Gowdy v. United States, 4897.

• Decision Date: 12 July 1967
• Docket Number: No. 4897.,4897.
• Citation: 271 F. Supp. 733
• Parties: Clifford GOWDY, Plaintiff, v. UNITED STATES of America, Defendant and Third-Party Plaintiff, v. WHITTAKER ELECTRIC COMPANY, a corporation, Third-Party Defendant.
• Court: U.S. District Court — Western District of Michigan

271 F. Supp. 733

Clifford GOWDY, Plaintiff, v. UNITED STATES of America, Defendant and Third-Party Plaintiff, v. WHITTAKER ELECTRIC COMPANY, a corporation, Third-Party Defendant.

No. 4897.

United States District Court W. D. Michigan, S. D.

June 24, 1967.

Opinion on Damages July 12, 1967.

COPYRIGHT MATERIAL OMITTED

Marcus, McCroskey, Libner, Reamon, Williams & Dilley, Grand Rapids, Mich., for plaintiff, William G. Reamon, Grand Rapids, Mich., Harry M. Philo, Muskegon, Mich., of counsel.

Harold D. Beaton, U. S. Dist. Atty., Grand Rapids, Mich., Eugene Hamilton, Dept. of Justice, Washington, D. C., for defendant.

Wheeler, Upham, Bryant & Uhl, Grand Rapids, Mich., Cholette, Perkins & Buchanan, Grand Rapids, Mich., for third-party defendant, Buford A. Upham, William D. Buchanan, Grand Rapids, Mich., of counsel.

OPINION

FOX, District Judge.

This matter involves a personal injury action brought by plaintiff, Clifford Gowdy, against defendant, United States of America, pursuant to the Federal Tort Claims Act, 28 U.S.C.A. §§ 1346(b) and 2671 et seq., for the recovery of damages allegedly caused by the defendant. A third party action was subsequently instituted by the defendant as third party plaintiff against Whittaker Electric Company, employer of plaintiff. The third party action was separated from plaintiff's suit on August 15, 1966.

The Tort Claims Act provides in part that the United States District Court "shall have exclusive jurisdiction of civil actions on claims against the United States for money damages, * * * for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred." 28 U.S.C.A. § 1346(b). (Emphasis supplied.)

On December 20 through December 23, 1966, a trial was held before the court without a jury. The facts stand as follows:

The United States contracted with Whittaker Electric Company to completely replace and renew the foghorn and light, and other existing equipment at the south breakwater lighthouse in Muskegon, Michigan.

The lighthouse is located at the extreme end of the south breakwater guarding the channel from Lake Michigan into Muskegon Lake. The breakwater runs from the east shore of Lake Michigan near Muskegon in a generally westward direction for a distance of approximately a thousand feet. It consists of concrete and stone, and is supported by piles sunk into the lake bottom.

Constructed of heavy gauge steel, the lighthouse rests on an elevated foundation which rises about three feet above the breakwater. It has a single room called the "machinery room" (approximately eight by ten feet) which houses electrical generators and machinery.

Projecting up from the roof of the machinery room is an enclosed tower on which the foghorn and light are mounted. The only means of reaching the top of the tower is a ladder running from the floor of the machinery room to an opening in the roof, through the enclosed tower to the top.

Since the base of the tower is not large enough to cover the entire roof of the machinery room, it is possible for one to stand and walk on a working platform on the east side of the roof in a rectangular area four by eight feet.

There is a radial davit which rotates three hundred sixty degrees on the northeast edge of the roof of the machinery room. At its base the davit is perpendicular to the roof of the machinery room. From its base the davit projects straight up above the roof to a height of about six feet, and then begins gradually to curve away from the perpendicular line of its base to a height of about ten to twelve feet.

There is a circular ring at the upper end of the davit called an eye, to which lines, tackles, and hoists may be attached. The davit is made of heavy gauge steel, and is fitted into a socket in the roof of the machinery room. The davit is completely exposed to the elements, so that because of rust, it is necessary to use a heavy 24-inch or larger pipewrench to turn or rotate the davit.

Whittaker Electric Company's employees began work on the lighthouse about August 1, 1963. The crew performing the work consisted of a superintendent, Fred Curow; a foreman, Charles Smith, who was also a journeyman electrician; and plaintiff, a second journeyman electrician.

Plaintiff, in addition to helping remove, repair and replace machinery and electrical equipment in the lighthouse, also assisted in the removal and replacement of the steel door of the machinery room at the beginning and end of each working day. The door was removed and replaced through the use of a chain hoist which was connected by a Whittaker employee to the davit on the edge of the roof of the lighthouse. This procedure was used primarily to facilitate the removal of old equipment and the installation of new equipment in the machinery room.

On August 23, 1963, the Whittaker Electric Company crew, consisting of the foreman and plaintiff, arrived at the lighthouse by boat, as they had done previously for about three weeks.

The foreman and plaintiff worked on and about the lighthouse until about 4:00 P.M., when they began preparing to suspend operations for the day.

Plaintiff, as he had done eight to ten times before that day, went to the roof of the machinery room by way of a ladder made of rungs about one foot in width and attached about one foot apart on the outside of the machinery room. Plaintiff then began operating the ratchet hoist to replace the machinery room door. The ratchet hoist was suspended from the eye of the davit, and attached to the other end of the hoist through a ratchet was a chain which was also attached to the door.

As the hoist was operated, the davit took up slack in order to lift the door; it could also be let-off to lower the door. To operate the lift in this manner, plaintiff had to stand about one foot from the edge of the roof, lean forward toward the edge of the roof, and reach over his head with one of his hands to grasp the end of the ratchet hoist handle. The ratchet was about eighteen inches long. Because of his height he was only able to reach approximately three inches of the handle of the ratchet.

While in this position, after having taken up the slack in the chain, and as he was attempting to operate the handle of the ratchet hoist to raise the steel door so that it could be swung into position, and while the door was still resting on its bottom edge, plaintiff lost his balance and fell from the top of the roof to the concrete foundation.

As a result of this unfortunate accident, plaintiff sustained serious injuries, including comminuted fractures of both heels which caused, besides pain and suffering, hospitalization and treatment over an extended period of time, loss of earnings, and medical expenses.

Plaintiff alleges that the defendant, among other things, was negligent in hiring an incompetent contractor and in not exercising reasonable care in the performance of its right of control over plaintiff's employer; negligent in furnishing unsafe equipment and in acquiescing in tortuous conduct and in giving ambiguous orders to an independent contractor; and negligent in failing to warn of the dangerous condition of the lighthouse, and in failing to provide a reasonably safe place to work.

The United States defends by claiming it owed no duty to plaintiff Gowdy because he was an employee of an independent contractor, and also because the hazard was obvious and plaintiff was guilty of negligence. Essentially, defendant claims duties and obligations existed between the independent contractor and plaintiff, but not between plaintiff and defendant.

Plaintiff also contends that maritime law applies to his claim under the Federal Tort Claims Act.

It is axiomatic that in the absence of a maritime status between the parties in a personal injury action, the traditional test of locality of the tort governs the question. Lauritzen v. Larsen, 345 U.S. 571, 73 S.Ct. 921, 97 L.Ed. 1254 (1953); Atlantic Transport Co. of West Virginia v. Imbrovek, 234 U.S. 52, 34 S.Ct. 733, 58 L.Ed. 1208 (1914); The Plymouth, 70 U.S. (3 Wall.) 20, 18 L.Ed. 125 (1866).

Although the "locality" rule is simply stated, its application is rather difficult, as is evidenced by the number of cases which have dealt with it. Our burden is considerably lightened, however, by the recent decision of the Sixth Circuit Court of Appeals in Wiper v. Great Lakes Engineering Works, 340 F.2d 727 (C.A.6); cert. den. 382 U.S. 812, 86 S.Ct. 28, 15 L.Ed.2d 60 (1965), which involved an action against a dock owner for the death of plaintiff's husband who was found drowned in a slip.

In reaching its decision, the court said:

"Under the allegations of the complaint, defendant's negligently kept dock resulted in decedent's death by drowning in navigable waters, and therefore plaintiff contends that the tort should be deemed to have occurred in navigable water. However, docks and wharves are considered as extensions of land, (citations omitted), and therefore the negligently maintained dock which presumably caused the decedent to fall was land, and the decedent was on land at the time he was caused to fall. Thus, the tort was complete before decedent ever touched the water and this being true, the subsequent drowning is significant not to determine the maritime or non-maritime nature of this action but only as it relates to damages, (citations omitted)."

340 F.2d at 730. (Emphasis supplied.)

In the instant case, plaintiff's injury occurred as a result of defendant's failure to guard the second deck of the lighthouse.

In Hastings v. Mann, 340 F.2d 910 (C.A.4); cert. den. 380 U.S. 963, 85 S.Ct. 1106, 14 L.Ed.2d 153 (1965), the court observed with respect to lighthouses...