The opinion of the court was delivered by: MINER
MEMORANDUM -- DECISION and ORDER
In this action plaintiff seeks to recover damages for the personal injury and death of Arthur Maltais arising out of a construction site accident. The complaint is predicated upon the Federal Tort Claims Act (hereinafter "FTCA"), 28 U.S.C. §§ 1346(b), 2671-2680, and New York tort law; jurisdiction is based upon 28 U.S.C. § 1346(b) and the doctrine of pendent jurisdiction, United Mine Workers v. Gibbs, 383 U.S. 715, 86 S. Ct. 1130, 16 L. Ed. 2d 218 (1966). Before this Court is the Government's motion to dismiss, Fed. R. Civ. P. 12(b) (6), or in the alternative, for summary judgment, Fed. R. Civ. P. 56. Also before the Court is General Electric's motion to dismiss as against all pendent party defendants in the event the claim against the United States is dismissed, Fed. R. Civ. P. 12(b) (1), or in the alternative, for summary judgment, Fed. R. Civ. P. 56.
On June 9, 1975, Arthur Maltais, an employee of the Elwin G. Smith Division of the Cyclops Corporation (hereinafter "Cyclops"), while acting in the course of his employment, fell to his death from atop the S & G Administration and Training Building located at the Kenneth A. Kesselring site of the Knolls Atomic Power Laboratory (hereinafter "KAPL"), West Milton, New York. The building premises and site involved in this accident are owned by the United States.
Plaintiff alleges that these premises were in the possession and control of the United States, General Electric, General Dynamics, and Sweet Associates during the chain of events that led to decedent's death. Plaintiff further alleges that decedent, while in the process of installing insulated metal siding, was handling a reinforcing bar installed near the edge of the roof of the building when the bar allegedly broke, causing decedent to fall approximately 40 feet.
Plaintiff maintains that Cyclops had entered into a subcontractor's agreement with Sweet Associates to install insulated metal siding on buildings at the Kesselring site and that Northway Decking and Sheet Metal Corp., Clifton Steel Corp., and General Steel Fabricators, Inc. were subcontractors and suppliers of steel and reinforcing bars used in the construction of buildings at the site. Moreover, these corporate defendants, as well as West Side Structural Co., are alleged to be responsible for furnishing and installing steel at the Kesselring site.
Letters Testamentary were issued on July 17, 1975 to plaintiff, decedent's spouse. On May 31, 1976, plaintiff filed a claim with the Energy Research and Development Administration (hereinafter "ERDA" -- the successor to the now defunct Atomic Energy Commission) in accordance with the Federal Tort Claims Act. 28 U.S.C. §§ 2401(b), 2675. Following the denial of her administrative claim by ERDA on October 7, 1976, plaintiff commenced the present action on March 29, 1977, individually and as executrix of her husband's estate.
Plaintiff's first claim for relief seeks damages for negligence and is brought against the United States, General Electric, Sweet Associates, General Dynamics, Northway, West Side, Clifton, and General Steel. Plaintiff's second and third claims respectively seek damages for breach of warranty and strict products liability, and are brought only against the seven corporate defendants. Plaintiff's fourth claim, brought against all defendants, is predicated upon loss of consortium. Total damages are sought in the amount of $5,250,000.
Precisely which defendants had the responsibility and authority to control and enforce safety measures at the Kesselring site is hotly contested by the parties. It is the Government's position that, in the contract awarding GE the operation of KAPL, ERDA delegated to GE the responsibility to take reasonable safety precautions in the performance of the work under the contract.
See 42 U.S.C. §§ 2051(a) and (d), 2201.
Therefore, since the primary responsibility for safety was properly delegated to GE, as an independent contractor,
the Government claims that it is immune from suit under the FTCA, since the United States cannot be held liable in tort for acts of its independent contractor. United States v. Orleans, 425 U.S. 807, 96 S. Ct. 1971, 48 L. Ed. 2d 390 (1976).
The Government further contends that, since § 2051 gives ERDA broad authority to contract with private entities for development projects and also directs ERDA to include in those contracts, "such health and safety provisions as the Commission may determine", Crowther v. Seaborg, 312 F. Supp. 1205, 1220 (D. Colo. 1970), the specific methods for arranging safety responsibility are within the total discretion of ERDA. ERDA, the Government maintains, in accordance with this statutory authorization, continued the AEC's general policy that management of its facilities would be carried out by independent contractors, rather than by ERDA employees. A part of that basic policy was and is the delegation of safety responsibilities to independent contractors. Therefore, the extent that ERDA undertakes to supervise the safety procedures of private contractors is a matter of policy and any decision to delegate -- or not to delegate -- safety supervision falls within the discretionary function exemption of 28 U.S.C. § 2680(a).
Moreover, the Government asserts, plaintiff's utilization of New York Labor Law §§ 240 and 241
to impose strict tort liability on the United States would impose on ERDA a non-delegable duty to maintain a safe workplace and to conduct extensive safety inspections. Imposition of a non-delegable duty, the Government maintains, interferes with 42 U.S.C. § 2051 and the explicit delegation of safety precaution responsibilities to GE pursuant to contract. Therefore, it is alleged, the application of §§ 240 and 241 to the Government here would be in derogation of the Supremacy Clause of the Constitution.