                  FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


GREGORY EDISON,                    No. 14-15472
       Plaintiff-Appellant,
                                       D.C. No.
             v.                1:12-cv-02026-AWI-JLT

UNITED STATES OF
AMERICA; THE GEO GROUP,
INC.; MANAGEMENT AND
TRAINING CORPORATION,
      Defendants-Appellees.



RICHARD NUWINTORE,                 No. 14-17546
        Plaintiff-Appellant,
                                       D.C. No.
             v.                1:13-cv-00967-AWI-JLT

UNITED STATES OF
AMERICA,                             OPINION
       Defendant-Appellee,

            and

MANAGEMENT & TRAINING
CORPORATION,
             Defendant.
2                   EDISON V. UNITED STATES

         Appeals from the United States District Court
              for the Eastern District of California
        Anthony W. Ishii, Senior District Judge, Presiding

             Argued and Submitted February 8, 2016
                   San Francisco, California

                        Filed May 20, 2016

  Before: A. Wallace Tashima and William A. Fletcher,
 Circuit Judges, and Robert W. Gettleman,* Senior District
                          Judge.

                    Opinion by Judge Tashima


                           SUMMARY**


                    Federal Tort Claims Act

    The panel reversed the district court’s dismissal of
plaintiffs’ Federal Tort Claims Act (“FTCA”) action, and
held that the independent contractor exception to the FTCA
did not bar plaintiffs’ claims alleging a breach of the
government’s duties to prisoners housed at Taft Correctional
Institution in California’s San Joaquin Valley.



    *
   The Honorable Robert W. Gettleman, Senior United States District
Judge for the Northern District of Illinois, sitting by designation.
  **
     This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                  EDISON V. UNITED STATES                      3

   Plaintiffs are two prisoners housed at Taft who contracted
coccidiodomycosis (“cocci”), colloquially known as “Valley
Fever,” while incarcerated at Taft. Although the federal
Bureau of Prisons (“Bureau”) owns Taft, independent
contractors operate the prison.

    The panel held that plaintiffs met their burden to show
that the independent contractor exception did not bar the
district court’s subject matter jurisdiction under the FTCA.
Specifically, the panel held that the federal government owed
a duty of care to plaintiffs under California law, which
generally assumes that landowners have a duty to exercise
reasonable care in the ownership and management of the
property. The panel further held that the government’s duty
was underscored by the special relationship that California
recognizes between jailer and prisoner.

    Concerning plaintiffs’ specific claims, first, the panel held
that the Bureau’s duty to warn prisoners before transferring
them to Taft arose out of the scope of its contractor
relationship with the prison operators, and therefore was not
barred by the independent contractor exception. The panel
held that because cocci posed a hidden danger that plaintiffs
could not reasonably ascertain on their own, the United States
had a duty to warn plaintiffs of cocci’s risks prior to their
transfer to Taft. The panel further held that the United States
could not have designated this duty to the prison operators.

    Second, the panel held that to the extent that plaintiffs
alleged that the Bureau was negligent in failing to construct
covered walkways or other protective structures, the
independent contractor exception to the FTCA did not bar the
district court from considering their claim where the Bureau
retained the duty to construct such structures.
4                EDISON V. UNITED STATES

    Third, the panel held that the independent contractor
exception to the FTCA did not bar the district court from
exercising jurisdiction over plaintiffs’ claim that the Bureau
had a duty to develop an adequate cocci prevention policy
where the Bureau expressed its intent to retain control over
the specific duty to develop a policy for the prevention and
treatment of cocci.


                        COUNSEL

Ian M. Wallach (argued) and Jason K. Feldman (argued),
Feldman & Wallach, Venice, California; Mark A. Ozello and
Suzy E. Lee, Arias Ozzello & Gignac, LLP, Los Angeles,
California; Raymond P. Boucher and Hermez Moreno,
Khorrami Boucher Sumner Sanguinetti, LLP, Los Angeles,
California, for Plaintiffs-Appellants.

Alyson A. Berg (argued), Assistant United States Attorney,
and Benjamin B. Wagner, United States Attorney, United
States Attorney’s Office, Fresno, California, for Defendant-
Appellee.

No appearance for Defendants-Appellees The GEO Group,
Inc. and Management & Training Corp.
                 EDISON V. UNITED STATES                     5

                         OPINION

TASHIMA, Circuit Judge:

    Plaintiffs are two prisoners housed at Taft Correctional
Institution (“Taft”), the only federally-owned and contractor-
operated prison in the country. In 2003, Taft was struck by
an outbreak of coccidioidomycosis (“cocci”), colloquially
referred to as “Valley Fever.” In most individuals, cocci
manifests primarily as a minor fever. In an unlucky few,
however, the disease takes a different, more devastating
course – it causes a number of painful conditions, and can be
fatal. Plaintiffs, along with an unprecedented number of
other prisoners, contracted cocci while incarcerated at Taft.
Both developed the more dangerous form.

     Plaintiffs assert, under the Federal Tort Claims Act
(“FTCA”), that the United States breached its duty to protect
them from harm. The FTCA holds the government liable for
its torts to the same extent as a private individual in similar
circumstances. But the government’s liability under the
FTCA is limited. The government cannot be held liable for
torts committed by its independent contractors; accordingly,
the district court lacks jurisdiction to entertain such claims.
Nevertheless, the independent contractor exception is not a
complete bar to liability any time the United States employs
an independent contractor. Some duties of care are
nondelegable; others are retained by the government, if not
delegated. Here, the federal government retained some of its
duties to Taft prisoners. The independent contractor
exception to the FTCA does not bar Plaintiffs’ claims
alleging a breach of those duties the United States retained.
6                EDISON V. UNITED STATES

    The district court granted the government’s motions to
dismiss for lack of subject-matter jurisdiction, Fed. R. Civ. P.
12(b)(1), under the independent contractor exception to the
FTCA, 28 U.S.C. § 2671. Plaintiffs timely appeal. We have
jurisdiction under 28 U.S.C. § 1291, and we reverse.

                               I.

    Taft is located in California’s southern San Joaquin
Valley. Although the Federal Bureau of Prisons (“BOP”)
owns Taft, independent contractors operate the prison. This
arrangement is unique within the BOP.

    In 1997, Wackenhut Corrections Corporation, now known
as The GEO Group, Inc. (“GEO”), was awarded a ten-year
contract to operate Taft. In 2007, the BOP awarded a similar
contract to Management & Training Corporation (“MTC”).
MTC continues to operate Taft pursuant to its contract with
the BOP. Both contracts assigned to the contractor the day-
to-day operations of the prison, including the maintenance of
buildings and the provision of medical care. A BOP
employee who worked at Taft confirmed that “[n]o BOP
employee was responsible for inmate safety and security,
building and grounds maintenance, sanitation, health services,
inmate orientation, inmate education, inmate recreation,
inmate employment, inmate discipline, or any other aspect”
of Taft’s day-to-day operations. Yet, both contracts also
reserved to the government the right to construct new
buildings, expand existing buildings, and modify or add to the
mechanical or utility systems of existing buildings.
                   EDISON V. UNITED STATES                          7

      A. Outbreak at Taft

     In 2003, an epidemic of coccidioidomycosis struck Taft.
Cocci is an infectious disease caused by inhalation of
Coccidioides immitis, a fungus that lives in the San Joaquin
Valley soil. According to the Center for Disease Control and
Prevention (“CDC”), “[s]ymptomatic coccidioidomycosis,
which occurs in approximately 40% of all infections, has a
wide clinical spectrum, including mild influenza-like illness,
severe pneumonia, and disseminated disease.”1              The
disseminated form of the disease – that is, when the fungus
spreads from the lungs to the body’s other organs – is the
most serious. Disseminated cocci may cause miliary
tuberculosis, bone and joint infections (including
osteomyelitis), skin disease, soft tissue abscesses, and
meningitis. In some cases, surgery may be the only available
treatment. The antifungal Fluconazole is effective against
most cocci infections, but it is a daily treatment that must be
continued for the rest of the patient’s life. Individuals of
certain races, especially African-Americans and Filipinos, are
at significantly higher risk of contracting disseminated cocci
than the rest of the population. If left untreated and allowed
to progress to meningitis, the disseminated form of the
disease is uniformly fatal.

    Taft is located in a region with one of the highest
concentrations of the cocci fungus. In 2003, the number of
prisoners infected at Taft reached epidemic numbers.
Infections reportedly more than doubled between 2003 and
2005. The warden of Taft admitted there were “more cases


  1
   See Morbidity and Mortality Weekly Report: Coccidioidomycosis –
California, 1991–1993, Ctr. for Disease Control & Prevention (Jun. 17,
1994), http://www.cdc.gov/mmwr/preview/mmwrhtml/00031453.htm.
8                EDISON V. UNITED STATES

of diagnosed Valley Fever [at Taft] than in all other federal
prisons combined.”      Several prisoners subsequently
developed the disseminated form of the disease, and at least
one died.

    B. The Official Response

    In response to the outbreak, the BOP contacted the CDC.
Together, the agencies were to develop a plan addressing the
epidemic at Taft. Plaintiffs presented evidence that, although
the original plan included protocols for prevention, in
addition to diagnosis and treatment, the BOP subsequently
reversed course, abandoning its prevention efforts to focus
exclusively on early diagnosis and treatment. Except for a
small population of uninfected but immunocompromised
prisoners, the final policy provided for only those individuals
already infected with cocci. While formulating this policy,
BOP officials sent an internal email requiring that all CDC
and BOP employees coordinate policy efforts through the
office of the BOP’s medical team. The BOP specifically
excluded its contractors from participating in policy
development, mandating that “all CDC and BOP employees
cease discussions with other parties (including any third-party
contractors . . . ).” For prisoners who develop any form of
cocci, including disseminated cocci, while incarcerated, The
BOP provides no post-release medical care.

   The BOP’s contractors also took action. Around 2003 or
2004, GEO increased the frequency of various maintenance
programs. GEO assigned prisoners to dust more regularly,
wipe down the walls in the dormitories, and vacuum the
overhead sprinklers where dust could accumulate. In
addition, air filters in the ventilation system were replaced
more frequently. GEO closed the recreation yard on windy
                 EDISON V. UNITED STATES                    9

days, because on those days the fungus becomes airborne,
increasing the risk of infection.

    According to its contract with the BOP, GEO was also
responsible for providing healthcare to infected prisoners.
Accordingly, GEO distributed information sheets about cocci
to prisoners at the Health Services Unit. Starting in 2004,
GEO also posted flyers describing cocci and its symptoms on
bulletin boards outside the bathrooms in prisoner housing
units. The flyers advised prisoners to report to the Health
Services Unit if they began to experience symptoms. After
taking over Taft’s operations in 2007, MTC created a written
protocol for the intake, screening, and treatment of prisoners
admitted to the health facility with symptoms of cocci. The
protocol, however, did not address prevention.

   C. The Edison and Nuwintore Litigation

    On September 21, 2005, Plaintiff-Appellant Gregory
Edison, an African-American man, was sentenced to serve
198 months in federal prison. The BOP assigned Edison to
Taft. He was diagnosed with cocci on October 30, 2010.
Edison alleges that he was in good health prior to his
assignment to Taft and had not previously been exposed to
the disease.

    On July 5, 2011, Plaintiff-Appellant Richard Nuwintore,
also an African-American man, was sentenced to serve 14
months in federal prison. The BOP assigned Nuwintore to
Taft. Nuwintore was diagnosed with disseminated cocci in
September 2011. Like Edison, Nuwintore alleges that he was
in good health prior to his assignment to Taft and was not
previously exposed to the disease.
10                   EDISON V. UNITED STATES

    In 2012, Edison filed suit against the United States and its
independent contractors, GEO and MTC, in the Eastern
District of California. He sought damages for personal injury
as a result of contracting cocci while incarcerated at Taft.
Edison alleged three claims against the United States under
the FTCA. He alleged that the BOP had failed: (1) to warn
Edison adequately of the dangers presented by cocci; (2) to
provide Edison with a safe and habitable prison when it
neglected to implement various preventative measures; and
(3) to develop and implement an adequate response to the
cocci epidemic.2 The United States filed a motion to dismiss
for lack of subject matter jurisdiction, arguing that the
FTCA’s independent contractor exception barred Edison’s
suit. The district court granted the motion. Edison, 2013 WL
4828579, at *6.


 2
    The third claim in Edison’s complaint alleges that the BOP “failed to
provide suitable quarters and provide for the protection, safekeeping, care,
and subsistence” of Edison as required by 18 U.S.C. § 4042(a). But in his
opposition to the United States’ motion to dismiss, Edison apparently
glossed this claim to encompass the BOP’s failure, in concert with the
CDC, to develop a prevention program to protect prisoners who had not
yet contracted cocci. On appeal, Edison characterizes the grounds for
liability as: (1) failure to warn; (2) failure to modify structures; and
(3) failure to develop and implement an adequate response to the cocci
epidemic. The district court did not address this discrepancy, see Edison
v. United States, No. 1:12-CV-02026-AWI, 2013 WL 4828579, at *1, *5
(E.D. Cal. Sept. 9, 2013), and the United States does not contest Edison’s
re-characterization of his third claim on appeal. Therefore, we treat the
third claim as alleging a negligent failure to develop and implement an
adequate response to the cocci epidemic. On remand, the district court
should grant Edison leave to amend his complaint accordingly. See
Chudacoff v. Univ. Med. Ctr. of S. Nev., 649 F.3d 1143, 1152 (9th Cir.
2011) (noting leave to amend “should [be] freely give[n] when justice so
requires . . . to facilitate decision on the merits, rather than on the
pleadings or technicalities” (alterations in original) (internal quotation
marks and citations omitted)).
                   EDISON V. UNITED STATES                          11

    Nuwintore filed suit against the United States and MTC,
also in the Eastern District of California, alleging the same
three claims as Edison. Once again, the United States moved
to dismiss for lack of subject matter jurisdiction under the
FTCA. The magistrate judge, to whom the matter was
referred, agreed with the district court’s conclusion in Edison
that the independent contractor exception barred jurisdiction.
Nuwintore v. United States, No. 1:13-CV-00967-AWI, 2014
WL 1091358, at *9 (E.D. Cal. Mar. 18, 2014). The district
court adopted the magistrate judge’s findings and
recommendation in full and granted the United States’ motion
to dismiss. Nuwintore v. United States, No. 1:13-CV-00967-
AWI, 2014 WL 2174681, at *2 (E.D. Cal. May 23, 2014).

    After their claims against the government were dismissed,
both Edison and Nuwintore moved for the entry of final
judgment pursuant to Federal Rule of Civil Procedure 54(b).3
The district court granted the motions. Edison v. United
States, No. 1:12-cv-02026-AWI, 2014 WL 896977, at *6
(E.D. Cal. Mar. 6, 2014); Nuwintore v. United States, No.
1:13-CV-0967-AWI, 2014 WL 7335215, at *3 (E.D. Cal.
Dec. 19, 2014). Upon entry of the Rule 54(b) final
judgments, Plaintiffs appealed.

                                  II.

     It is undisputed that the BOP’s independent contractors
are responsible for the day-to-day operations of Taft. But our
precedents do not hold that the United States is absolved of
all liability, no matter what the injury complained of or its
cause, any time it hires an independent contractor. This case

   3
     Edison and Nuwintore continue to litigate their claims against the
independent contractors, GEO and MTC, in the district court.
12                EDISON V. UNITED STATES

requires us to ascertain the boundaries of the United States’
liability when it has delegated some, but not all, of its legal
duties to an independent contractor.

     A. Standard of Review

    We review de novo a dismissal for lack of subject matter
jurisdiction under the FTCA. Vacek v. U.S. Postal Serv.,
447 F.3d 1248, 1250 (9th Cir. 2006). We review “[t]he
district court’s findings of fact relevant to its determination of
subject matter jurisdiction . . . for clear error.” Autery v.
United States, 424 F.3d 944, 956 (9th Cir. 2005) (quoting
Ass’n of Am. Med. Colls. v. United States, 217 F.3d 770, 778
(9th Cir. 2000)).

     An attack on subject matter jurisdiction may be facial or
factual. “In a facial attack, the challenger asserts that the
allegations contained in a complaint are insufficient on their
face to invoke federal jurisdiction. By contrast, in a factual
attack, the challenger disputes the truth of the allegations that,
by themselves, would otherwise invoke federal jurisdiction.”
Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir.
2004). Here, the United States mounted a factual attack when
it filed declarations and affidavits challenging Plaintiffs’
allegations that the government owed them a legal duty. The
government argued that it had delegated to private contractors
all duties the BOP owed Taft prisoners.

    In response to a factual attack, Plaintiffs must present
“affidavits or any other evidence necessary to satisfy [their]
burden of establishing that the court, in fact, possesses subject
matter jurisdiction.” Colwell v. Dep’t of Health & Human
Servs., 558 F.3d 1112, 1121 (9th Cir. 2009) (citation
omitted). The district court may look beyond the pleadings
                 EDISON V. UNITED STATES                    13

to the parties’ evidence without converting the motion to
dismiss into one for summary judgment. White v. Lee,
227 F.3d 1214, 1242 (9th Cir. 2000). In evaluating the
evidence, the court “need not presume the truthfulness of the
plaintiffs’ allegations.” Id. Any factual disputes, however,
must be resolved in favor of Plaintiffs. Dreier v. United
States, 106 F.3d 844, 847 (9th Cir. 1996).

   B. The FTCA’s Independent Contractor Exception

     The United States is immune from suit unless it consents
to be sued. See Dalehite v. United States, 346 U.S. 15, 30
(1953) (citing Feres v. United States, 340 U.S. 135, 139
(1950)). The FTCA is a limited waiver of that sovereign
immunity, under which “the United States is liable to the
same extent as a private party for certain torts of federal
employees . . . ‘in accordance with the law of the place where
the act or omission occurred.’” Autery, 424 F.3d at 956
(quoting 28 U.S.C. § 1346(b)(1)). The FTCA’s limited
waiver of sovereign immunity explicitly excludes “any
contractor with the United States” from its definition of
“[e]mployee of the government,” 28 U.S.C. § 2671; this is
known as the independent contractor exception to the FTCA.
Courts have construed the independent contractor exception
to protect the United States from vicarious liability for the
negligent acts of its independent contractors. Yanez v. United
States, 63 F.3d 870, 872 n.1 (9th Cir. 1995). “Since the
United States can be sued only to the extent that it has waived
its immunity, due regard must be given to the exceptions,
including the independent contractor exception, to such
waiver.” United States v. Orleans, 425 U.S. 807, 814 (1976).

   The independent contractor exception, however, has no
bearing on the United States’ FTCA liability for its own acts
14                    EDISON V. UNITED STATES

or omissions. “Many cases recognize that it is not a defense,
to liability for one’s own negligence in connection with an
actor whose conduct injured a third party, that the actor was
not an agent or an employee,” but rather an independent
contractor. Restatement (Third) Of Agency § 7.05 (2006).
Even where an employer has delegated some responsibilities
to an independent contractor, the employer may still be held
separately and directly liable for its own negligence.4 See
Logue v. United States, 412 U.S. 521, 532–33 (1973). Thus,
a determination that the United States has declined to exercise
control over the day-to-day operations of its contractor is not
the end of the analysis. We must also determine whether
Plaintiffs have alleged a separate nondelegable or
undelegated duty, which the United States could be held
directly liable for breaching. Only upon a finding that the
government delegated its entire duty of care may the court
dismiss the claim for lack of jurisdiction under the FTCA’s
independent contractor exception.

    Here, the district court denied Plaintiffs’ claims because
the BOP delegated day-to-day care of Taft prisoners to GEO
and MTC: “MTC was responsible for inmate orientation and


  4
     The Ninth Circuit has previously applied this principle to hold the
United States liable under the FTCA. An example is the line of FTCA
cases applying the “peculiar risk” doctrine to hold the government directly
liable for its failure to act, despite its delegation of safety procedures to an
independent contractor. See Myers v. United States, 652 F.3d 1021, 1034
(9th Cir. 2011); Yanez, 63 F.3d at 872 n.1 (“Under the FTCA, the United
States may not be held vicariously liable. However, [peculiar risk]
liability has been construed as creating direct liability for the
government’s nondelegable duty to ensure that the contractor employs
proper safety procedures.” (citing McCall v. United States, 914 F.2d 191,
194 (9th Cir. 1990))); McGarry v. United States, 549 F.2d 587, 590 (9th
Cir. 1976).
                  EDISON V. UNITED STATES                     15

health, and warned inmates regarding the risks of [cocci],”
while the BOP “was not responsible for maintenance,
sanitation, health services, health education or inmate
orientation.” Nuwintore, 2014 WL 1091358, at *9. That is,
the BOP did not attempt to supervise or control GEO/MTC in
performing the day-to-day tasks of running a prison. Id.
Based on the foregoing, the district court concluded that the
independent contractor exception prevented it from exercising
jurisdiction over Plaintiffs’ claims under the FTCA.

     There is no question in this case that GEO and MTC were
independent contractors – Plaintiffs have conceded as much.
Plaintiffs, however, do not seek to hold the United States
vicariously liable for the acts or omissions of GEO/MTC.
Rather, Plaintiffs seek to hold the United States directly liable
for its failure to take action in response to the cocci epidemic,
outside the scope of its relationship with GEO/MTC.
Plaintiffs rely on a duty of the United States that arose before
they arrived at Taft, which could not have been delegated in
a practical sense; they point to other duties retained by the
United States, which accrued after their arrival, and were
separate from the day-to-day responsibilities that the parties
agree were delegated to GEO/MTC. The district court erred
in its independent contractor analysis when it failed to
address these arguments.

    C. The United States’ Direct Liability

    Whether the United States may be held liable under the
FTCA for its own acts or omissions is a three-step inquiry.
First, we decide whether state law, in this case, California
law, would impose a duty of care on a private individual in a
similar situation. 28 U.S.C. § 2674; Autery, 424 F.3d at 956.
“The extent of the United States’ liability under the FTCA is
16                EDISON V. UNITED STATES

generally determined by reference to state law.” Liebsack v.
United States, 731 F.3d 850, 855 (9th Cir. 2013) (quoting
Molzof v. United States, 502 U.S. 301, 305 (1992)). Because
Taft is located in California, we look to California law to
evaluate Plaintiffs’ claims. Second, if it would, we then look
to the contract and the parties’ actions to determine whether
the United States retained some portion of that duty for which
it could be held directly liable. See Autery, 424 F.3d at
957–59 (examining contractual language and parties’ course
of dealing to determine whether the duty was delegated);
McGarry, 549 F.2d at 588 (describing contractual language
and parties’ past practices). Finally, even if it appears that the
government delegated all of its duties to the independent
contractor, we ask whether California law imposed any
nondelegable duties on the government. Yanez, 63 F.3d at
874–75 (holding United States had nondelegable duty under
California law); McGarry, 549 F.2d at 590 (holding United
States had nondelegable duty under Nevada law).

    In this case, California law imposes a general duty of care
on the United States as a landowner. Section 1714 of the
California Civil Code sets forth the basic policy governing
landowner liability in Califonia. It states, in relevant part:

        Everyone is responsible, not only for the
        result of his or her willful acts, but also for an
        injury occasioned to another by his or her
        want of ordinary care or skill in the
        management of his or her property or person,
        except so far as the latter has, willfully or by
        want of ordinary care, brought the injury upon
        himself or herself.
                    EDISON V. UNITED STATES                            17

Cal. Civ. Code § 1714(a). See also Kinsman v. Unocal Corp.,
123 P.3d 931, 938–39 (Cal. 2005) (quoting Rowland v.
Christian, 443 P.2d 561, 568 (Cal. 1968)).

    In California, landowners must act reasonably in the
management of their property, with an awareness of “the
probability of injury to others.” Id. The state employs a
strong presumption in favor of finding that landowners, and
indeed all persons, have a duty to use ordinary care to
prevent injury to others: “[I]n the absence of a statutory
provision establishing an exception to the general rule of
Civil Code § 1714, courts should create one only where
‘clearly supported by public policy.’” Cabral v. Ralphs
Grocery Co., 248 P.3d 1170, 1174 (Cal. 2011) (quoting
Rowland, 443 P.2d at 564).5




 5
   Although broad, this basic policy is not without its limits. In Rowland,
the California Supreme Court indicated several factors that, “when
balanced together, may justify a departure from” the general duty of care
imposed by § 1714. See Cabral, 248 P.3d at 1174. Foremost among the
Rowland factors are the foreseeability of the harm and the burden to the
defendant. Campbell v. Ford Motor Co., 141 Cal. Rptr. 3d 390, 404 (Ct.
App. 2012), as modified on denial of reh’g (June 19, 2012) (quoting
Vasquez v. Residential Inv., Inc., 12 Cal. Rptr. 3d 846, 854 n.5 (Ct. App.
2004)).

     These exceptions notwithstanding, California has historically held
that § 1714 gives rise to a duty of care in a wide range of circumstances.
In Kinsman, the California Supreme Court imposed a duty on landowners
who hire independent contractors to warn invitees “of a latent or
concealed pre-existing hazardous condition on [the] property,” which the
landowner knew or should have known about. Kinsman, 123 P.3d at 933.
In Sprecher v. Adamson Co., 636 P.2d 1121 (Cal. 1981), the court applied
Rowland to impose a duty of reasonable care on landowners to protect
even individuals injured off-property from natural hazards. Id. at 1128.
18               EDISON V. UNITED STATES

    Plaintiffs allege that the United States, acting through the
BOP, owed three specific duties to Taft prisoners. First,
Plaintiffs argue the United States had a duty to warn prisoners
about cocci. Second, Plaintiffs argue the United States had a
duty to implement preventative measures to protect prisoners
– particularly those with a heightened risk of developing the
disseminated form of the disease – from contracting cocci.
Third, Plaintiffs argue that by specifically excluding its
independent contractors from efforts to develop a prevention
policy in partnership with the CDC, the United States retained
a duty to ensure the policy adequately protected prisoners
from harm. We analyze each of these claims in turn.

       1. Duty to Warn

    Although GEO and MTC provided some warnings to
Plaintiffs in the form of flyers posted around the prison, the
BOP itself never issued any warnings to prisoners regarding
the risk of contracting cocci at Taft. In California,
landowners may be held liable for a failure to warn invitees
of hidden dangers where “(1) defendant [landowners] knew
or reasonably should have known of a concealed, preexisting
hazardous condition on their premises; (2) plaintiff . . . did
not know and could not reasonably ascertain the condition;
and (3) defendants failed to warn plaintiff.” Gravelin v.
Satterfield, 132 Cal. Rptr. 3d 913, 919 (Ct. App. 2011) (citing
Kinsman, 123 P.3d at 940). Because cocci poses a hidden
danger that Plaintiffs could not reasonably ascertain on their
own, the United States had a duty to warn Plaintiffs of cocci’s
risks prior to their transfer to Taft.

    In the district court, Plaintiffs presented uncontroverted
evidence that the BOP knew Taft prisoners had an increased
risk of cocci exposure and infection at least as of the late
                     EDISON V. UNITED STATES                            19

1990s. Yet until GEO/MTC passed that information on to
prisoners, it is highly unlikely that Plaintiffs could have
known about the increased likelihood of contracting cocci
there, let alone the heightened danger facing African-
American, Filipino, and immunocompromised individuals.
A fungus that resides in the soil of the San Joaquin Valley,
cocci is invisible and scentless; individuals are typically
infected by breathing in dust, especially in windy conditions.
Cocci is a classic example of a hidden danger, and the United
States had a duty to warn Plaintiffs about it.6

     To prove that the district court had jurisdiction over their
claims, Plaintiffs must also show that the United States did
not delegate its duty of care. Here, the United States could
not have delegated its duty to warn Plaintiffs for a simple
reason: GEO and MTC have no power to assign prisoners or
to protect any prisoners housed outside of Taft. Thus, even
if the United States could have delegated its duty to warn
Plaintiffs once they arrived at Taft, it was not practically
possible to delegate that portion of the government’s duty
arising prior to Plaintiffs’ transfer to Taft. We conclude that
the independent contractor exception did not bar the district
court from exercising jurisdiction over that portion of
Plaintiffs’ failure to warn claim covering the period of time
prior to Plaintiffs’ transfer to Taft. Because the United States
could not have delegated this duty to GEO/MTC, our inquiry
ends at the second step of the analysis.


    6
       The importance of the duty is made clear by assessing the
consequences of breach: The United States’ failure to warn Plaintiffs
about cocci prior to transfer likely kept them from taking any preventative
action to protect themselves. Plaintiffs were deprived of the opportunity
to request transfer to a different facility or to seek alternative placement
via the BOP’s administrative grievance procedures.
20               EDISON V. UNITED STATES

       2. Duty to Build or Modify Protective Structures

    Once GEO/MTC warned Plaintiffs about cocci, the
possibility of infection became a known hazard.
Nevertheless, in California, a landowner’s duty of care does
not end with the requirement to warn individuals of hidden
dangers. California relies on Restatement (Second) of Torts
§ 343A to define the duties of a possessor of land toward
invitees, including those who encounter a known danger.
According to the Restatement, “[a] possessor of land is not
liable to his invitees for physical harm caused to them by any
activity or condition on the land whose danger is known or
obvious to them, unless the possessor should anticipate the
harm despite such knowledge or obviousness.” Restatement
(Second) of Torts § 343A(1) (1965) (emphasis added). The
California Supreme Court has expanded on this principle,
explaining that “[t]here may be situations . . . in which an
obvious hazard, for which no warning is necessary,
nonetheless gives rise to a duty on a landowner’s part to
remedy the hazard because knowledge of the hazard is
inadequate to prevent injury.” Kinsman, 123 P.3d at 939. At
Taft, even once Plaintiffs had been warned about cocci – and
the hazard therefore became an “obvious” or known one –
Plaintiffs’ knowledge alone may not have been sufficient to
prevent infection. As a landowner, the BOP had a duty to
protect Taft’s prisoners from cocci to the extent that they
could not protect themselves.

    That the United States had a duty to protect Plaintiffs is
further bolstered by California’s recognition of a special
relationship between jailers and prisoners. The state imposes
a heightened duty of care on jailers, due to prisoners’
increased vulnerability while incarcerated. Giraldo v. Cal.
Dep’t of Corrs. & Rehab., 85 Cal. Rptr. 3d 371, 382–88 (Ct.
                     EDISON V. UNITED STATES                            21

App. 2008); see also Lawson v. Superior Court, 103 Cal.
Rptr. 3d 834, 849–50 (Ct. App. 2010).7 The very fact of their
incarceration means that prisoners are often helpless to
protect themselves from harm. Restatement (Second) of
Torts § 320 cmt. b. (1965). While California law specifically
contemplates this duty as one to protect prisoners from the
criminal acts of third parties, see Giraldo, 85 Cal. Rptr. 3d at
385, the same rationale also supports recognition of the
special relationship in the context of environmental hazards
endemic to the prison itself. Indeed, because prisoners have
so little control over their living quarters or daily schedules
while incarcerated, they may be just as helpless to protect
themselves from environmental hazards like cocci as they are
to protect themselves from third parties.

    As prisoners, Plaintiffs were particularly vulnerable to
infection: Even if Plaintiffs had been warned of the disease,
they were unable to move to a different location, remodel
their living quarters, or erect protective structures, such as
covered walkways. Thus, by placing prisoners at Taft, the
BOP directly increased Plaintiffs’ risk of harm. Under
California law, the United States had a duty to protect
Plaintiffs from the risk of contracting cocci.

   Under the second step of the analysis, we ask whether the
United States delegated its duty to protect Plaintiffs from
cocci. To be sure, the United States delegated the day-to-day

  7
    While the jailers in Giraldo and Lawson were governmental actors,
nothing in the court’s rationale would preclude the application of the same
principle to non-governmental, i.e., private-party, jailers, such as
GEO/MTC. Cf. LaBarge v. Cty. of Mariposa, 798 F.2d 364, 367 (9th Cir.
1986) (“Because the federal government could never be exactly like a
private actor, a court’s job in applying the [private person] standard is to
find the most reasonable analogy.”).
22                  EDISON V. UNITED STATES

supervision and maintenance of Taft to its contractors.
Indeed, once it became clear that Taft was experiencing a
cocci epidemic, both GEO and MTC implemented certain
responsive measures. In addition to increasing the frequency
of maintenance tasks like dusting and changing air filters,
GEO/MTC posted flyers warning prisoners that they were at
risk of contracting cocci. Nevertheless, the preventative
measures taken by the independent contractors were not
sufficient to satisfy the BOP’s own duty to protect prisoners
under California law.

    Plaintiffs assert that in addition to day-to-day measures,
the United States had a duty to build or modify structures to
reduce prisoners’ exposure to the cocci-laden dust of the San
Joaquin Valley.         Specifically, Plaintiffs claim that
construction of covered walkways could have protected them
from exposure to the dust. And while the BOP delegated
most day-to-day activities to GEO/MTC, the BOP expressly
reserved at least one right to itself: the right to construct new
buildings or modifications of or additions to existing
buildings. The United States’ contracts with GEO and MTC
state that “[n]o modifications or additions to existing
buildings, mechanical or utility systems shall occur (other
than routine maintenance or replacement of components)
without prior approval of the [government].” Further, “[t]he
government reserves the right to construct additional
buildings on its property and/or expand the capacity of
existing buildings. The contractor shall cooperate to the
fullest extent possible should the government exercise this
right.”8 The plain language of the contract indicates that the


 8
   Although both contracts with GEO and MTC were filed in the district
court under seal, the provisions of the contracts have been referred to and
quoted repeatedly in the pleadings and briefs filed by the parties on the
                    EDISON V. UNITED STATES                          23

BOP retained control over construction at Taft, which
presumably would include the construction of covered
walkways, or the construction of other preventative structures
on the land. In retaining this power, the BOP also retained
the duty to construct such structures, should it become
necessary to do so. To the extent that Plaintiffs allege that the
BOP was negligent in failing to construct covered walkways
or other protective structures, the independent contractor
exception to the FTCA does not bar the district court from
considering their claim. The analysis can be resolved at the
second step. The government may be held directly liable for
its failure to act.

         3. Duty to Develop an Adequate Cocci Prevention
            Policy

     Finally, the BOP had a duty, under the larger umbrella of
its duty to protect Plaintiffs from cocci, to develop a
preventative policy responsive to the cocci outbreak.9 As
previously discussed, the BOP had a duty, as a landowner and
jailer, to protect vulnerable prisoners in its charge from
foreseeable harm, because prisoners unable to control the
particulars of their daily lives are “deprived of the normal
opportunity to protect [themselves] from harm.” Giraldo,
85 Cal. Rptr. 3d at 386. Once it became clear that Taft was


public record. The Court, therefore, deems these provisions of the
contracts as tantamount to having been unsealed by consent.
 9
   While we are, of course, aware that the FTCA includes a discretionary
function exception, see 28 U.S.C. § 2680(a); United States v. Gaubert,
499 U.S. 315, 322 (1991), this exception was not invoked by the United
States in its motions to dismiss. We therefore do not reach the issue and
express no view on it because it was neither raised nor briefed by the
parties.
24                 EDISON V. UNITED STATES

experiencing an outbreak of cocci, the BOP began to work
with the CDC to develop a policy for the prevention and
treatment of cocci in prisoners. This was consistent with its
duty as a landowner and jailer under California law. In the
instant case, not only was the harm – the likelihood of
infection absent preventative measures – foreseeable to the
BOP, but the BOP actually took preliminary steps to execute
its protective duty. Thus, the BOP’s status as a landowner
and jailer gave rise to a duty to protect Taft prisoners from
harm, including by developing an adequate cocci prevention
policy.

     Although the United States delegated the general duty to
oversee healthcare at Taft to GEO/MTC, its actions make
clear that it chose to retain the specific duty to develop a
policy for the prevention and treatment of cocci. Plaintiffs
presented evidence in the district court that the BOP took
upon itself the task of developing a policy in response to the
cocci outbreak. The BOP also went a step further,
specifically directing that its contractors be excluded from
development of this policy. In so doing, the BOP expressed
its intent to retain control over this aspect of its duty. See
Yanez, 63 F.3d at 875 (finding jurisdiction under FTCA
where government failed to exercise retained right to order
correction of safety violations). Thus, the independent
contractor exception to the FTCA does not bar the district
court from exercising jurisdiction over Plaintiffs’ third
claim.10




 10
    As with the duties discussed above, we need not decide whether this
duty was nondelegable because the United States expressly retained a
relevant portion of its duty to Plaintiffs.
                    EDISON V. UNITED STATES                           25

                                  III.

    Plaintiffs have met their burden to show that the
independent contractor exception does not bar the district
court’s subject matter jurisdiction under the FTCA. The
government owed a duty of care to Plaintiffs under California
law, which generally assumes that landowners have a duty to
exercise reasonable care in the ownership and management of
property.     In this case, the government’s duty was
underscored by the special relationship that California
recognizes between jailer and prisoner.

    The BOP’s duty to warn prisoners before transferring
them to Taft arose outside of the scope of its contractor
relationship with GEO/MTC, and therefore is not barred by
the independent contractor exception. Further, the BOP did
not delegate all of its duties to GEO/MTC, even once
prisoners arrived at Taft. Instead, it retained both the
exclusive right to construct new buildings and the exclusive
right to make modifications to existing buildings. The BOP
also explicitly excluded its contractors from participating in
the development of a cocci prevention policy. As to these
claims, the independent contractor exception to the FTCA
does not bar the district court’s exercise of subject matter
jurisdiction.11

    In each of these cases, the district court’s dismissal of
Plaintiffs’ complaints under the independent contractor
exception to the FTCA is reversed to the extent dismissal is
inconsistent with this opinion, and these cases are remanded



  11
     On remand, the district court should grant Plaintiffs leave to amend
their complaints to conform to this Opinion. See footnote 2, supra.
26              EDISON V. UNITED STATES

to the district court for further proceedings consistent with
this opinion.

     REVERSED and REMANDED.
