Phinney v. United States

• Court: Court of Appeals for the First Circuit
• Decided: February 3, 1994
• Docket: 93-1797
• Status: Published

Opinion

USCA1 Opinion

UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT

                                _____________________

        No. 93-1797

                                   THERESA PHINNEY,

                                Plaintiff, Appellant,

                                          v.

                              UNITED STATES OF AMERICA,

                                 Defendant, Appellee.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

                          FOR THE DISTRICT OF NEW HAMPSHIRE

                 [Hon. Joseph A. DiClerico, Jr., U.S. District Judge]
                                                 ___________________

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                                        Before

                                Selya, Circuit Judge,
                                       _____________

                            Coffin, Senior Circuit Judge,
                                    ____________________

                               and Cyr, Circuit Judge.
                                        _____________

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Edwin Paul Gale, with whom Thomas E. Craig and Thomas Craig, P.A.
             _______________            _______________     __________________
        were on brief for appellant.
             Gretchen Leah  Witt, Chief,  Civil Division,  with whom  Peter E.
             ___________________                                      ________
        Papps, United  States Attorney,  and Elaine  Marzetta Lacy,  Assistant
        _____                                _____________________
        United States Attorney, were on brief for appellee.

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                                   February 3, 1994
                                                     
                                 ____________________

Cyr,  Circuit   Judge.     Plaintiff-appellant  Theresa
                    Cyr,  Circuit   Judge.
                          _______________

          Phinney  was struck  and  injured  by a  backhoe  operated by  an

          employee of  Middlesex  Corporation,  an  independent  contractor

          engaged  by the  United States  to resurface  roads at  Pease Air

          Force Base  in New  Hampshire.   After exhausting  administrative

          remedies, see  28 U.S.C.    2675, plaintiff brought  this Federal
                    ___

          Tort  Claims  Act [FTCA]  suit,  alleging, inter  alia,  that the
                                                     _____  ____

          United  States breached  a nondelegable  duty of  care under  New

          Hampshire law  by allowing its  contractor to  operate a  backhoe

          with an  inoperative safety alarm.   The United States  moved for

          summary judgment on the grounds  that it has not waived sovereign

          immunity  from suit  for the  torts of  its contractors,  see id.
                                                                    ___ ___

            2671; United States  v. Testan, 424 U.S. 392,  399 (1976), and,
                  _____________     ______

          in  any event, that the "discretionary function exception" to the

          FTCA, see id.   2680(a), shields it from any such liability.  The
                ___ ___

          district  court dismissed on  the sovereign immunity  ground, and

          Phinney appealed.   We now affirm, substantially  for the reasons

          stated in the unpublished district court opinion.  See Phinney v.
                                                             ___ _______

          United States, No. 90-467-JD, slip op. (D. N.H. July 12, 1993).  
          _____________

                    Although  appellant  concedes   that  Middlesex  was  a

          "contractor," within  the meaning of 28 U.S.C.   2671, see United
                                                                 ___ ______

          States v. Orleans,  425 U.S. 807,  814-15 (1976), she  challenges
          ______    _______

          the  district court  ruling, under  New  Hampshire law,  that the

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activity  Middlesex contracted to  perform for the  United States

          was not inherently dangerous. 

                    The district court relied primarily on Wilson v. Nooter
                                                           ______    ______

          Corp., 499  F.2d 705 (1st Cir. 1974), where  we held, as a matter
          _____

          of law, that the defendant  was not liable to the  injured plain-

          tiff  under the "inherent danger"  exception to the New Hampshire

          independent contractor rule because:  

                    the lateral  movement of the  boom . . .  was
                    not a  necessary or  anticipated part  of the
                    project.   It could,  and  should, have  been
                    _______
                    prevented by setting the proper switch in the
                    crane.  [The plaintiff]  did not allege,  and
                    the evidence does not show, that  [the defen-
                    dant] knew or  should have known at  the time
                                                     __  ___ ____
                    it engaged the Ferguson crane that the crane-
                    __ _______ ___ ________ _____
                    's operators would fail to set that switch.

          Id. at 708  (emphasis added) (footnote omitted).   Similarly, the
          ___

          district court in  this case ruled that the  United States, "when

          it contracted  with Middlesex, had  no reason to suspect  or know

          that  Middlesex would allow  its employees to  work with malfunc-

          tioning equipment."  Phinney, slip  op. at 8-9.  Consequently, as
                               _______

          we explained  in Wilson, 499  F.2d at 708, the  "inherent danger"
                           ______

          exception is unavailing  to appellant because it was  not "'natu-

          rally to be  apprehended'" by the United  States, at the time  it
                                                            __ ___ ____  __

          contracted with  Middlesex, that  a backhoe  with an  inoperative
          __________ ____  _________

          alarm system would be used to perform the road surfacing work.

                    Appellant counters  that  Carr  v.  Merrimack  Farmer's
                                              ____      ___________________

          Exch., Inc., 146 A.2d 276 (N.H. 1958),  is a case more closely in
          ___________

          point.   In Carr, a  contractor hired  by the defendant  to truck
                      ____

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baled hay piled the bales dangerously high, and  the hay fell and

          injured  the plaintiff.  Id.  at 278.   The New Hampshire Supreme
                                   ___

          Court first noted  that transporting baled  hay is not  generally
                                                                  _________

          considered "inherently dangerous."   Id. at 279.   The court went
                                               ___

          on to  hold, however, that  since the plaintiff had  alleged that

          the  defendant knew  or should  have  known that  the bales  were
                                                            ___ _____  ____

          stacked too high, the trucking
          _______ ___ ____

                    could . . . reasonably be found to present an
                    unreasonable risk of  injury to the traveling
                    public of such magnitude  that the defendant,
                    assuming  its  knowledge of  the facts  or of
                    ________  ___  _________ __  ___ _____  __ __
                    circumstances  charging it  with such  knowl-
                    _____________  ________ __  ____ ____  ______
                    edge, could reasonably be found under  a duty
                    ____
                    to avoid it.

          Id. (emphasis  added).   Appellant  insists that  her proffer    
          ___

          that the United States had actual knowledge of the malfunctioning

          alarm system  on the backhoe     was  enough to fend  off summary

          judgment, see Carr, 146 A.2d at 280.
                    ___ ____

                    Appellant  correctly notes that the court must consider

          the  circumstances in  each  case  in  ascertaining  whether  the

          activity to be performed under the contract is inherently danger-

          ous.  See Wilson, 499 F.2d at 707 n.4 (test is an objective one).
                ___ ______

          The  critical considerations for present purposes are whether the

          United  States reasonably  should  have  known,  at the  time  it
                                                           __ ___  ____  __

          contracted with Middlesex, that either the inherent nature of the
          __________ ____ _________

          work itself, see  Wilson, 499 F.2d at 708, or the manner in which
                       ___  ______

          it  would be performed by  the contractor, see  Carr, 146 A.2d at
                                                     ___  ____

          279, made  it unreasonably dangerous  so as to render  the United

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States'  duty of care  nondelegable.  Other  New Hampshire cases,

          including  Carr, as  well as  the Restatement  (Second) of  Torts
                     ____

            416 cmt.  a, corroborate  the Wilson  rationale, and  appellant
                                          ______

          points to no  contrary New Hampshire authority.1   Thus, although

          appellant  proffered  that  the  backhoe  operator   (appellant's

          husband) had  informed a  representative of  the Pease Air  Force

          Base  Civil Engineering Department, before the accident, that the
                                              ______ ___ ________

          backhoe  alarm worked only intermittently, there is no intimation

          that this  information had been  acquired by the time  the United

          States entered into the road surfacing contract with Middlesex.

                    Finally, appellant argues that the contract requirement

          that  the  backhoe be  equipped  with an  operative  safety alarm

          "compels the conclusion that it recognized that such equipment is

____________________

               1As  Carr, 146 A.2d at 276,  arose on motion to dismiss, the
                    ____
          court was  compelled to  assume that the  defendant knew,  at the
          time  the contract  was made,  that  the bales  had been  stacked
          dangerously high.  Thus, Carr is not  in point.  Further, in Lane
                                   ____                                ____
          v. Groetz, 230 A.2d 741 (N.H.  1967), decided after Carr, the New
             ______                             _______ _____ ____
          Hampshire Supreme Court held that the "inherent danger" exception
          did not apply  where the plaintiff's  decedent fell on a  path in
          the snow  shoveled by the  defendant's contractor, since  "it was
          not  a 'necessary  and anticipated  part of  the work'  which the
          [defendant] sought to  have done, that the path  should cross the
          street drain, and this consequence of causing the path to be made
          was  not 'naturally to be apprehended'  in advance."  Id. at 744,
                                                  __ _______    ___
          citing Thomas  v. Harrington,  54  A. 285  (N.H. 1903)  (emphasis
          ______ ______     __________
          added); see  Carr, 146 A.2d  at 279.  Similarly,  the Restatement
                  ___  ____
          (Second) of Torts  states that:  "[the  inherent danger exception
          is  a form  of the  rule that]  the employer  remains liable  for
          injuries  resulting from dangers  which he should  contemplate at
                                                                         __
          the time that  he enters into  the contract, and cannot  shift to
          ___ ____ ____  __ ______ ____  ___ ________
          the contractor the responsibility for such dangers, or for taking
          precautions  against them."   Restatement  (Second)  of Torts  at
            416 cmt. a (emphasis added).  

                                          5

inherently dangerous."  On the contrary, these contractual safety

          precautions  clearly cut  against  the  application  of  the  New

          Hampshire "inherent danger" exception in these circumstances.  In

          Carr,  the New  Hampshire  Supreme Court  adverted  to just  such
          ____

          contractual precautions:

                    One who employs an  independent contractor to
                    do work  which the employer  should recognize
                    as necessarily creating, during its progress,
                    conditions containing an unreasonable risk of
                    bodily harm to others unless special  precau-
                                                 _______  _______
                    tions are taken, is  subject to liability for
                    _____
                    bodily  harm caused by them by the absence of
                    such precautions,  if the employer  (a) fails
                    to provide  in the contract that the contrac-
                                __ ___ ________ ____ ___ ________
                    tor should take such precautions . . . or (b)
                    ___ ______ ____ ____ ___________
                    fails to exercise reasonable care to  provide
                    in some other  manner for the taking  of such
                    precautions.

          146 A.2d at 278  (quoting Restatement of the Law:   Torts,   413)

          (emphasis added).  Thus, assuming arguendo that there  was reason
                                            ________

          to  believe,  at the  time  the  United  States  contracted  with

          Middlesex, that  it  would be  unreasonably  dangerous to  use  a

          backhoe without an operative alarm system to perform the required

          road surfacing work, there is nothing to indicate that the United

          States failed  "to provide  in the contract  that the  contractor

          should take [special]  precautions" as contemplated in  Carr, 146
                                                                  ____

          A.2d at 278. 

                    The "inherent danger" determination respecting a parti-

          cular  activity turns on  whether its proper  performance entails
                 ________

          undue risk to others, see Wilson, 499  F.2d at 708 (danger "not a
                                ___ ______

          necessary or anticipated part of the project").   The possibility
                                               _______

                                          6

that an  employee might perform  the work in a  negligent fashion

          does not make the activity  inherently dangerous.  See id.; Lane,
                            ________                         ___ ___  ____

          230  A.2d at  744; Restatement  (Second)  of Torts    427 cmt.  d

          ("inherent  danger"  exception  "has  no  application  where  the

          negligence of the contractor creates  a new risk, not inherent in

          the work itself or in the ordinary or prescribed way of doing it,
                          __                    __________

          and not reasonably to be contemplated by the employer") (emphasis

          added).  As appellant failed  to demonstrate that this case comes

          within either version of  the "inherent danger" exception  to the

          New Hampshire independent  contractor rule, see Wilson,  499 F.2d
                                                      ___ ______

          at 708; Carr, 146 A.2d at 276, summary judgment was proper.2
                  ____

                    Since  the United States  has not waived  its sovereign

          immunity from suit for the  torts of its independent contractors,

          and  Phinney failed  to  demonstrate a  trialworthy  issue as  to

          whether  the United States  owed her an  independent nondelegable

          duty  under New  Hampshire  law,  the  district  court  correctly

          dismissed the  FTCA action for  lack of subject  matter jurisdic-

          tion.

                    Affirmed.
                    Affirmed.
                    ________

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               2Therefore,  we take no view of the "discretionary function"
          argument advanced by  the government or of the related discussion
          in  Clark v.  United States Dep't  of the  Army, 805 F.  Supp. 84
              _____     _________________________________
          (D. N.H. 1992).

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