Isabel YANEZ, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee

Opinion by Judge FLETCHER; Partial Concurrence and Partial Dissent by Judge NOONAN.

Plaintiff Isabel Yanez appeals the district court’s partial judgment on the pleadings and partial summary judgment in favor of the United States in her action under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346 , 2674. Yanez seeks damages for injuries she sustained while performing work for an independent contractor, Caelus Devices, Inc. (“CDI”), at its munitions factory. She claims that the United States is liable under the peculiar risk doctrine and because it exercised negligent control over CDI’s activities. We affirm in part and reverse in part.

FACTS & PRIOR PROCEEDINGS

This case arises out of Isabel Yanez’s employment with CDI, a munitions contractor for the United States. On June 11, 1986, Yanez lost her left arm and suffered third degree burns when dextrinated lead azide exploded at CDI. Broco, Inc., supplied the lead azide to CDI.

Yanez sued Broco in state court claiming that its defective lead azide was the cause of her injuries. CDI then sued Broco. The cases were consolidated. The Yanez-Broco suit settled for $375,000, and the CDI-Broco suit settled for $90,000. Yanez…

concurring and dissenting:

I concur in the opinion of the court holding that Privette v. Superior Court, 5 Cal.4th 689 , 21 Cal.Rptr.2d 72 , 854 P.2d 721 (1993), decided while this case was still before the district court, doomed the plaintiffs cause. I disagree, however, that some portion of that cause still has a half-life after Privette . In reaching my conclusion, I believe that I do what a federal court should do in applying relevant state law: that is, follow the reasoning of the state’s highest court even as to a particular theory of liability not expressly dealt with by that court and certainly as to a theory of liability expressly rejected by the state’s highest court and erroneously revived by the aberrant decision of a lower state court.

Section JplJp Liability

Privette dealt with peculiar risk, not liability for retained control. Its reasoning is not limited to peculiar risk. After Privette , an independent contractor’s employee cannot obtain workers’ compensation and then ob *876 tain a second recovery from the person who contracted with his employer to have that employer perform the job: “when the contractor’s failure to provide safe working conditions results in…

63 F.3d 870 95 Cal. Daily Op. Serv. 6573 , 95 Daily Journal D.A.R. 11,204 Isabel YANEZ, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee No. 93-16943. United States Court of Appeals, Ninth Circuit. Argued and Submitted March 15, 1995. Decided Aug. 21, 1995. As Amended on Denial of Rehearing Oct. 23, 1995. * Joseph J. Appel, San Francisco, CA, for plaintiff-appellant. William F. Murphy, Asst. U.S. Atty., San Jose, CA, for defendant-appellee. Appeal from the United States District Court for the Northern District of California. Before: FLETCHER, REINHARDT, and John T. NOONAN, Jr. Circuit Judges. Opinion by Judge FLETCHER; Partial Concurrence and Partial Dissent by Judge NOONAN. FLETCHER, Circuit Judge: 1 Plaintiff Isabel Yanez appeals the district court's partial judgment on the pleadings and partial summary judgment in favor of the United States in her action under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. Secs. 1346 , 2674. Yanez seeks damages for injuries she sustained while performing work for an independent contractor, Caelus Devices, Inc. ("CDI"), at its munitions factory. She claims that the United States is liable under the peculiar risk doctrine and…