Alexander v. U.S.

• Decision Date: 31 October 1979
• Docket Number: No. 77-1612,77-1612
• Citation: 605 F.2d 828
• Parties: Carolyn Nota ALEXANDER, etc., Plaintiff-Appellee, v. UNITED STATES of America, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 828

605 F.2d 828

Carolyn Nota ALEXANDER, etc., Plaintiff-Appellee, v. UNITED STATES of America, Defendant-Appellant.

No. 77-1612.

United States Court of Appeals, Fifth Circuit.

Oct. 31, 1979.

Ronald R. Glancz, Michael Kimmel, Attys., Dept. of Justice, Civ. Div., App. Section, Washington, D. C., for defendant-appellant.

Lynn Cooksey, Texarkana, Tex., for plaintiff-appellee.

Appeal from the United States District Court for the Eastern District of Texas.

Before WISDOM, CLARK and GEE, Circuit Judges.

WISDOM, Circuit Judge:

This action brought under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671-2680 (FTCA) raises the question whether the United States is liable for the death of an individual employed by an independent contractor at a munitions plant owned by the government, where the United States has instituted a significant safety program but the plant is operated by the contractor. The district court in a bench trial held that plant safety was a "joint endeavor" because of the government's safety program, and that the negligence of United States employees combined with the negligence of the decedent, John S. Alexander, in causing Alexander's accidental death. The district court, applying the Texas rule of comparative negligence, awarded damages against the United States. See Tex.Civ.Code Ann. art. 2212a (Vernon Cum.Supp.1978). We conclude that the district court was clearly erroneous in finding that plant safety was a "joint endeavor" and that negligence of United States employees was a proximate cause of Alexander's accidental death. Therefore, we reverse.

I

The decedent was employed by Day & Zimmerman, Inc. as an inspector at the Lone Star Army Ammunition Plant (Lone Star) in Bowie County, Texas. The Lone Star facility was owned by the United States, but was operated by Day & Zimmerman under a contract to load, assemble, test, and pack munitions supplies for the Department of the Army. Although Day & Zimmerman personnel manufactured the munitions, the United States instituted and to some extent supervised safety at the plant. Under the contract, members of the United States Army and civilian employees of the government routinely conducted inspections of plant operations to insure that Day & Zimmerman complied with the contract and with safety regulations issued by the United States. In addition, government employees performed safety analyses of and approved all proposed testing and manufacturing devices and procedures before they were put into operation at the plant. The contract also authorized certain government employees to stop any activity at the plant that failed to conform to the government's safety rules.

Alexander was an assistant chief inspector for Day & Zimmerman. One of his responsibilities was to supervise detonation penetration tests and to destroy defective M46 grenades that failed to explode. The grenade testing apparatus at the plant was designed, constructed, maintained, and operated by the contractor. Mandatory safety regulations issued by the United States required Alexander to place a charge next to the faulty grenade using a special pole and lanyard while standing behind a protective steel barricade and to detonate the charge by remote control. On the day of the accident, Alexander, after having been summoned to destroy a grenade, ignored the prescribed detonation procedure and attempted to reset the firing mechanism on the testing apparatus while standing fully exposed to the grenade outside the protection of the steel barricade. Alexander reset by hand the "drop weight" a metal pin which was designed, when remotely released by a solenoid, to fall through the "drop tube" or "drop weight hole" onto the firing pin of the grenade. Unfortunately, the holding and release mechanism for the drop weight ("solenoid safety pin") had worked loose from the solenoid. When Alexander placed the weight in the drop tube the solenoid safety pin did not, as it was meant to, hold the drop weight. The weight dropped down to the firing pin. Alexander was killed by the resulting detonation of the grenade.

The decedent's widow brought this action under the FTCA alleging that negligence of government employees caused her husband's death. The United States is liable under the FTCA to the same extent as private parties for torts of its employees acting within the scope of their employment. 28 U.S.C. § 1346(b); United States v. Orleans, 425 U.S. 807, 813, 96 S.Ct. 1971, 48 L.Ed.2d 390 (1976). The question presented to the district court was whether United States employees breached any duty owed the decedent under Texas law. 28 U.S.C. § 1346(b); Emelwon, Inc. v. United States, 5 Cir. 1968, 391 F.2d 9, 10. The district court found that United States employees had breached various duties recognized under Texas law and that the negligence of government employees combined with the decedent's own negligence to cause the fatal accident. ¹

The district court held that the United States was in possession and control of the Lone Star plant as a result of reserving authority to make safety inspections, to alter the design of equipment and operating procedures, and to cease performance of the contract in the event of safety violations by Day & Zimmerman personnel. The court also found that plant safety was a "joint endeavor" between the United States and Day & Zimmerman creating a duty upon the defendant to insure the safe operation of the plant and a safe place of work for the decedent. The duties of the United States to Alexander were enhanced, the district court reasoned, because of the inherently dangerous nature of the work performed by Day & Zimmerman. The district court concluded that the United States was negligent in failing to provide Alexander a safe place to work. More specifically, the district court found the government negligent in failing to discover that the grenade testing site was unsafe, in approving the grenade testing apparatus and the steel test barricade, and in not furnishing the decedent protective clothing, protective equipment, or operational shields. Finally, said the court, the United States was negligent in failing to conduct a system safety analysis of the testing apparatus and in approving the procedure for detonating faulty grenades.

On appeal, of course, this Court is limited to considering whether the district court's findings of fact were clearly erroneous. Market Insurance Co. v. United States, 5 Cir. 1969, 415 F.2d 459, 461. Moreover, since liability under the FTCA depends on principles of negligence under state law, we must be slow to substitute our judgment for that of the district judge who is experienced in dealing with Texas law. See Petersen v. Klos, 5 Cir. 1970, 433 F.2d 911, 912. Nevertheless, after scrutiny of the record we are unable to find support for the district judge's conclusion that negligence of United States employees was a proximate cause of Alexander's fatal accident.

II

Since liability under the FTCA is governed by state law, we must first determine the relationship which existed between the United States and Day & Zimmerman and the duties that arose from the relationship. The contract executed by the United States and Day & Zimmerman in 1971 specifically stated that Day & Zimmerman was an "independent contractor," not an agent of the United States; no language in the contract suggests a "joint endeavor". The contract gave complete responsibility for plant operations to Day & Zimmerman. ² Under the contract the United States reserved the right to approve the design and specifications of any item utilized in the manufacturing process at the Lone Star plant. In addition, Army safety manuals governing the plant operations required the United States to perform safety analyses of all test programs, standard operating procedures, and equipment at the munitions facility. Department of Defense regulations also dictated that government employees conduct hazard studies of all systems and equipment including consideration of fail safe designs and human error analyses of operating functions and requirements. Finally, three of the government's 124 employees at the plant had the authority to stop any activity by Day & Zimmerman personnel considered unsafe, to shut down unsafe equipment, and to discharge, subject to a dispute procedure, Day & Zimmerman personnel for reasons of misconduct or security. Although United States employees conducted these various safety monitoring functions, the parties "agree(d) and recognize(d) that the plant (was) turned over to the contractor". ³ Moreover, Day & Zimmerman had its own contingent of safety supervisors among its 3,200 Lone Star employees.

The district court held that because of the supervision exercised by the United States under the contract, plant safety was a "joint endeavor" between Day & Zimmerman and the United States. The term "joint endeavor" comes from Martin v. United States, No. 794 (E.D.Tex. Aug. 7, 1964), Aff'd per curiam, 5 Cir. 1966, 354 F.2d 686, a similar case involving the same plant, decided by the same district judge who decided the case now before us. In Martin this Court affirmed per curiam the district court decision allowing recovery by an injured employee of Day & Zimmerman under the FTCA on the theory that the United States "assumed the responsibility of safety (at the Lone Star plant) as a joint venture, as set forth in the contract" with Day & Zimmerman. Martin v. United States, No. 794, unpub. op. at 3 (E.D.Tex. Aug. 7, 1964). A crucial distinction between this case and the Martin case that was not recognized by the district court, however, is that a different contract was in effect at the time of Alexander's death. The contract interpreted in the Martin case provided that: "(The United States and Day & Zimmerman) In their endeavor to maintain the maximum degree of safety will cooperate in all regards in the administration of the safety program and in developing and...