Bramer v. United States

• Decision Date: 05 April 1976
• Docket Number: Civ. No. 73-2709-AAH.
• Citation: 412 F. Supp. 569
• Court: U.S. District Court — Central District of California
• Parties: Saul E. BRAMER, Plaintiff, v. UNITED STATES of America, Defendant.

412 F. Supp. 569

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

Civ. No. 73-2709-AAH.

United States District Court, C. D. California.

April 5, 1976.

Gelfand, Berggreen, Feinberg & Rogers by Leo Gelfand, and William J. Gargaro, Jr., Beverly Hills, Cal., for plaintiff.

William D. Keller, U. S. Atty., Frederick M. Brosio, Jr., Asst. U. S. Atty., Chief, Civ. Div., Donald A. Fareed, Asst. U. S. Atty., Chief Trial Counsel, Los Angeles, Cal., and Jake J. Chavez, Atty., U. S. Energy Research and Development Administration, Albuquerque, N. M., for defendant.

DECISION FOR DEFENDANT UNITED STATES OF AMERICA

HAUK, District Judge.

This matter came on originally for hearing on Tuesday, March 2, 1976, at 9:30 a. m., before the Honorable A. Andrew Hauk, United States District Judge, on cross-motions for summary judgment offered by both the plaintiff and the defendant upon the issues of tort duties, if any, owed by the Government to the plaintiff and the negligence, if any, of the Government.

Both motions were denied and the matter proceeded, upon stipulation of the parties, to a bifurcated court trial on Monday, March 15, 1976, at 10:00 a. m. — jury being impermissible under the Federal Tort Claim Act, 28 U.S.C. § 2404 — upon these issues, which are essentially one issue, namely that of liability.

The further issue of damages was deferred by stipulation until the Court's ruling on liability.

The evidence consists of the admitted facts in the pretrial conference order and the affidavits and exhibits submitted by both sides in support of their respective cross-motions for summary judgment. The parties further agreed that their arguments are fully set forth in their respective memoranda in support of their motions for summary judgment and their respective memoranda of contentions of fact and law filed pretrial.

The Court having carefully considered and analyzed the facts and the law, as well as the arguments and contentions of the parties, now renders its decision and order for judgment in favor of defendant, United States of America.

PRELIMINARY

This is an action for damages against the Government under the Federal Tort Claims Act, 28 U.S.C. § 1346(b) et seq. based upon personal injuries suffered by plaintiff, Saul E. Bramer, due to the alleged negligent acts and omissions of employees of the Atomic Energy Commission, "AEC," said injuries having occurred on July 31, 1971, in the premises of Wing 9, C.M.R. Building, Los Alamos Scientific Laboratories in Los Alamos, State of New Mexico.

Federal jurisdiction and venue are properly invoked under the Federal Tort Claims Act upon the ground that the plaintiff, a citizen of the State of California, was a visitor at the Los Alamos Scientific Laboratories premises located in Los Alamos, New Mexico, said installation being run by the University of California under a contract with the United States Atomic Energy Commission, an agency of the Government, which was acting within the scope of its agency. 28 U.S.C. § 1346(b). At the time of the commencement of the action, plaintiff resided in the Central District of California. Therefore we have jurisdiction and proper venue.

FACTS

1. Plaintiff is a citizen of the United States and is a resident of the State of California, County of Los Angeles.

2. This action is brought under the provisions of the Act, commonly known as the Federal Tort Claims Act, pursuant to the provisions of 28 U.S.C. § 1346(b), and 2671 et seq.

3. Plaintiff is an employee of the Defense and Space Systems Group of TRW, Inc., hereinafter referred to as "TRW Systems," Number 1 Space Park, Redondo Beach, California.

4. The United States Atomic Energy Commission, as of July 31, 1971, was a Federal executive agency created by 42, U.S.C. § 1802(a)(1), although it was abolished and is now known as the Energy Research and Development Administration, "ERDA," which was created by the Energy Reorganization Act of 1974, Public Law 93-438, 88 Stat. 1233, 42 U.S.C. § 5801 et seq. That Act was made effective on January 19, 1975. Pursuant to this Energy Reorganization Act of 1974, all functions of the AEC relevant hereto were assumed by ERDA.

5. On or about July 26, 1971, plaintiff was sent by his employer, TRW Systems, to Los Alamos Scientific Laboratories in Los Alamos, New Mexico, hereinafter referred to as "LASL," to observe the disassembly of a Transit Radioisotope Heat Source, a capsule containing radioactive material.

6. This disassembly took place on July 31, 1971, in the premises of the laboratory located at Wing 9, C.M.R. Building, LASL, which is operated by the Regents of the University of California, hereinafter referred to as "University," under a contract with the United States Government, Contract No. W-7405-ENG-36, Modification No. 114. The building, together with the real property on which it is situated is owned by the United States Government.

7. Under its contract with the University in effect on July 31, 1971, the AEC had a contractual right to inspect the premises of Wing 9, C.M.R. Building, LASL, from the standpoint of health and safety.

8. On Saturday, July 31, 1971, plaintiff was in Wing 9 of the C.M.R. Building at LASL for the purpose of observing this disassembly. This facility contains "hot" cells, specifically built in insulated rooms with select transparent walls or windows through which observers view the examinations and procedures performed upon radioactive materials within. The Transit Radioisotope Heat Source was within a "hot" cell. Plaintiff was in a work area adjacent to the windows of the particular "hot" cell in which the radioactive material under study was being processed.

9. On July 31, 1971, while plaintiff was in the work area, a radiation leak occurred which was the result of equipment failure, and plaintiff was injured. This equipment was owned by the United States Government and was under the ultimate control of the employees of LASL, but under the immediate and operational control of the independent contractor, the University of California.

10. On or about March 26, 1973, pursuant to 28 U.S.C. § 2675 et seq., a claim was filed by plaintiff with the AEC in Albuquerque, New Mexico, for damages for personal injuries in the amount of $1,000,000.00. This claim was denied in its entirety by the AEC on July 16, 1973.

LAW

The first issue that must be resolved is whether assuming arguendo that the AEC was somehow negligent, did it owe tort duties to the plaintiff and this, in turn, will depend on the contract it had with the University. In order to resolve this issue, it is necessary to answer a couple of questions at the outset:

First, is working with radioactive materials such an "inherently dangerous" activity that under the "non-delegable duty" doctrine, the AEC had any tort duties to plaintiff which it could not delegate to the University as an independent contractor? If so, then,

Second, is there any overriding reason why the AEC should be relieved from any such "non-delegable" tort duties by reason of its contract with the University, or by reason of statutory or decisional law, or both?

There are two closely-related tort law concepts which could possibly impose upon the AEC tort duties to plaintiff that could not be passed on or delegated to the University by the contract or otherwise. The first of these is the concept that an employer is liable if it is contracting out "inherently dangerous" work or activity. Section 416 of the Restatement of Torts 2d retains in the employer a tort duty even though the contract has provisions that place upon the independent contractor the duty of protecting third persons against "inherently dangerous" activities.

The second concept is the theory of "non-delegable duty," wherein an employer, who is under a duty to do certain work carefully, cannot escape responsibility by contracting the work out to an independent contractor. Restatement of Torts 2d, § 423 and § 424. Under this "non-delegable duty" theory, the rationale is to place the tort duty and, therefore, the liability for negligence on, the employer, the party who is ultimately responsible for carrying on the activities.

The ultimate result of both of these concepts is that the employer retains the tort duties and the liabilities for negligence even though an independent contractor has been employed by contract to perform the activities.

The uncontroverted facts of the instant case demonstrate that the Government cannot avoid consideration of its possible liability under the first of these two theories. There is little question but that work with radioactive materials must be considered "inherently dangerous" when in fact the AEC and the University recognized such "inherent danger" in the contract itself.

The work must be considered "inherently dangerous" when, in fact, the University and the AEC recognized it as "inherently dangerous" as early as April 5, 1948, in their basic agreement (hereinafter "pre-1954 contract") Modification No. 19, page 29 thereof, Article XIV:

"The Commission and the Contractor recognized that, in part this work involves unusual, unpredictable, and abnormal risks."

This is further buttressed by Modification No. 114, the successor contract entered into on April 13, 1967, and in effect at the time of the incident in question on July 31, 1971 (hereinafter "post-1954 contract"), where it is provided in Article XXVIII, paragraph 1, pages 73 and 74 as follows:

"Inasmuch as the performance of the University's operations hereunder may subject employees to serious and unusual hazards with respect to which it is impossible to provide adequate protection, the University shall have the right to make payments, in addition to those provided for by Workmen's Compensation laws or other statutes or under the terms of University's employee welfare plan and policies, to or on account of employees who become disabled or die as a result of such hazards."

The Restatement view, ...