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Dickerson, Inc. v. United States

Citation: 19 ELR 21057
No. No. 88-3449, 875 F.2d 1577/30 ERC 1286/(11th Cir., 06/27/1989) Aff'd

The court holds that the Federal Tort Claims Act (FTCA) waives the Department of Defense's (DOD's) sovereign immunity for damages resulting from a contractor's improper disposal of the DOD's hazardous waste. The court first holds that the FTCA's discretionary function exemption does not exempt the DOD's hazardous waste contracting from the FTCA's general waiver of sovereign immunity for negligent torts. The discretionary function exemption includes policy judgments, not areas where federal statutes, regulations, or policy guidance specify the course of action to take. In this case, the Comprehensive Environmental Response, Compensation, and Liability Act, the Environmental Protection Agency's regulations requiring the use of hazardous waste manifests, and the DOD's internal policy on "cradle-to-grave" responsibility for hazardous waste suggest that the DOD had an ongoing safety obligation as a hazardous waste generator that would be inconsistent with a transfer of all potential liability from the DOD to its independent hazardous waste contractor. The court next holds that the FTCA's independent contractor exception does not exempt the DOD from liability in this case. Although the United States is not liable under the FTCA for the negligence of an independent contractor, it is liable in the same way as a private person under applicable state law for its own negligence in failing to protect third parties when it contracts for inherently dangerous activities or is aware that its contractor has created a dangerous situation. The court holds that under Florida law, if the work contracted for is inherently dangerous, the employer has a nondelegable duty of reasonable care to take precautions ensuring that the contractor performs nonnegligently. The court holds that disposal of polychlorinated biphenyls (PCBs) is an inherently dangerous activity under Florida law, and that the DOD did not exercise reasonable care in ensuring that its contractor performed nonnegligently, particularly since the Department received complaints about the contractor. Finally, the court holds that the plaintiff's failure to apply for a permit to burn the waste oil that had become contaminated with the DOD's hazardous waste did not make the plaintiff contributorily negligent. The plaintiff suffered damage because its oil tanks were contaminated with hazardous waste in its oil, not because it burned the oil.

[The district court's opinion appears at 17 ELR 21076.]

Counsel for Defendant-Appellant
Dwight G. Rabuse
Civil Division
U.S. Department of Justice, Washington DC 20530
(202) 633-4331

Counsel for Plaintiffs-Appellees
Richard G. Rumrell
Rumrell & Johnson
2600 Gulf Life Tower
Jacksonville FL 32207
(904) 396-4500

Before RONEY, Chief Judge, and HILL, Circuit Judge, and HOWARD*, Chief District Judge.