Bramer v. U.S.

• Citation: 595 F.2d 1141
• Decision Date: 16 April 1979
• Docket Number: No. 76-2131,76-2131
• Parties: Saul E. BRAMER, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 1141

595 F.2d 1141

Saul E. BRAMER, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.

No. 76-2131.

United States Court of Appeals, Ninth Circuit.

April 16, 1979.

Rehearing Denied May 16, 1979.

James L. Marable, Los Angeles, Cal., for plaintiff-appellant.

Robert E. Kopp and Thomas G. Wilson, Washington, D. C., for defendant-appellee.

Appeal from the United States District Court for the Central District of California.

Before CARTER and WALLACE, Circuit Judges, and SOLOMON, ^* District Judge.

WALLACE, Circuit Judge:

Bramer appeals from a judgment in favor of the United States in this action brought pursuant to the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671-80. He sought relief for injuries suffered in a radiation accident which occurred at a government facility. The district court concluded that although New Mexico law would impose liability under the circumstances, federal law precluded relief. In light of recent state court decisions, we find that New Mexico law now does not allow relief in the circumstances of this case. On this ground, we affirm.

I

Los Alamos Scientific Laboratory (LASL) is a nuclear research facility owned by the United States, located on United States Government land in New Mexico, and operated under the auspices of the Atomic Energy Commission (AEC). ¹ As authorized under its statutory mandate to insure the continued conduct of research, development and training in various nuclear energy fields, 42 U.S.C. § 2051(a), ² the AEC contracted with the University of California (University) for the management and operation of LASL.

Contracts authorized by section 2051(a) must 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. § 2501(d). The present contract placed the responsibility for safety precautions upon the University, and gave the AEC the right to inspect and to stop work for failure to comply with safety regulations. ³ Because of the contractual delegation of safety responsibilities to its independent contractors, the AEC apparently maintains only a very small staff to oversee this and several other contracts.

Bramer, an employee of TRW Systems, another AEC independent contractor, was sent by TRW to LASL to observe the disassembly of a device containing radioactive material. This procedure entailed the use of a "hot" cell designed to contain radioactive materials and permit manipulation from outside. On July 31, 1971, as Bramer observed the disassembly procedure from a work area adjacent to the "hot" cell, a radiation leak developed. Bramer alleges that, as a result of this accident, he inhaled radioactive plutonium.

Pursuant to the Federal Tort Claims Act, 28 U.S.C. § 2675, Bramer filed an administrative claim with the AEC for damages for personal injury. After the AEC denied this claim, Bramer commenced the present action, also pursuant to the Federal Tort Claims Act, 28 U.S.C. § 1346(b). Both parties filed motions for summary judgment in the district court. The district judge denied the motions. He then tried the issue of liability upon facts admitted in the pretrial order, and in affidavits and exhibits submitted by the parties in support of their summary judgment motions.

In his opinion, 412 F.Supp. 569, the district judge first decided that the AEC would owe a duty of care to Bramer under New Mexico law, ⁴ even though the University, the AEC's independent contractor, operated LASL and was contractually responsible for safety. The court, citing Pendergrass v. Lovelace, 57 N.M. 661, 262 P.2d 231 (1953), found that New Mexico had accepted the doctrine of the Restatement (Second) of Torts § 416 (1965), which imposes a nondelegable duty upon the employer of an independent contractor when the work involves a peculiar risk of harm. ⁵ At the time of the district court's opinion, a New Mexico intermediate appellate court had also held that this duty was owed even to employees of an independent contractor. Montanez v. Cass, 89 N.M. 32, 38, 546 P.2d 1189, 1195 (Ct.App.1975), Rev'd in part and aff'd in part sub nom. New Mexico Elec. Serv. Co. v. Montanez, 89 N.M. 278, 551 P.2d 634 (1976). ⁶

After finding that the government potentially had this nondelegable duty under New Mexico law, the district court went on to determine whether federal law would permit imposition of liability. In the district judge's view, the statute authorizing contracts such as the one involved here, 42 U.S.C. § 2051(a), Supra n.2, permits the AEC In its discretion to contract out the entire conduct of nuclear research projects, including responsibility for safety. Thus, imposition of a nondelegable duty would either interfere with or impose liability for the exercise of AEC discretion. This reasoning led the district court to enter judgment for the United States, apparently upon the grounds that 42 U.S.C. § 2051(a) either "preempted" the state nondelegable duty doctrine pursuant to the Supremacy Clause of the United States Constitution, Article VI, or made delegation of safety responsibilities a "discretionary function," and thus beyond the reach of Federal Tort Claims Act jurisdiction, 28 U.S.C. § 2680(a). ⁷

II

The district court devoted its attention principally to the question whether federal law permitted government liability in this case on a nondelegable duty theory. The premise of this inquiry was the district court's conclusion that the government would owe such a duty to Bramer under New Mexico law. In light of the subsequent decision of the New Mexico Supreme Court in New Mexico Elec. Serv. Co. v. Montanez, supra, 89 N.M. 278, 551 P.2d 634, this conclusion can no longer stand. ⁸

The plaintiff in New Mexico Electric, an electrician's helper employed by an independent contractor, was injured while climbing a power pole to disconnect secondary lines which had been installed by another independent contractor. The plaintiff apparently believed that all the lines, both primary and secondary, were dead. In fact, while the secondary lines were dead, a primary line remained "hot." This caused the plaintiff to receive a shock when he came into contact with a live "riser" wire coming from the primary wire. The riser wire had also been installed by the other independent contractor. Upholding a summary judgment for the employer of the two independent contractors, the New Mexico Supreme Court held that the duties imposed upon employers of independent contractors for the performance of inherently dangerous work, Restatement (Second) of Torts §§ 413, 416, 427 (1965), do not run to employees of an independent contractor. 89 N.M. at 281, 551 P.2d at 637. ⁹

Bramer attempts to limit New Mexico Electric to the situation in which the injured employee is working for the particular independent contractor employed to do the dangerous work which leads to the injury. But we do not believe that this limitation comports with the reasoning of the court in that case:

1. The principal reason for the development of the doctrine of liability of an employer of an independent contractor engaged in inherently dangerous work is to prevent the employer from escaping liability to others or shifting that liability to an independent contractor. In the case of industrial accidents, the vast majority are covered by Workmen's Compensation laws and to that extent the employer of the independent contractor does not escape or shift liability since the employer, in effect, pays the premium for Workmen's Compensation coverage.

2. There does not seem to be any valid reason why an employer of an independent contractor for the performance of specific work should be subjected to a greater liability than he would have if he had utilized his own employees on that particular work.

Id. at 281-82, 551 P.2d at 637-38 (quoting King v. Shelby Rural Elec. Coop. Corp., 502 S.W.2d 659, 662-63 (Ky.1973), Cert. denied, 417 U.S. 932, 94 S.Ct. 2644, 41 L.Ed.2d 235 (1974)). In our view, these reasons extend to the present situation, in which Bramer was employed by an independent contractor other than the one actually performing the dangerous work. The government pays the premium for Bramer's Workmen's Compensation coverage just as it pays the premium for employees of the University. Thus, the government does not "escape liability." Here too, there seems no valid reason why we should not apply the second rationale, which "indicates (that) an employer's liability to employees of independent contractors should not be greater than the employer's liability to his own employees." Fresquez v. Southwestern Indus. Contractors & Riggers, Inc., 89 N.M. 525, 530, 554 P.2d 986, 991 (Ct.App.), Cert. denied, 90 N.M. 8, 558 P.2d 620 (1976). ¹⁰

One further reason compels us to reject Bramer's attempted limitation of New Mexico Electric. In that case, although the injured plaintiff was actually doing the dangerous work, it was also alleged that the accident was caused by the negligence of the independent contractor which had originally installed the secondary and "riser" wires. The court found a duty running from this other independent contractor to the plaintiff, New Mexico Elec. Serv. Co. v. Montanez, supra, 89 N.M. at 280-81, 551 P.2d at 636-37, but still no duty was imposed upon the employer of the two independent contractors. Here Bramer's position with respect to the University and the government is very similar to that of the New Mexico Electric plaintiff with respect to the other independent contractor and the general employer. Thus, absent a limiting interpretation of New Mexico Electric by the courts of New Mexico, we cannot accept Bramer's suggested limitation here.

We conclude that New Mexico law would not impose upon the government a nondelegable duty running to Bramer. ¹¹ Therefore, he cannot prevail in his claim under the Federal Tort Claims Act,...