Buchanan v. United States

• Decision Date: 30 June 1962
• Docket Number: No. 16844.,16844.
• Citation: 305 F.2d 738
• Parties: Peter BUCHANAN, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

305 F.2d 738 (1962)

Peter BUCHANAN, Appellant, v. UNITED STATES of America, Appellee.

No. 16844.

United States Court of Appeals Eighth Circuit.

June 30, 1962.

COPYRIGHT MATERIAL OMITTED

Emerson Hopp, Minneapolis, Minn., made argument for appellant and was on the brief.

John J. Connelly, Asst. U. S. Atty., St. Paul, Minn., made argument for appellee and Miles W. Lord, U. S. Atty., was with him on the brief.

Before VOGEL, BLACKMUN and RIDGE, Circuit Judges.

BLACKMUN, Circuit Judge.

On January 28, 1958, Peter Buchanan was seriously injured in the fall of a hoist^* on which he was riding. The hoist was in Building 502 at the Twin Cities Arsenal, New Brighton, Minnesota.

Buchanan brought this action under the Federal Tort Claims Act, 28 U.S. C. § 1346(b), to recover damages from the United States for his injuries. As required by 28 U.S.C. § 2402, the case was tried to the court. At the conclusion of all the evidence the trial judge dismissed the complaint on the grounds that Buchanan's employer, Federal Cartridge Corporation, a private firm, was an independent contractor, that the United States was not responsible for Cartridge's negligence, if any, in connection with the hoist, and that the plaintiff was contributorily negligent. 190 F.Supp. 523. Buchanan appeals.

On his appeal the plaintiff urges (a) negligence on the part of the United States; (b) the government's retention of active control over safety matters at the Arsenal; (c) the government's liability even if Cartridge were an independent contractor; (d) lack of contributory negligence of the plaintiff; and (e) the absence of any assumption of risk by the plaintiff.

The Arsenal is a government owned facility constructed at the beginning of World War II for the production of small arms ammunition. It encompasses an area of about 2600 acres, has 7 major buildings, other structures, and a firing range. During the war Cartridge, under government contract, operated the plant and manufactured ammunition there. When the war ended production terminated. Manufacture was resumed in 1950 with the outbreak of the Korean conflict. On August 10 of that year Cartridge and the United States signed another contract by which Cartridge agreed to operate the Arsenal and manufacture ammunition. Building 502 was used for the production of shells until 1954. From 1954 through October 1957 another company provided standby maintenance for the building. Beginning November 1, 1957, Cartridge took over that maintenance. Three months later the plaintiff was injured.

The plaintiff at the time of his injury was a maintenance mechanic employed by Cartridge. He had worked for Cartridge at the Arsenal during the war years from 1942 to 1946, had been hired again in 1950, and had served as maintenance machinist foreman there from 1951 to 1955.

Building 502 had two stories but no basement. The hoist on which the plaintiff was hurt was the remaining one of ten in the building; these had been installed to move material from the ground floor to the second floor to be emptied into hoppers and fed down by gravity to the next operation. The hoist had a floor 4½ feet by 5½ feet and end walls about 3 feet high. Its front, back and top were open. Running lengthwise 3 feet 9 inches above the floor was a central wooden beam with a pulley. There was also a bar across the front of the hoist and about 3 feet above the floor. The hoist was raised and lowered by a wire cable. This cable passed through the pulley and wound on a rotating drum anchored in the shaft above the second floor. The drum was electrically activated. There were no operating controls inside the hoist. The controls were located on each floor on walls adjacent to the hoist and about 15 inches from the edge of the shaft. The shaft doors on each floor were about 3½ feet high and moved upward to permit entrance. The doors had to be down before the hoist could be activated. There were no weight capacity or "no rider" signs on the hoist or adjacent to the shaft, although the other hoists had all had capacity signs placed on them by Cartridge. The plaintiff conceded that he knew the hoist was for hauling heavy materials rather than passengers.

There were freight elevators in the building with interior controls. There was also a stairway between the floors and within 45 feet of the hoist shaft.

On the day of the accident the plaintiff and Forrest Ward, a co-worker, had been directed by their foreman, also a Cartridge employee, to clean up the second floor. Plaintiff had talked with others about the hoist and had been told that they had used it to haul materials from the second floor. The plaintiff tested the appliance by running it up and down twice. He had been in the building previously and had seen others using the hoist. Together he and Ward placed a 4-wheeled dolly on the hoist on the first floor and then got on themselves. They were able to stand erect. The plaintiff set the lift in motion by reaching outside the shaft over the closed door to the button controls on the adjacent wall. It rose to the second floor without difficulty. There the two men accumulated junk and filled containers with debris. All this was placed on the dolly. The plaintiff then entered the hoist. The dolly was pushed on and Ward entered. He closed the gate, reached out over it to the control panel and pushed the button. The hoist descended about a foot and stopped. The motor continued to run and the cable kept unwinding off the drum. Ward reached for the control button to stop the motor. He was able to get out over the gate but before the plaintiff could do so the hoist dropped to the first floor and the plaintiff was injured. No question is raised as to the hoist's being overloaded.

Ward testified that it was general knowledge around the plant that "we weren't supposed to ride" the hoists, "that we are not supposed to use them for passenger elevators", that "our whole crew understood that, and everyone would ride the elevators all the time", and that "we would just jump on" with the material being hauled up and down. He also said that "the word had been passed down that we weren't supposed to". The plaintiff himself had been given no specific instructions to use or not to use the hoist. He testified that he rode it not merely for convenience but to keep the containers and "some long stuff" from tipping over. The plant manager, the safety director, the department head, the safety inspector, and the plaintiff's machine foreman, all Cartridge people, testified that they had no knowledge that employees rode the hoist.

The safety director also testified that in 1955 he had ordered an annual inspection of all elevators at the Arsenal; that inspections were made by their insurance company, by the State Industrial Commission and by an elevator company; and that, however, they did not inspect the hoists "because that is a maintenance function". Apparently Cartridge itself effected inspection of the hoists in all the buildings except Building 502.

We agree with the trial court (a) that under the Federal Tort Claims Act, 28 U.S.C. § 1346(b), the law of Minnesota governs the question of liability for the plaintiff's injuries, Massachusetts Bonding & Ins. Co. v. United States, 1956, 352 U.S. 128, 129, 77 S.Ct. 186, 1 L.Ed.2d 189; Olson v. United States, 8 Cir., 1949, 175 F.2d 510, 512; Crosby v. Meredith, 4 Cir., 1962, 300 F.2d 323, 324; United States v. Sutro, 9 Cir., 1956, 235 F.2d 499, 500; (b) that under Minnesota law, Cartridge, "because of its contract with the United States, did not by virtue of that fact alone become an agent of the United States" so as to prevent a status on its part as an independent contractor; (c) that the existence of an agency or of an independent contractor relationship "may depend not only upon terms of a contract between parties thereto, but the conduct of the parties operating thereunder as well"; (d) that

"* * * there is no one particular test or type of conduct which determines whether a person is an independent contractor. Each case must be decided upon the facts there presented. * * * Some of the factors considered by the court in determining the question are: (1) Control of the work; (2) control of the premises; (3) control over the means of performance; (4) nature of the work done; (5) supervision of work; (6) control of personnel; (7) furnishing of personnel and material; (8) method of payment; (9) freedom of the contractor in employment policy; and (10) procurement of insurance covering personnel, social security payments, and like items."

Gill v. Northwest Airlines, 1949, 228 Minn. 164, 168-169, 36 N.W.2d 785, 788; (e) that

"The real test, however, `as to whether a person is an independent contractor or an employe is whether the asserted employer, under his arrangement with the other party, has or has not any authoritative control of the latter with respect to the manner and means in which and by which the details of work are to be performed\' (Nesseth v. Skelly Oil Co., 176 Minn. 373, 374, 223 N.W. 608), as distinguished from the right which every owner or general contractor has to supervise and coordinate the general work."

Larson v. Le Mere, 1945, 220 Minn. 25, 32, 18 N.W.2d 696, 700; Willner v. Wallinder Sash & Door Co., 1947, 224 Minn. 361, 369, 28 N.W.2d 682, 686; Fahey v. Terp, 1952, 235 Minn. 432, 433, 51 N.W. 2d 273, 274; and (f) that as a general rule one is not liable for the acts of an independent contractor although "it would be proper to say that the rule is now primarily important as a preamble to the catalog of its exceptions". Pacific Fire Ins. Co. v. Kenny Boiler & Mfg. Co., 1937, 201 Minn. 500, 503, 277 N.W. 226, 228; Lamb v. South Unit Jehovah's Witnesses, 1950, 232 Minn. 259, 263, 45 N.W.2d 403, 406, 33 A.L.R.2d 1. It has been said, too, that the burden is upon the plaintiff to show that his case comes within an exception to the rule of non-liability. Union Tank & Supply Co. v. Kelley, 5...