Griffith v. Wheeling-Pittsburgh Steel Corp., Civ. A. No. 73-706.

• Decision Date: 15 June 1978
• Docket Number: Civ. A. No. 73-706.
• Citation: 452 F. Supp. 841
• Parties: Thomas W. GRIFFITH, Plaintiff, v. WHEELING-PITTSBURGH STEEL CORPORATION and American Commercial Lines, Inc., Defendants.
• Court: U.S. District Court — Eastern District of Pennsylvania

452 F. Supp. 841

Thomas W. GRIFFITH, Plaintiff, v. WHEELING-PITTSBURGH STEEL CORPORATION and American Commercial Lines, Inc., Defendants.

Civ. A. No. 73-706.

United States District Court, W. D. Pennsylvania.

June 15, 1978.

Thomas L. Cooper, Gilardi & Cooper, Pittsburgh, Pa., for plaintiff.

William L. Standish, IV, Arthur H. Stroyd, Jr., Allison M. Barnes, Reed, Smith, Shaw & McClay, Pittsburgh, Pa., for defendant Wheeling.

John W. Jordan, IV, Thomson, Rhodes & Grigsby, Pittsburgh, Pa., for defendant American.

MEMORANDUM OPINION

TEITELBAUM, District Judge.

This is an action for damages brought by Thomas W. Griffith pursuant to the Longshoremen's and Harbor Worker's Compensation Act, 33 U.S.C. § 901 et seq. arising out of a May 26, 1973 accident.¹

On February 11, 1973, Griffith began his employment with the Wheeling-Pittsburgh Company at its Allenport, Pennsylvania plant. Griffith began work in the common labor pool of the construction department. The nature of his work was such that he would report to the pool each morning and thereafter report to whatever assignment was available that day. During this period, all of Griffith's duties were performed on land.

On April 1, 1973, Griffith bid into the hot mill labor pool. As was the case with his work previously, while a member of the hot mill labor pool, Griffith had no permanent duties, but rather was assigned to various jobs on a daily basis.

Including the date of the accident as a full day of work, Griffith worked 74 days for Wheeling-Pittsburgh. Of this time, he was temporarily assigned to work at the company's barge landing with longshoreman-type duties for 3¾ days. Thus of Griffith's work while he was employed by Wheeling-Pittsburgh, 94.6% was exclusively upon the land and only 5.4% of the time that he was employed by the company was spent in and about the barge landing at the Allenport plant. Of that 5.4% only about one-half of that time was actually spent working on a barge while it was in the water. The rest of the time that he was assigned to the barge landing, Griffith spent working on the railroad cars in the billet yard.

On the date of the accident, Griffith was assigned to work with the barge crew at the landing to assist in the loading of two barges. The barge on which the accident was to occur, No. 2730, was owned by defendant American Commercial Lines, Inc. (American). Three days earlier, on May 23, it had been delivered to Wheeling and was incorporated into the latter's "coal fleet" to await future use. On May 25, No. 2730 was relocated next to the seawall at the barge landing to take on a load of sheet steel which was destined to move down river to Louisville, Kentucky. A second barge, described as a pipe barge, was positioned next to No. 2730, and it too was to be loaded. The pipe barge was positioned immediately next to the seawall, and No. 2730 was lashed alongside further out on the river.

On the morning of the accident, Griffith and the regular rivermen in the barge crew first loaded pipe into the pipe barge. During the loading of the pipe barge, which was completed before Noon, Griffith worked on the seawall and barge. No. 2730 was then moved into position for loading by a procedure known as "rounding" in which a crane on the seawall pushed the barges away from the wall permitting the current to turn the boats around in the water so that No. 2730 was situated next to the seawall. Griffith's sole assistance during the procedure involved his throwing ropes from one barge to the other.

The crew then turned to the loading of No. 2730. At that time, Joseph Allfree, the crew's foreman, who was employed as river foreman by Wheeling, became aware that the barge covers were difficult to move. The wheels and track mechanism on which the covers ordinarily roll were without lubrication and were rusty and bent. At about 2:00 P.M. Allfree directed the crew to stop loading the barge and to close the covers. Allfree then returned to his office away from the area. The only other experienced riverman on the crew, Joseph Armstrong, then had difficulty closing one of the covers. A cable was attached from the crane on the seawall to the cover to pull it shut; a second cable was attached to an adjacent cover for leverage. Because eyelets on the stuck cover were missing, the hook at the end of the cable was attached to the lip on the underside of the cover. Both Armstrong and plaintiff were standing on top of the stuck cover when tension was applied to the cable. As the stuck cover began to rise they stepped back onto an adjacent cover, but that cover moved backward and the two men fell into the hold and both were injured.

Griffith filed this action against both his employer Wheeling and the vessel owner American alleging negligence on the part of both. Both defendants have denied liability to Griffith and cross-claimed against each other for indemnification or contribution. A non-jury trial was held on October 25, 1977 through October 28, 1977. Considering all the evidence elicited at trial, the following shall constitute findings of fact and conclusions of law as required by Federal Rule of Civil Procedure 52(a).

LAND-BASED STANDARD OF NEGLIGENCE

There is general agreement that the case sub judice should be governed by the applicable land based standard of negligence. Griffith v. Wheeling-Pittsburgh Steel Corporation, 521 F.2d 31, 44 (3d Cir. 1975). Far less consensus is available, however, when discussion turns toward the question of what is the appropriate land based standard.

The traditional judicial posture has been to rely upon the Restatement (Second) of Torts 343A (1965) for standard of care. As Judge Hunter noted in Hurst v. Triad Shipping Company, 554 F.2d 1237, 1248 (3d Cir. 1977):

". . . admiralty courts applying amended section 905(b) generally have turned to the Restatement (Second) of Torts as the national expression of nonmaritime tort principles."

Representative of such a history of adherence to the Restatement standard has been the Western District Court of Pennsylvania in general, and this Court in particular. Griffith v. Wheeling-Pittsburgh Steel Corporation, C.A. No. 73-0706 (March 22, 1977); Duncan v. Dravo Corp., 426 F.Supp. 1048 (D.C.1977).

An emerging trend, on the other hand, has favored defining the standard of negligence as imposing a duty to exercise reasonable care under all of the circumstances of the case. Kermarec v. Compagnie Generale Transatlantique, 358 U.S. 625, 79 S.Ct. 406, 3 L.Ed.2d 550 (1959); Rowland v. Christian, 69 Cal.2d 108, 70 Cal.Rptr. 97, 443 P.2d 561 (1968). We take the opportunity afforded by the instant case to reassess whether or not Restatement (Second) Section 343A is a viable national standard of land based negligence.

Restatement (Second), Section 343A provides:

"A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if, but only if, he (a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees."

"The distinctions which the common law draws between licensee and invitee were inherited from a culture deeply rooted to the land, a culture which traced many of its standards to a heritage of feudalism." Kermarec, supra, 358 U.S. at 630, 79 S.Ct. at 410. In many instances under the Restatement standard, this feudal categorization predetermined substantive consequences rather than being one factor which contributed to an overall evaluation of the alleged breach of duty. A general standard of reasonable care under all the circumstances allows the relationship of the landowner vis a vis the plaintiff to be considered to the extent relevant and invested with the weight deemed to be appropriate. Varying standards of due care depending upon the applicable agrarian classification cease to be dispositive of the case, but rather the landowner/plaintiff relationship is one factor among many which is relevant in determining the negligence quotient.

This Court is of the belief that the major advantage to such a uniform standard of negligence would be the forthright articulation of reasons for decision. No longer would it be judicially acceptable to state that because a plaintiff is an invitee the standard of care is inflexibly prescribed. The Court must instead state that the plaintiff/landowner relationship is significant because of specified reasons. Although as a practical matter most cases, such as the case sub judice, would reach the same result under either a general standard of due care or the Restatement (Second) formulation, the decisions in the remaining minority of landowner negligence cases and the quality of jurisprudence in all such cases would be enhanced. Accordingly, the applicable land based standard of negligence applied in the instant case is a duty to exercise reasonable care under all of the circumstances of the case.²

LIABILITY OF AMERICAN AND WHEELING-PITTSBURGH

The potential liability of American can be examined straightforwardly by measuring its conduct against the land based negligence scale previously discussed. Liability can attach to Wheeling-Pittsburgh under Section 905(b) if negligent, only if two additional conditions precedent have also been satisfied:

(1) Wheeling-Pittsburgh must have been owner pro hac vice of the American Vessel at the time of injury;

(2) Wheeling-Pittsburgh must have been negligent in a non-stevedoring capacity.

The status of Wheeling-Pittsburgh as owner pro hac vice at the time of injury is well established under both the law of the case and the applicable case law. D.C., 384 F.Supp. 230 at 237; 521 F.2d at 41; Blair v. United States Steel Corp., 444 F.2d 1390 (3d Cir. 1971).

It is also abundantly clear that Wheeling-Pittsburgh was guilty of non-stevedoring negligence in conjunction with plaintiff's injury in the following particulars: 1) Failure to give adequate safety...