Unpublished Disposition, 867 F.2d 613 (9th Cir. 1989)

MEMORANDUM^* 

Appellant Department of Energy ("DOE"/"government") appeals a district court judgment finding it 65% negligent in the death of Randall Chambers and awarding plaintiff damages of $97,500.00. Both sides appeal.

BACKGROUND

Plaintiff's decedent, Randall Chambers, was employed by Reynolds Electric and Engineering Company (REECO), which contracted with DOE to drill emplacement holds for underground nuclear explosions at the Nevada Test Site. On February 20, 1978, Chambers was helping a co-worker at a drill site remove the plywood covering the 30-inch hold in the steel doors over the drill hole. During this procedure, Chambers slipped into the 30-inch hole and fell to his death. Evidence presented at trial indicated that the steel doors covering the drill hole had been damaged by the weight of the drill bit and had begun to slope down into the 30-inch hole.

Following the death of her son, appellee Gladys Snow ("Snow") filed this wrongful death action against the United States and REECO, among other defendants. The district court originally dismissed both REECO and DOE, holding they were both protected statutory employers under the Nevada Industrial Insurance Act (NIIA). Snow v. United States, 479 F. Supp. 936, 939 (D. Nev. 1979). On appeal, this court upheld the dismissal of REECO, but remanded to the district court the issue of whether the DOE had sufficient control over Chambers to qualify as his statutory employer. Snow v. United States, 671 F.2d 504, Memo Disp. No. 80-5091 at 3-4 (9th Cir., Dec. 3, 1981). After remand the district court found that the NIIA did not protect DOE because DOE did not have sufficient control over Chambers to qualify as his statutory employer. In addition, the district court found that the Federal Tort Claims Act (FTCA) permitted suit against the government because the DOE inspector's negligent failure to report the dangerous steel doors was not a discretionary action protected by the discretionary function exception to the FTCA. 28 U.S.C. § 2680(a). Finally, after sitting as the finder of fact, the court found the government 65% negligent and the decedent 35% negligent and awarded damages based on that calculation.

Snow asks us to dismiss the government's appeal on the ground that it was not filed in a timely manner. However, the government filed a notice of appeal on January 27, 1986, the next working day after the 60th day following issuance of the court's opinion on November 26, 1985. See Fed. R. Civ. P. 6(a). The government also filed a second notice of appeal on June 11, 1986, within 60 days of the court's final judgment of May 30, 1986 incorporating its ruling on costs. There is no jurisdictional deficiency.

DISCUSSION

Review of district court determination of subject matter jurisdiction under the discretionary function exception is de novo. Mitchell v. United States, 787 F.2d 466, 468 (9th Cir. 1986), cert. denied, 108 S. Ct. 163 (1987). The FTCA authorizes suits against the United States

for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.

28 U.S.C. § 1346(b). The United States is liable for torts in the same manner and to the same extent as private individuals. 28 U.S.C. § 2674. However, in certain instances the government remains immune from suit. Thus, the government is not liable for

[a]ny claim ... based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused.

28 U.S.C. § 2680(a).

In this case, the DOE and its contractor, REECO, agreed that

[t]he Contractor shall take all reasonable precautions in the performance of the work under this Contract to protect the health and safety of employees ... and to minimize danger from all hazards to life and property, and shall comply with all health, safety, and fire protection regulations and requirements ... of the Commission. In the event that the Contractor fails to comply with said regulations ... the [Commission] may ... issue an order stopping all or any part of the work.

Pursuant to this agreement, REECO implemented an extensive safety program including weekly safety meetings, mandatory rules requiring workers to wear safety lines around open drill holes, and numerous "danger" signs around drill holes. In addition, the United States implemented a system of safety checks every four to six weeks to assure REECO's compliance with safety guidelines.

Snow argues that DOE negligently inspected the drill site prior to the accident. The government contends inspection was a discretionary function immune from scrutiny under 28 U.S.C. § 2680(a). In Berkovitz v. United States, 108 S. Ct. 1954 (1988), the Supreme Court held that if challenged conduct involves some discretion, the court must determine whether exercise of that discretion is the kind that the discretionary function exception was designed to shield, that is whether it is a decision grounded in "social, economic, and political policy." Id. at 1959.

This court has applied the Berkovitz analysis in Arizona Maintenance Co. v. United States, No. 87-2471 (9th Cir., January 10, 1989). In Arizona Maintenance, we held that a government employee's decision to use a certain amount of dynamite during blasting near plaintiff's domestic water system was not a protected discretionary decision. We stated that the fact that the government could choose the amount of dynamite was not dispositive; rather, only if that choice involved policy-making would it be protected. If the government's choice was one governed by objective standards which required that the government use due care, the government would be liable for its failure to conform to the applicable standard of care. Id., slip op. at ----.

Appellee offers as evidence of a standard of care a portion of the Atomic Energy Commission Manual indicating that DOE safety inspectors inspected REECO's construction sites every four to six weeks to " [a]ssure that the prime construction contractor ... follow [ed] the approved safety program and [took] appropriate measures to ... minimize the possibility of ... personal injury." AEC Manual Chapter 0505/034. The government does not dispute this evidence. In addition, evidence at trial indicated that the DOE has adopted the safety standards for construction contained in 29 C.F.R. Sec. 1925. Under the AEC Manual and the regulations, DOE safety inspectors were required to report dangerous conditions to their supervisors.

Although DOE had inspected the accident site prior to the accident, the inspector did not report the dangerous condition of the steel doors to the supervisor. The district court found that the sloping of the steel doors at the site was obvious and that the DOE inspector's failure to report it was negligent; this finding is not clearly erroneous. This negligent failure to note or report the dangerous condition is not a decision grounded in social policy; rather, it is garden-variety negligence by a safety inspector. See Arizona Maintenance, slip op. at ---- (alleged negligent use of too much dynamite not a protected discretionary decision). See also Indian Towing Co. v. United States, 350 U.S. 61, 69 (1955) (failure to maintain lighthouse was negligence, not a protected discretionary decision). As this court held in Huber v. United States, 838 F.2d 398 (9th Cir. 1988), although an agency may have discretion to choose whether or how to do a certain act, once that choice is made, the agency is liable for its failure to conform to the applicable standard of care. Huber, 838 F.2d at 401. Thus, the district court was correct in holding that the United States could be liable under the FTCA.

In the prior appeal in this case, this court remanded to the district court the issue of whether the DOE had sufficient control over Chambers to qualify as his statutory employer under Antonini v. Hanna Indus., 94 Nev. 12, 573 P.2d 1184 (1978). Snow v. United States, 671 F.2d 504, Memo Disp. No. 80-5091 at 3-4 (9th Cir., Dec. 3, 1981). See NRS Sec. 616.560. Appellant argues that a later Nevada case, Meers v. Haughton Elevator, 101 Nev. 283, 701 P.2d 1006 (1985), changed Nevada law and created a new legal standard by which the district court should review DOE status. However, the Nevada Supreme Court recently reaffirmed the Antonini control test, although without explicitly referring to Antonini. See State Indus. Ins. Sys. v. EG & G Special Projects, 738 P.2d 1311, 1313 (Nev.1987). This court reviews the district court's factual determination that DOE was not Chambers' statutory employer under the clearly erroneous standard.

The district court determined that REECO supervised Chambers' work at the drill site, that REECO had the ultimate power over hiring its employees despite the fact that DOE could deny security clearance, and that only REECO controlled the hour and location of Chambers' employment. In addition, the court found that Chambers' activities furthered the "general business concerns" of the government because nuclear weapons testing is related to the country's national security. Finally, the court determined that the source of Chambers' wages could be either REECO or DOE because, although REECO writes the checks, DOE provides the funds. The district court found that most of the Antonini factors indicated that REECO, not DOE, controlled Chambers' work; it was not clearly erroneous in its control determination. Thus, DOE is not protected by the NIIA as a statutory employer.

This court has previously held that under Nevada law an employer of a contractor employed for extrahazardous work owes to the contractor's employees a nondelegable duty to use reasonable care in insuring that the contractor takes precautions for the safety of the workers. McGarry v. United States, 549 F.2d 587, 590 (9th Cir. 1976), cert. denied, 434 U.S. 922 (1977). Although the government argues that a later Nevada Supreme Court case has indicated that Nevada law does not include such a duty, Sierra Pacific Power Co. v. Rinehart, 99 Nev. 557, 665 P.2d 270 (1983), that case is inapposite.

Sierra Pacific held that Nevada law does not impose upon employers vicarious liability for injuries to independent contractors' employees. See Restatement (Second) of Torts Sec. 416. Under section 416, employers are vicariously liable for the negligence of their independent contractors if hazards peculiar to the work cause injury. The Nevada court held that an employer's duty under section 416 does not include a duty to its independent contractor's employees, but only a duty to third parties. Sierra Pacific, 665 P.2d at 274. However, the duty described in McGarry is not based on section 416 vicarious liability principles. Rather, the duty imposed in McGarry is based upon the employment of a contractor to perform extrahazardous work and is a duty owed by the employer itself.

Drilling 1,200-foot drill holes is an extrahazardous activity. The evidence clearly indicates that DOE considered it as such because it required REECO to implement extensive safety procedures and reviewed those procedures every four to six weeks. Thus, because DOE contracted with REECO for extrahazardous work, it owed REECO's employees a nondelegable duty to see that REECO took adequate precautions to protect those employees, a duty which it expressly recognized in its contract with REECO.

The government first contends that the district court erred by not apportioning some fault to REECO under the 1973 comparative negligence statute requiring several liability. 1977 NRS, ch. 629. However, the government did not raise this issue below and is, therefore, precluded from raising it in this court. Int'l Union of Bricklayers & Allied Craftsman Local Union No. 20 v. Martin Jaska, Inc., 752 F.2d 1401, 1404 (9th Cir. 1985).

The government also contends the district court was clearly erroneous when it found DOE 65% negligent. Appellee cross-appeals claiming that the district court's finding that Chambers was 35% negligent was error. Evidence at the court trial showed that the steel doors covering the drill hole were dangerously bent inward forming a slope toward the 30-inch hole in the middle of the doors. The district court determined that the sloping of the steel doors was obvious and that a DOE inspector should have reported this to the DOE. Because of the failure to report this dangerous condition, the district court did not clearly err in determining that the United States was negligent.

In addition, the district court did not err in determining that Chambers was contributorily negligent. REECO had a mandatory rule that workers wear safety lines when working near drill holes, and conducted weekly safety meetings emphasizing this rule. Chambers signed forms showing that he attended these meetings. In addition, there were at least two signs at the drill site that stated that the area was dangerous and that safety lines were mandatory. Evidence also showed, however, that workers often ignored the mandatory safety line rule. Therefore, the district court did not err in finding Chambers 35% negligent.

The district court allowed Snow full costs for her expert witnesses and costs for her attorney's travel incurred to attend depositions. The government appeals. Appellate courts will not overturn an award of attorney's fees and costs unless the district court abused its discretion or applied an erroneous conception of the law. Kali v. Bowen, 854 F.2d 329, 331 (9th Cir. 1988).

Under the Equal Access to Justice Act, parties who prevail in suits against the government may be awarded costs. 28 U.S.C. § 2412(a). However, the allowable costs are limited by 28 U.S.C. § 1920 which states:

A judge or clerk of any court of the United States may tax as costs the following: (1) Fees of the clerk and marshal; (2) Fees of the court reporter for all or any part of the stenographic transcript necessarily obtained for use in the case; (3) Fees and disbursements for printing and witnesses; (4) Fees for exemplification and copies of papers necessarily obtained for use in the case; (5) Docket fees under section 1923 of this title; (6) Compensation of court appointed experts, compensation of interpreters, and salaries, fees, expenses, and costs of special interpretation services under section 1828 of this title.

28 U.S.C. § 1920. See Crawford Fitting Co. v. J.T. Gibbons, Inc., 107 S. Ct. 2494, 2497 (1987) (discretion of court to award costs under Rule 54(d) limited to the costs enumerated in section 1920).

Witness fees under section 1920(3) are limited by the constraint of 28 U.S.C. § 1821(b): " [a] witness shall be paid an attendance fee of $30 per day for each day's attendance." See 28 U.S.C. § 1821(a) (1) ("a witness in attendance in any court of the United States ... shall be paid the fees and allowances provided by this section"). The Supreme Court recently held that the section 1821 $30-per-day limit applies to all witnesses, including experts, unless they are court-appointed. Crawford Fitting Co., 107 S. Ct. at 2498. In this case, the district court awarded appellee her full expert witness fees. Because section 1821 limits the amount of fees allowable to $30 per day, the district court erred. This court remands for a new witness costs determination.

The district court also awarded appellee's attorney travel expenses. Appellant argues that the attorney expenses are not among the expenses enumerated in section 1920 and, therefore, are not allowable. See Comm'rs of Highways of Towns of Annawan v. United States, 653 F.2d 292, 298 (7th Cir. 1981), aff'd, 681 F.2d 821 (7th Cir. 1982). However, 28 U.S.C. § 2412(b) states that

[u]nless expressly prohibited by statute, a court may award reasonable fees and expenses of attorneys.... The United States shall be liable for such fees and expenses to the same extent that any other party would be liable under the common law or under the terms of any statute which specifically provides for such an award.

This court has held that this section authorizes an award covering attorney expenses normally billed to clients, including attorney travel expenses. Int'l Woodworkers of America v. Donovan, 792 F.2d 762, 767 (9th Cir. 1985). Thus, the district court did not abuse its discretion by awarding appellee these expenses.

The case is REMANDED to the district court for determination of the amount of witness costs to be awarded appellee. The judgment in all other respects is AFFIRMED.