Hamman v. United States

• Decision Date: 14 March 1967
• Docket Number: 522,Civ. No. 476,493.,477
• Citation: 267 F. Supp. 411
• Parties: Elsie HAMMAN, Plaintiff, v. UNITED STATES of America, Washington Iron Works, a Washington corporation, Morrison-Knudsen Company, Inc., a Delaware corporation, Perini Corporation, a Massachusetts corporation, Walsh Construction Company, Inc., an Iowa corporation, and Kaiser Company, a Nevada corporation, jointly and severally, Defendants. Arlene Hartung REED, Administratrix of the Estate of her deceased husband, Adam Hartung, Plaintiff, v. UNITED STATES of America et al., Defendants. Anna LOYNING, Administratrix of the Estate of her deceased husband, Sidney A. Loyning, Plaintiff, v. UNITED STATES of America et al., Defendants. Alice R. BLANCO, Individually and as Guardian ad Litem for Tony Jerome Blanco, David Martin Blanco, Sylvia Irene Blanco, Angela Fern Blanco and Rose Kathleen Blanco, and as Administratrix of the Estate of Frank Jerry Blanco, Plaintiffs, v. UNITED STATES of America et al., Defendants.
• Court: U.S. District Court — District of Montana

267 F. Supp. 411

Elsie HAMMAN, Plaintiff, v. UNITED STATES of America, Washington Iron Works, a Washington corporation, Morrison-Knudsen Company, Inc., a Delaware corporation, Perini Corporation, a Massachusetts corporation, Walsh Construction Company, Inc., an Iowa corporation, and Kaiser Company, a Nevada corporation, jointly and severally, Defendants.

Arlene Hartung REED, Administratrix of the Estate of her deceased husband, Adam Hartung, Plaintiff, v. UNITED STATES of America et al., Defendants.

Anna LOYNING, Administratrix of the Estate of her deceased husband, Sidney A. Loyning, Plaintiff, v. UNITED STATES of America et al., Defendants.

Alice R. BLANCO, Individually and as Guardian ad Litem for Tony Jerome Blanco, David Martin Blanco, Sylvia Irene Blanco, Angela Fern Blanco and Rose Kathleen Blanco, and as Administratrix of the Estate of Frank Jerry Blanco, Plaintiffs, v. UNITED STATES of America et al., Defendants.

Civ. Nos. 476, 477, 522, 493.

United States District Court D. Montana, Billings Division.

March 14, 1967.

COPYRIGHT MATERIAL OMITTED

In causes 476, 477 and 522: Marcus, McCroskey, Libner, Reamon, Williams & Dilley, Muskegon, Mich., Lee Overfelt, Billings, Mont., J. H. McAlear, Red Lodge, Mont., and Robert H. Wilson, Hardin, Mont., for plaintiffs.

In cause 493: Sandall, Moses & Cavan, Billings, Mont., for plaintiffs.

Moody Brickett, U. S. Atty., and Robert T. O'Leary, Asst. U. S. Atty., Butte, Mont., for defendant United States.

Cooke, Moulton, Bellingham & Longo, Billings, Mont., for defendant Washington Iron Works.

Anderson, Symmes, Forbes, Peete & Brown, Billings, Mont., for defendants Morrison-Knudsen Co., Inc., Perini Corp., Walsh Const. Co., Inc., and Kaiser Co.

ORDER AND MEMORANDUM OPINION

JAMESON, Chief Judge.

Defendant United States of America has filed a motion to dismiss or for summary judgment on the grounds (1) that the plaintiffs' third amended complaints fail to state a claim against the defendant upon which relief can be granted, and (2) that based upon the pleadings, interrogatories, depositions, affidavits and exhibits, the defendant is entitled to judgment as a matter of law.

In each of the four actions, which have been consolidated for trial, the plaintiff seeks damages for the death of a workman who was killed when a cableway "man-skip" used in the construction of Yellowtail Dam and in which the decedent was riding, ran against a canyon wall and spilled its occupants to the floor of the canyon. The decedents were all employees of Yellowtail Constructors,¹ which was building Yellowtail Dam pursuant to a contract with the Bureau of Reclamation, an agency of the United States Government.

The United States was joined as a defendant pursuant to the provisions of the Federal Tort Claims Act, 28 U.S.C. § 1346(b)² and § 2671 et seq. (Chap. 171).³ At the outset it is recognized that the United States may be held liable only for a "wrongful act or omission" of an employee of the Government and not for any negligent act of an independent contractor. See Nyquist v. United States, D.Mont.1964, 226 F.Supp. 884, and cases there cited; United States v. Page, 10 Cir. 1965, 350 F.2d 28, 34.

Motion To Dismiss

Paragraph 17 of the third amended complaint alleges that as "possessor of the land and as contractee" the United States has the following nondelegable duties:

(a) The common law duty of providing a reasonably safe place to work to plaintiff's decedents;

(b) The duty to employ competent contractors with proper equipment, proper safety programs and trained personnel;

(c) The duty of warning plaintiffs' decedents of all hazards of which it knew or of which it should have known in the exercise of due care;

(d) The duty to exercise with due care any control which it reserved to itself by contract;

(e) The duty to use reasonable care.

Paragraph 20 alleges that the United States violated its duties in that:

(a) It failed to employ a competent contractor * * *;

(b) The construction of the Yellowtail Dam was inherently hazardous work and there was a nondelegable duty upon the Government as possessor to use reasonable care and to provide a reasonably safe place to work for contractors' employees, and this duty was violated in four respects specified in the complaint; and

(c) The Government retained a right to control the contractors' performance and exercised such control in a negligent manner, as specified in the complaint.

It is well settled that a "complaint should not be dismissed for insufficiency unless it appears to a certainty that plaintiff is entitled to no relief under any state of facts which could be proved in support of the claim". 2 Moore's Federal Practice 2245, Para. 12.08. For a discussion of this rule in a factual situation comparable to the instant cases, see Benson v. United States, N.D.Cal.1957, 150 F.Supp. 610.⁴

In my opinion it does not appear to a certainty that the plaintiffs would be entitled to no relief under any state of facts which could be proved in support of the claim alleged. The motions to dismiss accordingly are denied.⁵

Motion For Summary Judgment

The rules to be followed in determining when summary judgment should be granted may be summarized as follows:

(1) Summary judgment is proper only where there is no genuine issue of fact or where viewing the evidence and the inferences which may be drawn therefrom in the light most favorable to the adverse party, the movant is clearly entitled to prevail as a matter of law. In other words, there is then no genuine issue of a material fact.

(2) All doubts as to the existence of a genuine issue as to any material fact must be resolved against the moving party.

(3) An issue of fact may arise from countering inferences which are permissible from evidence accepted as true.

(4) The court may not weigh evidence or resolve issues in determining a motion for summary judgment.

(5) Issues of negligence are not ordinarily susceptible of summary judgment, but summary judgment may be proper on the basis of extraneous materials that do not involve any real issue of credibility and which clearly establish that there is no genuine issue of material facts as to certain controlling matters.⁶

Montana Law

The parties agree that Montana law is controlling, unless it is in conflict with the provisions and exceptions of the Federal Tort Claims Act. The doctrine of sovereign immunity of course permits suit only to the extent that immunity is expressly waived by the Act.

While there are no Montana cases precisely in point, the Montana court in a number of cases has considered the obligation of a landowner or contractee to the public where work is performed by an independent contractor. In A. M. Holter Co. v. Western Mortgage and Warranty Title Co., 1915, 51 Mont. 94, 98-99, 149 P. 489, 490, the court laid down the rule that "an employer may not divest himself of the primary duty he owes to other members of the community by contracting with others for the performance of work, the necessary or probable result of which is injury to third persons" and that he must take "all reasonable precautions to anticipate, obviate and prevent these probable consequences."

In Neyman v. Pincus, 1928, 82 Mont. 467, 484, 267 P. 805, 809, the court held that the rule in Holter was an exception to the general rule that "where the relation of independent contractor exists, and due diligence has been exercised in selecting a competent contractor, and the thing contracted to be done is not a nuisance if precautionary measures are used, and injury result, not from the fact that the work is done, but from the wrongful and negligent manner in which it is done by the contractor or his servants, the contractee is not liable therefor."

The above rule and exception were followed in the subsequent cases of Shope v. City of Billings, 1929, 85 Mont. 302, 309, 278 P. 826, and Ulmen v. Schwieger, 1932, 92 Mont. 331, 345, 354-355, 12 P.2d 856. On the basis of these cases the court in Fegles Construction Co. v. McLaughlin Construction Co., 9 Cir. 1953, 205 F.2d 637, made the following statement of Montana law:

"It is the general rule that an employer or primary contractor is not liable for the torts of an independent contractor. This rule is based upon the theory that the employer does not possess the power of controlling the person employed as to the details of the stipulated work and therefore is not answerable for an injury resulting from the manner in which the work is carried out. This general rule is subject to exceptions, one of which is applicable here. An employer or primary contractor is liable for injuries caused by the failure of an independent contractor to exercise due care with respect to the performance of work which is inherently or intrinsically dangerous. * * * This exception places an absolute, nondelegable duty upon the employer to see that all reasonable precautions shall be taken during the performance of the work to the end that third persons may be adequately protected against injury." (205 F.2d at 640).

Does this nondelegable duty extend to an employee of an independent contractor; and if so, does it apply where the Government is the contractee?

In no case decided by the Montana court was the "third person" an employee of an independent contractor. In the Fegles case the injured third party was a separate subcontractor working on the same project.

The effect of Ulmen v. Schwieger, supra, was considered by this court in O'Leary v. James & Wunderlich, 1960, D.C., 192 F.Supp. 462, aff'd 288 F.2d 462, where the decedent was a painter hired by a subcontractor pursuant to a written contract, although he had been carried on the payroll of the subcontractor and was found to be an employee by the Industrial Accident Board of the State of Montana. In holding that the rule of Ulmen v. Schwieger was not applicable, it was said:

"Does the non-delegable duty of a contractor to the public extend to one who by written contract has agreed

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