Ronald Gibson, and Cross-Appellant v. United States of America, and Cross-Appellee

ADAMS, Circuit Judge,

concurring in part and dissenting in part.

I concur with Parts A and B of the majority’s opinion, which hold that the government is not liable to Ronald Gibson under two different theories of vicarious liability. However, I cannot join Part C of the majority’s opinion, where it is concluded, as a matter of law, that there is no evidence in the record of negligence on the part of the government’s own employees that would be sufficient to sustain the judgment on behalf of Ronald Gibson. In my view, there is evidence of negligence on the part of the government that does support the judgment of the district court.

A.

As an aspect of the Economic Opportunity Act of 1964, Congress created the Job Corps to assist disadvantaged, low-income youths by establishing urban and rural centers at which such youths, denominated corpsmen, would participate in vocational programs and other activities. On December 1, 1964, a contract was entered into between the Office of Economic Opportunity (OEO), which administered the Job Corps Program, and the Federal Electric Corporation (FEC). Under the contract, the FEC agreed to operate a residential Job Corps training center at Camp Kilmer, a federal reservation in Edison, New Jersey. Pursuant to the agreement, the day-to-day operations of the Camp Kilmer Center were to be the responsibility of the FEC, although the OEO retained broad supervisory authority over the Center.

As the district court found, numerous incidents of enrollee misconduct and fighting occurred at the Kilmer Center subsequent to its opening. Such misbehavior sometimes involved one hundred or more enroll-ees. In addition, there were frequent incidents of enrollee intoxication resulting from drugs and alcohol. A number of reports were made to OEO officials regarding the disciplinary problems at the Center. Moreover, OEO authorities were aware that there were enrollees at the Center who had criminal records.

Because of these disciplinary problems, concern was expressed by the guards at the Kilmer Center regarding the lack of a detention facility for unruly corpsmen, and the lack of power to arrest enrollees when circumstances demanded it. There was no such detention facility having special locks or secured rooms at the Center; and the guards were civilians who had no power to arrest anyone. It was thus recommended by the Center to OEO officials that a lockup be created and that guards be deputized. The request for such changes was never formally presented by the FEC to the OEO, but the evidence indicates that the OEO officials were aware of the request.

It was in this setting that the tragic events of November 5, 1966, occurred. On that date plaintiff Ronald Gibson, a group leader at the Center who lived in a dormitory with the corpsmen, heard a violent argument in another section of the dormitory. One of the participants in the argument, Andrew Jessie, was observed to be “belligerent, agressive (sic) and uncontrollable. His eyes were glazed and his speech was incoherent.” 1 After separating the adversaries, Gibson returned to his room. About an hour later, there was a further argument involving Jessie. “At this time plaintiff observed that Jessie was talking very loudly and cursing at his antagonist and that his eyes still appeared glazed.” 2

Gibson took Jessie to the duty officer in charge of security, who placed Jessie in a separate dormitory used for unruly corpsmen. This dormitory was physically identical to the others, and “it had no special features or facilities such as bars or special locks appropriate for its function.” 3

*1248 After approximately another hour had elapsed, Gibson was informed that Jessie had left the dormitory for unruly corpsmen, and had returned to the regular dormitory. Gibson proceeded to the section of the dormitory where Jessie was creating a new disturbance. After trying to calm down Jessie, Gibson went to the latrine section of the dormitory. There Gibson was stabbed in the temple with a screwdriver held by Jessie, and as a result Gibson suffered the serious injury that is the basis of this tort action.

B.

As the majority properly points out, it is possible to read the district court’s opinion as holding that the United States was liable to Gibson on a theory of direct, as distinguished from vicarious, liability. Furthermore, as the majority notes, this Court may affirm the judgment on such a theory even though the district court did not embrace it, so long as there is evidence in the record to support it. 4

My difference with the majority rests primarily upon our divergent interpretations of the factual record in this case. The evidence, as I view it, does support the theory that the United States itself breached a duty of care to Gibson. 5

The duty of care as to which the direct negligence of the United States may be found to have occurred requires that the government “. . . exercise reasonable care to see that the contractor takes proper precautions to protect those who might sustain injury from the work.” McGarry v. United States, 549 F.2d 587, 590 (9th Cir. 1976). See Thorne v. United States, 479 F.2d 804 (9th Cir. 1973). That duty arises when the activity engaged in by the contractor over whom the employer has supervisory control is dangerous. 6 The liability arising from the breach of such a duty, as McGarry pointed out, is neither strict nor vicarious.

In McGarry , the Court held that the Atomic Energy Commission owed a duty of *1249 care to the employees of an independent contractor — hired to manage, operate and maintain the Nevada Test Site — in order to make sure that the employer was taking proper precautions regarding the hazards of work near a power line at the site. The McGarry Court stressed that its holding did not require that the AEC place an on-site inspector in the vicinity of all work on the power line in question. Rather, it wrote:

If, here, the AEC had made regular examinations to ascertain the practices being followed by REECO (the contractor), and was reasonably satisfied from its examinations that appropriate guidelines were being followed, this might well have been found by the trier of fact to suffice. No such examination was conducted here and the district court found that the AEC had failed to exercise reasonable or any care to see that proper safety precautions were taken by REECO with reference to work performed in the neighborhood of the power line. 7 (emphasis added)

Liability of the government for a breach of the duty of care articulated in McGarry is not foreclosed by a claim of sovereign immunity. For the Federal Torts Claims Act (FTCA) waives sovereign immunity for the “negligent and wrongful act or omission of any employee of the Government,” 28 U.S.C. § 1346 (b). Thus, the critical question here is whether there is evidence regarding a breach by Government employees of the relevant duty of care.

An analysis of this issue must rest, of course, primarily on the findings of the district court. The district court found that the OEO’s project manager for the Job Corps, based in Washington, D.C., was responsible for approving numerous aspects of the Center’s operations, including the extension of physical security at Camp Kil-mer. 8 OEO was also found to have maintained a permanent “on site” representative at the Center to report to Washington, each week, all problems such as those relating to security. 9

Moreover, the district court ascertained that incidents of enrollee misconduct were “routinely” reported to the federal officials responsible for the Job Corps program. 10 It further found that the selection of enrollees was solely the responsibility of the OEO, and that sometime after July of 1965, an apprehension was expressed to the OEO that the Center was getting “too large a proportion of enrollees who were disciplinary problems.” 11

Prior to November 5, 1966, when the assault on Ronald Gibson occurred, the trial court noted that there had been many incidents of misbehavior by corpsmen, “including fights sometimes involving 100 or more enrollees, and intoxication due to alcohol and drugs.” 12 Security personnel had conveyed their concern over the possibility of a riot at the Center. In addition, prior to November of 1966, OEO officials received “frequent reports of disciplinary problems at Camp Kilmer,” and at least one OEO official “was aware that a narcotics addiction problem existed at the Center.” 13

The district court made a number of findings regarding the lack of a detention facility at the Center for unruly corpsmen. It found that a document containing proposals that a special detention center be created for emergencies, and that some form of arrest authority by the Center’s security guards be provided, was prepared by the Kilmer Center staff prior to November of *1250 1966, and that, even though it was never officially submitted to the OEO project manager for the Job Corps, the project manager was aware of the plan. 14 Also, the court noted that on numerous occasions the security assistant at the Center “had discussions with OEO’s on site representative about the need for a detention facility and for the deputization of security guards.” 15 As the district court determined, the Center’s security personnel were “civilian employees of FEC who were not empowered to make arrests, or to carry weapons.” 16 Nevertheless, the OEO never required the FEC to construct such a facility or to seek arrest authority for its guards. 17

These findings, taken together, support the propositions that (1) the OEO had notice of a dangerous situation at the Center, (2) the OEO had notice of concern on the part of the Center staff regarding the lack of a secure detention facility and of a form of arrest power on the part of the guards, (3) the OEO had notice of a plan for such changes, and (4) the OEO did not take any steps to see that these deficiencies were corrected so as to provide protection of the FEC employees, including Ronald Gibson. On these facts, it is reasonable to conclude that employees of the government breached a duty to take reasonable measures to guarantee that adequate security was maintained at the Center, and that one of the Center’s employees was injured as a consequence of a foreseeable risk stemming from such a breach.

Yet, the majority rejects the theory of the government’s negligence substantially on the ground that a formal plan for the construction of a detention facility and for the deputization of the Center’s .guards was never submitted by the FEC to the OEO. 18 This position would appear to overlook the fact that the project manager of the Job Corps was found by the district court to have been aware of the existence of a plan formulated by the Center staff that proposed these changes. To take a trial court verdict from a plaintiff critically and tragically injured on the basis of a lack of a formal request by the FEC to the OEO for increased security at the Center would seem to ignore the basic duty of the government at issue in this case, and also, as a practical matter, to put an undue emphasis on the form of the notice received by the OEO regarding the need for such precautions. 19

Moreover, the proposition, cited by the majority, that the contract between the FEC and the OEO provided that the FEC would have the responsibility to take precautions to protect its personnel 20 is not dispositive of this case. Unless the majority is suggesting that the government can contract out of its duty of care to the employees of its contractors in circumstances such as those here — a doubtful result for which no authority is supplied — then I see no sense in which the terms of the contract may be viewed as central to this tort action. What is crucial here, in my view, is the evidence bearing upon the duty of the government to take reasonable precautions to assure the safety of employees like Gibson, and the breach of that duty.

In addition, the fact that the district court found that, in September of 1966, the OEO issued a bulletin requiring all Job Corps centers in the country to “provide an on-site facility for the isolation of corpsmen whose conduct constituted a threat to themselves, other persons, or property” 21 —which, says the majority, assumes “added significance” in this case — is not at all dis-positive. First, the bulletin was evidently a *1251 general one addressed to all Job Corps centers, and was not in response to the particular problems associated with the Kilmer Center. Moreover, requiring that there be an “isolation” facility for unruly corpsmen is not the same as requiring the construction of a detention facility that would function as a lock-up in which to restrain violent enrollees. Indeed, Gibson’s assailant, Jessie, was himself placed in an isolation facility, a dormitory room separate from the living and working quarters of the Center, after Gibson removed him from his own dormitory. However, because the isolation facility was not secure, and thus did not detain him, Jessie soon returned to his own dormitory. Thus, even with an isolation facility at the Center, the injury that is the subject of this action was not averted.

C.

Given that the facts support the conclusion that a duty to provide adequate security measures, which devolved upon the government, was breached in this case, it is necessary to consider whether the duty in question entails a “discretionary function.” 28 U.S.C. § 2680 (a) provides that the FTCA does not permit a claim “based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused.” As the court in Driscoll v. United States, 525 F.2d 136, 138 (9th Cir. 1975) wrote, “. . . the discretionary function exception is limited to decisions made at the planning rather than the operational level.” (emphasis in original)

The argument that the provision of a secure detention facility and of arrest power for the guards at the Center was a discretionary function rests on the premise that the OEO delegated the complete operational control of such matters to the FEC, and retained only a broad planning authority with respect to safety aspects at the Center. Yet, the findings by the trial court do not support such a proposition.

As the district court found, the OEO maintained close supervision over the Center, having an on-site representative there who was responsible for reporting weekly to officials in Washington, D.C., about matters such as security. Moreover, “(numerous aspects of the Center’s operation, including the extention of physical security, were subject to . . . approval” of the OEO project manager in Washington, D.C. 22 The fact that the OEO had to approve security measures implemented by the Center clearly does not establish that all operational questions were delegated to the Center. Indeed, the requirement of OEO approval of security measures supports the view that the government was involved at more than a broad planning level in overseeing the safety of conditions at the Center.

As in McGarry, supra, the government here “chose to retain some responsibility over matters of employee safety.” 23 In light of the facts of this case, it would be reasonable to conclude that the fulfillment of those responsibilities was an “operational function.” A holding that the government is liable for negligence is thus not barred by the “discretionary function” exception of the FTCA.

D.

On the basis of the findings of fact by the trial court, which have not been attacked as clearly erroneous, I would hold that the conclusion that there has been a breach of the duty of care owed by the government’s employees is not an unreasonable one. Consequently, I would affirm the judgment of the district court regarding the liability of the government. 24

. Finding of Fact 24.

. Finding of Fact 28.

. Finding of Fact 30.

. This Court has written that “(i)t is proper for an appellate court to affirm a correct decision of a lower court even when that decision is based on an inappropriate ground.” PAAC v. Rizzo, 502 F.2d 306 , 308 n.l (3d Cir. 1974) (emphasis in original).

. United States v. Orleans, 425 U.S. 807 , 96 S.Ct. 1971 , 48 L.Ed.2d 390 (1976), which the majority relies upon in rejecting the theory of the government’s vicarious liability, has nothing to do with the theory of the government’s direct negligence in this case.

. Restatement, Second, Torts § 414 provides that:

One who entrusts work to an independent contractor, but who retains the control of any part of the work, is subject to liability for physical harm to others for whose safety the employer owes a duty to exercise reasonable care, which is caused by his failure to exercise his control with reasonable care. '

Comment (a) pertaining to that section stresses that one who retains “supervisory control” over the activities of the contractor may be liable under the section “unless he exercises his supervisory control with reasonable care so as to prevent the work which he has ordered to be done from causing injury to others.” Comment (b) underscores the point that liability may arise when the work engaged in by the contractor is “unreasonably dangerous” to others.

New Jersey courts have adopted § 414 of the Restatement. See, e.g., Bergquist v. Penter-man, 46 N.J.Super. 74 , 134 A.2d 20, 26 , certification denied, 25 N.J. 55 , 134 A.2d 832 (1957). Cf. Marion v. Public Service Elec. & Gas Co., 72 N.J.Super. 146 , 178 A.2d 57, 62 (1962).

It might be argued that, in this case, the extent of the OEO’s control over the operations at Camp Kilmer was insufficient to bring into play § 414 of the Restatement. However, Comment (c) of § 414 makes clear that day-to-day operational control by the party sought to be charged is not required. It provides that there must be more than “a general right to order the work stopped or resumed, to inspect its progress or to receive reports, to make suggestions or recommendations which need not necessarily be followed, or to prescribe alterations and deviations.” Nevertheless, the requisite supervisory control “does not mean that the contractor is controlled as to his methods of work, or as to operative detail.” In this case, there are findings that the OEO was responsible for approving the extension of physical security at the Center, and that the OEO maintained a permanent representative at the Center to report to Washington, D.C. Thus, although the “operative detail” of the Center’s activities was not determined by the OEO, the OEO retained a broad supervisory and operational authority for activities carried on at the Center.

. 549 F.2d at 590-591 . Although McGarry noted that the district court had found that the AEC did “nothing” to determine whether the contractor was fulfilling its contractual obligations to provide safely for the employees, 549 F.2d at 590-591 , its holding did not turn on this fact. There is no indication in McGarry that for the government to be liable for direct negligence, it is necessary to show that nothing at all has been done by the government regarding the risk in question.

. See Finding of Fact 7.

. See Finding of Fact 11.

. Finding of Fact 5.

. Finding of Fact 10.

. Finding of Fact 12.

. Finding of Fact 13.

. See Finding of Fact 14.

. Finding of Fact 15.

. Finding of Fact 9.

. Finding of Fact 16.

. See p. 1245.

. This is not to suggest that the FEC did not have a duty to take safety precautions. However, the point stressed by the majority that the FEC had a duty does not mean that government employees did not also have a duty of care in the circumstances of this case.

. See p. 1246.

. See Finding of Fact 18.

. Finding of Fact 7.

. 549 F.2d at 591 .

. Since the majority’s disposition of the question of liability in this case renders it unnecessary to discuss Gibson’s cross appeal on the issue of damages, I decline to do so, except to say that I would remand that portion of the case dealing with damages to take into account any injuries resulting from Gibson’s alleged inability to attain a doctoral degree after the attack in question.