Thorne v. United States

• Decision Date: 31 May 1973
• Docket Number: No. 71-1457.,71-1457.
• Citation: 479 F.2d 804
• Parties: Herbert Marion THORNE, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

479 F.2d 804 (1973)

Herbert Marion THORNE, Appellant, v. UNITED STATES of America, Appellee.

No. 71-1457.

United States Court of Appeals, Ninth Circuit.

May 31, 1973.

R. Jay Engel (argued), San Francisco, Cal., for appellant.

Donald N. Stahl, Asst. U. S. Atty. (argued), Dwayne Keyes, U. S. Atty., Richard V. Boulger, Asst. U. S. Atty., Fresno, Cal., William J. Connolly, of Connolly, Johnson & Hothem, San Francisco, Cal., for appellee.

Before MERRILL, WRIGHT and KILKENNY, Circuit Judges.

KILKENNY, Circuit Judge:

This is an appeal from the dismissal of an action by appellant prosecuted under the Federal Torts Claims Act, 28 U.S.C. § 1346(b) and § 2674 in connection with personal injuries sustained by him in an accident which occurred in California on the construction site of a government dam. At the conclusion of appellant's case, the appellee's motion to dismiss was granted. We reverse.

FACTS

The appellant was an employee of Guy F. Atkinson Construction Company Contractor, which had contracted with the Department of the Interior, Bureau of Reclamation, of the United States Bureau, to construct a spillway as part of the dam. The Bureau performed all of the preliminary surveying and geological studies on which it compiled a set of specifications and standards for the construction project. Appellant's duties required his presence in a trench which was one of a series of trenches being dug across the face of the dam's spillway. Commonly known as "toe trenches", they were designed to act as a foundation for the spillway which ran down hill on a steep slope in shale rock. The overall design called for the toe trenches to be filled with concrete on completion. The spillway and its supporting trenches were being constructed on the shale base, which had been extensively surveyed prior to the award of the contract. At the time of the accident, the toe trench in question was almost completed, having been dug to a depth of approximately three feet. At that point, and while appellant was digging in the trench, a large slab of shale rock broke loose on the upper side of the trench, slid downhill across the trench striking and injuring him.

The General Provisions of the contract for the construction of the dam, including the spillway, required the Contractor, at a minimum, to comply promptly with its own safety requirements and, in addition, required it to comply with the "Safety Requirements for Construction by Contract", as published by the Bureau. The published Safety Requirements referred to in the contract made specific reference to procedures to be utilized when confronted with open excavations.¹

Beyond that, the General Provisions required the Bureau to notify the Contractor, in writing of any non-compliance with the Safety Requirements of the published rules. For failure of the Contractor to comply with any such directive, the Contracting Officer was authorized to issue an order suspending all or part of the work until corrective action was taken.

That the agents of the Bureau in charge of supervising the construction recognized the danger of slides in excavating a trench on the steep slope is well established by the evidence. Prior to the award of the Contract, the Bureau, through its geological surveys, was fully aware of the shale rock to be encountered in the construction of the spillway and the digging of the trenches. Needless to say, that was the reason for the shoring requirements on the upside of the trench. The only logical purpose of the requirement for installation of the shoring above the toe trenches was to prevent slides, such as here occurred, and thus prevent injury to workmen and others who might be in or around the trench. The Bureau's supervising construction inspector discussed the danger with the labor foreman of the Contractor and directed him to place anchor bars above the trenches in order to prevent slippage. A supervisor for the Contractor was present at this discussion. The Bureau's knowledge of the danger encountered in trenching on the spillway in question is demonstrated by the testimony of Mr. Koehler, a Bureau construction supervisor, in his conversation with Mr. Ward, a supervisor for the Contractor.³ The record shows that anchor bars were placed above the toe trench dug immediately previous to the one under scrutiny. Despite the specific safety requirements on open excavations in the Bureau's publication and the acknowledged recognition of the danger by both the Bureau and the Contractor, no anchor bars were put in place above the offending trench. It is undisputed that the trench was under excavation for a period of five days prior to the accident. During most of this time, a Bureau inspector was present. However, an inspector was not present at or near the trench on the day of the accident.

The undisputed evidence, including a dramatic photograph of the trench in question, demonstrates beyond a reasonable doubt that the excavation of the particular trench across the face of the steep spillway was a highly dangerous operation. It is unquestioned that the Bureau, through the testimony of its own supervisors, its surveys and the requirements of its own Safety Rules, recognized the dangerous character of the trenching operation.

Without reference to the dangerous type of work in which appellant was employed, or the applicability of the California state law to the facts, the trial judge treated the Bureau's motion for dismissal, at the close of appellant's case,⁵ as a motion for judgment in favor of the defense and allowed the motion with the terse statement: ". . . I'm of the view that plaintiff has not established the requisite facts to establish liability on the part of either defendant⁶ in this case. . . ." The findings and conclusions prepared by counsel for the Bureau and signed by the judge are no more enlightening as to the law which he applied to what we must consider as the undisputed facts, drawing therefrom all inferences favorable to appellant. With this background before us, we proceed to explore the applicable law.

BUREAU'S DUTY UNDER TORTS CLAIMS ACT

The applicable provisions of the Federal Torts Claims Act⁷ makes the United States Bureau liable for personal injuries caused by the negligent or wrongful acts or omissions of an employee of the Bureau while acting within the scope of his office or employment under any and all circumstances where the Bureau, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.

Here, the accident occurred in California. Consequently, California law governs in determining whether a private person, and, therefore, the Bureau, should be liable on the record before us.

CALIFORNIA LAW

The one case to which our attention has been directed and the only one our research has revealed, which is almost exactly in point on the application of state law to the factual background before us is Emelwon, Inc. v. United States, 391 F.2d 9 (CA5 1968), cert. denied 393 U.S. 841, 89 S.Ct. 119, 21 L.Ed.2d 111. There, as here, the appellants sought recovery under the Federal Torts Claims Act for damages to their growing crops, in connection with a spraying operation. The district court directed a verdict for the United States on the ground that the state of Florida, which carried on the spraying operations causing the damage, was neither an agent nor an employee of the United States, but was an independent contractor. In reversing the judgment, the Fifth Circuit recognized that the United States could not be held liable without fault and that the doctrine of strict liability did not apply, citing among others, Dalehite v. United States, 346 U.S. 15, 44-45, 73 S.Ct. 956, 97 L.Ed. 1427 (1953), and also recognized that under ordinary circumstances the United States could not be held liable for the negligence of an independent contractor. After acknowledging these rules, the court then went on to hold that there were at least two applicable theories of Florida law under which the United States would be liable. First, the Florida rule that the owner or employer may incur liability through its failure to halt an operation when it gains knowledge of a dangerous situation, which might be created by an independent contractor. Second, the Florida rule that one who employs an independent contractor to engage in certain types of dangerous activity has a "non-delegable duty" and must see to it that the independent contractor carries out his task in a nonnegligent manner. On the second point, the court went on to say that the employer's liability was not absolute, nor was he held vicariously liable for the negligence of the independent contractor. Instead, liability was imposed on the employer for his own failure to exercise reasonable care in a situation in which the work is sufficiently dangerous that the employer himself has a duty to third persons who may sustain injuries from the work unless proper precautions are taken. The court then went on to hold that the spraying of herbicides or insecticides was an activity which was sufficiently dangerous to warrant the application of the Florida non-delegable duty rule.

A perusal of the California authorities convinces us that the law of that state is essentially the same as the Florida law before the Court in Emelwon, Inc., supra.

Before we discuss the specific California cases, it is well to recognize that its courts have followed the proposition that one who employs an independent contractor is, as a general rule, not liable for the misconduct of the latter or his servants while acting within the scope of the contract. The idea responsible for this general rule of non-liability is the want of control and authority of the employer over the work, and the consequent harshness of the rule which would hold one responsible for the manner of conducting an enterprise over which he lacks the authority to direct the operations. However, ...