Prod.liab.rep.(cch)p 10,870billy R. Gober, Plaintiff-appellant, v. United States of America, Defendant-appellee,fmc Corporation, Third Party Defendant-appellee, 778 F.2d 1552 (11th Cir. 1986)

This is a Federal Tort Claims Act (FTCA) case, see 28 U.S.C. §§ 1346(b), 2671-2680 (1982), involving an accident that occurred in the State of Alabama.¹  The district court held that Alabama law provided the claimant, Billy R. Gober, no right of recovery on the facts presented and granted the Government summary judgment. We affirm.

The accident in this case took place at FMC Corporation's manufacturing plant in Anniston, Alabama, on July 9, 1981. The claimant lost several fingers on his right hand while operating a forging press manufactured by E.W. Bliss Company. FMC had leased the press from its owner, the United States government.² 

On September 22, 1981, the claimant, pursuant to 28 U.S.C. § 2675 (1982), filed with the Secretary of the Army, who was responsible for overseeing the operation of the lease, a claim under the FTCA. On February 17, 1983, the United States Army Claims Service denied the claim on behalf of the United States, and the claimant brought this FTCA suit. He sought the recovery of money damages against the United States on six theories of Alabama tort law. He alleged that the Government had: (1) negligently failed to maintain the forging press; (2) negligently failed to correct known defects in the press; (3) negligently failed to warn him of such defects; (4) negligently failed to inspect the press; (5) negligently inspected the press; and (6) transgressed Alabama's Extended Manufacturers Liability Doctrine (AEMLD).

Following some reciprocal discovery, the Government moved for summary judgment, and the district judge conditionally granted the motion, giving the claimant ten days to demonstrate the existence of any genuinely disputed material fact. Upon the claimant's failure to make such a showing, the court entered the summary final judgment now before us. The court held that the Government, as lessor of the forging press, owed no duty to FMC's employees, such as the claimant, the breach of which could serve as a basis for finding the Government negligent. As for the Government's liability under the AEMLD, the court held that the doctrine, because it is founded on strict liability, cannot serve as a basis for recovery under the FTCA. See Laird v. Nelms, 406 U.S. 797, 798-802, 92 S. Ct. 1899, 1900-02, 32 L. Ed. 2d 499 (1972).

In passing on the propriety of the district court's grant of summary judgment, we apply the same legal standard a district court must employ, Thrasher v. State Farm Fire & Casualty Co., 734 F.2d 637, 638 (11th Cir. 1984) (per curiam): that the evidence, viewed in a light most favorable to the party opposing the motion, demonstrated the absence of a genuine issue of material fact and that the movant was entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Adickes v. S.H. Kress & Co., 398 U.S. 144, 157-58, 90 S. Ct. 1598, 1608-09, 26 L. Ed. 2d 142 (1970). We conclude, as did the district court, that the claimant presented no facts that would authorize a recovery under any of the Alabama tort law theories he has advanced.

The FTCA imposes liability on the United States for the "negligent or wrongful act or omission of any employee of the Government." 28 U.S.C. § 1346(b) (1982) (emphasis added). Neither lessees nor independent contractors are "employees of the government" for the purposes of the FTCA. 28 U.S.C. § 2671 (1982). Because FMC was a lessee of the United States, the Government cannot be held liable under the FTCA for any of FMC's acts.³  The Government may be liable, however, for the breach of any duty it may have owed FMC's employees. Lathers v. Penguin Industries, 687 F.2d 69, 72 (5th Cir. 1982); Aretz v. United States, 604 F.2d 417, 426-27 (5th Cir. 1979).⁴  The existence of such a duty is a matter of state law. 28 U.S.C. § 1346(b) (1982); Lathers, 687 F.2d at 72.A.

The claimant lost his fingers when the forging press he was operating recycled while his fingers were beneath it. To cycle the press, the claimant had to push dual palm buttons with both hands; in this operation, his fingers could not have been beneath the press. Recycling, however, occurred automatically and unexpectedly, without pushing the buttons. Hence, the claimant's hand was free, and he happened to expose it to the injury in question. The claimant contends that the Government had a duty to warn him that the press was defective in that it would recycle in this fashion. Under Alabama law, the lessor of equipment is liable for failing to inform his lessee's employees of a defect in leased equipment only if the defect or danger is hidden and known to the lessor, and not known to the lessee. Chrysler Corp. v. Wells, 358 So. 2d 426, 428 (Ala.1978); Crawford Johnson & Co. v. Duffner, 279 Ala. 678, 189 So. 2d 474, 480 (1966).⁵  In the situation here, the Government presented a wealth of evidence that FMC knew that the forging press would occasionally recycle.⁶  The claimant offered nothing to rebut this evidence.⁷  The granting of summary judgment on the claimant's negligent failure to warn theory, therefore, was appropriate.

The claimant contends that the Government had a duty to FMC's employees to maintain the press in a safe operating condition. Assuming arguendo that the press was in an unsafe condition, we find no basis for imposing on the Government a duty to maintain the press. The claimant cites no Alabama authority, and we find none, to the effect that the mere leasing of equipment implies such a duty on the lessor's part. Although the parties' lease agreement could have required the Government to maintain the press in a safe operating condition, it did not so provide. Under the agreement, FMC was responsible for the normal maintenance of the press. FMC considered repairs necessitated by recycling as normal maintenance and accordingly handled all such repairs. Both before and after the accident in this case FMC inspected the press on a weekly basis and performed all necessary repairs; the Government never performed any maintenance on the press. The district court properly rejected the claimant's negligent failure to maintain theory of recovery.

The claimant contends that summary judgment was precluded because the record permitted the inference that the Government either negligently failed to inspect or negligently inspected the press. We disagree. The Government was under no contractual obligation to inspect the press, and, under Alabama law, the mere leasing of the machine did not give rise to such an obligation. See Pate v. United States Steel Corp., 393 So. 2d 992, 996 (Ala.1981); see also Columbia Engineering International, Ltd. v. Espey, 429 So. 2d 955, 963-68 (Ala.1983). The only way the Government could be liable given the terms of the lease agreement in this case would be if the Government had actually inspected the press and negligently failed to discover the recycling defect. See Hughes v. Hughes, 367 So. 2d 1384, 1387 (Ala.1979). The claimant failed, however, to establish that the Government undertook a safety inspection of the press.⁸  Accordingly, the district court did not err in rejecting the claimant's negligent failure to inspect or negligent inspection theories of recovery.

The claimant's final contention is that he established a case of liability against the Government under the Alabama Extended Manufacturers Liability Doctrine (AEMLD). To establish liability under this doctrine, a plaintiff must show (1) that the defendant sold or supplied the product that injured him and he was the consumer or ultimate user of such product; (2) that the defendant was in the business of selling or supplying the product; (3) that the product was defective or unreasonably dangerous; and (4) that the defendant expected the product to reach, and that the product actually did reach, the plaintiff without substantial change in its condition. Casrell v. Altec Industries, 335 So. 2d 128, 132-33 (Ala.1976). A product defect under this doctrine is defined as one "which renders a product 'unreasonably dangerous,' i.e., not fit for its intended purpose." Id. at 133. Claimant contends that the forging press supplied by the Government in this case was defective because it caused injury when used for its intended purpose.

The district court determined that the AEMLD was based on a "strict liability theory" and under Laird v. Nelms, 406 U.S. 797, 798-03, 92 S. Ct. 1899, 1900-02, 32 L. Ed. 2d 499 (1972), could not serve as a basis for FTCA liability.⁹  See also Dalehite v. United States, 346 U.S. 15, 45, 73 S. Ct. 956, 972, 97 L. Ed. 1427 (1953); Aretz v. United States, 604 F.2d at 426-27. The court therefore held the doctrine inapplicable in a FTCA context.

Claimant argues that the AEMLD is not based on a pure strict liability theory. He contends that, although it was modeled after Restatement (Second) of Torts Sec. 402A (1965), a strict liability rule, the Alabama courts have held that the doctrine is not founded on a pure strict liability theory, but is based on fault. See Atkins v. American Motors Corp., 335 So. 2d 134, 137 (Ala.1976). Accordingly, claimant argues the doctrine's application is not foreclosed by Laird. We are not persuaded.

The Alabama courts hold that the AEMLD contains a fault component, but such fault is presumed: " [T]he fault or negligence of the defendant is that he has conducted himself in a negligent manner by placing a product on the market causing personal injury or property damage, when used to its intended purpose." Casrell, 335 So. 2d at 132. In short, a plaintiff need not prove that the defendant was negligent; negligence is imputed to the seller or supplier as a matter of law. Id.¹⁰  Such a rule, if we applied it here, would obviate the need for the claimant to show negligence on the part of government employees as required by 28 U.S.C. § 1346(b) (1982).¹¹  Laird precludes such a result.¹² 

For the foregoing reasons, the judgment of the district court is

AFFIRMED.

VANCE, Circuit Judge, concurring.

I concur in the court's judgment.