Blaber v. United States, 416

Decision Date28 May 1964
Docket NumberNo. 416,Docket 28450.,416
Citation332 F.2d 629
PartiesJane A. BLABER, as Administratrix of the goods, chattels and credits of Oliver Blaber, deceased, Alexander Hasapis, Santo Azzarello and John P. Szelwach, Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee.
CourtU.S. Court of Appeals — Second Circuit

Harry Meisnere, New York City, for appellant Jane A. Blaber, as administratrix, etc.

John B. Forrest, New York City, for appellants Alexander Hasapis and Santo Azzarello.

Jarema & Skolnick, New York City, for appellant John P. Szelwach.

Joseph P. Hoey, U. S. Atty., Eastern District of New York, for appellee, Jerome C. Ditore, Asst. U. S. Atty., of counsel.

Before SWAN, MOORE and SMITH, Circuit Judges.

SWAN, Circuit Judge.

These are consolidated appeals by four plaintiffs whose complaints were dismissed on the merits in consolidated cases tried by Judge Bruchhausen without a jury.

The actions were brought under the Federal Tort Claims Act, 28 U.S.C. § 2674, to recover damages for the death of one employee (Oliver Blaber) and for personal injuries sustained by three other employees (Hasapis, Azzarello and Szelwach) of Sylvania Corning Nuclear Corporation, Inc., in an explosion which occurred at Sylvania's laboratory in Bayside, Queens, on July 2, 1956. Only the issue of liability was tried by Judge Bruchhausen.

On the appeal plaintiffs make three contentions: (1) that the AEC had a mandatory duty to assume control of the safety operations of independent firms doing work under contract for the United States; (2) that even if no such mandatory duty is imposed by statute or by the contract here involved, nevertheless the AEC did undertake to control Sylvania's safety procedures; and (3) that in controlling Sylvania's safety programs the AEC was negligent in permitting dangerous work to be done in a burning hood and in a building that was not constructed to minimize the danger from explosions. For reasons discussed below we affirm.

Sylvania had contracted with the United States through its Atomic Energy Commission (AEC) to do research and development work. The work relevant to the present appeals had to do with the production of thorium metal by the calcium reduction of thorium oxide. The facts stated above are not disputed; nor is it disputed that Sylvania was an independent contractor and owned the building in which its work was done.

When the explosion occurred Hasapis was burning a lump of thorium. Judge Bruchhausen found (Finding 61, App. 67, 106): "The size and condition of the thorium mass and the circumstances surrounding its firing brought about the explosion and were the proximate causes thereof." This finding is not "clearly erroneous" and must stand.

There is nothing in the record to indicate that Hasapis had been instructed to burn thorium in smaller amounts than the lump he was using or been given other instructions as to burning thorium. Failure to give him instructions, if negligence, was negligence of the independent contractor. There is no contention that AEC was negligent in the selection of Sylvania to do research and development work. See Galbraith v. United States, 2 Cir., 296 F.2d 631.

AEC has the power to "make arrangements," including contracts, for promoting the peaceful uses of atomic energy. 42 U.S.C. § 2051. These arrangements "shall contain such provisions (1) to protect health, (2) to minimize danger to life or property, and (3) to require the reporting and to permit the inspection of work performed thereunder, as the Commission may determine." 42 U.S.C. § 2051(d). The contract here involved required periodic reports from Sylvania on various aspects of the work and gave the Commission the right to make inspections. The contract further provided that Sylvania was to "take all reasonable precautions in the performance of the work under this contract to protect the health and safety of employees."

Plaintiffs first contend that the Commission's power to adopt measures for the protection of the public is a mandatory duty. But the language of 42 U.S.C. § 2051 and its legislative history do not support the interpretation which the appellants claim for it. Fairly interpreted there is nothing in the statutory language to suggest that the Commission must supervise and protect against manufacturing or experimental hazards of independent contractors with whom it deals. In fact, as stated...

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    ...the RCRA is not inconsistent with the AEA in this respect. Cf. Blaber v. United States, 212 F.Supp. 95 (E.D.N.Y.1962), aff'd., 332 F.2d 629 (2nd Cir.1964) (DOE's authority to prescribe health and safety regulations is discretionary, not If application of the RCRA to Y-12 would require discl......
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