McGarry v. United States

Decision Date30 October 1973
Docket NumberCiv. No. LV-1504,LV-1628.
Citation370 F. Supp. 525
PartiesHarriet McGARRY, Individually, and as guardian ad litem of Dennis McGarry, a minor, Plaintiff, v. UNITED STATES of America, Defendant. Patricia McGarry SCHELL, Plaintiff, v. UNITED STATES of America, Defendant.
CourtU.S. District Court — District of Nevada

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Bradley & Drendel, Ltd., Reno, Nev., for plaintiffs.

V. DeVoe Heaton, U. S. Atty., Las Vegas, Nev., James P. Klapps, J. Chas. Kruse, U. S. Dept. of Justice, Washington, D. C., for defendant.

OPINION

ROGER D. FOLEY, Chief Judge.

Facts

The plaintiffs have filed this wrongful death action under the Federal Tort Claims Act (FTCA), 28 U.S.C. ? 1346(b), to recover damages resulting from the death of Thomas McGarry, who died as the result of an accidental electrocution on the Nevada Test Site of the United States Atomic Energy Commission. The Nevada Test Site is a Government-owned nuclear testing facility managed, operated and maintained by Reynolds Electrical and Engineering Co., Inc. (REECo), an independent contractor. In addition to performing direct services and activities incident to the AEC testing program, the contract provided that REECo would provide, maintain, operate and distribute electrical power on the test site. The power lines, circuit breakers, transformers, substations and other electrical facilities on the Nevada Test Site and the electricity supplied through such facilities are owned by the defendant United States of America.

The decedent Thomas McGarry was an employee of REECo who, on the day of the accident, December 10, 1969, had been assigned by a REECo drilling supervisor to certain duties involving the use of a portable drilling rig. The accident occurred when the mast of the rig Mr. McGarry was driving came into contact with an overhead high voltage power line.

The accident occurred at a location designated as Ue10-ITS#2 located in Area 8 of the Nevada Test Site. Within Area 8 the Lawrence Radiation Laboratory, another independent contractor, had previously determined that six exploration holes would be drilled. Prior to December 10, 1969, a third independent contractor, Holmes and Narver, Inc., had surveyed the exploration site and had physically located exploratory hole Ue10-ITS#2 with a stake and marker. Mr. McGarry and his assistant, Mr. Dasher, had driven their portadrill rig to the exploration hole to map out and drill anchor holes which were to be used to run steel cables to hold and stabilize the stationary drilling equipment which was used to drill the actual exploration hole.

Mr. McGarry and Mr. Dasher had mapped out the anchor holes and raised the mast on the portadrill rig and were proceeding to the location of the first anchor hole when the mast came into contact with an overhead power line which had not been observed by either worker. When the portadrill rig mast came into contact with the power line, Mr. McGarry stopped the truck and alighted. Mr. McGarry then came in contact with the rig and was electrocuted.

Federal Tort Claims Act Liability

The Federal Tort Claims Act, 28 U.S.C. ? 1346(b), provides:

". . . the district courts . . . shall have exclusive jurisdiction of civil actions on claims against the United States, for money damages . . . for injury or loss of property, or personal injury or death 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."

This act waives the sovereign immunity of the United States for the negligent acts or omissions of its employees, and subjects it to the same liability for such negligent acts or omissions that a private person would be subjected to under the law of the state in which the occurrence giving rise to the liability happened. The purpose of the waiver of sovereign immunity was defined by the United States Supreme Court in Rayonier v. United States, 352 U.S. 315, 77 S. Ct. 374, 1 L.Ed.2d 354 (1957), and the act is to be construed to effectuate such purpose. In the Rayonier case, the Supreme Court, holding that the "governmental activity" immunity of municipal corporations was not available to the United States in an action brought under the FTCA, stated:

"It may be that it is `novel and unprecedented' to hold the United States accountable for the negligence of its firefighters, but the very purpose of the Tort Claims Act was to waive the Government's traditional all-encompassing immunity from tort actions and to establish novel and unprecedented governmental liability. The Government warns that if it is held responsible for the negligence of Forest Service firemen a heavy burden may be imposed on the public treasury. It points out the possibility that a fire may destroy hundreds of square miles of forests and even burn entire communities. But after long consideration, Congress, believing it to be in the best interest of the nation, saw fit to impose such liability on the United States in the Tort Claims Act. Congress was aware that when losses caused by such negligence are charged against the public treasury they are in effect spread among all those who contribute financially to the support of the Government and the resulting burden on each taxpayer is relatively slight. But when the entire burden falls on the injured party it may leave him destitute or grievously harmed. Congress could, and apparently did, decide that this would be unfair when the public as a whole benefits from the services performed by Government employees. And for obvious reasons the United States cannot be equated with a municipality, which conceivably might be rendered bankrupt if it were subject to liability for the negligence of its firemen. There is no justification for this Court to read exemptions into the Act beyond those provided by Congress. If the Act is to be altered that is a function for the same body that adopted it."

However, the United States still remains immune from certain types of liability which may be imposed upon private persons by reason of the limitation of the waiver of sovereign immunity only to liability for negligent acts or omissions of its employees. By reason of this limitation on the waiver of immunity, the United States cannot be held liable for a claim arising under the doctrine of strict liability or absolute liability without a showing of fault on the part of an employee of the United States. This rule was first enunciated in Dalehite v. United States, 346 U.S. 15, 44-45, 73 S. Ct. 956, 972, 97 L.Ed. 1427 (1953):

"It (FTCA) is to be invoked only on a `negligent or wrongful act or omission' of an employee. Absolute liability, of course, arises irrespective of how the tortfeasor conducts himself; it is imposed automatically when any damages are sustained as a result of the decision to engage in the dangerous activity. The degree of care used in performing the activity is irrelevant to the application of that doctrine. But the statute requires a negligent act. So it is our judgment that liability does not arise by virtue either of United States ownership of an `inherently dangerous commodity' or property, or of engaging in an `extra-hazardous activity'".

Dalehite was recently reaffirmed by the Supreme Court in Laird v. Nelms, 406 U.S. 797, 92 S.Ct. 1899, 32 L.Ed.2d 499 (1972), where the Court held that the United States was not liable under the doctrine of absolute liability for sonic booms, but observed that liability could have been imposed if there had been a showing of negligence on the part of Government employees in planning or conducting the flight.

Similarly, by reason of the limitation of the waiver of immunity to the negligent acts or omissions of its own employees, the United States cannot be charged with liability based on the imputation of negligence of an independent contractor. The United States cannot be held vicariously liable for the negligence of an independent contractor because one of its own employees has not committed a negligent act or omission. Gowdy v. United States, 412 F.2d 525 (6th Cir. 1959); Strangi v. United States, 211 F.2d 305 (5th Cir. 1954); Dushon v. United States, 243 F.2d 451, 17 Alaska 245 (9th Cir. 1957); United States v. Dooley, 231 F.2d 423 (9th Cir. 1955); United States v. Page, 350 F.2d 28 (10th Cir. 1965); Roberson v. United States, 382 F.2d 714 (9th Cir. 1967); and Grogan v. United States, 341 F.2d 39 (6th Cir. 1965). Further, the United States will not be held liable for the negligence of an independent contractor, even when that contractor is performing a nondelegable duty owed by the United States. Even though the duty is nondelegable, if the negligence is by the independent contractor, it is not a negligent act or omission by a United States employee, so there is no government liability. United States v. Page, 350 F.2d 28 (10th Cir. 1965).

It is clear that the Government will not be held liable for the exercise of a discretionary function. The statutory exception, 28 U.S.C. ? 2680(a), states:

"The provisions of this chapter and section 1346(b) of this title shall not apply to?€”
(a) Any claim based upon an act or omission of an employee of the Government, exercising due care, in the execution of a statute or regulation, whether or not such statute or regulation be valid, or based upon the exercise or performance of the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused."

As stated in Blaber v. United States, 332 F.2d 629 (2nd Cir. 1964), with respect to the discretionary function exception and the AEC:

"The AEC may have considerable power to control the activities of private
...

To continue reading

Request your trial
13 cases
  • Zabala Clemente v. U.S., No. 77-1156
    • United States
    • U.S. Court of Appeals — First Circuit
    • October 5, 1977
    ...1966); United States v. Page, 350 F.2d 28 (10th Cir. 1965); Blaber v. United States, 332 F.2d 629 (2d Cir. 1964); McGarry v. United States, 370 F.Supp. 525 (D.Nev.1973), rev'd on other grounds, 549 F.2d 587 (9th Cir. 1976). We recognize that a significant reason for the failure to find liab......
  • Toole v. United States, Civ. A. No. 75-2311.
    • United States
    • U.S. District Court — Eastern District of Pennsylvania
    • December 30, 1977
    ...plainly unavailable as a basis for imposing liability on the Government. Chief Judge Foley's painstaking opinion in McGarry v. United States, 370 F.Supp. 525 (D.Nev.1973), rev'd in part on other grounds, 549 F.2d 587 (9th Cir. 1976), cert. denied, ___ U.S. ___, 98 S.Ct. 398, 54 L.Ed.2d 279 ......
  • Prescott v. United States, Civil LV 80-143 RDF.
    • United States
    • U.S. District Court — District of Nevada
    • September 9, 1981
    ...contractor. See Wimberly, et al. v. Reynolds Electrical Engineering Co., et al., Civ. 609 (D.Nev.1966); McGarry v. United States, 370 F.Supp. 525, 529 (D.Nev.1973); Snow v. United States, 479 F.Supp. 936, 937-38 The first pertinent area of similarity between NIIA and NODA is in their identi......
  • Tatum v. Schering Corp.
    • United States
    • Alabama Supreme Court
    • March 18, 1988
    ...434 U.S. 1035, 98 S.Ct. 770, 54 L.Ed.2d 783 (1978); Anderson v. Chicago B. & Q.R.R., 35 Neb. 95, 52 N.W. 840 (1892); McGarry v. United States, 370 F.Supp. 525 (D.Nev.1973), aff'd, 549 F.2d 587 (9th Cir.1976); Odlivak v. Elliott, 82 F.Supp. 607 (D.Del.1949); see also Cooper v. Shore Electric......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT