BAILEY BROWN, District Judge.
These are actions under the Tort Claims Act (28 U.S.C.A. Secs. 1346(b) and 2671 et seq.) to recover damages for personal injuries suffered by Mrs. Richardson and Mrs. Taylor. Their husbands sue only for derivative damages, and henceforth we will refer to the injured plaintiffs as "plaintiffs." These plaintiffs were employees of a subcontractor under a prime contractor (Pace Corporation) which had a contract with the Government to produce photo flash bombs. An explosion occurred while these plaintiffs were so employed, causing the injuries for which they sue. Plaintiffs contend in general that the Government owed them a duty of care with respect to their safety, that Government employees were guilty of negligence in failing to meet this duty, and that their injuries proximately resulted from this negligence.
It is undisputed that, though there were Government employees maintained on the premises for the purpose of inspecting for product quality and for safety, plaintiffs were employees of an independent contractor which controlled the details of the production process. It is further undisputed that this employer owned and was in possession of the premises and equipment and supplied all materials. It is true that, under the contract, all materials became the property of the Government when they were allocated to production under this contract; this arrangement, however, was made only to secure the Government, since it advanced payments, and the risk of loss remained with plaintiffs' employer.
In contending that the Government had a duty of care to them, the plaintiffs rely on three theories:
1. That the Government employees, in carrying out its safety program, induced these plaintiffs reasonably to rely on the Government for their safety, which created a duty of care to them on the part of the Government. This theory is based on the "good Samaritan" rule recognized and applied by the court in Indian Towing Co. v. United States, 350 U.S. 61, 76 S.Ct. 122, 100 L.Ed. 48 (1955).
2. That the Government employees should have recognized during the progress of this work that a peculiar unreasonable risk of harm to these plaintiffs had been created which required special precautions and that this raised a duty on the part of the Government to these
3. That the Government so retained control of the safety program that it had a duty to exercise reasonable care for the safety of these plaintiffs. This theory is based on the rule contained in the Restatement, Torts (2d), Sec. 414.
It should be recognized at the outset that, in this factual context, there is a serious question whether the Government owed the plaintiffs a duty of care. We will therefore first take up these theories of duty and in the order above stated. Since we conclude that the Government had no such duty, we will not deal with the question of alleged negligence on the part of Government employees, but we will, before concluding this opinion, briefly discuss the question of causation.
THE "GOOD SAMARITAN" RULE
The proof shows that under the production contract the responsibility for safety of plaintiffs and other workers was placed on the contractor. However, the Government had the right to make inspections for safety, which it frequently did through its quality inspectors maintained on the premises and through other inspectors who were sent in from time to time. Further, under the contract, the Government, if it was not satisfied with a safety condition, could withdraw its quality inspectors at that location, which would, if continued for a sufficient period of time, have the practical effect of closing down production there, and this had occurred prior to the accident. While the Government sought to show by testimony that the sole purpose of its safety inspections was to protect its own employees on the premises, we conclude, from the Army regulations and manuals introduced in evidence and from the applicability of the Walsh-Healey Act to this contract, that the purpose also was to protect these plaintiffs and other workers. Moreover, the quality inspectors, while in the building in which these plaintiffs worked, would on occasion, when seeing a practice or condition that appeared dangerous, warn the workers, and the workers would on occasion call the attention of the inspectors to a condition considered by them to be dangerous. Plaintiffs testified, which we assume to be true, that they in general relied on the Government inspectors for their safety because they considered them to be more knowledgeable and more sincerely concerned than was their employer. On the other hand, plaintiffs' employer likewise had a safety program. Plaintiffs and other workers were repeatedly told by their employer not to discuss safety with the Government inspectors and not to report conditions considered to be unsafe to them. On the contrary, they were instructed to take these matters up only with their employer. Moreover, no Government employee ever told plaintiffs or the other workers that the Government was responsible for their safety. It was the employer that took disciplinary action for a safety violation by a worker. Plaintiffs therefore knew that, as between the Government and their employer, the responsibility for their safety had not been accepted by the Government and that it rested on their employer.
The building in which plaintiffs worked was a small wooden one, which was one of many production buildings on the premises. Shortly before this accident, their employer decided to enlarge it by enclosing an existing extension of the concrete floor at one end of the building. Plaintiffs and the other workers recognized that, since they were handling explosive powder, it might be dangerous to perform this work while the construction proceeded. However, after receiving reassurance from their employer's foreman and from a notice posted in the building by their employer to the effect that it was all right for production to continue, they continued to work. They neither sought nor received such assurance from Government employees. After the enclosure was completed, it was necessary to remove the old wall which separated the
In Indian Towing Co. v. United States, 350 U.S. 61, 76 S.Ct. 122, 100 L.Ed. 48 (1955), the court held that the Government was liable to the owner of a vessel which was grounded and damaged as a result of the failure of a light negligently maintained by the Coast Guard. The court said, at page 124 of 76 S.Ct., at page 53 of 100 L.Ed.: "* * * it is hornbook tort law that one who undertakes to warn the public of danger and thereby induces reliance must perform his `good Samaritan' task in a careful manner." From this case, plaintiffs argue that the Government had a duty of care to them because it did institute and maintain the safety program heretofore described and because they reasonably relied thereon for their safety. The Government argues firstly that it had no Indian Towing duty to plaintiffs because, as between it and plaintiffs' employer, it had not undertaken responsibility for their safety. Plaintiffs reply that this makes no difference where, as here, the purpose of the Government's safety program was to increase their safety as well as that of Government employees and they relied on the Government for their safety.
It is not clear from the opinion in Indian Towing whether the doctrine may be applied in this context, i. e., where an employee of an independent contractor is making a claim against the Government which is based on reliance on the Government's safety program. The opinion in United States v. Page, 350 F.2d 28 (10th Cir. 1965), which discusses the holding in Blaber v. United States, 332 F.2d 629 (2d Cir. 1964), indicates that, absent an actual undertaking of responsibility for safety as between the Government and the employer-independent contractor, there can be no liability. Both of these cases involve factual situations similar to the instant case. In the Page case, 350 F.2d at page 31, it is said:
The plaintiffs here, however, are not suing as third party beneficiaries of a contractual undertaking for their safety by the Government; they rely on a tort duty which they claim was raised by the Government's safety program and their reliance thereon, and there seems to be no reason, in theory at least, why the Government could not have a tort duty even in the absence of a contractual undertaking of a responsibility for their safety. But the duty initially rested only on plaintiffs' employer, and it would certainly be necessary that plaintiffs reasonably believe that the Government had undertaken a responsibility as between it and their employer and that they rely thereon. And while plaintiffs generally relied on the Government employees for their safety, they knew, as we have found, that the Government had not undertaken this responsibility. Moreover, while plaintiffs generally relied on the Government employees for their safety, with respect to the allegedly dangerous condition that caused the explosion, plaintiffs relied, as we have found, on the assurances of their employer. We therefore conclude that the Government had no duty of care under the "good Samaritan" rule which was applicable to the risk involved here.
OTHER THEORIES OF DUTY
The other two theories of duty relied upon by plaintiffs, heretofore referred to, take us into the law having to do with the liability of one who employs an independent contractor to do work and an injury to a third person results therefrom. Before discussing plaintiffs' particular theories, it would be well to draw a general distinction. As is made clear in Prosser on Torts (2d), Sec. 64, page 357 and in the Restatement, Torts (2d), Chapter 15, the contractee may be liable on either of two quite different theories: (1) the contractee may under the circumstances have a duty of care to a third person which he negligently fails to meet and therefore there is personal fault on the part of the contractee; (2) the contractee may under the circumstances have a "non-delegable" duty to the third person so that, even in the absence of personal fault, the contractee may be liable to the third person because of the negligence of the independent contractor. Neither of plaintiffs' theories of duty presently being considered involve a "non-delegable" duty in the sense above used; and it appears that plaintiffs are correct in not relying on such a theory because, if for no other reason, the Tort Claims Act (28 U.S.C.A. § 1346 (b)) requires negligence on the part of a Government employee while acting within the scope of his employment. (See also: United States v. Page,
Plaintiffs' theories may best be stated by simply quoting from Secs. 413 and 414 of the Restatement, Torts (2d), upon which plaintiffs rely:
Both of these rules, particularly the one contained in Sec. 413, might conceivably be applicable here if we did not follow the direction under the statement of each rule to "See Reporter's Notes." In Tentative Draft No. 7, special note to Chapter 15 (which chapter contains all of the rules having to do with the liability of one who employs an independent contractor to do work, including Secs. 413 and 414), it is said at page 17:
We therefore conclude that these Restatement Chapter 15 sections are not applicable here because plaintiffs were employees of an independent contractor and were working on their employer's premises. (See also, on the liability of a contractee for injuries to employees of the independent contractor, United States v. Page, 350 F.2d 28, 33 (10th Cir. 1965) and cases cited therein.)
Moreover, none of the Tennessee cases relied upon by plaintiffs are applicable here. In McHarge v. M. M. Newcomer & Co., 117 Tenn. 595, 100 S.W. 700, 9 L. R.A.,N.S., 298 (1906), the defendant employed an independent contractor to repair his awning overhanging the street and the contractor negligently dropped a roller which injured a pedestrian. This holding of liability is apparently based on a true "non-delegable" duty theory, not on personal fault on the part of the contractee, which theory, as we have seen, is not in any event available to plaintiffs here, and further the injured plaintiff was not an employee of the contractor. In Blair v. Durham, 134 F.2d 729 (6th Cir. 1943), which applied Tennessee law, the defendant, a prime contractor, built a scaffold for repairs to a room in a Government building and plaintiff, a Government employee, was injured when an object fell while the scaffold was being used by a subcontractor. The court affirmed the judgment for the plaintiff below on the ground that defendant itself negligently constructed the scaffold; and it affirmed on the additional ground that the defendant, though a contractee as to this particular work, had a duty of care to third persons which it negligently failed to meet but again the injured plaintiff was not an employee of the subcontractor. In International Harvester Co. v. Sartain, 32 Tenn.App. 425, 222 S.W.2d 854 (1948), the injured plaintiff was an employee of an independent contractor but the defendant was the owner and possessor of the premises on which the injured plaintiff was an invitee and defendant supplied the electricity that injured the plaintiff. In Pierce v. United States, 142 F.Supp. 721 (E.D.Tenn.1955), aff'd 235 F.2d 466 (6th Cir. 1956), the injured plaintiff was an employee of an independent contractor but the Government was the owner and possessor of the premises on which the injured plaintiff was an invitee and the Government supplied the electricity which injured the plaintiff. In Mahoney v. United States, 220 F.Supp. 823 (E.D.Tenn.1963), aff'd 339 F.2d 605 (6th Cir. 1964), the district court held that there was no liability only because of failure of proof as to negligence and causation, but it is clear that the court held that the Government owed the plaintiffs, who were employees of an independent contractor, a duty only because it owned and controlled the premises on which they were injured.
It is undisputed here that plaintiffs were employees of an independent contractor and that their employer owned and was in possession of the premises and equipment. (Actually, they were employees of a subcontractor of the prime contractor. Their employer was a wholly owned subsidiary of the prime contractor. The principles set out and relied upon in
While the rulings we have made dispose of these cases, perhaps we should say a word about causation. As stated, it was plaintiffs' theory that dust and grit on the powder-filled relay cups caused the explosion. They introduced proof by eminent experts that abrasion of the relay cups, with the presence of particles of grit on the powder therein, would cause minute hot spots which would in turn set off an explosion. They conceded that there were other possible causes. In any event, the difficulty is that the plaintiffs did not show by the preponderance of the evidence that dust and grit was present on these relay cups. There was proof that there had been dust and grit in the air and on the work tables due to activities that morning of the carpenters. But Mrs. Richardson and the Government quality inspector had just inspected these relay cups prior to the explosion, and they noticed no dust or grit thereon. Therefore, the testimony of the experts that this explosion was caused by the presence of dust and grit on the relay cups is based on an assumed fact not shown by the preponderance of the evidence to exist.
It therefore results that a judgment will be entered for the defendant in both cases, and counsel will prepare the order for entry.