49 F.2d 52 (1931)
UNITED STATES
v.
BUTLER.
No. 5876.
Circuit Court of Appeals, Fifth Circuit.
April 17, 1931.
W. P. Hughes, U. S. Atty., of Jacksonville, Fla., Raymond F. Brown, Sp. Atty., Bureau of Internal Revenue, of Miami, Fla., and Eugene E. Angevine, Bureau of Internal Revenue, of Washington, D. C., for the United States.
J. Turner Butler and J. Robert Sherrod, both of Washington, D. C., for appellee.
Before FOSTER, SIBLEY, and HUTCHESON, Circuit Judges.
FOSTER, Circuit Judge.
Appellee sued to recover income taxes amounting to about $2,000, which had been assessed on compensation received by him as attorney for Duval county, Fla., for the years 1919, 1920, 1921, and 1922, paid under protest. From an adverse judgment the United States appeals.
The findings of fact of the District Court are not objected to. The following material facts appear from the record: Appellee was employed February 4, 1919, by the board of commissioners of Duval county, Fla., to represent it as its legal advisor. His term was to run as long as his services were satisfactory, *53 and it extended through the year 1922, until the then board went out of office. His salary was fixed by resolutions of the board and covered compensation for attendance at all meetings of the board, preparation of resolutions and contracts, legal advice, and services in litigated matters of an ordinary nature. He was carried on the pay roll of the board and was paid his salary monthly. In addition he was allowed extra compensation for services in connection with certain litigated cases and bond issues. During the entire period of his employment he was continuously under the direction and control of the board. He frequently advised with and received instruction from them. He was employed to represent the county in all matters of a legal nature and was expected, without express orders from the board, to represent and defend the county in all such matters. He was not employed in each particular instance. He maintained his private law office but devoted 75 per cent. of his time to attending to his duties as attorney for the board, which he did not allow his private practice to interfere with.
This case is identical as to its facts with the case presented in Blair v. Mathews, 29 F.(2d) 892, in which we held in favor of the taxpayer. However, the government relies upon the leading case of Metcalf & Eddy v. Mitchell, 269 U. S. 514, 46 S. Ct. 172, 70 L. Ed. 384, and subsequent decisions, applying the principles announced in that case to various other combinations of facts.
We may assume that under the ruling in the Metcalf & Eddy Case that appellee was not an officer, as his position was not created by express statute, he did not take an oath, and his tenure of office, emoluments, and duties were not fixed by law. We may also pass without decision the question as to whether the tax upon his compensation was an interference with the governmental functions of the board of commissioners. The question therefore presented for decision is whether appellee was an employee of a political subdivision of a state and whether as such his compensation was exempt from taxation, under the provisions of section 1211 of the Revenue Act of 1926 (26 USCA § 1065 b), and similar taxing statutes. The decision of this question depends upon whether the facts in the case at bar are so similar to those appearing in the Metcalf & Eddy Case as to require a reversal.
In the Metcalf & Eddy Case it was held that they were independent contractors and not either officers or employees. The opinion does not review the facts in detail but the following clearly appears: Metcalf and Eddy were consulting engineers. They were employed by various subdivisions of different states under contracts for their services in connection with particular projects. None of their engagements was for work of a continuous character. Their compensation was fixed by their contracts for each separate project. They were at liberty to engage in other concurrent employment. They were expected to use their judgment and skill in doing their work and were not subject to the control of the subdivisions employing them.
Except that appellee was required to use his judgment and skill as a lawyer in serving the board, there is no similarity between his employment and that of Metcalf and Eddy. Unlike Metcalf and Eddy, he was continuously employed by one political subdivision to render any and all legal services that might be required. The board of commissioners had first call upon his services and the right to demand and use all his time. He was not at liberty to take other employment if his services were required by the board. That he indulged to some extent in private practice is immaterial. It is quite usual for attorneys occupying a public position to engage in private practice if time and opportunity permit. It is also immaterial that he was allowed extra fees for certain services. That was merely a method of measuring his compensation.
The government also relies upon the case of Howard v. Commissioner (C. C.) 29 F. (2d) 895, reversed on the authority of Metcalf & Eddy v. Mitchell, 269 U. S. 526, 46 S. Ct. 172, 70 L. Ed. 384. In that case we did not consider whether Howard was an officer or an employee of a political subdivision of the state of Texas. He had been employed in four separate suits by cities in Texas, and we held that in representing them he was exercising governmental functions as their agent which were in no sense remote. That case may be differentiated the same as the Metcalf & Eddy Case.
The conclusion reached on the facts in this case is that appellee was an employee of a political subdivision of the state of Florida within the meaning of the statute and his compensation as such was exempt from federal income taxes.
Affirmed.
HUTCHESON, Circuit Judge (concurring).
That appellee was an employee of Duval county as to the regular routine work covered *54 by and performed under the resolution of the board of county commissioners fixing the salary of the county attorney, and that his regular monthly compensation for the duties of such employment was exempt from taxation as moneys received as such employee, I think there can be no doubt.
In law the word "employee" is chameleon-like; it takes color and meaning not only from the words with which it is associated, but from the subject-matter with which the statute or order in which it is found is concerned. 15 Cyc. 1032, 1033; Campfield v. Lang (C. C.) 25 F. 128; Millers' Indemnity Underwriters v. Cook (Tex. Civ. App.) 229 S. W. 598; Gay v. Hudson River (C. C.) 178 F. 499, 500; Gurney v. Atl. Ry. Co., 58 N. Y. 358; Latta v. Lonsdale (C. C. A.) 107 F. 585, 52 L. R. A. 479.
While it is true that it is most often used of those employed in less important positions in contradistinction to officers, managers, superintendents etc., it is also true that where the purpose of the statute under investigation requires it, it has a fuller and broader meaning, and will include persons employed in practically every grade, so that the nature of the work performed is no longer a distinguishing mark of an employee. Shields v. Grace, 91 Or. 187, 179 P. 265, 270; Smith v. Bowersock, 95 Kan. 96, 147 P. 1118, 1121; Clark v. New England Tel. Co., 231 Mass. 546, 121 N. E. 497; Burnap v. U. S., 252 U. S. 518, 40 S. Ct. 374, 64 L. Ed. 692.
For at common law, and unless controlled by the context, the subject-matter or the purpose of the statute, whether one who works or performs service for another is an employee is not determined by the rank or importance of the position which he holds, or the character of service rendered, and the term many include attorneys, physicians, etc., whether privately or publicly employed. Gurney v. Atlantic Ry. Co., 58 N. Y. 358; Cyc. 15, p. 1032-1033; Fisher v. City of Mechanicville, 225 N. Y. 210, 121 N. E. 764, 765 (attorney employed by a village on a small yearly salary).
Nor does the question whether one is an employee or a contractor depend upon the nature of the work performed, or the character of the person performing it; rather it is determined by the conditions under which the work is performed; that is, whether it has regularity and continuity, and is performed under the control and direction, though general, of the employer. If the employment is for a single act, or for a series of isolated acts the employment being specific as to each act, the person employed, whether an attorney in legal matters or a layman in others, is not an employee, but an independent contractor. Hand v. Cook, 29 Nev. 518, 92 P. 3; Clark v. Renninger, 89 Md. 66, 42 A. 928, 44 L. R. A. 413; Louisville, E. & St. L. R. Co. v. Wilson, 138 U. S. 505, 11 S. Ct. 405, 407, 34 L. Ed. 1023.
Perhaps the best statement of the distinction is found in the Wilson Case, supra, where it is said: "The terms `officers' and `employees' both alike refer to those in regular and continual service. Within the ordinary acceptation of the terms, one who is engaged to render service in a particular transaction is neither an officer nor an employee. They imply continuity of service, and exclude those employed for a special and single transaction."
The facts established and found in this case are that appellee was both regularly and continuously employed, and that this work was performed by him under the general direction and control of his employer, the board of county commissioners. Vane v. Newcombe, 132 U. S. 233, 10 S. Ct. 60, 33 L. Ed. 310; R. R. v. Wilson, 138 U. S. 505, 11 S. Ct. 405, 34 L. Ed. 1023.
There is some insistence by the government upon the authority of Blair v. Byers (C. C. A.) 35 F.(2d) 326, Kreipke v. Commissioner (C. C. A.) 32 F.(2d) 594, 596, and Burnet v. McDonough (8 C. C. A.) 46 F.(2d) 944, that since appellee was employed as an attorney to do work in which he was specially skilled, and in regard to the manner and method of the performance of which he must have been left to his own devices, and because his full time was not taken up by the county employment, and continuing his private office he was allowed to and did have other clients, it must be held that he was not an employee, because not a full-time one, and because not subject to direction and control as to the details of the work to be performed.
Upon the first point I think it plain that since nowhere in the statute authorizing the deduction of compensation received as an employee of the state or its subdivisions is there any requirement that an employee shall give his full time, that whether he gives his full time or not has no legal and little evidentiary significance as a test. But if it has any, appellee has satisfied it here, for he was obligated to the county to give all the time necessary to accomplish the tasks which they required of him, and could take *55 no other business except in spare time, and he did in fact give 75% of his time to the county. Maryland Casualty Co. v. Kent (Tex. Com. App.) 3 S.W.(2d) 414; R. R. Co. v. Hanning, 15 Wall. 656, 21 L. Ed. 220.
Upon the second point, the test of control, it is perfectly plain that it is satisfied in the matter of the services of a professional character rendered by lawyers and physicians, by a general employment to perform the work of the state or county as it comes up in the way and manner which the professional skill of the employee dictates to him; and that if the test of control as applied to the employment of professional men having particular skill, like lawyers, demands more than that control which is implied from the relation of employer and employee created by a contract of employment for regular and continuing services on a monthly salary, it must be rejected.
However, in this case, the test of control is satisfied in the strictest way by the stipulation and the findings that "during the entire period of employment plaintiff was continuously under the direction and control of the County Commissioners."
As to that part of the compensation paid appellee over and above his salary under the last paragraph of the resolution: "Said salary shall not cover representation in litigated cases nor work necessarily done in connection with the issuing of county bonds, payment for all such representation and work not covered by salary as above mentioned to be made at a reasonable price to be agreed upon between the Board of County Commissioners and its said attorney," I think the matter stands differently; that such payments were not received by appellee as an employee, but as an agent of the county; and that he is not entitled to deduct as an employee of the county the sums so received.
There is much to be said for the view expressed in the majority opinion that though these sums were not paid in a regular and continuous way, but accrued to him from isolated transactions having no sequential connection with each other, all of them flowed to him as a result and as part of his contract and status as employee. That they represented not sums paid upon individual and separate contracts, but upon the one contract of employment, and as part of the general compensation therein provided for, the only matters not fixed by that contract being not the employment, but the compensation for it, which was to be fixed and measured as the necessity for the rendition of the services arose. That it is not essential to the relation of employee that payment be made on a regular basis. Maryland Casualty Co. v. Kent (Tex. Com. App.) 3 S.W. (2d) 414; R. R. Co. v. Hanning, 15 Wall. 649, 21 L. Ed. 220; Shannon v. Western Indem. Co. (Tex. Com. App.) 257 S. W. 522.
With the principle announced I fully agree, and it is only because I do not so interpret the contract that I find myself unable to agree to its application here. It seems to me that the contract had only the effect to exclude from the duties which plaintiff as an employee assumed those special matters referred to in it as excluded, and that these matters were made the subject of special agreements from time to time as they arose.
It does not follow, however, that the moneys so received were taxable. On the contrary, I think it perfectly plain that these sums are no more taxable than those received by him as employee, for they, just as the sums which he got by way of monthly salary, were paid to and received by him as an agency of the board of county commissioners for discharging for them their general duties imposed by the statutes of Florida, and taxation imposed upon sums so received would be "to affect a governmental agency in such manner as directly to interfere with the functions of government." Metcalf & Eddy v. Mitchell, 269 U. S. 514, 46 S. Ct. 172, 70 L. Ed. 384; Blair v. Mathews (C. C. A.) 29 F.(2d) 892, 894; Panhandle Oil Co. v. Mississippi, 277 U. S. 218, 48 S. Ct. 451, 72 L. Ed. 857, 56 A. L. R. 583.
The statutes of Florida in force at the time appellee was employed provided, section 2153, Compiled General Laws of Florida 1927, under "Powers and duties," that: "The board of county commissioners of each county shall have power, at any legal meeting, to elect one of their number chairman, and to make such orders concerning the care of and the improvement of the corporate property of the county as may be deemed expedient, and also * * * To represent the county in the prosecution and defense of all legal causes. * * * To issue bonds in their respective counties [etc.] * * * To perform all other acts and duties that may be authorized by law."
Under these statutes the Supreme Court of Florida has held: (1) That in the absence of fraud the county commissioners have wide discretion in exercising the authority conferred on them by statute, Bowden v. Ricker, 70 Fla. 154, 69 So. 694; (2) county *56 commissioners are constitutional officers, and their powers and duties have been fixed and prescribed by the Legislature, State v. Walton County, 93 Fla. 796, 112 So. 630. While in Keggin v. Hillsborough County, 71 Fla. 356, 71 So. 372, in a full and considered opinion the Supreme Court of Florida has declared: "A county is a political subdivision of the state. * * * It is not a corporation; * * * it is created for administrative purposes. * * * It is purely political in character; its functions are of a public nature, constituting the machinery and essential agency by and through which many of the powers of the state are exercised."
The county commissioners had under the laws of Florida power and authority to discharge either in person or through employees, and or agents, duties thus imposed, including those to which the last clause of the employment resolution had particular reference, "To represent the county in the prosecution and defense of all legal cases, to issue bonds in their respective counties," etc. They elected to discharge some of these duties in person, some through appellee, the county attorney, as an employee upon a regular monthly salary, and some through appellee, the county attorney, as an agent specially compensated in each matter as it arose. In each of these instances the duties were performed by one having an intimate, official, and functional relation to the county, and being in law and in fact an agency and instrumentality through which the county, a political subdivision of the state, performed its governmental powers.
It is generally acknowledged that just as the state may not subject the federal government indirectly to the burden of state taxation by laying a tax upon the business which it does with, or the moneys which it pays to, an agency selected by it for the exertion of its constitutional powers, McCulloch v. Maryland, 4 Wheat. 316, 4 L. Ed. 579; Panhandle Oil Co. v. Mississippi, 277 U. S. 219, 48 S. Ct. 451, 72 L. Ed. 857, 56 A. L. R. 583, the federal government may not, through the indirect means of an income tax upon moneys paid to an agent of its selection, tax a sovereign state, Metcalf & Eddy v. Mitchell, 269 U. S. 521, 46 S. Ct. 172, 70 L. Ed. 384, and cases cited.
Here agencies and activities not remote and detached from, but so connected with, in fact, so intimate to the very official life and being of the county, are in question as that to burden them with taxation is in effect to tax the state itself. Under these circumstances, the effort to tax must fail, for the power to tax, which is the power to destroy, may be exercised neither by the state against the federal government, nor by the federal government against the state. Each as to the other is sovereign, and each has immunity from the other's taxing power.


COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH

NO. 2-03-313-CV

CHRIS
SMITH, RONALD D. SHARP,                                       APPELLANTS
MARC
BUNDREN, GRADY A. SMITH,
JOE
C. REID, DAN TEEL, AL MONTEMAR,
TIMOTHY
L. TYLER, ANABELL GOMEZ,
BRIAN
BULL, CHAD HANKINS, JAMES
QUITER,
KEN MITCHELL, CHRIS FIELDS,
AND
KEVIN SCOTT ROSS

V.

CARTER
& BURGESS, INC.                                                        APPELLEE

------------
FROM
THE 153RD DISTRICT COURT OF TARRANT COUNTY
------------

MEMORANDUM OPINION1

------------
        Appellants
appeal the trial court’s summary judgment in favor of their former employer,
Carter & Burgess, Inc. (C&B).  Because we hold that the employment
contracts unambiguously provided that appellants were not entitled to the
incentive bonuses they sued to receive, we affirm the trial court’s judgment.
        Appellants
signed identical employment agreements with C&B that provided they could be
terminated “for any reason, or no reason at all” after completion of an
initial eight-week orientation period. The employment contracts also provided
for an incentive payment under certain circumstances:

In the event Employee remains employed with Carter & Burgess for two years
after the Effective Date of this Agreement, complies with the terms of this
Agreement, and reaffirms the commitment to comply with the provisions of
Paragraphs 3 and 4 of this Agreement [dealing with non-disclosure of
information], Employee shall be eligible to receive deferred salary in the sum
of $15,000.  In the event Employee resigns before two years after the
Effective Date of this Agreement or is terminated for Cause (as defined in
paragraph 1), Employee is responsible for all costs for Employee to return to
his/her home location and also forfeits the Incentive Payment.

Appellants
were terminated after the orientation period but before the expiration of two
years’ employment when the project for which they were hired was
cancelled.  C&B did not make any incentive payments.
        Appellants
sued C&B for breach of contract and promissory estoppel, claiming they were
entitled to the incentive payments because they had not resigned or been
terminated for cause.  C&B filed a traditional motion for summary
judgment, asserting that the contracts were unambiguous and appellants were not
entitled to the incentive payments because they had not fulfilled the condition
precedent of two years’ employment.  The trial court granted the summary
judgment.  On appeal, appellants argue that the trial court erred by
granting summary judgment on their breach of contract claims because they claim
the incentive payment provision of the contracts is ambiguous.2
        We
review the trial court's summary judgment de novo.  Provident Life &
Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003); FM Props.
Operating Co. v. City of Austin, 22 S.W.3d 868, 872 (Tex. 2000).  When
reviewing a summary judgment, we take as true all evidence favorable to the
nonmovant, and we indulge every reasonable inference and resolve any doubts in
the nonmovant's favor.  S.W. Elec. Power Co. v. Grant, 73 S.W.3d
211, 215 (Tex. 2002); Sci. Spectrum, Inc. v. Martinez, 941 S.W.2d 910,
911 (Tex. 1997).  Under Texas Rule of Civil Procedure 166a(c), the party
moving for summary judgment bears the burden to show that no genuine issue of
material fact exists and that it is entitled to judgment as a matter of
law.  Haase v. Glazner, 62 S.W.3d 795, 797 (Tex. 2001); Rhone-Poulenc,
Inc. v. Steel, 997 S.W.2d 217, 223 (Tex. 1999).
        Resolution
of this dispute hinges on contract interpretation. In interpreting a written
contract, the court’s primary concern is to ascertain the true intentions of
the parties as expressed in the instrument.  See Coker v. Coker, 650
S.W.2d 391, 393 (Tex. 1983).  The court will construe the intention of the
parties primarily by referencing the words used in the contract.  See,
e.g., Preston Ridge Financial Servs. Corp. v. Tyler, 796 S.W.2d 772, 775
(Tex. App.–Dallas 1990, writ denied).  To ascertain the true intentions
of the parties, the court will examine and consider the entire writing in an
attempt to harmonize all provisions of the contract and give effect to all
provisions of the contract so that none will be rendered meaningless.  J.M.
Davidson, Inc. v. Webster, 128 S.W.3d 223, 229 (Tex. 2003).  All
provisions of the contract should be considered with reference to the entire
instrument, and no single provision taken alone should be controlling.  Id.
 Moreover, in harmonizing contract provisions, terms stated earlier in an
agreement must be favored over subsequent terms.  See Coker, 650
S.W.2d at 393; Tyler, 796 S.W.2d at 778.
        Whether
a contract is ambiguous is a question of law for the court. See, e.g.,
Webster, 128 S.W.3d at 229. Texas law provides extensive guidance to assist
the court in making this determination. See Med. Towers, Ltd. v. St. Luke’s
Episcopal Hosp., 750 S.W.2d 820, 822 (Tex. App.–Houston [14th
Dist.] 1988, writ denied). To determine whether a contract is ambiguous, the
court will look at the contract as a whole in the light of the circumstances
present when the contract was entered. See Coker, 650 S.W.2d at 394. “A
contract is ambiguous when it is subject to more than one reasonable meaning,
unresolvable by rules of [contract] interpretation.” St. Lukes, 750
S.W.2d at 822. Disagreement as to the proper interpretation of a contract does
not automatically make it ambiguous.  Id. Similarly, uncertainty or
lack of clarity in the language chosen by the parties is not sufficient in
rendering a contract ambiguous. See, e.g., Tyler, 796 S.W.2d at 777.
        A
contract is considered unambiguous if it can be given a definite or certain
legal meaning.  See Columbia Gas Transmission Corp. v. New Ulm Gas, Ltd.,
940 S.W.2d 587, 589 (Tex. 1996).  If a contract can be given a definite
legal meaning, the court will construe the contract as a matter of law.  See,
e.g., Coker, 650 S.W.2d at 393.
        The
first sentence of the contracts in this case provides that if an employee
completes two years of service with the employer, the employee is eligible for
an incentive bonus.  The parties disagree as to the effect of the language
in the second sentence of the contracts.  Appellants interpret the
contracts to provide the incentive bonus even if the employees did not work for
the employer for two years, so long as they were not terminated for cause or did
not voluntarily cease working for C&B. Conversely, C&B contends that the
contracts provide the bonus incentive if, and only if, appellants worked for the
employer for two years and also provide that even if the employee has served
more than two years with the employer and is terminated for cause or quits, the
employee must not only provide for his or her own transportation home, but also
forfeit the incentive bonus.
        Applying
the canons of contract construction, we conclude that the only reasonable
interpretation of the incentive payment contract provisions is that they
required the appellants to remain employed for two years before becoming
eligible for the incentive bonus.  Reading the contracts to allow the
eligibility for an incentive bonus even if the appellants did not remain an
employee for two years would render the first sentence of the employment
contracts meaningless.  Therefore, we hold that the employment contracts
are unambiguous.  See Heritage Resources, Inc. v. NationsBank,
939 S.W.2d 118, 121 (Tex. 1996).
        We
must next determine whether the two-year employment requirement is a condition
precedent.  To determine whether a condition precedent exists, the court
will ascertain the intention of the parties, and that can be done only by
looking at the entire contract.  See Hudson v. Wakefield, 645 S.W.2d
427, 430 (Tex. 1993). In order to make performance specifically conditional, a
term such as “if,” “provided that,” “on condition that,” or some
similar language normally must be included.  Landscape Design and
Construction, Inc. v. Harold Thomas Excavating, 604 S.W.2d 374, 377 (Tex.
Civ. App.–Dallas 1980, writ ref’d n.r.e.).  If no such language is
used, the terms will be construed as a covenant in order to avoid
forfeiture.  See Hohenberg Bros. Co. v. George E. Gibbons & Co.,
537 S.W.2d 1, 3 (Tex. 1976).  While such language is not required, absence
of such language is probative of the parties’ intention that a promise be
made, rather than a condition imposed. Id.
        The
contracts in this case use such words:

In the event Employee remains employed with Carter & Burgess for two
years after the Effective Date of this Agreement, complies with the terms of
this Agreement, . . . Employee shall be eligible to receive deferred salary in
the sum of $15,000. In the event Employee
resigns before two years after the Effective Date of this Agreement or is
terminated for Cause . . . Employee is responsible for all costs for Employee to
return to his/her home location and also forfeits the Incentive Payment.

Thus,
we conclude that the only reasonable interpretation of the contracts is that
they contained a condition precedent requiring appellants to complete two years
of service before becoming eligible for the incentive bonus. The words “in the
event that” evidence an intent to create a condition precedent. Furthermore,
if a contract is to be interpreted as to give effect to all provisions of the
contract, interpreting the employment contract to contain a promise to be made,
rather than a condition precedent to performance, would render the first
sentence of the contract meaningless. Therefore, a proper interpretation of the
employment contracts would be to construe as a condition precedent the
requirement that appellants complete two years of employment in order to be
eligible for the incentive bonus.
        Because
we hold that the contract was unambiguous and contained a condition precedent
requiring appellants to be employed by C&B for two years before they would
become eligible for an incentive payment, we hold that the trial court did not
err in granting the summary judgment because the undisputed evidence showed that
appellants were not employed for two years. We overrule appellants’ issues and
affirm the trial court’s summary judgment.

                                                          ANNE
GARDNER
                                                          JUSTICE

PANEL
B:   DAUPHINOT, HOLMAN, and GARDNER, JJ.

DELIVERED:
February 10, 2005

NOTES
1.
See Tex. R. App. P. 47.4.
2.
We will affirm the summary judgment on the promissory estoppel claims because
appellants did not raise or brief any issue on appeal regarding those
claims.  Tex. R. App. P.
38.1(3), (h).


450 So.2d 654 (1984)
Thomas W. PIQUE
v.
Charles J. SAIA, Sr. and Charles J. Saia, Jr.
No. 83-C-1475.
Supreme Court of Louisiana.
May 14, 1984.
Rehearing Denied June 14, 1984.
*655 Paul H. Due, David Robinson, Due, Dodson, deGravelles, Robinson & Caskey, Baton Rouge, for plaintiff-applicant.
Charles A. O'Brien, Franklin, Moore & Walsh, William H. Cooper, Jr., Cooper, Thompson, Pierson, William T. Lowrey, Jr., Baton Rouge, for defendants-respondents.
DENNIS, Justice.
The question of law presented by this case is whether a homeowner's liability insurance policy clause excluding coverage for "bodily injury ... which is either expected or intended from the standpoint of the Insured," bars recovery for negligent injuries. The court of appeal set aside a judgment for the plaintiff, holding that recovery was barred by the exclusion. We reverse and reinstate the trial court judgment. Construing the ambiguous policy provision reasonably in favor of the insured, it excludes coverage only for intentional injuries. The trial court found that the injury at issue in this case resulted from the insured's negligent act, rather than an intentional act, and the evidence of record warrants this determination.
The plaintiff, Thomas W. Pique, a police officer, and a fellow officer approached the insured, Charles Saia, Jr., outside his father's house to arrest him for a traffic offense. Saia resisted. As he struggled with the officers, Saia pushed himself away from a fence. This caused the three men to sprawl upon a concrete driveway. In the fall, Pique received an elbow injury which ultimately required surgery.
Pique filed suit against Charles Saia, Jr., his father, and First of Georgia Insurance Company, his father's homeowner insurer. The trial court found that Saia negligently caused Pique's injuries. The court expressly determined that the injuries did not result from an intentional act. Therefore, the trial court concluded, Pique's recovery from the insurer was not barred by the policy provision excluding "bodily injury... which is either expected or intended from the standpoint of the Insured." Based on these findings, the court rendered judgment against Saia and the company in the amount of $9,936.47 plus legal interest.
First of Georgia appealed. The court of appeal reversed, holding that the policy exclusion is applicable and that there is no coverage afforded under the policy. The reasons assigned by the appeals court were that "it was manifestly erroneous to hold that Saia's actions were not intended or expected to cause injury." 432 So.2d 896, 898 n. 1; and that Saia's "actions were of such a nature that injury must necessarily be expected therefrom." Id. p. 899.
It is not clear whether the court of appeal found fault with the trial court's interpretation of the exclusionary policy clause or with its finding that plaintiff's injury did not result from an intentional act, or both. In either case, the appeals court incorrectly reversed the trial court judgment.
The policy provision excluding coverage for bodily injury expected or intended by the insured is ambiguous. An expected injury may be one which is highly likely, probable or substantially certain to happen. Accordingly, the exclusion could be interpreted to bar recovery for either intentional and negligent injuries or only an intentional injury. In accordance with the settled principle that ambiguity in an instrument is resolved against the draftsman, we construe the policy language to exclude coverage only for intentional injuries. La.C.C. arts. 1957, 1958; Bond v. Commercial Union Assur. Co., 407 So.2d 401 (La.1981); Benton Casing Service, Inc. v. Avemco, Ins., 379 So.2d 225 (La.1979); Credeur v. Luke, 368 So.2d 1030 (La.1979).
An injury is intentional, i.e., the product of an intentional act, only when the person who acts either consciously desires the physical result of his act, whatever the likelihood of that result happening from his conduct; or knows that that result is substantially certain to follow from his conduct, whatever his desire may be as to the result. Bazley v. Tortorich, 397 So.2d 475 (La.1981); W. Prosser, Law of Torts § 8 (4th ed. 1971); Restatement (Second) of Torts, American Law Institute § 8A (1965). *656 Cf. Jacobsen v. Southeast Distributors, Inc., 413 So.2d 995 (La.App. 4th Cir.1982); Eitmann v. West, 411 So.2d 1127 (La.App. 4th Cir.1982).
Applying these precepts to the evidence in this case, we conclude that the trial court's finding that plaintiff's injury resulted from a non-intentional and negligent act by Saia was not manifestly erroneous. Saia's resistance to arrest was legally unjustified, as the court of appeal observes. Nevertheless, we cannot say that the trial judge, who saw and heard the witnesses, was unreasonable in finding that, by his act of pushing away from the fence, Saia intended no harm to the officers. As in most cases, there was only circumstantial evidence of intent. The trial court reasonably could have inferred from this evidence that Saia merely intended to guard against a collision with the fence and did not desire or know to a substantial certainty that his particular act of pushing away from the fence would result in injury to the plaintiff. The defendant who acts in the belief or consciousness that he is causing an appreciable risk of harm to another may be negligent, and if the risk is great his conduct may be characterized as reckless or wanton, but it is not classed as an intentional wrong. Prosser, supra § 8.
Accordingly, the court of appeal judgment is reversed and the trial court judgment is reinstated.
REVERSED; TRIAL COURT JUDGMENT REINSTATED.
WATSON, J., concurs and assigns reasons.
MARCUS and BLANCHE, JJ., dissent and assign reasons.
WATSON, Justice, concurring.
While Saia acted intentionally when he pushed himself away from the fence during his struggle with the officers, the result of that act, i.e., the injury to Officer Pique, was not intended. Bourque v. Duplechain, 331 So.2d 40 (La.App. 3 Cir.1976), writ not considered 334 So.2d 230, writ denied 334 So.2d 210; Rambin v. Wood, 355 So.2d 561 (La.App. 3 Cir.1978); and Sherwood v. Sepulvado, 362 So.2d 1161 (La.App. 2 Cir.1978). Although Saia's act was intentional, the injury to Pique was not, and the insurance policy's exclusion does not apply.
I respectfully concur.
MARCUS, Justice (dissenting).
The facts reflect that there was a fight between Officers Rhodes and Pique and Charles Saia, Jr. During the confrontation, Saia swung at, kicked and wrestled with the officers in an attempt to prevent his arrest. The incident at the fence was merely a small part of the larger struggle. Viewing the totality of the events, I consider that Saia either expected or intended bodily injury to result from his conduct, thereby barring coverage under the homeowner's liability insurance policy. Accordingly, I respectfully dissent.
BLANCHE, Justice (dissenting).
I respectfully dissent.
The policy provision in question here contained the following exclusion from liability:
This policy does not apply:
* * * * * *
(f) to bodily injury or property damage which is either expected or intended from the standpoint of the insured.
I agree with the majority opinion insofar as it interprets this provision as referring to an intentional act, that is, one where the actor either consciously desires the physical result of the act or knows that the result is substantially certain to follow from his conduct. I do not agree that the defendant's actions in this case do not meet that definition.
The trial courts' findings of fact were to the effect that when Officer Pique attempted to place Saia, Jr. under arrest, the defendant swung at him and thereafter engaged in a wrestling match with Pique and another officer. According to the policemen who testified, Saia strongly resisted *657 arrest by kicking, and flailing his arms about. Saia was being held from behind by one officer and from the front by Pique who was attempting to handcuff him when he managed to get one hand free and push against the fence, causing the trio to fall. I can only conclude that any adult who engages two others in this type of physical altercation, particularly when the two are police officers attempting to make an arrest, either actively desires or knows to a substantial certainty that his actions will cause harm.


                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS         January 5, 2004
                       FOR THE FIFTH CIRCUIT
                                                          Charles R. Fulbruge III
                                                                  Clerk

                           No. 03-10142
                         Summary Calendar

UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

SHAWN DOUGLAS CROPP,

                                    Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Northern District of Texas
                     USDC No. 4:02-CR-6-1-Y
                      --------------------

Before JONES, BENAVIDES, and CLEMENT, Circuit Judges.

PER CURIAM:*

     Shawn Douglas Cropp was charged in a two-count indictment

for being a felon in possession of firearms.   See 18 U.S.C.

§ 922(g)(1).   He was tried before a jury and convicted.      Cropp

has appealed, contending that the evidence did not prove that he

knowingly possessed a firearm.

     Cropp was arrested after guns were found during the traffic

stop of a vehicle in which Cropp was a passenger.   A reasonable

     *
       Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
                             No. 03-10142
                                  -2-

juror could have concluded from Cropp’s proximity to the weapons

which were in plain view, the number of weapons found in the

vehicle, Cropp’s furtive movements, and the concealment of a

pistol in the crack of the seat underneath Cropp, that Cropp had

dominion or control over the weapons.       See United States v.

Ybarra, 70 F.3d 362, 365 (5th Cir. 1995); see also United States

v. Smith, 930 F.2d 1081, 1085–86 (5th Cir. 1991).      The judgment

of conviction is affirmed.

     Although Cropp has not raised the issue and has not filed a

reply brief, the Government states correctly that the district

court plainly-erred in imposing consecutive terms of supervised

release.   See United States v. Myers, 104 F.3d 76, 81 (5th Cir.

1997); 18 U.S.C. § 3624(e); U.S.S.G. § 5G1.2, comment. (n.2).      We

vacate the sentence and remand the case to the district court for

resentencing.

     AFFIRMED IN PART; VACATED AND REMANDED IN PART.


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980 F.2d 734
NOTICE:  Eighth Circuit Rule 28A(k) governs citation of unpublished opinions and provides that they are not precedent and generally should not be cited unless relevant to establishing the doctrines of res judicata, collateral estoppel, the law of the case, or if the opinion has persuasive value on a material issue and no published opinion would serve as well.Harold HENDERSON, Appellant,v.Marvin EVANS, Warden;  Robert Perry, Major;  Brenda Furman,Records Supervisor, Maximum Security Unit,Arkansas Department of Correction, Appellees.
No. 92-1118.
United States Court of Appeals,Eighth Circuit.
Submitted:  November 10, 1992.Filed:  December 3, 1992.

Before McMILLIAN, JOHN R. GIBSON, and BEAM, Circuit Judges.
PER CURIAM.

1
Harold Henderson, an Arkansas inmate, appeals pro se from a final order entered by the United States District Court1 for the Eastern District of Arkansas dismissing his 42 U.S.C. § 1983 action against several prison officials, following an evidentiary hearing.  Henderson claimed his Eighth and Fourteenth Amendment rights were violated when he was not allowed to exercise while serving a punitive sentence in the general population with punitive restrictions.  We affirm.

2
Henderson alleged that, after he was released from punitive isolation and placed in the general population with punitive restrictions, prison officials denied him exercise in violation of his Eighth and Fourteenth Amendment rights.  He also claimed prison officials unlawfully turned a sentence of punitive restrictions imposed by a disciplinary chairman into a sentence in punitive isolation.  Henderson requested a jury trial and sought compensatory and punitive damages.

3
After the prison officials denied the allegations in the complaint, the magistrate judge set the case for an evidentiary hearing to determine whether Henderson could make out a submissible case to the jury, i.e., whether his claim could survive a motion for a directed verdict.

4
At the evidentiary hearing, Henderson testified that "punitive restriction" was the same as punitive isolation, except that on punitive restriction inmates were required to perform their work assignments.  He testified that while serving a punitive sentence in punitive isolation, inmates were entitled to three hours of exercise every fifteen days;  inmates did not receive the same three hours of exercise while in the general population on punitive restrictions.  Henderson asserted that the application of the punitive restriction regulations was unconstitutional.  On cross-examination, Henderson did not believe that working on the hoe squad and walking to the chow hall three times a day constituted exercise.

5
Warden Marvin Evans testified that inmates who receive a punitive sentence by the disciplinary chairman after a hearing serve their time either in punitive isolation or in the general population under punitive restrictions.  The chief of building services decides where inmates serve their sentences based on space considerations, the types of offenses committed, and their disciplinary records.  Evans stated that inmates housed in the general population on punitive restrictions do not receive separate "out-of-cell" exercise time because they exercise when they perform their work assignments (in Henderson's case, while he is working on the hoe squad) and when they walk to the chow hall for meals every day.

6
In his findings and recommendations, the magistrate judge concluded that the policy of suspending recreational privileges for all punitive inmates was a legitimate form of punishment;  that the fifteen-day waiting period before an inmate in punitive isolation could receive three hours per week of exercise was upheld by this circuit in  Leonard v. Norris, 797 F.2d 683, 685 (8th Cir. 1986); that inmates housed in the general population with punitive restriction did not receive the same three-hour-per-week exercise period every fifteen days because their mental and physical need for out-of-cell time was met when they left their cells for three meals per day and went to work;  that to allow an additional three-hours-per-week "exercise" period would amount to a "recreational" privilege, which inmates assigned to punitive status forfeited;  and that it was not "base, inhumane and barbaric" for the prison to consider Henderson's work assignment to be a valid substitute for exercise.  The magistrate judge, concluding there was no need to submit factual issues to a jury because the evidence proffered permitted only one reasonable conclusion as to a verdict, recommended dismissal of Henderson's complaint.

7
The district court adopted the magistrate judge's report over Henderson's objections, and entered judgment dismissing Henderson's complaint.  On appeal, Henderson argues the district court erred in concluding that defendants could alter the sentence imposed by the hearing officer contrary to the administrative directives, inmate handbook and case law, which state that inmates on punitive status are entitled to three hours per week of exercise every fifteen days.  Henderson argued that he was discriminated against by being denied a three-hour exercise period, which the prison officials choose to call "recreation."

8
A motion for a directed verdict should be denied unless the evidence is such that, without weighing the credibility of witnesses, there is only one reasonable conclusion.   Henson v. Falls, 912 F.2d 977, 979 (8th Cir. 1990).

9
We have reviewed the applicable administrative regulations and conclude that denying "exercise" for inmates who otherwise are out of their cells for work and for meals does not constitute a "deprivation denying 'the minimal civilized measures of life's necessities' " sufficient to form the basis of an Eighth Amendment violation.   Wilson v. Seiter, 111 S. Ct. 2321, 2324 (1991)) (quoting  Rhodes v. Chapman, 452 U.S. 337, 347 (1981).  The district court correctly concluded that Henderson's Eighth Amendment rights were not violated by the prison's policy equating an inmate's work assignment and out-of-cell opportunities with the three-hour-per-week exercise requirement for those inmates housed in punitive isolation.

10
Accordingly, we affirm the judgment of the district court.

1
 The Honorable Susan Webber Wright, United States District Judge for the Eastern District of Arkansas, adopting the report and recommendation of the Honorable H. David Young, United States Magistrate Judge for the Eastern District of Arkansas


                                                                                Opinions of the United
2002 Decisions                                                                                States Court of Appeals
                                                                                for the Third Circuit

7-23-2002

Anderson v. Consolidated Rail
Precedential or Non-Precedential: Precedential

Docket No. 01-1518

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2002

Recommended Citation
"Anderson v. Consolidated Rail" (2002). 2002 Decisions. Paper 424.
http://digitalcommons.law.villanova.edu/thirdcircuit_2002/424

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
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PRECEDENTIAL

       Filed July 23, 2002

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 01-1518

WAYNE S. ANDERSON; WILLIAM R. BELLAMY; LINDA A.
BONNER; ROBERT R. CARTER; ROBERT J. DEANGELIS;
PATRICIA FOSTER; **CHARLES F. FOTE; ALVERTA T.
GILMORE; JAMES J. GOSLIN; WILLIAM J. GUITERAS;
*JANE L. HAMILTON; *DONALD A. HEPP; JOHN
JEFFERY; FRANK S. JOHNSON; WILLIAM A. KENNEDY;
THERESA R. KENNY; THOMAS H. KERWIN; *LEE A.
MANFRE; *IRENE W. MAYER; *EILEEN F. MCGOVERN;
JANET E. MCMULLAN; CARL F. MICHINI; THOMAS J.
QUINN; *PAUL C. RAHN; *FREDERICK G. SCHMIDT;
*GARY A. SMELCER; *BERNARD B. SOBJAK; *DAVID I.
SPRITZLER; VERA M. STEVENS; *GEORGE D. WOOD,
       Appellants

v.

CONSOLIDATED RAIL CORPORATION ("CONRAIL");
CONRAIL SUPPLEMENTAL PENSION PLAN; FRANK H.
NICHOLS; DEBBIE MELNYK; RICK HUFFMAN; MARIANNE
S. GREGORY; DALE SCHAUB; JOSEPH ARSENAULT;
PETER F. BARR; BRIAN DEAM; JAMES F. DIETZ; TOM
DWYER; M. KEVANS; JACK FARRELL; GERALD T.
GATES; MARY ANN GREGROY; TOM HIEBER; CHRIS
HILL; LIBBY HUDSON; DAVE KALAPOS; BILL LYNCH;
DON MATTSON; MICHAEL MCGILLOWAY; TOM
NEWHART; MICHELE NOWLAN; JOSEPH OSBORNE;
DENNIS PARANZINO; LES PASSA; AL POLINSKY; ROBERT
REID; MICKEY SAPPERSTONE; BOB SCHREYER; CARL
SIMCOX; JAMES SNEE; JERRY STANECK; JOHN TILLEY;
RALPH VON DEM HAGEN
*(Dismissed per Court’s Order dated 4/11/01)
**(Dismissed per Court’s Order dated 2/14/02)

Appeal from the United States District Court
For the Eastern District of Pennsylvania
D.C. No.: 98-cv-06043
District Judge: Honorable Harvey Bartle, III

(Argued: March 4, 2002)

Before: SCIRICA, ROSENN, Circuit Judges, and
WARD,* District Judge.

(Filed: July 23, 2002)

       Alice W. Ballard, Esq. (Argued)
       Law Office of Alice W. Ballard, PC
       225 South 15th Street, Suite 1700
       Philadelphia, PA 19102
        Counsel for Appellants

       Laurence Z. Shiekman, Esq.
        (Argued)
       Brian T. Ortelere, Esq.
       Joann Hyle, Esq.
       Larry R. Wood, Jr., Esq.
       Hope A. Comisky, Esq.
       Pepper Hamilton LLP
       3000 Two Logan Square
       18th & Arch Streets
       Philadelphia, PA 19103
        Counsel for Appellees

OPINION OF THE COURT

ROSENN, Circuit Judge:

This age discrimination in employment case has its
genesis in the lengthy struggle of our nation’s railroads for
survival. Consolidated Railroad Corporation (Conrail), now
_________________________________________________________________

* Honorable Robert J. Ward, United States District Court for the
Southern District of New York, Sitting by Designation.

                                 2

defunct, engaged in a reduction-in-force (RIF) in July 1995
when it involuntarily terminated thirty employees in its
Central Office. In November 1998, these employees, all but
one in the forty to fifty-five year age range, sued Conrail in
the United States District Court for the Eastern District of
Pennsylvania. They claimed that Conrail’s decision to
terminate them violated the Age Discrimination in
Employment Act, 29 U.S.C. SS 621-634 (ADEA). Examining
each individual plaintiff ’s prima facie case, the District
Court found that certain plaintiffs had not satisfied the
fourth element of the framework established by the
Supreme Court in McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973) because they could not show that Conrail
retained a sufficiently younger and similarly situated
employee for each employee terminated. The plaintiffs also
claim that the District Court erred in rejecting their claims
for pension benefits under ERISA S 510, 29 U.S.C. S 1140,
and their claims for benefits under the Company’s
Voluntary Separation Program (VSP) of 1996. Seventeen of
the plaintiffs timely appealed.1 We affirm.

I.

As part of its RIF decision, Conrail provided the
terminated employees with severance pay amounting to
approximately a year’s salary per employee. In February
1996, Conrail announced a voluntary separation program
or a buy-out which provided separation incentives to
qualified employees that were more generous than the
severance package offered to the involuntarily terminated
plaintiffs. The 1996 benefits included payment of two years
salary and an additional $5,000 expense allowance. As
initially announced, the VSP benefits were available to
those individuals who were employees as of February 21,
1996. Later, Conrail expanded the program to individuals
who were employees as of January 2, 1996. In addition to
the eligibility cut-off date, an employee had to have fifteen
or more years of continuous work service to be eligible. In
December 1996, Conrail amended its Supplemental Pension
_________________________________________________________________

1. Thirteen plaintiffs resolved their claims against Conrail and have not
appealed.

                                3

Plan to include the VSP. Conrail denied the involuntary
terminated employees the VSP benefits at each level of the
administrative claims procedure.

In November 1998, the thirty plaintiffs who had been
involuntarily terminated in July 1995 filed this action.2
They claimed that the decision by Conrail to reduce its
aging work force "was motivated by a desire to thin its
middle-aged ranks" to make room for younger new hires in
violation of the Age Discrimination in Employment Act.
They also claimed that Conrail terminated the plaintiffs in
violation of ERISA S 510, 29 U.S.C. S 1140, to preclude
them from participating in an anticipated voluntary buy-out
program that Conrail subsequently announced in 1996.

The District Court dismissed plaintiffs’ ERISA claims on
Conrail’s Rule 12(b)(6) motion. The Court applied
Pennsylvania’s two-year statute of limitations for tort cases
to the ERISA S 510 claim, concluding that the claims were
time barred. The District Court granted Conrail’s summary
judgment motion on the ADEA claims in part and denied
them in part. The District Court found that the plaintiffs’
reliance on Anjelino v. New York Times Co., 200 F.3d 73 (3d
Cir. 1999) was not relevant to their ADEA claim. The
District Court found that certain plaintiffs had not satisfied
the fourth element required to make out a prima facie case,
namely, proof that a similarly situated younger person was
retained or hired to fill the position of the employee
terminated. Of the fourteen plaintiffs that survived
summary judgment, eleven settled. Gilmore, Fote and
DeAngelis proceeded to trial separately pursuant to the
District Court’s order.3 The jury returned a verdict in favor
of Gilmore and against Fote and DeAngelis. The District
Court denied both parties’ post-trial motions in January
2001.4
_________________________________________________________________

2. The District Court exercised subject matter jurisdiction under 28
U.S.C. S 1331. This Court has appellate jurisdiction pursuant to 28
U.S.C. S 1291.
3. Although the District Court granted Conrail’s motion for separate
trials under Federal Rule of Civil Procedure 42(b), it denied the motion
to sever the cases under Rule 21.
4. Of the original thirty plaintiffs, thirteen plaintiffs have settled all their
claims, including Gilmore and Fote. Of the remaining seventeen, all of

                                4

II.

A.

Our review of the District Court’s grant of summary
judgment is plenary, and we apply the same test as the
District Court should have applied initially. Olson v.
General Elec. Astrospace, 101 F.3d 947, 951 (3d Cir. 1996).
Summary judgment is proper if after considering"the
pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavit, if any, . . .
there is no genuine issue as to any material fact and . . .
the moving party is entitled to judgment as a matter of
law." Fed. R. Civ. P. 56(c). An issue is genuine"if the
evidence is such that a reasonable jury could return a
verdict for the nonmoving party." Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). In conducting that review,
the non-moving party is entitled to all reasonable inferences
and the record is construed in the light most favorable to
that party. Pollock v. American Tel. & Tel. Long Lines, 794
F.2d 860, 864 (3d Cir. 1986). However, in deciding a
summary judgment motion, we are obligated to "view the
evidence . . . through the prism of the substantive
evidentiary burden" and determine "whether a jury could
reasonably find either that the plaintiff proved his case by
the quality and quantity of the evidence required by the
governing law or that he did not." Anderson, 477 U.S. at
254.

Summary judgment against a party who bears the
burden of proof at trial, as do the plaintiffs here, is proper
if after adequate time for discovery and upon motion, a
party fails to make a showing sufficient to establish the
existence of an element essential to that party’s case, and
on which that party will bear the burden of proof at trial.
Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).
Under such circumstances, "there can be no genuine issue
_________________________________________________________________

them challenge the ERISA decision. Fourteen plaintiffs challenge the
Anjelino decision, while only ten challenge the District Court’s disposition
of their prima facie case. Because our decision does not turn on any
facts particular to any individual plaintiff, we need not detail which
specific plaintiffs challenge what aspect of the District Court’s decision.

                                5

as to any material fact, since a complete failure of proof
concerning an essential element of the nonmoving party’s
case necessarily renders all other facts immaterial." Id. at
323 (internal quotations omitted). Further, "[t]he moving
party is entitled to a judgment as a matter of law because
the nonmoving party has failed to make a sufficient
showing on an essential element of her case with respect to
which she has the burden of proof." Id.

B.

Under the Age Discrimination in Employment Act, an
employer is prohibited from discharging any individual or
otherwise discriminating against an individual with respect
to compensation, terms, conditions, or privileges of
employment, because of such individual’s age. 29 U.S.C.
S 623(a)(1). A plaintiff may establish an age discrimination
claim using direct or indirect evidence. The plaintiffs claim
that they established a prima facie case sufficient to defeat
a motion for summary judgment by asserting that Conrail’s
terminations were to make room for younger new
employees and by showing that its proffered reason of the
need for immediate cost savings was pretextual. They
argue that under their Anjelino theory they need to
produce evidence "only that they lost their jobs as a
result of age discrimination, regardless of their individual
circumstances," to bar summary judgment. The plaintiffs
argue that each of them need not individually establish a
prima facie case under the McDonnell Douglas framework.
Relying on Anjelino, 200 F.3d at 92, they claim entitlement
to relief because each of them suffered as a result of
Conrail’s impermissible decision to apply the 1995 RIF on
the basis of age.

In Anjelino, this Court addressed whether certain male
workers had standing under Article III to sue under the sex
discrimination laws, where the employer aimed the alleged
discrimination at female co-workers. We held:

       Because the male appellants here have pled specific
       facts to demonstrate a concrete injury as well as a
       nexus between the alleged injury and the sex-based
       discrimination, even though that discrimination was

                                6

       aimed in the first instance at others, we conclude that
       they have established standing. Their allegations that
       sex discrimination adversely affected their being hired
       as extras, as well as their seniority on the priority list,
       demonstrate actual injury. We hold that indirect
       victims of sex-based discrimination have standing to
       assert claims under Title VII if they allege colorable
       claims of injury-in-fact that are fairly traceable to acts
       or omissions by defendants that are unlawful under
       the statute. That the injury at issue is characterized as
       indirect is immaterial, as long as it is traceable to the
       defendant’s unlawful acts or omissions.

Anjelino, 200 F.3d at 92.

In addition to an effort to produce direct evidence of age
discrimination that the District Court rejected for many
reasons,5 the plaintiffs claim that each was indirectly
injured by Conrail’s age-based RIF decision, an alleged
unlawful act under ADEA. The District Court, however,
found Anjelino irrelevant because, as it explained, the
plaintiffs offered no proof that they were harmed indirectly
by an age based RIF decision "directed at others." (D.C. op.
at 12). We agree with the District Court that the plaintiffs’
reliance on Anjelino is irrelevant. We also conclude that
their dependence on Anjelino is misplaced because even if
Anjelino relieved each plaintiff from individually satisfying a
prima facie case under the McDonnell Douglas framework,
it would not relieve the plaintiffs from showing that the
terminations "are fairly traceable to acts or omissions by
defendants that are unlawful under the statute." Id. Stated
differently, Anjelino does not relieve the plaintiffs from
establishing that the RIF decision was unlawful under
ADEA.

The plaintiffs claim that as a result of Conrail’s prior
downsizing and two prior retirement buyouts, Conrail’s
workforce was predominately middle age. This, the plaintiffs
claim, "boded badly for Conrail’s future, because the flow
_________________________________________________________________

5. The District Court rejected the "purported direct evidence" because it
presented "myriad" problems. (D.C. op. at 6)."None of the evidence cited
by the plaintiffs bears directly upon Conrail’s reasons for implementing
the June 1995 RIF." Id.

                                7

through the pipeline of upcoming leaders was down to a
trickle." In addition, the plaintiffs rely on certain anecdotal
evidence from a Human Asset Planning Team reflecting
concern about Conrail’s aging workforce.

In Connors v. Chrysler Financial Corp., we recognized that
a plaintiff can prove discrimination by direct evidence, but
noted that a plaintiff confronts a "high hurdle." 160 F.3d
971, 976 (3d Cir. 1998). In quoting Justice O’Connor’s
controlling opinion in Price Waterhouse v. Hopkins, 490
U.S. 228 (1989), we held that the evidence must
demonstrate that the "decision makers placed substantial
negative reliance on an illegitimate criterion in reaching
their decision." Connors, 160 F.3d at 976. In other words,
the evidence must reveal a sufficient discriminatory animus
making it unnecessary to rely on any presumption from the
prima facie case to shift the burden of production. Id.

When reviewing a grant of summary judgment, we must
view the evidence in the light most favorable to the non-
movants, here the plaintiffs. We cannot say that a
reasonable fact-finder would find that plaintiffs’ generalized
evidence relating to Conrail’s aging workforce established
that its 1995 decision to institute a reduction in force was
illegitimately contrived on the basis of age. Even were we to
consider the evidence of the 1996 VSP, which the plaintiffs
claim the District Court erroneously rejected, as inferential
proof of Conrail’s concern with its aging workforce, it has
not much probative value from which to draw a sinister
motive behind the 1995 RIF decision. The plaintiffs failed to
produce sufficient evidence to reveal a discriminatory
animus in making the 1995 RIF decision.

Moreover, as the District Court carefully observed, none
of the evidence adduced by the plaintiffs addresses directly
the reasons for implementing the 1995 RIF, nor does any of
the evidence show that any decision maker relied on such
evidence. Having failed to show that the RIF decision was
age based, the District Court correctly found Anjelino
irrelevant here.

C.

We turn now to the plaintiffs’ indirect evidence of age
discrimination. In indirect evidence cases, we have

                                8

borrowed the three-step McDonnell Douglas burden shifting
analysis developed in the context of Title VII discrimination
cases and applied a "slightly modified version" to determine
whether the employer based its action on the individual’s
age. Connors, 160 F.3d at 973; 29 U.S.C.S 623(a)(1). Under
the first step of the three-step analysis, a plaintiff must
establish a prima facie case showing that he or she:

       (1) was a member of a protected class (i.e. he or she
       was forty years of age or older);

       (2) was qualified for the position at issue;

       (3) suffered an adverse employment action; and

       (4) was replaced by a sufficiently younger person,
       raising an inference of age discrimination.

Showalter v. University of Pittsburgh Med. Ctr. , 190 F.3d
231, 234 (3d Cir. 1999); Connors, 160 F.3d at 973-74.
Recognizing that the fourth element is inadequate in a
reduction in force context, as opposed to demotion or
discharge cases, we have held that the fourth element is
satisfied by showing that the employer retained a
"sufficiently younger" employee. Showalter , 190 F.3d at
235.

The District Court also held that to satisfy the fourth
element of the prima facie case, the plaintiffs must show
that the sufficiently younger person retained was"similarly
situated." None of the cases that the District Court cited,
Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133
(2000), Showalter v. University of Pittsburgh Medical Center,
190 F.3d 231 (3d Cir. 1999), and Simpson v. Kay Jewelers,
Division of Sterling, Inc., 142 F.3d 639 (3d Cir. 1998),
explicitly holds that a plaintiff, in a RIF age discrimination
case, must demonstrate, as part of his or her prima facie
case, that "the defendant retained someone who was
similarly situated." Before proceeding to the plaintiffs’ claim
of error here, we must therefore determine whether the
District Court erred in imposing this requirement as part of
the prima facie case.

Relying on Earley v. Champion International Corp., 907
F.2d 1077 (11th Cir. 1990) and Skalka v. Fernald
Environmental Restoration Management, 178 F.3d 414 (6th

                                9

Cir. 1999), the District Court reasoned that because ADEA
is not a bumping statute, the plaintiffs must also show that
the employer retained a similarly situated individual. In
Earley, the United States Court of Appeals for the Eleventh
Circuit stated that ADEA does not require an employer to
discharge a younger employee so that an employee in the
ADEA protected class can be retained. 907 F.2d at 1083.
Likewise, the United States Court of Appeals for the Sixth
Circuit observed in Skalka that a "plaintiff cannot prevail
merely by pointing to other positions for which she was
qualified and claim[ ] that the employer should have allowed
her to ‘bump’ the occupant of that position." 178 F.3d at
421.

Because ADEA is not a bumping statute, as the plaintiffs
concede, the plaintiffs must show that the employer
retained a similarly situated employee. Were we to hold
otherwise, we would be construing ADEA as guaranteeing a
protected employee a job at the expense of a sufficiently
younger employee. Thus, to present a prima facie case
raising an inference of age discrimination in a reduction in
force situation, the plaintiff must show, as part of the
fourth element, that the employer retained someone
similarly situated to him who was sufficiently younger.

Of the seventeen plaintiffs on appeal here, the District
Court granted summary judgment against ten of them
because it concluded that they had failed to establish that
Conrail retained someone who was similarly situated, and
thus, raise an inference of age discrimination. The plaintiffs
attempt to demonstrate a similarly situated retained
individual by comparing themselves to other employees who
performed jobs for which they were also qualified. They
reason that because "shuffling employees is the norm,
plaintiffs should be able to challenge as discriminatory
Conrail’s failure to shuffle them to an assignment where
they could outperform a less experienced incumbent." If
Conrail engaged in routine shuffling, we agree with the
plaintiffs that such a practice should have been considered
in determining whether a younger person was similarly
situated to a discharged employee. However, that is not the
case here. The plaintiffs adduced minimal evidence showing
that inter-department assignments of employees was the

                                10

norm. On the contrary, at oral argument, the plaintiffs
retreated and acknowledged that they only attempted to
show a similarly situated retained employee by comparing
each plaintiff to someone within their own department or
sub-department.

Our review of the District Court’s well-reasoned analysis
of the ten plaintiffs’ cases who appeal this aspect of the
District Court decision (Anderson, Bellamy, Bonner, Foster,
Goslin, Guiteras, Jeffery, Kennedy, McMullan, and Quinn)
contradicts the plaintiffs’ submission. As to each of these
ten plaintiffs, they attempted to satisfy the fourth element
by comparing themselves to entry-level positions or other
low-level positions without providing any evidence of
shuffling. To the extent that a particular plaintiff referred to
someone in his department or sub-department, the District
Court rejected such evidence because the employees
retained were either not sufficiently younger or the evidence
failed to show that the duties were comparable or that they
were otherwise similarly situated. We therefore conclude
that the District Court did not err in finding the foregoing
ten plaintiffs failed to satisfy the fourth element of a prima
facie case.

D.

After surviving summary judgment, DeAngelis proceeded
to trial. The jury returned a verdict against him. He claims
error in the District Court’s jury instructions. DeAngelis
argues that the District Court erred in instructing the jury
to find for Conrail, if they were not persuaded that
DeAngelis had presented a prima facie case under the
McDonnell Douglas framework. DeAngelis does not explain
how, even if the instructions were erroneous, they were
prejudicial. In any case, we have stated that "it is clearly
proper to instruct the jury that it may consider whether the
factual predicates necessary to establish the prima facie
case have been shown." Watson v. Southeastern
Pennsylvania Transp. Auth., 207 F.3d 207, 221 (3d Cir.
2000). This is what the District Court did. As the Court
noted in rejecting DeAngelis’ argument in his post-trial
motion, "while the jury was instructed to consider the
‘factual predicates’ of the prima facie case, the term ‘prima

                                11

facie’ was not used, thus eliminating any unnecessary jury
confusion." In addition to failing to discover any prejudice,
we see no error in the jury instructions.

III.

Besides the ADEA claim, the plaintiffs pled a claim
against Conrail under ERISA S 510, 29 U.S.C.S 1140. They
alleged that they were discharged in July 1995 to prevent
attainment of the 1996 VSP benefits. On Conrail’s Rule
12(b)(6) motion, the District Court held that the ERISA
S 510 claim was time barred because the applicable statute
of limitations is two years. Our review is plenary over the
District Court’s dismissal for failure to state a claim
pursuant to Rule 12(b)(6). Brown v. Philip Morris, Inc., 250
F.3d 789, 796 (3d Cir. 2001).
The parties agree that the plaintiffs were involuntarily
terminated in July 1995. It also is undisputed that the
plaintiffs did not file their action until November 1998,
almost three and half years later. Therefore, whether the
two year statute of limitations or the six year advanced by
the plaintiffs applies is critical and dispositive of the S 510
claim. The plaintiffs also do not dispute on appeal that
their S 510 claim accrued in July 1995 when they were
terminated.

In Gavalik v. Continental Can Co., this Court held that
because S 510 does not provide a specific statute of
limitations for actions alleging violations of that section,
"the appropriate period is determined by reference to the
state statute of limitations governing cases most analogous
to the cause of actions asserted by the plaintiffs." 812 F.2d
834, 843 (3d Cir. 1987). We held that employment
discrimination and wrongful discharge claims brought
under federal law "are governed by Pennsylvania’s six-year
residuary clause." Id. at 844.

The District Court in this case concluded that the
plaintiffs S 510 claim here is most analogous to a wrongful
discharge cause of action because the plaintiffs’ allegations
are that they would have qualified if not for the wrongful
termination to preclude them from the 1996 VSP. The
District Court acknowledged that in Gavalik, this Court

                                12

stated that Pennsylvania’s six year statute of limitations
applied to employment discrimination or wrongful discharge
cause of action in S 510 claims. However, the District Court
held that since the decision in Raleigh v. Westinghouse
Electric Corp., 550 A.2d 1013, 1014 (Pa. Super. 1988),
appeal denied, 563 A.2d 499 (Pa. 1989), Pennsylvania has
applied a two year statute of limitations in wrongful
discharge causes of action. Therefore, it held that a S 510
claim analogous to a wrongful discharge cause of action is
governed by the two year statute of limitations set forth in
42 Pa. Cons. Stat. Ann. S 5524(7).

The plaintiffs do not dispute that the most analogous
cause of action asserted by them in their S 510 claim is a
wrongful discharge cause of action. They also do not
dispute that after Raleigh, a two year statute of limitations
applies in Pennsylvania in a wrongful discharge cause of
action. They contend, however, that because Gavalik
analogized a S 510 claim to an employment discrimination
cause of action, the six year statute of limitations
enunciated in Gavalik should apply. The applicable statute
of limitations for employment discrimination is irrelevant
here because the District Court determined, a
determination that is not challenged by the plaintiffs, that
their ERISA S 510 claim is most analogous to a wrongful
discharge.

Next, the plaintiffs submit that it was reasonable for
them to rely on the six-year statute of limitations
enunciated in Gavalik. However, the Gavalik court made
clear that the statute of limitations for an ERISAS 510
claim is governed by cases "most analogous to the cause of
action asserted by the plaintiffs." Because Raleigh held in
1988 that a two year statute of limitations applies to
wrongful discharges in Pennsylvania, and the District Court
found that the plaintiffs’ S 510 claim here is most
analogous to a wrongful discharge, the District Court did
not err in holding that the two year statute of limitations is
applicable to the plaintiffs’ S 510 claim. As the plaintiffs’
claims accrued in July 1995, and they did not file the
instant action until November 1998, their S 510 claims are
time barred.

                                13

The plaintiffs also alleged that they were entitled to
the VSP benefits under ERISA S 502(a)(1)(B), 29 U.S.C.
S 1132(a)(1)(B), and ERISA S 502(a)(3), 29 U.S.C.
S 1132(a)(3), although they did not satisfy the eligibility cut-
off date. The essence of their contention here is that Conrail
breached its fiduciary duty in extending the VSP benefits to
certain ex-employees terminated in January 1996, without
providing the same benefits to the employees terminated in
1995. The plaintiffs vehemently argue that Conrail’s
decision to expand the program to employees involuntarily
terminated as of January 2, 1996, but not to them, was a
breach of its fiduciary duty.

In Bennett v. Conrail Matched Savings Plan Administrative
Committee, we made clear that ERISA imposes a fiduciary
duty in the administration of a plan, but not when it acts
as a plan sponsor. 168 F.3d 671, 679 (3d Cir. 1999). In
amending a plan, an employer has broad authority and
acts as a settlor, not a fiduciary. Id. Therefore, we held that
"as long as an amendment does not violate a specific
provision of ERISA, ‘the act of amending a pension plan
does not trigger ERISA’s fiduciary provisions.’ " Id. (quoting
Hughes Aircraft Co. v. Jacobson, 525 U.S. 432, 444 (1999)).
Thus, Conrail’s amendment to the Plan in December 1996
to include those terminated in early January, and thereby
extend the VSP benefits to include more employees than
originally announced in February 1996, implicated no
ERISA fiduciary obligations because Conrail acted as a
settlor.

As to the plaintiffs’ cause of action to recover benefits due
under the terms of the plan under ERISA S 502(a)(1)(B), 29
U.S.C. S 1132(a)(1)(B), the plaintiffs acknowledge that they
do not satisfy the eligibility cut-off date, January 2, 1996.
Thus, the plaintiffs are entitled to no benefits under the
Plan. Hein v. FDIC, 88 F.3d 210, 215 (3d Cir. 1996) (stating
that only the Plan creates entitlement to benefits and thus,
"we are required to enforce the Plan as written unless we
can find a provision of ERISA that contains a contrary
directive") (quoting Dade v. North Am. Philips Corp., 68 F.3d
1558, 1562 (3d Cir. 1995)).
                                14

IV.

Summarizing, the plaintiffs have not shown that the
1995 RIF decision was age based, and therefore, Anjelino is
inapplicable. The District Court did not err in requiring the
plaintiffs to show, as part of their prima facie case, the
fourth element required in a reduction in force age
discrimination case. They failed to prove that retained
employees were similarly situated, as to create an inference
of age discrimination. The District Court also properly
dismissed all of the ERISA claims. As to DeAngelis’ claim of
error in the jury instructions in his trial, we perceive none.
Thus, the orders and summary judgment of the District
Court will be affirmed in their entirety. Each side to bear its
own costs.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

                                15


McConnell v. Southside Indep. School Dist.

IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,

AT AUSTIN

NO. 3-91-016-CV

JOHN S. McCONNELL,

	APPELLANT

vs.

SOUTHSIDE INDEPENDENT SCHOOL DISTRICT;
DAVID S. SMITH, MIGUEL M. FERNANDEZ, SAMMIE KERBY,
JOE L. WEISS, MACK C. STALLCUP, AND GILBERT P. ARREDONDO
IN THEIR INDIVIDUAL AND OFFICIAL CAPACITIES AS
TRUSTEES OF THE SOUTHSIDE INDEPENDENT SCHOOL DISTRICT;
AND JULIAN GONZALES IN HIS OFFICIAL CAPACITY AS
TRUSTEE OF THE SOUTHSIDE INDEPENDENT SCHOOL DISTRICT,

	APPELLEES

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 345TH JUDICIAL

DISTRICT,

NO. 365,644, HONORABLE F. SCOTT McCOWN, JUDGE

PER CURIAM
	The issue in this cause is whether a motion for summary
judgment states specific grounds as required by Texas Rule of Civil
Procedure 166a(c).  Appellant John S. McConnell sued appellees
Southside Independent School District; David S. Smith, Miguel M.
Fernandez, Sammie Kerby, Joe L. Weiss, Mack C. Stallcup, Gilbert P.
Arredondo in their individual and official capacities as trustees
of the Southside Independent School District; and Julian Gonzales
in his official capacity as trustee of the Southside Independent
School District. (1)  The district court rendered a take-nothing
summary judgment against McConnell from which he appeals by a
single point of error.
	 The Southside Independent School District employed
McConnell as a teacher, but the district failed to renew his
contract for the 1983-1984 school year.  McConnell appealed to the
district's board of trustees, which denied him any relief.  See The
Term Contract Nonrenewal Act, 1981 Tex. Gen. Laws, ch. 765, at 2847
[Tex. Educ. Code §§ 21.201-.211, since amended].  McConnell
appealed the board of trustees' decision to the commissioner of
education and subsequently to the state board of education, arguing
that the failure to grant him a continuance during the hearing
before the board of trustees violated fourteenth amendment due
process guarantees.  Both the commissioner of education and the
state board of education denied McConnell's appeals.  See id.
	McConnell filed suit in state district court, appealing
the final order of the state board of education and asserting de
novo claims of deprivation of fourteenth amendment due process
guarantees.  The state district court dismissed the appeal due to
McConnell's failure to file an adequate motion for rehearing with
the state board of education.  See Administrative Procedure and
Texas Register Act, 1975 Tex. Gen. Laws, ch. 61, § 16(e), at 145
[Tex. Rev. Civ. Stat. art. 6252-13a, § 16(e), since amended].
McConnell's de novo claims of deprivation of fourteenth amendment
due process guarantees were removed to federal district court by
appellees, but were subsequently remanded to state court.  The
state district court granted appellees' motion for summary
judgment, which is the subject of this appeal.
	In his sole point of error, McConnell alleges that the
state district court erred in granting summary judgment because
appellees' motion for summary judgment did not state the specific
grounds as required by Texas Rule of Civil Procedure 166a(c).  Tex.
R. Civ. P. Ann. 166a(c) (Supp. 1991). (2)  The motion for summary
judgment is accompanied by a twelve-page brief in support, which
details the grounds for the summary judgment.
	McConnell does not attack the specificity of the brief in
support of the motion for summary judgment, but merely the fact
that the specific grounds are not contained in the motion itself.
The supreme court has stated that the summary judgment movant must
expressly set out the ground for summary judgment in writing "in
the motion or in an answer or any other response."  City of Houston
v. Clear Creek Basin Auth., 589 S.W.2d 671, 677 (Tex. 1979)
(emphasis original).  We hold that Rule 166a allows a summary
judgment movant to set out the specific grounds for summary
judgment in a brief served on all parties contemporaneously with
the motion itself.  See Tex. R. Civ. P. Ann. 1 (1979) (rules are to
be given a liberal construction).  McConnell's sole point of error
is overruled.
	The judgment of the trial court is affirmed.

[Before Chief Justice Carroll, Justices Jones and B. A. Smith]
Affirmed
Filed:  August 14, 1991
[Publish]
1.       McConnell erroneously lists the Central Education Agency
as an appellee.  The Central Education Agency is named as a
defendant in McConnell's original petition, but was omitted from
his first amended original petition.  The Central Education
Agency, therefore, is no longer a party to this lawsuit.  See
Tex. R. Civ. P. Ann. 62, 64, 65 (1979).
2.       The motion for summary judgment is as follows:

	Defendants, SOUTHSIDE INDEPENDENT SCHOOL DISTRICT, ET AL.,
in accordance with Rule 166a of the Texas Rules of Civil
Procedure, move this Court for summary judgment in the above
entitled action on the grounds that there are no genuine issues
as to material facts and that these Defendants are entitled to a
judgment dismissing Plaintiff's amended complaint as a matter of
law.  The Defendants respectfully request this Court to enter a
summary judgment based on the pleadings on file, this [sic] Brief
in Support, containing the undisputed facts and conclusions of
law as required by the Local Rules, and transcripts, together
with affidavits submitted along with this Motion, or in the
alternative to specify what, if any, facts remain to be
determined.


127 Ill. App.3d 618 (1984)
469 N.E.2d 445
PATRICIA McGINTY, Plaintiff-Appellant,
v.
NORBERT NISSEN et al., Defendants-Appellees.
No. 82-1164.
Illinois Appellate Court  First District (3rd Division).
Opinion filed September 28, 1984.
Ronald Kirk Goulding, of Chicago, for appellant.
Robert E. Jones, of Wheaton, for appellees.
Judgment affirmed.
JUSTICE RIZZI delivered the opinion of the court:
Plaintiff, Patricia McGinty, sought damages resulting from a fall she sustained when, while employed as a babysitter for the children of defendants, Norbert and Carol Nissen, she attempted to rescue defendants' two-year-old child as he ran toward an open and steep *619 stairway in defendants' home. The court dismissed plaintiff's complaint with prejudice for failure to state a cause of action. Plaintiff appeals. We affirm.
In her amended complaint, plaintiff alleged that defendants owned a residence where she was invited as a babysitter for defendants' three minor children.[1] An open and steep stairway which lacked a gate or protective device extended from the first floor to the second floor. Plaintiff alleged that the stairway caused a condition that was hazardous to infants, including defendants' child, when infants were on the second floor landing near the stairway. Further, plaintiff alleged that defendants knew or should have known that the unprotected stairway involved a reasonably foreseeable risk of harm to infants and that defendants foresaw or should have foreseen that children, including their two-year-old, would likely be near the unprotected stairway landing. Plaintiff alleged that the expense or inconvenience of remedying the condition of the stairway landing would have been slight compared to the risk of harm to children.
Plaintiff further alleged that on August 22, 1978, defendants' two-year-old child, while on the second floor landing, close to the unprotected stairway, began to run toward the stairway and was placed in a position of imminent peril because of the condition of the stairway. The child did not appreciate the risk of danger. Plaintiff then attempted to rescue defendants' two-year-old child and, as a result, tripped on the blanket the child was dragging behind him, fell and was seriously injured.
Defendants moved to dismiss plaintiff's amended complaint for failure to state a cause of action. The court granted defendants' motion with prejudice. The court stated that the duty to someone injured in the course of attempting a rescue is defined by the duty to the person sought to be rescued, and the court indicated that the rescue doctrine does not apply where the defendant's conduct is not negligent or a tortious wrong. Further, the court indicated that defendants did not have a duty under the circumstances here, for parents do not have a duty "to totally babyproof a house at the risk of liability to the child or to the homemaker."
Plaintiff argues that the court erred in dismissing her complaint since she stated a cause of action under the rescue doctrine. We disagree.
*620  1 The rescue doctrine arises when a plaintiff brings an action based on negligence against a defendant whose negligence has placed a third party in a position of peril. (Seibutis v. Smith (1980), 83 Ill. App.3d 1010, 1016, 404 N.E.2d 950, 954.) If a plaintiff is injured in an attempt to rescue a third party, the rescue doctrine permits him to negate the presumption that his intentional act of rescue is the superseding cause of his injuries, thereby allowing him to prove that the defendant's negligence was the proximate cause of his injuries and to negate the presumption that he was guilty of contributory negligence by voluntarily assuming a known risk of harm in the rescue attempt. (Seibutis v. Smith (1980), 83 Ill. App.3d 1010, 1016, 404 N.E.2d 950, 954.) The effect of the rescue doctrine is to extend for the benefit of the rescuer the liability which the defendant may have toward the person he has placed in peril. (Brady v. Chicago & Northwestern R.R. Co. (1954), 265 Wis. 618, 626-27, 62 N.W.2d 415, 419-20.) Therefore, a defendant cannot be liable under the rescue doctrine unless his conduct is negligent. (See Ingram v. Jackson (1917), 206 Ill. App. 466, 472-73.) Thus, in order to state a cause of action under the rescue doctrine, plaintiff here must set forth facts which could prove that defendants, through their negligence, endangered the safety of their child and that plaintiff's injuries were sustained in an attempt to save the child from injury. See National Dairy Products Corp. v. Freschi (Mo. App. 1965), 393 S.W.2d 48, 57.
 2 Plaintiff alleged that defendants allowed an unguarded, steep stairway, a hazard which endangered the safety of their child, to exist in their home. Plaintiff asserts, with reference to the Kahn doctrine (see Kahn v. James Burton Co. (1955), 5 Ill.2d 614, 126 N.E.2d 836), that defendants had a duty to remedy this hazardous condition existing on their premises and that under the rescue doctrine, the failure to do so was the proximate cause of plaintiff's injuries. We believe, however, that as a matter of law, the existence of the unguarded stairway in defendants' home does not constitute negligence on the part of defendants which would support a recovery by plaintiff under the rescue doctrine.
 3 Negligence involves the breach of a duty owed to the plaintiff by the defendant. In considering the negligence of a defendant in the context of the rescue doctrine where a third party is involved, we must consider the duty owed to the rescued party by the defendant. Here, therefore, we must consider the duty owed to the child by the child's parents under the facts set forth in the amended complaint.
The existence of a legal duty depends not only upon the reasonable foreseeability of injury, but also upon the likelihood of injury from *621 the existence of the particular conditions, the magnitude of the burden of guarding against the injury, the consequences of placing the burden upon the defendant, public policy and social requirements. (See Illinois Housing Development Authority v. Sjostrom & Sons, Inc. (1982), 105 Ill. App.3d 247, 261-62, 433 N.E.2d 1350, 1361.) The existence of a duty under particular facts is a question of law. Brooks v. Dean Berenz Asphalt Co. (1967), 83 Ill. App.2d 258, 262, 227 N.E.2d 100, 102.
Parents are chargeable with the exercise of ordinary care in the protection of their minor children. (West Chicago Street R.R. Co. v. Liderman (1900), 187 Ill. 463, 472, 58 N.E. 367, 369.) We believe that under the facts alleged here, the parental duty of ordinary care did not extend to the erection of a gate or barricade at the top of the stairway. To require parents to install gates at the tops of the stairways in their residences at the risk of liability to those who would attempt to prevent children from falling down the stairs would be to hold parents to a duty of extraordinary care. (See Smith v. Goldman (1977), 53 Ill. App.3d 632, 635, 368 N.E.2d 1052, 1054.) A young child's falling down a steep stairway may be reasonably foreseeable, with significant likelihood of injury. However, a duty to install gates or protective devices at the tops of steep stairways would be an intrusive burden on parents, one which is not warranted by public policy and social requirements. Thus, we believe defendants had no duty to put a gate or barricade at the top of their steep stairway. (See Wall v. McGavock (1971), 132 Ill. App.2d 231, 233-34, 267 N.E.2d 765, 767-68.) Since defendants' negligence is a prerequisite to plaintiff's recovery under the rescue doctrine, we conclude that plaintiff failed to state a cause of action under the rescue doctrine, and the court properly dismissed her amended complaint.
 4 In addition to a rescue doctrine theory based upon a duty owed to the child by the parents, plaintiff asserts that under the rescue doctrine defendants owed a separate and independent duty to her as a rescuer which will support her cause of action. In support of this assertion plaintiff refers to cases in which a defendant placed himself in danger, was rescued and was held liable for the resulting injuries to the rescuer on the basis of an independent duty owed to the rescuer. We believe, however, that in such cases the defendant's liability is still grounded in his own negligent conduct, for the defendant's negligence must induce the rescue. We also believe that when a third party is involved, the duty in question is the duty owed to the rescued party by the defendant. In addition, we note that Illinois courts have yet to expand the rescue doctrine to situations where a defendant placed himself *622 in danger. (See Seibutis v. Smith (1980), 83 Ill. App.3d 1010, 1016, 404 N.E.2d 950, 954.) In Ingram v. Jackson (1917), 206 Ill. App. 466, the court stated that under the rescue doctrine, no liability rests on a defendant unless the defendant has been negligent in placing the rescued person in peril or in failing to avoid injury after discovering peril. Thus, we do not believe that an independent duty owed to a rescuer will support plaintiff's rescue doctrine action against defendants.
Accordingly, the judgment of the trial court is affirmed.
Affirmed.
McNAMARA and WHITE, JJ., concur.
NOTES
[1]  In a proposed second amended complaint which she was not granted leave to file, as the court determined that it, too, failed to state a cause of action, plaintiff alleged that she was hired as a homemaker.