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FRIED v. UNITED STATES

December 21, 1983

SHERMAN FRIED, PLAINTIFF,
v.
UNITED STATES OF AMERICA, ARGONNE NATIONAL LABORATORY, ARGONNE UNIVERSITY ASSOCIATION, NUCLEAR REGULATORY COMMISSION, AND ARGONNE OCCUPATIONAL HEALTH AND SAFETY DIVISION, DEFENDANTS.



The opinion of the court was delivered by: Moran, District Judge.

  MEMORANDUM AND ORDER

I. Introduction

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 responsibilities.

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.

There can be no doubt that the operation of a nuclear reactor and the handling and testing of nuclear wastes are inherently dangerous activities. The contract acknowledges the risk of a nuclear incident which "could adversely affect the public health and safety." The release of excess radiation into the atmosphere or a malfunction of the reactor, causing radiation leaks, cooling fluid spills, or a partial or total melt-down of the core unit, are all possible results of unsafe practices of the Laboratory. The hazards of radiation and the possibility of a "nuclear incident" have been recognized by Congress. See 42 U.S.C. § 2021(g) and 2210(e). The government, in contracting out such research, cannot delegate its duty to ensure that proper safety precautions are taken.

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 ...


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