# Eleanore Higginbotham Aretz v. United States of America, Thomas F. Aretz v. United States

> Court of Appeals for the Fifth Circuit · October 15, 1979 · 604 F.2d 417

URL: https://www.frixlaw.com/law-library/cases/9466014

## Case

- **Full name:** Eleanore Higginbotham ARETZ, Plaintiff-Appellee, v. UNITED STATES of America, Defendant-Appellant; Thomas F. ARETZ, Plaintiff-Appellee, v. UNITED STATES of America, Defendant-Appellant
- **Court:** Court of Appeals for the Fifth Circuit
- **Decided:** October 15, 1979
- **Citations:** 604 F.2d 417; 1979 U.S. App. LEXIS 11192
- **Precedential status:** Published
- **Opinion:** Dissent by Rubin
- **Judges:** Tuttle, Godbold, Rubin
- **Cited by:** 51 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9466014

## Opinion text

ALVIN B. RUBIN, Circuit Judge,
dissenting:
I.
My brethren reach a result that, reduced to the apodictic simplicity of a hornbook, can be restated in two sentences:
A. A person who contracts with a manufacturer to make and supply a product whose manufacture requires special care has a duty to employees of the manufacturer to warn their employer of hazards involved in making the product.
B. If harm results to employees of the manufacturer as a result of the hazardous qualities of the product, such a failure to warn may be the proximate cause of their injury even though the manufacturer knew or should have known of the hazards, provided the contract for making the product required the manufacturer to take special safety precautions and the manufacturer would have observed these procedures if required to do so by the person for whom the product is being made.
Because I cannot concur that the law of Georgia establishes the first proposition, at least in the manner in which it is here applied, and I cannot agree that Georgia or any other jurisdiction would accept the second, I must respectfully dissent.
The two sentence summary does not, I hope, unfairly reflect the views of the majority or distort their studied opinion. As they correctly observe, although suit is brought pursuant to the waiver of sovereign immunity provided by the Federal Tort Claims Act, the claim must be established in accordance with Georgia law. The principles applicable are, therefore, identical whether the contracting purchaser is a private industry or the federal government. They are run-of-the-mill tort principles.
The duty of care that the government is found to have violated is two-fold: a duty properly to classify the substances being used in the manufacturing process and a duty promptly to communicate any change in its own classifications. In discussing whether or not the government (or any other person) owes a duty of care to employees of the manufacturers with whom it *434 contracts, the majority makes it clear that the duties found to exist here are not based on any provision of the contract, and the government was not absolved by any contract provision from liability “which arises outside the contract, as did the government’s duty and liability in this case.” Indeed, under Georgia law, they state, the contracting purchaser (in this case, the government) could not by contract absolve itself from liability to the manufacturer’s employees.
The majority opinion expressly disclaims reliance on the contract as the source of the government’s duties; not only does the contract expressly negate liability but no breach of the contract was alleged or proved. Yet the contract thus disavowed appears to lurk in the background of the first theory of liability, for the majority states that liability is predicated on “the improper classification [of the product] and the failure to communicate the change in classification.” The classification of the illuminant, as the majority opinion stresses, was set forth in the contract itself. It appears, therefore, that the decision does impose liability for the alleged misclassifi-cation contained in the contract, and, hence, for liability arising in some way out of the contract.
The other basis of liability, failure to communicate the change in classification, was necessarily post-contractual. After observing that “[t]he district court was vague in identifying the source of the government’s duty to communicate,” my brethren, I respectfully fear, become victims of the same kind of imprecision. They discuss the source of that duty in three sentences, each of which I set forth separately:
(1) “Georgia law, however, recognizes that the employer of an independent contractor may be liable to employees of the independent contractor for his own wrongful acts.” With respect, I must conclude that this begs the question. Of course, employment of an independent contractor does not absolve the employer from liability for his own wrongful acts. But what creates the duty to communicate, and what makes failure to communicate wrongful!
The destruction of the shield that an independent contractor relationship once provided does not imply the creation of a duty to the employees of every independent contractor. While broader dicta occasionally appears in their opinions, Georgia courts have actually imposed a duty of care to employees of an independent contractor only in limited situations. Thus, where the employer-contractor engages an independent contractor to do work on his property and affirmatively leads the independent contractor’s employees into an unsafe place, he is liable. 1 Liability in this situation is not based merely on a general failure to recognize and communicate danger but on an act of negligence directly involving the employer-contractor with the injured employee. Georgia courts go a step further; they impose liability on a landowner who, without warning, contracts with an independent contractor to bring others on his premises to work on a machine that is known by the landowner to be hazardous. 2 *435 It is not clear whether the duty in such a situation is to warn the workers of the danger or merely to warn their employer so that he can take precautions. In either event, the principle is a familiar one: the landowner owes a duty to attempt to safeguard those who, in coming onto his premises, undergo a risk unknown to them. It does not follow from either of these cases that Georgia would impose a duty of care on every person who contracts with an independent contractor. Cf. Restatement (Second) of Torts § 416, which adopts a standard of absolute liability for the contractor’s fault.
None of the Georgia cases relied upon by the majority supports the concept that everyone who employs an independent contractor owes a duty to that contractor’s employees. That in some circumstances Georgia does not view the contract as a wall against liability does not create any inference that Georgia courts would impose a duty in the present situation.
(2) “(N)egligence need not be the breach of some specific rational duty.” This is an unexceptionable observation; it tells us what negligence need not be; it does not help us to identify the duty of care whose breach is a prerequisite to negligence.
(3) “[Ejvery person owes a duty of ordinary care not to injure third persons whether or not in some contractual relationship.” The contracting purchaser certainly owes a duty not to injure the employees of the manufacturer-seller. That, however, is not the duty found to have been violated here; the duty for whose breach liability is found is a duty to tell the manufacturer how to avoid injury to his own employees. No case cited by the majority and none known to me has ever imposed such liability on the contracting purchaser — either in Georgia law or elsewhere.
The result reached by imposing this duty of care is anomalous. Prior to the English decision in Winterbottom v. Wright, 1842, 10 M. & W. 109, 152 Eng.Rep. 402, and the celebrated American doctrine-blazer, Mac-Pherson v. Buick Motor Co., 1916, 217 N.Y. 382 , 111 N.E. 1050 , a manufacturer owed no duty at common law to the purchaser of his products. MacPherson imposed on the manufacturer a delictual duty to use due care in the manufacturing process to avoid injury to the purchaser of the commodity he manufactured. This duty was gradually extended until it became a doctrine of strict liability against manufacturers and sellers. See Restatement (Second) of Torts § 402 A. The history of this metamorphosis is recounted in scores of texts and commentaries, see, for example, Prosser, The Assault Upon the Citadel (Strict Liability to the Consumer), 69 Yale L.J. 1099 (1960); Noel, Manufacturers of Products — The Drift Toward Strict Liability, 24 Tenn.L.Rev. 963 (1957); James, Products Liability, 34 Tex.L. Rev. 44, 192-228 (1955).
If those who buy from manufacturers in turn owe a duty to the manufacturer’s employees, we have entered on a reverse evolutionary process in which buyers owe duties to sellers-manufacturers. The logic by which this result is attained would appear equally to impose a duty to communicate a warning if the buyer knew or should have known that a wall of the manufacturer’s plant was unsafe; the majority does not limit the communicative duty to information about inherently dangerous qualities in the manufactured product. Good Samaritans would doubtless give such warnings and I have no doubt that every moral person should. That is, however, not equivalent to legal duty.
Duty of care is imposed by law. Whether or not a duty exists is a question of law, not an issue for the fact-finder. Georgia Railroad & Electric Co. v. Cole, 1907, 1 Ga.App. 33 , 57 S.E. 1026 ; L. Green, Judge and Jury 55 (1930); W. Prosser, The Law of Torts 206 (4th ed. 1971); Restatement (Second) of Torts § 328 B. We may examine it free from any presumption of fact-finder correctness. When I do this, I do not find in Georgia law any precedent for imposing a duty of care on the purchasing contractor.
II.
When we turn to the question of causation, we must consider one fact not con *436 tained in the majority’s resume: Thiokol not only was the manufacturer of the illuminant but it knew of the very qualities that made necessary the kind of special handling that would have averted the catastrophe. The trial court found that Thiokol had conducted illuminant explosion tests at its own facilities and was aware that “the ignition of untamped illuminant produces extremely rapid deflagration with explosive effects and a shock wave of devastating proportions.”
It is patent that, if Thiokol already knew in substance what information about mis-classification would have revealed about the necessity of additional safety precautions, the failure to communicate the information to it was not a cause of the fire and defla-gration. Therefore, I do not see how it can be concluded that failure to communicate the illuminant’s true qualities could have been a cause in fact (“but for” cause) of the injury. Even if it was a cause in fact, then I do not agree that there was sufficient evidence that it was a proximate (or legal) cause of the accident. Although proximate causation in Georgia, unlike duty of care, is an issue for the fact-finder, Gross v. Southern Railway Co., 5 Cir. 1969, 414 F.2d 292 , I would hold that the findings here are clearly erroneous.
The majority must perceive this problem, for, after observing that “Thiokol’s negligence and the causal relationship of this negligence to the accident are, for present purposes at least, also undisputed,” they find the requisite causal link to the government’s negligence in the trial court’s conclusion “that notice of a change in classification would have prompted measures by Thiokol which would have reduced the risk of an explosion . . . . ” The trial judge properly did not conclude that Thiokol would have done this because of the danger to its employees or because communication would have told it something its executives did not know, but he apparently decided that Thiokol would have acted because the contract required it to act and, according to the testimony of the one witness on whose evidence the delicate fabric of causation is knit, it would have had no choice.
This bases causation-^-both cause in fact and legal cause — (and hence liability) on the contractual provisions, and thus unravels the key strand of the rope that supports the finding that the government owed a duty of care to Thiokol’s employees: a common law tort duty, not one created by the contract with the government. If the contract did not and could not create a duty of care to the employees and did not and could not absolve the government of a duty of care, it is difficult for me to perceive how the selfsame contract could create the indispensable next step to liability — causation.
It is possible to read the trial judge’s findings in a different way. Even if Thio-kol knew all that the government knew about the qualities of the illuminant and the hazards involved in its production, it did not know that the government also knew this. The fault of the government, then, was its failure to communicate the fact of reclassification of the illuminant because this would have revealed to Thiokol that the government was now aware of hazards greater than those mentioned in the contract. At that time, if Thiokol had known that the government had at last learned what Thiokol already knew, then it would have known that the government would be more vigilant in enforcing the contract. If this is a correct reading, then the causative link is even more evidently the contract itself. If, as I agree, the contract cannot be read to create a contractual duty to Thio-kol’s employees, I do not think it can create the causative relationship necessary to establish legal liability.
III.
Let me restate as succinctly as possible the basis of this suit:
The government has consented to be sued for breach of contract and under the Federal Tort Claims Act. It is not contended that the government violated its contract; therefore, liability must arise out of the Tort Claims Act, and that is the only basis for relief alleged by the plaintiffs. As the majority correctly states, the Tort Claims *437 Act creates no torts. It permits liability only if the government commits a tort under applicable state law.
The majority and I agree that the government is not subject to strict liability on the basis that it contracted for the manufacture of so dangerous a commodity that it is liable without regard to fault. It might be desirable for the government to be subject to strict liability, but we all agree that such a consideration is for Congress. If the government is liable, it is liable only because it negligently failed to perform a duty of care imposed by Georgia law.
The principles we must apply to liability arising under Georgia law are simple tort concepts. They are not made esoteric because they are asserted in a claim against the United States or because the consequences for which damages are sought were tragic.
The capacity of the common law to grow, to change and to adapt is rightly vaunted. In deciding to impose a duty of care and thus to create new principles of tort liability, it is appropriate for courts to consider the plight of injured persons and of the survivors of the deceased as well as the means to distribute risks of injury among all of society instead of letting the consequences fall only on a luckless few. However, when sanctioning such extensions courts must also take into account that, when they create a new species of duty of care, they generate a new line of cases that will apply that duty and develop it further.
The duty of care that the majority here imposes, I respectfully submit, is not found in existing Georgia law. It is newly born. The concept of causation they adopt is likewise singular. Restricted as we are by the applicable statutes, the economic desirability of risk distribution and compassion for the injured do not appear to me sufficient to justify the creation of a new concept of liability, and these considerations provide even less reason for us. as federal judges to construct what I think are new principles of state law.
I would hold that, under Georgia law, the purchaser of products from a manufacturer has no duty either to the manufacturer or his employees to warn of hazards known to the manufacturer; and that failure to tell a person what he already knows cannot constitute the cause of an injury the liability for whose occurrence is based solely on failure to communicate the information of danger. To impose liability on purchasers to the employees of their manufacturer-suppliers appears to me to make the stream of tort liability run uphill.
. In Johnson v. Western & Atlantic Railroad Co., 1908, 4 Ga.App. 131 , 60 S.E. 1023 , a railroad hired a contractor to repair the roof of a depot owned by the railroad. During the repairs, an employee of the contractor fell from the roof and died. The court stated that generally one who employs an independent contractor is not liable for injuries to workers. Here, however, the defendant had interfered and assumed control by stating to the worker that the roof was safe when the defendant knew or should have known of the defective condition of the roof.
The majority opinion also cites Ga.Code Ann. § 105-502(5) as support for the proposition that Georgia law recognizes liability for the wrongful acts of an employer of an independent contractor. This statute, though, deals with the liability of an employer for the negligence of a contractor. Furthermore, subsection (5) requires some interference or control on the part of the employer.
. In Huey v. City of Atlanta, 1911, 8 Ga.App. 597 , 70 S.E. 71 , an employee of an independent contractor was killed while repairing an engine owned by the city. The court held there was a cause of action for the defendant’s failure to warn of the dangerous condition of a machine on city premises. Cf. Miles v. Vicksburg Chemical Co., 5 Cir. 1979, 602 F.2d 683 at 685 .

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9466014. Public record. Not legal advice.