Lewis v. United States, CIV-R-77-166-ECR.

• Decision Date: 18 August 1980
• Docket Number: No. CIV-R-77-166-ECR.,CIV-R-77-166-ECR.
• Parties: John E. LEWIS and Roseanne M. Lewis, Plaintiffs, v. UNITED STATES of America, Pershing County Water District, Defendants.
• Court: U.S. District Court — District of Nevada

501 F. Supp. 39

John E. LEWIS and Roseanne M. Lewis, Plaintiffs, v. UNITED STATES of America, Pershing County Water District, Defendants.

No. CIV-R-77-166-ECR.

United States District Court, D. Nevada.

August 18, 1980.

COPYRIGHT MATERIAL OMITTED

Robert E. Rose, Las Vegas, Nev., for plaintiffs.

Diehl, Recanzone & Evans, Fallon, Nev., for Pershing County Water District.

Mark S. Feldheim, U.S. Dept. of Justice, Washington, D. C., for United States of America.

ORDER

EDWARD C. REED, Jr., District Judge.

Plaintiff John E. Lewis (Plaintiff) was employed as a carpenter by Ray N. Bertelsen Company, Inc., (Bertelsen) in raising the elevation of and otherwise improving the Rye Patch Dam in Pershing County, Nevada. He was seriously injured when the cables holding a raised dam gate tore loose from their shackles, allowing the gate to hit him as he worked below.

Defendant United States was the owner of the facilities, which were operated and maintained by defendant Pershing County Water Conservation District (PCWCD) pursuant to a contract between said defendants. The improvements were being made by Bertelsen under a contract between it and the United States.

Plaintiff has received Nevada Industrial Insurance Act (workmen's compensation) benefits by virtue of coverage provided by Bertelsen. He has sued the United States pursuant to the Federal Tort Claims Act (28 U.S.C. §§ 1346(b), 2671-2680), alleging that the cables had been installed negligently, that the United States had been negligent in failing to properly inspect the cables and that the United States negligently failed to take proper safety precautions in connection with work being performed under the suspended dam gate. The cables themselves had been installed by PCWCD, at the United States' direction, in January 1968. The accident that injured plaintiff occurred in March 1976. The United States had inspected the dam gates at least four times in the intervening period, but did not investigate the connections of the cables to the gates because those connections were under water.

The United States has moved for a summary judgment on the ground that there is no genuine issue as to any material fact and that it is entitled to judgment as a matter of law. Points and authorities have been filed and a hearing on the motion was held on June 2, 1980.

28 U.S.C. § 1346(b) gives United States district courts jurisdiction "... of civil actions on claims against the United States, for money damages for ... personal injury ... 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." Accordingly, the law of Nevada governs the liability of the United States for its alleged negligence. McGarry v. United States, 370 F.Supp. 525 (D.Nev.1973), modified on other grounds 549 F.2d 587 (9th Cir. 1976), cert. den. 434 U.S. 922, 98 S.Ct. 398, 54 L.Ed.2d 279 (1977); see also Massachusetts Bonding Co. v. United States, 352 U.S. 128, 77 S.Ct. 186, 1 L.Ed.2d 189 (1956). Both the legislative and the decisional law of the state are considered in determining such liability. United States v. Sutro, 235 F.2d 499 (9th Cir. 1956). Thus, whether a cause of action has been alleged is controlled by state law. Nevertheless, whether a particular cause of action constitutes a claim that is excluded from coverage by the Federal Tort Claims Act is determined by federal law. In re Bomb Disaster at Roseville, Cal., on April 28, 438 F.Supp. 769 (E.D.Cal.1977). As to such exclusion, the relevant inquiry is whether federal law permits the United States to be held liable. Bramer v. United States, 595 F.2d 1141 (9th Cir. 1979).

It is apparent that Bertelsen was an independent contractor as to the Rye Patch dam project. The United States did not have such control over the methods and employees of Bertelsen as would alter this general classification.

Because the Federal Tort Claims Act limits the waiver of sovereign immunity to negligent or wrongful acts or omissions of Government employees, the United States may not be held liable for the negligence of an independent contractor or the latter's employees. Roberson v. United States, 382 F.2d 714 (9th Cir. 1967); McGarry v. United States, supra. This rule holds true even though the independent contractor is working under a federal contract, maintaining property owned by the federal government or working on a project funded by the Government. Thompson v. United States, 592 F.2d 1104 (9th Cir. 1979). Nor can the United States be held liable on a theory of absolute liability or strict liability, even when it engages in a dangerous activity; there must be damages caused by the wrongful act (fault) of an employee of the Government while acting within the scope of his employment. 28 U.S.C. § 1346(b); Laird v. Nelms, 406 U.S. 797, 92 S.Ct. 1899, 32 L.Ed.2d 499 (1972); Thompson v. United States, supra; McGarry v. United States, supra. Nevertheless, the fact that an independent contractor might have been negligent would not absolve the United States from liability under the Act if a Government employee also was negligent. Id. The complaint in the instant action alleges that plaintiff suffered injuries as a result of the negligence of the United States. It does not depend upon vicarious liability flowing from Bertelsen's negligence. "A summary judgment is proper only when there is no genuine issue of any material fact or when, viewing the evidence and the inferences which may be drawn therefrom in the light most favorable to the adverse party, the movant is clearly entitled to prevail as a matter of law." Thompson v. United States, supra, at 592 F.2d 1107. Since plaintiff is seeking to hold the United States liable for its own negligence, the Government may not be granted a summary judgment on the ground that it may not be held vicariously liable.

In order to hold the United States liable for negligence, it is necessary to show a duty on its part to the person injured, a breach of that duty by failure to act in accordance with the degree of care required by law, and an injury proximately resulting from that breach of duty; the primary question, then, is whether the United States had a duty to the plaintiff, for in the absence of duty a failure to act does not constitute negligence. McGarry v. United States, supra. The source of such duty is a matter of state law. Aretz v. United States, 604 F.2d 417 (5th Cir. 1979).

Plaintiff has alleged that the United States wrongfully permitted him to work under the suspended dam gate without any chaining or cribbing as required by the Bureau of Reclamation's own safety regulations. Further, a Bureau of Reclamation construction inspector was at the job site daily and a Bureau construction engineer was available. The United States also inspected the dam site every year and the dam gates four times prior to the accident. The position of plaintiff is that the United States assumed responsibility for safety inspection and negligently discharged that duty. The agreement between the United States and PCWCD as to operation of the dam, on the other hand, specifies that the United States assumes no responsibility for safety.

A volunteer may be held liable for negligence in rendering help, but the extent of the voluntary undertaking is one of fact. Blaber v. United States, 332 F.2d 629 (2nd Cir. 1964).

"The fact that the United States retained the right to inspect the work under construction to see that the provisions of the contract were carried out and also retained the right to stop work if they were not is not sufficient in itself to make the United States liable for damage resulting from negligence of the contractors in their performance of the contract." Kirk v. United States, 270 F.2d 110, at 116-117 (9th Cir. 1959). This is because the United States, in conducting inspections, is not undertaking to render services to the contractor; rather, it seeks only to protect its own interest in assuring that the contractor performs in accordance with the contract. Roberson v. United States, 382 F.2d 714 (9th Cir. 1967). Thus no duty arises from the inspection activities in favor of the contractor's employees. Id.; Jeffries v. United States, 477 F.2d 52 (9th Cir. 1973); Thompson v. United States, supra; McGarry v. United States, 370 F.Supp. 525 (D.Nev. 1973), modified on other grounds 549 F.2d 587 (9th Cir. 1976), cert. den. 434 U.S. 922, 98 S.Ct. 398, 54 L.Ed.2d 279 (1977). If the Government had such power and control over the work of the contractor and the contractor's employees that there was not in fact an "independent contractor", then a duty might run from the United States to those employees. United States v. Page, 350 F.2d 28 (10th Cir. 1965), cert. den. 382 U.S. 979, 86 S.Ct. 552, 15 L.Ed.2d 470 (1966); Bramer v. United States, 595 F.2d 1141 (9th Cir. 1979). Such was not the case here. Even if the inspections were performed negligently by the United States, it could not be held liable therefor, by reason of the absence of a legal duty. Id. Contractual agreement between the Government and an independent contractor concerning safety rules and regulations does not have the force of law, and therefore does not give rise to a duty under state law. McGarry v. United States, supra.

Plaintiff also contends that the United States, as owner of the Rye Patch dam, breached the landowner's duty to provide a safe place of employment to workers who are invited onto the premises. Such a duty is applicable in a Federal Tort Claims Act case. McGarry v. United States, supra. However, McGarry declares that if a contract between the Government and the contractor delegates the landowner's duty to the contractor, the Government could be held liable only on a theory of faulty contractor...