956 F.2d 1166 (9th Cir. 1992), 90-16330, Aguirre v. U.S.
| Docket Number | 90-16330. |
| Date | 03 March 1992 |
| Citation | 956 F.2d 1166 |
| Parties | Beatrice AGUIRRE, Personal Representative of the Estate of Alfredo Aguirre, Deceased, and Patrick Antone, Plaintiffs-Appellants, v. UNITED STATES of America and United States Department of Defense, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Page 1166
Editorial Note:
This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA9 Rule 36-3 regarding use of unpublished opinions)
Argued and Submitted Nov. 5, 1991.
As Amended on Denial of Rehearing
July 8, 1992.
Appeal from the United States District Court for the District of Arizona, No. CV-89-00467-CLH; Charles L. Hardy, District Judge, Presiding.
D. Ariz.
AFFIRMED.
Before POOLE, REINHARDT and FERNANDEZ, Circuit Judges.
MEMORANDUM [*]
Plaintiffs Beatrice Aguirre and Patrick Antone appeal the district court's grant of summary judgment in favor of the government in this Federal Tort Claims Act case. Plaintiffs contend that summary judgment was improper because Arizona law allows recovery under these circumstances and because the district judge erroneously failed to follow the lead of a brother judge who had previously refused to grant the government's motion for summary judgment in a factually similar case. The district court had jurisdiction pursuant to 28 U.S.C. § 1331; we have jurisdiction over this appeal pursuant to 28 U.S.C.§ 1291. We affirm.
FACTS AND PROCEEDINGS
I. The Accident
On May 19, 1986 an explosion at a Coolidge, Arizona munitions manufacturing plant owned by Dela-Tek, Inc. killed employee Alfredo Aguirre and injured employees Patrick Antone and Rodolfo Chavez. All three were employed as chemical processors/blenders and their responsibilities included operating a mixing machine that created a magnesium teflon compound used in M-22 cartridges. At the time of the accident, Aguirre and Antone had been cleaning a blending machine. The explosion apparently resulted from a spark generated when one of the blenders attempted to scrape dry chemical residue from the sides of a mixer with a carbon-steel screwdriver. No supervisor was present during cleaning operations that morning and none observed the cause of the explosion.
Aguirre, Antone and Rodolfo Chavez were instructed to use copper scrapers and acetone to remove the chemical residue from the blending machine surfaces. The men were also told that residue was to be scraped off only if it was wet. On the morning of the accident, blending operations were terminated because air conditions that day included low relative humidity. Stopping a blend before it is completed and then attempting to clean the machine was considered more dangerous than continuing the blending process until a completed mix was ready. As a result, when the low humidity conditions were discovered, the blenders continued their operations until they had finished the mix that had been in progress.
II. Dela-Tek's Safety Procedures
At the time of the accident Ruben Chavez was responsible for supervising Aguirre's and Antone's work. Chavez had nineteen years of experience in chemical processing and ordinance manufacturing, and was responsible for insuring that the blenders/processors were properly trained to do their jobs. To insure that the blender/processors learned the tasks associated with their jobs, Ruben Chavez generally required them to observe how he performed the blending operation and the subsequent cleaning process over a several-week period. Chavez trained Rodolfo Chavez and Antone by this method, but not Aguirre.
Blender/processors also were to receive a short introductory safety lecture upon commencing employment at the plant; Antone never received such a lecture. On several occasions, Ruben Chavez and another supervisor, Jack Moore, explained to Antone that the use of protective smocks and stats were essential in assuring safety in the plant. Antone received a copy of Dela-Tek's employee handbook, but was never given a copy of the company's safety handbook and no supervisor ever reviewed with him the contents of the employee manual. Aguirre received no written safety instructions whatsoever.
Dela-Tek provided wrist and leg stats, smocks, fire-retardant coveralls, and protective goggles for blenders/processors to wear during mixing and cleaning operations. In addition, the company's safety manager, Frank Corral, held periodic safety meetings and distributed safety information sheets to employees. The company maintained a safety suggestion box and maintained an employee safety committee that met once per week. The employee handbook included some explanation of Dela-Tek's safety rules and policies, and each employee was required to sign a form entitled "Acceptance of Working Conditions and Plant Safety Rules." Antone signed such a form, but Aguirre did not.
III. Dela-Tek's Contract with the Department of Defense
At the time of the accident, Dela-Tek was engaged in the fabrication of various ordnance for the Department of Defense pursuant to two government contracts. The contracts included several provisions dealing with safety requirements at the Coolidge manufacturing facility. The relevant provisions made clear that day-to-day responsibility for ensuring safety at the production facility remained with Dela-Tek and specifically mandated that Dela-Tek obey any applicable federal or local safety laws. The contracts also required the Department of Defense and Dela-Tek to specifically identify and select other applicable safety guidelines. 1 The parties agreed that Dela-Tek would comply with the "Safety Precautions for Ammunition and Explosives." This clause, which is required by regulation to be included in all contracts involving ammunition or explosives, required Dela-Tek to comply with the DoD Contractor's Manual for Ammunition, Explosives and Related Dangerous Materials.
The Safety Precautions for Ammunition and Explosives authorized the government to inspect Dela-Tek's plant for compliance with the Contractor's Manual safety guidelines. The Department of Defense Specialized Safety Manual guides the government in its conduct of these periodic safety inspections. TheSpecialized Safety Manual authorizes government safety inspectors to provide technical advice and assistance to contractors on safety issues, including helping a contractor implement any corrective actions deemed necessary as a result of the quarterly inspection.
When an inspector found a condition that violated the safety provision of the contracts, the inspector was to decide whether increased surveillance by the government was necessary and whether the contractor must attempt to correct the problem. In the case of a particularly serious safety problem, the government inspector was authorized to set a specific time frame within which the problem must be corrected. Once a corrective measure was mandated, the inspector was required to follow up and ensure that the contractor implemented the change in procedure or operation on a timely basis. The government was authorized to suspend or cancel the contracts if Dela-Tek was repeatedly or constantly out of compliance with safety guidelines.
The government's contracts with Dela-Tek provided that government safety inspectors could visit its munitions plant on a quarterly basis. Included in the items to be inspected were Dela-Tek's written safety guidelines and procedures; the plant's in-house safety program; facility construction and maintenance; equipment design, maintenance and operation; control of hazardous materials; operational performance and its consistency with contractually required procedures; and the status of safety deficiencies noted by inspectors on prior visits. The Specialized Safety Manual also required the government to insure that Dela-Tek employees used non-sparking tools when working with explosive materials.
The contracts did not expressly give the government power to supervise Dela-Tek's safety program on a day-to-day basis. The government did not intervene in personnel decisions at the plant, train Dela-Tek employees, specify sources for the acquisition of equipment or production materials, select subcontractors, or prepare a safety manual for Dela-Tek's munitions manufacturing operations.
IV. The Government's Inspections of the Dela-Tek Plant
Cecille King, a government inspector, conducted a safety survey at the Coolidge Dela-Tek plant on March 19, 1986. This was the last government inspection of the facility before the fatal accident. During this inspection, King discovered safety problems necessitating correction within a specific time period. King concluded that most of Dela-Tek's safety operating procedures were deficient and that the company's safety program did not comply with the terms of its contracts. Accordingly, she asked the government's administrative contracting officer to send Dela-Tek an official notification that corrective action would be necessary. The contracting officer did not send such notification. King also conducted a pre-award safety inspection at the Dela-Tek plant on the same date as the quarterly safety inspection and recommended that the company not receive any new government contracts.
In April 1986 King made a follow-up visit to the Dela-Tek plant. She again determined that Dela-Tek did not have in place adequate safety precautions and operating procedures. King never found Dela-Tek in compliance with the safety provisions of its contracts.
V. The McAfee Accident
On March 26, 1986, after King's second visit to the Dela-Tek plant, Aguirre and a co-employee, James McAfee were injured in an explosion in the Dela-Tek facility's granulating room. The incident occurred after a granulating machine used to process magnesium teflon powder jammed and McAfee attempted to scrape powder from the machine with a knife.
McAfee later sued the government under the...
To continue reading
Request your trial