USCA1 Opinion
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 93-1797
THERESA PHINNEY,
Plaintiff, Appellant,
v.
UNITED STATES OF AMERICA,
Defendant, Appellee.
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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,
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Coffin, Senior Circuit Judge,
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and Cyr, Circuit Judge.
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Edwin Paul Gale, with whom Thomas E. Craig and Thomas Craig, P.A.
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were on brief for appellant.
Gretchen Leah Witt, Chief, Civil Division, with whom Peter E.
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Papps, United States Attorney, and Elaine Marzetta Lacy, Assistant
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United States Attorney, were on brief for appellee.
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February 3, 1994
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Cyr, Circuit Judge. Plaintiff-appellant Theresa
Cyr, Circuit Judge.
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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
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Tort Claims Act [FTCA] suit, alleging, inter alia, that the
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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.
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2671; United States v. Testan, 424 U.S. 392, 399 (1976), and,
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in any event, that the "discretionary function exception" to the
FTCA, see id. 2680(a), shields it from any such liability. The
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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.
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United States, No. 90-467-JD, slip op. (D. N.H. July 12, 1993).
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Although appellant concedes that Middlesex was a
"contractor," within the meaning of 28 U.S.C. 2671, see United
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States v. Orleans, 425 U.S. 807, 814-15 (1976), she challenges
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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
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Corp., 499 F.2d 705 (1st Cir. 1974), where we held, as a matter
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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
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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
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it engaged the Ferguson crane that the crane-
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's operators would fail to set that switch.
Id. at 708 (emphasis added) (footnote omitted). Similarly, the
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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
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we explained in Wilson, 499 F.2d at 708, the "inherent danger"
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exception is unavailing to appellant because it was not "'natu-
rally to be apprehended'" by the United States, at the time it
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contracted with Middlesex, that a backhoe with an inoperative
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alarm system would be used to perform the road surfacing work.
Appellant counters that Carr v. Merrimack Farmer's
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Exch., Inc., 146 A.2d 276 (N.H. 1958), is a case more closely in
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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
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Court first noted that transporting baled hay is not generally
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considered "inherently dangerous." Id. at 279. The court went
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on to hold, however, that since the plaintiff had alleged that
the defendant knew or should have known that the bales were
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stacked too high, the trucking
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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
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circumstances charging it with such knowl-
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edge, could reasonably be found under a duty
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to avoid it.
Id. (emphasis added). Appellant insists that her proffer
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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.
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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).
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The critical considerations for present purposes are whether the
United States reasonably should have known, at the time it
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contracted with Middlesex, that either the inherent nature of the
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work itself, see Wilson, 499 F.2d at 708, or the manner in which
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it would be performed by the contractor, see Carr, 146 A.2d at
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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
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416 cmt. a, corroborate the Wilson rationale, and appellant
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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
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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
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1As Carr, 146 A.2d at 276, arose on motion to dismiss, the
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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
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v. Groetz, 230 A.2d 741 (N.H. 1967), decided after Carr, the New
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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,
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citing Thomas v. Harrington, 54 A. 285 (N.H. 1903) (emphasis
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added); see Carr, 146 A.2d at 279. Similarly, the Restatement
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(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
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the time that he enters into the contract, and cannot shift to
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the contractor the responsibility for such dangers, or for taking
precautions against them." Restatement (Second) of Torts at
416 cmt. a (emphasis added).
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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
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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-
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tions are taken, is subject to liability for
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bodily harm caused by them by the absence of
such precautions, if the employer (a) fails
to provide in the contract that the contrac-
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tor should take such precautions . . . or (b)
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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
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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
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A.2d at 278.
The "inherent danger" determination respecting a parti-
cular activity turns on whether its proper performance entails
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undue risk to others, see Wilson, 499 F.2d at 708 (danger "not a
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necessary or anticipated part of the project"). The possibility
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that an employee might perform the work in a negligent fashion
does not make the activity inherently dangerous. See id.; Lane,
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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,
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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
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at 708; Carr, 146 A.2d at 276, summary judgment was proper.2
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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
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(D. N.H. 1992).
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