Appendix — United States v. McGarry

“tom, “e

Supreme Gourt, U. S

SORILED |

AUG 18 1977

“TP WICHAEL RODAK, JR., CL

Iu the Supreme Court of the United States

OCTOBER TERM, 1977

77-286"

UNITED STATES OF AMERICA, PETITIONER

Vv.

HARRIET MCGARRY, ET AL.

UNITED STATES OF AMERICA, PETITIONER

Vv.

PATRICIA MCGARRY SCHELL

APPENDIX TO PETITION FOR A WRIT OF CERTIORARI

INDEX

Page

Opinion of the United States Court of Appeals for

Ea la

Order of the United States Court of Appeals for

a cassercaconces 17a

Opinion of the United States District Court for the

IIE osc cscscenccnctscetescsccrcccscceccses 20a

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

HARRIET McCGARRY, individually, and as

guardian ad litem of DENNIS MCGARRY,

a minor, |

Plaintiff-Appellec,

vs. No. 74-1503

UNITED STATES OF AMERICA,

Defendant-Appellant. OPINION

PATRICIA MCGARRY SCHELL,

Plaintiff-Appellee, No. 74-1504

vs.

UNITED STATES OF AMERICA,

Defendant-Appellant.

[December 6, 1976]

On Appeal from the United States District Court

for the District of Nevada

Before: MERRILL and KENNEDY, Circuit Judges

and BURNS,* District Judge

MERRILL, Circuit Judge:

The United States appeals from adverse judgments

* Honorable James M. Burns, United States District Judge

for the District of Oregon, sitting by designation.

la

under the Federal Tort Claims Act, 28 U.S.C. §§ 1346

(b) and 2671 et seq., granting to the surviving wife

and children damages for the wrongful death of an

employee of an independent contractor which occurred

December 10, 1969.

For use by the Atomic Energy Commission (AEC)

the United States has withdrawn from the public do-

main a large area in the State of Nevada, northwest of

Las Vegas, designated as the Nevada Test Site (NTS)

and utilized by the Commission as an outdoor labora-

tory. The Commission does not carry out experiments

itself, but contracts for such work with research and

development organizations known as scientific users.

The Commission does not involve itself in the details of

any research program but approves the program ob-

jectives only in a general sense. When a scientific

user desires to perform an experiment, it sends a “cri-

teria letter” cescribing the experiment to the NTS

Support Office. If funds are available and the experi-

ment is within the program scope the NTS Support

Office authorizes other contractors to perform the nec-

essary work. One such contractor was Reynolds Elec-

trical & Engineering Co. (REECO), employer of the

decedent Thomas McGarry.

Under its contract with AEC, REECO was to man-

age, operate and maintain the NTS. The contract pro-

vided:

“The Contractor shall take all reasonable precau-

tions in the performance of the work under this

Contract to protect the health and safety of em-

ployees and of members of the public and to mini-

mize danger from all hazards to life and property,

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and shall comply with all health, safety, and fire

protection regulations and requirements (includ-

ing reporting requirements) of the Commission.

In the event that the Contractor fails to comply

with said regulations or requirements of the Com-

mission, the Contracting Officer may, without

prejudice to any other legal or contractual rights

of the Commission, issue an order stopping all or

any part of the work; thereafter a start order for

resumption of the work may be issued at the dis-

cretion of the Contracting Officer.”

Elsewhere it provided:

“The Commission shall have the right to inspect

the work and activities of the Contractor under

this contract at such time and in such manner as

it shall deem appropriate.”

Elsewhere it is further provided:

“Persons employed by the Contractor shall be and

remain employees of the Contractor, and shall not

be deemed employees of the Commission or the

Government * * *.”

Because the AEC carries out its functions primarily

through independent contractors, it employs only a

small number of persons at NTS. Thus, while there

were approximately 7,000 contractors’ employees at

NTS at the time of the accident, the AEC had only

about 30 persons employed there. Of this number the

AEC had only four employees located at NTS whose

duties were primarily concerned with safety. The func-

tion of those individuals was to appraise a contractor’s

performance relating to safety practices. This was not

a day-by-day appraisal of the contractor on a job, but

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rather a review of a contractor’s safety activities pro-

gram.

By contrast, since the safety responsibility is con-

tractually assigned to the various contractors, REECO

has a substantial safety department. At the time of

the accident it had approximately 18-20 employees en-

gaged in safety work. Unlike the AEC, which had no

safety inspectors whose concern was with observation

and monitoring, REECO did employ safety inspectors

as well as safety engineers, whose concern was with

the application of safety technology to the total opera-

tion.

The incidents resulting in the alleged wrongful death

began when a criteria letter was submitted by one of

the scientific users of NTS, Lawrence Radiation Lab-

oratories, containing a proposal for drilling of explora-

tory holes to ascertain geology. Approval to proceed

was given, including the drilling of one of the holes,

and the location of that hole was established by the

survey. It was in the vicinity of a power line owned by

the United States but under the operational control of

REECO. It was REECO’s responsibility uc that point

to drill the hole. This entailed the preliminary drilling

of anchor holes to accommodate tie-wires for the sup-

port of the drilling rig at the exploratory hole. For

that purpose a truck known as a portadrill was driven

to the site. It carried a drilling rig which could be

folded horizontally over the truck. The driver of the

truck was McGarry. The AEC safety office had re-

ceived no notification as to the drilling of the explora-

tory holes.

After arriving at the site McGarry and a fellow-

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employer, Dasher, marked the position of four anchor

holes. McGarry then raised the drilling rig into an up-

right position in order to insert the bit. With this mast

extending over 30 feet in the air, McGarry drove the

rig toward the first hole with Dasher walking in front

to locate the site precisely. After they had gone a short

distance Dasher heard a noise and saw oil running

from the hydraulic engine and sparks flying from the

left rear tire. He stopped McGarry, who alighted from

the rig. They discussed the matter briefly and Dasher

went to the left rear tire and put his hand on the tire.

The tire felt hot and Dasher received a slight shock.

Following further discussion, they went to the center

of the rig where, when McGarry leaned over to look at

the hydraulic unit, he apparently touched the rig and

was electrocuted. As Dasher was pulling McGarry

away, he happened to look up and, for the first time,

became aware of the electric lines which were touching

the upraised mast.

The NTS electrical system provided circuit breakers

which immediately de-energized the line when contact

was made by the upright mast. The system also pro-

vided for three automatic reclosures of the de-ener-

gized circuit: instantaneously after the first de-ener-

gizing contact, again after fifteen seconds, and again

after an additional thirty seconds. In each case of re-

closure, since the mast remained in contact with the

wire, the line was again de-energized in one-tenth of

a second.

In addition to the automatic reclosures the line could

be manually reclosed by the power dispatcher at an

NTS dispatch office owned by the United States and

operated by REECO. On this occasion the dispatcher

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noticed the voltage dip and, after the three automatic

reclosures had been unsuccessful, he tested the circuit

by manually closing it. As with the automatic reclos-

ures, the manual closure did not hold for more than

one-tenth of a second. The line thereafter remained

de-energized until the drilling rig was removed.

It is thus apparent that when the rig made contact

with the line, the line was automatically de-energized

and remained in that condition except for four pe-

riods of reclosure, each of one-tenth of a second in

length. Electrocution must have resulted from contact

made by McGarry during one of those periods.

The dispatcher had not been notified that anyone

was working in the area, although the AEC manual

incorporated the Corps of Engineers’ safety rule that

operations adjacent to overhead lines should not be ini-

tiated until appropriate authorities had been notified.

Had the dispatcher been advised of the presence of

workmen in the area he could have de-energized the

line, or he could have disconnected the automatic re-

closure device and refrained from reclosing the line

manually.

The administrative claims of McGarry’s widow and

two children were denied and they then brought these

suits to recover damages for his death. After trial to

the court without jury, an opinion was filed which also

constituted findings of fact and conclusions of law.

Judgment was rendered in favor of the plaintiffs. 370

F.Supp. 525 (D.Nev. 1973). This appeal was taken by

the United States.

Duty of Care Owing by United States

The district court found that REECO had been

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guilty of negligence (among other acts and emissions)

in failing to give notice to its power dispatcher of the

fact that work was to be done in the neighborhood of

the power line so that the line could be de-energized or

at least prevented from reclosure in the event contact

was made.

The AEC contends that the government cannot, un-

der the Tort Claims Act, be held liabile for injuries

resulting from the negligence of REECO, its independ-

ent contractor, since under that Act the United States

has waived immunity only in cases where injury re-

sults from negligence of a government employee.’

In Thorne v. United States, 479 F.2d 804 (9th Cir.

1973), this court determined that under California

law, when an independent contractor is employed to

engage in work that is extra dangerous," the employer

of the contractor has a duty to exercise reasonable care

to see that the contractor takes proper precautions to

protect those who might sustain injury from the work.

We there held that since under California law such a

duty was imposed upon a private person, it was im-

posed upon the United States under the Tort Claims

Act. We noted that liability for breach of such duty is

neither strict nor vicarious liability. It is not liability

. U.S.C, § 1346(b) confers jurisdiction on the district courts

over civil actions on claims against the United States for money

damages for injury or death “caused by the negligent or wrong-

ful act or omission of any employee of the Government while

acting within the scope of his office or employment, under cir-

cumstances where the United States, if a private person, would

be liable to the claimant in accordance with the law of the place

where the act or omission occurred.”

*In Van Arsdale v. Hollinger, .... Cal. 2d ...., 4837 P.2d 508,

518, 66 Cal.Rptr. 20, 25 (1968), on which the Thorne court re-

lied, this is defined as “work dangerous in the absence of special

precautions.”

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for the contractor’s failure to exercise due care or to

employ proper safety precautions. It stems from the

duty of the contractor’s employer to exercise reasonable

care to see that the contractor abides by his responsi-

bilities in that respect. It was breach of that duty by

the employees of the government (and not the negli-

gence on the part of the employees of the contractor)

that created liability in the United States in the Thorne

case.

Here the governing tort law is that of the State of

Nevada. Although the courts of that state apparently

have not had occasion to consider the duty of care ow-

ing by the employer of a contractor under these cir-

cumstances, the district court in its opinion held:

“It is the considered judgment of this Court that

the Nevada state courts would give deference to

the decisions of the California Supreme Court as

interpreted in Thorne v. United States * * *.”

370 F.Supp. at 564. The court also ruled that the duty

existed in the situation here, where drilling equipment

was to be used in the vicinity of dangerous transmis-

sion lines. The court concluded :

“Under Nevada law, the AEC, in this case, was

under a duty to exercise reasonable care to see that

proper precautions were taken by the contractor.”

Id. at 565.

We find no error in imposing this duty of care under

the circumstances of this case. The power line was

owned by the United States. It was to be contemplated

that contractors would engage in work in its neighbor-

hood, and the AEC here was aware of the location of

the exploratory hole. In our judgment where a con-

8a

tractor is employed to perform work of a sort that may

bring the worker into contact with a power line, the

work is extra dangerous and the Thorne holding is ap-

plicable.

This need not as matter of law entail presence of an

AEC inspector on each occasion of work performed in

the neighborhood of the power line. If, here, the AEC

had made regular examinations to ascertain the prac-

tices being followed by REECO, and: was reasonably

satisfied from its examination that appropriate guide-

lines were being followed, this might well have been

found by the trier of fact to suffice. No such examina-

tion 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. It stated:

“* * * AEC did nothing to ascertain whether

REECO was fulfilling its contractual obligations

to safely provide for the workers.”

Id. at 547.

We conclude that the district court’s determination

of the rule that Nevada courts will adopt is reasonable ;

that under Nevada law as found by the district court

a duty of care was owed by the AEC to REECO em-

ployees to take reasonable steps to assure that REECO

was taking proper precautions respecting the hazards

presented by engaging in work near the power line;

and that the court’s finding that AEC failed to meet its

duty in this respect was not clearly erroneous.

The “Discretionary Function” Exception

By 28 U.S.C. § 2680(a) the provisions of the Tort

9a

Claims Act do not apply to 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.” In

Driscoll v. United States, 525 F.2d 136, 138 (9th Cir.

1975), this court recognized that “the discretionary

function exception is limited to decisions made at the

planning rather than the operational level.” *

The United States contends that it delegated to

REECO all responsibility for safety precautions, re-

taining no duties whatsoever; that this was done as

matter of policy, and, under the discretionary function

exception, is not subject to judicial review or to being

set aside by local law. It relies upon Blaber v. United

States, 332 F.2d 629, 631 (2d Cir. 1964) ,where it was

stated:

“TW]hen the [Atomic Energy] Commission de-

cides the extent to which it will undertake to

supervise the safety procedures of private con-

tractors, it is exercising discretion at one of the

highest planning levels.”

It may perhaps be questioned whether the govern-

ment can administratively immunize itself from tort

liability under applicable state law as a matter of “‘pol-

icy.” However, we need not reach that question. Under

‘In Driscoll, the United States, charged with negligence in

failing to establish traffic control devices, contended that liabil-

ity should attach only for negligent operation or maintenance of

traffic devices and should not attach for a failure to establish

them, since the latter was the result of an exercise of the dis-

cretionary function. We held that the record did not establish

as matter of law that the decision not to install safety devices

was made at the planning level. We remanded for more com-

plete development of the facts.

l0a

its contract with REECO, as we have heretofore quoted

it, AEC did not disassociated itself from all matters of

safety or disclaim any function or concern in that re-

spect. It reserved to itself the right to inspect the work

and activities of REECO and to stop all work should

REECO fail to comply with health, safety and fire pro-

tection requirements. Four AEC employees were en-

gaged in the review of REECO’s safety program.

As a matter of policy, then, the AEC chose to retain

some responsibility over matters of employee safety.

The meeting of that responsibility was an operational

function. The manner in which responsibility was to

be met was the subject of decision at the operational

rather than the planning level, and accordingly was

not an exercise of a discretionary function. It must,

then, meet the requirements of Nevada law.

Contributory Negligence

The government contends that recovery here is

barred by McGarry’s contributory negligence in two

respects. First, in failing to see the power line into

which he drove the portadrill; second, in driving the

portadrill with mast extended in violation of AEC

safety rules. The district court did not reach these con-

tentions and no findings were made respecting the

negligence of McGarry in these respects.

The court ruled, as a matter of law, that death did

not result from the risk created by MeGarry’s allegedly

negligent conduct. It noted the rule that “failure to

observe a hazard will bar recovery as contributory

negligence only if the death resulted from the particu-

lar risk to which deceased’s conduct exposed him.” 370

F.Supp. at 568. It held:

lla

“Under the set of circumstances presented by this

case, the risk of electrocution was nou® foresee-

able result of, nor created by, decedent’s actions.”

Id.

The reasoning of the court started with language

used in the Nevada case of Los Angeles & S.L.R. Co. v.

Umbaugh, 61 Nev. 214, 123 P.2d 224, 234 (1932), to

the effect that “The law will never hold it imprudent

in anyone to act upon the presumption that another in

his conduct will act in accordance with rights and

duties of both.” Applying this rule, the district court

reasoned that McGarry could reasonably act upon the

assumption that the wire had properly been deacti-

vated. The court stated:

“* * * even presuming decedent knew the wires

were present, he could reasonably have assumed

they were not ‘live’ or that they had otherwise

been made safe and could prudently have relied

on an absence of defendant’s negligence in that

regard.”

370 F.Supp. at 568.‘ And later:

“Even had decedent been fully aware of the over-

head lines, then, the risks he foreseeably created

in driving slowly beneath them with the rig ex-

tended, while including snagging the rig or caus-

ing the rig or wire to break or causing portions of

‘This suggests a determination that McGarry’s conduct was

not negligent at ali. In this respect the trouble is that there is

no indication whatsoever that McGarry acted upon such an as-

sumption. From Dasher’s testimony it would appear that

neither McGarry nor Dasher was aware of the presence of the

wire until contact with it -mused the portadrill to behave in

an extraordinary fashion. The negligence charged against

McGarry was not that he proceeded upon a questionable as-

sumption.

12a

the rig to topple, did not include electrocution as a

consequential danger.”

Id. at 569.

The rule requiring that injury result from the par-

ticular risk to which plaintiff’s conduct exposed him is

stated as follows in W. Prosser, Law of Torts, $ 65, at

422 (4th ed. 1971):

“* * * plaintiff is not barred when his failure to

exercise reasonable care for his own safety ex-

poses him to a foreseeable risk of injury through

one event, and he is in fact injured through an-

other which he could not foresee.”

Under this rule the question would seem to be

whether, assuming McGarry’s conduct to be negligent,

it was foreseeable that death by electrocution would

result. The district court, by its reasoning, seems to be

transforming a question of negligence—whether Me-

Garry could reasonably rely on an assumption—into a

question of causation.

However, for the purposes of this discussion we ac-

cept the court’s reasoning. The question, then, is

whether McGarry could reasonably rely on an assump-

tion that the wire had been deactivated. We conclude

that as matter of law he could not. .

We note that McGarry’s death did not result di-

rectly from contact of the mast with the wire. It re-

sulted from McGarry’s making contact with the porta-

drill after sparks had been observed flying from a tire

and oil running from the engine. The machine then was

shouting at the top of its voice that the wire was live.

There was, at the time McGarry made contact with the

machine and was electrocuted, no room for any rational

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assumption that REECO had fulfilled its duty to ren-

der the wire harmless.

Further, the reasoning of the district court with re-

spect to causation seems to us to be inconsistent with

the very concept of contributory negligence. The court

stated:

“The fact remains that had defendant fulfilled its

duty to deceased, as he justifiably could have as-

sumed defendant would do, the deceased would

have been unharmed even though he failed to see

the lines and violated a safety regulation against

moving a portadrill with the rig extended.”

370 F.Supp. at 569.

The concept of contributory negligence has refer-

ence to the case where both plaintiff and defendant are

at fault and the defense only comes into play where the

negligence of the defendant is, arguendo, acknowl-

edged. To hold that plaintiff’s contributory negligence

does not create a risk of harm, where, but for the neg-

ligence of the defendant, no harm would have occurred,

would write the defense of contributory negligence off

the books.

We conclude that it was error for the district court

to reject the defense of contributory negligence on the

grounds on which it acted. The question then remains

whether in the two respects asserted by the govern-

ment McGarry was contributorily negligent. Because

of the ground on which the court acted it did not reach

the question and no findings were made.

The government contends that on each of the two

grounds McGarry was contributorily negligent as mat-

ter of law. We disagree.

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— A i i a el ~~ -<

As to the first ground—that McGarry was negligent

for failing to see the power line—there are factors that

favor McGarry. It appears that he was concentrating

on his helper, Dasher, and relying on him for directions

to get to the location of the drilling hole. Testimony of

a safety engineer employed by AEC suggests that such

reliance was reasonable. He testified that “One of the

duties of guiding would also have been to watch for

clearances, particularly with a rig being moved with

the mast up.”

Further, we note that other courts faced with a fail-

ure to avoid overhead hazards in circumstances similar

to those presented here have held that the question of

contributory negligence remains one for the trier of

fact.*

As to the second ground—that McGarry was negli-

gent in driving the rig with the mast upright—we note

that under Nevada law violation of an administrative

rule is not negligence per se. Price v. Sinnott, ...... Nev.

aii , 460 P.2d 837, 839-40 (1969). Here the portadrill

was driven for only a short distance—50 to 60 feet.

Under the circumstances we feel that the question of

negligence in this respect should be left to the trier of

fact.

We conclude that upon the issue of contributory neg-

* Austin v. Riverside Portland Cement Co., 282 P.2d 69, 74

(Cal. 1955) (a crane came into contact with an overhead wire) ;

Nevis v. Pacific Gas & Electric Co., 275 P.2d 761. 765 (Cal.

1954) (a hay derrick came into contact with a power wire) ;

Dunn v. Pac. Gas & Electric Co., 272 P.2d 745, 752 (Cal. 1954)

(an elevated bed of a dump truck came in contact with wires) ;

Jackson v. Utica Light & Power Co., 149 P.2d 748 (Cal.App.

1944) (a power shovel came in contact with wires) ; Polk v.

Los Angeles, 159 P.2d 931 (Cal. 1945) (a tree trimmer made

contact with a live wire).

15a

ligence the case must be remanded for further findings

of fact.

Damages.

The government contends that awards of $50,000 to

McGarry’s daughter and $65,000 to his son were ex-

cessive as matter of law. No authority is cited for this

proposition and we reject it. The substantive law of

Nevada supports the damage awards made by the trial

court, see Porter v. Funkhouser, ...... Nev. ..... , o82

P.2d 216, 217 (1963). The trial court’s findings in this

regard were not clearly erroneous. F.R.Civ.P. Rule 52

(a); Felder v. United States, ...... , (Slip op.

75-1455, 9th Cir. Sept. 9, 1976).

Upon the issue of contributory negligence judgment

is reversed and the case remanded for further findings

of fact. In all other respects judgment is affirmed.

16a

21 MAR 77

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

HARRIET McGarry, Ete.,

Plaintiff-Appellee,

VS. No. 74-1503

UNITED STATES OF AMERICA,

Defendant-A ppellant.

PATRICIA MCGARRY SCHELL,

Plaintiff-Appellee,

vs. | No. 74-1504

UNITED STATES OF AMERICA,

Defendant-Appellant. OR DER

Before: MERRILL and KENNEDY, Circuit Judges

and BURNS,* District Judge

The panel as constituted in the above case has voted

to deny the petition for rehearing. Judge Kennedy has

voted to reject the suggestion for a rehearing in banc,

and Judges Merrill and Burns have recommended re-

jection of the suggestion.

The full court has been advised of the suggestion for

an in banc hearing and no judge of the court has re-

quested a vote on the suggestion for rehearing in banc.

Fed. R. App. P. 35(b).

The petition for rehearing is denied and the sugges-

tion for a rehearing in banc is rejected.

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NO MISTAKE IN PAGINATION

APPENDIX C

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEVADA

HARRIET McGarrY, individually, and as

guardian ad litem of DENNIS MCGARRY,

a minor,

Plaintiff,

vs. Civil LV-1504

UNITED STATES OF AMERICA,

Defendant.

PATRICIA MCGARRY SCHELL,

Plaintiff,

vs. Civil LV-1628

UNITED STATES OF AMERICA,

Defendant.

OPINION

Facts

The plaintiffs have filed this wrongful death action

under the Federal Tort Claims Act (FTCA), 28 U.S.C.

§ 1346(b), et seq., to recover damages resulting from

the death of Thomas McGarry, who died as the result

of an accidental electrocution on the Nevada Test Site

of the United States Atomic Energy Commission. The

Nevada Test Site is a government-owned nuclear test-

ing facility managed, operated and maintained by Rey-

nolds Electrical and Engineering Co., Inc. (REECo),

an independent contractor. In addition to performing

direct services and activities incident to the AEC test-

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ing program, the contract provided that REECo would

provide, maintain, operate and distribute electrical

power on the test site. The power lines, circuit break-

ers, transformers, substations and other electrical fa-

cilities on the Nevada Test Site and the electricity

supplied through such facilities are owned by the de-

fendant United States of America.

The decedent Thomas McGarry was an employee of

REECo who, on the day of the accident, December 10,

1969, had been assigned by a REECo drilling super-

visor to certain duties involving the use of a portable

drilling rig. The accident occurred when the mast of

the rig Mr. McGarry was driving came into contact

with an overhead high voltage power line.

The accident occurred at a location designated as

Uel10-ITS#2 located in Area 8 of the Nevada Test Site.

Within Area 8 the Lawrence Radiation Laboratory,

another independent contractor, had previously deter-

mined that six exploration holes would be drilled. Prior

to December 10, 1969, a third independent contractor,

Holmes and Narver, Inc., had surveyed the exploration

site and had physically located exploratory hole Ue10-

ITS#2 with a stake and marker. Mr. McGarry and his

assistant, Mr. Dasher, had driven their portadrill rig

to the exploration hole to map out and drill anchor

holes which were to be used to run steel cables to hold

and stabilize the stationary drilling equipment which

was used to drill the actual exploration hole.

Mr. McGarry and Mr. Dasher had mapped out the

anchor holes and raised the mast on the portadrill rig

and were proceeding to the location of the first anchor

hole when the mast came into contact with an overhead

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power line which had not been observed by either

worker. When the portadrill rig mast came into contact

with the power line, Mr. McGarry stopped the truck

and alighted. Mr. McGarry then came in contact with

the rig and was electrocuted.

Federal Tort Claims Act Liability

The Federal Tort Claims Act, 28 U.S.C. § 1346(b),

provides:

“... the district courts . . . shall have exclusive

jurisdiction of civil actions on claims against the

United States, for money damages... for injury

or loss of property, or personal injury or death

caused by the negligent or wrongful act or omis-

sion of any employee of the Government while

acting within the scope of his office or employ-

ment, under circumstances where the United

States, if a private person, would be liable to the

claimant in accordance with the law of the place

where the act or omission occurred.”

This act waives the sovereign immunity of the United

States for the negligent acts or omissions of its em-

ployees, and subjects it to the same liability for such

negligent acts or omissions that a private person would

be subjected to under the law of the state in which the

occurrence giving rise to the liability happened. The

purpose of the waiver of sovereign immunity was de-

fined by the United States Supreme Court in Rayonier

v. United States, 352 U.S. 315 (1957), and the act is

to be construed to effectuate such purpose. In the Ray-

onier case, the Supreme Court, holding that the “gov-

ernmental activity” immunity of municipal corpora-

22a

tions was not available to the United States in an action

brought under the FTCA, stated: '

“It may be that it is ‘novel and unprecedented’

to hold the United States accountable for the neg-

ligence of its firefighters, but the very purpose of

the Tort Claims Act was to waive the Govern-

ment’s traditional all-encompassing immunity

from tort actions and to establish novel and un-

precedented governmental liability. The Govern-

ment warns that if it is held responsible for the

negligence of Forest Service firemen a heavy bur-

den may be imposed on the public treasury. It

points out the possibility that a fire may destroy

hundreds of square miles of forests and even burn

entire communities. But after long consideration,

Congress, believing it to be in the best interest of

the nation, saw fit to impose such liability on the

United States in the Tort Claims Act. Congress

was aware that when losses caused by such negli-

gence are charged against the public treasury they

are in effect spread among all those who contribute

financially to the support of the Government and

the resulting burden on each taxpayer is relatively

slight. But when the entire burden falls on the in-

jured party it may leave him destitute or griev-

ously harmed. Congress could, and apparently did,

decide that this would be unfair when the public

as a whole benefits from the services performed by

Government employees. And for obvious reasons

the United States cannot be equated with a mu-

nicipality, which conceivably might be rendered

bankrupt if it were subject to liability for the neg-

ligence of its firemen. There is no justification for

23a

this Court to read exemptions into the Act beyond

those provided by Congress. If the Act is to be al-

tered that is a function for the same body that

adopted it.”

However, the United States still remains immune from

certain types of liability which may be imposed upon

private persons by reason of the limitation of the waiv-

er of sovereign immunity only to liability for negligent

acts or omissions of its employees. By reason of this

limitation on the waiver of immunity, the United

States cannot be held liable for a claim arising under

the doctrine of strict liability or absolute liability with-

out a showing of fault on the part of an employee of the

United States. This rule was first enunciated in Dale-

hite v. United States, 346 U.S. 15, 44-45 (1953) :

“It (FTCA) is to be invoked only on a ‘negligent

or wrongful act or omission’ of an employee. Abso-

lute liability, of course, arises irrespective of how

the tortfeasor conducts himself ; it is imposed auto-

matically when any damages are sustained as a

result of the decision to engage in the dangerous

activity. The degree of care used in performing the

activity is irrelevant to the application of that doc-

trine. But the statute requires a negligent act. So

it is our judgment that liability does not arise by

virtue either of United States ownership of an

‘inherently dangerous commodity’ or property, or

of engaging in an ‘extra-hazardous activity’ ”.

Dalehite was recently reaffirmed by the Supreme Court

in Laird v. Nelms, 406 U.S. 797 (1972), where the

Court held that the United States was not liable under

the doctrine of absolute liability for sonic booms, but ob-

24a

served that liability could have been imposed if there

had been a showing of negligence on the part of Gov-

ernment employees in planning or conducting the

flight.

Similarly, by reason of the limitation of the waiver

of immunity to the negligent acts or omissions of its

own employees, the United States cannot be charged

with liability based on the imputation of negligence of

an independent contractor. The United States cannot

be held vicariously liable for the negligence of an inde-

pendent contractor because one of its own employees

has not committed a negligent act or omission. Gowdy

v. United States, 412 F. 2d 525 (6th Cir. 1959);

Strangi v. United States, 211 F. 2d 205 (5th Cir. 1954) ;

Dushon v. United States, 243 F. 2d 451 (9th Cir.

1957) ; United States v. Dooley, 231 F. 2d 423 (9th

Cir. 1955) ; United States v. Page, 350 F. 2d 28 (10th

Cir. 1965) ; Roberson v. United States, 382 F. 2d 714

(9th Cir. 1967) ; and Grogan v. United States, 241 F.

2d 29 (6th Cir. 1965). Further, the United States will

not be held liable for the negligence of an independent

contractor, even when that contractor is performing a

non-delegable duty owed by the United States. Even

though the duty is nondelegable, if the negligence is by

the independent contractor, it is not a negligent act or

omission by a United States employee, so there is no

government liability. Page v. United States, 350 F. 2d

28 (10th Cir. 1965).

It is clear that the Government will not be held liable

for the exercise of a discretionary function. The statu-

tory exception, 28 U.S.C. § 2680(a) states:

“The provisions of this chapter and section 1346

25a

(b) of this title shall not apply to—

(a) Any claim based upon an act or omission of

an employee of the Government, exercising due

care, in the execution of a statute or regulation,

whether or not such statute or regulation be valid,

or based upon the exercise or performance of 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 stated in Blaber v. United States, 332 F. 2d 629

(2nd Cir. 1964), with respect to the discretionary

function exception and the AEC:

“The AEC may have considerable power to control

the activities of private companies through con-

tracts, but when the Commission decides the ex-

tent to which it will undertake to supervise the

safety procedures of private contractors, it is

exercising discretion at one of the highest plan-

ning levels. Decisions of this kind are therefore

within the ‘discretionary function’ exception of 28

U.S.C. 2680(a).”

The above principles which immunize the United

States from certain types of tort liability under the

FTCA are much too firmly entrenched and established

in the law to be seriously challenged by the plaintiffs

in the instant case. Although the present case presents

an obvious basis for the imposition of absolute liability

or the imputation of the negligence of an independent

contractor if the defendant were a private person, the

plaintiffs are not asserting that type of liability against

the United States. The plaintiffs’ claims against the

26a

United States are predicated solely upon the negligence

of employees of the United States. The fact that some-

one else might be charged with absolute liability, or the

fact that an independent contractor might have been

negligent, does not absolve the United States from lia-

bility under the FTCA if its employees were also negli-

gent. The plaintiffs have succinctly stated their theory

of recovery in their post-trial brief, page 8, 11. 10-17:

“... the fact that the liability of the Government

may not be as broad as the liability of a private

citizen does not absolve the Government from lia-

bility where the claim falls within the sphere of

the liability imposed by the Act. Stated a different

way, the fact that the Government may be ab-

solved from liability predicated upon strict liabil-

ity, absolute liability of the breach of a non-dele-

gable duty in a situation where a private person

would be held liable does not absolve the Govern-

ment from liability predicated upon the negligence

of its own employees.”

The plaintiffs must rely upon the negligence of a

Government employee. In order to find a party liable

for negligence, it is necessary to show a duty to the per-

son injured, a breach of such duty by failure to act in

accordance with that degree of care required by law,

and an injury that proximately results from such

breach of duty. The duty breached may be either by act

or omission. In a FTCA suit it is not necessary to show

specifically which Government employee breached the

duty owed by the United States. Once there is a duty

established, the liability does not depend solely upon

the misfeasance of some Government employee; the

omission or failure to act is sufficient for liability.

27a

United States v. Hull, 195 F. 2d 64 (5th Cir. 1952).

The primary question then is whether the defendant

had a duty to act, for in the absence of a duty a failure

to act does not constitute negligence. Was the United

States charged with a duty to act with regard to the

safety of the employee of an independent contractor?

Duties Owed by the AEC

The plaintiffs contend that affirmative duties were

imposed upon the United States, through its agency,

the AEC, by (1) Federal statute, (2) Nevada statute,

(3) reason of its ownership, possession and control of

the Nevada Test Site, and (4) by reason of it being the

owner, supplier and distributor of electricity through-

out the Nevada Test Site. These four duties, which the

plaintiffs contend were imposed upon the AEC, regard-

less of whether they were also imposed upon variously

independent contractors, will be discussed individually

within.

Before discussing the various duties, the theory of

negligent contractor selection will be disposed of. The

plaintiffs do not rely on this theory. At page 11, 1. 30,

plaintiffs post-trial brief, it is stated:

“There is no question but that the Government is

not liable for the discretionary decision of choos-

ing to proceed by using independent contractors.

The Plaintiffs herein do not contend that the Gov-

ernment was negligent in using independent con-

tractors, nor do they predicate their claim upon a

contention that the Government negligently se-

lected an incompetent independent Contractor.”

28a

A.

Duties Imposed upon the AEC by Federal Statute

The plaintiffs argue that certain federal regulations

which were incorporated into the contract create a duty

owed by the AEC to the deceased. The contract between

REECo and AEC, page 12, paragraph 7, and page

A-17, paragraph A-27 (Plaintiffs Pre-trial Conference

Memorandum, page 11), incorporates numerous fed-

eral regulations, compliance with which is subject to

the supervision and inspection of the AEC. The con-

tract, in effect, requires the contractor, REECo ,to com-

ply with certain federal Corps of Engineers regula-

tions and gives the AEC the power to stop all work in

the event that the contractor fails to comply with the

requirements. The plaintiffs argue that the AEC had

the duty to require the compliance with all of the regu-

lations incorporated into the contract. The duty was

imposed by the federal regulations as incorporated into

the contract.

The. law is well settled that the reservation of the

right to inspect and the right to stop the work does not

in itself create a duty in the Government. As stated in

Kirk v.United States, 270 F. 2d 110 (9th Cir. 1959) :

“The fact that the United States retained the right

to inspect the work under censtruction to see that

the provisions of the contract were carried out and

also retained the right to stop work if they were

not is not sufficient in itself to make the United

States liable for damages resulting from negli-

gence of the contractors in their performance of

the contract.”

Numerous other cases hold that retaining the right

29a

to inspect and stop work creates no duty in the Govern-

ment. Market Insurance Co. v. United States, 415 F. 2d

459 (5th Cir. 1969) ; Gowdy v. United States, 412 F. 2d

525 (6th Cir. 1969) ; Bawm v. United States, 427 F. 2d

215 (5th Cir. 1970) ; Fisher v. United States, 441 F. 2d

1288 (3rd Cir. 1971).

The right of inspection and the right to stop work

created no duty in the Government, but do the federal

regulations themselves create a duty to plaintiffs’ de-

cedent which should have been carried out? The fact

that the federal regulations incorporated into the con-

tract create no such duty on the Government is well

explained in Kirk v. United States, 161 F. Supp. 722

(S.D. Idaho 1958, affirmed 270 F. 2d 110 (9th Cir.

1959) :

“It is the contention of the plaintiffs, inter alia,

that the defendant was charged by law with the

positive duty of accident prevention at the Lucky

Peak Project; that the minimum requirements of

this duty are set forth in the Manual, ‘Safety Reg-

ulations’, Exhibit No. 16; and that the failure of

the Government employees to effectuate such a

program of accident prevention and more par-

ticularly to effectuate the provisions of the said

Manual was negligence for which the defendant is

liable, regardless of any possible contributory neg-

ligence on the part of the deceased. This Court is

of the opinion that the duty on the part of the

Corps of Army Engineers to initiate and carry out

a safety program did not create a duty or an obli-

gation of care to the deceased. It is not sufficient

that some duty or obligation may have been neg-

30a

lected by the defendant or its servants, but it must

have been some duty or obligation owed the de-

ceased. The United States v. Marshall, 9 Cir., 230

F 2d 183. In Goodwill Industries of El Paso v.

United States, 5 Cir., 218 F. 2d 270, at page 272,

it is stated :

‘In summation, it follows that the appellant

cannot recover against the United States: * * *

(c) for breaches of duty which are not held action-

able under the law of the state where the injury

occurred.’

“The rules and regulations relied upon to es-

tablish a statutory duty to plaintiffs’ decedent,

were not passed or promulgated for the purpose of

establishing a duty of care and concomitant liabil-

ity on the part of the Government and its employ-

ees toward one standing in the position of the de-

ceased. It should be noted that the ‘Safety Regula-

tions’ were made applicable to the contractor at

the Lucky Peak Project only through the contract

provisions and not by force of law. These rules, if

applicable at all, were at most evidence of what

was a reasonable standard of care.”

The above rule was followed in United States v.

Page, 350 F. 2d 28 (10th Cir. 1965) and in Market In-

surance Co. v. United States, 415 F. 2d (5th Cir.

1969), where the Court said:

“Under the general provisions of the contract

(paragraph GC-16), the contractor had a duty to

comply with the Corps of Engineers safety man-

ual. The safety manual required the contractor to

place warning signs where necessary to provide

proper and adequate warnings of hazards to work-

3la

men and to the public. The contractor was also ob-

ligated to take such additional measures as the

contracting officer of the Corps might determine

to be reasonably necessary for the purpose of pro-

viding safety controls for the protection of the life

and health of the employees and other persons.

“In cases where employees of independent con-

tractors such as Loftin have sustained injuries

while performing work for the United States,

plaintiffs-employees have unsuccessfully argued

that the United States, by the safety provisions of

a government contract, has assumed a contractual

obligation to the injured employee. See Beason v.

United States, 396 F. 2d 2 (5th Cir. 1968) (per

curiam) ; Kirk v. United States, 161 F. Supp. 722

(S.D. Idaho 1958), aff’d 270 F. 2d 110 (9th Cir.

1959).

“Tssuance of regulations and a manual relating

to a safety program does not render the govern-

ment liable for the death of an employee of an in-

dependent contractor under the Federal Tort

Claims Act. Cf. Kirk, supra.”

A very recent Ninth Circuit case rejects the idea that

federal regulations create a governmental duty to the

employee of a contractor. In United States v. DeCamp,

478 F. 2d 1188 (9th Cir. 1973), an employee of an in-

dependent contractor of the Army Corps of Engineers

was killed when his bulldozer made contact with a live

willow tree. The district court found that the accident

would not have occurred had the bulldozer been

equipped with a canopy guard or roll bar. A provision

of the Corps of Engineers’ safety manual required

32a

canopy guards, but the Corps’ resident engineer deter-

mined that the guards were not necessary for the par-

ticular project. The district court held that the dece-

dent’s employer, the independent contractor, was not

negligent in failing to provide canopy guards because

the custom and usage in the area was for contractors

not to use canopies or roll bars for clearance projects.

The district court heid the Government negligent be-

cause the statement of the resident engineer served to

waive the application of a regulation that would have

required canopies and this waiver breached the Gov-

ernment’s duty of care toward the decedent. The Court

first stated that the safety manual, as a matter of fed-

eral law, imposes no special duty on the Government,

citing numerous cases. The Court then stated that even

if it conceded that such a duty was created by the man-

ual, the Government was still not negligent because the

resident engineer did not act negligently in waiving the

regulation for the project. The Court stated:

“In California a private person would assume no

tort duty by reaching this conclusion and the gov-

ernment engineer cannot be held to a higher stand-

ard.”

The conclusion is important because, under the FTCA,

the United States is liable for the negligence of its em-

ployees:

“under circumstances where the United States, if

a private person, would be liable to the claimant in

accordance with the law of the place where the act

or omission occurred.”

Accordingly, the law of Nevada governs the liability of

the United States for this alleged tort. The Government

33a

is to be held to the same standard as a private person

in Nevada, and therefore, under the FTCA, the federal

safety regulations incorporated into the contract can-

not create a duty on the Government which does not

exist on a private person.

Therefore, the AEC owed no duty to the decedent

Thomas McGarry by reason of the contract between

REECo and the AEC or by reason of federal statutes

or regulations.

B.

Duties Imposed upon the AEC by Nevada Statute

The plaintiffs argue that Nevada Revised Statutes

§ 618.250 created a duty in the AEC and that the de-

ceased was proximately injured because of the AEC’s

duty breach. NRS 618.250 provides:

“Construction of unsafe places of employment

prohibited.

No employer, owner or lessee of any real prop-

erty in this state shall construct or cause to be

constructed any place of employment that is not

safe.”” (Emphasis added. )

The plaintiffs allege that this statute imposes an affirm-

ative duty upon the owner of the premises to make the

premises safe for all persons invited thereon to work.

No Nevada cases applying NRS 618.250 could be

found. It is doubtful that the Nevada state courts

would give NRS 618.250 the interpretation the plain-

tiffs here seek. The statute pertains to constructing or

causing to be constructed a place of employment that

is not safe. It would indeed strain the statute to label

the remote, uninhabited, 1400-square-mile Nevada

34a

Test Site a “place of employment” which was con-

structed or caused to be constructed by the AEC. NRS

618.250 can be read logically to mean that the owner

of real property will not allow the construction of any

unsafe structure or building where workers will be

employed.

Assuming, arguendo, that the Nevada Test Site was

a place of employment which was allowed to be con-

structed by the AEC so that there was an affirmative

duty ; the plaintiffs’ theory falters because there was no

duty breach by the AEC. The plaintiffs seem to argue

that the duty created by NRS 618.250 is some type of

nondelegable duty which cannot be passed on to the Gov-

ernment contractor which maintained the Test Site.

The plaintiffs do not explain why this statute should be

read to impose a nondelegable duty upon the owner of

real estate. The statute merely creates the duty and is

silent about how the duty shall be discharged. The crea-

tion ef a nondelegable duty should certainly be more

explicit.

The duty created by NRS 618.250 was performed by

the AEC pursuant to the terms of its contract with

REECo. The contract requires the contractor (REECo)

to comply with all state laws and regulations pertain-

ing to worker safety. (Contract, page 12, paragraph 7;

page A-17, paragraph A-27, Ptf. Exhibit No. 6.) The

plaintiffs have conceded that the AEC was not negli-

gent in choosing to proceed by using independent con-

tractors and was not negligent in the selection of

REECo as the independent contractor to manage and

maintain the Nevada Test Site. (Plaintiffs’ post-trial

brief, page 11, 1. 30.) The AEC is liable for the negli-

35a

gence of its own employees and not liable for the negli-

gence of REECo employees.

Therefore, even if NRS 618.250 is read to impose a

duty upon the AEC as the owner of the Nevada Test

Site, the plaintiffs’ theory fails for lack of a breach of

duty by the AEC to plaintiffs’ decedent.

C.

Duties Imposed upon the AEC by Reason of Its

Ownership, Possession and Control of the

Nevada Test Site

The parties agree that the property known as the

Nevada Test Site has been withdrawn from the public

domain for use by the AEC. (Pretrial Order, page 2,

line 11.) The plaintiffs argue that the AEC, as the

possessor and owner of the Nevada Test Site, has a

duty under Nevada law to exercise reasonable care to

make the premises safe for its invitees and to warn its

invitees of any dangerous conditions thereon. The

theory of the plaintiff is explained by Prosser (3rd ed.

1964) at page 395:

“.. as to those who enter premises upon business

which concerns the occupier, and upon his invita-

tion express or implied, the latter is under an af-

firmative duty to protect them, not only against

dangers of which he knows, but also against those

which with reasonable care he might discover.”

The rule includes “. . . independent contractors doing

work on the premises, and the workmen employed by

such contractors .. .”” The special duty owed invitees

extends to all parts of the premises to which the pur-

pose of the invitation may reasonably be expected to

take him.

36a

A recent case cited by both parties which implements

the landowner theory of liability in a FTCA case is

Stanley v. Uni ed States, 347 F. Supp. 1088 (N.D.

Maine 1972). The United States owned the 979.5 foot

radio tower from which the plaintiff’s son fell to his

death while he was painting it. The decedent worked

for a subcontractor who was doing the actual painting

for the prime contractor hired by the Government. The

radio tower consists of three “legs” twelve feet apart,

to which are attached triangular horizontal platforms

at intervals of approximately seventy feet. A ladder

extends to each platform from the previous one. The

platform at the upper end of any ladder has a ladder

hole cut in the platform. The ladder hole is unguarded.

It was the job of the decedent to stand at the various

platforms and paint as far up the tower as he could

reach with his long-handled brush. Two more expe-

rienced painters were doing the painting above the por-

tion which could be reached from the platform. The two

more.experienced painters heard a clatter and saw the

decedent falling through the ladder hole and down onto

the next platform.

Thé district court held that under Maine law the

United States had a duty as the owner of the land and

towers to use due care to provide its business invitees

a reasonably safe place to work. Under Maine law the

independent contractors, as well as their employees, are

invitees. The law of Maine is that a landowner is nor-

mally not liable to third parties for dangers that are

open and obvious, but there is an exception where obvi-

ousness may not be enough. The district court held that

the ladder hole was an obvious danger, especially to the

Navy men who must constantly climb it, but the obvi-

37a

ousness of the danger was not sufficient protection for

the painter who undergoes “a relaxation of his alert-

ness’ and forgets where the hole is as he paints above

his head. The Court held that the failure of the United

States to provide guard rails along the ladder holes in

the platforms constituted a breach of its duty to use

due care to provide its business invitees a reasonably

safe place to work. The prime contractor had provided

by contract with the Government to take proper safety

precautions during the job. The Court held that the

danger could have been obviated had the prime con-

tractor provided proper safety belts, and therefore the

prime contractor failed in its contractual undertaking

to take proper safety precautions and was obligated to

reimburse the United States for all damages found due

to the plaintiff.

The First Circuit Court of Appeals reversed the dis-

trict court, Stanley v. United States, 476 F. 2d 606 (1st

Cir. 1973). The Court of Appeals first pointed out that

the plaintiff could not sue the employer of the deceased

because of the receipt of workmen’s compensation. The

Court of Appeals characterized the district court hold-

ing as finding the Government negligent for defective

design of the tower and finding the prime contractor

liable to the Government for breach of its undertaking

to provide proper safety precautions. On appeal the

prime contractor argued that the Government was not

liable and, accordingly, the contractor could not be

liable over to the Government.

The Court of Appeals agreed with the district court

interpretation of the Maine law on the subject, but dis-

agreed with the application. The Court of Appeals

viewed the entire record and concluded that the open

38a

ladder holes may have been hazardous to the inexpe-

rienced painter on the tower, but the guardrails, if they

had been put around the holes, would have created a

hazard for the Navy men who were the frequent users

of the tower. The Court said, at page 609:

“The expert testimony, accordingly, comes to this.

The platform, without rails, was a dangerous

place for a painter, particularly an inexperienced

painter, to work. It was perhaps more dangerous

than such a painter might appreciate. On the other

hand, as to all other persons, who manifestly used

the tower far more frequently, and who would

have to traverse apertures 26 times for a single

ascent, guardrails were not only not needed, but

were to some degree contraindicated. Further-

more, the special danger applicable to painters

could, as the court found, be obviated by the use of

safety belts with a tag line attachment.”

Having absolved the Government of negligence, the

Court of Appeals continued :

“In the case at bar the government was not deal-

ing with ordinary business invitees, but with spe-

cialists, of whom more could be expected. Cf.

Gowdy v. United States, 6 Cir., 1969, 412 F. 2d

525, cert. denied 396 U.S..960, 90 S. Ct. 437, 24

L. Ed. 2d 425;° Barrett v. Foster Grant Co., 1 Cir.,

1971, 450 F. 2d 1146. It had provided in its con-

tract that the contractor should attend to safety.

The court’s ‘hold[ing] that the United States

should reasonably have foreseen that painters,

particularly if inexperienced, might lose both sight

and consciousness of the nearby, unguarded lad-

der hole in the otherwise safe platform and back,

39a

trip or otherwise fall into it unless safety precau-

tions were taken,’ is at best irrelevant in the ab-

sence of any evidence that the government should

have supposed that the contractor would employ

inexperienced workers on such a dangerous job

and, more particularly, that it would fail in its

obligation to take the safety precautions its work-

ers required.”

The Court emphasized, in footnote 6, that:

“. .. there was a safer way the present plaintiff

could have done this work, namely with a safety

belt that was the contractor’s responsibility.”

The Court concluded, at page 610:

“The government did what it should, and cannot

be held liable. There is, accordingly, nothing for

which the third-party defendant must indemnify

it, and both complaints must be dismissed.”

The Stanley case is important because it demon-

strates the application of the landowner duty theory to

a FTCA case and shows that the duty can be discharged

on the Govefnment’s part by making the contractor re-

sponsible foi, the safety of the employees. If the con-

tract delegates the responsibility to the contractor, the

Government would be liable only on a theory of faulty

contractor selection or if the Government had reason to

believe the contractor was not performing the safety

measures required by the contract.

In the case at bar, to ascertain the AEC’s duty im-

posed by its status as landowner, the Court must look

at the law of Nevada. It is clear that McGarry, as the

employee of REECo, was an invitee of the AEC. Mc-

Cready v. Southern Pac. Co., 26 F. 2d 569 (9th Cir.

40a

1928), and Fuchs v. Mapes, 74 Nev. 366, 332 P. 2d

1002. Generally, the owner of real property owes an in-

vitee the duty of ordinary care. If a peril is hidden,

latent or concealed, ordinary care requires an owner,

with actual or constructive knowledge of the peril, to

warn the invited guest who is without such knowledge.

On the other hand, if the danger is obvious, ordinary

care does not require a warning from the owner be-

cause obviousness serves the same purpose. Gunlock v.

New Frontier Hotel, 78 Nev. 182, 370 P. 2d 682 (1962),

and Worth v. Read, 79 Nev. 351, 384 P. 2d 1017. Ina

later Nevada case, the Nevada Supreme Court adopted

section 343A of the Restatement 2d of Torts, which

states:

“A possessor land is not liable to his invitees for

physical harm caused to them by any activity or

condition on the land whose danger is known or

obvious to them, unless the possessor should an-

ticipate the harm despite such knowledge or obvi-

ousness.”

Rogers v. Tore, Ltd., 85 Nev. 548, 459 P. 2d 214. This

means that the invitee’s knowledge of the danger «loes

not inevitably bar recovery.

In the case at bar, whether the power lines were

“latent” or “obvious”, and whether the decedent had

knowledge of them or not, is not important since the

AEC, as in the Stanley case, 476 F. 2d 606, supra, had

contracted the safety precautions to REECo. The AEC

and REECo contract required the contractor to take all

of the necessary safety precautions to protect the safety

of McGarry. Therefore, as in Stanley, the Government

fulfilled its duty of ordinary care and there was no evi-

4la

dence that the Government should have supposed that

the contractor would employ inexperienced workers or

that the contractor would fail in its obligation to take

the appropriate safety measures.

The plaintiffs appear to argue that the duty imposed

upon the AEC by reason of its possession and owner-

ship of the Nevada Test Site is a “nondelegable” duty,

but no authority is provided to show the duty is non-

delegable in the State of Nevada. In the Stanley case,

in which Maine law was applied, the law appears very

similar to Nevada law. There was no mention in Stan-

ley of the nondelegable nature of the duty owed by the

Government as landowner. In fact, the Court of Ap-

peals stated that the Government “did what it should”

and approved of the delegation of the duty to the prime

contractor. In the instant case, as in Stanley, the AEC

fulfilled its duty by contracting the responsibility to

the contractor, REECo.

Even if the landowner’s duty to invitees could be

said to be a nondelegable duty, there is still the question

of whether this theory of liability would be recognized

under the FTCA. It must be remembered that the state

law applies in an FTCA action, but there can be no

absolute, strict, vicarious or imputed theories of lia-

bility. Prosser (3rd Ed. 1964, page 404) recognizes

that the duty may be nondelegable, but it is clear that

the nondelegable nature of the landowner’s duty is

based upon the concept of imputed or vicarious liabil-

ity. As Prosser states:

“It is generally agreed that the obligation as to

the condition of the premises is of such importance

that it cannot be delegated, and that the occupier

42a

will be liable for the negligence of an independent

contractor to whom he entrusts maintenance and

repair.” (Emphasis added. )

In the instant case, if the landowner’s duty to invitees

in Nevada could be said to be a nondelegable duty, it is

evident that the landowner would be liable for the neg-

ligence of the contractor via a theory of vicarious lia-

bility. See Besner v. Central Trust Co., 230 N. Y. 357,

130 N. E. 577 (1921). The United States cannot be

held liable for the neglirence of a contractor. United

States v. Dooley, 231 ©. 2d 423 (9th Cir. 1955), and

Roberson v. United States, 382 F. 2d 714 (9th Cir.

1967). |

Therefore, the AEC fulfilled the duty imposed upon

it by reason of its ownership and possession of the

Nevada Test Site by exercising ordinary care when it

contracted the safety responsibility to REECo. If the

duty was a nondelegable one, the liability would be via

vicarious liability, a theory not cognizable under the

FTCA. The plaintiffs cannot recover for the alleged

breach of a duty owed by the AEC by reason of its

ownership, possession and control of the Nevada Test

Site.

Duties Imposed upon the AEC by Reason of It

Being the Owner, Supplier and Distributor of

Electricity throughout the Nevada Test Site

The defendant has admitted that the power lines,

circuit breakers, transformers, substations and other

electrical facilities on the Nevada Test Site, and the

electricity supplied through such facilities are owned

by the defendant United States of America. (Pretrial

Order, page 2, paragraph 3.) Though the defendant

43a

owned the electrical facilities, it is equally clear that

the contractor, REECo, was to manage, operate and

maintain the Nevada Test Site, including the “Mainte-

nance, repair and operation of utility plants and dis-

tribution systems including . . . electrical.” (Contract

between AEC and REECo, paragraphs 1 and 2a.(3),

page 2.) Also, according to General Provision A-27,

page A-17, of the contract, REECo was responsible for

job safety at the Nevada Test Site.

The parties concede, and this Court agrees, that

REECo, the employer of the deceased and the con-

tractor responsible for operating the Test Site, was

negligent in a number of ways in the operation of the

electrical distribution system and the manner in which

the deceased was supervised at the scene of the acci-

dent. But the plaintiffs argue that despite the duties

and breaches thereof by REECo, the defendant had

duties which were personal to it and owed directly to

the deceased. Even though REECo had a duty and

could have prevented the accident by complying with

its duty, the plaintiffs argue that the defendant had a

corresponding personal duty which arose from its own-

ership of the inherently dangerous electrical distribu-

tion system.

The plaintiffs appear to be actually combining two

distinct theories of duty owed by the defendant to the

deceased. The duties are normally treated separately

but, due to the peculiar facts of this case, they have

coalesced. First, the plaintiffs argue that the defend-

ant, as the supplier and distributor of electricity on the

premises and the owner of the electrical facilities

through which such electricity is supplied, owed a high

degree of care, commensurate with the danger pre-

44a

sented by such electrical facilities and electricity, to

anyone who foreseeably would come into contact there-

with. Second, the plaintiffs argue that the defendant.

as the employer of the independent contractor, REECo,

owes a nondelegable duty to exercise reasonable care to

prevent harm to third persons, including the employees

of the independent contractor, when the work the inde-

pendent contractor is performing is inherently or in-

trinsically dangerous work. The plaintiffs argue that

the drilling operation which the deceased was perform-

ing was inherently dangerous work because of the

proximity of the high voltage power transmission lines.

The plaintiffs then combine the duty arising from the

ownership of the electrical facilities with the duty aris-

ing from the employment of an independent contractor

to perform an inherently dangerous task and allege

that the defendant United States breached this com-

bined nondelegable duty.

Basically, the defendant acknowledges the existence

of the first duty which arises from the ownership of the

electrical distribution system, but argues that the en-

tire duty was delegated by contract to REECo and

therefore there was no duty breach by the defendant.

With regard to the second duty_which arises from the

employment of REECo by the defendant to perform an

inherently dangerous job, the defendant argues, first,

that the job of drilling holes is not an inherently dan-

gerous task and, second, that the non-delegable duty

here referred to is not cognizable under the FTCA be-

cause it is a type of strict or vicarious liability.

For clarity, the two duties will first be discussed

separately before the combined effect is analyzed.

45a

The duty of care created by the ownership of elec-

trical facilities and electricity is a higher standard of

care than is normally required by a landowner. This

higher standard of care has been described in various

terms. In McCormick v. United States, 159 F. Supp.

920 (D. Minn. 1959), a painter was injured while

painting Government barracks. The Court sustained

the painter’s FTCA claim and explained the law of

Minnesota thusly:

“In other words, one who erects electric lines car-

rying high voltage currents, as in the instant case,

must exercise a degree of care commensurate with

the danger to be apprehended and arising out of

contact therewith or current jumping or escaping

therefrom. Knowledge of such danger by the pro-

prietor thereof, requires warning, either vocal or

in writing, and if in writing, it must be in closer

proximity to the point of danger than that evi-

denced in this case.”

In Hamilton v. United States, 143 F. Supp. 179

(W.D. Penn. 1956), the Court held that the Govern-

ment owed a duty to the employee of a contractor who

was electrocuted, but denied recovery because the em-

ploye was contributorily negligent. The Court applied

Pennsylvania law and said: —

“... a supplier of electrical current is bound to use

the very highest degree of care practicable to per-

sons who may be lawfully in proximity to, and

liable to come in contact with, its dangerous in-

stallations.”

The standard of care required is the same in most

states, although it may be stated differently. As stated

in 26 Am Jur 2d Electricity, Gas, and Steam 8 42:

46a

—— a Se ee em. — *

“The degree of care required to be used in the

production, distribution, and use of electricity is

stated in-various terms which, perhaps, convey

merely one idea. To declare that the utmost care

must be used to prevent injury sounds different in

statement than to say that ordinary care must be

used in view of all the circumstances; but when

analyzed, the meaning is not far different, for the

ordinary care required under the circumstances

is, in its practical application and in view of the

highly dangerous character of electricity, a rela-

tively high degree of care.”’

This high standard of care does not apply solely to

power companies. As stated in 26 Am Jur 2d Electri-

city, Gas, and Steam 8 51:

“An owner of land who has erected and main.

tained on his land high-voltage electric wires is

under the same duty of safeguarding from injury

members of the public who may come in contact

with them as are electric companies engaged in the

transmission of electric power.”

The high standard of care imposed upon the supplier

of electrical current has been held to be nondelegable by

some courts. 26 Am Jur 2d Electricity, Gas, and Steam

§ 53, pages 260 and 261. While the standard of care

may be of the highest nature, it is clear that the basis

of liability is negligence and is not strict or absolute

liability. 69 ALR 2d 98. Therefore, this high standard

of care is a type of liability cognizable under the FTCA.

Counsel have not cited, and the Court has not found,

any Nevada cases dealing with the duty imposed upon

the owner and supplier of electricity. The Court there-

47a

fore should follow the common law rule applied in all

jurisdictions and apply a high standard of care com-

mensurate with the danger presented by the electrical

facilities at the Nevada Test Site. There are numerous

FTCA cases which deal with electricity and the duty

owed by the owner and supplier. Several of the relevant

cases will be discussed before turning to the application

of the duty in the instant case.

An important case is Pierce v. United States, 142 F.

Supp. 721 (E.D. Tenn. 1955), which was an action for

damages against the United States under the FTCA

for injuries received by the plaintiff who was working

as an electrical lineman for a subcontractor to an in-

dependent contractor for the Government at the Vol-

unteer Ordnance Works (VOW), a Government-owned

munitions plant which was deactivated after World

War II and was being reactivated as a result of the

Korean War. The plaintiff was injured when he came

into contact with an energized power line on a struc-

ture in close proximity to the substation on the prem-

ises. The Court, in holding the United States liable,

even though it was the responsibility of the contractor

to be sure all power was turned off, stated:

“The electrical current furnished for VOW was

purchased by the government and delivered to it

at the site of VOW, where it was fed into the proj-

ect over government owned power lines existing

on the premises. The government, through the

Ordnance Corps and the Corps of Engineers, had

possession of the premises.

“The Corps of Engineers had a contracting offi-

cer at the site whose duties included keeping track

of the work, settling disputes and, in general, see-

48a

ing that the work required by the government was

being satisfactorily performed.

“It is plaintiff’s contention that the government,

in furnishing power for the premises, was dealing

with a highly dangerous substance and, under

Tennessee law, owed a duty to all persons right-

fully on the premises to exercise due care for their

safety commensurate with the danger involved.

Further that the government knew or should have

known that possible injuries might result from

such electricity unless adequate precautions were

taken to protect the workmen on the power lines

from its dangerous propensities. Plaintiff asserts

that the government failed to take such precau-

tions and that his injuries resulted from its negli-

gence in failing to do so. Indeed it is asserted that

electricity is an imminently dangerous substance

and that, under Tennessee law, the government

had a nondelegable duty to take adequate precau-

tions to safeguard the workers on the project.

‘te * *

‘te *& *

“It is true that an employer is not generally

liable for the negligence of an independent con-

tractor. However, there is an exception in those

cases where, from the nature of the particular

work or project, in the natural course of events

mischievous consequences can be expected to arise

unless means are adopted to prevent it. In such

cases the owner-employer is held to be under a

nondelegable duty to see that appropriate prevent-

ative measures are adopted.

“This enlightened rule has been recognized and

49a

given application by the Tennessee courts. Davis

v. Cam-Wyman Lumber Co., 126 Tenn. 576, 150

S. W. 545; International Harvester Co. v. Sartain,

32 Tenn. App. 425, 222 S. W. 2d 854, certiorari

denied by Supreme Court, March 11, 1949.

“Electricity has traditionally been considered

extremely dangerous and the duty of exercising a

high degree of care is placed upon those dealing

with it. Walpole v. Tennessee Light & Power Co.,

19 Tenn. App. 352, 89 S. W. 2d 174; Tennessee

Electric Power Co. v. Sims, 21 Tenn. App. 233,

108 S. W. 2d 801. In fact the effect of the pro-

nouncements in the Sartain case, supra, is to hold

it an imminently dangerous agency which places

upon the individual dealing with it, a nondelegable

duty to see that reasonable means are taken to pro-

tect those who come into contact with it. Failure

to fulfill that duty results in liability on the part

of such individual, even though the plaintiff’s in-

jury resulted in whole or in part from the acts or

omissions of.an independent contractor employed

to perform the particular work.

“The government was in possession of the prem-

ises through its agencies, the Corps of Ordnance

and Engineers. Indeed counsel conceded during

the trial that the power lines and substation in-

volved had not been turned over to Atlas. The gov-

ernment had contracted with the Electric Power

Board of Chattanooga to furnish power for the

premises. The power was delivered by the utility

to the site of VOW and brought onto the premises

over government owned lines. The government

thereupon became a supplier of electricity, subject

50a

to the same high degree of care to protect persons

properly upon the premises as is required of elec-

tric power companies. International Harvester

Co. v. Sartain, supra.

‘<* & &€

“Although much of the inspection work had

been delegated by contract to Patchen and Zim-

merman, it also appears that the Corps of Engi-

neers had some inspectors in the field who were

to see that the electrical work was progressing

satisfactorily. And of course by virtue of its own

contracts, the government knew that the work to

be done would necessitate linemen being in and

about both the lines and substations of VOW. It

also knew that, unless proper steps were taken to

see it was killed, high-voltage power would be on

those lines and substations while the work pro-

gressed.

“Despite these facts the government took abso-

_lutely no steps either to correct the defects in the

substation or failing that, to see that the power

was off while the crew of linemen to which plain-

tiff belonged performed their work upon it.

(te *& *

‘te *& *€ _

“The government was responsible for the con-

dition of the substation and, under the Tennessee

decisions, for failing to see that adequate precau-

tions were taken to protect the plaintiff from the

high-voltage power which it purchased and placed

there. . .

‘see &

‘ee

5la

“Neither can the Court accept the government’s

contention that plaintiff is barred from recovery

because he has failed to show negligence on the

part of any employee of the government. The

premises were under the control of the govern-

ment. Under its contracts with the companies do-

ing the rehabilitation work, the contracting officer

of the Corps of Engineers had the right to approve

the work, settle disputes, authorize changes, etc.

The dangerous structure was on government

premises and the power was purchased and trans-

mitted by the government to be utilized on the

premises.

“The government can function only through its

agents and employees. The plaintiff has shown to

the Court’s satisfaction that the representatives

of the government in possession of VOW totally

failed in their duty to safeguard plaintiff from in-

jury as it was their duty to do under Tennessee

law. Under the circumstances it is immaterial that

plaintiff did not establish the particular named

official who was responsible for such duties. The

Courg knows of no case holding it a prerequisite

to recovery that one injured through the negli-

gence of a government employee must show the

identity of such individual, so long as the duty

and breach thereof is established.

“Lastly it is argued that even though the sub-

station may have been defective and high-voltage

electricity considered an imminently dangerous

agency, no liability rests upon the government

solely because of its ownership of the premises.

Certainly the Act and the cases dealing with it

52a

- oe ee el _—

would seem to require some negligent act before

liability attaches. For the purposes of this deci-

sion the Court asumes that such is the requirement

of the law. But this is of no benefit to the govern-

ment.

“As the doctrine of nondelegable duty is applied

in this state it is not a rule of strict liability re-

gardless of fault. Negligence is required, the sole

effect of the doctrine being to preclude the owner-

employer from escaping liability for negligence

which was a proximate cause of injury on the

ground that others may have been guilty of negli-

gence, which was alsu a proximate cause of injury.

As in any other case the basis of liability is negli-

gence. This was made perfectly clear in the Sar-

tain case, supra, where the Court pointed out [32

Tenn. App. 425, 222 S. W. 2d 866] that the rule ‘is

one requiring ordinary care under the circum-

stances, which may be a high degree of care actu-

- ally, but is not a rule of absolute liability regard-

less of the exercise of ordinary care, so to make the

owner an insurer * * *’. Therefore, if the Act re-

‘quires negligence, the Tennessee cases are in com-

plete conformity with the requirement, liability be-

ing imposed upon proof of failure to exercise due

care.”

The District Court was affirmed by the Court of Ap-

peals, United States v. Pierce, 235 F. 2d 466 (6th Cir.

1956), which held:

“The court [District Court] found that the gov-

ernment, which had possession of the premises

through its agencies, failed to take adequate pre-

cautions to protect workmen on the power lines

58a

and that this constituted negligence of the govern-

ment’s employees. . . .

‘see &

“The judgment is affirmed upon the grounds

and for the reasons stated in the memorandum

opinion of the Listrict Court, 142 F. Supp. 721.”

Similarly, in United States v. Haskins, 395 F. 2d 503

(10th Cir. 1968), an action was brought by the heirs

of a deceased employee of an independent contractor

which had contracted with the Department of the

Army to paint the exterior of the buildings at Fort

Carson, Colorado. The decedent’s foreman, also an em-

ployee of the independent contractor, stopped at the

place where the decedent was working to take him to

lunch. He attempted to remove the decedent’s ladder to

another position and in doing so the ladder came into

contact with an uninsulated high voltage line running

parallel to the building, causing the foreman to re-

ceive an electrical shock. In attempting to rescue him,

the decedent was killed, although the evidence did not

indicate exactly how. In holding the United States

liable, the Court said:

“There is substantial evidence in the record to

support the trial court’s finding that the govern-

ment was negligent. ‘Electricity has traditionaily

been considered extremely dangerous and the duty

of exercising a high degree of care is placed upon

those dealing with it.’ Pierce v. United States, 142

F. Supp. 721, 728-729 (E.D. Tenn., S.D. 1955),

aff’d per curiam, 235 F.2d 466 (6th Cir. 1956). The

degree of care exercised must be commensurate

with the danger. McCormick v. United States, 159

F. Supp. 920, 924 (D. Minn. 1958). However, the

54a

government did not have to guard against possible

eventualities—only probabilities. Currence v.

Denver Tramway Corporation, 132 Colo. 328, 287

P. 2d 967 (1955). Under the facts of this case

there was a likelihood or reasonable probability of

human contact with the high voltage wire. The

danger should have been foreseen or anticipated;

however, the evidence showed no warning signs of

any kind were maintained in the immediate area

where the accident occurred. No specific warnings

were given to Transco or its employees. The fact

the electrical wiring in other areas of Fort Carson

was strung so the neutral wire was closer to the

structures than the high voltage wire indicates a

safer procedure could have been followed in the

acc.dent area. It is true that in constructing and

maintaining its lines the government had com-

plied with applicable safety codes; however, it is

felt such compliance is not conclusive evidence of

-due care but is only one factor to be considered. An

unsafe condition existed which, it is felt, was not

obvious to the painters-invitees of the government.

There was a duty to warn of that unsafe condition.

Stancil v. United States, 196 F. Supp. 478, 480-

481 (E.D. Va. 1961).” ~

United States v. Pierce, 235 F. 2d 466, supra, and

United States v. Haskins, 395 F. 2d 503, supra, are di-

rectly on point. In both cases an employee of an inde-

pendent contractor sustained injury as a result of neg-

ligent maintenance of an electrical distribution system,

and the failure to warn the empioyee with regard to

such system. In both cases the Court held that, although

the independent contractor as the employer of the

55a

plaintiff could have discharged the duty, the jsovern-

ment nonetheless had the duty and was negligent in

failing to discharge it, so that the liability was imposed

for the Government’s breach of its own duty, rather

than for the independent contractor’s breach of a simi-

lar and corresponding duty.

In Stancil v. United States, 196 F. Supp. 478 (E.D.

Va. 1961), the District Court, on remand after re-

versal of a judgment in favor of the Government by the

Fourth Circuit in Stancil v. United States, 267 F. 2d

268 (4th Cir. 1959), held the Government liable for the

death of a painter who was electrocuted when he came

into contact with a power line which had not been dis-

connected before he was sent to paint a portion of Pier

1 at the Hampton Roads Army Terminal in Norfolk,

Virginia: The District Court stated:

“This factual situation brings the case within

the rule that, at places where others have a right

and may reasonably be expected to go for work,

business, or pleasure, there is a duty to keep wires

carrying a dangerous voltage properly insulated,

or otherwise warn an invitee of an unsafe condi-

tion not open and obvious to a person in the exer-

cise of reasonable care. Trimyer v. Norfolk Tallow

Company, 192 Va. 776, 66 S. E. 2d 441; City of

Danville v. Thornton, 110 Va. 541, 66 S. E. 839;

Blackwell v. Hub Furniture Corp., 163 Va. 621,

177 S. E. 64. As Moyer was the designated party

to determine where workmen should be so occu-

pied, and the Government was not interested in

this phase of the details other than to follow the

overall plan that where practicable the work was

to be done in sections, the Government, as the

56a

pein tcin oon

owner of the project, is not exonerated where the

work to be performed was inherently hazardous

in the area wherein the work could be reasonably

anticipated. Bowers v. Town of Martinsville, 156

Va. 497, 159 S. E. 196; Epperson v. De Jarnette,

164 Va. 482, 180 S. E. 412. That Houska was an

independent contractor is clear. Boyd, Higgins &

Goforth v. Mahone, 142 Va. 690, 128 S. E. 259.

But this fact, standing alone, does not relieve the

owner of the non-delegable duty to warn where

hazardous work is being performed within the

scope of the invitation.”

The Stancil case is important for three different propo-

sitions: (1) The fact that an independent contractor

created the risk does not absolve the owner of the elec-

trical distribution system of his duty; (2) the owner

- has a duty to warn of the existence of power wires

where others might reasonably be expected to go for

work; (3) ordinary work (painting) becomes extra-

hazardous work when it has to be performed within

close proximity to electrical wires.

In Gowdy v. United States, 412 F. 2d 525 (6th Cir.

1969), the plaintiff, an employee of an independent

contractor which had a contract with the Coast Guard

to install electrical equipment at a machinery house

that was part of a lighthouse owned by the Government

on Lake Michigan, was injured while hoisting some

equipment to the flat roof of the machinery house.

There was no guardrail on the roof and he fell off. The

Court pointed out that the Government was not re-

quired to exercise control in that situation over its in-

dependent contractors and was not liable for its failure

to do so because hoisting machinery was not an inher-

57a

ently dangerous activity, and further pointed out that

the right to inspect did not create such a duty. The

equipment being used by the contractor’s employee was

owned and furnished by the contractor and could have

been operated from the ground as well as the roof.

However, the Court pointed out that as possessor of the

premises the Government had a duty to make the prem-

ises safe for its invitees, including employees of inde-

pendent contractors, and, if the absence of a guardrail

had not admittedly been known to the plaintiff, it could

have been liable for a failure to warn him, stating:

“Since the Government may not be held liable

without fault, it follows that the only basis for lia-

bility is negligence, if any, of Government employ-

ees in failing to warn Gowdy of the danger or in

failing to provide guardrails to prevent the fall.

But the Government was not required to warn

Gowdy of something which he admitted that he al-

ready new, namely, that no guardrail was on the

flat roof and that it was dangerous for him to work

too close to the edge of the roof because he might

lose his balance and fall. Neither was the Govern-

ment, under such circumstances, required to pro-

vide a guardrail. Thus we hold that the Govern-

ment, as the owner of this flat roof, could not have

anticipated that a reasonably careful workman

would not protect himself from the known and ob-

vious danger here involved.”

The implication of the Gowdy case is that if the task

were an inherently dangerous one or if the Govern-

ment could have reasonably foreseen danger to the

workman, then the Government would have had a duty

to exercise some control over its independent contractor

58a

and the Government’s right of inspection would be a

method for exercising this control.

Turning to the facts of the instant case, the Govern-

ment’s liability appears to turn on whether its duty to

exercise a high standard of care commensurate with

the risk involved, which arises because of its ownership

of the electrical distribution system, was completely

discharged by delegating to REECo full responsibility

for the operation, management and maintenance of the

test site and all job safety at the test site. Basically, the

questions are whether the duty is delegable and, if it is,

did the Government fully discharge the high standard

of care by the alleged delegation to REECo. The plain-

tiffs have argued that the duty is “nondelegable”. The

discussion of nondelegable duty and the issue of

whether such a basis for liability is cognizable under

the FTCA will be discussed infra with the portion of

the opinion pertaining to the hiring of an independent

contractor to perform intrinsically dangerous work. As

will be seen within, even if the duty arising from the

ownership of the electrical distribution system is held

to be a delegable duty, the attempted delegation by the

AEC, without any follow-up or inspection for compli-

ance whatsoever, did not fully discharge the duty owed

to the deceased.

The evidence is sufficient to show that the AEC had

knowledge of the presence of the high voltage lines in

the area of the accident. The testimony of Mr. Spavin,

the Safety Chief of the AEC, reveals that no safety

engineer for the AEC had knowledge that the explora-

tory hole in question was to be drilled so close to the

power line. In fact, the testimony established that if an

59a

AEC safety engineer had known of the proximity of

the test hole to the transmission line, the safety engi-

neer would have intervened and required the test hole to

be moved away from the power line. Eventually, after

the accident, the location of the exploratory hole was

moved 500 feet to the east so that no anchor hole would

be near the transmission line. But just because no safe-

ty personne! of the AEC had knowledge of the exact

location of the exploratory hole does not mean the Gov-

ernment did not have knowledge of its location. The

evidence established that the AEC had approved the

extensive work for that area and therefore the Govern-

ment had knowledge that extensive drilling was planned

in the locality of the extra-hazardous transmission

lines. The AEC thus having knowledge of the activity

which was to take place in the area of the transmission

line and there being a reasonable likelihood of an acci-

dent to a worker if adequate precautions were not

taken, what did the AEC do to discharge this duty?

The Government argues that its entire obligation was

discharged by the delegation to REECo of the respon-

sibility for the management and operation of the test

site. While such a delegation may suffice to discharge

the normal duty owed by a landowner when an extra-

hazardous situation is not involved, it would seem that

more is required when the duty to be discharged by

delegation is one which imposes a high standard of

care. The contractual delegation, without any inspec-

tion to ascertain whether the independent contractor

was fulfilling its safety duties, may suffice to discharge

the standard duty of due care, but such a delegation

without more is not commensurate with the risk in-

volved with the electrical distribution system. The Gov-

60a

ernment is charged with knowledge of the extensive

work which was to be performed in the area of the

transmission line, yet no precautions or inspections

were undertaken by the AEC to guarantee the safety

of the workers in that area.

The evidence at the trial proved conclusively that

there were numerous safety measures which could have

and should have been taken in order to insure the safety

of the workmen around the transmission line. For ex-

ample, the manual reclosure of the electrical circuit

after the automatic reclosure failure should have oc-

curred in a manner more consonant with the nature of

the danger involved; the transmission line could have

been run underground around the site of the drilling

activity; warning signs could have been placed promi-

nently about the area; the transmission line could have

been “hot red tagged” (no reclosure at all if there is a

fault on the line) at the substation, or the line could

have been “dead red tagged” (the current shut off)

while the workmen were in the area. Any of these pre-

cautions probably would have saved the life of the de-

ceased. It is true, as all parties acknowledge, that

REECo was clearly negligent because none of the safe-

ty precautions were taken, but the fact remains that

the AEC did nothing to ascertain whether REECo was

fulfilling its contractual obligation to safely provide

for the workers. The fact that REECo was negligent

does not foreclose the possibility of the comparable neg-

ligence of the AEC for breaching its own personal duty

to use due care commensurate with the risk involved.

The risk in this situation was great, yet the AEC did

not monitor REECo or make any special effort to see

that the safety of the workers was protected. The AEC

6la

oh Oe ane

did not act commensurate with the high risk involved.

The AEC therefore did not fulfill its duty to exercise

care commensurate with the grave danger which ex-

isted. REECo should have instituted numerous safety

precautions, but the AEC also should have done more

to protect the safety of the workers near the trans-

mission line. The Government is not liable for the

negligent acts of REECo, but, rather, is liable for the

breach of its own personal duty. The distinction is well

illustrated in Benson v. United States, 150 F. Supp. 610

(D.C. Cal. 1957), in which the Court, holding that the

United States’ motion to dismiss an action brought by

an employee of an independent contractor who was in-

jured on a walkway at the Folsom Reservoir should be

denied, pointed out:

“While the United States may not be held liable

under the Federal Tort Claims Act for the negli-

gence of an independent contractor, where it is not

shown that any agent or employee of the Govern-

ment was negligent in any respect, Strangi v.

United States, 5 Cir., 211 F. 2d 305; Hopson v.

United States, D.C., 136 F. Supp. 804; and see

United States v. Hull, 1 Cir., 195 F. 2d 64, 67

(dictum), it is clear that the Government is liable

for its own negligence in the same manner that

an employer of an independent contractor is held

liable for his own negligence under the applicable

local law. Title 28 U.S.C.A. § 2674; Pierce v.

United States, D.C., 142 F. Supp. 721, affirmed 6

Cir., 235 F. 2d 466.” (Emphasis supplied. )

The Government argues that no AEC safety person-

nel had knowledge of the exact location of the explora-

tory hole but, as explained above, the Government, by

62a

its approval of the extensive work in the area of the

transmission line, had knowledge of the potential pres-

ence of workmen in and around the extra-hazardous

area. The testimony revealed that the AEC safety per-

sonnel would have prevented the drilling of the explora-

tory hole next to the transmission line if they had known

about it. The testimony of Mr. Smith, the Assistant

Manager of Engineering and Logistics for the AEC,

revealed that the AEC has the power under the con-

tract with REECo to shut down the work of any con-

tractor whenever the AEC determines that an unsafe

condition or practice exists. One of the functions of the

AEC safety engineers is to see that the contractors ad-

here to proper safety measures. This power to shut

down the project whenever an unsafe practice occurs

is important because it preserves for the AEC a meth-

od for fulfilling its duty which arises due to workmen

being in an extra-hazardous area. The AEC safety per-

sonnel may not have known the location of the explora-

tory hole, but the AEC did. The lack of adequate know!1-

edge on the part of the AEC safety personnel when the

AEC possessed the requisite information is itself a

further duty breach by the AEC. To properly fulfill its

existing duty, the AEC should have had a better infor-

mation dissemination procedure so that the AEC safe-

ty personnel would have been apprised of the workmen

possibly being in the area of the dangerous transmis-

sion line. Had the AEC safety engineers known of the

location of the exploratory hole, the drilling would not

have commenced and the accident undoubtedly could

have been prevented. This is certainly not an onerous

task to place upon the AEC; a better information dis-

persal procedure or more safety personnel could have

63a

prevented the mishap. The burden is not excessive; it

is merely commensurate with the risk involved with

the ownership of the electrical distribution system.

Even, arguendo, if it were determined that the

AEC’s approval of the extensive work in the area of

the transmission line did not give the AEC knowledge

of the potentially dangerous situation, the AEC still

would not have fulfilled the high standard of care com-

mensurate with the risk involved. When the risk is so

great, the owner of the electrical distribution system

certainly cannot evade the high standard of care by

choosing to remain ignorant of activity in the area of

the transmission line. At the very least, the owner of

the known extra-hazardous instrumentality, in order

to fulfill the strict duty, should implement a procedure

by which the owner will be informed of any activity

around the dangerous instrumentality. That is to say,

the AEC should have a procedure by which it is made

aware of any work taking place near any dangerous

transmission line. Failure to implement such a proce-

dure which would make the AEC aware of activity

near the electrical distribution system so that the high

standard of care can be fulfilled by monitoring the

work of the contractor constitutes a duty breach. It

simply does not fulfill the duty to exercise a standard

of care commensurate with the risk for the AEC to say

it had no knowledge of the presence of the workmen in

the danger zone; the AEC must take steps to know

about their presence and see that adequate safety meas-

ures are followed.

Although the retention of a right of inspection where

there is no duty to inspect will not create such a duty,

if the duty to inspect and supervise the activities of the

64a

independent contractor does exist, the failure to exer-

cise the right of inspection so reserved in the contract

will be a breach of that pre-existing duty attendant

upon the ownership, supply and distribution of a dan-

gerous instrumentality such as electricity, and the re-

sulting liability is for the owner’s own negligence. La-

rive v. United States, 318 F. Supp. 119 (D.C.S.D.

1970); Benson v. United States, 150 F. Supp. 610

(D.C. Cal. 1957) ; Pierce v. United States, 142 F. Supp.

721 (E.D. Tenn. 1955), affirmed 235 F. 2d 467

(1956) ; United States v. Haskins, 395 F. 2d 503 (10th

Cir. 1968).

Therefore, in summary, the attempted delegation by

the AEC to REECo of the duty arising from the owner-

ship, control and distribution of the electrical distribu-

tion system was not commensurate with the high de-

gree of risk involved and the AEC thusly breached its

duty. .

Aside from the duty arising from the distribution

and ownership of the electrical facilities at the Nevada

Test Site, the plaintiffs rely on a second theory of lia-

bility to create another duty owed by the Government.

The plaintiffs argue that the defendant, as the em-

ployer of the independent contractor REECo, owes a

nondelegable duty to exercise due care to prevent harm

to third persons, including the employees of the inde-

pendent contractor, when the work the independent con-

tractor is performing is inherently or intrinsically dan-

gerous work. The plaintiffs then combine the duty aris-

ing from the ownership of the electrical facilities with

the duty arising from the employment of an independ-

ent contractor to perform an inherently dangerous

task and allege that the defendant United States

65a

FPA OF OH

breached this combined nondelegable duty. The defend-

ant argues, first, that the job of drilling holes is not an

inherently dangerous task, and, second, that the non-

delegable duty here referred to is not cognizable under

the FTCA because it is a type of strict or vicarious lia-

bility. The following discussion of a nondelegable duty

will also be pertinent to the duty discussed above which

arose from the distribution and ownership of elec-

tricity because the plaintiffs also allege that that duty

is nondelegable.

The crux of the dispute between the parties is

whether or not the nondelegable duty theory of liability

is cognizable under the FTCA. The defendant argues

that a nondelegable duty theory of liability is actually

absolute, vicarious or imputed liability for which the

United States cannot be liable under the FTCA. But

the plaintiffs argue that a nondelegable duty theory of

liability is not strict or vicarious liability but, rather,

makes the United States liable for its own negligence

and not for the negligence of the independent contrac-

tor. Both parties agree that the United States is im-

mune from certain types of liability which may be im-

posed upon private persons because of the limitation of

the waiver of sovereign immunity only to liability for

negligent acts or omissions of its employees. By reason

of this limitation on the waiver of immunity under the

FTCA, the United States cannot be held liable for a

claim arising under the doctrine of strict liability or

absolute liability without a showing of fault on the part

of the United States. Laird v. Nelms, 406 U. S. 797

(1972); Dalehite v. United States, 346 U. S. 15

(1953) ; Bartholomae Corp. v. United States, 253 F. 2d

716 (9th Cir. 1957) ; Strangi v. United States, 211 F.

66a

2d 205 (5th Cir. 1954); United States v. Taylor, 236

F. 2d 649 (6th Cir. 1956); Wright v. United States,

404 F. 2d 244 (7th Cir. 1968); and Huffmaster v.

United States, 186 F. Supp. 120 (D.C. Cai. 1960). Sim--—

ilarly, by reason of the limitation of the waiver of the

immunity to the negligent acts or omission of its own

employees, the United States cannot be charged with

liability based on the imputation of negligence of an

independent contractor, even in the area of extra-haz-

ardous activities, where the United States itself is not

negligent. Laird v. Nelms, 406 U. S. 797, supra; Dale-

hite v. United States, 346 U. S. 15, supra; Gowdy v.

United States, 412 F. 2d 525, supra; Mahoney v.

United States, 220 F. 2d 823 (E.D. Tenn. 1963) ;

Strangi v. United States, 211 F. 2d 205, supra; Dushon

v. United States, 243 F. 2d 451, supra; United States

v. Dooley, 231 F. 2d 423, supra; Richardson v. United

States, 251 F. Supp. 107 (W.D. Tenn. 1966) ; United

States v. Page, 350 F. 2d 28, supra; Hopson v. United

States, 136 F. Supp. 804 (W.D. Ark. 1956) ; Roberson

v. United States, 382 F. 2d 714, supra; Kirk v. United

States, 270 F. 2d 110 (9th Cir. 1959) ; and Grogan v.

United States, 241 F. 2d 29, supra. The defendant ar-

gues that the above cases prevent the application of a

nondelegable duty theory of liability under the FTCA,

but the plaintiffs argue that such a theory is entirely

consistent with the above rules because the United

States is to be held liable for its own negligence.

Is a nondelegable duty theory of liability cognizable

under the FTCA? The defendant first relies on Dale-

hite v. United States, supra, and other cases which

quote the Dalehite “rule” without analyzing it. In

Wright v. United States, 404 F. 2d 244 (7th Cir.

67a

1968), the Court stated the rule as follows:

“The United States is liable under the Federal

Tort Claims Act only for damages ‘caused by the

negligent or wrongful act or omission of any em-

ployee of the Government while actiffg within the

scope of his office or employment.’ 28 U.S.C. § 1346

(b). Liability under the Act ‘does not arise by vir-

tue either of United States ownership of an “in-

herently dangerous commodity” or property, or of

engaging in an “extra-hazardous” activity.’ Dale-

hite v. United States, 346 U. S. 15, 45, 73 S. Ct.

956, 972, 97 L. Ed. 1427 (1953). Consequently,

the plaintiffs cannot recover under their theory of

strict liability.”

The defendant seizes upon the Dalehite quotation and

argues that the United States cannot be held liable be-

cause of its ownership of the electrical distribution sys-

tem or because of its engaging an independent con-

tractor to perform an extra-hazardous activity. The

argument has surface appeal but misconstrues both the

Dalehite case and the plaintiffs’ theory of recovery.

The Dalehite “rule” is that the United States cannot be

held liable under the FTCA without a negligent act or

omission by a Government employee. True, the owner-

ship of an inherently dangerous commodity, standing

alone, cannot create liability in the United States, but

if there is a negligent act or omission by a Government

employee then liability will attach. The plaintiffs do not

argue that the mere ownership of an inherently dan-

gerous commodity or the mere engaging in an extra-

hazardous activity by the United States will create lia-

bility but, rather, argue that there was a negligent act

or omission by a Government employee with regard to

68a

the ownership of the inherently dangerous commodity

and the engagement in the extra-hazardous activity.

There are other cases relied upon by the defendant

which apparently seem to dispose of the question. In

Mahoney v. United States, 220 F. Supp. 823 (E.D.

Tenn. 1963), the Court states flatly:

“The Government cannot be charged with negli-

gence of the employees of an independent contrac-

tor under the non-delegable rule of local law.”

In United States v. Page, 350 F. 2d 28 (10th Cir.

1965), the Court said:

“The general law on the subject casts serious

doubts as to whether the doctrine of nondelegable

duty as here involved applies to injuries to em-

ployees of the independent contractor.”

In the recent Ninth Circuit case of Jeffries v. United

States, 477 F. 2d 52 (9th Cir. 1973), the Court said:

“There is substantial doubt as to whether the ‘non-

-delegable duty’ theory is available under the Fed-

eral Tort Claims Act.”

The defendant relies on these cases for its assertion

that the nondelegable duty theory is not available under

the FTCA because the theory is one of absolute or vi-

carious liability. Even Prosser; 3rd ed., p. 483, explains

the nondelegable duty theory in terms of vicarious lia-

bility:

“But the cases of ‘non-delegable duty’ go further,

and hold the employer liable for the negligence of

the contractor, although he has himself done

everything that could reasonably be required of

him. They are thus cases of vicarious liability.”

The error in the defendant’s reasoning is in the as-

69a

sumption that the nondelegable duty theory is identical

throughout the United States. Under the FTCA, the

United States is liable for the negligence of its em-

ployees:

“. . . under circumstances where the United

States, if a private person, would be liable to the

claimant in accordance with the law of the place

where the act or omission occurred.” 28 U.S.C.

§ 1346(b).

Therefore, when a court decides that “The Government

cannot be charged with negligence of the employees of

an independent contractor under the non-delegable rule

of local law” (Mahoney v. United States, 220 F. Supp.

823, supra), the court is ruling that the nondelegable

theory in that state is a type of vicarious liability and

therefore not available under the FTCA. The rule of

that case would be of precedential valve in another

FTCA case in another state only if the cther state has

the same type of nondelegable duty rule. As will be

seen, various states have different types of a nondele-

gable duty theory of liability and in some states the

theory is not one of vicarious or imputed liability.

Therefore, the cases which flatly state the rule that the

nondelegable duty rule is not available under the FTCA

are of little help as a national FTCA standard.

There are several important cases which discuss the

applicability of the nondelegable duty rule under the

FTCA. In Hopson v. United States, 136 F. Supp. 804

(W.D. Ark. 1956), the Court said:

“The remaining contention of plaintiff is that

the work was inherently dangerous and that the

Government could not escape liability by delegat-

70a

ing the work to an independent contractor. The

Arkansas rule in this regard is stated in South-

western Bell Telephone Co. v. Smith, 220 Ark. 223,

225, 247 S. W. 2d 16, 17, as follows:

‘ “ ‘While it is true that as a general rule, the em-

ployer would not be liable for the negligence of an

independent contractor, there are exceptions to

this rule. One exception is that where the work to

be performed is inherently dangerous, as here, the

employer will not be permitted to escape liability

for negligent injury to the property of another, by

an employee, to whom the employer has delegated,

or contracted, the performance of the work.’”’’

“See also, McKennon v. Jones, 219 Ark. 671,

244 S. W. 2d 138; Kennedy v. Clayton, 216 Ark.

851, 227 S. W. 2d 934; Giem v. Williams, 215 Ark.

705, 222 S. W. 2d 800. |

“Thus, under the Arkansas law the Government

if a private person would be liable for the negli-

gence, if any, on the part of the employees of

NFOC, and the question is presented as to whether

the Government would be liable for such alleged

negligence under the Tort Claims Act. The ques-

tion presents two distinct problems, i. e., (1)

whether the nondelegable.rule is a type of absolute

liability condemned by the Dalehite case, or (2)

whether the nondelegable rule is applicable to fed-

eral tort claim actions since the negligent actor is

not an employee of the United States.

“As to the first problem, there is little question

but that the nondelegable rule is a type of absolute

liability without fault, inasmuch as the contractor

is held liable for the negligence of the independent

7la

contractor’s employees even though there is no

fault whatsoever on the part of the contractor.

However, the doctrine of respondeat superior in

itself is also a type of absolute liability without

fault, since the master is held liable for the negli-

gence of his servant even though the master him-

self is guilty of no breach of care. See, Comment,

Absolute Liability in Arkansas, 8 Ark. Law Re-

view 83, 88.

“The Court is of the opinion that the nondele-

gable rule is comparable to the responeat supe-

rior rule and is not the type of absolute liability

without fault which was condemned in the Dale-

hite case. Contra, Strangi v. United States, supra,

at page 308 of 211 F. 2d. Stated differently, the

Dalehite case merely construes the Tort Claims

Act to require ‘a negligent act’ and to be inappli-

cable to liability based solely upon ‘ownership of

an “inherently dangerous commodity” or prop-

erty, or of engaging in an “extra hazardous” ac-

tivity.’ Dalehite v. United States, supra, at page

45 of 346 U. S., at page 972 of 73 S. Ct.

“Tt would seem then that inasmuch as the non-

delegable rule requires a negligent act on the part

of an employee of an independent contractor, the

rule would not be a type of absolute liability pro-

hibited by the Dalehite case.

“This brings the Court to the second problem,

that is, whether the United States can be charged

with liability based upon the negligent act of an

employee of an independent contractor under the

nondelegable rule applicable under the local law.

(se * *

72a

“The Court has found only one ease in which the

specific problem was discussed. In United States

v. Hull, 1 Cir., 195 F. 2d 64 at page 67 the Court

said:

‘Likewise, there are certain cases where under

local law a private person may be liable for in-

juries resulting from the negligence of a carefully

selected independent contractor. Restatement of

Torts § 416 et seq. Presumably the United States

would not be subject to liability in such a case

under the Federal Tort Claims Act, for it may

well be that the negligent independent contractor

would not be deemed an “employee” of the govern-

ment within the meaning of § 1346(b).’

“The Court is convinced that the above quoted

dictum in the Hull case is a correct statement of

the law. The Supreme Court has interpreted the

Tort Claims Act ‘to require clear relinquishment

of sovereign immunity to give jurisdiction for tort

actions’. Dalehite v. United States, supra, at page

31 of 346 U. S., at page 965 of 73 S. Ct. By its

terms the Act is specifically limited to claims based

upon negligent or wrongful acts or omissions of

‘any employee of the Government’, and there is

nothing in the Act to indicate that Congress in-

tended to extend the liability of the United States

to actions founded upon negligent or wrongful

acts or omissions of employees of independent con-

tractors.

“In other words, the Tort Claims Act can be in-

voked ‘only on a “negligent or wrongful act or

omission” of an employee’. Dalehite v. United

States, supra, at page 44 of 346 U. S., at page 972

73a

of 73 S. Ct. And the Act requires that the employee

be an ‘employee of the Government.’ Therefore,

liability under the Act cannot be predicated upon

the alleged negligence of an independent contrac-

tor or its employees, when said contractor and em-

ployees are not employees of the United States.”

The Hopson Court therefore ruled that the nondele-

gable duty rule under Arkansas law is not barred un-

der the FTCA because it is a theory of absolute liability

but, rather, ruled that the nondelegable duty rule is

barred because the act was by the independent con-

tractor rather than by a Government employee and

that would be vicarious liability.

In Emelwon, Inc. v. United States, 391 F. 2d 9 (5th

Cir. 1968), the Court said:

“It is clear the United States may not be held

liable without fault. Dalehite v. United States, 346

U. S. 15, 73 S. Ct. 956, 97 L. Ed. 1427 (1953) ;

Strangi v. United States, 211 F. 2d 305 (5th Cir.

1954) ; Hopson v. United States, 136 F. Supp. 804

(W.D. Ark. 1956). Nor do the terms of the Act

permit the negligence of an independent contrac-

tor to be imputed to the United States. See United

States v. Page, 350 F. 2d 28 (10th Cir. 1965). But

there is another possibility—despite the existence

of an employer-independent contractor relation-

ship Florida law casts directly upon the employer

itself (here the United Staves) legal duties which

its employees may have failed to discharge. Flor-

ida recognizes such duties under at least two ap-

plicable theories.

“First, Florida follows the rule that where an

74a

employer gains knowledge of a dangerous situa-

tion created by an independent contractor it may

incur liability through its failure to halt the oper-

ation or otherwise remove the danger. Maule In-

dustries, Inc. v. Messana, 62 So. 2d 737 (Fla.

1953) ; Breeding’s Dania Drug Co. v. Runyon, 147

Fla. 123, 2 So. 2d 376 (1941); Peairs v. Florida

Publishing Co., 132 So. 2d 561 (Fla. App. 1961).

“Second, Florida recognizes the principle that

one who employs an independent contractor to en-

gage in certain types of activity has a “nondele-

gable duty’ to see to it that the independent con-

tractor carries out his task in a non-negligent

manner. The employer’s liability is not absolute,

nor is he held vicariously liable for the negligence

of the independent contractor. Rather liability is

imposed on the employer for his own failure to

exercise reasonable care in a situation in which the

work is sufficiently dangerous that the employer

himself has a duty to third persons who may sus-

tain injuries from the work unless proper precau-

tions are taken in the performance thereof. The

taking of such precautions is a duty which the

employer may not delegate to his independent con-

tractor so as to evade liability. Should injury oc-

cur under such circumstances of sufficiently great

danger the employer is liable for the breach of his

own ‘nondelegable duty’ to take precautions

against harm to third parties. Florida Power &

Light Co. v. Price, 170 So. 2d 293 (Fla. 1964),

articulates the extent of danger required to bring

the non-delegable duty into existence as ‘inher-

ently or intrinsically dangerous work.’ While the

75a

——— A TT ttt

rule is not limited to landlord cases, see Peairs v.

Florida Publishing Co., supra, it ie clearly stated

by the Florida Supreme Court in a recent landlord

case, Mai Kai, Ine. v. Colucci, 205 So, 2d 291 (Fla.

1967):

“The duty to exercise * * * reasonable case is

nondelegable in the sense that a contract for its

performance by another will not necessarily elimi-

nate an owner's responsibility, The duty, however,

remains one of due care or reasonable care in pre-

venting or correcting an unsafe condition, as op-

posed to absolute liability for a contractor's negli-

gence,”

In the Emelwon case the, dangerous activity was the

aerial spraying of dangerous herbicides and insecti-

cides. The Court concluded that the District Court

should not have directed a verdict for the Government

because the Florida type of nondelegable duty was in

fact cognizable under the FTCA because the Govern-

ment would be liable for its own negligence, rather

than vicariously liable.

The existence of two distinct types of nondelegable

duty theory is explained in a footnote in Emelwon,

supra, at page 11, where the Court said:

“The general rule seems to be that an employer

who has a ‘nondelegable duty’ is ‘liable for the

negligence of the contractor, although he has him-

self done everything that could reasonably be re-

quired of him.’ Prosser, Torts § 70, at 483 (3d ed.

1964), and cases cited there. In Florida, however,

the nondelegable duty concept imposes a different

burden—the employer is not held absolutely liable

but is accountable only for his own negligence.

76a

“eee

“Here we are concerned only with the Florida

rule and express no views as to whether the non-

delegable duty rule current in other jurisdictions

could be applied against the government in a Tort

Claims Act case. Compare Hopson vy. United

States, 186 F. Supp. 804 (W.D, Ark. 1956),”

In H. L. Properties, Inc. v. Aerojet-General Corp.,

331 F. Supp. 1006 (S.D. Fla, 1971), the District Court

followed the Emelwon case and held the Florida type

nondelegable duty rule available under the FTCA:

“It is well-established that the Government can-

not be held liable without fault, Dalehite v. United

States, 346 U.S. 15, 73 S. Ct. 956, 97 L. Ed, 1427

(1958). However, under the rationale of Emel-

won, Ine, v. United States, 891 F. 2d 9 (Sth Cir,

1968), cert. den. 393 U. S. 841, 89 S, Ct. 119, 21

L, Ed, 2d 111, the Government could be held liable

under either of two theories of Florida law, both

of which impose liability upon an employer of an

independent contractor for its own negligence.

“The first theory of Florida law imposes a duty

upon an employer who discovers a dangerous situ-

ation created by its independent contractor either

to halt the operation or otherwise remove the dan-

ger. Maule Industries, Inv. v. Messana, 62 So, 2d

737 (Fla, 1953) ; Peairs v. Florida Publishing Co.,

182 So, 2d 561 (1st D.C.A, Fla, 1961),

“The second theory of Florida law imposes a

non-delegable duty on the employer to exercise

reasonable care to prevent harm to third persons

when the independent contractor is performing

inherently or intrinsically dangerous work. Flor-

77a

—_—_—- -=

stl nentitiil

ida Power & Light Co. v. Price, 170 So, 2d 298

(Fla, 1964).

“ee @ ‘

“... The Court finds that the Government had a

non-delegable duty to assure that Aerojet-General

Corporation performed its task in a non-negligent

manner, The sole question for decision is whether

the Government negligently breached this duty.

“Under Article III of the contract between the

defendants, NASA retained technical direction of

the project. The evidence shows that this clause

merely gave NASA the power to assure that the

technical results of the test-firing would be as con-

templated under the contract,

“The contract also gave the Contracting Officer

the authority both to terminate the contract and

to impose upon Aerojet-General Corporation any

safety and health requirements deemed necessary.

The Court notes these provisions only to show that

the Government had not relinquished total control

of the operation to its independent contractor. . .

“The Court finds that the Government, in con-

tracting with Aerojet-General Corporation for the

performance of an inherently dangerous project,

had a non-delegable duty to exercise reasonable

care to prevent harm to third persons caused by

Aerojet-General Corporation. . .”

The defendant seeks to distinguish the Aerojet-General

case from the inetant case because the injury (damage

to fruit and plants when rocket motor was test-fired

during a very light shower) was to third persons (own-

78a

ers and lessees of land), rather than to employees of

the independent contractor. The distinction is of no

consequence. The recent Ninth Cireuit case of Thorne

v. United States, 479 F, 2d 804, (9th Cir, 1973), fol-

lows the Emelwon rationale in a FTCA suit by an em-

ployee of an independent contractor and the Court

never mentioned the alleged distinction raised by the

defendant here.

Before determining if and which nondelegable duty

theory exists in Nevada, the law which is to apply in

this case, a better understanding of the nondelegable

duty theory can be obtained from American Law Insti-

tute Restatement of Torts 2d, from cases interpreting

the Restatement of Torts 2d and from recent Ninth

Cireuit cases which discuss nondelegable duty under

the FTCA,

What appears to be the “general rule” of nondele-

gable duty, i. e., the type discussed in the Hopson case,

186 F. Supp. 804, supra, which was a form of vicarious

liability, is found in the Restatement of Torts 2d at

§ 416 and § 427A. The Reporter’s Notes explain that

§§ 416 and 427 A represent different forms of state-

ment of the same general rule and have been applied

more or less interchangeably in the same types of cases,

The rules are stated as follows: |

Ҥ 416. Work Dangerous in Absence of Special

Precautions

One who employs an independent contractor to

do work which the employer should recognize as

likely to create during its progress a peculiar risk

of physical harm to others unless special precau-

tions are taken, is subject to liability for physical

harm caused to them by the failure of the con-

79a

~~ << oo —_—. — -——

tractor to exercise reasonable care to take such

precautions, even though the employer has pro-

vided for such precautions in the contract or other-

wise,”

Ҥ 427A. Work Involving Abnormally Dangerous

Activity

One who employs an independent contractor to

do work which the employer knows vi has reason

to know to involve an abnormally dangerous activ-

ity, is subject to liability to the same extent as the

contractor for physical harm to others caused by

the activity.”

It is clear that these two rules represent a form of im-

puted liability. In the Introductory Note to § 416, it is

stated :

“The rules stated in the following §§ 416-429,

unlike those stated in the preceding §§ 410-415, do

not rest upon any personal negligence of the em-

ployer. They are rules of vicarious liability, mak-

ing the employer liable for the negligence of the

independent contractor, irrespective of whether

the employer has himself been at fault.”

Prosser, Torts, $70 at 484 (3d ed, 1964) describes Re-

statement of Torte 2d, § 416, as a form of vicarious lia-

bility, and United States v. Hull, 195 F, 2d 64 (1st Cir.

1952) so holds. Therefore, it is certain that § 416 is a

description of the “general rule” of nondelegable duty

which would not be available under the FTCA because

it is a theory of vicarious liability.

Where is the Florida type of nondelegable duty

found in the Restatement of Torts 2d? As stated in the

previously quoted introductory note to § 416, the sec-

80a

tions which deal with the personal negligence of the

employer are §§ 410-415. The only section close to the

Florida type of nondelegable duty is $413, which

states:

Ҥ 418, Duty to Provide for Taking of Precautions

Against Dangers Involved in Work En-

trusted to Contractor

One who employs an independent contractor to

do work which the employer should recognize as

likely to create, during its progress, a peculiar un-

reasonable risk of physical harm to others unless

special precautions are taken, is subject to liabil-

ity for physical harm caused to them by the ab-

sence of such precautions if the employer

(a) fails to provide in the contract that the con-

tractor shall take such precautions, or

(b) fails to exercise reasonable care to provide

in some other manner for the taking of such pre-

cautions.”

While § 413 is a form of direct liability upon the em-

ployer of a contractor, rather than a form of vicarious

liability, it is readily evident that § 413 is not the Flor-

ida type of nondelegable duty theory. Section 413 lia-

bility can be avoided by an employer by simply delegat-

ing the responsibility to the contractor in the contract

(see § 413(a)), yet under the Florida type nondele-

gable duty there cannot be such a delegation.

The difference between § 413 and § 416 liability is

noted in the recent Ninth Circuit case of United States

v. DeCamp, 478 F. 2d 1188 (9th Cir, 1973), a FTCA

case in which a contractor's employee was killed while

8la

operating a bulldozer at a Government project. The

Court said, at footnote 3, page 11938:

“ee @

“Not really an exception, as such, to the inde-

pendent contractor rule, Section 413 imposes di-

rect liability upon the employer of an independent

contractor if the employer himself fails to take

appropriate special precautions, This section thus

contrasts sharply with Section 416, which imposes

vicarious liability on the employer for the negli-

gence of the independent contractor.”

The Court held that there was no § 413 liability in that

case since the Government did not in fact fail to take

any special precautions required in the circumstances

of the case.

In the instant case, the plaintiffs are not relying on

§ 413 liability but, rather, on the Florida type nondele-

gable duty theory of liability. The defendant in the in-

stant case would not be liable under § 413 because the

contract between REECo and the AEC provided that

the contractor should provide all safety precautions

and this would absolve the employer of liability accord-

ing to § 413(a). Nor can the plaintiffs rely on § 416

liability because it is a form of vicarious liability not

cognizable under the FTCA, The plaintiffs rely on a

nondelegable duty theory of the Florida type which

would be similar to § 413 except that the duty cannot

be delegated. It should be noted that in Emelwon and

Acrojet-General, the cases recognizing the availability

of the nondelegable duty theory under the FTCA, the

courts discuss liability without any reliance on the Re-

statement of Torte 2d, and the Florida state cases

which discuss the nondelegable duty theory do not rely

on §§ 413, 416 or 427A. The nondelegable duty theory

which imposes liability upon the employer of the con-

tractor for the employer’s own negligence appears to

be a theory which is not found in the Restatement of

Torts 2d.

The defendant relies heavily on United States v.

Page, supra, 350 F. 2d 28 (10th Cir. 1965), cert. den.

382 U. S. 979, and Eutsler v. United States, 376 F. 2d

634 (10th Cir. 1967). With the exception that two sep-

arate accidents were involved in the two cases, the

facts are virtually indistinguishable. In each case,

three employees of a Government contractor, Hercules,

died in an explosion while performing work at Bacchus,

Utah, related to the development of a solid fuel rocket

propellant. The Bacchus plant was owned by the con-

tractor and the Government supplied equipment and

supplies, the title to which was in the Government. In

each case the work was being performed pursuant to

the same contract between Hercules and the United

States Air Force, among the provisions of which was a

requirement that Hercules comply with certain specific

safety regulations. The contract reserved for the Gov-

ernment the right to inspect the plant and the work be-

ing performed by the contractor.

In the first case, United States v. Page, supra, the

District Court found the Government liable for not

properly supervising the safety practices of the con-

tractor and liable under the rule stated in Restatement

of Torts 2d § 427. The Court of Appeals reversed and

held that the fact that the Government contract may

reserve to the United States the right to inspect the

work and facilities of the independent contractor, and

83a

OEPSH (sD

ee ee RT

the right to stop the work, does not in itself override or

alter the general rule of nonliability for torts of the

contractor because no duty is created to employees or

third parties. The Court of Appeals then went on to

dispose of the § 427 liability:

“The trial court concluded that ‘although not

necessary to the decision of the case’ because of the

inherently dangerous nature of the work, the Gov-

ernment would be liable under Utah law as ex-

pressed in Section 427 of the Restatement of Torts

for the negligence of the independent contractor.

Section 427 provides that:

‘One who employs an independent contractor to

do work which is inherently dangerous to others is

subject to liability for bodily harm caused to them

by the contractor’s failure to exercise reasonable

care to prevent harm resulting from the danger-

ous character of the work.’

There is no question but that Hercules was a re-

sponsible independent contractor properly selected.

Also, liability under this theory is not predicated

on actual control or interference exercised or re-

served by the United States, and the record shows

there was none. Rather, the duty imposed upon the

United States, if any, stems eiitirely from the na-

ture of the activity and the hazards it creates to

third persons.

“The general law on the subject casts serious

doubts as to whether the doctrine of nondelegable

duty as here involved applies to injuries to em-

ployees of the independent contractor. Corban v.

Skelly Oil Co., 256 F. 2d 775 (5th Cir.), expressly

held that it did not so apply. Similar holdings ap-

84a

pear in Galbraith v. United States, 296 F. 2d 631

(2d Cir.) ; Sword, Houston Fire & Cas. Ins. Co.,

Intervener v. Gulf Oil Corp., 251 F. 2d 829 (5th

Cir.) ; Hurst, Employers Cas. Co., Intervener v.

Gulf Oil Corp., 251 F. 2d 836 (5th Cir.) ; Cagle v.

McQueen, 200 F. 2d 186 (5th Cir.). The Utah Su-

preme Court apparently has not been faced di-

rectly with this question, but the view taken by the

courts in the above cited cases is supported by

dictum in Dayton v. Free, 46 Utah 277, 148 P.

408, and nothing to the contrary has been ad-

vanced. But in any event it must be first decided

whether an independent contractor is an ‘em-

ployee’ within the meaning of 28 U.S.C.A. § 1346

(b) so as to render the United States liable for the

contractor’s negligence under the Federal Tort

Claims Act. |

“The Supreme Court in the Dalehite case has

interpreted the Tort Claims Act to ‘require clear

relinquishment of sovereign immunity to give ju-

risdiction for tort actions.’ Dalehite v. United

States, 346 U. S. 15, at 31, 73 S. Ct. 956, at 965.

‘The Tort Claims Act provides that the United

States District Courts shall have jurisdiction of

claims against the United States for money dam-

ages :

‘* * * for injury or loss of property, or personal

injury or death caused by the negligent or wrong-

ful act or omission of any employee of the Govern-

ment while acting within the scope of his office or

employment, under circumstances where the

United States, if a private person, would be liable

to the claimant in accordance with the law of the

85a

place where the act or omission occurred.’ 28

U.S.C.A. § 1346(b). (Emphasis added).

Thus, a prerequisite to liability of the United

States under the Act is that the act or omission be

by an ‘employee of the United States.’ An inde-

pendent contractor is not an ‘employee’ of the

Government and recovery cannot therefore be had

against the United States for Hercules’ negligent

acts. Dushon v. United States, 243 F. 2d 451, 17

Alaska 245 (9th Cir.) (dictum); Strangi v.

United States, 211 F. 2d 305 (5th Cir.) ; United

States v. Hull, 195 F. 2d 64 (1st Cir.) (dictum) ;

Nyquist v. United States, 226 F. Supp. 884 (D.

Mont.) ; Benson v. United States, 150 F. Supp. 610

(N.D. Calif.) ; Hopson v. United States, 136 F.

Supp. 804 (W.D. Ark.).”

Therefore, the Court of Appeals ruled, in Page, that

§ 427 nondelegable duty is not available under the

FTCA because it is a type of vicarious liability.

In the next case, Eutsler v. United States, supra, 376

F. 2d 634, the plaintiffs tried a different theory of lia-

bility for the same fact situation. The theory, as stated

by the plaintiffs in that case, was that:

“there is a direct common law duty [owed to em-

ployees of an independent contractor] on the part

of the United States, or any other contractee,

when it directs an independent contractor to deal

with inherently dangerous substances, te provide

adequate safety regulations or to see that ade-

quate safety regulations are followed by the inde-

pendent contractor.”

The plaintiffs then proceeded to advance § 413 of the

Restatement of Torts 2d as their theory of recovery:

86a

“Appellants urge that Page must be distin-

guished from the present case on grounds that the

theories of liability are different. Page, it is said,

turned upon considerations of a nondelegable duty

and imputed negligence arising out of contract,

while here the premise of simple negligence based

upon the duty to exercise reasonable care is ad-

vanced. The foundation for this latter theory is

section 413 of the Restatement of Torts which

provides:

‘One who employs an independent contractor to

do work which the employer should recognize as

likely to create, during its progress, a peculiar un-

reasonable risk of physical harm to others unless

special precautions are taken, is subject to liabil-

ity for physical harm caused to them by the ab-

sence of such precautions if the employer |

(a) fails to provide in the contract that the con-

tractor shall take such precautions, or

(b) fails to exercise reasonable care to provide

in some other manner for the taking of such pre-

cautions.’

“Although this court made no direct reference

to section 413 of the Restatement in its considera-

tion of the issues in Page, we think it clear that

both the reasoning and disposition of that case

negatives appellants’ contentions here and that

section 413 would be persuasive to appellants’

arguments only if the phrase ‘to others’ as con-

tained therein pertained to employees of the inde-

pendent contractor. One court, against quite differ-

ent factual circumstances, lends comfort to appel-

lants. Woolen v. Aerojet General Corp., 57 Cal. 2d

87a

gt ae Oe a so a i ee kas

407, 20 Cal. Rptr. 12, 369 P. 2d 708. But the gener-

ally accepted rule is clearly to the contrary. E. g.,

Corban v. Skelly Oil Co., 5 Cir., 256 F. 2d 775;

Richardson v. United States, W.D. Tenn., 251 F.

Supp. 107; Epperly v. City of Seattle, 65 Wash.

2d 777, 399 P. 2d 591; Welker v. Kennecott Cop-

per Co., 1 Ariz. App. 395, 403 P. 2d 330; and au-

thorities cited.”

The decision in Eutsler turned upon the interpretation

of § 413 which the Utah courts apply. The Court de-

cided that the words “to others” in § 413:

“One who employs an independent contractor to

do work which the employer should recognize as

likely to create, during its progress, a peculiar un-

reasonable risk of physical harm to others unless

special precautions are taken . . .” (Emphasis

added. )

pertain to third persons only and do not pertain to

employees of the contractor. Therefore, since under

Utah law the employees do not come within the § 413

theory of recovery, the Court disposed of the § 413

claim without having to decide whether it was an avail-

able theory of recovery under the FTCA.

In the instant case, the plaintiffs realize that § 416 or

§ 427 liability is not available under the FTCA and

they further do not rely on § 413 liability; rather, the

plaintiffs assert the Florida type of nondelegable duty

which would impose liability on the United States for

its own negligent act.

There are three important recent Ninth Circuit cases

which involve the nondelegable duty theory under the

FTCA. In Jeffries v. United States, supra, 477 F. 2d

52 (9th Cir. 1973), the Court stated in dicta:

88a

“There is substantial doubt as to whether the ‘non-

delegable duty’ theory is available under the Fed-

eral Tort Claims Act.”

The Court cited United States v. Page, supra, 350 F.

2d 28. This dicta statement was directed to the ques-

tion whether the nondelegable duty theory would apply

where the result would be to impose vicarious liability

upon the United States for negligence of the contrac-

tor.

In the next Ninth Circuit case, United States v.

DeCamp, supra, 478 F. 2d 1188, the employee of a Gov-

ernment contractor was killed while he operated his

bulldozer at a Government clearance project. A Gov-

ernment engineer told the contractor that bulldozer

canopies would not be needed on the project, in spite of

a provision of the Corps of Engineers’ safety manual

which seemed to require the canopies. The District

Court found that canopies were not normally used for

this type of a project in that locality so that the con-

tractor was not negligent, but found the Government

negligent because the Government engineer did not ad-

here to the federal regulations requiring the canopies.

The Court of Appeals agreed that the contractor was

not negligent and further held that the Government

was not either. In essence, the.Court held that the Gov-

ernment, in a FTCA suit, is to be treated as a person

where the accident occurred. The Court held that the

Government engineer had exercised his discretion in

deciding whether canopies would be needed and said:

“in California, where the accident occurred, a

private person would assume no tort duty by

reaching this conclusion, and the government en-

gineer could not be held to a higher standard.”

89a

Tae ee Oe we

Of special interest is the DeCamp Court’s discussion

of § 416 of the Restatement of Torts 2d:

“The plaintiff's reliance upon Van Arsdale vy.

Hollinger, 68 Cal. 2d 245, 487 P. 2d 508, 66 Cal.

Rptr. 20 (1968) is misplaced. Van Arsdale, which

engrafts Section 416 of the Restatement (Second)

of Torts onto the statutory liability of public en-

tities in

issue have arjswered in the negative. See Fisher v.

United States, 441 F. 2d 1288 (3d Cir. 1971);

Market Insurance Co. v. United States, 415 F. 2d

459 (5th Cir), 1969); Gowdy v. United States,

supra; Wright v. United States, 404 F. 2d 244

(7th Cir, 196%); Roberson v. United States, su-

pra; Lipka v. Ynited States, supra; United States

v. Page, supra.,|’

Since the contractol was not negligent, the DeCamp

Court did not get to|the issue of whether § 416 vicari-

ous liability is availdble under the FTCA.

The next Ninth Circuit case which is very relevant

is Thorne v. United States, supra, 479 F. 2d 804. The

plaintiff in the FTCA suit was an employee of a con-

90a

tractor which had contracted with the Department of

the Interior, Bureau of Reclamation, to construct a

spillway as part of a dam in California. The plaintiff

was injured as a large slab of shale rock broke loose on

the upper side of the “toe” trench he was digging on a

very steep slope. There was undisputed evidence which

demonstrated that the excavation of the particular

trench across the face of the steep spillway was a high-

ly dangerous operation. The District Court granted a

motion in favor of the defense at the close of the plain-

tiff’s case. The Court of Appeals reversed the District

Court and remanded the case for a new trial. The

opinion is very enlightening and will be quoted exten-

sively :

“The one case to which our attention has been

directed, and the only case which our research has

revealed, which is almost exactly in point on the

application of state law to the factual background

before us, is Emelwon, Inc. v. United States, 391

F. 2d 9 (CA5 1968), cert. denied 393 U. S. 841.

There, as here, the appellants sought recovery un-

der the Federal Torts Claims Act for damages to

‘their growing crops, in connection with a spraying

operation. The district court directed a verdict for

the United States on the ground that the state of

Florida, which carried on the spraying operations

causing the damage, was neither an agent nor an

employee of the United States, but was an inde-

pendent contractor. In reversing the judgment,

the Fifth Circuit recognized that the United States

could not be held liable without fault and that the

doctrine of strict liability did not apply, citing

among others, Dalehite v. United States, 346 U. 5S.

9la

ee ee

Err

15, 44-45 (1953), and also recognized that under

ordinary circumstances the United States could

not be held liable for the negligence of an inde-

pendent contractor. After acknowledging these

rules, the court then went on to hold that there

were at least two applicable theories of Florida

law under which the United States would be liable.

First, the Florida rule that the owner or employer

may incur liability through its failure to halt an

operation when it gains knowledge of a dangerous

situation, which might be created by an independ-

ent contractor. Second, the Florida rule that one

who employs an independent contractor to engage

in certain types of dangerous activity has a ‘non-

delegable duty’ and must see to it that the inde-

pendent contractor carries out his task in a non-

negligent manner. On the second point, the court

went on to say that the employer’s liability was not

absolute, nor was he held vicariously liable for the

negligence of the independent contractor. Instead,

liability was imposed on the employer for his own

failure to exercise reasonable care in a situation in

which the work is sufficiently dangerous that the

employer himself has a duty to third persons who

may sustain injuries from the work unless proper

precautions are taken. The court then went on to

hold that the spraying of herbicides or insecticides

was an activity which was sufficiently dangerous

to warrant the application of the Florida non-dele-

gable duty rule.

“A perusal of the California authorities con-

vinces us that the law of that state is essentially

92a

the same as the Florida law before the Court in

Emelwon, Ine., supra. |

“Before we discuss the specific California cases,

it is well to recognize that its courts have followed

the proposition that one who employs an independ.

ent contractor is, as a general rule, not liable for

the misconduct of the latter or his servants while

acting within the scope of the contract. The idea

responsible for this general rule of non-liability is

the want of control and authority of the employer

over the work, and the consequent harshness of the

rule which would hold one responsible for the man-

ner of conducting an enterprise over which he

lacks the authority to direct the operations. How-

ever, the court recognizes that there are certain

clear cut exceptions which, with increasing ten-

dency, seem to overshadow in importance and

scope the rule itself.

“At least one of these exceptions is here of im-

portance, It is the duty imposed on an employer of

an independent contractor for the misconduct of

the latter in the performance of certain ‘intrin-

sically dangerous’ work. The policy of allocating to

the owner or employer the risk incident to his ac-

tivity is obvious when the activity carries with it

extraordinary hazards to third persons. This duty

is recognized as California law in the exhaustive

opinion of Justice Peters in Van Arsdale v. Hol-

linger, 68 Cal. 2d 245, 66 Cal. Rptr. 20, 437 P. 2d

508 (Cal. 1968), a case comparable to the one be-

fore us. In Van Arsdale, an employee of a street

improvement contractor was eradicating mark-

ings on a busy street. The City of Los Angeles and

93a

-_-— oo eee ae OU

ee a ae ee ee ere en eee

the contractor recognized that the street improve-

ment work involved special hazards to the public

and to the employees of the contractor. By the

terms of the agreement, the contractor was re-

quired to provide flagmen, wearing red coats and

carrying a red hat or sign. When plaintiff was in.

jured, no flagmen were working and the plaintiff,

the injured employee of the contractor, was not

wearing a red or orange jacket. There, the court

imposed liability on the City for its failure to exer-

cise care in a situation in which the work was suffi-

ciently dangerous that it had a duty to others who

might sustain injuries from the work unless

proper precautions were taken in the performance

thereof. It went on to hold that the taking of such

precautions was a duty which the city could not

delegate to its independent contractor so as to

evade liability, Under California law, the Bureau,

in this case, was under a duty to exercise reason-

able care to see that proper precautions were taken

by the contractor. On the record before us, no such

precautions were taken.

“While generally speaking, the mere reserva-

tion of a right to inspect work performed by an

independent contractor, including the right to stop

the work if precautions are not taken, does not im-

pose upon the government any duty of inspection

or control, Roberson v. United States, 382 F. 2d

714 (CA9 1967), this rule does not apply to a

factual background, such as this, where the work

is extra-dangerous, Although an extra-dangerous

condition may have been involved in Roberson, the

court refused to consider this problem for the rea-

94a

son that the issue had not been raised in the lower

court. P. 718.

“The Bureau attempts to distinguish between

the facts in Van Arsdale and the facts before us

on the ground that prior to the beginning of the

work the government had no warning that ‘par-

ticular risk of physical harm’ would arise. This

argument is foreclosed by the record. The govern-

ment’s plans and specifications under which the

contract was let required the digging of this and

other trenches across the face of a steep slope,

which the government knew from its own surveys

would be cut through shale rock. Beyond that, the

government supervisors in charge were fully

aware of the dangerous character of the work.

Cases such as McDonald v. Shell Oil Co., 285

P. 2d 902 (1955) and Anderson v. L. C. Smith

Construction Co., supra, cited by Bureau, did not

involve highly dangerous work, known to be such

by the owner. In attempting to reconcile Emelwon,

Inc. v. United States, supra, the Bureau com-

“pletely misses the effect of that decision. Without

citing authority, it makes a simple statement that

the non-delegable duty ‘asserted by appellant is

not applicable to the United States under the Torts

Claims Act. The argument completely ignores the

California law on the subject and the fact that the

Bureau had previous knowledge of the highly dan-

gerous nature of the work and that its plans re-

quired the construction of the dangerous trenches.

At least two of its supervisors were fully aware of

the dangerous character of the work. The many

95a

—_— =" ~_*

ea ee

cases cited by Bureau on sovereign immunity have

no application. The Torts Claims Act, under which

appellant is proceeding, waived this immunity to

the extent of the provisions of the Act.

“The Bureau’s reliance on United States v.

Page, 350 F. 2d 28 (CA10 1965), is also mis-

placed. A casual reading of the case reveals that

the facts did not present a situation where the em-

ployees of the United States and the United States

itself had actual knowledge of the dangerous na-

ture of the work. Beyond that, the court did not

directly pass on the problem before us. We quote

from the opinion: ‘The general law on the subject

casts serious doubts on whether the doctrine of

non-delegable duty, as here involved, applies to

injuries to employees of the independent contrac-

tor.’ P. 33. The court then went on to express the

view that the Supreme Court of Utah would prob-

ably follow the rule as stated. Van Arsdale and

other California cases demonstrate that the al-

leged Utah rule is not followed in California.

‘“**

“The recent case of Jeffries v. United States,

477 F. 2d 52 (CA 9, 1978), is distinguishable.

There, the author of the opinion expressed some

doubt as to ‘whether the “non-delegable duty”

theory is available under the Federal Torts Claims

Act.’ P. 57. It is clear that the court’s doubt was

directed to the question whether the non-delegable

duty theory would apply where the result would

be to impose vicarious liability upon the United

States for negligence of the contractor. The same

is true of United States v. DeCamp, 478 F. 2d

96a

1188 (CA 9, 1973). There, the majority held that

there was no negligence on the part of either the

contractor or the government. Here, both were

negligent.

“CONCLUSION

“It is our considered judgment that the Bureau

should have recognized that the construction of

the trench across the face of the shale side hill,

under the terms of the contract, would involve a

peculiar risk of bodily harm to others unless spe-

cial precautions were taken. Under California law,

the Bureau had a non-delegable duty to exercise

reasonable care, including the duty to see to it that

the Contractor exercised such care. On these facts,

the findings and conclusions of the trial judge are

clearly erroneous.” 4

In the DeCamp case, the Court did not decide the

question of whether § 416 liability was available under

the FTCA, but in the DeCamp Court’s discussion of the

California case Van Arsdale v. Hollinger, 68 Cal. 2d

245, 66 Cal. Rptr. 20, 437 P. 2d 508 (1968), the Court

stated that Van Arsdale was a § 416 case and doubted

whether it would be cognizable under the FTCA since

§ 416 is vicarious liability..But in the more recent

Thorne case, the Court held that the Florida type non-

delegable duty recognized in the Fifth Circuit Emel-

won case is also a theory of liability available in the

State of California, and the Thorne Court cited Van

Arsdale for that conclusion. The Thorne case is inter-

esting in attempting to ascertain exactly what the Flor-

ida type nondelegable duty theory is. In the Florida

state cases which establish the nondelegable duty which

97a

were cited in Emelwon, the case which held the Florida

type nondelegable duty to be available under the FTCA,

the state cases did not mention § 416 of the Restate-

ment of Torts 2d and the cases clearly were not cases

of imputed liability. The Thorne case has held that

California has the same type of nondelegable duty as

Florida and cited Van Arsdale, a § 416 case, for au-

thority. A careful perusal of Van Arsdale reveals that

the case dealt with § 416, which section applies vicari-

ous liability:

“There are numerous considerations which have

led courts to depart from the rule of non-liability

of a private employer for the torts of an independ-

ent contractor. Some of the principal ones are that

the enterprise, notwithstanding the employment

of the independent contractor, remains the em-

ployer’s because he is the party primarily to be

benefited by it, that he selects the contractor, is

free to insist upon one who is financially responsi-

ble, and to demand indemnity from him, that the

insurance necessary to distribute the risk is prop-

erly a cost of the employer’s business, and that the

performance of the duty of care is of great impor-

tance to the public. (See Prosser on Torts, supra,

p. 481; 2 Harper and James, The Law of Torts

(1956) p. 1406.)

“These considerations are present here, and the

instant case comes within at least one of the well-

recognized exceptions to the rule of nonliability

for the acts of an independent contractor. This ex-

ception to the rule of nonliability is for work dan-

gerous in the absence of special precautions. In

section 416 of the Restatement Second of Torts,

98a

the exception is stated as follows: ‘One who em-

ploys an independent contractor to do work which

the employer should recognize as likely to create

during its progress a peculiar risk of physical

harm to others unless special precautions are

taken, is subject to liability for physical harm

caused to them by the failure of the contractor to

exercise reasonable care to take such precautions,

even though the employer has provided for such

precautions in the contract or otherwise.’

“This court has held that employees of an inde-

pendent contractor come within the word ‘others’

as used in sections 413, 414, and 428 of the Re-

statement of Torts, which like section 416, set

forth rules relating to the liability of one hiring

an independent contractor. (Ferrel v. Safway

Steel Seaffolds, 57 Cal. 2d 651, 655, 21 Cal. Rptr.

575, 371 P. 2d 311; Woolen v. Aerojet General

Corp., 57 Cal. 2d 407, 410-411, 20 Cal. Rptr. 12,

369 P. 2d 708; Austin v. Riverside Portland Ce-

ment Co., 44 Cal. 2d 225, 232-234, 282 P. 2d 69;

Snyder v. Southern Cal. Edison Co., supra, 44 Cal.

2d 793, 798 et seq., 285 P. 2d 912.) There is no

reason to hold otherwise with: respect to section

416. In Woolen v. Aerojet General Corp., supra,

57 Cal. 2d 407, 411, 20 Cal. Rptr. 12, 369 P. 2d

708, we disapproved a statement in a Court of

Appeal case that the word ‘others’ as used in sec-

tion 416 of the Restatement of Torts does not in-

clude employees of an independent contractor. It

has recently been held that section 416 of the Re-

statement of Torts is applicable in California in

99a

we See St ES oP = om cee @

> —— = oS

an action by an employee of the independent con-

tractor (McDonald v. City of Oakland, 223 Cal.

App. 2d 672, 677-678, 43 Cal. Rptr. 799), and

other jurisdictions have extended the liability of

one who hires an independent contractor to do

dangerous work to the employees of the contractor

(see 23 A.L.R. 1084, 1129-1135).

“Under the undisputed facts, the conditions

precedent to the nondelegable duty imposed by sec-

tion 416 appear as a matter of law. The undertak-

ing here was to eradicate the markings of the

white lines on a busy street while one of the three

lanes was kept open to traffic. Absent special pre-

cautions to keep the traffic proceeding on the open

lane from going into the other lanes, the work was

highly dangerous. The necessity for such precau-

tions was inherent in the work and was obvious

before the work commenced. The contract of the

city provided for special precautions, but under

the plain language of section 416 this does not

satisfy its duty. The work here is analogous to

that considered by the Restatement Second in two

of its illustrations to section 416, showing that the

section applies to the danger of personal injury

due to use of a highway because of failure to bar-

ricade highways or to warn motorists of danger-

ous conditions on or adjoining highways. (See

Rest. 2d Torts, § 416, illus. 1, 3.)

“For the foregoing reasons it is clear that under

the undisputed facts the city had a nondelegable

duty to exercise due care, that an employee of the

independent contractor could recover from the city

for breach of that duty, and that the city could not

100a

avoid that duty by hiring an independent con-

tractor.” :

Since Thorne held that the Florida type nondelegable

duty theory of liability also exists in California, and

since the Thorne Court relied on the California case

Van Arsdale, which is a § 416 vicarious liability case,

there appears to be a dilemma in defining precisely

what the Florida type nondelegable duty consists of.

Either the Thorne Court interprets § 416 as not being

based on vicarious liability, or the Court decided that

§ 416 vicarious liability is available under the FTCA,

or the Court decided that in California both the Florida

type of nondelegable duty (available under the FTCA)

and the “general rule” type of nondelegable duty (not

available under the FTCA because vicarious liability)

are available. The first option, that § 416 is not based

on vicarious liability, is not tenable. The Restatement

Reporter’s Notes, as well as all other authority, recog-

nizes § 416 as imputed liability. Further, United States

v. DeCamp, supra, 478 F. 2d 1188, at page 1193, foot-

note 3, recognizes § 416 as imposing “vicarious liabil-

ity.on the employer for the negligence of the independ-

ent contractor.” The second option, that the Thorne

Court decided that § 416 liability is available under the

FTCA, is also untenable and inconsistent with the con-

clusion in Thorne. The Court made it clear that the

Government, in Thorne, was being held liable for its

own negligence and not for the negligence of the con-

tractor. The Thorne Court, agreeing with Emelwon,

said at page 810:

“Under California law, the Bureau had a non-

delegable duty to exercise reasonable care, includ-

10la

ing the duty to see to it that the Contractor exer-

cised such care.”

The ineluctable conclusion is that the third option must

be correct: the Thorne Court decided that in C

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