Appendix — Aguirre v. United States

9 Qa G 3 9 a, \ ; 7

elise : = OF THE CLERK

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2.

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1992

BEATRICE AGUIRRE, Personal Representative

of the Estate of Alfredo Aguirre,

deceased and PATRICK ANTONE, Petitioners,

Vv.

UNITED STATES OF AMERICA and

UNITED STATES DEPARTMENT

OF DEFENSE, Respondents.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Herbert Mallamo

5500 North 24th Street

Phoenix, Arizona 85016

Counsel for Petitioners

INDEX TO APPENDIX

March 3, 1992 Memorandum decision and

written dissent of United States Court

of Appeals for the Ninth Circuit, No.

90-16330; DC No. CV-89-00467-CLH

July 8, 1992 Amended Memorandum deci-

sion, written dissent and Order of

United States Court of Appeals for

the Ninth Circuit, No. 90-16330;

DC No. CV-89-00467-CLH » «

April 2, 1990 Order granting summary

judgment, United States District

Court for the District of Arizona,

No. CIV 89-467 CLH

February 9, 1990 Order of United

States District Court for the

District of Arizona, McAffee v.

United States of America, No. CIV

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NOT FOR PUBLICATION

IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BEATRICE AGUIRRE, Personal

Representative of the

Estate of ALFREDO AGUIRRE,

Deceased, and PATRICK ANTONE No. 90-16330

DC No. CV-89-

00467-CLH

Plaintiffs-Appellants,

UNITED STATES OF AMERICA and

UNITED STATES DEPARTMENT OF ©

DEFENSE,

MEMORANDUM*

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Vv. )

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Defendants-Appellees. )

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Appeal from the United States District Court

for the District of Arizona

Charles L. Hardy, District Judge, Presiding

Argued and Submitted November 5, 1991

Before: POOLE, REINHARDT and FERNANDEZ,

Circuit Judges.

Plaintiffs Beatrice Aguirre and Patrick

Antone appeal the district court’s grant of

summary judgment in favor of the government

in this Federal Tort Claims Act case.

Plaintiffs contend that summary judgment was

improper because Arizona law allows recovery

under these circumstances and because the

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| A-2

district judge erroneously failed to follow

the lead of a brother judge who had

previously refused to grant the government’s

motion for summary judgment in a factually

Similar case. The district court had

jurisdiction pursuant to 28 U.S.c. § 1331;

we have jurisdiction over this appeal

pursuant to 28 U.S.C. § 1291. We affirn.

FACTS AND PROCEEDINGS

I. The Accident

On May 19, 1986 an explosion at a

Coolidge, Arizona munitions manufacturing

plant owned by Dela-Tek, Inc. killed

employee Alfredo Aguirre and injured

employees Patrick Antone and Rodolfo Chavez.

All three were employed as chemical

processors/blenders and their

responsibilities included operating a mixing

machine that created a magnesium teflon

compound used in M-22 cartridges. At the

time of the accident, Aguirre and Antone had

been cleaning a blending machine. The

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explosion apparently resulted from a spark

generated when one of the blenders attempted

to scrape dry chemical residue from the

sides of a mixer with a _ carbon-steel

screwdriver. No supervisor was present

during cleaning operations that morning and

none observed the cause of the explosion.

Aguirre, Antone and Rodolfo Chavez were

instructed to use copper scrapers and

acetone to remove the chemical residue from

the blending machine surfaces. The men were

also told that residue was to be scraped off

only if it was wet. On the morning of the

accident, blending operations were

terminated because air conditions that day

included low relative humidity. Stopping a

blend before it is completed and then

attempting to clean the machine was

considered more dangerous than continuing

the blending process until a completed mix

was ready. As a result, when the low

humidity conditions were discovered, the

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blenders continued their operations until

they had finished the mix that had been in

progress. |

ir. = ‘s ed

At the time of the accident Ruben

Chavez was responsible for supervising

Aguirre’s and Antone’s work. Chavez had

nineteen years of experience in chemical

processing and ordinance manufacturing, and

was responsible for insuring that the

blenders/processors were properly trained to

do their jobs. To insure that’ the

blender/processors learned the tasks

associated with their jobs, Ruben Chavez

generally required them to observe how he

performed the blending operation and the

subsequent cleaning process over a several-

week period. Chavez trained Rodolfo Chavez

and Antone by this method, but not Aguiree.

Blender/processors also were to receive

a short introductory safety lecture upon

commencing employment at the plant; Antone

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never received such a lecture. On several

occasions, Ruben Chavez and another

supervisor, Jack Moore, explained to Antone

that the use of protective smocks and stats

were essential in assuring safety in the

plant. Antone received a copy of Dela-Tek’s

employee handbook, but was never given a

copy of the company’s safety handbook and no

supervisor ever reviewed with him the

contents of the employee manual. Aguirre

received no written safety instructions

whatsoever.

Dela-Tek provided wrist and leg stats,

smocks, fire-retardant coveralls, and

protective goggles for blenders/processors

to wear during mixing and cleaning

operations. In addition, the company’s

safety manager, Frank Corral, held periodic

safety meetings and distributed safety

information sheets to employees. The

company maintained a safety suggestion box

and maintained an employee safety committee

eee a ee ee

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that met once per week. The employee

handbook included some explanation of Dela-

Tek’s safety rules and policies, and each

employee was required to sign a_ form

entitled "Acceptance of Working Conditions

and Plant Safety Rules." Antone signed such

a form, but Aguirre did not.

III. Dela-Tek’s Contract with the Department

of Defense

At the time of the accident, Dela-Tek

was engaged in the fabrication of various

ordinance for the Department of Defense

pursuant to two government contracts. The

contracts included several provisions

dealing with safety requirements at the

Coolidge manufacturing facility. The

relevant provisions made clear that day-to-

day responsibility for ensuring safety at

the production facility remained with Dela-

Tek and specifically mandated that Dela-Tek

obey any applicable federal or local safety

laws. The contracts also required the

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Department of Defense and Dela-Tek to

specifically identify and select other

applicable safety guidelines.' The parties

agreed that Dela-Tek would comply with the

"Safety Precautions for Ammunition and

Explosives." This clause, which is required

by regulation to be included in all

contracts involving ammunition or

explosives, required Dela-Tek to comply with

the DoD Contractor’s Manual for Ammunition,

ives and Rela an u teri :

The Safety Precautions for Ammunition

and Explosives authorized the government to

inspect Dela-Tek’s plant for compliance with

the Contractor’s Manual safety guidelines.

The Department of Defense Specialized Safety

| The contract provided as follows:

**The Contracting Officers shall not

reference in the schedule of the contract

ammunition and explosive safety

publications of DoD components in their

entirety. Contracting Officers shall

select and identify in the schedule of the

contract applicable paragraphs or portions

of such publications.

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Manual guides the government in its conduct

of these periodic safety inspections. The

Specialized Safety Manual authorizes

government safety inspectors to provide

technical advice and assistance to

contractors on safety issues, including

helping a contractor implement any

corrective actions deemed necessary as a

result of the quarterly inspection.

When an inspector found a condition

that violated the safety provision of the

contracts, the inspector was to decide

whether increased surveillance by the

government was necessary and whether the

contractor must attempt to correct the

problem. In the case of a particularly

serious safety problem, the government

inspector was authorized to set a specific

time frame within which the problem must be

corrected. Once a corrective measure was

mandated, the inspector was required to

follow up and ensure that the contractor

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implemented the change in procedure or

operation on a timely basis. The government

was authorized to suspend or cancel the

contracts if Dela-Tek was repeatedly or

constantly out of compliance with safety

guidelines.

The government’s contracts with Dela-

Tek provided that government safety

inspectors could visit its munitions plant

on a quarterly basis. Included in the items

to be inspected were Dela-Tek’s written

safety guidelines and procedures; the

plant’s in-house safety program; facility

construction and maintenance; equipment

design, maintenance and operation; control

of hazardous materials; operational

performance and its consistency with

contractually required procedures; and the

status of safety deficiencies noted by

inspectors on prior visits. The Specialized

Safety Manual also required the government

to insure that Dela-Tek employees used non-

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sparking tools when working with explosive

materials.

The contracts did not expressly give

the government power to supervise Dela-Tek’s

safety program on a day-to-day basis. The

government did not intervene in personnel

decisions at the plant, train Dela-Tek

employees, specify sources for the

acquisition of equipment or _ production

materials, select subcontractors, or prepare

a safety manual for Dela-Tek’s munitions

manufacturing operations.

IV. Vv m ‘s spections

= ant

Cecille King, a government inspector,

conducted a safety survey at the Coolidge

Dela-Tek plant on March 19, 1986. This was

the last government inspection of the

facility before the fatal accident. During

this inspection, King discovered safety

problems necessitating correction within a

specific time period. King concluded that

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eect of Dela-Tek’s safety operating

procedures were deficient and that the

company’s safety program did not comply with

the terms of its contracts. Accordingly,

she asked the government’s administrative

contracting officer to send Dela-Tek an

_ official notification that corrective action

would be necessary. The contracting officer

did not send such notification. King also

conducted a pre-award safety inspection at

_ the Dela-Tek plant on the same date as the

quarterly safety inspection and recommended

that the company not receive any new

government contracts.

In April 1986 King made a follow-up

visit to the Dela-Tek plant. She again

determined that Dela-Tek did not have in

place adequate safety precautions and

operating procedures. — King never found

Dela-Tek in compliance with the safety

provisions of its contracts.

V. The McAfee Accident

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On March 26, 1986, after King’s second

visit to the Dela-Tek Plant, Aguirre and a

co-employee, James McAfee were injured in an

explosion in the Dela-Tek’s facility’s

granulating room. The incident occurred

after a granulating machine used to process

magnesium teflon powder jammed and McAfee

attempted to scrape powder from the machine

with a knife.

McAfee later sued the government under

the FTCA, alleging that the government

negligently exercised control over Dela-

Tek’s safety program. Judge Earl Carroll of

the District of Arizona refused to grant the

government summary judgment in the case.

See _ McAfee v. United States, No. CIV-87-

2231-PHX-EHC (D. Ariz. 1989).

VI. ings in the Distri u

On March 14, 1989 Aguirre’s mother,

Beatrice Aguirre, and Patrick Antone filed

suit against the United States, alleging

negligence in the supervision and

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enforcement of safety measures at the Dela-

Tek munitions plant that led to the May 1986

explosion. The government denied all

allegations, asserted that the plaintiffs

were contributorily negligent, and moved for

summary judgment. On April 3, 1990, Judge

Hardy granted the government’s motion for

summary judgment. Plaintiffs timely

appealed.

STANDARD OF REVIEW

We review the propriety of summary

judgment de novo. mage chnica vi

Inc. v. Eastman Kodak Co., 903 F.2d 612, 614

(9th Cir. 1990), cert. granted, 111 S.Ct.

2823 (1991). We must determine, viewing the

evidence in the light most favorable to the

plaintiffs, whether any genuine issues of

material fact exist and whether the district

court correctly applied the relevant

substantive law. Id.

EE

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ANALYSIS

The government argues that Arizona law

does not impose liability upon it for the

behavior of Dela-Tek.’ The plaintiffs, on

the other hand, assert that Restatement

(Second) of Torts § 414, which has been

adopted by the Arizona courts, allow for

* Under the Federal Tort Claims Act

the court must apply the law of the state

where the allegedly tortious. behavior

occurred. See 28 U.S.C. § 1346(b);

Molsbergen v. United States, 757 F.2a

1016, 1020 (9th Cir.), cert. dismissed,

473 U.S. 934 (1985).

.* As a general rule, the United

States cannot be held liable under the

FTCA for the negligence of an independent

contractor. See i ,

425 U.S. 807 (1976); Letnes v. United

States, 820 F.2d 1517 (9th Cir. 1987). In

this case, the plaintiffs argue that the

government itself was negligent in failing

to enforce the safety provisions in the

procurement contract and in failing to

adequately supervise its contractor in the

performance of the contract.

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liability.‘ The government has the better

of this argument.

Restatement (Second) of Torts § 414

(hereinafter section 414) provides as

follows:

One who entrusts work to an

independent contractor, but who

retains the control of any part of

the work, is subject to liability

for physical harm to others for

whose safety the employer owes a

duty to exercise reasonable care,

which is caused by his failure to

exercise his control which

reasonable care.

The Arizona courts have held that this

section imposes liability only if the

employer of the independent contractor

retains control “over the method of doing

details of the work and [the control] must

be such that the contractor is not entirely

free to do the work in his own way."

Cordova v. Parrott, 146 Ariz. 79, 82-83, 703

. Arizona courts follow’ the

Restatement of the Law in the absence of

specific authority to the contrary. See,

e.g., Tamsen v. Weber, 166 Ariz. 364, 367,

802 P.2d 1063, 1066 (Ariz. App. 1990).

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P.2d 1228, 1231-32 (Ariz. App. 1985). An

employer is not liable if it retains only a

general supervisory authority over the

workings of the contractor’s place of

business. Koepke _v. Carter Hawley Hale

Stores, Inc., 140 Ariz. 420, 682 P.2da 425, -

430 (Ariz. App. 1984) (citing German _v,

a ie eee om, . 22 Avia.

App. 91, 95, 462 P.2d 108, 112 (1969)); see

also Martinez v. ASARCO, Inc., 918 F.2d

1467, 1475 (9th Cir. 1990) (per curiam).

These cases are not factually

distinguishable and are therefore fatal to

Plaintiffs’ case. In Cordova, the court

refused to impose liability for the death of

a construction worker upon the owner of a

mobile home that had fallen off a hydraulic

jack during a move because the extent of the

owner’s control was limited to the choice of

a new location for the mobile home. 146

Ariz. at 82, 703 P.2d at 1231.

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In Koepke, a business invitee was

injured when an employee of an independent

contractor hired to refurbish the interior

of a retail store stretched a chalk line

across an isle. The court refused to hold

the retailer liable under section 414

despite the fact that the retailer

maintained a safety committee to oversee the

remodeling project and that an employee of

the retail chain was specifically empowered

to supervise the project and insure customer

safety. While the retailer had authority to

oversee the "general progress" of the

remodeling project to “insure that it

complied with contract specifications," it

did not have extensive control over the

activities of the contractor’s workers.

Work schedules and operational procedures

were handled by the contractor’s on-site

foremen. 140 Ariz. at 426, 682 P.2d at 431.

Martinez is also a case factually

indistinguishable from this one. We refused

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to permit ASARCO, Inc., a smelter operator,

to be held liable under section 414 for

injuries resulting from the Pplaintiff’s

attempt to open the hatch of a furnace that

had not been turned off. We did not permit

section 414 liability even though ASARCO

controlled the commencement of work on the

furnace chamber, scheduled its progress,

determined the times at which the furnace

would be turned on and off, and had

Supervisory personnel on the job site.’ 918

F.2d at 1474.

The command of these cases cannot be

evaded by reliance upon the government’s use

of safety inspectors to ensure Dela-Tek’s

compliance with its contract. A contractee

is entitled to monitor its contractor’s

compliance with contractual terms, and doing

* The Martinez court reversed the

district court’s grant of summary judgment

in the case because there was tendered a

genuine triable issue concerning whether

ASARCO, as the owner of the premises, had

sufficiently fulfilled its legal duty to

warn of the dangers involved in the work.

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s0 is not the same as exercising control

over the day-to-day operations of the

contractor. See Chesin Constr. Co. v.

Epstein, 8 Ariz. App. 312, 446 P.2da 11, 16

(1968); German _v. Mountain States Tel. &

Tel. Co., 11 Ariz. App. 91, 462 P.2d 108,

112 (1970). We agree with other federal

courts that have held under factually

analogous circumstances that the

government’s exercise of its right to

inspect does not open the door to section

414 liability. See Bloom _v. Waste

Management, Inc., 615 F. Supp. 1002 (E.D.

Pa. 1985), aff'd, 800 F.2d 1131 (3d Cir.

1986); (Lathers v. Penguin Indus., Inc., 687

F.2d 69 (5th Cir. 1982).°

6 The Eighth Circuit’s decision in

» @9i4 F.2G 303

(1985) fails to case doubt upon our

conclusion. There, the government

deployed three inspectors on site on a

continuous basis. See id. at 310.

Plaintiff counters these authorities

by arguing that Arizona law imposes

section 414 liability when the employer of

an independent contractor retains the

authority to require compliance with a

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Plaintiff next argues that the district

judge should have refused to grant summary

judgment in favor of the government because

another judge of the same district declined

to grant a similar motion in a different

case arising from a separate accident at the

same Dela-Tek munitions plant.’ Plaintiffs’

theory must be rejected because there is no

constitutional or any other requirement that

safety plan. In support of this assertion

plaintiffs cite wW

Go., 1 Arig. App. 395, 403 P.2a 330

(1965), and Fluer Corp. v. Sykes, 3 Ariz.

App. 211, 413 P.2d 270 (1966). This

argument is not persuasive. The holdings

in both of those case hinge on the

existence of a contract which specifically

delegated to the employer of the general

contractor substantial control over the

day-to-day operations and procedures of

the general contractor. See Welker, 1

Ariz. App. 395, us Biae.,.me. 241

(contractor exercised control over wages

paid by subcontractor and approved all new

hires) ; Fleur, 3 Ariz. App. that

contractor had responsibility for ensuring

safety of subcontractor’s employees).

” In that case, McAfee v. United

States, No. CIV-87-2231-PHX-EHC, the

plaintiff was injured when he stuck a tool

into a moving granulating machine and

suffered flash-fire burns.

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a district judge adhere to rulings of

another judge of the same court. Starbuck

u fe) an , 356

F.2d 450, 457 n.13 (9th Cir. 1977); see also

Willner v. Budig, 848 F.2d 1032, 1035 (10th

Cir. 1988) (per Wright, Alarcon, and Hall,

JJ., sitting by designation), cert. denied,

488 U.S. 1031 (1989); Threadgill v,

Armstrong World Indus., Inc., 928 F.2d 1366,

1371 & n.7 (3d Cir. 1991).

Plaintiffs alternatively rely upon the

rule of “intra-court comity." That rule was

aptly summarized by Judge Selya in Fricker

v. Town of Foster, 596 F. Supp. 1353 (D.R.I.

1983):

While the judges of a unified

federal district court are not

constitutionally or legally bound

to march in lockstep, the seeds of

chaos are sown if a single court

prances off in sharply conflicting

directions. Lawyers and litigants

in such circumstances have little

hope of achieving the

predictability of results toward

which simplification of the

judicial process is necessarily

targeted. Thus, absent unusual or

exceptional circumstances, judges

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of coordinate jurisdiction within

a jurisdiction should follow

brethren judge’s rulings.

Id. at 1356 (citing United States v. Anaya,

509 F. Supp. 289, 293 (S.D. Fla. 1980) (en

banc), aff’d sub nom., United States v.

s- es, 685 F.2d 1272 (1llith Cir.

1982)); see also Thompson v. Waynesbora Area

ool Dist., 673 F. Supp. 1379, 1386 n.5

(M.D. Pa. 1987).

Here, invocation of the rule does not

help plaintiffs, because it is advisory

only. See Lee v. China Airlines, Inc., 669

F. Supp. 979, 981 (C.D. Cal. 1987). Since

Judge Hardy correctly decided that no

genuine issue of material fact as to the

government’s control over the operations at

Dela-Tek existed, he was not bound to

withhold summary judgment on the basis of a

fellow judge’s refusal to grant’ the

government similar relief in a different

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case presenting similar facts.* See id. (a

judge may depart from the holding of a

brother judge of the same district if he is

convinced through independent analysis that

the holding of his colleague is incorrect).

CONCLUSION

The judgment of the district court is

AFFIRMED.

Plaintiffs argue that’ the

discretionary function exception is not a

defense to this FTCA action. However, the

government declines to raise this issue in

its brief, except to comment that the

district court’s judgment did not rest

upon that theory. Accordingly, we need

not, and do not, address the merits of

that argument.

Te eT Ee

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Aguirre v. United States, No. 90-16330

REINHARDT, Circuit Judge, dissenting:

I dissent. The narrow reading of

section 414 employed by the majority is

inconsistent both with Arizona case law and

with decisions by federal courts applying

the law of other states that have adopted

section 414. Under the test set forth in

section 414, it is clear that the government

retained sufficient control over the

manufacturing process at Dela-Tek to subject

it to liability for plaintiffs’ injuries.

I strongly disagree with the majority’s

statement that the three cases on which its

holding rests are "factually

indistinguishable" from the case before us.

Each of those cases falls squarely within

the black-letter exclusions from liability

listed in comment c to section 414. In

va_v. arrett, 703 P.2d 1228 (Ariz.

App. 1985), the employers, mobile home

owners, simply told the contractor where

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they wanted the mobile home located. Id. at

1230. They did not retain any "degree of

control", Restatement (Second) of Torts §

414 cmt. c, over the manner in which the

move itself was accomplished. In Koepke v.

Carter Hawley Hale Stores, Inc., 682 P.2d

425 (Ariz. App. 1984), the supervisory

employee’s duties were limited to

"“inspect(ing}] [the] progress", Restatement

(Second) of Torts § 414 cmt. c, of the

remodeling work and placing "warning sign to

customers and barricades around construction

areas," 682 P.2d at 430. The latter

function, while indisputably related to

safety, was purely reactive and did not

entail any control over the manner in which

the remodeling work was performed. Finally,

in Martinez v. Asarco, Inc., 918 F.2d 1467

(sth Cir. 1990) (per curiam), Asarco

employees conduc*ed a tour of the smelter

for the contractor’s safety personnel, id.

at 1469, and recommended safety procedures

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"which need not necessarily be followed,"

Restatement (Second) of Torts § 414 cmt. c;

see 918 F.2d at 1467.

By contrast, under the test stated in

comment c to section 414, the government

retained significant control over’ the

details of the manufacturing process at

Dela-Tek. The government did not "ha[ve]

merely a general right to . . . inspect"

Dela-Tek’s plant for compliance with the DoD

Contractor’s Manual, Restatement (Second) of

Torts § 414 cmt. c, but it was also

authorized to bring safety problems to the

attention of Dela-Tek’s management for

corrective action. The government’s

authority was not limited "to mak{[ing)

suggestions or recommendations which need

not necessarily be followed" regarding those

safety problems, ia. 3 rather, it was

contractually empowered to mandate necessary

corrective measures. In particular, the

government was require to ensure that Dela-

A-27

Tek employees used non-sparking tools when

working with explosive materials. And the

government did not "ha([ve} merely the right

to prescribe alterations and

deviations," id.; it also had the right to

set deadlines for the implementation of

corrective measures and to ensure that Dela-

Tek met those deadlines. In summary, under

the contract between the government and

Dela-Tek, Dela-Tek was "not entirely free to

do the work in [its] own way." Id. The

condition precedent for the rule of

liability set forth in section 414 is

therefore met.

Of the cases cited by the majority, the

one most similar to the case before us is

McMichael v. United States, 751 F.2d 303

(8th Cir. 1985), in which the court found

that the government had retained control

over the manner and details of the

contractor’s work. The court listed five

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factors that contributed to its conclusion,

three of which are present here:

1) the hiring of an independent

contractor to perform ultra-

hazardous work; 2) promulgation of

detailed safety requirements and

incorporation of them into the

contract; 3) express reservation

of continuous inspection authority

to ensure compliance with these

requirements; 4) the continuous

presence of three government

inspectors on the job for the

explicit purpose of insuring

compliance with safety and quality

requirements; and 5) the failure

to perform the required

inspections or to take action when

violations were observed.

751 F.2d at 309-10. The fact that the

government’s contractual authority to

inspect Dela-Tek’s munitions plant’ was

quarterly rather than continuous does not,

in my view, require a different result here

than in McMichael. Where the government has

incorporated detailed safety requirements

into a contract and has-'~ reserved the

authority to mandate compliance with those

requirements, to allow it to evade liability

for negligent failure to ensure compliance

xe

A-29

we the simple expedite of periodic rather

than continuous inspection would frustrate

the intent of section 414. That section

makes clear that the "degree of control"

required for liability is not a function of

the frequency of inspection -- or indeed of

the authority to inspect at all -- but

rather of the particularity with which the

work is prescribed -- the extent to which

the contractor "is not entirely free to do

the work in his own way."

The remaining federal cases cited by

the majority are not to the contrary. In

Bloom _v. Waste Management, Inc., 615 F.

Supp. 1002 (E.D. Pa. 1985), aff'd, 800 F.2d

1131 (3d Cir. 1986), the United States

escaped liability because the employee

assigned to the job site was’ merely

responsible for monitoring the progress of

the contractor’s work. The fact that the

employee felt that he had "a general right

to order the work stopped," Restatement

A-30

(Second) of Torts § 414 cmt. c, "if he

perceived a life-threatening hazard," 615 F.

Supp. at 1008, did not constitute retention

of control within the meaning of section

414.

As to Lathers v. Penguin Indus., Inc.,

687 F.2d 69 (5th Cir. 1982), the majority’s

conclusion that that case presents

“factually analogous circumstances" is quite

simply irrelevant. Texas, in which the

incident at issue in Lathers occurred, did

not adopt the Restatement version of the

rule set forth in section 414 until 1985.

Redinger v. Living, Inc., 689 S.W.2d 415,

418 (Texas 1985). Accordingly, whether or

not the facts of Lathers are "analogous",

that case may not serve as the basis for a

refusal to impose liability upon the United

States here.

As in McMichael, the government’s

promulgation of detailed safety requirements

and its express reservation of authority to

A-31

mandate compliance with those requirements

constituted retention of control over the

manufacturing process at Dela-Tek within the

meaning of section 414. Accordingly,

plaintiffs are entitled to the opportunity

to demonstrate that the government failed to

exercise that control with the reasonable

care required by law, and that’ the

government’s negligence caused their

injuries. The majority’s refusal to allow

them to do so is inconsistent with the

provisions of the Restatement of Torts, the

requirements of Arizona law, and the mandate

of the Federal Tort Claims Act.

A-32

NOT FOR PUBLICATION

IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BEATRICE AGUIRRE, Personal

Representative of the

Estate of ALFREDO AGUIRRE,

Deceased, and PATRICK ANTONE No. 90-16330

Plaintiffs-Appellants, DC No. CV-89-

00467-CLH

Vv.

UNITED STATES OF AMERICA and AMENDED

UNITED STATES DEPARTMENT OF MEMORANDUM*#

DEFENSE,

Defendants-Appellees.

me ee ee ee ee ee ee ee ee ee”

Appeal from the United States District Court

for the District of Arizona

Charles L. Hardy, District Judge, Presiding

Argued and Submitted November 5, 1991

Before: POOLE, REINHARDT and FERNANDEZ,

Circuit Judges.

Plaintiffs Beatrice Aguirre and Patrick

Antone appeal the district court’s grant of

summary judgment in favor of the government

in this Federal Tort Claims Act case.

Plaintiffs contend that summary judgment was

A-33

improper because Arizona law allows recovery

under these circumstances and because the

district judge erroneously failed to follow

the lead of a brother judge who had

previously refused to grant the government’s

motion for summary judgment in a factually

Similar case. The district court had

jurisdiction pursuant to 28 U.S.C. § 1331;

we have jurisdiction over this’ appeal

pursuant to 28 U.S.C. § 1291. We affirm.

FACTS AND PROCEEDINGS

I. The Accident

On May 19, 1986 an explosion at a

Coolidge, Arizona munitions manufacturing

plant owned by Dela-Tek, Inc. killed

employee Alfredo Aguirre and injured

employees Patrick Antone and Rodolfo Chavez.

All three were employed as chemical

processors/blenders and their

responsibilities included operating a mixing

machine that created a magnesium teflon

compound used in M-22 cartridges. At the

A-34

time of the accident, Aguirre and Antone had

been cleaning a blending machine. The

explosion apparently resulted from a spark

generated when one of the blenders attempted

to scrape dry chemical residue from the

sides of a mixer with a carbon-steel

screwdriver. No supervisor was present

during cleaning operations that morning and

none observed the cause of the explosion.

Aguirre, Antone and Rodolfo Chavez were

instructed to use copper scrapers and

acetone to remove the chemical residue from

the blending machine surfaces. The men were

also told that residue was to be scraped off

only if it was wet. On the morning of the

accident, blending operations were

terminated because air conditions that day

included low relative humidity. Stopping a

blend before it is completed and then

attempting to clean the machine was

considered more dangerous than continuing

the blending process until a completed mix

A-35

Was ready. As a result, when the low

humidity conditions were discovered, the

blenders continued their operations until

they had finished the mix that had been in

progress.

II. Dela-Tek’s Safety Procedures

At the time of the accident Ruben

Chavez was responsible for supervising

Aguirre’s and Antone’s work. Chavez had

nineteen years of experience in chemical

processing and ordinance manufacturing, and

was responsible for insuring that’ the

blenders/processors were properly trained to

do their jobs. To insure that’ the

blender/processors learned the tasks

associated with their jobs, Ruben Chavez

generally required them to observe how he

performed the blending operation and the

subsequent cleaning process over a several-

week period. Chavez trained Rodolfo Chavez

and Antone by this method, but not Aguirre.

3

$

a

;

A-36

Blender/processors also were to receive

a short introductory safety lecture upon

commencing employment at the plant; Antone

never received such a lecture. On several

occasions, Ruben Chavez and another

supervisor, Jack Moore, explained to Antone

that the use of protective smocks and stats

were essential in assuring safety in the

plant. Antone received a copy of Dela-Tek’s

employee handbook, but was never given a

copy of the company’s safety handbook and no

supervisor ever reviewed with him the

contents of the employee manual. Aguirre

received no written safety instructions

whatsoever.

Dela-Tek provided wrist and leg stats,

smocks, fire-retardant coveralls, and

protective goggles for blenders/processors

to wear during - mixing and cleaning

operations. In addition, the company’s

safety manager, Frank Corral, held periodic

safety meetings and distributed safety

A-37

information sheets to employees. The

company maintained a safety suggestion box

and maintained an employee safety committee

that met once per week. The employee

handbook included some explanation of Dela-

Tek’s safety rules and policies, and each

employee was required to sign ae form

entitled "Acceptance of Working Conditions

and Plant Safety Rules." Antone signed such

a form, but Aguirre did not.

III. Dela-Tek’s Contract with the Department

of Defense

At the time of the accident, Dela-Tek

was engaged in the fabrication of various

Ordinance for the Department of Defense

pursuant to two government contracts. The

contracts included several provisions

dealing with safety requirements at the

Coolidge manufacturing facility. The

relevant provisions made clear that day-to-

day responsibility for ensuring safety at

the production facility remained with Dela-

A-38

Tek and specifically mandated that Dela-Tek

obey any applicable federal or local safety

laws. The contracts also required the

Department of Defense and Dela-Tek to

specifically identify and select other

applicable safety guidelines.' The parties

agreed that Dela-Tek would comply with the

"Safety Precautions for Ammunition and

Explosives." This clause, which is required

by regulation to be included in all

contracts involving ammunition or

explosives, required Dela-Tek to comply with

the DoD Contractor’s Manual for Ammunition,

Explosives and Related Dangerous Materials.

The Safety Precautions for Ammunition

and Explosives authorized the government to

' The contract provided as follows:

**The Contracting Officers shall not

reference in the schedule of the contract

ammunition and explosive safety

publications of DoD components in their

entirety. Contracting Officers’. shall

select and identify in the schedule of the

contract applicable paragraphs or portions

of such publications.

A-39

inspect Dela-Tek’s plant for compliance with

the Contractor’s Manual safety guidelines.

The Department of Defense Specialized Safety

Manual guides the government in its conduct

of these periodic safety inspections. The

Specialized Safety Manual authorizes

government safety inspectors to provide

technical advice and assistance to

contractors on safety issues, including

helping a contractor implement any

corrective actions deemed necessary as a

result of the quarterly inspection.

When an inspector found a condition

that violated the safety provision of the

contracts, the inspector was to decide

whether increased surveillance by the

government was necessary and whether the

contractor must attempt to correct the

problen. In the case of a particularly

serious safety problem, the government

inspector was authorized to set a specific

time frame within which the problem must be

A-40

corrected. Once a corrective measure was

mandated, the inspector was required to

follow up and ensure that the contractor

implemented the change in procedure or

operation on a timely basis. The covernment

was authorized to suspend or cancel the

contracts if Dela-Tek was repeatedly or

constantly out of compliance with safety

guidelines.

The government’s contracts with Dela-

Tek provided that government safety

inspectors could visit its munitions plant

on a quarterly basis. Included in the items

to be inspected were Dela-Tek’s written

safety guidelines and_ procedures; the

plant’s in-house safety program; facility

construction and maintenance; equipment

design, maintenance and operation; control

of hazardous materials; operational

performance and its consistency with

contractually required procedures; and the

Status of safety deficiencies noted by

A-41

inapusteen on prior visits. The Specialized

Safety Manual also required the government

to insure that Dela-Tek employees used non-

sparking tools when working with explosive

materials.

The contracts did not expressly give

the government power to supervise Dela-Tek’s

safety program on a day-to-day basis. The

government did not intervene in personnel

decisions at the plant, train Dela-Tek

employees, specify sources for the

acquisition of equipment or _ production

materials, select subcontractors, or prepare

a safety manual for Dela-Tek’s munitions

manufacturing operations.

IV. The Government’s Inspections of the

Dela-Tek Plant

Cecille King, a government inspector,

conducted a safety survey at the Coolidge

Dela-Tek plant on March 19, 1986. This was

the last government inspection of the

facility before the fatal accident. During

this inspection, King discovered safety

A-42

problems necessitating correction within a

specific time period. King concluded that

most of Dela-Tek’s safety operating

procedures were deficient and that the

company’s safety program did not comply with

the terms of its contracts. Accordingly,

she asked the government’s administrative

contracting officer to send Dela-Tek an

official notification that corrective action

would be necessary. The contracting officer

did not send such notification. King also

conducted a pre-award safety inspection at

the Dela-Tek plant on the same date as the

quarterly safety inspection and recommended

that the company not receive any new

government contracts.

In April 1986 King made a follow-up

visit to the Dela-Tek plant. She again

determined that Dela-Tek did not have in

place adequate safety precautions and

Operating procedures. King never found

A-43

Dela-Tek in compliance with the _ safety

provisions of its contracts.

V. The McAfee Accident

On March 26, 1986, after King’s second

visit to the Dela-Tek plant, Aguirre and a

co-employee, James McAfee were injured in an

explosion in the Dela-Tek’s' facility’s

granulating room. The incident occurred

after a granulating machine used to process

magnesium teflon powder jammed and McAfee

attempted to scrape powder from the machine

with a knife.

McAfee later sued the government under

the FTCA, alleging that the government

negligently exercised control over Dela-

Tek’s safety program. Judge Earl Carroll of

the District of Arizona refused to grant the

government summary judgment in the case.

See McAfee v. United States, No. CIV-87-

2231-PHX-EHC (D. Ariz. 1989).

A-44

VI. Proceedings in the District Court

On March 14, 1989 Aguirre’s mother,

Beatrice Aguirre, and Patrick Antone filed

suit against the United States, alleging

negligence in the supervision and

enforcement of safety measures at the Dela-

Tek munitions plant that led to the May 1986

explosion. The government denied all

allegations, asserted that the plaintiffs

were contributorily negligent, and moved for

summary judgment. On April 3, 1990, Judge

Hardy granted the government’s motion for

summary judgment. Plaintiffs timely

appealed.

STANDARD OF REVIEW

We review the propriety of summary

judgment de novo. Image Technical Service,

Inc. v. Eastman Kodak Co., 903 F.2d 612, 614

(9th Cir. 1990), cert. granted, 111 S.Ct.

2823 (1991). We must determine, viewing the

evidence in the light most favorable to the

plaintiffs, whether any genuine issues of

A-45

material fact exist and whether the district

court correctly applied the relevant

substantive law. Id.

ANALYSIS

The government argues that Arizona law’

does not impose liability upon it for the

behavior of Dela-Tek.*’ The plaintiffs, on

the other hand, assert that Restatement

(Second) of Torts § 414, which has been

adopted by the Arizona courts, allow for

2? Under the Federal Tort Claims Act

the court must apply the law of the state

where the allegedly tortious behavior

occurred. See 28 U.S.C. § 1346(b);

Molsbergen v. United States, 757 F.2d

1016, 1020 (9th Cir.), cert. dismissed,

473 U.S. 934 (1985).

. As a general rule, the United

States cannot be held liable under the

FTCA for the negligence of an independent

contractor. See United States v. Orleans,

425 U.S. 807 (1976); Letnes v. United

States, 820 F.2d 1517 (9th Cir. 1987). In

this case, the plaintiffs argue that the

government itself was negligent in failing

to enforce the safety provisions in the

procurement contract and in failing to

adequately supervise its contractor in the

performance of the contract.

|

1

4

liability.‘

A-46

The government has the better

of this argument.

Restatement (Second) of Torts § 414

(hereinafter section 414) provides as

follows:

One who entrusts work to an

independent contractor, but who

retains the control of any part of

the work, is subject to liability

for physical harm to others for

whose safety the employer owes a

duty to exercise reasonable care,

which is caused by his failure to

exercise his control which

reasonable care.

Section 414 imposes liability on the

government only if it breached a duty to

ensure that Dela-Tek’s employees had a safe

place to work.* See Lewis v. N.J. Reibe

. Arizona courts follow the

Restatement of the Law in the absence of

specific authority to the contrary. See,

e.g., Tamsen v. Weber, 166 Ariz. 364, 367,

802 P.2d 1063, 1066 (Ariz. App. 1990).

> It is clear that the Lewis court’s

interpretation of section 414 applies to

an employer of an independent contractor.

See Manhattan-Dickman Constr. Co. vy.

Shawler, 558 P.2d 894, 898 (Ariz. 1976);

Welker v. Kennecott Copper Co., 403 P.2d

330, 340 (Ariz. App. 1965).

A-47

ises ne., 626 32.28 3, 9. tapas.

1992). The scope of that duty "extends only

so far as the amount of control the

(employer) retains over the work of the

(independent] contractor." Id. Thus, the

government need not have exercised day-to-

day control over Dela-Tek’s operations to be

held responsible for the plaintiffs’

injuries. However, liability will attach if

the government negligently exercised

whatever control over Dela-Tek’s operations

that it had. Id. at 12, 13. The question

whether the government owed a duty to Dela-

Tek’s employees is one of law, id. at 8,

reviewable by this court de novo. Salve

Regina College v. Russell, 11 S.Ct. 1217,

1221 (1991). The question whether the

government breached its duty is one of fact.

Lewis, 825 P.2d at 10.

Clearly the government had a duty of

care to the employees of Dela-Tek. The

government’s contract with Dela-Tek

A-48

obligated the Department of Defense to

ensure that Dela-Tek complied with certain

safety standards. Specifically, the

contract required the government to perform

periodic safety inspections at the Coolidge

munitions plant; to timely warn Dela-Tek of

any failure to adhere to the. safety

standards and of the consequences that would

entail; and to take remedial measures,

including ceasing performance under the

contract, if Dela-Tek failed to bring its

operations into compliance with the safety

standards. The issue, however, is whether

the government breached a duty. We agree

with the district court’s factual conclusion

that it did not. The government inspected

the Coolidge plant on several occasions,

warned Dela-Tek that it was not in

compliance with the contract’s safety

requirements, and ultimately declined to

renew its procurement relationship with the

company.

A-49

The plaintiffs’ citation to Welker v.

Kennecott Copper Co., 403 P.2d 330 (Ariz.

App. 1965, and Fluer Corp. v. Sykes, 413

P.2d 270 (Ariz. App. 1966), is not helpful.

In both of those cases the employer of the

independent contractor exercised

substantially more control over the

activities of the contractor. More

importantly, Lewis makes clear that the

basis upon which the employer was held

liable for harm to the’ contractor’s

employees - the exercise of day-to-day

control - is no longer the sine qua non of

section 414 1 bility in Arizona. The

Eighth Circuit s decision in McMichael v.

United States, 751 F.2d 303 (1985) is

unpersuasive for the same reasons.

We agree instead with the other federal

courts that have held that the government’s

retention of a contractual obligation to

ensure compliance with safety rules does not

open the door to section 414 liability. See

RS et soak ea RES

A Pita a AL Rie cS Se ean te

A-50

Bloom v. Waste Management, Inc. 615 F.Supp.

1002 (E.D. Pa. 1985), aff’d, 800 F.2d 1131

(3d Cir. 1986); Lathers v. Penguin Indus.,

Inc., 687 F.2d 69 (5th Cir. 1982). In both

of those cases the plaintiffs unsuccessfully

sought to hold the government liable for

harm to a contractor’s employees where the

government undertook obligations to perform

activities very similar to those mandated by

the Dela-Tek contract. In fact, Arizona law

post-Lewis adopts the approach of these

federal decisions:

Comment (c) (to section 414] does

not say that a[{n] [employer of an

independent contractor] must

control the day-to-day details of

the [independent] contractor’s

work in order to be subject to

liability. . . . Comment (c)

suggests that if the employer

reserves and exercises only the

right to inspect the construction

work to see that the contract

specifications are met while the

independent contractor controls

how and when the work is to be

done, there is probably not

sufficient retained control to

subject it to liability.

A-51

825 P.2da at 12 (quoting Moloso v. State, 644

P.2d 205, 211 (Alaska 1982) (citations

omitted)) (emphasis in original).

Even were we to hold that_ the

government breached its duty to Dela-Tek’s

employees, however, we would still affirm

the district court’s judgment. See, e.qg.,

Marino v. Vasquez, 812 F.2d 499, 508 (9th

Cir. 1987) (court of appeals may affirm on

any grounds with support in the record).

Plaintiffs have failed to demonstrate

causation between the alleged breach and the

injuries suffered by Antone and Aguirre.

Antone read the employee manual, which

discussed safety rules, and saw a safety

demonstration by his supervisor. In

addition, Aguirre and Antone were aware of

the earlier accident that injured one of

their co-workers. Thus, both men knew that

they were to use the carbon scraper when

cleaning the mixing apparatus. This

knowledge would lead any reasonable person

A-52

to conclude that use of a metal screwdriver

was improper and even dangerous. There is

no evidence in the record to indicate that

the admittedly messy conditions and lax

compliance with safety procedures at the

Dela-Tek plant caused the accident at issue

here.

Plaintiff next argues that the district

judge should have refused to grant summary

judgment in favor of the government because

another judge of the same district declined

to grant a similar motion in a different

case arising from a separate accident at the

same Dela-Tek munitions plant.°®

Plaintiffs’ theory must be rejected because

there is no constitutional or any other

requirement that a district judge adhere to

rulings of another judge of the same court.

Starbuck v. City and County of San

° In that case, McAfee v. United

States, No. CIV-87-2231-PHX-EHC, the

plaintiff was injured when he stuck a tool

into a moving granulating machine and

suffered flash-fire burns.

— ee

A-53

ancisco, 556 F.2d 450, 457 n.13 (9th Cir.

1977); see also Willner v. Budig, 848 F.2a

1032, 1035 (10th Cir. 1988) (per Wright,

Alarcon, and Hall, JJ., sitting by

designation), cert. denied, 488 U.S. 1031

(1989); Threadgill v. Armstrong World

Indus., Inc., 928 F.2d 1366, 1371 & n.7 (3d

Cir. 1991).

Plaintiffs alternatively rely upon the

rule of "“intra-court comity." That rule was

aptly summarized by Judge Selya in Fricker

Vv. Town of Foster, 596 F. Supp. 1353 (D.R.I.

1983):

While the judges of a unified

federal district court are not

constitutionally or legally bound

to march in lockstep, the seeds of

chaos are sown if a single court

prances off in sharply conflicting

directions. Lawyers and litigants

in such circumstances have little

hope of achieving the

predictability of results toward

which simplification of the

judicial process is necessarily

targeted. Thus, absent unusual or

exceptional circumstances, judges

of coordinate jurisdiction within

a jurisdiction should _ follow

brethren judge’s rulings.

*

eet:

Laan

+ MANE Stee Ee ni Ah aay

A-54

Id. at 1356 (citing United States v. Anaya,

509 F. Supp. 289, 293 (S.D. Fla. 1980) (en

banc), aff’‘d sub _nom., United States v.

zayas-Morales, 685 F.2d 1272 (1lith Cir.

1982)); see also Thompson v. Waynesbora Area

School Dist., 673 F. Supp. 1379, 1386 n.5

(M.D. Pa. 1987).

Here, invocation of the rule does not

help plaintiffs, because it is advisory

only. See Lee v. China Airlines, Inc., 669

F. Supp. 979, 981 (C.D. Cal. 1987). Since

Judge Hardy perrsetiy decided that no

genuine issue of material fact as to the

government’s control over the operations at

Dela-Tek existed, he was not bound to

withhold summary judgment on the basis of a

fellow judge’s’- refusal to grant’ the

government similar relief in a different

case presenting similar facts.’ See id. (a

: Plaintiffs argue that the

discretionary function exception is not a

defense to this FTCA action. However, the

government declines to raise this issue in

its brief, except to comment that the

A-55

judge may depart from the holding of a

brother judge of the same district if he is

convinced through independent analysis that

the holding of his colleague is incorrect).

CONCLUSION

The judgment of the district court is

AFFIRMED.

FERNANDEZ, Circuit Judge, concurs in the

result.

district court’s judgment did not rest

upon that theory. Accordingly, we need

not, and do not, address the merits of

that argument.

A-56

Aguirre v. United States, No. 90-16330

REINHARDT, Circuit Judge, dissenting:

I dissent. The narrow reading of

section 414 employed by the majority is

inconsistent both with Arizona case law and

with decisions by federal courts applying

the law of other states that have adopted

section 414. Under the test set forth in

section 414, it is clear that the government

retained sufficient control over the

manufacturing process at Dela-Tek to subject

it to liability for plaintiffs’ injuries.

I strongly disagree with the majority’s

statement that the three cases on which its

holding rests are "factually

indistinguishable" from the case before us.

Each of those cases falls squarely within

the black-letter exclusions from liability

listed in comment c to section 414. In

Cordova v. Parrett, 703 P.2d 1228 (Ariz.

App. 1985), the employers, mobile home

owners, simply told the contractor where

A-57

they wanted the mobile home located. Id. at

1230. They did not retain any "degree of

control", Restatement (Second) of Torts §

414 cmt. c, over the manner in which the

move itself was accomplished. In Koepke v.

Carter Hawley Hale Stores, Inc., 682 P.2d

425 (Ariz. App. 1984), the supervisory

employee’s duties were limited to

"inspect({ing] [the] progress", Restatement

(Second) of Torts § 414 cmt. c, of the

remodeling work and placing "warning sign to

customers and barricades around construction

areas," 682 P.2d at 430. The latter

function, while indisputably related to

safety, was purely reactive and did not

entail any control over the manner in which

the remodeling work was performed. Finally,

in Martinez v. Asarco, Inc., 918 F.2d 1467

(9th Cir. 1990) (per curiam), Asarco

employees conducted a tour of the smelter

for the contractor’s safety personnel, id.

at 1469, and recommended safety procedures

2A RN MET he AiO aire ett SPARED BERS EG en Ba On

A-58

"which need not necessarily be followed,"

Restatement (Second) of Torts § 414 cmt. c;

see 918 F.2d at 1467.

By contrast, under the test stated in

comment c to section 414, the government

retained significant control over’ the

details of the manufacturing process at

Dela-Tek. The government did not "ha[ve]

merely a general right to . . . inspect"

Dela-Tek’s plant for compliance with the DoD

Contractor’s Manual, Restatement (Second) of

Torts § 414 cmt. cc, but it was also

authorized to bring safety problems to the

attention of Dela-Tek’s management’ for

corrective action. The government’s

authority was not limited "to mak[ing])

Suggestions or recommendations which need

not necessarily be followed" regarding those

safety problems, 34.3 rather, it was

contractually empowered to mandate necessary

corrective measures. In particular, the

government was require to ensure that Dela-

A-59

Tek employees used non-sparking tools when

working with explosive materials. And the

government did not "ha[{ve] merely the right

‘ ‘ ° to prescribe alterations and

deviations," id.; it also had the right to

set deadlines for the implementation of

corrective measures and to ensure that Dela-

Tek met those deadlines. In summary, under

the contract between the government and

Dela-Tek, Dela-Tek was "not entirely free to

do the work in [its] own way." Id. The

condition precedent for the rule of

liability set forth in section 414 is

therefore met.

Of the cases cited by the majority, the

one most similar to the case before us is

McMichael v. United States, 751 F.2d 303

(8th Cir. 1985), in which the court found

that the government had retained control

over the manner and details of the

contractor’s work. The court listed five

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A-60

factors that contributed to its conclusion,

three of which are present here:

1) the hiring of an independent

contractor to perform ultra-

hazardous work; 2) promulgation of

detailed safety requirements and

incorporation of them into the

contract; 3) express reservation

of continuous inspection authority

to ensure compliance with these

requirements; 4) the continuous

presence of three government

inspectors on the job for the

explicit purpose of insuring

compliance with safety and quality

requirements; and 5) the failure

to perform the required

inspections or to take action when

violations were observed.

751 F.2d at 309-10. The fact that the

government’s contractual authority to

inspect Dela-Tek’s munitions plant was

quarterly rather than continuous does not,

in my view, require a different result here

than in McMichael. Where the government has

incorporated detailed safety requirements

into a contract and has’ reserved the

authority to mandate compliance with those

requirements, to allow it to evade liability

for negligent failure to ensure compliance

A-61

by the simple expedite of periodic rather

than continuous inspection would frustrate

the intent of section 414. That section

makes clear that the "degree of control"

required for liability is not a function of

the frequency of inspection -- or indeed of

the authority to inspect at all -- but

rather of the particularity with which the

work is prescribed -- the extent to which

the contractor "is not entirely free to do

the work in his own way."

The remaining federal cases cited by

the majority are not to the contrary. In

Bloom _v. Waste Management, Inc., 615 F.

Supp. 1002 (E.D. Pa. 1985), aff’d, 800 F.2d

1131 (3d Cir. 1986), the United States

escaped liability because the employee

assigned to the job site was’ merely

responsible for monitoring the progress of

the contractor’s work. The fact that the

employee felt that he had "a general right

to order the work stopped," Restatement

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A-62

(Second) of Torts § 414 cmt. c, "if he

perceived a life-threatening hazard," 615 F.

Supp. at 1008, did not constitute retention

of control within the meaning of section

414.

As to Lathers v. Penguin Indus., Inc.,

687 F.2d 69 (5th Cir. 1982), the majority’s

conclusion that that case presents

"factually analogous circumstances" is quite

Simply irrelevant. Texas, in which the

incident at issue in Lathers occurred, did

not adopt the Restatement version of the

rule set forth in section 414 until 1985.

Redinger v. Living, Inc., 689 S.W.2da 415,

418 (Texas 1985). Accordingly, whether or

not the facts of Lathers are "analogous",

that case may not serve as the basis for a

refusal to impose liability upon the United

States here.

As in McMichael, the government’s

promulgation of detailed safety requirements

and its express reservation of authority to

A-63

mandate compliance with those requirements

constituted retention of control over the

manufacturing process at Dela-Tek within the

meaning of section 414. Accordingly,

plaintiffs are entitled to the opportunity

to demonstrate that the government failed to

exercise that control with the reasonable

care required by law, and that’ the

government’s negligence caused their

injuries. The majority’s refusal to allow

them to do so is inconsistent with the

provisions of the Restatement of Torts, the

requirements of Arizona law, and the mandate

of the Federal Tort Claims Act.

A-64

NOT FOR PUBLICATION

IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BEATRICE AGUIRRE, Personal

Representative of the

Estate of ALFREDO AGUIRRE,

Deceased, and PATRICK ANTONE No. 90-16330

Plaintiffs-Appellants, DC No. CV-89-

me ee ee ee ee eee ee ee ee”

'

00467-CLH

Vv.

UNITED STATES OF AMERICA and ORDER

UNITED STATES DEPARTMENT OF

DEFENSE,

Defendants~-Appellees.

Before: POOLE, REINHARDT and FERNANDEZ,

Circuit Judges.

The memorandum disposition filed March

3, 1992 is amended as follows:

The test beginning with the second full

paragraph on page 9 through page 11

(including existing footnotes 5 and 6) is

deleted and replaced with the following:

Section 414 imposes liability

on the government only if it

breached a duty to ensure that

A-65

Dela-Tek’s employees had a safe

place to work.>

See Lewis Vv. N.J. Riebe

Enterprises, Inc., 825 P.2d 5, 9

(Ariz. 1992). The scope of that

duty “extends only so far as the

amount of control the [employer]

retains over the work of the

{[ independent } contractor." Id,

Thus, the government need not have

exercised day-to-day control over

Dela-Tek’s operations to be held

responsible for the plaintiffs’

injuries. However, liability will

attach if the government

negligently exercised whatever

control over Dela-Tek’s operations

that it had. Id. at 12, 13. The

question whether the government

owed a duty to Dela-Tek’s

employees is one of law, id. at 8,

reviewable by this court de novo.

ina ege _v. Russ ,

111 S.Ct. 1217, 1221 (1991). The

question whether the government

breached its duty is one of fact.

ig. a© i060.

Clearly the government had a

duty of care to the employees of

Dela-Tek. The government’s

contract with Dela-Tek obligated

the Department of Defense to

ensure that Dela-Tek complied with

5

It is clear that the Lewis court’s

interpretation of section 414 applies to

an employer of an independent contractor.

en- : Co.

V.

Shawler, 558 P.2d 894, 898 (Ariz. 1976);

Vv , 403 P.2da

330,

340 (Ariz. App. 1965).

A-66

certain safety standards.

Specifically, the contract

required the government to perform

periodic safety inspections at the

Coolidge munitions. plant; to

timely warn Dela-Tek of any

failure to adhere to the safety

standards and of the consequences

that would entail; and to take

remedial measures, including

ceasing performance under’- the

contract, if Dela-Tek failed to

bring its operations into

compliance with the safety

standards. The issue, however, is

whether the government breached

this duty. We agree with the

district court’s factual

conclusion that it did not. The

government inspected the Coolidge

plant on several occasions, warned

Dela-Tek that it was not in

compiiance with the contract’s

safety requirements, and

ultimately declined to renew its

procurement relationship with the

company.

The plaintiffs’ citation to

Welker _v. Kennecott Copper Co.,

403 P.2d 330 (Ariz. App. 1965),

and Fluer Corp. v. Sykes, 413 P.2d

270 (Ariz. App. 1966), is not

helpful. In-both of those cases

the employer of the independent

contractor exercised substantially

more control over the activities

of the contractor. More

importantly, Lewis makes clear

that the basis upon which the

employer was held liable for harm

to the contractor’s employees -

the exercise of day-to-day control

- is not longer the sine qua non

A-67

of section 414 liability in

Arizona. The Eighth Circuit’s

decision in McMichael v. United

States, 751 F.2d 303 (1985) is

unpersuasive for the same reasons.

We agree instead with the

other federal courts that have

held that the government’s

retention of a contractual

obligation to ensure compliance

with safety rules does not open

the door to section 414 liability.

See Bloom _v. Waste Management,

Inc., 615 F. Supp. 1002 (E.D. Pa.

1985), aff’d, 800 F.2d 1131 (3d

Cir. 1986); Lathers v. Penguin

Indus., Inc., 687 F.2d 69 (5th

Cir. 1982). In both of those

cases the plaintiffs

unsuccessfully sought to hold the

government liable for harm to a

contractor’s employees where the

government undertook obligations

to perform activities very similar

to those mandated by the Dela-Tek

contract. In fact, Arizona law

post-Lewis adopts the approach of

these federal decisions:

Comment (c) [to section

414] does not say that

a(n) [employer of an

independent contractor]

must control the day-to-

day details of the

findependent }

contractor’s work in

order to be subject to

liability. . . . Comment

(c) suggests that if the

employer reserves and

exercises only the right

to inspect the

lineal

A-68

construction work to see

that the contract

specifications are met

while the independent

contractor controls how

and when the work is to

be done, there is

probably not sufficient

retained control to

subject it to liability.

825 P.2d at 12 (quoting Moloso v.

State, 644 P.2d 205, 211 (Alaska

1982) (citations omitted)

(emphasis in original).

Even were we to hold that the

government breached its duty to

Dela-Tek’s employees, however, we

would still affirm the district

court’s judgment. See, e.g.,

j v. Vasquez, 812 F.2d 499,

508 (9th Cir. 1987) (court of

appeals may affirm on any grounds

with support in the _ records).

Plaintiffs have failed to

demonstrate causation between the

alleged breach and the injuries

suffered by Antone and Aguirre.

Antone read the employee manual,

which discussed safety rules, and

saw a safety demonstration by his

supervisor. In addition, Aguirre

and Antone were aware of the

earlier accident that injured one

of their co-workers. Thus, both

men knew that they were to use the

carbon scraper when cleaning the

mixing apparatus. This knowledge

would lead any reasonable person

to conclude that use of a metal

screwdriver was improper and even

dangerous. There is no evidence

in the record to indicate that. the

|

SS

A-69

admittedly messy conditions and

lax compliance with safety

procedures at the Dela-Tek plant

caused the accident at issue here.

Judge Fernandez concurs in the result of the

amended memorandum disposition.

Judge Poole and Judge Fernandez have

voted to deny the petition for rehearing.

Judge Reinhardt has voted to grant the

petition for rehearing. Accordingly, the

petition for rehearing is DENIED.

A-70

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

Date: April 2, 1990

BEATRICE AGUIRRE,

)

et al., )

)

Plaintiff, ) No. CIV 89-467

) PHX CLH -

vs. )

)

THE UNITED STATES OF )

AMERICA, )

)

Defendant. )

)

This matter having been under

advisement, IT IS ORDERED granting the

defendant’s motion for summary judgment.

For comparable cases, see Lathers v. Penquin

Industries, Inc., 687 F.2d 69, 73 (5th Cir.

1982) and Bloom v. Waste Management, Inc.,

615 F. Supp. 1002 (D.C. Pa. 1985), aff’d 800

F.2d 1133 (2d Cir. 1986).

/s/ Charles L. Hardy

CHARLES L. HARDY

United States District Judge

cc: all counsel of record

A=-71

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

JAMES L. MCAFFEE and

SHERRIE L. MCAFFEE,

husband and wife,

Plaintiff,

No. CIV 87-2231

vs. PHX EHC

UNITED STATES OF AMERICA, ORDER

Defendant.

me ee ee eee ee ee ee”

The defendant United States has moved

for summary judgment in this Federal Tort

Claims Action. The Court having fully heard

and considered this’ motion, finds as

follows:

Plaintiff, JAMES L. MCAFFEE was

employed as a chemical processor by Dela-Tek

Inc. Dela-Tek was operating a facility in

Coolidge, Arizona under a contract with the

United States Government for the purpose of

manufacturing munitions for the Department

of Defense. Plaintiff was injured as a

A-72

result of an explosion which occurred on

March 26, 1986 at the plant site.

Plaintiff filed a complaint against the

United States on December 30, 1987 under the

Federal Tort Claims Act, 28 U.S.C. §§ 2671

and 1346(b) alleging negligent acts and

omissions of the United States, its agents,

employees, and representatives.

According to the Department of Defense

Specialized Safety Manual DLAM 8280.1, all

contracts involving the development,

testing, storage, manufacture, modification,

renovation, demilitarization, packaging,

transportation, handling, disposal,

inspection, repair, or any other use of

ammunition and explosives require

Specialized safety surveillance and

contractor compliance with the Department of

Defense Contractor’s Safety Manual _ for

Ammunition, Explosives and Related Dangerous

Materials.

A-73

Specialized safety surveillance

includes both safety surveys and specialized

safety visits. Safety surveys are conducted

both pre-award and post-award, with the

post-award surveys being complete reviews of

all contract-related safety program

elements, facilities, and operations,

including the _ following: safety, fire

prevention, occupational health, and

personal protective equipment programs;

operational procedures and compliance with

contract safety requirements; facilities

construction and maintenance, including fire

protection systems, equipment design,

maintenance, and operation; operational

performance and compliance with written

procedures; protection of Government

property and/or equipment whether in use or

storage; control of hazardous materials and

disposal/disposition procedures; and status

of deficiencies noted on previous surveys.

A-74

Specialized safety visits are conducted

to address specific problems or situations.

They are usually for a short period of time

and are not so extensive as safety surveys.

The Safety Specialist is required to

request contractor corrective action when a

deficiency in contract compliance is found.

The corrective action that is taken for

violations of the contract safety

requirements is determined by the Safety

Specialists as set out in the Specialized

Safety Manual. Each deficiency must be

objectively analyzed prior to selection of a

corrective action method. The analysis must

consider timeliness of desired actions,

relative importance, worst case potential

for mishap, prior responsiveness of the

contractor, and repetitiveness of similar

deficiencies.

There are three methods of corrective

action that may be utilized depending upon

the criticality of the deficiency.

A-75

Method 1 may be implemented when only

minor deficiencies are noted, the contractor

takes satisfactory on-the-spot corrective

action, and no follow-up is deemed

necessary. No further action is required

under this’~ method, however, types of

deficiencies noted should receive increased

emphasis on the next scheduled survey.

Method 2 may be implemented when only

minor deficiencies are noted, but where

contractor corrective action cannot be

completed prior to the end of the survey.

Under Method 2, the contractor must receive

a letter within ten (10) days after the

completion of the safety survey setting

forth the unresolved deficiencies/contract

standards violated.

Finally, Method 3 may be executed when

deficiencies of a serious nature are noted,

an excessive number of deficiencies exist,

previous contractor corrective actions have

been inadequate, or there is a history of

eeaaes

repetitive deficiencies. Under Method 3,

the contractor must receive a letter within

ten (10) days setting forth all noted

deficiencies and recommend actions and

specifically reference the contract safety

requirement violated. A suspense date for

contractor response will be coordinated with

the administrative contracting officer

(ACO), who will then monitor the problem and

take necessary action for resolution.

The Federal Tort Claims Act, 28 U.S.C.

§ 1346(b), authorizes suits against the

United States for money damages for:

. « + personal injury or death

caused by the negligent or

wrongful act or omission of any

employee of the Government while

acting within the scope of his

office or employment, under

circumstances where the United

States, if a private person, would

be liable to the claimant in

accordance with the law of the

place where the act or omission

occurred.

28 U.S.C. § 1346(b).

Duty of Care

A-77

According to the RESTATEMENT (SECOND)

OF TORTS § 414, which has been applied to

Arizona case law,

{[oO]ne who entrusts work to an

independent contractor, but who

retains the control of any part of

the work, is subject to liability

for physical harm to others for

whose safety the employer owes a

duty to exercise reasonable care,

which is caused by his failure to

exercise his control with

reasonable care.

See, Cordova v. Parrett, 146 Ariz. 79, 703

P.2d 1228, (App.1985); Koepke v. Carter

Hawley Hale Stores, Inc., 140 Ariz. 420, 682

P.2d 425 (App. 1984).

RESTATEMENT (SECOND) OF TORTS § 414,

Comment a, states in part:

The employer may, however, retain

a control less than that which is

necessary to subject him to

liability as master. He may

retain only the power to direct

the order in which the work shall

be done, or to forbid its being

done in a manner likely to be

dangerous to himself or others.

Such a supervisory control may not

subject him to liability under the

principles of Agency, but he may

be liable under the rule stated in

this Section unless he exercises

his supervisory control with

A-78

reasonable care so as to prevent

the work which he has ordered to

be done from causing injury to

others.

Plaintiffs contend that the Government

has retained a substantial degree of control

over Dela-Tek and its safety operations.

Plaintiffs further contend that under the

Good Samaritan Doctrine, when the Government

undertook the duty to perform the safety

surveys, it also assumed the duty to perform

it in a reasonably careful manner. The Good

Samaritan doctrine is recognized in Arizona

and is thus applicable to suits under the

Federal Tort Claims Act. Roberson v. United

States, 382 F.2d 714 (9th Cir. 1967); United

States v. Cline, 410 F2d 1337 (9th Cir.

1969).

Plaintiffs have set forth sufficient

facts to establish the existence of a

factual dispute as to the amount of control

retained by the Government in this

situation.

A-79

Di ’ Function E

According to 28 U.S.C. § 2680(b), there

is an exception to the Government’s waiver

of sovereign immunity. The applicable

exception excludes:

{a)ny 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 a

state or regulation be valid, or

based upon the exercise of

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.

28 U.S.C. § 2680(a). This so-called

"discretionary function exception" was first

addressed by the Supreme Court in Dalehite

v. United States, 346 U.S. 15, 73 S.Ct. 956

(1953). In Dalehite, fertilizer that had

been produced by private contractors under

the direction of the federal government was

loaded aboard ships destined for areas

occupied by allied forces after World War

A-80

zz. The fertilizer, which contained

ammonium nitrate, ignited. Two ships

exploded causing injury to approximately 300

individuals who filed claims for personal

injury and property damage against the

United States. The Court, although finding

that the Government had been negligent in

three different respects, held that all

three activities fell within the

discretionary function exception and thus

precluded governmental liability. The Court

stated "(t]he decisions held culpable were

all responsibly made at a planning rather

than operational level and involved

considerations more or less important to the

practicability of the Government’s

fertilizer program." Id. at 42, 73 S.Ct. at

971.

In the later case of Indian Towing Co.

v. United States, 350 U.S. 61, 76 §.ct. 122

(1955), the Supreme Court held the

Government liable for damages caused when

A-81

the plaintiff’s barge ran aground due to the

Coast Guard’s negligent operations of a

lighthouse. The Court found that while the

decision to operate the lighthouse was a

matter of discretion and thus protected,

there was no discretion to operate the

lighthouse negligently. Id. at 69, 76 S.Ct.

at 125-6. This line of reasoning is

consistent with the recent Supreme Court

case Berkovitz v. United States, U.S.

, 108 S.Ct. 1954 (1988). In Berkovitz,

plaintiff, who contracted polio after

ingesting an oral polio vaccine manufactured

by a pharmaceutical company, filed a

complaint against the United States for its

negligence in failing to follow its own

regulations and policies concerning

licensing the vaccine and testing the

particular vaccine lot from which the

plaintiff’s dose came. Here the Court

stated:

the discretionary function will

not apply when a federal statute,

A-82

regulation or policy specifically

prescribes a course of action for

an employee to follow. In this

event, the employee had no

rightful option but to adhere to

the directive.

Id. at 1958-59. The Court further stated

that "(t]he exception, properly construed,

therefore protects only governmental actions

and decisions based on considerations of

public policy. In sum, the discretionary

function exception insulates the Government

from liability if the action challenged in

the case involves the permissible exercise

of policy judgment." Id. at 1959. The act

was designed to cover only those acts that

are discretionary in nature. Where the

nature of the employee’s act is not a matter

of judgment, the exception does not apply.

In a recent Ninth Circuit opinion, the

Court found that the discretionary function

exception did not preclude the United States

Postal Service from being held liable to two

employees of a general contractor who fell

through unguarded openings in ae metal

A-83

decking on the second floor. Camozzi_ v.

Roland/Miller & Hope Consulting Group, 866

F.2d 287 (9th Cir. 1989). The Ninth

Circuit, in reversing the district court,

found that the district court’s decision was

based primarily upon a statement made by the

Court in United States v. Varig Airlines,

467 U.S. 797, 104 S.Ct. 2755 (1984). In

Varig, the Court stated that "“(wjhen an

agency determines the extent to which it

will supervise the safety procedures of

private individuals, = is exercising

discretionary regulatory authority of the

most basic kind." Id. at 819-20, 104 S.ct.

at 267-68. The Court in Camozzi, however,

found that the "[(fjailure to inspect floors

for uncovered and unguarded openings, for

example, was not the result of a policy

choice by the particular employees or agents

involved. It was simply a failure to

effectuate policy choices already made and

incorporated in the contract." Id. at 290.

Se

A-84

The Court in Camozzi relies upon its

prior decision in McGarry v. United States,

549 F.2d 587 (9th Cir. 1976). In McGarry

the United States was sued under the Federal

Tort Claims Act for the death of an employee

of an independent contractor. The Court

held that the agency "did not disassociate

itself from all matters of safety or

Gisclaim any function or concern in that

respect ... As a matter of policy, then,

the [agency] chose to retain some

responsibility over matters of employee

safety. The meeting of that responsibility

was an operational function." Id. at 591.

It concluded that the failure of government

employees to fulfill this retained

responsibility for securing compliance with

safety rules was not within the

discretionary function exception. Id.

The present situation involves policy

choices that have already been made and

incorporated in the contract. the

A-85

Government, by including the safety

regulations in the contract, has retained

some responsibility over matters of employee

safety. The policies and guidelines set

forth in the Specialized Safety Manual DLAM

8280.1 specifically prescribe a course of

action for an employee to follow upon the

discovery of safety noncompliance and

mandate the corrective action to be taken by

the Safety Specialist. The regulations and

policies concerning safety did not include

the "permissible exercise of policy judgment

that the discretionary function exception

was designed to exclude. The proscribed

action was set forth to ensure compliance

with the contract-related safety

requirements and cannot be considered a

matter of discretion.

The discretionary function exception as

set forth in 28 U.S.C. 2680(a) does not

apply to the present situation where the

action required by Governmental employees

A-86

was not a permissible exercise of policy

judgments but rather mandated according to

the Government’s departmental policies.

Genuine issues of material fact exist

regarding the actions taken, or failed to be

taken by the Government. Accordingly,

IT IS ORDERED that defendant’s Motion

for Summary Judgement is denied.

DATED this 8th day of February, 1990.

/s/

Earl H. Carroll

United States District Judge