by which their conduct will be measured.
TMI III, 67 F.3d at 1117 (quoting lower court) (citations omitted).
Although the Second Amended Complaint for the most part makes vague allegations that the deceased was exposed to "dangerous," "excessive," or "life threatening" levels of radiation, it also alleges that the deceased plaintiff was "exposed to levels of radiation in excess of the regulations" and cites the applicable regulations governing occupational dose limits. Because I must read the complaint liberally, in light of the fact that the plaintiffs are proceeding pro se, I find that plaintiffs have alleged sufficient facts to support a claim that Mr. Corcoran was exposed to radiation in excess of the occupation dose limits set by the applicable federal regulations. Accordingly, the negligence claim will not be dismissed.
b. Intentional Torts9
Consistent with the above, the Court is not persuaded that public liability claims based on intentional torts are per se preempted under the Act. At issue is whether the intentional tort alleged is inconsistent with Section 2210. See 42 U.S.C. § 2014(hh).
Plaintiffs allege a barrage of intentionally tortious conduct against the NYPA and Westinghouse. According to plaintiffs, the NYPA and Westinghouse: (1) "failed to monitor the plaintiff . . . to accurately determine his exposure to radiation"; (2) "knowingly permitted to exist and failed to correct business and industrial practices which subjected [the deceased] to dangerous levels of radiation"; (3) "failed to adequately and timely, [sic] make or cause to be made surveys to determine the extent of radiation hazards present in and around the area" where the deceased was assigned to work prior to sending him there; (4) following discovery of the allegedly dangerous condition, "deliberately failed to immediately barricade the area and post radiation caution signs to warn and to prevent unsuspecting individuals, including [the deceased], from entering" and "intentionally assigned [the deceased] to work in and around the dangerously radioactive area without the benefit of equipment that would warn and/or protect him from the dangers present"; (5) knew that the deceased was unaware "that he had been exposed to levels of radiation in excess of the regulations" and that the deceased "believed defendants would advise him if there was a possibility that the had been exposed to excessive levels of radiation"; and (6) "knew with substantial certainty" of the gravity of the deceased plaintiff's exposure and the danger to his health arising therefrom, yet "deliberately concealed and intentionally failed to notify [the deceased] of his excessive exposure to radiation, and . . . to provide him with medical monitoring, treatment or care."
Many of these allegations sound in negligence, and are not properly pleaded as predicate facts constituting an intentional tort. Plaintiffs, however, plead sufficient facts that may state a claim for battery under New York law. In New York, "battery is 'an intentional wrongful physical contact with another person without consent.'" Rivera v. Puerto Rican Home Attendants Servs., Inc., 930 F. Supp. 124, 1996 U.S. Dist. LEXIS 8851, 1996 WL 346450, at *6 (S.D.N.Y. June 24, 1996) (Not Rep. in F. Supp.) (quoting United Nat'l Ins. Co. v. Waterfront New York Realty Corp., 994 F.2d 105, 108 (2d Cir. 1993)). If, as plaintiffs allege, the defendants knew of the dangerous condition and nonetheless intentionally assigned the deceased to work there with the intent that he become exposed to the radiation without his consent, then plaintiffs may have stated a claim for battery. See Rivera, 930 F. Supp. 124, 1996 U.S. Dist. LEXIS 8851, 1996 WL 346450, at *6 (for battery, "the required intent is merely that the defendant intentionally made bodily contact and that the intended contact was itself offensive or without consent"). In order to make the claim consistent with the federal interest in regulating nuclear safety, however, this Court finds that plaintiffs' intentional tort claim must additionally plead a violation of the regulations governing occupational dose limits. Since plaintiffs have alleged that Mr. Corcoran was exposed "to levels of radiation in excess of the regulations," this PLA claim states a valid cause of action.
c. Claims Alleging "Statutory Liability"
As a fifth cause of action against NYPA and a second cause of action against Westinghouse, the plaintiffs allege these defendants violated various statutes and regulations that
include, but are not limited to, 18 U.S.C. 371 and 10 C.F.R. sections 20.1, 20.101, 20.103, 20.201, 20.202, 20.203, 20.401, 20.403, 20.405, 20.408, 20.409,
, and section 223 of the Atomic Energy Act of 1954, as amended and set forth in the regulations under 10 C.F.R. section 20.602.
Plaintiffs claim the defendants "willfully violated these statutes and regulations," which "proximately caused or contributed to" the deceased's "sustaining a radiation exposure which initiated or promoted his leukemia and ultimately caused his death." In their Memorandum of Law in opposition to the motion to dismiss, the plaintiffs elucidate their theory of liability under this cause of action. They do not assert a private right of action under these statutes;
rather, they look to these statutes and regulations as elements of a PLA.
No PLA can be based on these statutes or regulations, however, because the rules of decision for a PLA must be derived from state, not federal, law. See 42 U.S.C. § 2014(hh). Furthermore, although the plaintiffs argue more specifically that 18 U.S.C. § 371
and 10 C.F.R. § 20.602
impose a duty of care which defendants allegedly violated, I find that this "state" law claim directly violates both the letter and spirit of Section 2014(hh)'s command, for the duty of care thus imposed would necessarily depend on a federal rule of decision. To argue, as plaintiffs do, that a duty of care can be derived from all federal statutes or regulations would simply render Section 2014(hh)'s language a nullity. Indeed, it would allow private individuals to assume the role of the United States' Attorney General as the exclusive enforcer, by judicial action, of the Atomic Energy Act:
No action shall be brought against any individual or person for any violation under this chapter unless and until the Attorney General of the United States has advised the Commission with respect to such action and no such action shall be commenced except by the Attorney General of the United States.. . .
42 U.S.C. § 2271 (emphasis supplied); see also County of Suffolk v. Long Island Lighting Co., 728 F.2d 52, 59 (2d Cir. 1984) (citing 42 U.S.C. § 2271 and affirming dismissal of complaint against power company "insofar as it seeks to enforce NRC promulgated regulations"). Therefore, these causes of action must be dismissed.
d. Conspiracy to Defraud Claim
Plaintiffs allege that NYPA and Westinghouse
"had knowledge that the [IP3] turbine stop valve upon which [the deceased] was assigned to work in June of 1985 had become dangerously contaminated with radiation," and that they "conspired together and maliciously and willfully entered into a scheme to conceal" this fact from the deceased, who "had been seriously exposed to excessive radiation," for the purpose of "defrauding and deceiving the Nuclear Regulatory Commission, the plaintiff, and others, so as to justify the viability, of nuclear energy in general, and the existence of [IP3], in particular."
Plaintiffs do not have standing to assert the NRC's (or anyone else's) rights against the defendants, assuming that such a conspiracy to defraud the NRC (or others) is in fact true. With respect to the alleged fraud perpetrated against the deceased, himself, the issue is whether such a state law claim is inconsistent with Section 2210. In New York, to state a cause of action for fraud based on fraudulent concealment the plaintiff must allege: (1) a material false representation or omission, (2) with the intent to defraud, (3) reasonable reliance, (4) damages, and (5) a duty to disclose. See Palmer v. A & L Seamon, Inc., 1996 U.S. Dist. LEXIS 4063, 1996 WL 153946, at *2 (S.D.N.Y. Apr. 2, 1996) (citing Remington Rand Corp. v. Amsterdam-Rotterdam Bank, N.V., 68 F.3d 1478, 1483 (2d Cir. 1995); Banque Arabe et Internationale v. Maryland Nat'l Bank, 57 F.3d 146, 153 (2d Cir. 1995)). I do not find that a fraudulent concealment claim is inconsistent with the provisions of Section 2210. Cf. Bohrmann, 926 F. Supp. 211, 1996 WL 271846, at *6 ("The federal safety regulations do not immunize a defendant from liability for making fraudulent representations to persons either before or after subjecting them to radiation."). Unlike Bohrmann, however, I hold that no fraud can be perpetrated against the plaintiffs unless they demonstrate that the defendants violated the applicable regulations governing occupational dose limits. It would be inconsistent with the Act to allow the plaintiffs to state a claim of any kind that is premised on an exposure to radiation which a federal agency, in its expertise, has concluded is not unsafe. Because plaintiffs have in the amended complaints pled that Mr. Corcoran was exposed to levels of radiation in excess of the regulations, I reject defendants' contention that such fraud claim is preempted by the Act.
e. Survival Claim
Carrie also brings a survival action
on behalf of her father seeking to recover damages for the injuries he suffered prior to his death.
Since "[a] survival action, after all, is essentially a decedent's personal injury lawsuit," In re Brooklyn Navy Yard Asbestos Litigation, 971 F.2d 831, 851 (2d Cir. 1992), this cause of action is dependent on the viability of the aforementioned causes of action.
3. Liability of Westinghouse as Contractor
Westinghouse argues that because the Act "channels" all public liability to the licensee (NYPA in this instance), "even if Plaintiffs were to reassert their claims against Westinghouse in a properly drafted PLA, the claims against Westinghouse should be dismissed because Westinghouse would not be a proper party."
Westinghouse cites a single, two-page Memorandum Opinion in support of this proposition. See Grimes v. Baltimore Gas & Elec. Co., No. 95-1042 (D. Md. Nov. 8, 1995) (dismissing claims against non-licensee defendants) (citing O'Conner v. Commonwealth Edison Co., 807 F. Supp. 1376, 1378 (C.D. Ill.), aff'd, 13 F.3d 1090, cert. denied, 129 L. Ed. 2d 838, 114 S. Ct. 2711 (1994) (citations omitted)).
An important feature of the Act, it is true, is its "channeling of liability" provision, under which "any entity exposed to potential liability for activity resulting in a nuclear incident, even if it were not a direct participant in the activity, was entitled to indemnification." TMI II, 940 F.2d at 852 (citing S.Rep. No. 218, 100th Cong., 2d Sess., reprinted in 1988 U.S.C.C.A.N. 1476, 1477).
The O'Conner District Court explained:
In passing the Price-Anderson Act, Congress recognized that a nuclear incident might be caused by any number of participants in the nuclear industry beyond the actual licensee. Congress did not want quick and fair compensation to be hampered by the complications likely to ensue if multiple defendants, each with its own law firm, were actively and separately defending. In a "significant departure from normal tort law precepts," Congress, through mandatory indemnification provisions, channelled all public liability to licensees, and away from non-licensees, (such as contractors . . .), who might otherwise have borne such liability under ordinary tort law. . . . The channelling provisions alter the ordinary congruence in tort law between causing and bearing liability. Consequently, contractor London Nuclear Services cannot separately be liable to plaintiff in any manner in this case.
O'Conner, 807 F. Supp. at 1378 (citations omitted) (emphasis supplied). This Court finds Westinghouse's argument unpersuasive for two reasons. First, as the above quote makes clear, the contractor (London Nuclear Services) was not dismissed from the case; in fact, the contractor had remained a party throughout the litigation. See O'Conner, 13 F.3d at 1090; O'Conner v. Commonwealth Edison Co., 748 F. Supp. 672, 672 (C.D. Ill. 1990). Therefore, the District Court's decision in Grimes is also unpersuasive. Second, it is incongruous to argue that contractors cannot be subject to suit simply because they may be indemnified. After all, with respect to ENOs, a waiver of defenses may be required by the NRC, and yet the contractor remains a properly named defendant in such an action. See 42 U.S.C. § 2210(n)(1).
Therefore, this action will not be dismissed against Westinghouse.
WEDCO moves to be dismissed from the case pursuant to Rules 12(b)(4) and (5), Fed. R. Civ. P., for plaintiffs' failure to effect proper service; pursuant to Rule 12(b)(6), Fed. R. Civ. P., because although WEDCO remains nominally in the case as a party named in the caption, no claims are asserted against WEDCO in the Second Amended Complaint; and because WEDCO is a dissolved corporation without capacity to be sued.
Since plaintiffs have alleged no claims against WEDCO in the Second Amended Complaint, there is no theory of liability with respect to WEDCO and, therefore, no claim upon which relief can be granted. Furthermore, WEDCO lacks capacity to be sued. "The capacity of a corporation to sue or be sued shall be determined by the law under which it was organized." Rule 17(b), Fed. R. Civ. P. It is uncontested that WEDCO was a Delaware corporation and was dissolved on May 2, 1978. In Delaware,
All corporations, whether they expire by their own limitation or are otherwise dissolved, shall nevertheless be continued, for the term of 3 years from such expiration or dissolution or for such longer period as the Court of Chancery shall in its discretion direct, bodies corporate for the purpose of . . . defending suits . . . against them . . . .