Fisher v. United States

• Court: U.S. District Court — Eastern District of Pennsylvania
• Writing for the Court: Joseph R. Ritchie, Jr., Philadelphia, Pa., for United States
• Citation: Fisher v. United States, 299 F.Supp. 1 (E.D. Pa. 1969)
• Decision Date: 23 April 1969
• Docket Number: Civ. A. No. 31345.
• Parties: Robert A. FISHER v. UNITED STATES of America. UNITED STATES of America v. BERKS STEEL SERVICE, INC. and George M. Brewster & Son, Inc. GEORGE M. BREWSTER & SON, INC. v. H. I. LEWIS CONSTRUCTION CO., Inc.

299 F. Supp. 1

Robert A. FISHER v. UNITED STATES of America.

UNITED STATES of America v. BERKS STEEL SERVICE, INC. and George M. Brewster & Son, Inc.

GEORGE M. BREWSTER & SON, INC. v. H. I. LEWIS CONSTRUCTION CO., Inc.

Civ. A. No. 31345.

United States District Court E. D. Pennsylvania.

April 23, 1969.

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John R. McConnell, Philadelphia, Pa., for Robert A. Fisher.

Joseph R. Ritchie, Jr., Philadelphia, Pa., for United States.

Lynn L. Detweiler and Grahame P. Richards, Jr., Philadelphia, Pa., for Berks Steel Service, Inc.

Benjamin F. Stahl, Jr., Philadephia, Pa., for George M. Brewster & Son, Inc.

Michael E. Quinlan, Philadelphia, Pa., for H. I. Lewis Const. Co., Inc.

FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER

JOHN W. LORD, Jr., Chief Judge.

After full consideration of the evidence presented at trial as well as the affidavits submitted by the parties in connection with the motion of Berks Steel Service, Inc., under Rule 59 of the Federal Rules of Civil Procedure to reopen the record for the presentation of newly discovered evidence, the Court makes the following

FINDINGS OF FACT

1. On or about June 22, 1960, at or about 3:10 P.M., Eastern Daylight Saving Time, plaintiff, while in the employ of Berks Steel Service Corporation of Coatesville, Chester County, Pennsylvania, as a steelworker, was lawfully working upon the premises commonly referred to as Kettle Creek Dam Project, a United States flood control dam project, at or near the Borough of Renovo, Clinton County, Pennsylvania. Plaintiff was a business invitee of the Government on that property.

2. Said premises are now and were at the time aforesaid owned by, and in the possession of, the defendant United States.

3. The aforesaid dam project was designed by the defendant United States.

4. The United States through the United States Army Corps of Engineers awarded a contract for the complete construction of the dam to the George M. Brewster & Son, Inc. This contract was designated as Contract No. DA-18-020-CIVENG-59-34.

5. The bulk of the concrete work to be performed under the Government contract was subcontracted by George M. Brewster & Son, Inc. (hereinafter referred to as "Brewster") to the H. I. Lewis Construction Co., Inc. (hereinafter referred to as "Lewis").

6. Lewis subcontracted the supporting structural steel work required in the pouring of concrete to Berks Steel Service, Inc. (hereinafter referred to as "Berks").

7. The plaintiff, at the time of his injury, was employed by Berks, and he was in the performance of work under the Berks subcontract with Lewis at the time of his injury.

8. On June 22, 1960, the water intake portion of the flood control dam was in the early stages of construction. This area later would be under water and have the function of allowing water to enter into a large tunnel and escape downriver in times of heavy rainfall.

9. To regulate the flow of water into the tunnel the plans provided for the construction of three tunnel-like inlets controlled by separate gates. Prior to the date of the accident, a huge concrete slab had been completed at the base of the dam. Upon this slab, wall-like structures were to be constructed in concrete so that the three inlets described above would have sides.

10. About noon on June 22, 1960, the plaintiff was inside a ten-foot high wooden form which was to be used for one of the walls above described. The form was approximately four feet wide at the point where the accident occurred. It had been erected previously by Lewis.

11. This wooden form held its shape by being pulled together by steel tie rods and held apart by wooden spreaders. The spreader was nailed to each side of the form by two nails. It had been installed by Lewis and was not intended to bear weight.

12. When concrete is poured inside such forms the spreaders (in the case at hand two inch by six inch boards of a length of approximately four feet) are removed when the concrete is poured.

13. The plaintiff on June 22, 1960, was tying and untying reinforcement steel within the walls of the concrete form previously described when he stepped upon a spreader board, using it as a platform. This spreader broke loose from one side of the form and the plaintiff fell to the concrete slab below, striking his left ankle on some of the reinforcement steel at the concrete slab level.

14. The spreader board was properly secured in its place for the purpose for which it was used, i. e., maintaining the form's shape.

15. The defendant United States maintained a safety program for the benefit of the plaintiff and other construction workers at its Kettle Creek Dam Project.

16. Mr. Weaver was resident engineer for the Government at Kettle Creek Dam. He was in general charge of the construction and his duties involved generally looking after the work to see that it was built in accordance with the contract requirements and general supervision of the Government inspection force.

17. The men assigned to work as inspectors generally looked for conditions around the job to assure themselves that the general safety conditions were being followed and that there was an observance of safe working practices. Mr. Weaver required the contractor to furnish him with a safety plan and it was within his authority to require the contractor to include safety regulations in that plan. Thus, Mr. Weaver exercised a substantial amount of supervision over safety practices at the Dam site.

18. The inspectors had the duty to see to it that the work was done in accordance with the specifications and also that there were no violations of safety precautions. They actually did note and report dangerous conditions relating to loose rock, sagging electric wires and other such matters. It was the practice of the Government Inspectors if they saw a dangerous condition or practice to warn the man or men involved and their supervisor.

19. The defendant United States had inspectors in the tunnel in-take area on June 22, 1960, the day of the accident. Those inspectors were Mr. Robert R. Merritt and Mr. Henry Hurtt. These inspectors knew that it was unsafe to stand on spreaders. They were on the scene daily, and issued safety directions to those working there on numerous occasions.

20. Mr. Merritt was in the vicinity of the tunnel in-take structure before and after the accident. Mr. Hurtt was in the vicinity of the tunnel in-take structure both before and after the accident.

21. Mr. Merritt, who was observed by plaintiff prior to the accident in the area where the accident occurred, had the duty of inspecting for safety purposes. If he saw an unsafe practice, he would contact the foreman and ask him to correct it.

22. No official of the defendant United States warned the plaintiff not to step on the spreaders.

23. Mr. Weaver knew that on occasions subcontracting companies would hire inexperienced personnel.

24. Mr. Weaver, as Director of the Safety Program, took no precaution with respect to warning inexperienced employees or causing them to be warned of the dangers of stepping on a spreader.

25. In the assurances Mr. Weaver required of and received from the prime contractor with respect to safety and safety indoctrination of employees, there was no reference to stepping on spreaders.

26. The defendant United States had reason to know that there were workmen who made a practice of stepping on spreaders at the job site.

27. Plaintiff was injured because of the Government's failure to protect him against the danger that existed.

28. The plaintiff did not complete the 8th grade in grammar school. When he left school, he was a farm boy and did farm work until he was 16 at which time he started work in a road crew with a pick and shovel. Then he went back to the farm for a while. Thereafter, he did miscellaneous labor, banding rolls of steel, working in foundries, occasionally returning to farming, and working in a bakery plant. In 1960 he went to work for the State Highway Department mowing grass. Then he was offered the job when he had the accident out of which this suit arises. Thus, plaintiff was inexperienced in working at such job sites and did not know of the danger of walking on spreaders; rather, he assumed it to be a safe practice since he observed other workmen walking on the spreaders. He had only been working on this construction two days prior to the day of the accident.

29. To the extent that he saw forms before the accident, plaintiff could not see how the walls were held in place and he did not know anything about spreaders.

30. The plaintiff saw other workmen, including carpenters and other employees, walking on the spreaders during the course of his employment and prior to the accident. He did not see any Government inspectors stand on a spreader, however.

31. At no time prior to the accident did anyone ever tell plaintiff not to step on a spreader.

32. Under the prime contract between the defendant Government and Brewster, the latter agreed that it would comply with all pertinent provisions of a Corps of Engineers Manual and that compliance with the Manual by subcontractors would be the responsibility of Brewster.

33. One of the provisions of the Manual was "that each employee should be provided initial indoctrination and such continuing instruction as will enable him to conduct his work in a safe manner."

34. Defendant Brewster did nothing to prevent the plaintiff and others from using the wooden spreaders constructed for the bracing of concrete forms as platforms, scaffolds or ladders while working above the surface of a concrete slab base.

35. The provisions of the Corps of Engineers Manual that each employee should be provided such initial indoctrination and continuing instruction as would enable him to conduct work in a safe manner was not complied with by Brewster and Brewster did not take adequate steps to see that Berks complied...