Barron v. U.S.

Decision Date27 August 1981
Docket Number79-4564,Nos. 79-4492,s. 79-4492
Citation654 F.2d 644
PartiesPatrick W. BARRON, Plaintiff/Appellant/Cross-Appellee, v. UNITED STATES of America, Defendant/Appellee/Cross-Appellant, v. MAITLAND BROTHERS COMPANY, Third-Party Defendant/Appellee.
CourtU.S. Court of Appeals — Ninth Circuit

John R. Lacy, Honolulu, Hawaii, Eloise E. Davies, Atty., Dept. of Justice, Washington, D. C., for U. S. A.

Appeal from the United States District Court for the District of Hawaii.

Before KILKENNY, SNEED and FARRIS, Circuit Judges.

SNEED, Circuit Judge:

In highly condensed form, the facts of this case are that an injured employee (Barron) of a government contractor (Maitland Brothers Company) seeks to recover his entire damages from the United States pursuant to the Federal Tort Claims Act, 28 U.S.C. §§ 2671 et seq., while the United States, if held so liable to the employee, seeks to recover from the government-contractor-employer its proper share of the total damages. The employer insists that it is not liable to any extent to the United States because of its immunity under State of Hawaii's workers' compensation law, as implemented by relevant decisional law of the State, and that if it is so liable, it is entitled to a jury trial with respect to both the extent of its liability, if any, and the amount of damages, if any, that it might be required to pay to the United States.

The district court, in that portion of its bifurcated proceedings devoted to liability, held that the employee was barred from recovering damages attributable to the fault of his government-contractor-employer from the United States and that only twenty-five percent of the employee's damages was recoverable from the United States because that was its share of the total fault. Accordingly, the district court dismissed the third party complaint of the United States against the government-contractor-employer. In the damages portion of the proceedings, the district court gave judgment in favor of the employee and against the United States in the amount of $200,762.75, one-fourth of the employee's total damages.

Both the employee and the United States appeal. The employee is contending that the United States is liable for the full amount of his damages. The United States contends that it breached no duty owed to the employee, but that if it did, and, as a consequence, is held liable for the full amount of the employee's damages, it is entitled to indemnity from the government-contractor-employer.

We hold (1) that the United States did breach a duty owed to the employee, (2) that the United States is liable to the employee for the full amount of his damages, (3) that the United States is entitled to indemnity from the government-contractor-employer, (4) that the government-contractor-employer is not bound by the district court's holdings with respect to the share of fault attributable to it, and (5) that in any proceeding brought by the United States on remand to obtain indemnity the government-contractor-employer is entitled to a jury trial with respect to its proper share of fault.

I. SOURCE OF STATEMENT OF FACTS

Because of full statement of the facts appears in the excellently written opinion of the district court, of which Judge Schwarzer was the author, and because this opinion was published as Barron v. United States, 473 F.Supp. 1077 (D.Haw.1979), we will not lengthen our opinion by again reciting the facts at length. Rather, we will address each of the issues on appeal separately and utilize such facts in our discussion that appear in that recital which we believe necessary to provide clarity. In this way we can substantially reduce what otherwise would be the necessary length of our opinion.

II. BREACH BY UNITED STATES OF DUTY OWED EMPLOYEE

We agree entirely with Parts II and III of the district court's opinion, id. at 1080-85, in which the district court, in the liability phase of its proceedings, held that the United States owed a duty to the plaintiff-appellant Barron which it breached and that Barron was not contributorily negligent. The district court's use of Hawaiian law to determine the existence of that duty and its holding that under that law a duty was imposed upon "an owner for permitting the contractor to conduct extra hazardous The hazardous nature of plaintiff's work in the trench does not appear to be disputed. The contract documents require categorically that all ditches more than four feet in depth in unconsolidated soil and all such ditches regardless of soil material if entered by personnel must be shored. The existence of that requirement alone compels a finding that work inside deep ditches is extra hazardous in the absence of special precautions.

activities without taking proper precautions," id. at 1082, are correct expositions of applicable law. Moreover, its finding (which is one of mixed law and fact) that the work being done by Barron was extra hazardous is not clearly erroneous. The district court said:

Id. at 1083. We find no error in these remarks.

Breach of this duty was found by the district court to consist of the failure by Navy officials to take steps to eliminate, through several means available under the terms of the contract, Maitland's flagrant disregard of major safety requirements, particularly those relating to the shoring of ditches such as that in which Barron was injured. The Navy's general control of the work made this failure a substantial breach of its duty. Id. at 1084. We agree.

Finally, we also hold that the district court's finding that the employee was not contributorily negligent is not clearly erroneous. Id. at 1085.

III. LIABILITY OF THE UNITED STATES FOR FULL AMOUNT OF EMPLOYEE'S DAMAGES

The district court, in Part IV of the opinion, held that Barron was "barred from recovering in this action damages attributable to Maitland" and that as a consequence, the third party complaint against Maitland by the United States must be dismissed. Id. at 1088.

We hold the district court erred. In support of its holding the district court reasoned that in Kamali v. Hawaiian Electric Co., 54 Haw. 153, 504 P.2d 861 (1972), the Supreme Court of Hawaii held that, inasmuch as workers' compensation provides the exclusive remedy available to an employee against an employer, contribution against a plaintiff's employer is not available to a third party joint tortfeasor. Maitland, the district court concluded, cannot be made to contribute to the United States, the third party joint tortfeasor in this case. Not being entitled to contribution, the United States should be liable to the injured employee only to the extent of its portion of the total fault.

In addition, the district court pointed out that its result was required by federal law. Under the Federal Tort Claims Act the United States has not waived its sovereign immunity with respect to claims based on vicarious liability. See Logue v. United States, 412 U.S. 521, 93 S.Ct. 2215, 37 L.Ed.2d 121 (1973). This result is required because the waiver of immunity extends only to wrongs by an "employee of the government," 28 U.S.C. § 1346(b), and an employee of a "contractor with the United States," 28 U.S.C. § 2671, is not an "employee of the government." It follows, the district court concluded, that in this case federal law precludes a recovery against the United States with respect to fault properly attributable to Maitland.

We have no quarrel with the authorities upon which the district court relies nor with its reading of their provisions. Our difference is that under Hawaiian law the United States as a joint tortfeasor is both jointly and severally liable to the victim of the joint tort. See Petersen v. City and County of Honolulu, 51 Haw. 484, 485, 462 P.2d 1007, 1008 (1970). This is true even when, as here, contribution as against one joint tortfeasor is barred by law. Sugue v. F. L. Smithe Machine Co., 56 Haw. 598, 546 P.2d 527 (1976). Subsequent to the district court's decision in this case this court held that the imposition of several liability by the applicable local law enabled the plaintiff injured party, an employee of a joint tortfeasor independent contractor, to recover his full damages from the United States Therefore, we hold that the employee plaintiff is not barred from recovering his entire damages from the United States. Such a recovery does not amount to the imposition of vicarious liability. The United States only is being required to answer to the full extent of its several liability as imposed by the applicable local law. We have no statutory authority to accord the United States a position more favored than that available to other joint tortfeasors under local law. Our position leaves untouched the immunity of the United States from liability for the negligent acts of an employee of an independent contractor. Liability in this case, however, rests on the local law consequences of the negligent acts of an "employee of the government." It is true these consequences are substantial and make resolution of controversies such as this case presents somewhat complicated. This, we believe, is a matter better resolved by Congress than by judicial distortion of the consequences under local law of wrongs done by employees of the United States.

when it was severally liable therefor. See Rooney v. United States, 634 F.2d 1238, 1244-45 (9th Cir. 1980) (California law); Oakley v. United States, 622 F.2d 447, 448 (9th Cir. 1980) (California law). These decisions were based on two earlier decisions. Under the California comparative fault system we had refused to restrict recovery against the United States under the Tort Claims Act to its proportionate share of fault when the injured party was not an employee of the defendant with whom the United States was a joint tortfeasor. See Rudelson v. United States, 602 F.2d 1326, 1331-33 (9th Cir. 1...

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