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Dickerson, Inc. v. Holloway

Citation: 17 ELR 21076
No. No. 82-244-Civ-J-14, 685 F. Supp. 1555/(M.D. Fla., 04/27/1987)

The court holds that the Federal Tort Claims Act (FTCA) does not waive the federal government's sovereign immunity for negligent selection of a hazardous waste disposal contractor, but does make the government subject to liability for negligent failure to ensure that the waste disposal was properly conducted. The Department of Defense contracted with American Electric Corporation to dispose of polychlorinated biphenyls (PCBs) from military bases, and PCB-contaminated waste oil from American Electric Corporation was sold to Dickerson, Inc. for burning in asphalt production. The court holds that the government is not subject to liability for the negligent selection of American Electric Corporation as an independent contractor, since this is within the FTCA's discretionary function exemption. The choice of contractors was a planning decision of government, rather than an operational decision. The initial decision to use private contractors was based on several factors and the decision to use American Electric Corporation was based on extensive evaluation of its capabilities and was infused with planning and policy considerations.

The court holds, however, that the government is liable for its failure to supervise American Electric Corporation to ensure proper disposal of the PCBs. Florida law is clear that an employer who engages an independent contractor to conduct an inherently dangerous activity has a nondelegable duty to ensure that the task is carried out in a nonnegligent fashion. This day-to-day supervision of the independent contractor is carried out at the operational level and does not involve evaluation of policy factors. The government, as producer of the PCBs, had an affirmative duty to ensure their safe disposal, both by statute and by the Department of Defense's internal policies. Consequently, the FTCA's discretionary function exemption does not apply. The government's breach of statutorily imposed duties for PCB disposal also constitutes prima facie evidence of negligence under Florida law. Moreover, the evidence at trial provides an independent basis for concluding that the government breached its duty to properly supervise American Electric Corporation. Noting that 25 percent of the waste oil that American Electric Corporation picked up from the Defense Department is still missing, that American Electric Corporation commingled its PCB-laden oil, and that the truck used to deliver oil to Dickerson, Inc. was frequently parked at American Electric Corporation, the court finds that PCB waste from the government was delivered to Dickerson, Inc. The court refuses to consider an attachment to the government's post-trial brief on the ground that it was not introduced at trial, is hearsay, and is not newly discovered. The court finds that it would not have been an industry practice for Dickerson, Inc. to have tested its purchased waste oil before burning it as fuel.

Counsel for Plaintiff
Richard G. Rumrell, Alan B. Vlcek, Geoffrey S. Welsh
Rumrell & Vlcek, P.A.
12-14 E. Bay St., Suite 3100, Jacksonville FL 32202
(904) 356-3100

Counsel for Defendant
Dorothea Beane
U.S. Attorney's Office
P.O. Box 600, Jacksonville FL 32202
(904) 791-2683