Yanez v. U.S., 93-16943

• Decision Date: 23 October 1995
• Docket Number: No. 93-16943,93-16943
• Citation: 63 F.3d 870
• Parties: 95 Cal. Daily Op. Serv. 6573, 95 Daily Journal D.A.R. 11,204 Isabel YANEZ, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee
• Court: U.S. Court of Appeals — Ninth Circuit

Page 870

63 F.3d 870

95 Cal. Daily Op. Serv. 6573, 95 Daily Journal

D.A.R. 11,204

Isabel YANEZ, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee

No. 93-16943.

United States Court of Appeals Ninth Circuit.

Argued and Submitted March 15, 1995.

Decided Aug. 21, 1995.

As Amended on Denial of Rehearing Oct. 23, 1995. ^*

Joseph J. Appel, San Francisco, CA, for plaintiff-appellant.

William F. Murphy, Asst. U.S. Atty., San Jose, CA, for defendant-appellee.

Appeal from the United States District Court for the Northern District of California.

Before: FLETCHER, REINHARDT, and John T. NOONAN, Jr. Circuit Judges.

Opinion by Judge FLETCHER; Partial Concurrence and Partial Dissent by Judge NOONAN.

FLETCHER, Circuit Judge:

Plaintiff Isabel Yanez appeals the district court's partial judgment on the pleadings and partial summary judgment in favor of the United States in her action under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. Secs. 1346, 2674. Yanez seeks damages for injuries she sustained while performing work for an independent contractor, Caelus Devices, Inc. ("CDI"), at its munitions factory. She claims that the United States is liable under the peculiar risk doctrine and because it exercised negligent control over CDI's activities. We affirm in part and reverse in part.

FACTS & PRIOR PROCEEDINGS

This case arises out of Isabel Yanez's employment with CDI, a munitions contractor for the United States. On June 11, 1986, Yanez lost her left arm and suffered third degree burns when dextrinated lead azide exploded at CDI. Broco, Inc., supplied the lead azide to CDI.

Yanez sued Broco in state court claiming that its defective lead azide was the cause of her injuries. CDI then sued Broco. The cases were consolidated. The Yanez-Broco suit settled for $375,000, and the CDI-Broco suit settled for $90,000. Yanez received approximately $200,000 in workers' compensation benefits for her injuries.

After exhausting her administrative remedies, Yanez filed suit in federal court against the United States under the FTCA, alleging that the government's negligent inspections and lax enforcement of safety regulations caused her injuries. The United States filed a third-party complaint against Broco for indemnity or contribution. Broco moved for dismissal of the third-party complaint based on its good faith settlement with Yanez. The district court denied this motion. The United States moved for judgment on the pleadings. The district court denied this motion, ruling that the peculiar risk doctrine applied to Yanez's claim. The United States then moved to dismiss based on the doctrine of judicial estoppel, arguing that because Yanez represented in state court that Broco had caused her injuries, she was estopped from claiming in federal court that the United States had caused her injuries. The district court granted the motion. This court reversed and remanded, finding that Broco and the United States could be concurrent causes of Yanez's injuries. Yanez v. United States, 989 F.2d 323, 326-27 (9th Cir.1993).

On remand, the United States renewed its motion for judgment on the pleadings based on the California Supreme Court's recent decision in Privette v. Superior Court, 5 Cal.4th 689, 21 Cal.Rptr.2d 72, 854 P.2d 721 (Cal.1993), and its lack of control over CDI. The district court granted this motion, construing the control claim as a motion for partial summary judgment and the peculiar risk claim as a motion for judgment on the pleadings. On remand, Broco moved for reconsideration of its motion to dismiss based on the good faith settlement in state court. The district court found that this motion was moot because it held that the United States was not liable, making the government's claim for indemnity against Broco unnecessary. Yanez timely appealed.

JURISDICTION

The district court had jurisdiction pursuant to 28 U.S.C. Sec. 1346. This court has jurisdiction over the district court's final judgment under 28 U.S.C. Sec. 1291.

DISCUSSION

I. Peculiar Risk Liability

Yanez argues that the United States is directly liable under the peculiar risk doctrine for its failure to take special precautions where the contractor has failed to do so. We disagree.

A. Standard of Review

The district court entered a judgment on the pleadings for the peculiar risk claim. A judgment on the pleadings is reviewed de novo. Westlands Water Dist. v. Firebaugh Canal, 10 F.3d 667, 670 (9th Cir.1993). The district court may grant a motion for judgment on the pleadings "when the moving party clearly establishes on the face of the pleadings that no material issue of fact remains to be resolved and that it is entitled to judgment as a matter of law." Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1550 (9th Cir.1989).

B. Federal Tort Claims Act

The FTCA waives the sovereign immunity of the United States for claims based on the negligent or wrongful acts of United States employees. 28 U.S.C. Sec. 1346. The FTCA provides that the government cannot be held vicariously liable for the negligence of an employee of an independent contractor. 28 U.S.C. Sec. 2671; Logue v. United States, 412 U.S. 521, 93 S.Ct. 2215, 37 L.Ed.2d 121 (1973). Under the FTCA, the government's liability is determined "in the same manner and to the same extent as a private individual in like circumstances." 28 U.S.C. Sec. 2674; Kangley v. United States, 788 F.2d 533 (9th Cir.1986). Because plaintiff's accident occurred in California, this action is governed by California law. 28 U.S.C. Sec. 1346(b).

C. California Law

In California, the general rule, subject to numerous exceptions, is that a principal is not liable for torts committed by an independent contractor. See Van Arsdale v. Hollinger, 68 Cal.2d 245, 66 Cal.Rptr. 20, 437 P.2d 508, 511 (Cal.1968). The peculiar risk doctrine, which is described in the Restatement (Second) of Torts sections 416 and 413, is an exception to this rule that applies when the work poses an inherent risk of injury.

Before the recent decision in Privette v. Superior Court, 5 Cal.4th 689, 21 Cal.Rptr.2d 72, 854 P.2d 721 (1993), California courts held that a principal was vicariously ¹ liable for the failure of its contractor to take special precautions against peculiar risks--even if such precautions had been required by contract. See, e.g., Woolen v. Aerojet Gen. Corp., 57 Cal.2d 407, 20 Cal.Rptr. 12, 369 P.2d 708 (1962); Holman v. State, 124 Cal.Rptr. 773, 124 Cal.Rptr. 773, 781-84 (1975); Restatement (Second) of Torts Sec. 416. In Privette, the California Supreme Court reversed itself by holding:

When, as here, the injuries resulting from an independent contractor's performance of inherently dangerous work are to an employee of the contractor, and thus subject to workers' compensation coverage, the doctrine of peculiar risk affords no basis for the employee to seek recovery of tort damages from the person who hired the contractor but did not cause the injuries.

21 Cal.Rptr.2d at 81, 854 P.2d at 730. After Privette, California permits a principal to delegate its duty to provide a reasonably safe work place to its contractor's employees, even where "peculiar risks" are involved, and to rely on the state workers' compensation system to make the worker whole. Id.

Yanez argues that Privette does not apply to her case because she seeks to hold the United States directly, not vicariously, liable for its negligence. We conclude that the district court properly rejected this claim.

Yanez first argues, citing pre-Privette section 416 cases, that a principal can be held liable for its failure (as opposed to the contractor's failure) to supervise under section 416. See Aceves v. Regal Pale Brewing Co., 24 Cal.3d 502, 156 Cal.Rptr. 41, 595 P.2d 619 (1979); Widman Rossmoor Sanitation, Inc., 97 Cal.Rptr. 52 (1971); Gardner v. United States, 780 F.2d 835 (9th Cir.1986); McGarry v. United States, 549 F.2d 587 (9th Cir.1976), cert. denied, 434 U.S. 922, 98 S.Ct. 398, 54 L.Ed.2d 279 (1977); Thorne v. United States, 479 F.2d 804 (9th Cir.1973). However, this argument is unavailing because after Privette a principal may delegate its duty to supervise the safety precautions of its contractor.

Second, Yanez argues that the United States may be held liable under section 413 of the Restatement (Second) of Torts for its failure to take appropriate precautions where CDI failed to do so. Owens v. Giannetta-Heinrich Constr. Co., 23 Cal.App.4th 1662, 29 Cal.Rptr.2d 11, 14 rev. denied, 1994 Cal. LEXIS 3286 (Cal.1994), provides some support for her claim. In Owens, a California Court of Appeals suggested that even after Privette direct liability still exists under section 413, which requires a principal to provide contractual protections against peculiar risks. Id. ; see also Littlefield v. United States, 927 F.2d 1099, 1103 (9th Cir.) (duty under section 413 is limited to requiring a contractor to take appropriate safety measures in its contract), cert. denied, 502 U.S. 907, 112 S.Ct. 299, 116 L.Ed.2d 242 (1991); Nelson v. United States, 639 F.2d 469, 477 (9th Cir.1980) ("The essence of the duty ... imposed by Section 413 [is] to provide contractually for the contractor's observance of detailed and specific safety precautions."). However, Yanez's claim misses the mark because she fails to allege that the defendant's contract did not adequately protect her against the peculiar risks inherent in munitions production. ² Instead of relying on this narrow exception to Privette, Yanez argues that under section 413 the United States is liable for its negligent failure to supervise the precautions taken by its contractor and to take those precautions itself if necessary. This is exactly the sort of liability rejected by Privette. Because we conclude that Yanez's "section 413" claim is indistinguishable from the theory of liability rejected in Privette, we affirm the district court's judgment on the pleadings on Yanez's peculiar risk...