APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY.
Adams and Garth, Circuit Judges, and Caleb R. Layton,*fn* District Judge. Adams, Circuit Judge, concurring in part and dissenting in part.
This is the second time we have had this case before us on appeal. Plaintiff Ronald Gibson brought this action against the United States under the Federal Tort Claims Act, 28 U.S.C. §§ 1346, 2670-2680 (1970) [FTCA],*fn1 having suffered an injury from an assault which occurred on November 5, 1966 at the federal Job Corps Center at Camp Kilmer, in Edison, New Jersey. The Kilmer Center was operated by Federal Electric Company [FEC] under contract with the Office of Economic Opportunity [OEO], an agency of the United States. Gibson filed suit on November 1, 1968 in the District of New Jersey. The district court dismissed the complaint on the ground that the FTCA, 28 U.S.C. § 2680(h), which exempts the United States from tort liability for the assaults and batteries of its employees, prohibited recovery. On appeal, this court reversed, holding that the facts as pleaded (which included an allegation that the United States had operational control of the Center) stated a claim upon which relief could be granted. Gibson v. United States, 457 F.2d 1391 (3d Cir. 1972).
On March 17, 1975, after a non-jury trial limited to liability, the district court filed an opinion (dated March 14, 1975) holding that, since the United States did not have day-to-day control of the Center, it could not be liable for failing to control Gibson's assailant. The district court, however, went on to hold the Government liable for the negligent acts of FEC's (the contractor's) employees, under the doctrine of respondeat superior. Alternatively, it held the Government liable under the theory that a contractee is vicariously liable for the negligence of its independent contractor when the work performed is "inherently dangerous."
On May 20, 1976, after a bench trial on damages the district court in an unpublished opinion assessed damages at $106,980, but refused to include damages claimed because of Gibson's alleged inability to attain a doctoral degree. The court held that Gibson's ability to realize his professional goals had not been substantially hindered by his injury.
On June 8, 1976 Gibson filed a Rule 52(b) motion seeking reconsideration on the issue of damages. On June 15, 1976 the district court entered judgment against the United States in accordance with its May 20 opinion, but at that time did not dispose of the Rule 52(b) motion.*fn2
On September 17, 1976 the district court denied Gibson's Rule 52(b) motion. Both parties timely appealed, Gibson on the issue of damages (at No. 76-2490), and the United States on the issue of liability (at No. 76-2673).
When the district court ruled in favor of Gibson on the issue of liability, it did not have the benefit of the Supreme Court's opinion in United States v. Orleans, 425 U.S. 807, 48 L. Ed. 2d 390, 96 S. Ct. 1971 (1976), which was decided more than a year after the liability trial had concluded. Because we believe that Orleans controls, we must reverse, although we do so reluctantly in light of the eleven year history of this case.*fn3
In 1972 our first opinion, at 457 F.2d 1391, set out the factual background in somewhat greater detail than we find necessary to repeat here. Thereafter, the district court's unpublished opinion on liability only made extensive findings of fact, which, as they relate to the issues before us now, are summarized briefly as follows:
The Job Corps was created as part of the Economic Opportunity Act of 1964, 42 U.S.C. § 2711 (now 29 U.S.C. § 911), to assist disadvantaged youths by establishing rural and urban centers in which enrollees would participate in educational programs, vocational training, work experience, and other activities. The Director of OEO was authorized to enter into contracts with private contractors for the operation of Job Corps centers. Camp Kilmer was a residential training center for boys, operated by FEC pursuant to a contract with OEO.
Ronald Gibson was employed by FEC as a group leader at Kilmer. As such he lived in the dormitories. On the night of November 5, 1966, one of the enrollees, Andrew Jessie, became involved in several arguments and disturbances. After the second incident, Gibson took Jessie to the duty officer in charge of security, who may have placed Jessie in the security dormitory.*fn4 Shortly thereafter Jessie returned to Gibson's dormitory and became involved in another disturbance. Gibson instructed the security personnel to leave, and he tried to calm Jessie. Gibson then went to the latrine section. Jessie followed him and stabbed him in the temple with a screwdriver, inflicting severe injuries.
B. The Respective Duties of OEO and FEC.
Camp Kilmer was a federal reservation. There was a permanent OEO on-site representative at the Kilmer Job Corps Center, and a project manager in Washington. The OEO had broad supervisory authority over Camp Kilmer, and many aspects of the Camp's operation were subject to OEO approval. The OEO was solely responsible for choosing enrollees,*fn5 and for approving center staffing. Nevertheless, as found by the district court (Finding of Fact No. 6, Dist. Ct. Op. of Mar. 14, 1975, at 8, Appendix at 14a), control over the Center's day-to-day operations resided in FEC.
C. Security at the Kilmer Center.
At the time of Jessie's assault on Gibson, FEC had four or five unarmed, civilian security employees assigned to each shift. These security officers were not empowered to make arrests. One security dormitory at Kilmer was used to segregate enrollees who created disciplinary problems. That dormitory was identical to the other dormitories and had no special security features, bars, or locks.
Under its contract with OEO, FEC was responsible for taking "all reasonable steps and precautions to prevent accidents and to protect the life and health of Contractor [FEC] . . . personnel performing or in any way coming in contact with the performance of . . . this contract. . . ." (Part XIX of Contract).*fn6 FEC had authority to remove physically from the Center any enrollee causing disciplinary problems.
OEO also disseminated guidelines for controlling the conduct of the enrollee corpsmen. In Bulletin J/M 67-1, dated September 19, 1966, (Government Exhibit G-1), the OEO required that "each Center must develop and enforce those rules that are necessary for its orderly functioning . . . . Beyond this, Centers have an obligation to create an atmosphere that promotes adherence to acceptable standards of behavior . . . ." This same bulletin additionally provided that it was the responsibility of the Job Corps Headquarters [OEO] to define general policy regarding discipline, and the responsibility of each Center [FEC] to develop and enforce disciplinary rules. The Bulletin also specified that an on-site isolation facility should be maintained for corpsmen whose behavior constituted a threat to themselves or to any other person or property, and that physical restraint and isolation could be used, but only to the extent necessary to gain control of the corpsman who posed a threat.
Prior to the attack on Gibson there had been numerous incidents of misconduct by enrolled corpsmen, and the OEO had received reports concerning these disciplinary problems. In addition, FEC security personnel had discussed with the OEO on-site representative the need for a secure isolation facility and for deputization of the guards as Deputy U.S. Marshals with arrest authority. (In fact, this was part of an improvement plan (Exhibit P-7) prepared by the FEC staff at Kilmer, but never submitted to OEO for approval.) FEC, however, never requested assistance from OEO in dealing with its discipline problems, and never formally sought permission to build a security facility or to obtain arrest authority for its guards.
The facts found by the district court which we have summarized in part IB of this opinion, when examined in light of the recent decision in United States v. Orleans, supra, lead to the conclusion that the district court erred in imposing liability on the United States for the negligence of FEC, its independent ...