Angel v. U.S.

• Decision Date: 16 October 1985
• Docket Number: Nos. 84-3343,3609,s. 84-3343
• Parties: Joann ANGEL, Administratrix of the Estate of Jerry Angel, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 132

775 F.2d 132

Joann ANGEL, Administratrix of the Estate of Jerry Angel, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.

Nos. 84-3343, 3609.

United States Court of Appeals, Sixth Circuit.

Argued Aug. 8, 1985.

Decided Oct. 16, 1985.

A.P. Anninos, argued, Cincinnati, Ohio, for plaintiff-appellant.

Robert Behlen, John J. Cruze, argued, Elizabeth Gere Whitaker, Michael D. Eagen, Cincinnati, Ohio, for defendant-appellee.

Before KENNEDY and KRUPANSKY, Circuit Judges, and DOWD, ^* District Judge.

CORNELIA G. KENNEDY, Circuit Judge.

This is an appeal from a judgment in favor of the United States ¹ on a claim filed under the Federal Tort Claims Act (FTCA), 28 U.S.C. Secs. 1346(b), 2671-80. Ohio law is applicable. We vacate and remand to the District Court for further findings.

I.

Plaintiff's decedent was killed while sandblasting a building in the Defense Electronics Supply Center (DESC), Dayton, Ohio, when an aluminum ladder he was moving made electrical contact with an uninsulated high voltage wire. DESC is owned and operated by the United States. The decedent was co-owner of Riteway Waterproofing Company (Riteway). DESC entered into a contract through the Small Business Administration with White Brothers Construction Company (White) to sandblast and paint DESC buildings. White subcontracted the sandblasting to Jatag Waterproofing Company, which subcontracted the work to Riteway. ²

Building 26, the building being sandblasted when the fatal accident occurred, was a pitched roof building with walls nine feet in height and an apex at its north and south ends of fifteen feet. Approximately ten feet from the north side of the building was a platform suspended between two poles set parallel to the building, on which there were three transformers. Above the transformers, arms were set on the poles perpendicular to the line of the side of the building and the platform. Running between the ends of these arms, seven feet from the building and nineteen and one-half feet above the ground, was the uninsulated wire, carrying 12,000 volts of electricity. Numerous other wires, which were insulated and not dangerous, ran from the transformer installation to the building, between the poles above the transformers, and outward from the installation to lines supplying power to the rest of the DESC compound. In p 6 of its findings of fact, the District Court found that a sign was affixed to one of the poles at a height of ten to twelve feet containing the words " 'Danger: High Voltage.' "

On Friday, November 2, 1979, the decedent, his employee James Knopf, and James King of Jatag, began sandblasting the building. They completed all but a small portion of the north side of the building, using a wooden stepladder to do the nine-foot sides, and a twenty-foot aluminum ladder for the peaked center. At the end of the day on Friday, the aluminum ladder was left standing against the north side of the building. ³ Decedent, Knopf and King returned to the site the next morning. While shifting the position of the ladder preparatory to resuming work, the decedent was electrocuted when he either touched the high voltage wire with the ladder, or came sufficiently close to the wire for current to "arc" to the ladder.

The contract between White and DESC delegated responsibility for safety on the job site to White, and incorporated "all requirements of the Occupational Safety and Health Act" (Technical Provisions SI-1-5) and specifically enumerated provisions of the Armed Services Procurement Regulations (ASPR), including ASPR paragraphs 7-602.42(a) & 7-602.43. In p 5 of its findings of fact, the District Court found that "[t]he contract (see Def's. Ex B) required compliance with certain regulations of [OSHA]," including 29 C.F.R. Secs. 1926.450(a)(11) & 1926.400(c)(1). The court's opinion does not specifically identify "Def's. Ex. B" as the SBA/DESC-White contract, or state whether Angel or Riteway were parties to this contract or aware of these provisions. Appellant asserts, and it is not disputed by the government, ⁴ that these provisions were not referenced in the subcontracts, nor were subcontractors present at a preconstruction meeting with White and government representatives at which safety and the applicability of OSHA regulations and other safety provisions were discussed.

Carl Gibson, an engineering technician employed at DESC, testified that he attended the preconstruction meeting and visited the Building 26 work site at least twice before the fatal accident, on Friday and Saturday morning. Although he testified that he did not remember whether he noticed ladders on the site on either occasion, his deposition testimony was introduced in which he had testified that on Friday he had observed the use of aluminum ladders on the work site but had not warned anyone concerning their use. Although Gibson was a quality assurance inspector and not a safety inspector, James Donovan, the DESC contract officer and Gibson's superior, assented in his testimony to the statement that "the person that would do the inspection for the government [pursuant to ASPR p 7-602.43] would be somebody like Mr. Gibson." Tr-I-27. He also testified, when asked who Gibson would report to if he saw something that violated the safety rules, "If there was a grave violation of anything, such as a man welding that did not have on safety glasses or anything, I'm sure you would point it out to the contractor." Tr. I-33.

OSHA regulation 29 C.F.R. Sec. 1926.450(a)(11) provides, in pertinent part: "Portable metal ladders shall not be used for electrical work or where they may contact electrical conductors." 29 C.F.R. Sec. 1926.400(c)(1) provides, as relevant: "No employer shall permit an employee to work in ... proximity to any part of an electrical power circuit ... unless the employee is protected against electrical shock by deenergizing the circuit and grounding it or by guarding it by effective insulation or other means...." These regulations were quoted in p 5 of the District Court's findings of fact, in which the court also found: "It is undisputed that Mr. Angel, as an owner of Riteway Waterproofing Co., was both an employer and an employee insofar as the aforesaid regulations are concerned." OSHA Regulation 29 C.F.R. Sec. 1910. 305(5)(E)(ii), not noted in the District Court's opinion but raised by plaintiff's counsel during the trial, states: "The operating voltage of exposed live parts of transformer installations shall be indicated by warning signs or visible markings on the equipment or structure." ⁵

ASPR p 7-602.42(a), headed "Accident Prevention," provides, in pertinent part:

(a) In order to provide safety controls for protection to the life and health of employees and other persons ... the Contractor shall comply with all pertinent provisions of Corps of Engineers Manual EM 385-1-1....

....

(c) The Contracting Officer will notify the Contractor of any noncompliance with the foregoing provisions.... If the Contractor fails or refuses to comply promptly, the Contracting Officer may issue an order stopping all or part of the work until satisfactory corrective action has been taken....

(d) Compliance with the provisions of this clause by subcontractors will be the responsibility of the Contractor.

ASPR p 7-602.43, headed "Government Inspectors," provides:

The work will be conducted under the general direction of the Contracting Officer and is subject to inspection by his appointed inspectors to insure strict compliance with the terms of the contract. No inspector is authorized to change any provision of the specifications without written authorization of the Contracting Officer, nor shall the presence or absence of an inspector relieve the Contractor from any requirements of the contract.

In the opinion section of its Findings of Fact, Opinion and Conclusions of Law, the District Court rejected plaintiff's contention

that liability rests upon the United States for failure to warn of a dangerous condition. The condition in question, to wit, an uninsulated electrical wire some 19 and one-half feet above the ground, is not dangerous to the ordinary frequenter of the premises. That condition is conceivably hazardous only to a person who is equipped with a metal object long enough to reach it.

....

Three sides of Building 26 were totally devoid of any electrical connection. Even the north side was free from danger since the electrical wires supplying the building were insulated. Closing the narrow "window" of liability, even assuming plaintiff's position, arguendo would require the stationing of an inspector at all times to insure that a metal ladder otherwise appropriate on the DESC property would not be used in a fashion that would bring it into contact with an electrical wire which was over four and one-half feet above the highest point that would require sandblasting. Such a vigil is not required of the United States. Gowdy [v. United States, 412 F.2d 525, 531 (6th Cir.), cert. denied, 396 U.S. 960, 90 S.Ct. 437, 24 L.Ed.2d 425 (1969) ].

In accordance with the foregoing the Court finds that the plaintiff has not established by a preponderance of the evidence any act of negligence on the part of the United States that would entitle such plaintiff to recovery.

In its conclusion of law, the District Court found:

(C) Where a workman required to sandblast no portion of a building higher than 15 feet one inch elects to utilize a 20 foot aluminum ladder and brings such ladder into contact with an exposed electrical wire 19 and one-half feet above the ground, such workman is negligent and the contact between such ladder and wire is the sole proximate cause of his injury and death.

(D) The United States is not liable for the negligence of its independent contractor. Gowdy, supra, at 529.

(E) The use of a metal ladder in a position where it may contact electrical conductors is a violation of 29 CFR 1926.450 and does not impose...