GODBOLD, Circuit Judge.
Appellants sued the United States under the Federal Tort Claims Act, 28 U.S.C.A. § 1346(b), claiming damage done to their growing crops by negligent spraying from an airplane of the herbicide 2,4-D to eradicate water hyacinth and other noxious vegetation. At the close of the plaintiff's case the district court directed a verdict for the United States on the ground that the State of Florida, which through its Game and Fresh Water Fish Commission carried out the spraying operations, was neither an agent nor an employee of the United States but was an independent contractor and thus the United States could not be liable under the Tort Claims Act.
We hold that in light of the Florida law it was error to direct a verdict in favor of the United States.
The Tort Claims Act imposes liability on the United States for acts of its employees "in the same manner and to the same extent as a private individual under like circumstances," 28 U.S. C.A. § 2674,
It is clear the United States may not be held liable without fault. Dalehite v. United States, 346 U.S. 15, 73 S.Ct. 956, 97 L.Ed. 1427 (1953); Strangi v. United States, 211 F.2d 305 (5th Cir. 1954); Hopson v. United States, 136 F.Supp. 804 (W.D.Ark.1956). Nor do the terms of the Act permit the negligence of an independent contractor to be imputed to the United States. See United States v. Page, 350 F.2d 28 (10th Cir.
First, Florida follows the rule that where an employer gains knowledge of a dangerous situation created by an independent contractor it may incur liability through its failure to halt the operation or otherwise remove the danger. Maule Industries, Inc. v. Messana, 62 So.2d 737 (Fla.1953); Breeding's Dania Drug Co. v. Runyon, 147 Fla. 123, 2 So.2d 376 (1941); Peairs v. Florida Publishing Co., 132 So.2d 561 (Fla.App. 1961).
Second, Florida recognizes the principle that one who employs an independent contractor to engage in certain types of activity has a "nondelegable duty"
Counsel have pointed us to no Florida cases holding that aerial spraying of herbicides or insecticides is an activity sufficiently dangerous to warrant application of the Florida nondelegable duty rule. Nor has our own research produced such a Florida case.
27 P.2d at 680. We find nothing in the Florida cases to indicate that the courts of that state would adopt a contrary rule.
Respecting the alternative theory of liability — discovery, by the employer of an independent contractor, of a dangerous condition — we find no requirement in the Florida case law that the activity being carried on by the independent contractor must be inherently or intrinsically dangerous. See Maule Industries, Inc. v. Messana, supra; Breeding's Dania Drug Co. v. Runyon, supra. It is enough that the employer have knowledge that the independent contractor has created a situation which poses the danger of injury to others.
Under the Tort Claims Act the government is liable "in the same manner and to the same extent as a private individual under like circumstances * * *." 28 U.S.C.A. § 2674. Under the circumstances of this case Florida law would permit the plaintiff to prove that the private employer of an independent contractor failed to exercise reasonable care in a situation in which (a) the activity contracted for was inherently dangerous, or (b) the employer knew that the contractor had created a dangerous condition. By directing a verdict for the government on the ground that the Florida Game and Fresh Water Fish Commission was an independent contractor the district court failed properly to apply the law of Florida to the Tort Claims Act and to the facts of this case.
Accordingly plaintiff should have been allowed to have the jury decide whether employees of the United States negligently breached the duty imposed on an employer who discovers a dangerous situation created by its independent contractor or the nondelegable duty to exercise reasonable care to prevent harm from an
On the record before us it appears that the controlling law is that of Florida. However the parties are not precluded from showing on retrial that the negligent act or omission occurred elsewhere, with the consequences described in Richards v. United States, supra, 369 U.S. at 9-10, 82 S.Ct. 585, 7 L.Ed.2d at 498.
Reversed and remanded.
For instances of situations other than that presented by this case in which Florida has found the employer of an independent contractor to have a nondelegable duty, see National Rating Bureau, Inc. v. Florida Power Corp., 94 So.2d 809, 64 A.L.R.2d 859 (Fla.1957) (act contracted for is tortious); Easton v. Weir, 125 So.2d 115 (Fla.App.1960) (landlord undertaking repairs of building occupied and controlled by tenant).
Here we are concerned only with the Florida rule and express no views as to whether the nondelegable duty rule current in other jurisdictions could be applied against the government in a Tort Claims Act case. Compare Hopson v. United States, 136 F.Supp. 804 (W.D. Ark.1956).