MEMORANDUM AND ORDER
I. Introduction
This аction arises as a result of an accident at a nuclear research facility in Du-Page County, Illinois. The Argonne National Laboratory (“Laboratory”) is owned by the United States. It is operated by the University of Chicago (“University”) under the terms of a contract between the United States, the University, and the Argonne Universities Association (“Association”), an association of universities involved in research at the Laboratory. The contract controls the direction, operation and management of the Laboratory and defines each party’s role in the running of the facility. Included in the activities of the Laboratory is the operation of a nuclear reactоr. The contract states: “[T]he University recognizes that such operation involves the risk of a nuclear incident which, while the chances are remote, could adversely affect the public health and safety.” (Contract, Article XXII.)
Plaintiff was employed by the University as a radio-chemist and worked at the Laboratory. Part of plaintiff’s duties involved the testing and analysis of nuclear waste *1215 material. Plaintiff alleges that on September 2, 1980, he was testing and analyzing the contents of a small ampoule of liquid nuclear waste material prior to its disposal. The sealed ampoule contained plutonium and americium in an aqueous solution. The contents of the ampoulе were stored under pressure. Plaintiff alleges the sealed ampoule exploded in his hands, exposing him both externally and internally to poisonous nuclear waste, causing grievous harm to his body, mind and nervous system.
Plaintiff brought suit in this court against the United States, the Laboratory, the Association and the Argonne Occupational Health and Safety Division (“Safety Division”), a division of the Laboratory charged with maintaining safe conditions at the Laboratory. Plaintiff claims that the defendants negligently breached their duties towards him by allowing the ampoule to be stored in an unsafe manner. Plaintiffs suit against the United States is brought' in this court under the Federal Tort Claims Act (“FTCA”). The claims against the other defendants are brought in this court as pendent to the FTCA claim.
Before the court are motions to dismiss, or in the alternative, for summary judgment on behalf of the United States, the Laboratory and the Safety Division. Also before the court is a motion for summary judgment on behalf of the Association. Except for the jurisdictional issue in part IV of this memorandum, all motions are supported by evidence outside of the pleadings and will be treated as motions for summary judgment pursuant to Fed.R. Civ.P. 12(b). Because jurisdiction over the claims against the Laboratory, the Association and the Safety Division hinge upon the court continuing to entertain the FTCA claim against the United States, the government’s motions will be discussed first.
II. The United States’ Duty to Plaintiff
The Federal Tort Claims Act provides exclusive jurisdiction in federal district courts over all tort claims against the United States. 28 U.S.C.A. § 1346(b). Liability of the United States under the FTCA can only accrue from negligent or wrongful acts or omissions by employees of the government while acting within the scope of their employment.
Id.
It cannot arise from the acts of employees of independent contractors working for the United States.
Id.
at §§ 1346(b), 2671. The United States is only liable to the extent a private person, under the laws of the state where the act or omission occurred, would also be liable.
Id.
at 1346(b).
See Massachusetts Bonding Co. v. United States,
The government argues that it owed no duty to the plaintiff under Illinois law and could not have been negligent with regard to him. In support of this argument the government contends that though it owned the Laboratory it had neither sufficient possession nor sufficient control for a duty towards the plaintiff to arise. It also contends that plaintiff was employed by an independent contractor over which it had no control. Finally, it claims that it cannot be found liable on an “inherent danger" theory because that would impose strict and vicarious liabilities in contravention of the FTCA.
In Illinois, an owner of property who hires an independent contractor is relieved of liability from activities of that contractor “where the independent contractor is in
exclusive
control of the work.”
Weber v. Northern Illinois Gas Co.,
The contract controlling the operation of the Laboratory gives the United States the requisite control over that operation to subject it to liability under Illinois law. The contract holds the United States responsible for the conduct of the program and gives it general control over the contract work (Contract, Article V). It requires the University to run the program in accordance with policies and regulations set by the United States (Contract, Articles V and XXI). It gives the United States pоwer to immediately shut down the program (Contract, Article XXI). It even gives the United States some control over guidelines governing the hiring of personnel (Contract, Article VIII), and provides that the government will pay the premiums for insurance the government demands the University procure (Contract, Article XVIII). Finally, the contract requires the University to follow all the applicable safety and health requirements set by the government (Contract, Article XXI). In short, the control granted the government by the contract, despite the claims by Mr. Golden that the University is an independent contractor, is sufficient to subject the United States to liability.
The government’s claim of insufficient control for liability to arise is puzzling. Involved in the contract was nuclear research and the operation of a nuclear reactor. It is discomforting that the United States claims it abdicates control over this type of hazardous research when it hires an independent contractor. This is the type of research over which presumably the government maintains strict safety control. Even if the government had abdicated control over the research in the contract, however, Illinois law would not allow it to also abdicate its responsibilities.
In Illinois an employer of an independent contractor can be liable for injuries incurred from the work of that contractor if the work involves inherently dangerous activity.
Johnson v. Central Tile & Terrazzo Co.,
The exception is sometimes said to apply where the work contracted is “inherently” or “intrinsically” dangerous or will be a probable source of injury to others unless certain precautions are taken. The duty to take these precautions is then absolute in the employer; he may not delegate this duty.
Johnson v. Central Tile & Terrazzo Co.,
There can be no doubt that the operation of a nuclear reactor and the handling and testing of nuclear wastes are inherently dangerous activities. The contract acknowledges the risk of a nuclear incident which “could adversely affect the public health and safety.” The release of excess radiation into the atmosphere or a malfunction of the reactor, causing radiation leaks, cooling fluid spills, or a partial or total melt-down of the core unit, are all possible results of unsafe practices of the Laboratory. The hazards of radiation and the possi *1217 bility of a “nuclear incident” have been recognized by Congress. See 42 U.S.C. §§ 2021(g) and 2210(e). The government, in contracting out such research, cannot delegate its duty to ensure that proper safety precautions are taken.
Contrary to the government’s assertions, application of a non-delegable duty in Illinois is not tantamount to imposing strict liability or vicarious liability. Though the imposition of absolute liability is not permitted by the FTCA,
Dalehite v. United States,
III. The United States’ Statutory Immunity Claim
The United States also claims it is statutorily immune from plаintiff’s tort claim pursuant to section 5(a) of the Illinois Workers’ Compensation law. The workers’ compensation law is designed to protect employees from the expense, delay and uncertainty of seeking compensation for injuries through litigation by providing them with prompt and equitable compensation for their injuries.
See Kelsay v. Motorola,
The government hired the University to run the Laboratory. The University was required to hire the personnel. The cоntract also provided that the University would maintain workers’ compensation insurance at the government’s expense. Though the government was not the immediate employer of plaintiff it believes it is immune from liability based on the following argument: The purpose of workers’ compensation laws is to protect employees. When an employer is uninsured the employee is in danger of being unprotected. To guard against the hiring of uninsured, and consequently lower-priced, independent contractors, general contractors who hire uninsured independent contractors are often deemed “statutory, employers” and are liable for the workers’ comрensation claims of employees of these independent contractors. See Ill.Rev.Stat., ch. 48, § 138.1(a)(3) (applying to certain types of employers). If a general contractor is liable under the statute, that contractor should be considered a “statutory employer” and should receive the quid pro quo benefit of “statutory immunity.” If a general contractor who employs uninsured subcontractors is immune, then equity demands that a general contractor who requires that its independent contractors be insured, and pays the premiums, is also immune. Thus, the government should be granted immunity.
The government’s argument has been accepted in the context of a FTCA action by a number of courts.
See e.g., Griffin v. United States,
In
Laffoon v. Bell & Zoller Coal Co.,
The government argues that Laffoon is distinguishable because section 1(a)(3) of the workers’ compensation law refers to specific activities, of which work with nuclear reactors and their by products are not a part. This argument, however, narrоws the scope of Laffoon to an excessive degree. The thrust of Laffoon is that statutory immunity for tort actions will only extend, in Illinois, to the immediate employers of the injured employee. That Laffoon specifically dealt with section 1(a)(3), which applies to construction and demolition work, does not restrict its application to only those types of employment mentioned in the section. Any other interpretation would allow employees working in the types of employment delineated in section 1(a)(3) to sue their general contractors while giving general contractors dealing with other types of employment the opportunity to limit their liability by arranging their payment of the workers’ compensation insurance premiums (with no added cost since the premium expenses are passed along from independent contract to general contractor in any event). Such an interpretation would create equal protection problems similar to those confronted and dispensed with in Laffoon, especially where, as here, the employment might be as hazardous as those types dealt with in section 1(a)(3). When the court in Laffoon stated that section 5(a) conferred immunity only upon immediate employers, it referred, this court believes, to all employees in all types of employment.
The government makes two final arguments that can be disposed of quickly. First, it argues that section 2 of the Workers’ Compensation Act provides for election of coverage if an employer, not covered, so desires. See Ill.Rev.Stat., ch. 48, § 138.2. Since the government elected to provide coverage, it claims it now should be immune. Laffoon, however, makes it clear that only an employee’s immediate employer can receive immunity from the Act. This holding applies to section 2 also. In addition, the Laboratory is not covered under section 2 because it involves one of the specifically enumerated hazardous activities in section 3. See Ill.Rev.Stat., ch. 48, § 138.3(7). The government also asks this court to disregard Laffoon, claiming that the Illinois courts would now reverse that decision. This court rеfuses to make such a judgment. The theory advanced by the government was raised in Laffoon and argued in the dissent. The majority decided not to adopt it. This court cannot disregard that decision. Accordingly, the United States’ motion for summary judgment is denied.
IV. Pendent Party Jurisdiction
Defendants Argonne National Laboratory and Argonne Occupational Health and Safety Division have moved to dismiss the *1219 claims against them for lack of federal jurisdiction. Defendants argue that in order for the claims against them to be joined with the federal action against the United States an independent ground for federal jurisdiction must exist. No independent ground for federal jurisdiction over the claims against them has been alleged. They contend, therefore, that this court cannot entertain plaintiffs claims against them. Plaintiff, on the other hand, argues that under applicable pendent jurisdiction law, jurisdiction over state claims against third parties properly lies in this court when derived from a nucleus of operative fact in common with a FTCA claim correctly before this court. Plaintiff contends that judicial convenience, coupled with the FTCA’s grant of exclusive jurisdiction over his case against the United States in the federal district court, mandates this result.
In determining whether to exercise pendent jurisdiction, this court must first turn to
United Mine Workers v. Gibbs,
In the first step, a court must determine the threshhold issue of whether there is power under Article III of the Constitution to hear the case.
Pendent jurisdiction, in the sense of judicial power, exists whenever there is a claim “arising under [the] Constitution, the Laws of the United States, and Treaties made, or which shall be made under their Authority ...,” and the relationship between that claim and the state claim permits the conclusion that the entire action before the court comprises but one constitutional “case.” The federal claim must have substance sufficient to confer subject matter jurisdiction on the court. The state and federal claims must derive from a common nucleus of operative fact. But if, considered without regard to their federal or state character, a plaintiffs claims are such that he would ordinarily be expected to try them all in one judicial proceeding, then, assuming substantiality of the federal issues, there is power in federal courts to hear the whole.
Id.
at 725,
After a court determines that there is power under Article III to hear the case, it must determine whether or not to exercise that power.
That power need not be exercised in every case in which it is found to exist. It has consistently been recognized that pendent jurisdiction is a doctrine of discretion, not of plaintiffs right. Its justification lies in considerations of judicial economy, convenience and fairness to litigants; if these are not present a federal court should hesitate to exercise jurisdiction over state claims, even though bound to apply state law to them.
Id.
at 726,
In
Gibbs,
pendent jurisdiction was exercised over a state claim against a defendant already within the jurisdiction of the federal court. In the present case plaintiff seeks to bring entirely new parties into the litigation. The differences between the exеrcise of jurisdiction in the two cases are significant.
See Moor v. County of
*1220
Alameda,
The Court in
Aldinger
cast doubt upon the relevance
of Gibbs
to pendent party cases by identifying two important differences between the pendent claim jurisdiction sustained in
Gibbs
and pendent party jurisdiction.
Aldinger v. Howard,
The second difference cited by the Aldinger Court also does not vitiate the Gibbs analysis. Instead, it requires an additional step be added to that analysis when deciding pendent party cases. The Court stated:
[In] Gibbs Congress was silent on the extent to which the defendant, already properly in federal court under a statute, might be called upon to answer nonfederal questions or claims; the way was thus left open for the Court to fashion its own rules under the general language of Art. III. But the extension of Gibbs to this kind of “pendent party” jurisdiction— bringing in an additional defendant at the behest of the plaintiff — presents rather different statutory jurisdictional considerations.
$ ^ $
Before it can be concluded that such jurisdiction exists, a federal court must satisfy itself not only that Art. Ill permits it, but that Congress in the statute conferring jurisdiction has not expressly or by implication negated its existence.
Id.
Having found that the differences between pendent claim and pendent party jurisdiction cited by the Court in Aldinger do not compel discarding the Gibbs analysis, the court notes that there are strong indications that Gibbs is applicable. Justice Brennan, the author of the Gibbs opinion, wrote in his dissent in Aldinger:
Gibbs concerned a state-law claim jurisdictionally pendent to one of federal law, but no reason appears why the identical principles should not equally apply to pendent state-law claims involving the joinder of additional parties. In either case the Art. Ill question concerns only the subject matter and not the in person-am jurisdiction of the federal courts. In either case the question of Art. Ill power in the federal judiciary to exercise subject-matter jurisdiction concerns whether the сlaims asserted are such as “would ordinarily be expected to [be tried] in one judicial proceeding,” and the question of discretion addresses “considerations of judicial economy, convenience and fairness to litigants.”
Aldinger v. Howard,
There is clearly Art. Ill power to hear the pendent claims raised by plaintiff in the present case. The claims against the United States and the state law defendants arose out of a single аccident at the Laboratory. In question in the case would be the safety procedures demanded by the government and carried out by the state law defendants. The claims arose from a “common nucleus of operative fact” and are precisely the type of claims plaintiff would be expected to try together.
See Gibbs, supra,
*1222
It is also clear that Congress in enacting the Federal Tort Claims Act did not intend to deny jurisdiction over the nоn-federal defendants. The FTCA’s grant of jurisdiction, including “jurisdiction of any set-off, counterclaim, or other claim or demand whatever on the part of the United States against any plaintiff,” 28 U.S.C. § 1346(c) indicates a congressional intent to have the United States’ liability be determined in a single action.
See Dumansky v. United States,
Since the court finds that it has the Art. Ill power to hear the state law claims, and that Congress has not explicitly or implicitly denied it jurisdiction over the additional defendants, it must now decide whether to exercise its power. This court, in most circumstances, would feel compelled to follow the general Seventh Circuit position against еxtending pendent party jurisdiction.
See Hixon v. Sherwin-Williams Co.,
The first and most crucial factor is the district court’s exclusive jurisdiction over the claim against the United States. There is no opportunity for plaintiff to join all the defendants in one action in any other forum but the federal forum. This is not a case where “ ‘the efficiency plaintiff seeks so avidly is available without question in the state courts.’ ”
Aldinger v. Howard,
When the grant of jurisdiction to a federal court is exclusive, for example, as in the prosecution of tort claims against the United States under 28 U.S.C. § 1346, the argument of judicial economy and convenience can be coupled with the additional argument that only in a federal court may all of the claims be tried together.
Aldinger, supra,
The second factor in this case that counsels the court to exercise pendent party jurisdiction is that the defendants are alleged to be joint tort-feasors. As such, many additional practical matters weigh heavily toward trying the cases together.
See Pearce v. United States,
V. Immunity of Argonne National Laboratory, Argonne Universities Assоciation, and Argonne Occupational Health and Safety Division
Having decided that the court has jurisdiction to hear the pendent claims, the court must now decide the state defendants’ motions for summary judgment. The Laboratory, Safety Division and Association each claim that they are immune from tort liability under Illinois’ Workers’ Compensation Act. See Ill.Rev.Stat., ch. 48, 11138.5(a) (1983). The Association’s claim will be dealt with first.
Under Illinois law statutory immunity under workers’ compensation laws is conferred “upon employers only from common law or statutory actions for damages by their immediate employees.”
Laffoon v. Bell & Zoller Coal Co.,
The Association maintains that both it and the University were joint venturers in running the Laboratory and therefore the two parties share the statutory immunity. It is true that joint venturers share statutory immunity under workers compensation.
See Smith v. Metropolitan Sanitary Dist.,
The claims of immunity on the part of the Laboratory and the Safety Division have more validity. Section 5(a) grants immunity to “the employer ... or the agents or employees of [the employer].” Ill.Ann.Stat., ch. 48, § 138.5(a) (1983). An Appellate Court of Illinois has interpreted “agents” to covér those persons not specifically covered by the Act but so closely related to the employer that granting immunity would be fully consistent with the Act.
Mier v. Staley,
VI. Conclusion
For the foregoing reasons, the United States’ motion to dismiss, or in the alternative, for summary judgment, and the Association’s motion for summary judgment, are denied. The motion of the Laboratory and the Safety Division for summary judgment is provisionally granted pending a reply by plaintiff showing factual bases for a conclusion that the Laboratory and the Safety Division are not agents of the University.