The opinion of the court was delivered by: Moran, District Judge.
This action arises as a result of an accident at a nuclear
research facility in DuPage County, Illinois. The Argonne
National Laboratory ("Laboratory") is owned by the United States.
It is operated by the University of Chicago ("University") under
the terms of a contract between the United States, the
University, and the Argonne Universities Association
("Association"), an association of universities involved in
research at the Laboratory. The contract controls the direction,
operation and management of the Laboratory and defines each
party's role in the running of the facility. Included in the
activities of the Laboratory is the operation of a nuclear
reactor. The contract states: "[T]he University recognizes that
such operation involves the risk of a nuclear incident which,
while the chances are remote, could adversely affect the public
health and safety." (Contract, Article XXII.)
Plaintiff brought suit in this court against the United States,
the Laboratory, the Association and the Argonne Occupational
Health and Safety Division ("Safety Division"), a division of the
Laboratory charged with maintaining safe conditions at the
Laboratory. Plaintiff claims that the defendants negligently
breached their duties towards him by allowing the ampoule to be
stored in an unsafe manner. Plaintiff's suit against the United
States is brought in this court under the Federal Tort Claims Act
("FTCA"). The claims against the other defendants are brought in
this court as pendent to the FTCA claim.
Before the court are motions to dismiss, or in the alternative,
for summary judgment on behalf of the United States, the
Laboratory and the Safety Division. Also before the court is a
motion for summary judgment on behalf of the Association. Except
for the jurisdictional issue in part IV of this memorandum, all
motions are supported by evidence outside of the pleadings and
will be treated as motions for summary judgment pursuant to
Fed.R.Civ.P. 12(b). Because jurisdiction over the claims against
the Laboratory, the Association and the Safety Division hinge
upon the court continuing to entertain the FTCA claim against the
United States, the government's motions will be discussed first.
II. The United States' Duty to Plaintiff
The Federal Tort Claims Act provides exclusive jurisdiction in
federal district courts over all tort claims against the United
States. 28 U.S.C.A. § 1346(b). Liability of the United States
under the FTCA can only accrue from negligent or wrongful acts or
omissions by employees of the government while acting within the
scope of their employment. Id. It cannot arise from the acts of
employees of independent contractors working for the United
States. Id. at §§ 1346(b), 2671. The United States is only liable
to the extent a private person, under the laws of the state where
the act or omission occurred, would also be liable. Id. at
1346(b). See Massachusetts Bonding Co. v. United States,
352 U.S. 128, 129-30, 77 S.Ct. 186, 187, 1 L.Ed.2d 189 (1956). Plaintiff
claims the negligence that caused his injury occurred in
Illinois. This court must determine whether or not under Illinois
law a private person in the United States' position would be
liable for the injury.
The government argues that it owed no duty to the plaintiff
under Illinois law and could not have been negligent with regard
to him. In support of this argument the government contends that
though it owned the Laboratory it had neither sufficient
possession nor sufficient control for a duty towards the
plaintiff to arise. It also contends that plaintiff was employed
by an independent contractor over which it had no control.
Finally, it claims that it cannot be found liable on an "inherent
danger" theory because that would impose strict and vicarious
liabilities in contravention of the FTCA.
In Illinois, an owner of property who hires an independent
contractor is relieved of liability from activities of that
contractor "where the independent contractor is in exclusive
control of the work." Weber v. Northern Illinois Gas Co.,
10 Ill. App.3d 625, 637, 295 N.E.2d 41, 49 (1st Dist. 1973). To be
held liable for acts or omissions of independent contractors,
therefore, an employer must have some control over the operative
details of some part of the contractor's work. Coty v. U.S.
Slicing Machine Co., 58 Ill. App.3d 237, 241, 15 Ill.Dec. 687,
691, 373 N.E.2d 1371, 1375 (2d Dist. 1978). This control must be
sufficient to warrant the imposition of liability. "[A]n employer
who retains merely
the general right to order the work stopped or resumed, to
inspect its progress or receive reports, to make suggestions or
recommendations which need not be followed, or to prescribe
alterations and deviations, cannot incur liability under this
rule." Pasko v. Commonwealth Edison Co., 14 Ill. App.3d 481, 488,
302 N.E.2d 642, 648 (1st Dist. 1973). See Coty, supra, 58
Ill.App.3d at 241-242, 15 Ill.Dec. at 91, 373 N.E.2d at 1375. To
be subject to liability under this rule, "there must be such a
retention of a right to supervise that the contractor is not
entirely free to do the work his own way." Pasko, supra, 14
Ill.App.3d at 488, 302 N.E.2d at 648.
The contract controlling the operation of the Laboratory gives
the United States the requisite control over that operation to
subject it to liability under Illinois law. The contract holds
the United States responsible for the conduct of the program and
gives it general control over the contract work (Contract,
Article V). It requires the University to run the program in
accordance with policies and regulations set by the United States
(Contract, Articles V and XXI). It gives the United States power
to immediately shut down the program (Contract, Article XXI). It
even gives the United States some control over guidelines
governing the hiring of personnel (Contract, Article VIII), and
provides that the government will pay the premiums for insurance
the government demands the University procure (Contract, Article
XVI-II). Finally, the contract requires the University to follow
all the applicable safety and health requirements set by the
government (Contract, Article XXI). In short, the control granted
the government by the contract, despite the claims by Mr. Golden
that the University is an independent contractor, is sufficient
to subject the United States to liability.
The government's claim of insufficient control for liability to
arise is puzzling. Involved in the contract was nuclear research
and the operation of a nuclear reactor. It is discomforting that
the United States claims it abdicates control over this type of
hazardous research when it hires an independent contractor. This
is the type of research over which presumably the government
maintains strict safety control. Even if the government had
abdicated control over the research in the contract, however,
Illinois law would not allow it to also abdicate its
In Illinois an employer of an independent contractor can be
liable for injuries incurred from the work of that contractor if
the work involves inherently dangerous activity. Johnson v.
Central Tile & Terrazzo Co., 59 Ill. App.2d 262, 276-77,
207 N.E.2d 160, 167 (2d Dist. 1965). See Woodward v. Mettille,
81 Ill. App.3d 168, 175-76, 36 Ill.Dec. 354, 400 N.E.2d 934, 941-42
(3d Dist. 1980). The reasoning behind this rule is important:
The exception is sometimes said to apply where the
work contracted is "inherently" or "intrinsically"
dangerous or will be a probable source of injury to
others unless certain precautions are taken. The duty
to take these precautions is then absolute in the
employer; he may not delegate this duty.
Johnson v. Central Tile & Terrazzo Co., 59 Ill.App.2d at 277, 207
N.E.2d at 167. In effect, under Illinois law an employer of an
independent contractor for performance of inherently dangerous
work owes a duty to the contractor's employees and third parties
that may be injured by the work. That duty is to take proper
precautions to ensure the safety of the employees and third
parties. This duty cannot be delegated to other parties,
including independent contractors.
Contrary to the government's assertions, application of a
non-delegable duty in Illinois is not tantamount to imposing
strict liability or vicarious liability. Though the imposition of
absolute liability is not permitted by the FTCA, Dalehite v.
United States, 346 U.S. 15, 44, 73 S.Ct. 956, 972, 97 L.Ed. 1427
(1953); Wright v. United States, 404 F.2d 244, 246 (7th Cir.
1968), Illinois is not holding the government strictly liable but
is instead imposing a duty which, if unfulfilled, will make the
government negligent and thereby liable. The degree of care of
the government is not irrelevant, as it was in Dalehite.
Similarly, though the government cannot be held vicariously
liable for the negligence of its independent contractor, see 28
U.S.C.A. §§ 1346(b), 2671, in the present case the United States
would not be held vicariously liable for its contractor's
negligence, but liable for its own negligence in not fulfilling
its non-delegable duty to take precautionary measures.
Non-delegable duties have been found adequate bases for liability
under the FTCA in this circuit, see Fentress v. United States,
431 F.2d 824, 828 (7th Cir. 1980), and non-delegable duties ...