Grogan v. United States, 15840.
Decision Date | 05 February 1965 |
Docket Number | No. 15840.,15840. |
Citation | 341 F.2d 39 |
Parties | William H. GROGAN, James B. Shepeard, Raymond Carner and Ottis Lutz, Plaintiffs-Appellants, v. UNITED STATES of America and Tecon Corporation, Defendants-Appellees. |
Court | U.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:
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:
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Live demonstrations
...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......
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Live Demonstrations
...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......
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Live Demonstrations
...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......
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Live Demonstrations
...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......