See United States v. Muniz, 1963, 374 U.S. 150, 83 S.Ct. 1850, 10 L.Ed.2d 805. And the choice of law is not affected by the fact that the claim in question arises on federal property, such as a military installation, within a state. See Ford v. United States, 10 Cir. 1952, 200 F.2d 272. In the instant case, therefore, liability is determined by the law of Florida.
Cf. St. Louis-San Francisco Ry. v. United States, 187 F.2d 925 (5th Cir. 1951). United States v. Yellow Cab Co., 340 U.S. 543, 71 S.Ct. 399 (1951); United States v. Inmon, 205 F.2d 681 (5th Cir. 1953); Ford v. United States, 200 F.2d 272 (10th Cir. 1952). George's Radio, Inc. v. Capital Transit Co., 75 U.S.App.D.C. 187, 126 F.2d 219 (1942).
Moreover, the Globe case was a Workmen's Compensation case. It is of interest to note that an argument based on Globe similar to that presented here, was rejected in United States v. Campbell, 5 Cir., 172 F.2d 500. We turn now to the claim that the United States was liable under Virginia law as to the handling, transporting, storing and guarding of explosives. Although the explosives were owned by the Government, the mere ownership of the explosives is not sufficient to make the United States liable. Dalehite v. United States, 346 U.S. 15, 44, 45, 73 S. Ct. 956, 97 L.Ed. 1427; Ford v. United States, 10 Cir., 200 F.2d 272, 275. The Virginia law is that those who keep explosives must exercise a high degree of care to the end that injuries may not be inflicted. Daugherty v. Hippchen, 175 Va. 62, 7 S.E.2d 119, 120. This case involved a private individual who left unlocked his toolhouse containing dynamite caps, well knowing that children were in the habit of playing near the toolhouse.
The judgment was right. It is affirmed. Denny v. United States, 10 Cir., 185 F.2d 108; Ford v. United States, 10 Cir., 200 F.2d 272; United States v. Inmon, 5 Cir., 205 F.2d 681; Porter v. United States, D.C., 128 F. Supp. 590, affirmed, 4 Cir., 228 F.2d 389.
The owner's duty to such a person is less than that owed to a licensee by invitation: he is merely required to refrain from wanton injury and he should not knowingly permit such licensee to run upon a hidden peril or a hidden engine of destruction. Ford v. United States, 10 Cir., 1952, 200 F.2d 272; Chicago Great Western Ry. Co. v. Beecher, 8 Cir., 1945, 150 F.2d 394, certiorari denied, 1946, 326 U.S. 781, 66 S.Ct. 339, 90 L.Ed. 473. Finally, a trespasser is "a person who enters or remains upon land in the possession of another without a privilege to do so created by the possessor's consent or otherwise."
Specifically, under the Federal Tort Claims Act, the United States is responsible for injuries caused by negligence or wrongful act or omission of an employee of the Government, if a private person would be liable in accordance with the law of the state or place where the act or omission occurred. Ford v. United States, 10 Cir., 200 F.2d 272, at page 274; 28 U.S.C.A. §§ 1346(b), 2671-2680. Of course, the burden of establishing that the negligent act or omission proximately causing the injury was committed by employees of the Government acting within the scope of their employment rested upon the plaintiffs.
The lex loci delictus is in effect incorporated into the Federal statute, enabling the Federal courts to refer to the common law and statutes of the State or Territory "where the act or omission occurred", 28 U.S.C. § 1346(b), 2674, in order to determine with respect to situations not expressly covered by the Act: (a) what acts or omissions are negligent or wrongful and hence actionable; (b) who is entitled to maintain the action; and (c) what is the measure and extent of the recovery. United States v. Inmon, 5 Cir., 1953, 205 F.2d 681, 684; Ford v. United States, 10 Cir., 1952, 200 F.2d 272, 274; State of Maryland v. United States, 4 Cir., 1947, 165 F.2d 869, 871; cf. Uravic v. Jarka Co., 1931, 282 U.S. 234, 240, 51 S.Ct. 111, 75 L.Ed. 312. As the Supreme Court has pointed out: "It is settled that at common law no private cause of action arises from the death of a human being.
Williams v. United States, D.C.N.D.Fla., Marianna D., 1953, 115 F. Supp. 386, affirmed 5 Cir., 218 F.2d 473; Olson v. United States, D.C.D.N.D.N.W.D. 1950, 93 F. Supp. 150; Thomas v. United States, D.C.W.D.Mo.St.Jo.D. 1949, 81 F. Supp. 881. There is another line of authority which distinguishes between acts or omissions arising from the exercise or performance of a discretionary function and those occurring within the scope or area of the discretionary function but which themselves do not involve any proper element of discretion. Ford v. United States, 10 Cir., 1952, 200 F.2d 272 (denying recovery but apparently recognizing principle); United States v. Gray, 10 Cir., 1952, 199 F.2d 239; Oman v. United States, 10 Cir., 1949, 179 F.2d 738, affirmed 10 Cir., 195 F.2d 710; United States v. White, 9 Cir., 1954, 211 F.2d 79; Pennsylvania R.R. Co. v. United States, and related cases, D.C.D.N.J. 1954, 124 F. Supp. 52; Bevilacqua v. United States (Yentsch v. United States), D.C.W.D.Pa. 1954, 122 F. Supp. 493; Hernandez v. United States, D.C.D. Hawaii, 1953, 112 F. Supp. 369; Worley v. United States, D.C.D.Or. 1952, 119 F. Supp. 719; Harris v. United States (Thomas v. United States, Ellis v. United States), D.C.E.D.Okla. 1952, 106 F. Supp. 298, affirmed 10 Cir., 205 F.2d 765 (recovery denied but principle recognized); Grigalauskas v. United States, D.C.D.Mass. 1951, 103 F. Supp. 543, affirmed 1 Cir., 195 F.2d 494. The reasoning employed in the latter cases seems more persuasive.
ereon, and had filed location notices, and that the date of discovery corresponds to the date of the location, all on July 14, 1952. It is under such showing in the record that Dredge contends that it was entitled to a summary judgment in its favor and that the showing was sufficient to defeat Husite's motion for summary judgment based on the patent issued to it. It is, for our purposes, necessary only to refer to the following cases as determinative of appellant's main contention: Burke v. Southern Pacific R.R. Co., 234 U.S. 669, 34 S.Ct. 907, 58 L.Ed. 1527; Round Mountain Mining Co. v. Round Mountain Sphinx Mining Co., 36 Nev. 543, 138 P. 71; Earl v. Morrison, 39 Nev. 120, 154 P. 75; Gale v. Best, 78 Cal. 235, 20 P. 550, 12 Am.St.Rep. 44; Crofoot v. Hill, 74 Nev. 173, 326 P.2d 417; Wilson Creek Cons. M. M. Co. v. Montgomery, 23 L.D. 476; United States v. Iron Silver Mining Co., 128 U.S. 673, 9 S.Ct. 195, 32 L.Ed. 571; Chino Land Water Co. v. Hamaker, 39 Cal.App. 274, 178 P. 738; Southern Development Co. v. Enderson, 9 Cir., 200 F.2d 272; Western Pacific Railroad Co. v. United States, 108 U.S. 510, 2 S.Ct. 802, 27 L.Ed. 806; Noble v. Union River Logging R.R. Co., 147 U.S. 165, 174-175, 13 S.Ct. 271, 274, 37 L.Ed. 123, 127. These cases firmly establish the following principles of law governing the determination of the main issues presented.
There are numerous cases upon this subject but running through the history of the principle and the decisions based thereon imposing liability under such conditions is generally the idea of deceit or camouflage. W.H. Griffith, "Licensors and `Traps'", 41 The Law Quarterly Review, page 255. It is an act or omission of the defendant which gives a dangerous instrumentality or condition an innocent appearance to the unwary licensee. It must be of defendant's making or his maintenance thereof after knowledge of its existence. Johnston v. Pennsylvania R. Co., 135 Pa. Super. 45, 4 A.2d 539; Ford v. United States, 10 Cir., 200 F.2d 272. Failure to provide protection against injury from its existence must be the equivalent of a willful and wanton act. The alleged peril in the case at bar is a reversal of water flow in the event and only in the event of a power failure. It is the ordinary reaction from the normal and careful operation of the pump. It is a natural hazard incident to the lawful activity of pumping irrigating water.