# Appendix — United States v. McGarry > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_2418%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1977 - **Citation:** 434 U.S. 922 ## Text “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 For use by the Atomic Energy Commission (AEC) the United States has withdrawn from the public do- main a large area in the State of Nevada, northwest of Las Vegas, designated as the Nevada Test Site (NTS) and utilized by the Commission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, 2a 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 3a 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- 4a 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 5a 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 6a 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.” 7a 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 l3a 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. l4a — 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. 17a 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- 20a 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 2la 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 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_2418%3A2. Public record. Not legal advice.