McGarry v. U.S.
| Citation | 549 F.2d 587 |
| Decision Date | 06 December 1976 |
| Docket Number | 74-1504,Nos. 74-1503,s. 74-1503 |
| Parties | Harriet McGARRY, Individually, and as guardian ad litem of Dennis McGarry, a minor, Plaintiff-Appellee, v. UNITED STATES of America, Defendant-Appellant. Patricia McGarry SCHELL, Plaintiff-Appellee, v. UNITED STATES of America, Defendant-Appellant. |
| Court | United States Courts of Appeals. United States Court of Appeals (9th Circuit) |
Thomas G. Wilson, Atty. (argued), of Dept. of Justice, Washington, D. C., for defendant-appellant.
John Squire Drendel (argued), of Bradley & Drendel, Ltd., Reno, Nev., for plaintiffs-appellees.
Before MERRILL and KENNEDY, Circuit Judges, and BURNS, * District judge.
The United States appeals from adverse judgments under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b) and 2671 et seq., granting to the surviving wife and children damages for the wrongful death of an employee of an independent contractor which occurred December 10, 1969.
For use by the Atomic Energy Commission (AEC) the United States has withdrawn from the public domain a large area in the State of Nevada, northwest of Las Vegas, designated as the Nevada Test Site (NTS) and utilized by the Commission as an outdoor laboratory. The Commission does not carry out experiments itself, but contracts for such work with research and development organizations known as scientific users. The Commission does not involve itself in the details of any research program but approves the program objectives only in a general sense. When a scientific user desires to perform an experiment, it sends a "criteria letter" describing the experiment to the NTS Support Office. If funds are available and the experiment is within the program scope the NTS Support Office authorizes other contractors to perform the necessary work. One such contractor was Reynolds Electrical & Engineering Co. (REECO), employer of the decedent Thomas McGarry.
Under its contract with AEC, REECO was to manage, operate and maintain the NTS. The contract provided:
Elsewhere it provided:
"The Commission shall have the right to inspect the work and activities of the Contractor under this contract at such time and in such manner as it shall deem appropriate."
Elsewhere it is further provided:
"Persons employed by the Contractor shall be and remain employees of the Contractor, and shall not be deemed employees of the Commission or the Government * * *."
Because the AEC carries out its functions primarily through independent contractors, it employs only a small number of persons at NTS. Thus, while there were approximately 7,000 contractors' employees at NTS at the time of the accident, the AEC had only about 30 persons employed there. Of this number the AEC had only four employees located at NTS whose duties were primarily concerned with safety. The function of those individuals was to appraise a contractor's performance relating to safety practices. This was not a day-by-day appraisal of the contractor on a job, but rather a review of a contractor's safety activities program.
By contrast, since the safety responsibility is contractually assigned to the various contractors, REECO has a substantial safety department. At the time of the accident it had approximately 18-20 employees engaged in safety work. Unlike the AEC, which had no safety inspectors whose concern was with observation and monitoring, REECO did employ safety inspectors as well as safety engineers, whose concern was with the application of safety technology to the total operation.
The incidents resulting in the alleged wrongful death began when a criteria letter was submitted by one of the scientific users of NTS, Lawrence Radiation Laboratories, containing a proposal for drilling of exploratory holes to ascertain geology. Approval to proceed was given, including the drilling of one of the holes, and the location of that hole was established by the survey. It was in the vicinity of a power line owned by the United States but under the operational control of REECO. It was REECO's responsibility at that point to drill the hole. This entailed the preliminary drilling of anchor holes to accommodate tie-wires for the support of the drilling rig at the exploratory hole. For that purpose a truck known as a portadrill was driven to the site. It carried a drilling rig which could be folded horizontally over the truck. The driver of the truck was McGarry. The AEC safety office had received no notification as to the drilling of the exploratory holes.
After arriving at the site McGarry and a fellow-employer, Dasher, marked the position of four anchor holes. McGarry then raised the drilling rig into an upright position in order to insert the bit. With this mast extending over 30 feet in the air, McGarry drove the rig toward the first hole with Dasher walking in front to locate the site precisely. After they had gone a short distance Dasher heard a noise and saw oil running from the hydraulic engine and sparks flying from the left rear tire. He stopped McGarry, who alighted from the rig. They discussed the matter briefly and Dasher went to the left rear tire and put his hand on the tire. The tire felt hot and Dasher received a slight shock. Following further discussion, they went to the center of the rig, where, when McGarry leaned over to look at the hydraulic unit, he apparently touched the rig and was electrocuted. As Dasher was pulling McGarry away, he happened to look up and, for the first time, became aware of the electric lines which were touching the upraised mast.
The NTS electrical system provided circuit breakers which immediately de-energized the line when contact was made by the upright mast. The system also provided for three automatic reclosures of the de-energized circuit: instantaneously after the first de-energizing contact, again after fifteen seconds, and again after an additional thirty seconds. In each case of reclosure, since the mast remained in contact with the wire, the line was again de-energized in one-tenth of a second.
In addition to the automatic reclosures the line could be manually reclosed by the power dispatcher at an NTS dispatch office owned by the United States and operated by REECO. On this occasion the dispatcher noticed the voltage dip and, after the three automatic reclosures had been unsuccessful, he tested the circuit by manually closing it. As with the automatic reclosures, the manual closure did not hold for more than one-tenth of a second. The line thereafter remained de-energized until the drilling rig was removed.
It is thus apparent that when the rig made contact with the line, the line was automatically de-energized and remained in that condition except for four periods of reclosure, each of one-tenth of a second in length. Electrocution must have resulted from contact made by McGarry during one of those periods.
The dispatcher had not been notified that anyone was working in the area, although the AEC manual incorporated the Corps of Engineers' safety rule that operations adjacent to overhead lines should not be initiated until appropriate authorities had been notified. Had the dispatcher been advised of the presence of workmen in the area he could have de-energized the line, or he could have disconnected the automatic reclosure device and refrained from reclosing the line manually.
The administrative claims of McGarry's widow and two children were denied and they then brought these suits to recover damages for his death. After trial to the court without jury, an opinion was filed which also constituted findings of fact and conclusions of law. Judgment was rendered in favor of the plaintiffs. 370 F.Supp. 525 (D.Nev.1973). This appeal was taken by the United States.
The district court found that REECO had been guilty of negligence (among other acts and omissions) in failing to give notice to its power dispatcher of the fact that work was to be done in the neighborhood of the power line so that the line could be de-energized or at least prevented from reclosure in the event contact was made.
The AEC contends that the government cannot, under the Tort Claims Act, be held liable for injuries resulting from the negligence of REECO, its independent contractor, since under that Act the United States has waived immunity only in cases where injury results from negligence of a government employee. 1
In Thorne v. United States, 479 F.2d 804 (9th Cir. 1973), this court determined that under California law, when an independent contractor is employed to engage in work that is extra dangerous, 2 the employer of the contractor has a duty to exercise reasonable care to see that the contractor takes proper precautions to protect those who might sustain injury from the work. We there held that since under California law such a duty was imposed upon a private person, it was imposed upon the United States under the Tort Claims Act. We noted that liability for breach of such duty is neither strict nor vicarious liability. It is not liability for the contractor's failure to exercise due care or to employ proper safety precautions. It stems from the duty of the contractor's employer to...
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