The opinion of the court was delivered by: BRUCHHAUSEN
This consolidated action was tried before the Court without a jury, solely on the issue of liability. It comprises actions by the plaintiffs, Alexander Hasapis, Santo Azzarello and John Szelwach for damages for personal injuries and an action for damages for the death of Oliver J. Blaber. The actions arise out of explosions on July 2, 1956 in the Metallurgical Laboratory of Sylvania Electric Products, Inc., hereinafter called Sylvania, at Bayside, Long Island, New York, and are founded on the Federal Tort Claims Act.
It is not disputed that the building, housing the laboratory, and the land on which it was erected were owned by Sylvania and that the plaintiffs were employees of Sylvania.
At the time of the first explosion, as part of a closeout procedure after conclusion of an experiment, Hasapis and Azzarello were engaged in burning residual scrap thorium material in a burning hood, located on the second floor of the Laboratory. Blaber was standing near the burning hood. Szelwach was working directly underneath on the floor below. The explosion occurred when Hasapis grasped a portion of the thorium with a pair of tongs and placed it in the burning hood.
The plaintiff contend that the Atomic Energy Commission, a Government Agency, hereinafter called the Commission, was responsible for the occurrences. The said Commission entered into a contract with Sylvania, employing it to conduct research and development work with radioactive materials and nuclear fuels, including thorium.
The statute, 42 U.S.C. § 2051 empowered the Commission to enter into such contract.
The plaintiffs contend that the work was inherently dangerous, thus casting a duty upon the defendant to supervise it, also that Sylvania was not an independent contractor and further that the defendant was under a duty to safeguard the workers at the plant.
These contentions will now be explored.
1. THE LEGAL STATUS OF SYLVANIA UNDER THE CONTRACT
In substance, the provisions of the contract, excepting those later mentioned, are as follows:
a. Sylvania, the contractor, shall perform the work at its Bayside plant.
b. The Commission may furnish items of material, equipment and other property to the contractor.
c. The contractor shall furnish the personnel.
d. The contractor shall be compensated on a cost plus basis.
e. The contractor shall maintain and pay for unemployment and social security for its employees, the cost ...