geoffrey R. Knisely	               }	APPEALED FROM:
                                       }
                                       }
     v.	                               }	Chittenden Superior Court
                                       }	
                                       }
Central Vermont Hospital, et al.       }	DOCKET NO. S0634-95 CnC

                                                Trial Judge: Matthew I. Katz

             In the above-entitled cause, the Clerk will enter:


       Central Vermont Hospital (Hospital) appeals the dismissal of its
  third-party indemnity claim  against Technical Services Program at the
  University of Vermont (TSP).  The indemnity case stems  from a claim by Dr.
  Geoffrey Knisely, an anesthesiologist at the Hospital who alleged that, as
  a result  of the Hospital's negligence in providing a safe workplace, he
  developed hepatitis resulting from  exposure to waste anesthetic gases. 
  The Hospital settled Dr. Knisely's claim and sought indemnity  from TSP for
  its alleged failure to effectively monitor and report the level of waste
  gases in the  Hospital's operating rooms.  The superior court granted TSP's
  motion for summary judgment finding  that there was no express agreement by
  TSP to indemnify the Hospital and concluding that the  Hospital was not
  entitled to implied indemnity.  We agree with the superior court that, as a
  matter of  law, the Hospital is not entitled to indemnification;
  accordingly, we affirm the court's judgment.

       A summary judgment ruling is affirmed only where the record shows no
  genuine dispute of  material fact, and that one party is entitled to
  judgment as a matter of law.  V.R.C.P. 56(c); White v.  Quechee Lakes
  Landowners' Ass'n, __ Vt. __, __, 742 A.2d 734, 736 (1999).  The party
  opposing  summary judgment "must set forth specific facts showing that
  there is a genuine issue for trial."  V.R.C.P. 56(e).  We regard all
  allegations made in opposition to summary judgment as true, if  supported
  by affidavits or other evidence.  Chapman v. Sparta, 167 Vt. 157, 159, 702 A.2d 132, 134   (1997).

       The following facts were largely undisputed.  Dr. Knisely, plaintiff
  in the underlying case,  worked as an anesthesiologist at Central Vermont
  Hospital from 1986 until 1992, when he was  diagnosed with hepatitis.  Dr.
  Knisely's complaint alleged injury from exposure to waste anesthetic 
  gases, specifically to excess levels of halothane, as a result of the
  Hospital's negligence in failing to  provide adequate ventilation and air
  exchange in the operating rooms.  Dr. Knisely also alleged that  the
  Hospital was aware of the inadequacy of the ventilation system and
  deliberately concealed that  information from him and others who were
  exposed to the dangerous conditions.

 


       According to Dr. Knisely, air exchanges are "one of the major ways to
  get rid of the waste  gases and other chemicals that are present in [the]
  operating room."  Although Vermont Department  of Health Regulations set
  the minimum standard at fifteen exchanges per hour, during the course of 
  his employment, the Hospital documented the number of air exchanges per
  hour in the operating  rooms to be between five and seven, and as low as
  two.  The Hospital acknowledged that it became  aware that the air exchange
  system in the operating rooms was not functioning properly in 1987  during
  a renovation, and the record indicates that Hospital officials had been
  aware that the system  was faulty as early as 1969. 

       The University of Vermont's Technical Services Program provides
  preventative maintenance  services and repairs on patient care equipment at
  hospitals. In 1981, the Hospital contracted with  TSP to test the air in
  its operating rooms for the presence of waste anesthetic gases twice
  annually,  and to report its findings to Hospital staff.  On at least one
  occasion, in April 1990, TSP found, and  reported, air levels of
  glutaraldehyde in the Hospital's endoscopy and operating rooms to be 25-30 
  times higher than a recently-revised legal limit. 

       In granting summary judgment in favor of TSP, the court found that the
  Hospital had a  nondelegable duty to make its workplace safe for those who
  would be using it.  Further, the court  found that although the Hospital
  assigned a portion of the task to TSP - that of inspecting and  reporting gas
  levels in operating rooms - TSP was neither assigned, nor undertook, the task
  of  repairing the Hospital's allegedly inadequate ventilation system. (FN1) 
  The court also found that,  during the relevant period, the Hospital knew
  of its ventilation problem.  Finally, the superior court  concluded that
  the Hospital "acquiesced in the dangerous situation" because it "did
  nothing to stop  what became the injury to the anesthesiologist." (FN2)

       In its appeal of the summary judgment decision, the Hospital contends
  that factual issues  remained in determining the proximate cause of Dr.
  Knisely's injuries.  Because the underlying case  with Dr. Knisely settled
  before trial, neither the presence of excessive levels of glutaraldehyde,
  nor  the actual rate of air exchange were established to be the cause of
  Dr. Knisely's halothane-induced  hepatitis.  The Hospital further alleges
  that TSP failed to perform its duty to monitor the level of  employee
  exposure to waste gases in a careful and skillful manner, as its sampling
  procedures and  analysis were unreliable.  In particular, the Hospital
  points to TSP's failure to report the presence of  excess levels of
  halothane, the purported cause of Dr. Knisely's injury.  Finally, the
  Hospital  contends that it had no knowledge of excess levels of halothane
  in its operating rooms, and therefore 

 

  did not knowingly acquiesce to the continuance of a dangerous condition. 
  None of the Hospital's  allegations, however, raise material facts relevant
  to the issue of indemnity to defeat judgment as a  matter of law in favor
  of TSP.

       The right to indemnity arises when "(a) there is an express agreement
  or undertaking by one to  indemnify the other, or (b) the circumstances are
  such that the law will imply such an undertaking."  Bardwell Motor Inn,
  Inc. v. Accavallo, 135 Vt. 571, 572, 381 A.2d 1061, 1062 (1977).  The
  contract  between the parties is silent on the issue of indemnification. 
  As the third-party plaintiff in this  action, the Hospital has the burden
  of establishing its right to implied indemnification.   Quechee  Lakes, __
  Vt. at __, 742 A.2d  at 738.

       The right to indemnity is an exception to the longstanding rule in
  Vermont barring  contribution among joint tortfeasors.  Chapman v. Sparta,
  167 Vt. at 159, 702 A.2d  at 134.   Indemnification accrues "to a party who,
  without active fault, has been compelled by some legal  obligation, such as
  a finding of vicarious liability, to pay damages occasioned by the
  negligence of  another."  Morris v. American Motors Corp., 142 Vt. 566,
  576, 459 A.2d 968, 974 (1982).  Implied  indemnity should be imputed "only
  when equitable considerations concerning the nature of the  parties'
  obligations to one another or the significant difference in the kind or
  quality of their conduct  demonstrate that it is fair to shift the entire
  loss occasioned by the injury from one party to another."   Quechee Lakes,
  __ Vt. at __, 742 A.2d  at 737 (citing W. Keeton, Prosser and Keeton on the
  Law of  Torts § 51 at 344 (5th ed. 1984)).

       "[I]mplied indemnification is usually appropriate only when the
  indemnitee is vicariously or  secondarily liable to a third person because
  of some legal relationship with that person or because of  the indemnitee's
  failure to discover a dangerous condition caused by the act of the
  indemnitor, who is  primarily responsible for the condition."  Id.
  (emphasis added) (citing Prosser and Keeton, § 51 at  341-43).  The
  Restatement of Restitution § 95 (1937) sets forth the rule:

    Where a person has become liable with another for harm caused to a 
    third person because of his negligent failure to make safe a
    dangerous  condition of land or chattels, which was created by the
    misconduct of  the other or which, as between the two, it was the
    other's duty to  make safe, he is entitled to restitution from the
    other for expenditures  properly made in the discharge of such
    liability, unless after discovery  of the danger, he acquiesced in
    the continuation of the condition.

  Id. (emphasis added).  

       The Hospital vigorously asserts that it cannot be said to have
  acquiesced to a dangerous  condition because material facts remain in
  dispute about its knowledge of elevated levels of gases,  and whether the
  elevated levels were the result of existing ventilation problems.  It has
  greater  difficulty, however, in contravening the trial court's conclusion
  that as between the Hospital and  TSP there is no material dispute that it
  was the Hospital's duty to make the operating rooms safe 

 

  for the employees who worked there.

       The Hospital has a nondelegable duty to provide a safe workplace for
  its employees.  See 21  V.S.A. § 223(a); Gerrish v. Savard, __ Vt. __, __,
  739 A.2d 1195, 1199 (1999).  Although we have  recognized implied indemnity
  claims in circumstances where the indemnitor assumed the same duty  over
  which the injured party was suing, we have done so only where as a matter
  of equitable  indemnification it could be determined that "the violation of
  that duty was clearly the primary fault  of the [indemnitor] . . ." 
  Bardwell, 135 Vt. at 573, 381 A.2d  at 1062.  In Bardwell, for example, 
  plaintiff, a hotel, contracted with defendants to replace a glass panel in
  a door to its main entrance.   Defendants removed the glass panel without
  giving prior notice to plaintiff, and left without  advising plaintiff of
  the existing dangerous condition or posting any warning signs.  Plaintiff
  sought  indemnification for its liability for injuries suffered by one of
  its patrons while trying to open the  door.  Upholding a judgment for the
  plaintiff, we explained:

    [I]t was clearly the duty of the defendants to make safe the door
    on  which they were working or to warn of the danger they had
    created.   While, as against the person injured, plaintiff here
    had a nondelegable  duty to keep its premises reasonably safe, the
    violation of that duty  was clearly the primary fault of the
    defendants, and a right of  indemnity in the plaintiff follows.

  Id.; see also Chapman, 167 Vt. at 160-61, 702 A.2d  at 134-35 (if
  responsibility for selecting floor  tiles entrusted to defendant, the
  plaintiff could seek indemnification); Morris, 142 Vt.at 576-77, 459 A.2d 
  at 974 (1982) (manufacturer of a defective automobile part was required to
  indemnify  automobile manufacturer who was found vicariously liable for
  injuries sustained as a result of the  defect); Peters v. Mindell, 159 Vt.
  424, 429, 620 A.2d 1268, 1271 (1992) (engineering company that  contracted
  with sellers of a home to design and build septic system would be required
  to indemnify  sellers for any liability to buyers for defect in the septic
  system, so long as sellers did not acquiesce  in the defect). 

       Here it cannot be said that the Hospital entrusted its nondelegable
  duty to maintain a safe  workplace for its employees to TSP.  Pursuant to
  its contract, TSP's duties consisted of visiting the  Hospital twice a year
  to test the "anesthesia machines for leaks and also . . . the ambient air
  during  surgical procedures," and to regularly report its findings to
  Hospital officials.  The Hospital claims  that TSP did not perform its
  duties in a safe and skillful manner.  But that characterization, even if 
  accurate, does not transform TSP's obligation into a duty to maintain the
  Hospital premises in a safe  condition for its employees.  See Hopper v.
  Kelz, 166 Vt. 616, 617, 694 A.2d 415, 416 (1997)  (mem.) (rejecting an
  indemnity claim by homeowner against appliance company where company's 
  duty to replace the refrigerator in a safe and skillful manner did not
  incur a duty with respect to the  safety of homeowner's stairway upon which
  company employee was injured.)


       Affirmed.



                                       BY THE COURT:



                                       _______________________________________
                                       Jeffrey L. Amestoy, Chief Justice

                                       _______________________________________
                                       John A. Dooley, Associate Justice

                                       _______________________________________
                                       James L. Morse, Associate Justice

                                       _______________________________________
                                       Denise R. Johnson, Associate Justice

                                       _______________________________________
                                       Marilyn S. Skoglund, Associate Justice


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                                  Footnotes


FN1.  Repairs of the Hospital's air exchange system were apparently
  entrusted to outside  contractors, Northeastern Heating and Ventilating,
  Hallam Associates, and Johnson Controls.  

FN2.  For reasons set forth in this opinion, we find the superior court's
  conclusion with respect to  "acquiescence" unnecessary to support its
  summary judgment in favor of TSP.  See Bissonnette v.  Wylie, 166 Vt. 364,
  370, 693 A.2d 1050, 1055 (1997) (Court may affirm trial court's decision 
  though based on a different rationale).