Grogan v. United States, 15840.

Decision Date05 February 1965
Docket NumberNo. 15840.,15840.
Citation341 F.2d 39
PartiesWilliam H. GROGAN, James B. Shepeard, Raymond Carner and Ottis Lutz, Plaintiffs-Appellants, v. UNITED STATES of America and Tecon Corporation, Defendants-Appellees.
CourtU.S. Court of Appeals — Sixth Circuit

James Glenn Apple, Paducah, Ky., for appellants, Charles A. Williams, Paducah, Ky., on the brief.

John C. Eldridge, Dept. of Justice, Washington, D. C., for appellees, John W. Douglas, Asst. Atty. Gen., Alan S. Rosenthal, John C. Eldridge, Attys., Dept. of Justice, Washington, D. C., William E. Scent, U. S. Atty., Louisville, Ky., on the brief.

Before O'SULLIVAN, Circuit Judge, McALLISTER, Senior Circuit Judge, and WEINMAN, District Judge.

O'SULLIVAN, Circuit Judge.

Plaintiffs-Appellants, William H. Grogan, and others appeal from a judgment for defendant-appellee, United States, in a suit under the Federal Tort Claims Act. Trial was had to District Judge Shelbourne of the United States District Court for the Western District of Kentucky. His opinion is reported as Grogan v. United States, 225 F.Supp. 821 (1963).

Plaintiffs were injured when a scaffold they were climbing collapsed. They were employees of Tecon Corporation which, under contract with the United States, was constructing the Barkley Lock in the Barkley Dam Project on the Cumberland River in Livingston County, Kentucky. The premises involved were owned by the United States. Plaintiffs had received from their employer and its compensation carrier, intervenor United States Fidelity & Guaranty Co., the benefits of the Kentucky Workmen's Compensation Act, and brought this suit against the United States as a third party tortfeasor. K.R.S. § 342.055.

What was referred to as the scaffold was a construction of stairs, platforms, and a ladder leading to a catwalk, attached to the face of the lock wall, whereby Tecon's workmen were enabled to get to and carry on the work of pouring concrete and other activities incident to the building of the dam wall.

The District Judge found as a fact that the collapse of the scaffold was caused by failure of a steel bolt used to fasten one of the platforms to the lock wall. Plaintiffs fell to the ground with the scaffold and were injured.

Liability was charged to the government on the theory that the Corps of Engineers was negligent in discharging, or failing to discharge, its duty to inspect the scaffolding. This duty and its breach were based on the grounds that the platforms were negligently designed; that the fastening bolts were inadequate for holding the platforms; that the scaffold assembly was an inherently dangerous instrumentality; that the Corps of Engineers, as agents of the owner of the premises, had a nondelegable duty to the plaintiffs to see to the safety of the premises where the work was being done; and that the Corps of Engineers, both by its contract with the Tecon Company and by its practice, had assumed the duty of inspecting the scaffold and had negligently failed to discharge such duty.

The evidence showed that the scaffolding was designed, erected and owned by the Tecon Company as part of the equipment used in carrying out Tecon's contract. Its design and material were not set out in the specifications furnished by the Corps of Engineers and it became no part of the finished structure.

The District Judge's Findings of Fact, which are not clearly erroneous, describe the equipment, the cause of its collapse, and the incident involved as follows:

"(5) The scaffolding involved in this action was constructed of wood and consisted of a stairway of two flights with a platform approximately five feet by six feet at the top of each flight and affixed to the uppermost flight was a ladder leading to a catwalk. The cat-walk was plaintiffs\' working area for aligning metal concrete forms used in constructing the lock wall.
"(6) At the beginning of their shift on April 13, 1960, the plaintiffs, each carrying a tool box weighing approximately sixty pounds, were ascending the scaffolding to reach their work area on the cat-walk. They had reached the second platform and were starting up the ladder when the scaffolding pulled away from the lock wall and fell, causing the plaintiffs to fall to the ground and sustain injuries.
"(7) Each of the platforms of the stairway rested on two wooden triangular jacks positioned at opposite ends of the platform. The top side of the jacks extended perpendicularly from the face of the lock wall and parallel to the ground. Each of the jacks was affixed to and supported by a three-quarter inch steel bolt approximately thirty inches in length. Each end of the bolt was threaded and one end was fastened to the jack by a steel nut; the other end was screwed into a metal coupling that was also threaded on each end. The opposite end of the metal coupling was inserted into an opening in the lock wall one and three-eighths inches in diameter and screwed to a threaded anchor road sic permanently embedded in the concrete.
"(8) The proximate cause of the fall of the scaffolding, resulting in injury to the plaintiffs, was the breaking of the steel bolt fastened to one of the jacks supporting the upper platform at a point about one-half inch outside the face of the lock wall; the coupling holding the remaining bolt, which was attached to the anchor rod embedded in the lock wall by four threads or less, was pulled off the anchor rod by the additional pressure placed on it by reason of the broken bolt." 225 F.Supp. 824-825.

To support the claim of negligence, plaintiffs' witnesses, employees of Tecon, testified that the bolt which failed was an all thread bolt, i. e., one with threading along its entire length, and gave their view that a so-called spiral bolt, with threading only at its ends and apparently of larger diameter, would have been stronger and more suitable. An engineering expert, while declining to say that the design employed was negligent, gave his opinion that it would have been better to have three bolts instead of two securing the platform to the lock wall, thus providing a safety factor against a failure of any one of the bolts. There was further criticism of the design and material of the platform.

For the defendant, the carpenter superintendent for the Tecon Company testified, in effect, that he designed and directed the building of the scaffold; that it was of standard, safe design and material; that he selected the bolts to be used and that these were also standard for the equipment involved. Within a few minutes after the collapse, a Tecon engineer was handed a bolt by some unidentified person who stated that it was the bolt that failed. Such bolt was thereafter subjected to metallurgical tests which disclosed that a defect in its manufacture, resulting in a brittle spot, was the cause of its failure. While the record is lacking in desirable clarity on the point, such defect was presumably a latent one. While plaintiffs question the sufficiency of the identification of the bolt so tested, we are satisfied that there was sufficient identification to justify the admission of the laboratory tests.

From the evidence before him, the District Judge made the following dispositive Findings of Fact:

"(9) The scaffolding involved here was not inherently dangerous. The design, construction, erection and use of the stairway, platforms, and ladder were in accordance with accepted safe
...

To continue reading

Request your trial
35 cases
  • Buxton v. Amoco Oil Co.
    • United States
    • U.S. District Court — Western District of Louisiana
    • November 20, 1987
    ...has been reached by courts applying Kentucky law. See Olds v. Pennsalt Chemicals Corp., 432 F.2d 1033 (6th Cir.1970); Grogan v. United States, 341 F.2d 39 (6th Cir.1970); King v. Shelby Rural Electric Cooperative Corp., 502 S.W.2d 659 (Ky.Ct.App.1973). In Cornish, the Louisiana Court of App......
  • Blessing v. United States
    • United States
    • U.S. District Court — Eastern District of Pennsylvania
    • April 19, 1978
    ...United States v. Page, 350 F.2d 28 (10th Cir. 1965); cert. denied 382 U.S. 979, 86 S.Ct. 552, 15 L.Ed.2d 470 (1966); Grogan v. United States, 341 F.2d 39 (6th Cir. 1965), the Third Circuit rejected this theory also, holding "that the United States may not be held liable for injuries to work......
  • Kropp v. Douglas Aircraft Co., 66-C-562.
    • United States
    • U.S. District Court — Eastern District of New York
    • June 25, 1971
    ...work, Wright v. United States, 404 F.2d 244 (7th Cir. 1968); Yates v. United States, 365 F.2d 663 (4th Cir. 1966); Grogan v. United States, 341 F.2d 39 (6th Cir. 1965); Strangi v. United States, 211 F.2d 305 (5th Cir. 1954); (2) the obligation of the contractor to comply with federally-esta......
  • McGarry v. United States
    • United States
    • U.S. District Court — District of Nevada
    • October 30, 1973
    ...United States v. Page, 350 F.2d 28 (10th Cir. 1965); Roberson v. United States, 382 F.2d 714 (9th Cir. 1967); and Grogan v. United States, 341 F.2d 39 (6th Cir. 1965). Further, the United States will not be held liable for the negligence of an independent contractor, even when that contract......
  • Request a trial to view additional results
12 books & journal articles
  • Live demonstrations
    • United States
    • James Publishing Practical Law Books Is It Admissible? Part IV. Demonstrative Evidence
    • May 1, 2022
    ...144 Neb. 394, 13 N.W.2d 627 (1944). 11 Crecelius v. Gamble-Skogmo, Inc ., 144 Neb. 394, 13 N.W.2d 627 (1944). 12 Grogan v. United States , 341 F.2d 39 (6th Cir. 1965). 13 Woods v. State , 864 S.E.2d 194 (Court of Appeals of Georgia, 2021). Although the conditions of a demonstration need not......
  • Live Demonstrations
    • United States
    • James Publishing Practical Law Books Archive Is It Admissible? - 2015 Part IV - Demonstrative Evidence
    • July 31, 2015
    ...144 Neb. 394, 13 N.W.2d 627 (1944). 10 Crecelius v. Gamble-Skogmo, Inc ., 144 Neb. 394, 13 N.W.2d 627 (1944). 11 Grogan v. United States , 341 F.2d 39 (6th Cir. 1965). 12 Simpson v. State , 230 P.3d 888 (Okla.Crim.App., 2010). In a murder prosecution, a demonstration which showed that a sem......
  • Live Demonstrations
    • United States
    • James Publishing Practical Law Books Archive Is It Admissible? - 2017 Demonstrative evidence
    • July 31, 2017
    ...144 Neb. 394, 13 N.W.2d 627 (1944). 11 Crecelius v. Gamble-Skogmo, Inc ., 144 Neb. 394, 13 N.W.2d 627 (1944). 12 Grogan v. United States , 341 F.2d 39 (6th Cir. 1965). 13 Simpson v. State , 230 P.3d 888 (Okla.Crim.App., 2010). In a murder prosecution, a demonstration which showed that a sem......
  • Live Demonstrations
    • United States
    • James Publishing Practical Law Books Archive Is It Admissible? - 2014 Part IV - Demonstrative Evidence
    • July 31, 2014
    ...144 Neb. 394, 13 N.W.2d 627 (1944). 10 Crecelius v. Gamble-Skogmo, Inc ., 144 Neb. 394, 13 N.W.2d 627 (1944). 11 Grogan v. United States , 341 F.2d 39 (6th Cir. 1965). 12 Simpson v. State , 230 P.3d 888 (Okla.Crim.App., 2010). In a murder prosecution, a demonstration which showed that a sem......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT