
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]                                                 ___________________                                                                                      ____________________                                        Before                                Selya, Circuit Judge,                                       _____________                            Coffin, Senior Circuit Judge,                                    ____________________                               and Cyr, Circuit Judge.                                        _____________                                                                                      ____________________             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.                                                                                      ____________________                                   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                                          2          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                      ____                                          3          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                                          4          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.                    ________                                                   ____________________               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).                                          7
