Gowdy v. United States

• Decision Date: 20 June 1969
• Docket Number: No. 18744.,18744.
• Citation: 412 F.2d 525
• Parties: Clifford GOWDY, Plaintiff-Appellee, v. UNITED STATES of America, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

412 F.2d 525 (1969)

Clifford GOWDY, Plaintiff-Appellee, v. UNITED STATES of America, Defendant-Appellant.

No. 18744.

United States Court of Appeals Sixth Circuit.

June 20, 1969.

J. F. Bishop, Atty., Dept. of Justice, Washington, D. C., for appellant; Edwin L. Weisl, Jr., Asst. Atty. Gen., Morton Hollander, Atty., Dept. of Justice, Washington, D. C., Harold D. Beaton, U. S. Atty., Grand Rapids, Mich., on brief.

Harry M. Philo, Detroit, Mich., and William G. Reamon, Marcus, McCroskey, Libner, Reamon, Williams & Dilley, Grand Rapids, Mich., for appellee.

Before WEICK, Chief Judge, EDWARDS, Circuit Judge, and McALLISTER, Senior Circuit Judge.

WEICK, Chief Judge.

United States has appealed from a judgment of the District Court in favor of plaintiff, Gowdy, in the amount of $289,248.82, in an action for personal injuries brought under the authority of the Federal Tort Claims Act. 28 U.S.C. §§ 1346(b) and 2671 et seq. The opinion of the District Judge is reported in 271 F.Supp. 733 (1967).

Gowdy was a journeyman electrician employed by Whittaker Electric Company Whittaker, an independent contractor, which had a contract with the Coast Guard to install new electrical machinery in a machinery house which was part of a lighthouse located on a break-water on Lake Michigan. The beacon tower of the lighthouse extended upward from a part of the flat roof of the machinery house. Entrance to the lighthouse was gained from inside the machinery house.

While operating a hand hoist or rachet on the flat roof of the machinery house, Gowdy lost his balance and fell eleven feet to the ground, sustaining comminuted fractures of both heels. He was awarded Workmen's Compensation benefits under Michigan law as an employee of Whittaker, but sued the Government as a third-party tortfeasor.¹

In his complaint, Gowdy alleged negligence on the part of the Government in the following respects:

1. In hiring an incompetent contractor;

2. In not exercising reasonable care in the performance of its right of control over plaintiff's employer;

3. In furnishing unsafe equipment;

4. In giving ambiguous orders to an independent contractor;

5. In failing to warn plaintiff of the dangerous condition of the lighthouse; and

6. In failing to provide a reasonably safe place to work.

The District Court found only that the Government was negligent in one particular, namely, in failing to install a guardrail around the flat roof of the machinery house so as to prevent plaintiff's fall therefrom.

IS ADMIRALTY LAW APPLICABLE?

At the outset we must determine whether maritime law applies to this claim under the Federal Tort Claims Act, as was held by the District Court. 271 F.Supp. at 738.

The Federal Tort Claims Act provides a remedy on claims against the United States for —

"* * * 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. § 1346(b)

The words "law of the place" have been construed to require the application of the "whole law" of the state where the act or omission occurred. Richards v. United States, 369 U.S. 1, 11, 82 S.Ct. 585, 7 L.Ed.2d 492 (1962). This would include the state's rules on choice-of-law.

Should it be determined that the tort here involved required application of maritime law, a state court would be required to apply that law. Hess v. United States, 361 U.S. 314, 318, 80 S.Ct. 341, 4 L.Ed.2d 305 (1960). See Ira S. Bushey & Sons Inc. v. United States, 276 F. Supp. 518, 524 (D.C.N.Y.1967), aff'd on other grounds, 398 F.2d 167 (2d Cir. 1968).

The District Court relied upon the traditional test of the locality of the tort in determining whether maritime law must be applied. Principal reliance was placed upon Wiper v. Great Lakes Eng'r Works, 340 F.2d 727 (6th Cir. 1965), cert. denied, 382 U.S. 812, 86 S.Ct. 28, 15 L.Ed.2d 60 and Hastings v. Mann, 340 F.2d 910 (4th Cir. 1965), cert. denied, 380 U.S. 963, 85 S.Ct. 1106, 14 L. Ed.2d 153.

The present case, however, is one of those "troublesome borderline cases" in which the locality test alone is not sufficient. Chapman v. City of Grosse Pointe Farms, 385 F.2d 962, 964-966 (6th Cir. 1967) (decided after the District Court rendered its judgment).

In view of the fact that the lighthouse was located at the end of a breakwater,² the Government contends that it falls within the land extension doctrine because the "accident * * * was on an unbroken extension of land," and that, therefore, there is no basis for applying admiralty law. It argues that the lighthouse was not, strictly speaking, surrounded by water.³

The District Court, on the other hand, noted that lighthouses are generally not encompassed within the land extension doctrine, Hastings v. Mann, supra, 340 F.2d at 911, and that a breakwater is distinguishable from a wharf or pier, since its purpose is to break the force of the waves. This analysis aids us no more than did the analysis of the locality test in Chapman. After concluding that the locality test alone would place the case within admiralty jurisdiction, this Court stated in Chapman v. City of Grosse Pointe Farms, supra, 385 F.2d at 965:

"The second question presented * * is whether locality of the tort alone is sufficient to confer admiralty jurisdiction upon the district court. In light of the fact that the purpose of the constitutional provision (U.S. Const. art. III, § 2) underlying section 1333 was to achieve uniformity in the area of maritime commerce * * * doubt might well exist as to whether locality alone should be the sole controlling factor in determining the existence of federal admiralty jurisdiction."

Nor is the fact that the lighthouse itself serves a maritime purpose sufficient to require in this case application of maritime law.

In Chapman the Court stated the following principle:

"While the locality alone test should properly be used to exclude from admiralty courts those cases in which the tort giving rise to the lawsuit occurred on land rather than on some navigable body of water, it is here determined that jurisdiction may not be based solely on the locality criterion. A relationship must exist between the wrong and some maritime service, navigation or commerce on navigable waters. Absent such a relationship, admiralty jurisdiction would depend entirely upon the fact that a tort occurred on navigable waters; a fact which in and of itself, in light of the historical justification for federal admiralty jurisdiction, is quite immaterial to any meaningful invocation of the jurisdiction of admiralty courts." Italics ours Id., 385 F.2d at 966.

Here the "wrong" if any, involved the failure of a landowner to provide a guardrail or some type of warning for business invitees using the property. The invitees were an electrical construction company and its employees engaged in the installation of new machinery in the machinery house. The company was not a maritime contractor, and its employees were not seamen, longshoremen or harbor workers.

The "wrong" bears no relationship whatever to "some maritime service, navigation or commerce on navigable waters." The application of maritime law in this case would not, therefore, serve the purpose of uniformity in the area of maritime commerce.

In view of the fact that there are no other choice-of-law problems, e.g., multistate problems, we hold that Michigan substantive law is applicable to this case.

NEGLIGENCE

The accident happened in broad daylight. Gowdy was familiar with the flat roof as he had been on it a number of times before the mishap. Gowdy admitted that he knew that the roof had no guardrail and that if he was not careful he might fall. Notwithstanding all of this knowledge, the District Judge found that the absence of the guardrail "presented a deceptive and hidden danger to the Plaintiff"; that once he was "lulled into a sense of security, he could easily be lured into a position of danger"; and that it was "a subtle and alluring hazard." 271 F.Supp. at 745 and 744.

Whittaker, plaintiff's employer, who was alleged by plaintiff to be an incompetent contractor, had been regularly engaged for many years in the construction of heavy and medium industrial projects, with extensive experience with the hoisting of heavy equipment. It did an annual business of $1.5 million. It employed about one hundred persons at that time, and now has one hundred thirty employees. There was no proof that Whittaker was an incompetent contractor, or that the Government had knowledge of any alleged incompetency. In any event, the award of contracts by the Government involves a "discretionary function or duty," in the exercise of which it is exempt from liability under the Federal Tort Claims Act. 28 U.S.C. § 2680(a), and Dalehite v. United States, 346 U.S. 15, 42, 73 S.Ct. 956, 97 L.Ed. 1427 (1953).

The Government was not required to exercise any supervision or control over its independent contractor and is not liable for failure to do so. The mere reservation of the right to inspect the work did not impose upon the Government any duty of inspection or control. Grogan v. United States, 341 F.2d 39, 42 (6th Cir. 1965). Nor is the Government liable for the negligence of the independent contractor as the Act limits liability to injuries "caused by the negligent or wrongful act or omission of any employee of the Government * * *." Grogan v. United States, supra.

The Government furnished no equipment to the contractor. It did permit the contractor to use a davit for the purpose of hoisting machinery. The davit was fastened on the edge of the flat roof of the machinery house and extended to a height of about ten to twelve feet above it. There was no proof that the davit was defective or that the davit had...