521 F.2d 63 (9th Cir. 1975), 73-1899, United States v. English

Docket Nº:73-1899.
Citation:521 F.2d 63
Party Name:UNITED STATES of America, Appellant, v. Alice L. ENGLISH et al., Appellees.
Case Date:June 30, 1975
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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521 F.2d 63 (9th Cir. 1975)

UNITED STATES of America, Appellant,

v.

Alice L. ENGLISH et al., Appellees.

No. 73-1899.

United States Court of Appeals, Ninth Circuit

June 30, 1975

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[Copyrighted Material Omitted]

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William D. Keller, U. S. Atty., Dzintra I. Janavs, Asst. U. S. Atty., Los Angeles, Cal., for appellant.

Stanley Piser, Van Nuys, Cal., for appellees.

OPINION

Before BARNES, HUFSTEDLER and GOODWIN, Circuit Judges.

BARNES, Senior Circuit Judge:

This is an appeal from a decision of the district court finding the United States liable under the Federal Torts Claims Act, 28 U.S.C. § 2674, for the wrongful death of plaintiffs' decedent, and assessing damages in the amount of $128,174.88. The jurisdiction of the district court is predicated on the Federal Torts Claims Act, 28 U.S.C. § 1346(b), which provides:

" . . . the district court . . . shall have exclusive jurisdiction of civil actions on claims against the United States, for money damages, . . . for . . . 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."

The accident in question having occurred in California, the law of that state is applicable to these proceedings.

  1. The Accident

Alva English, a 63-year-old electrical contractor, and the sole proprietor of English Electrical Co., successfully bid for and won a contract with the United States to repair the electrical lighting system in Building 132 at the Long Beach Naval Shipyard. The contract was entered into on July 13, 1970, and work commenced on July 29, 1970.

Building 132 is divided into two areas: the east bay, and the west bay. Each bay has its own independent set of bridge cranes which run on rails extending north-south for the entire length of the building and which are elevated about 40 feet above the ground. The bridge cranes in the east bay are supported by two rails, one located at the east side of the building, and the other rail located in the center of the building. The cranes in the west bay are also supported by two rails, one of which is on the west side of the building and the other in the center of the building. The two rails located in the center of the building are secured by rail plates, and the rails themselves are only separated from each other by a distance of about 36 inches. The area between these rails is criss-crossed about every four feet by metal lacework. At intervals between the rails there are also columns (I beams) in which electrical junction boxes are located at an elevation of approximately

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6-7 feet above the elevation of the rails.

Part of the work to be done under the contract required the electricians to feed and pull wires through these junction boxes. Pulling the wire through the junction boxes was a difficult task; the wire was difficult to pull, and to do so required one to face the box and have a firm footing.

The work was also extremely hazardous owing to the proximity of the moving cranes (C.T. 76). One of the cranes in the west bay was immobilized for the use of the electricians, but the crane in the east bay continued to operate as usual. The crane operators were under instructions to sound a bell when they were carrying a load as a warning to the men working below, but they had not been given instructions as to the sounding of any warning when they were traveling empty. (R.T. 203, 209-10.)

The work in the area of the crane rails had commenced on September 25, 1970 (R.T. 156). English himself had only been working on this portion of the job for a matter of minutes when the accident occurred. (R.T. 75.) This was the first time he had been working either at that particular junction box, or any other comparable box. (R.T. 91.) English, however, had been working in Building 132 since July 29, 1970 and up on the supporting crane in the general area of the accident for a number of days (C.T. 75-76), and had discussed with his employees the danger of passing cranes. (R.T. 94.)

The accident from which this case arises took place on October 5, 1970, at about 3:30 p. m. as English was pulling wires through one of the junction boxes. At the time of the accident English was facing north toward the junction box in the I beam. (R.T. 78.) Crane 16 in the east bay was traveling from north to south and passed where English was working. The crane was ringing its bell as it was carrying a load. (R.T. 215-16.) The operator of the crane released its load and immediately returned back without a load. The crane thus was then traveling from south to north (I. e., approaching from English's back), and was not ringing its warning bell. The total lapse of time between the time the crane passed English the first time, and the time it approached him again was about four minutes. (R.T. 126-127.) Sometime after the crane had passed English the first time, in order to get a firm footing to pull the wires, English, momentarily forgetful of the danger of the cranes (C.T. 76), placed his foot on the rail plate, and within minutes was struck by the returning crane. The crane caught his foot, dragged him and caused him to be crushed against the column. Alva English died at 5:10 that same day.

II. Proceedings Below

The district court after a trial without jury held: (1) that the Government was negligent; (2) that, in accordance with the requirements of the F.T.C.A., if the Government were a private person, it would be liable under California law for breach of the statutory duty of care imposed on employers by Cal.Labor Code § 6400; (3) that decedent neither assumed the risk, nor was contributorily negligent; and (4) that damages caused by the Government's negligence amounted to $128,174.88 consisting of: (a) $90,000 for loss of spouse's expectations from decedent's earnings (based on decedent's life expectancy of 14.01 years and a work expectancy of 5.8 years) less living expenses and taxes; (b) $20,000 for decedent's spouse's loss of decedent's comfort and society; (c) $1,174.88 for funeral expenses; and (d) $17,000 in individual awards to decedent's five children for loss of their father's comfort and society.

III. Issues on Appeal

On appeal the Government does not contest the district court's finding that it was negligent in not requiring either the sounding of warning bells at all times or the total immobilization of the cranes (Appellant's Opening Brief at 7). It does argue however, (1) "The District Court erred in finding that under the

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contract, the United States retained direction, management and control of Alva English and his work; that it was the employer of Alva English within the meaning of California Labor Code § 6304 and that Alva English was its employee within the meaning of California Labor Code § 6305." (Appellant's Opening Brief at 8); (2) "The District Court's conclusion that English did not assume the risk is clearly erroneous." (Appellant's Opening Brief at 11); (3) "The Court erred in concluding that Alva English was not contributorily negligent and in finding that through temporary inadvertence he momentarily forgot the danger of placing his foot on the rail plate." (Appellant's Opening Brief at 15); and (4) "The award of $111,174.88 to the widow of the 63-year-old decedent is punitive and erroneous" in that (a) "Plaintiff is entitled to no more than she would have probably received had decedent lived" and (b) "the district court erred in not discounting its award for loss of earnings to present value and in failing to deduct a proper amount for decedent's consumption expenditures." (Appellant's Opening Brief at 19, 20.)

Concerning the first issue, in their reply brief the Government additionally raises two ancillary issues: (1) whether certain provisions of the standard form contract exonerates the Government from liability for its negligence; and (2) whether the California laws making non-delegable the special statutory duty of employers to provide a safe employment environment imposes a strict liability standard on the Government which is impermissible under the Federal Torts Claims Act, citing Daleheite v. United States, 346 U.S. 15, 73 S.Ct. 956, 97 L.Ed. 1427 (1953); and Laird v. Nelms, 406 U.S. 797, 92 S.Ct. 1899, 32 L.Ed.2d 499 (1972). 1

IV. Issues Relating to the Government's Liability

Concerning the exoneration issue, the Government calls our attention to that portion of the contract which provides:

" 'The contractor shall, without additional expense to the government, be responsible for . . . complying with any applicable federal, state, and municipal laws, codes and regulations in connection with the prosecution of the work. He shall be similarly responsible for all damages to person or property that occur as a result of his fault of (sic) negligence. He shall take proper safety and health precautions to protect the work, the workers, the public and the property of others. . . .' (Paragraph No. 12.)

Additional General Provisions, Paragraph No. 49, provided that:

'The Contractor shall hold and save the government, its officers and agents, free and harmless from liability of any nature occasioned by His operations.' " (Appellant's Opening Brief at 4.) (Emphasis added.)

The Supreme Court in United States v. Seckinger, 397 U.S. 203, 90 S.Ct. 880, 25 L.Ed.2d 224 (1970), considered similar provisions 2 in resolving an issue of whether the Government could demand indemnity from a contractor for damages

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arising from the Government's negligence. The Court held:

"More specifically, we agree with the Court of Appeals that a...

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