Caldwell v. Bechtel, Inc.
| Decision Date | 19 August 1980 |
| Docket Number | No. 79-1007,79-1007 |
| Citation | 203 U.S. App. D.C. 407,631 F.2d 989 |
| Parties | , 1980 O.S.H.D. (CCH) P 24,716 Clem (Cleam) CALDWELL, Appellant, v. BECHTEL, INC., Appellee. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Appeal from the United States District Court for the District of Columbia (D.C. Civil Action 75-1005).
David L. Hilton, Washington, D. C., with whom Irwin Miniberg, Washington, D. C., was on brief, for appellant.
Gary W. Brown, Washington, D. C., with whom James C. Gregg and Ellen A. Patterson, Washington, D. C., were on brief for appellee.
Before McGOWAN, MacKINNON and WALD, Circuit Judges.
Opinion for the Court filed by Circuit Judge MacKINNON.
We are here concerned with a claim for damages by a worker who allegedly contracted silicosis while he was mucking in a tunnel under construction as part of the metropolitan subway system. The basic issue is whether a consultant engineering firm owed the worker a duty to protect him against unreasonable risk of harm.
The Shea-S&M-Ball joint venture (hereinafter Shea) entered into a contract with the Washington Metropolitan Area Transit Authority (hereinafter WMATA) in the construction of tunnels for the Washington Metro Subway system and appellant Clem Caldwell was employed by Shea as a heavy equipment operator. Appellee Bechtel, Inc. (hereinafter Bechtel) was also under contract with WMATA, as a consultant to provide, inter alia, "safety engineering services" with respect to work to be done by various contractors pursuant to their contracts with WMATA. Among the duties that Bechtel undertook to perform for and on behalf of WMATA under the contract between the parties was the function of overseeing the enforcement of safety provisions in relevant safety codes, and inspecting job sites for violations.
Appellant brought suit in district court against several defendants, only one of which, his employer Shea, has not been dismissed by summary judgment in the district court. 1 This appeal attacks the district court's grant of defendant Bechtel's motion for summary judgment. Accordingly in this decision we must construe appellant's complaint against Bechtel in the light most favorable to him, accepting as true his allegations of fact. Melancon v. Insurance Company of North America, 482 F.2d 1057 (5th Cir. 1973); Overseas Media Corp. v. McNamara, 385 F.2d 308 (D.C.Cir.1967).
The essence of Caldwell's complaint is that Bechtel "had the function, duty and responsibility, as consultant to Metro (WMATA) to provide, inter alia, overall direction and supervision of safety measures and regulations in effect, or needed during the course of construction . . ." (App. 5), and that Bechtel was aware or should have been aware of the danger posed by high levels of silica dust and inadequate ventilation in the Metro tunnels, but failed to take the steps it was duty-bound to take to rectify the situation. This failure, Caldwell alleges, was not only in violation of Bechtel's contract with WMATA and applicable safety codes, but more importantly constituted gross negligence toward Caldwell who was working in the tunnels.
While we must accept Caldwell's allegations of fact, we will closely examine his version of the law, since it stands in contradiction to the district court's conclusion "that the WMATA-Bechtel Contract created no duty owed plaintiff by defendant the breach of which would give rise to plaintiff's action for negligence." (App. 172). The issue in this case, then, is whether the contractual authority vested in Bechtel with respect to job site safety regulations created a special relationship between Bechtel and Caldwell under which Bechtel owed a duty to Caldwell to take reasonable steps to protect him from the foreseeable risk to his health posed by the dust laden Metro tunnels. We find that under applicable tort law principles Bechtel was indeed duty-bound. Accordingly, we reverse the decision of the district court.
From February 1972 until his termination in July of 1973, appellant was an employee of Shea, and worked as a heavy equipment operator in connection with the contract between Shea and WMATA for construction of subway tunnels. Caldwell's specific job was to operate a large front-end loading mucker machine to remove debris blasted from the face of the tunnel and transport it to the head of the tunnel in a process known in the industry as mucking. During the period of Caldwell's employment, Bechtel was under contract with WMATA to manage and supervise work done by various contractors working for WMATA and to oversee safety procedures (App. 168-9). Most relevantly, Bechtel had the duty to monitor and inspect the job site and to ensure, as defined, that the contractors, including Shea, complied with all safety codes in force. (App. 121, 142).
According to appellant, shortly after beginning work in the tunnel he noticed that the dust was so heavy that it filled his nose and mouth, and he developed a cough and began to spit up blood. Since his claims against OSHA, NLCSC and the International Union have been dismissed, see note 1, supra, Caldwell's allegations against them are immaterial here, but Caldwell essentially recounts that although he made repeated complaints to "his employer, to OSHA, to his union representatives and construction supervisors," (App. 6), about the unsafe conditions, he received no remedial response from any of the defendants and the working conditions of which he complained were never corrected. Appellant was finally terminated by his employer Shea on grounds of making frivolous safety complaints. After a one-day strike by his union, he was offered his job back. Appellant declined the offer, however, because this would have necessitated reentry into the pervasive dust of the tunnels, and he was already suffering from a pulmonary problem that was later diagnosed as silicosis.
At trial appellant would introduce evidence that in September of 1972, an industrial hygienist attempted to gain entrance to the tunnel in which appellant worked, for the purpose of taking air samples, but was barred admission to the tunnel by the Project Manager for Shea. The hygienist appealed to Bechtel for assistance, but was not allowed to conduct tests until December of 1972, when, under controlled conditions, the silica dust was found to be in excess of a safe level. Subsequent tests continued to show the existence in the tunnels of silica dust above an unsafe threshold. Appellant would also allege that during the time he was working in the tunnel and complaining of the atmospheric conditions, Bechtel failed to comply with its contractual duty to use its best efforts to persuade Shea to correct the unsatisfactory conditions and, when conditions remained unsafe, failed in its authorized duty to order a work stoppage until said conditions were corrected. Allegedly Bechtel did not use its best efforts to attempt to persuade Shea to comply with the following safety precautions: allowing workers to wait an appropriate time to return to the tunnel after a blast; requiring that the muck pile be wetted down; and requiring that the fan lines be in operational condition to furnish fresh air to the face of the tunnel. Caldwell generally contends that Bechtel completely failed to comply with the safety provisions as set forth in its contract with WMATA, to which we now turn.
Bechtel's contractual duties to WMATA, 2 beyond its responsibility for general supervision of all Metro construction, included supervision of safety at the various construction sites. Bechtel was designated a "consultant" by the contract. Section 2(9) provides:
Safety
Consultant shall provide safety engineering services as required to ensure compliance with the provisions of the Metro Construction Safety Manual, the Metro Coordinated Safety Program and Reporting Procedures and other applicable codes, and the contractual obligation of the Authority's contractors, and shall direct the contractor to correct any unsatisfactory condition which may be detected. Consultant shall also provide safety engineering services which will be coordinated with the Authority's insurance representatives to develop and ensure a uniform system of safety and accident prevention procedures including reporting requirements. These reporting procedures will be applicable to all construction contracts. Consultant shall adhere to the procedures contained in the Authority's Coordinated Safety Program and Reporting Procedures.
The contract defined certain terms contained therein:
Definitions
Wherever in the Scope of Services the words "assist, direct, ensure, or require" appear it is intended to mean that it is the obligation of the Consultant to use his best efforts to persuade the Construction Contractors to comply with all the provisions of their contracts with the Authority and, if this fails, to bring the matter promptly to the attention of the Contracting Officer for his action.
These definitions have the effect of turning words whose customary meaning indicates that corrective action must be accomplished by Bechtel into words that only require Bechtel to attempt to get others to correct the unsatisfactory conditions. It is significant, however, that there is nothing in the contract that lessens Bechtel's authority to order a work stoppage until such time as unsafe conditions are corrected. See infra. The normal authority implicit in the word "order" is not diminished by contractual definition.
The "Metro Construction Safety Manual", which it was Bechtel's duty to enforce under Section 2(9) of the contract, refers to the Washington Metropolitan Area Transit Authority Safety Manual (hereinafter Safety Manual), which was in effect at the time the contract was executed. Among the requirements of the Safety Manual is the stricture that "(no) man shall be required to work in an unsafe place." (App. 134). The Safety Manual was...
To continue reading
Request your trial
-
In re Agent Orange Product Liability Litigation
...relationship between the defendant, the third party and the plaintiff, or a combination of these factors. See, e.g., Caldwell v. Bechtel, Inc., 631 F.2d 989 (D.C.Cir.1980) (contractual authority vested in consultant engineering firm with respect to jobsite safety regulations created special......
-
In re Fort Totten Metrorail Cases Arising Out of the Events of June 22, 2009
...ECF No. 426–1 at 28. This, however, puts too fine a point on the standard of care burden of proof. For example, in Caldwell v. Bechtel, 631 F.2d 989 (D.C.Cir.1980), the court explained that “the analysis of both [the appellee] and the district court is overly reliant upon contract theory to......
-
Intelect Corp. v. Cellco P'ship GP, Civil Action No.: 15-0902 (RC)
...the traveling public—when it contracted to maintain the District's traffic signals. 820 F.2d at 417 ; see also Caldwell v. Bechtel, Inc. , 631 F.2d 989, 992, 997 (D.C.Cir.1980) (considering a contract between the defendant, Bechtel, and WMATA that required Bechtel to provide “safety enginee......
-
Zagami v. HP Enter. Servs., LLC, Civil Action No. 15-1638 (RMC)
...relates to the protection of the third party." Presley , 25 A.3d at 888 (citing Haynesworth , 645 A.2d at 1098 ; Caldwell v. Bechtel, Inc. , 631 F.2d 989, 1000–01 (D.C.Cir.1980) ).Plaintiffs Kohler, Zagami, and Jacobs highlight several portions of the HBC-Navy security contract to support t......
-
The Economic Loss Rule in Construction Law
...allegations of defective construction products or equipment. 49 It follows that out of the many ways 45. See Caldwell v. Bechtel, 631 F.2d 989, 1000 (D.C. Cir. 1980); Davidson & Jones, Inc. v. New Hanover County, 255 S.E.2d 580 (N.C. App. 1979); United States ex rel. Los Angeles Testing Lab......
-
The Economic Loss Rule in Construction Law
...allegations of defective construction products or equipment. 49 It follows that out of the many ways 45. See Caldwell v. Bechtel, 631 F.2d 989, 1000 (D.C. Cir. 1980); Davidson & Jones, Inc. v. New Hanover County, 255 S.E.2d 580 (N.C. App. 1979); United States ex rel. Los Angeles Testing Lab......
-
When Specialty Designs Cause Building Disasters: Responsibility for Shared Architectural and Engineering Services
...Id. at 23-26. 41. See Stover, supra note 10, § 3.01[3][e]. 42. SWEET, supra note 6, § 14.11(C). 43. See, e.g., Caldwell v. Bechtel, Inc., 631 F.2d 989, 996-97 (D.C. Cir. 1980); Rousseau v. K.N. Constr., Inc., 727 A.2d 190, 192-93 (R.I. 1999). 44. Although the primary industry form documents......