Full opinion text
OPINION ROGER D. FOLEY, Chief Judge. Facts The plaintiffs have filed this wrongful death action under the Federal Tort Claims Act (FTCA), 28 U.S.C. § 1346(b), to recover damages resulting from the death of Thomas McGarry, who died as the result of an accidental electrocution on the Nevada Test Site of the United States Atomic Energy Commission. The Nevada Test Site is a Government-owned nuclear testing facility managed, operated and maintained by Reynolds Electrical and Engineering Co., Inc. (REECo), an independent contractor. In addition to performing direct services and activities incident to the AEC testing program, the contract provided that REECo would provide, maintain, operate and distribute electrical power on the test site. The power lines, circuit breakers, transformers, substations and other electrical facilities on the Nevada Test Site and the electricity supplied through such facilities are owned by the defendant United States of America. The decedent Thomas McGarry was an employee of REECo who, on the day of the accident, December 10, 1969, had been assigned by a REECo drilling supervisor to certain duties involving the use of a portable drilling rig. The accident occurred when the mast of the rig Mr. McGarry was driving came into contact with an overhead high voltage power line. The accident occurred at a location designated as Uel0-ITS#2 located in Area 8 of the Nevada Test Site. Within Area 8 the Lawrence Radiation Laboratory, another independent contractor, had previously determined that six exploration holes would be drilled. Prior to December 10, 1969, a third independent contractor, Holmes and Narver, Inc., had surveyed the exploration site and had physically located exploratory hole UelO-ITS#2 with a stake and marker. Mr. McGarry and his assistant, Mr. Dasher, had driven their portadrill rig to the exploration hole to map out and drill anchor holes which were to be used to run steel cables to hold and stabilize the stationary drilling equipment which was used to drill the actual exploration hole. Mr. McGarry and Mr. Dasher had mapped out the anchor holes and raised the mast on the portadrill rig and were proceeding to the location of the first anchor hole when the mast came into contact with an overhead power line which had not been observed by either worker. When the portadrill rig mast came into contact with the power line, Mr. McGarry stopped the truck and alighted. Mr. McGarry then came in contact with the rig and was electrocuted. Federal Tort Claims Act Liability The Federal Tort Claims Act, 28 U.S.C. § 1346(b), provides: . . the district courts . shall have exclusive jurisdiction of civil actions on claims against the United States, for money damages . 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.” This act waives the sovereign immunity of the United States for the negligent acts or omissions of its employees, and subjects it to the same liability for such negligent acts or omissions that a private person would be subjected to under the law of the state in which the occurrence giving rise to the liability happened. The purpose of the waiver of sovereign immunity was defined by the United States Supreme Court in Rayon-ier v. United States, 352 U.S. 315, 77 S. Ct. 374, 1 L.Ed.2d 354 (1957), and the act is to be construed to effectuate such purpose. In the Rayonier case, the Supreme Court, holding that the “governmental activity” immunity of municipal corporations was not available to the United States in an action brought under the FTC A, stated: “It may be that it is ‘novel and unprecedented’ to hold the United States accountable for the negligence of its firefighters, but the very purpose of the Tort Claims Act was to waive the Government’s traditional all-encompassing immunity from tort actions and to establish novel and unprecedented governmental liability. The Government warns that if it is held responsible for the negligence of Forest Service firemen a heavy burden may be imposed on the public treasury. It points out the possibility that a fire may destroy hundreds of square miles of forests and even burn entire communities. But after long consideration, Congress, believing it to be in the best interest of the nation, saw fit to impose such liability on the United States in the Tort Claims Act. Congress was aware that when losses caused by such negligence are charged against the public treasury they are in effect spread among all those who contribute financially to the support of the Government and the resulting burden on each taxpayer is relatively slight. But when the entire burden falls on the injured party it may leave him destitute or grievously harmed. Congress could, and apparently did, decide that this would be unfair when the public as a whole benefits from the services performed by Government employees. And for obvious reasons the United States cannot be equated with a municipality, which conceivably might be rendered bankrupt if it were subject to liability for the negligence of its firemen. There is no justification for this Court to read exemptions into the Act beyond those provided by Congress. If the Act is to be altered that is a function for the same body that adopted it.” However, the United States still remains immune from certain types of liability which may be imposed upon private persons by reason of the limitation of the waiver of sovereign immunity only to liability for negligent acts or omissions of its employees. By reason of this limitation on the waiver of immunity, the United States cannot be held liable for a claim arising under the doctrine of strict liability or absolute liability without a showing of fault on the part of an employee of the United States. This rule was first enunciated in Dalehite v. United States, 346 U.S. 15, 44-45, 73 S. Ct. 956, 972, 97 L.Ed. 1427 (1953): “It (FTCA) is to be invoked only on a ‘negligent or wrongful act or omission’ of an employee. Absolute liability, of course, arises irrespective of how the tortfeasor conducts himself; it is imposed automatically when any damages are sustained as a result of the decision to engage in the dangerous activity. The degree of care used in performing the activity is irrelevant to the application of that doctrine. But the statute requires a negligent act. So it is our judgment that liability does not arise by virtue either of United States ownership of an ‘inherently dangerous commodity’ or property, or of engaging in an ‘extra-hazardous activity’ ”. Dalehite was recently reaffirmed by the Supreme Court in Laird v. Nelms, 406 U.S. 797, 92 S.Ct. 1899, 32 L.Ed.2d 499 (1972), where the Court held that the United States was not liable under the doctrine of absolute liability for sonic booms, but observed that liability could have been imposed if there had been a showing of negligence on the part of Government employees in planning or conducting the flight. Similarly, by reason of the limitation of the waiver of immunity to the negligent acts or omissions of its own employees, the United States cannot be charged with liability based on the imputation of negligence of an independent contractor. The United States cannot be held vicariously liable for the negligence of an independent contractor because one of its own employees has not committed a negligent act or omission. Gowdy v. United States, 412 F.2d 525 (6th Cir. 1959); Strangi v. United States, 211 F.2d 305 (5th Cir. 1954); Dushon v. United States, 243 F.2d 451, 17 Alaska 245 (9th Cir. 1957); United States v. Dooley, 231 F.2d 423 (9th Cir. 1955); United States v. Page, 350 F.2d 28 (10th Cir. 1965); Roberson v. United States, 382 F.2d 714 (9th Cir.. 1967); and Grogan v. United States, 341 F.2d 39 (6th Cir. 1965). Further, the United States will not be held liable for the negligence of an independent contractor, even when that contractor is performing a nondelegable duty owed by the United States. Even though the duty is nondel-egable, if the negligence is by the independent contractor, it is not a negligent act or omission by a United States employee, so there is no government liability. United States v. Page, 350 F.2d 28 (10th Cir. 1965). It is clear that the Government will not be held liable for the exercise of a discretionary function. The statutory exception, 28 U.S.C. § 2680(a), states: “The provisions of this chapter and section 1346(b) of this title shall not apply to— (a) Any claim based upon an act or omission of an employee of the Government, exercising due care, in the execution of a statute or regulation, whether or not such statute or regulation be valid, or based upon the exercise or performance of 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.” As stated in Blaber v. United States, 332 F.2d 629 (2nd Cir. 1964), with respect to the discretionary function exception and the AEC: “The AEC may have considerable power to control the activities of private companies through contracts, but when the Commission decides the extent to which it will undertake to supervise the safety procedures of private contractors, it is exercising discretion at one of the highest planning levels. Decisions of this kind are therefore within the ‘discretionary function’ exception of 28 U.S.C. § 2680(a).” The above principles which immunize the United States from certain types of tort liability under the FTCA are much too firmly entrenched and established in the law to be seriously challenged by the plaintiffs in the instant case. Although the present case presents an obvious basis for the imposition of absolute liability or the imputation of the negligence of an independent contractor if the defendant were a private person, the plaintiffs are not asserting that type of liability against the United States. The plaintiffs’ claims against the United States are predicated solely upon the negligence of employees of the United States. The fact that someone else might be charged with absolute liability, or the fact that an independent contractor might have been negligent, does not absolve the United States from liability under the FTCA if its employees were also negligent. The plaintiffs have succinctly stated their theory of recovery in their post-trial brief, page 8, 11.10-17: “. . . the fact that the liability of the Government may not be as broad as the liability of a private citizen does not absolve the Government from liability where the claim falls within the sphere of the liability imposed by the Act. Stated a different way, the fact that the Government may be absolved from liability predicated upon strict liability, absolute liability of the breach of a non-delegable duty in a situation where a private person would be held liable does not absolve the Government from liability predicated upon the negligence of its. own employees.” The plaintiffs must rely upon the negligence of a Government employee. In order to find a party liable for negligence, it is necessary to show a duty to the person injured, a breach of such duty by failure to act in accordance with that degree of care required by law, and an injury that proximately results from such breach of duty. The duty breached may be either by act or omission. In a FTCA suit it is not necessary to show specifically which Government employee breached the duty owed by the United States. Once there is a duty established, the liability does not depend solely upon the misfeasance of some Government employee; the omission or failure to act is sufficient for liability. United States v. Hull, 195 F.2d, 64 (5th Cir. 1952). The primary question then is whether the defendant had a duty to act, for in the absence of a duty a failure to act does not constitute negligence. Was the United States charged with a duty to act with regard to the safety of the employee of an independent contractor? Duties owed by the AEC The plaintiffs contend that affirmative duties were imposed upon the United States, through its agency, the AEC, by (1) Federal statute, (2) Nevada statute, (3) reason of its ownership, possession and control of the Nevada Test Site, and (4) by reason of it being the owner, supplier and distributor of electricity throughout the Nevada Test Site. These four duties which the plaintiffs contend were imposed upon the AEC, regardless of whether they were also imposed upon various independent contractors, will be discussed individually within. Before discussing the various duties, the theory of negligent contractor selection will be disposed of. The plaintiffs do not rely on this theory. At page 11, line 30, plaintiffs post-trial brief, it is stated: “There is no question but that the Government is not liable for the discretionary decision of choosing to proceed by using independent contractors. The Plaintiffs herein do not contend that the Government was negligent in using independent contractors, nor do they predicate their claim upon a contention that the Government negligently selected an incompetent independent contractor.” A. Duties Imposed upon the AEC by Federal Statute The plaintiffs argue that certain federal regulations which were incorporated into the contract create a duty owed by the AEC to the deceased. The contract between REECo and AEC, page 12, paragraph 7, and page A-17, paragraph A-27 (Plaintiffs’ Pre-trial Conference Memorandum, page 11), incorporates numerous federal regulations, compliance with which is subject to the supervision and inspection of the AEC. The contract, in effect, requires the contractor, REECo, to comply with certain federal Corps of Engineers regulations and gives the AEC the power to stop all work in the event that the contractor fails to comply with the requirements. The plaintiffs argue that the AEC had the duty to require the compliance with all of the regulations incorporated into the contract. The duty was imposed by the federal regulations as incorporated into the contract. The law is well settled that the reservation of the right to inspect and the right to stop the work does not in itself create a duty in the Government. As stated in Kirk v. United States, 270 F.2d 110 (9th Cir. 1959): “The fact that the United States retained the right to inspect the work under construction to see that the provisions of the contract were carried out and also retained the right to stop work if they were not is not sufficient in itself to make the United States liable for damages resulting from negligence of the contractors in their performance of the contract.” Numerous other cases hold that retaining the right to inspect and stop work creates no duty in the Government. Market Insurance Co. v. United States, 415 F.2d 459 (5th Cir. 1969); Gowdy v. United States, 412 F.2d 525 (6th Cir. 1969); Baum v. United States, 427 F.2d 215 (5th Cir. 1970); Fisher v. United States, 441 F.2d 1288 (3rd Cir. 1971). The right of inspection and the right to stop work created no duty in the Government, but do the federal regulations themselves create a duty to plaintiffs’ decedent which should have been carried out? The fact that the federal regulations incorporated into the contract create no such duty on the Government is well explained in Kirk v. United States, 161 F.Supp. 722 (S.D.Idaho 1958), affirmed 270 F.2d 110 (9th Cir. 1959): “It is the contention of the plaintiffs, inter alia, that the defendant was charged by law with the positive duty of accident prevention at the Lucky Peak Project; that the minimum requirements of this duty are set forth in the Manual, ‘Safety Regulations’, Exhibit No. 16; and that the failure of the Government employees to effectuate such a program of accident prevention and more particularly to effectuate the provisions of the said Manual was negligence for which the defendant is liable, regardless of any possible contributory negligence on the part of the deceased. This Court is of the opinion that the duty on the part of the Corps of Army Engineers to initiate and carry out a safety program did not create a duty or an obligation of care to the deceased. It is not sufficient that some duty or obligation may have been neglected by the defendant or its servants, but it must have been some duty or obligation owed the deceased. The United States v. Marshall, 9 Cir., 230 F. 2d 183. In Goodwill Industries of El Paso v. United States, 5 Cir., 218 F.2d 270, at page 272, it is stated: ‘In summation, it follows that the appellant cannot recover against the United States: * * * (c) for breaches of' duty which are not held actionable under the law of the state where the injury occurred.’ “The rules and regulations relied upon to establish a statutory duty to plaintiffs’ decedent, were not passed or promulgated for the purpose of establishing a duty of care and concomitant liability on the part of the Government and its employees toward one standing in the position of the deceased. It should be noted that the ‘Safety Regulations’ were made applicable to the contractor at the Lucky Peak Project only through the contract provisions and not by force of law. These rules, if applicable at all, were at most evidence of what was a reasonable standard of care.” The above rule was followed in United States v. Page, 350 F.2d 28 (10th Cir. 1965) and in Market Insurance Co. v. United States, 415 F.2d 459 (5th Cir. 1969), where the Court said: “Under the general provisions of the contract (paragraph GC-16), the contractor had a duty to comply with the Corps of Engineers safety manual. The safety manual required the contractor to place warning signs where necessary to provide proper and adequate warnings of hazards to workmen and to the public. The contractor was also obligated to take such additional measures as the contracting officer of the Corps might determine to be reasonably necessary for the purpose of providing safety controls for the protection of the life and health of the employees and other persons. “In cases where employees of independent contractors such as Loftin have sustained injuries while performing work for the United States, plaintiffs-employees have unsuccessfully argued that the United States, by the safety provisions of a government contract, has assumed a contractual obligation to the injured employee. See Beason v. United States, 396 F.2d 2 (5th Cir. 1968) (per cur-iam) ; Kirk v. United States, 161 F.Supp. 722 (S.D.Idaho 1958), aff’d 270 F.2d 110 (9th Cir. 1959). “Issuance of regulations and a manual relating to a safety program does not render the government liable for the death of an employee of an independent contractor under the Federal Tort Claims Act. Cf. Kirk, supra.” A very recent Ninth Circuit case rejects the idea that federal regulations create a governmental duty to the employee of a contractor. In United States v. DeCamp, 478 F.2d 1188 (9th Cir. 1973), an employee of an independent contractor of the Army Corps of Engineers was killed when his bulldozer made contact with a live willow tree. The district court found that the accident would not have occurred had the bulldozer been equipped with a canopy guard or roll bar. A provision of the Corps of Engineers’ safety manual required canopy guards, but the Corps’ resident engineer determined that the guards were not necessary for the particular project. The district court held that the decedent’s employer, the independent contractor, was not negligent in failing to provide canopy guards because the custom and usage in the area was for contractors not to use canopies or roll bars for clearance projects. The district court held the Government negligent because the statement of the resident engineer served to waive the application of a regulation that would have required canopies and this waiver breached the Government’s duty of care toward the decedent. The Ninth Circuit, reversing the district court, first stated that the safety manual, as a matter of federal law, imposes no special duty on the Government, citing numerous cases. The Court then stated that even if it conceded that such a duty was created by the manual, the Government was still not negligent because the resident engineer did not act negligently in waiving the regulation for the project. The Court stated: “In California a private person would assume no tort duty by reaching this conclusion and the government engineer cannot be held to a higher standard.” The conclusion is important because, under the FTCA, the United States is liable for the negligence of its employees: “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.” Accordingly, the law of Nevada governs the liability of the United States for this alleged tort. The Government is to be held to the same standard as a private person in Nevada, and therefore, under the FTCA, the federal safety regulations incorporated into the contract cannot create a duty on the Government which does not exist on a private person. Therefore, the AEC owed no duty to the decedent Thomas McGarry by reason of the contract between REECo and the AEC or by reason of federal statutes or regulations. B. Duties Imposed upon the AEC by Nevada Statute The plaintiffs argue that Nevada Revised Statutes § 618.250 created a duty in the AEC and that the deceased was proximately injured because of the AEC’s duty breach. NRS 618.250 provides : “Construction of unsafe places of employment prohibited. No employer, owner or lessee of any real property in this state shall construct or cause to be constructed any place of employment that is not safe.” (Emphasis added.) The plaintiffs allege that this statute imposes an affirmative duty upon the owner of the premises to make the premises safe for all persons invited thereon to work. No Nevada cases applying NRS 618.-250 could be found. It is doubtful that the Nevada state courts would give NRS 618.250 the interpretation the plaintiffs here seek. The statute pertains to constructing or causing to be constructed a place of employment that is not safe. It would indeed strain the statute to label the remote, uninhabited, 1400-square-mile Nevada Test Site a “place of employment” which was constructed or caused to be constructed by the AEC. NRS 618.250 can be read logically to mean that the owner of real property will not allow the construction of any unsafe structure or building where workers will be employed. Assuming, arguendo, that the Nevada Test Site was a place of employment which was allowed to be constructed by the AEC so that there was an affirmative duty, the plaintiffs’ theory falters because there was no duty breach by the AEC. The plaintiffs seem to argue that the duty created by NRS 618.250 is some type of nondelegable duty which cannot be passed on to the Government contractor which maintained the Test Site. The plaintiffs do not explain why this statute should be read to impose a nondelegable duty upon the owner of real estate. The statute merely creates the duty and is silent about how the duty shall be discharged. The creation of a nondelegable duty should certainly be more explicit. The duty created by NRS 618.250 was performed by the AEC pursuant to the terms of its contract with REECo. The contract requires the contractor (REE-Co) to comply with all state laws and regulations pertaining to worker safety. (Contract, page 12, paragraph 7; page A-17, paragraph A-27, Ptf. Exhibit No. 6.) The plaintiffs have conceded that the AEC was not negligent in choosing to proceed by using independent contractors and was not negligent in the selection of REECo as the independent contractor to manage and maintain the Nevada Test Site. (Plaintiffs’ post-trial brief, page 11, line 30.) The AEC is liable for the negligence of its own employees and not liable for the negligence of REECo employees. Therefore, even if NRS 618.250 is read to impose a duty upon the AEC as the owner of the Nevada Test Site, the plaintiffs’ theory fails for lack of a breach of duty by the AEC to plaintiffs’ decedent. C. Duties.Imposed upon the AEC by Reason of its Ownership, Possession and Control of the Nevada Test Site The parties agree that the property known as the Nevada Test Site has been withdrawn from the public domain for use by the AEC. (Pretrial Order, page 2, line 11.) The plaintiffs argue that the AEC, as the possessor and owner of the Nevada Test Site, has a duty under Nevada law to exercise reasonable care to make the premises safe for its invitees and to warn its invitees of any dangerous conditions thereon. The theory of the plaintiff is explained by Prosser (3rd ed. 1964) at page 395: “. . . as to those who enter premises upon business which concerns the occupier, and upon his invitation express or implied, the latter is under an affirmative duty to protect them, not only against dangers of which he knows, but also against those which with reasonable care he might discover.” The rule includes “ . . . independent contractors doing work on the premises, and the workmen employed by such contractors . . . ” The special duty owed invitees extends to all parts of the premises to which the purpose of the invitation may reasonably be expected to take him. A recent case cited by both parties which implements the landowner theory of liability in a FTCA case is Stanley v. United States, 347 F.Supp. 1088 (N.D. Me.1972). The United States owned the 979.5 foot radio tower from which the plaintiff’s son fell to his death while he was painting it. The decedent worked for a subcontractor who was doing the actual painting for the prime contractor hired by the Government. The radio tower consists of three “legs” twelve feet apart, to which are attached triangular horizontal platforms at intervals of approximately seventy feet. A ladder extends to each platform from the previous one. The platform at the upper end of any ladder has a ladder hole cut in the platform. The ladder hole is unguarded. It was the job of the decedent to stand at the various platforms and paint as far up the tower as he could reach with his long-handled brush. Two more experienced painters were doing the painting above the portion which could be reached from the platform. The two more experienced painters heard a clatter and saw the decedent falling through the ladder hole and down onto the next platform. The district court held that under Maine law the United States had a duty as the owner of the land and towers to use due care to provide its business invitees a reasonably safe place to work. Under Maine law the independent contractors, as well as their employees, are invitees. The law of Maine is that a landowner is normally not liable to third parties for dangers that are open and obvious, but there is an exception where obviousness may not be enough. The district court held that the ladder hole was an obvious danger, especially to the Navy men who must constantly climb it, but the obviousness of the danger was not sufficient protection for the painter who undergoes “a relaxation of his alertness” and forgets where the hole is as he paints above his head. The Court held that the failure of the United States to provide guard rails along the ladder holes in the platforms constituted a breach of its duty to use due care to provide its business invitees a reasonably safe place to work. The prime contractor had provided by contract with the Government to take proper safety precautions during the job. The Court held that the danger could have been obviated had the prime contractor provided proper safety belts, and therefore the prime contractor failed in its contractual undertaking to take proper safety precautions and was obligated to reimburse the United States for all damages found due to the plaintiff. The First Circuit Court of Appeals reversed the district court, Stanley v. United States, 476 F.2d 606 (1st Cir. 1973). The Court of Appeals first pointed out that the plaintiff could not sue the employer of the deceased because of the receipt of workmen’s compensation. The Court of Appeals characterized the district court holding as finding the Government negligent for defective design of the tower and finding the prime contractor liable to the Government for breach of its undertaking to provide proper safety precautions. On appeal the prime contractor argued that the Government was not liable and, accordingly, the contractor could not be liable over to the Government. The Court of Appeals agreed with the district court interpretation of the Maine law on the subject, but disagreed with the application. The Court of Appeals viewed the entire record and concluded that the open ladder holes may have been hazardous to the inexperienced painter on the tower, but the guardrails, if they had been put around the holes, would have created a hazard for the Navy men who were the frequent users of the tower. The Court said, at page 609: “The expert testimony, accordingly, comes to this. The platform, without rails, was a dangerous place for a painter, particularly an inexperienced painter, to work. It was perhaps more dangerous than such a painter might appreciate. On the other hand, as to all other persons, who manifestly used the tower far more frequently, and who would have to traverse apertures 26 times for a single ascent, guardrails were not only not needed, but were to some degree contraindicated. Furthermore, the special danger applicable to painters could, as the court found, be obviated by the use of safety belts with a tag line attachment.” Having absolved the Government of negligence, the Court of Appeals continued: “In the case at bar the government was not dealing with ordinary business invitees, but with specialists, of whom more could be expected. Cf. Gowdy v. United States, 6 Cir., 1969, 412 F.2d 525, cert. denied 396 U.S. 960, 90 S.Ct. 437, 24 L.Ed.2d 425; Barrett v. Foster Grant Co., 1 Cir., 1971, 450 F.2d 1146. It had provided in its contract that the contractor should attend to safety. The court’s ‘hold[ing] that the United States should reasonably have foreseen that painters, particularly if inexperienced, might lose both sight and consciousness of the nearby, unguarded ladder hole in the otherwise safe platform and back, trip or otherwise fall into it unless safety precautions were taken,’ is at best irrelevant in the absence of any evidence that the government should have supposed that the contractor would employ inexperienced workers on such a dangerous job and, more particularly, that it would fail in its obligation to take the safety precautions its workers required.” The Court emphasized, in footnote 6, that: “ . . . there was a safer way the present plaintiff could have done this work, namely with a safety belt that was the contractor’s responsibility.” The Court concluded, at page 610: “The government did what it should, and cannot be held liable. There is, accordingly, nothing for which the third-party defendant must indemnify it, and both complaints must be dismissed.” The Stanley case is important because it demonstrates the application of the landowner duty theory to a FTCA case and shows that the duty can be discharged on the Government’s part by making the contractor responsible for the safety of the employees. If the contract delegates the responsibility to the contractor, the Government would be liable only on a theory of faulty contractor selection or if the Government had reason to believe the contractor was not performing the safety measures required by the contract. In the case at bar, to ascertain the AEC’s duty imposed by its status as landowner, the Court must look at the law of Nevada. It is clear that McGarry, as the employee of REECo, was an invitee of the AEC. McCready v. Southern Pac. Co., 26 F.2d 569 (9th Cir. 1928), and Fuchs v. Mapes, 74 Nev. 366, 332 P.2d 1002. Generally, the owner of real property owes an invitee the duty of ordinary care. If a peril is hidden, latent or concealed, ordinary care requires an owner, with actual or constructive knowledge of the peril, to warn the invited guest who is without such knowledge. On the other hand, if the danger is obvious, ordinary care does not require a warning from the owner because obviousness serves the same purpose. Gunlock v. New Frontier Hotel, 78 Nev. 182, 370 P.2d 682 (1962), and Worth v. Read, 79 Nev. 351, 384 P. 2d 1017. In a later Nevada case, the Nevada Supreme Court adopted section 343A of the Restatement 2d of Torts, which states: “A possessor of land is not liable to his invitees for physical harm caused to them by any activity or condition on the land whose danger is known or obvious to them, unless the possessor should anticipate the harm despite such knowledge or obviousness.” Rogers v. Tore, Ltd., 85 Nev. 548, 459 P.2d 214. This means that the invitee’s knowledge of the danger does not inevitably bar recovery. In the case at bar, whether the power lines were “latent” or “obvious”, and whether the decedent had knowledge of them or not, is not important since the AEC, as in the Stanley case, 476 F. 2d 606, supra, had contracted the safety precautions to REECo. The AEC and REECo contract required the contractor to take all of the necessary safety precautions to protect the safety of McGarry. Therefore, as in Stanley, the Government fulfilled its duty of ordinary care and there was no evidence that the Government should have supposed that the contractor would employ inexperienced workers or that the contractor would fail in its obligation to take the appropriate safety measures. The plaintiffs appear to argue that the duty imposed upon the AEC by reason of its possession and ownership of the Nevada Test Site is a “nondelega-ble” duty, but no authority is provided to show the duty is nondelegable in the State of Nevada. In the Stanley case, in which Maine law was applied, the law appears very similar to Nevada law. There was no mention in Stanley of the nondelegable nature of the duty owed by the Government as landowner. In fact, the Court of Appeals stated that the Government “did what it should” and approved of the delegation of the duty to the prime contractor. In the instant case, as in Stanley, the AEC fulfilled its duty by contracting the responsibility to the contractor, REECo. Even if the landowner’s duty to invitees could be said to be a nondelegable duty, there is still the question of whether this theory of liability would be recognized under the FTCA. It must be remembered that the state law applies in an FTCA action, but there can be no absolute, strict, vicarious or imputed theories of liability. Prosser (3rd Ed. 1964, page 404) recognizes that the duty may be nondelegable, but it is clear that the nondelegable nature of the landowner’s duty is based upon the concept of imputed or vicarious liability. As Dean Prosser states: “It is generally agreed that the obligation as to the condition of the premises is of such importance that it cannot be delegated, and that the occupier will be liable for the negligence of an independent contractor to whom he entrusts maintenance and repair.” (Emphasis added.) In the instant case, if the landowner’s duty to invitees in Nevada could be said to be a nondelegable duty, it is evident that the landowner would be liable for the negligence of the contractor via a theory of vicarious liability. See Besner v. Central Trust Co., 230 N.Y. 357, 130 N.E. 577 (1921). The United States cannot be held liable for the negligence of a contractor. United States v. Dooley, 231 F.2d 423 (9th Cir. 1955), and Roberson v. United States, 382 F.2d 714 (9th Cir. 1967). Therefore, the AEC fulfilled the duty imposed upon it by reason of its ownership and possession of the Nevada Test Site by exercising ordinary care when it contracted the safety responsibility to REECo. If the duty was a nondelegable one, the liability would be via vicarious liability, a theory not cognizable under the FTCA. The plaintiffs cannot recover for the alleged breach of a duty owed by the AEC by reason of its ownership, possession and control of the Nevada Test Site. D. Duties Imposed upon the AEC by Reason of It Being the Owner, Supplier and Distributor of Electricity throughout the Nevada Test Site The defendant has admitted that the power lines, circuit breakers, transformers, substations and other electrical facilities on the Nevada Test Site, and the electricity supplied through such facilities are owned by the defendant United States of America. (Pretrial Order, page 2, paragraph 3.) Though the defendant owned the electrical facilities, it is equally clear that the contractor, REECo, was to manage, operate and maintain the Nevada Test Site, including the “Maintenance, repair and operation of utility plants and distribution systems including . . . electrical”. (Contract between AEC and REECo, paragraphs 1 and 2a.(3), page 2.) Also, according to General Provision A-27, page A-17, of the contract, REECo was responsible for job safety at the Nevada Test Site. The parties concede, and this- Court agrees, that REECo, the employer of the deceased and the contractor responsible for operating the Test Site, was negligent in a number of ways in the operation of the electrical distribution system and the manner in which the deceased was supervised at the scene of the accident. But the plaintiffs argue that despite the duties and breaches thereof by REECo, the defendant had duties which were personal to it and owed directly to the deceased. Even though REECo had a duty and could have prevented the accident by complying with its duty, the plaintiffs argue that the defendant had a corresponding personal duty which arose from its ownership of the inherently dangerous electrical distribution system. The plaintiffs appear to be actually combining two distinct theories of duty owed by the defendant to the deceased. The duties are normally treated separately but, due to the peculiar facts of this case, they have coalesced. First, the plaintiffs argue that the defendant, as the supplier and distributor of electricity on the premises and the owner of the electrical facilities through which such electricity is supplied, owed a high degree of care, commensurate with the danger presented by such electrical facilities and electricity, to anyone who fore-seeably would come into contact therewith. Second, the plaintiffs argue that the defendant, as the employer of the independent contractor, REECo, owes a nondelegable duty to exercise reasonable care to prevent harm to third persons, including the employees of the independent contractor, when the work the independent contractor is performing is inherently or intrinsically dangerous work. The plaintiffs argue that the drilling operation which the deceased was performing was inherently dangerous work because of the proximity of the high voltage power transmission lines. The plaintiffs then combine the duty arising from the ownership of the electrical facilities with the duty arising from the employment of an independent contractor to perform an inherently dangerous task and allege that the defendant United States breached this combined nondel-egable duty. Basically, the defendant acknowledges the existence of the first duty which arises from the ownership of the electrical distribution system, but argues that the entire duty was delegated by contract to REECo and therefore there was no duty breach by the defendant. With regard to the second duty which arises from the employment of REECo by the defendant to perform an inherently dangerous job, the defendant argues, first, that the job of drilling holes is not an inherently dangerous task and, second, that the nondelegable duty here referred to is not cognizable under the FTCA because it is a type of strict or vicarious liability. For clarity, the two duties will first be discussed separately before the combined effect is analyzed. The duty of care created by the ownership of electrical facilities and electricity is a higher standard of care than is normally required by a landowner. This higher standard of care has been described in various terms. In McCormick v. United States, 159 F.Supp. 920 (D.Minn.1959), a painter was injured while painting Government barracks. The Court sustained the painter’s FTCA claim and explained the law of Minnesota thusly: “In other words, one who erects electric lines carrying high voltage currents, as in the instant ease, must exercise a degree of care commensurate with the danger to be apprehended and arising out of contact therewith or current jumping or escaping therefrom. Knowledge of such danger by the proprietor thereof, requires warning, either vocal or in writing, and if in writing, it must be in closer proximity to the point of danger than that evidenced in this case.” In Hamilton v. United States, 143 F. Supp. 179 (W.D.Pa.1956), the Court held that the Government owed a duty to the employee of a contractor who was electrocuted, but denied recovery because the employee was contributorily negligent. Thfe Court applied Pennsylvania law and said: “. . . .a supplier of electrical current is bound to use the very highest degree of care practicable to persons who may be lawfully in proximity to, and liable to come in contact with, its dangerous installations.” The standard of care required is the same in most states, although it may be stated differently. As stated in 26 Am. Jur.2d Electricity, Gas, and Steam § 42: “The degree of care required to be used in the production, distribution, and use of electricity is stated in various terms which, perhaps, convey merely one idea. To declare that the utmost care must be used to prevent injury sounds different in statement than to say that ordinary care must be used in view of all the circumstances ; but when analyzed, the meaning is not far different, for "the ordinary care required under the circumstances is, in its practical application and in view of the highly dangerous character of electricity, a relatively high degree of care.” This high standard of care does not apply solely to power companies. As stated in 26 Am.Jur.2d Electricity, Gas, and Steam § 51: “An owner of land who has erected and maintained on his land high-voltage electric wires is under the same duty of safeguarding from injury members of the public who may come in contact with them as are electric companies engaged in the transmission of electric power.” The high standard of care imposed upon the supplier of electrical current has been held to be nondelegable by some courts. 26 Am.Jur.2d Electricity, Gas, and Steam § 53, pages 260 and 261. While the standard of care may be of the highest nature, it is clear that the basis of liability is negligence and is not strict or absolute liability. 69 A.L.R.2d 98. Therefore, this high standard of care is a type of liability cognizable under the FTCA. Counsel have not cited, and the Court has not found, any Nevada cases dealing with the duty imposed upon the owner and supplier of electricity. The Court therefore should follow the common law rule applied in all jurisdictions and apply a high standard of care commensurate with the danger presented by the electrical facilities at the Nevada Test Site. There are numerous FTCA cases which deal with electricity and the duty owed by the owner and supplier. Several of the relevant cases will be discussed before turning to the application of the duty in the instant case. An important case is Pierce v. United States, 142 F.Supp. 721 (E.D.Tenn. 1955), which was an action for damages against the United States under the FTCA for injuries received by the plaintiff who was working as an electrical lineman for a subcontractor to an independent contractor for the Government at the Volunteer Ordnance Works (VOW), a Government-owned munitions plant which was deactivated after World War II and was being reactivated as a result of the Korean War. The plaintiff was injured when he came into contact with an energized power line on a structure in close proximity to the substation on the premises. . The Court, in holding the United States liable, even though it was the responsibility of the contractor to be sure all power was turned off, stated: “The electrical current furnished for VOW was purchased by the government and delivered to it at the site of VOW, where it was fed into the project over government owned power lines existing on the premises. The government, through the Ordnance Corps and the Corps of Engineers, had possession of the premises. “The Corps of Engineers had a contracting officer at the site whose duties included keeping track of the work, settling disputes and, in general, seeing that the work required by the government was being satisfactorily performed. “It is plaintiff’s contention that the government, in furnishing power for the premises, was dealing with a highly dangerous substance and, under Tennessee law, owed a duty to all persons rightfully on the premises to exercise due care for their safety commensurate with the danger involved. Further that the government knew or should have known that possible injuries might result.from such electricity unless adequate precautions were taken to protect the workmen on the power lines from its dangerous propensities. Plaintiff asserts that the government failed to take such precautions and that his injuries resulted from its negligence in failing to do so. Indeed it is asserted that electricity is an imminently dangerous substance and that, under Tennessee law, the government had a nondelegable duty to take adequate precautions to safeguard the workers on the project. it * -X- -X- « * * -X* “It is true that an employer is not generally liable for the negligence of an independent contractor. However, there is an exception in those cases where, from the nature of the particular work or project, in the natural course of events mischievous consequences can be expected to arise unless means are adopted to prevent it. In such cases the owner-employer is held to be under a nondelegable duty to see that appropriate preventative measures are adopted. “This enlightened rule has been recognized and given application by the Tennessee courts. Davis v. Cam-Wy-man Lumber Co., 126 Tenn. 576, 150 S.W. 545; International Harvester Co. v. Sartain, 32 Tenn.App. 425, 222 S. W.2d 854, certiorari denied by Supreme Court, March 11, 1949. “Electricity has traditionally been considered extremely dangerous and the duty of exercising a high degree of care is placed upon those dealing with it. Walpole v. Tennessee Light & Power Co., 19 Tenn.App. 352, 89 S. W.2d 174; Tennessee Electric Power Co. v. Sims, 21 Tenn.App. 233, 108 S. W.2d 801. In fact the effect of the pronouncements in the Sartain case, supra, is to hold it an imminently dangerous agency which places upon the individual dealing with it, a nondelegable duty to see that reasonable means are taken to protect those who come into contact with it. Failure to fulfill that duty results in liability on the part of such individual, even though the plaintiff’s injury resulted in whole or in part from the acts or omissions of an independent contractor employed to perform the particular work. “The government was in possession of the premises through its agencies, the Corps of Ordnance and Engineers. Indeed counsel conceded during the trial that the power lines and substation involved had not been turned over to Atlas. The government had contracted with the Electric Power Board of Chattanooga to furnish power for the premises. The power was delivered by the utility to the site of VOW and brought onto the premises over government owned lines. The government thereupon became a supplier of electricity, subject to the same high degree of care to protect persons properly upon the premises as is required of electric power companies. International Harvester Co. v. Sartain, supra. “ * * # “Although much of the inspection work had been delegated by contract to Patchen and Zimmerman, it also appears that the Corps of Engineers had some inspectors in the field who were to see that the electrical work was progressing satisfactorily. And of course by virtue of its own contracts, the government knew that the work to be done would necessitate linemen being in and about both the lines and substations of VOW. It also knew that, unless proper steps were taken to see it was killed, high-voltage power would be on those lines and substations while the work progressed. “Despite these facts the government took absolutely no steps either to correct the defects in the substation or, failing that, to see that the power was off while the crew of linemen to which plaintiff belonged performed their work upon it. << -X- * * “ -X- * * “The government was responsible for the condition of the substation and, under the Tennessee decisions, for failing to see that adequate precautions were taken to protect the plaintiff from the high-voltage power which it purchased and placed there «•» *- * “ * * * “Neither can the Court accept the government’s contention that plaintiff is barred from recovery because he has failed to show negligence on the part of any employee of the government. The premises were under the control of the government. Under its contracts with the companies doing the rehabilitation work, the contracting officer of the Corps of Engineers had the right to approve the work, settle disputes, authorize changes, etc. The dangerous structure was on government premises and the power was purchased and transmitted by the government to be utilized on the premises. “The government can function only through its agents and employees. The plaintiff has shown to the Court’s satisfaction that the representatives of the government in possession of VOW totally failed in their duty to safeguard plaintiff from injury as it was their duty to do under Tennessee law. Under the circumstances it is immaterial that plaintiff did not establish the particular named official who was responsible for such duties. The Court knows of no case holding it a prerequisite to recovery that one injured through the negligence of a government employee must show the identity of such individual, so long as the duty and breach thereof is established. “Lastly it is argued that even though the substation may have been defective and high-voltage electricity considered an imminently dangerous agency, no liability rests upon the government solely because of its ownership of the premises. Certainly the Act and the cases dealing with it would seem to require some negligent act before liability attaches. For the purposes of this decision the Court assumes that such is the requirement of the Taw. But this is of no benefit to the government. “As the doctrine of nondelegable duty is applied in this state it is not a rule of strict liability regardless of fault. Negligence is required, the sole effect of the doctrine being to preclude the owner-employer from escaping liability for negligence which was a proximate cause of injury on the ground that others may have been guilty of negligence, which was also a proximate cause of injury. As in any other case the basis of liability is negligence. This was made perfectly clear in the Sartain ease, supra, where the Court pointed out [32 Tenn.App. 425, 222 S.W.2d [854], 866] that the rule ‘is one requiring ordinary care under the circumstances, which may be a high degree of care actually, but is not a rule of absolute liability regardless of the exercise of ordinary care, so to make the owner an insurer * * * ’. Therefore, if the Act requires negligence, the Tennessee cases are in complete conformity with the requirement, liability being imposed upon proof of failure to exercise due care.” The district court was affirmed by the Court of Appeals, United States v. Pierce, 235 F.2d 466 (6th Cir. 1956), which held: “The court [District Court] found that the government, which had possession of the premises through its agencies, failed to take adequate precautions to protect workmen on the power lines and that this constituted negligence of the government’s employees. . “ -x- * -X- “The judgment is affirmed upon the grounds and for the reasons stated in the memorandum opinion of the District Court, 142 F.Supp. 721.” Similarly, in United States v. Haskins, 395 F.2d 503 (10th Cir. 1968), an action was brought by the heirs of a deceased employee of an independent contractor which had contracted with the Department of the Army to paint the exterior of the buildings at Fort Carson, Colorado. The decedent’s foreman, also an employee of the independent contractor, stopped at the place where the decedent was working to take him to lunch. He attempted to remove the decedent’s ladder to another position and in doing so the ladder came into contact with an uninsulated high voltage line running parallel to the building, causing the foreman to receive an electrical shock. In attempting to rescue him, the decedent was killed, although the evidence did not indicate exactly how. In holding the United States liable, the Court said: “There is substantial evidence in the record to support the trial court’s finding that the government was negligent. ‘Electricity has traditionally been considered extremely dangerous and the duty of exercising a high degree of care is placed upon those dealing with it.’ Pierce v. United States, 142 F.Supp. 721, 728-729 (E.D.Tenn., S.D.1955), aff’d per curiam, 235 F.2d 466 (6th Cir. 1956). The degree of care exercised must be commensurate with the danger. McCormick v. United States, 159 F.Supp. 920, 924 (D. Minn.1958). However, the government did not have to guard against possible eventualities — only probabilities. Currence v. Denver Tramway Corporation, 132 Colo. 328, 287 P.2d 967 (1955). Under the facts of this case there was a likelihood or reasonable probability of human contact with the high voltage wire. The danger should have been foreseen or anticipated ; however, the evidence showed no warning signs of any kind were maintained in the immediate area where the accident occurred. No specific warnings were given to Trans-co or its employees. The fact the electrical wiring in other areas of Fort Carson was strung so the neutral wire was closer to the structures than the high voltage wire indicates a safer procedure could have been followed in the accident area. It is true that in constructing and maintaining its lines the government had complied with applicable safety codes; however, it is felt such compliance is not conclusive evidence of due care but is only one factor to be considered. An unsafe condition existed which, it is felt, was not obvious to the painters-invitees of the government. There was a duty to warn of that unsafe condition. Stan-cil v. United States, 196 F.Supp. 478, 480-481 (E.D.Va.1961).” United States v. Pierce, 235 F.2d 466, supra, and United States v. Haskins, 395 F.2d 503, supra, are directly on point. In both cases an employee of an independent contractor sustained injury as a result of negligent maintenance of an electrical distribution system, and the failure to warn the employee with regard to such system. In both cases the Court held that, although the independent contractor as the employer of the plaintiff could have discharged the duty, the Government nonetheless had the duty and was negligent in failing to discharge it, so that the liability was imposed for the Government’s breach of its own duty, rather than for the independent contractor’s breach of-a similar and corresponding duty. In Stancil v. United States, 3.96 F. Supp. 478 (E.D.Va.1961), the district court, on remand after reversal of a judgment in favor of the Government by the Fourth Circuit in Stancil v. United States, 267 F.2d 268 (4th Cir. 1959), held the Government liable for the death of a painter who was electrocuted when he came into contact with a power line which had not been disconnected before he was sent to paint a portion of Pier 1 at the Hampton Roads Army Terminal in Norfolk, Virginia. The district court stated: “This factual situation brings the case within the rule that, at places where others have a right and may reasonably be expected to go for work, business, or pleasure, there is a duty to keep wires carrying a dangerous voltage properly insulated, or otherwise warn an invitee of an unsafe condition not open and obvious to a person in the exercise of reasonable care. Trimyer v. Norfolk Tallow Company, 192 Va. 776, 66 S.E.2d 441; City of Danville v. Thornton, 110 Va. 541, 66 S.E. 839; Blackwell v. Hub Furniture Corp., 163 Va. 621, 177 S.E. 64. As Moyer was the designated party to determine where workmen should be so occupied, and the Government was not interested in this phase of the details other than to follow the overall plan that where practicable the work was to be done in sections, the Government, as the owner of the project, is not exonerated where the work to be performed was inherently hazardous in the area wherein the work could be reasonably anticipated. Bowers v. Town of Martinsville, 156 Va. 497, 159 S.E. 196; Epperson v. De Jarnette, 164 Va. 482, 180 S.E. 412. That Houska was an independent con-tactor is clear. Boyd, Higgins & Go-forth v. Mahone, 142 Va. 690, 128 S.E. 259. But this fact, standing alone, does not relieve the owner of the non-delegable duty to warn where hazardous work is being performed within the scope of the invitation.” The Standi ease is important for three different propositions: (1) the fact that an independent contractor created the risk does not absolve the owner of the electrical distribution system of his duty; (2) the owner has a duty to warn of the existence of power wires where others mights reasonably be expected to go for work; (3) ordinary work (painting) becomes extra-hazardous work when it has to be performed within close proximity to electrical wires. In Gowdy v. United States, 412 F.2d 525 (6th Cir. 1969), the plaintiff, an employee of an independent contractor which had a contract with the Coast Guard to install electrical equipment at a machinery house that was part of a lighthouse owned by the Government on Lake Michigan, was injured while hoisting some equipment to the flat roof of the machinery house. There was no guardrail on the roof and he fell off. The Court pointed out that the Government was not required to exercise control in that situation over its independent contractors and was not liable for its failure to do so because hoisting machinery was not an inherently dangerous activity, and further pointed out that the right to inspect did not create such a duty. The equipment being used by the contractor’s employee was owned and furnished by the contractor and could have been operated from the ground as well as the roof. However, the Court pointed out that as possessor of the premises the Government had a duty to make the premises safe for its invitees, including employees of independent contractors, and, if the absence of a guardrail had not admittedly been known to the plaintiff, it could have been liable for a failure to warn him, stating: “Since the Government may not be held liable without fault, it follows that the only basis for liability is negligence, if any, of Government employees in failing to warn Gowdy of the danger or in failing to provide guardrails to prevent the fall. But the Government was not required to warn Gowdy of something which he admitted that he already new, (sic) namely, that no guardrail was on the flat roof and that it