Hodge v. United States

• Decision Date: 26 February 1969
• Docket Number: 2371.,Civ. A. No. 2238
• Citation: 310 F. Supp. 1090
• Parties: Ernest Sterling HODGE, a Minor, by and through his Father, Russell S. Hodge, as next friend, Plaintiff, v. UNITED STATES of America, Defendant. Russell S. HODGE, Plaintiff, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — Middle District of Georgia

310 F. Supp. 1090

Ernest Sterling HODGE, a Minor, by and through his Father, Russell S. Hodge, as next friend, Plaintiff, v. UNITED STATES of America, Defendant.

Russell S. HODGE, Plaintiff, v. UNITED STATES of America, Defendant.

Civ. A. Nos. 2238, 2371.

United States District Court, M. D. Georgia, Macon Division.

February 26, 1969.

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Melton, McKenna & House, Macon, Ga., for plaintiff.

Anthony T. Giattina, Department of Justice, Washington, D. C., Floyd M. Buford, U. S. Atty., Macon, Ga., for defendant.

BOOTLE, Chief Judge:

These actions, numbers 2238 and 2371, were brought against the United States under the Federal Tort Claims Act, this court having jurisdiction by virtue of 28 U.S.C. section 1346(b). In accordance with 28 U.S.C. section 2402 the cases were heard by the court without a jury. This opinion is filed to comply with Fed.R.Civ.P. 52(a) and constitutes the court's findings of fact and conclusions of law.

On Monday, August 22, 1966, Ernest Sterling Hodge (hereinafter referred to as Hodge), the plaintiff in number 2238 and son of the plaintiff in number 2371, sustained severe and permanent injuries as a result of his falling approximately 25 feet through the roof of Building 127 on Warner Robins Air Force Base where he was employed by an independent contractor to engage in roofing work. The principal result of these injuries is that he was rendered a quadriplegic with only limited facility in his hands and arms and no feeling or voluntary muscular function in any part of his body below the upper portions of his chest. He is receiving workmen's compensation benefits on the basis of his employment by the contractor.

In light of the numerous theories under which the plaintiffs seek to hold the government liable, it is necessary to give a fairly detailed factual recount. During the Summer of 1966, prior to beginning the job on which he sustained the above-described injuries, Hodge, then 18 years of age, and a companion, Andrew Norman (hereinafter referred to as Norman), then 17 years of age, had obtained two construction jobs (neither of which involved working at heights) through Hodge's personal acquaintance with a neighbor, Mr. Phillips, who worked in the Contracting Office on the Air Force base. Through Phillips, Hodge learned of a contractor who needed workers, and he and his companion secured employment by contacting the contractor. After the expiration of this job they were contacted and hired for a second job by another contractor who had learned of the boys from the contractor who had first hired them. When this employment terminated, Hodge, who had met the Contracting Officer for the base (Mr. Greer) while working on the two above-mentioned construction jobs, asked him if he knew of any other jobs where contractors might need workers. On Thursday, August 18, the two boys went to Mr. Greer's office, and he drove them over to Building 127 where an independent contractor, H. C. Chambless, was engaged in roof construction. After introducing the boys to Chambless, who hired them to begin work on the roof Monday morning, Greer told them that the roof was "weak" (record at 256, 325, 334) and "dangerous" (record at 256, 325, 535) and that they should "be careful" (record at 256, 325, 535). Neither Greer nor Chambless told the boys that they were to work completely from plywood walkways and would not otherwise be safe. However, Greer testified¹ that, in the presence of Hodge and Norman, Chambless told Greer "that he would definitely see that they would have walkboards placed for the employees." (Record at 535).

Chambless had a contract with the Air Force under which he undertook to remove the old roof covering the western half of Building 127 and replace it with new roofing. The section to be replaced was in the shape of a rectangle roughly 100 feet on the east and west sides and 200 feet on the north and south sides.

Building 127 is a large practically flat-roofed structure which was built during World War II, and, as a temporary wartime expedient, and roof was constructed of Gypsum Board² decking upon which was applied layers of roofing felt, then tar and gravel. The rafters, 2 inches wide, and from photograph P-7 apparently 8 inches or 10 inches deep, over which the Gypsum Board was applied were 24 inches apart, 26 inches from center to center.

At the time of the Chambless contract the roof of Building 127 was in a deteriorated condition. However, except for some low spots where the Gypsum Board decking had sagged so that the impressions of the rafters could be seen on the flat roof surface, the roof did not appear to be as weak as it actually was. About midway along the south side of the building was a chute (for the disposal of the pieces of old roof) which was built on that side by the contractor at the request of the government so that debris would not be thrown off the north side of the building and damage jet aircraft by being ingested into the engines.

Building 127 houses the Air Freight Terminal where air freight is unloaded by the ground crew and is sorted by means of an extensive system of steel conveyors running throughout the building. With respect to occupancy of the building during the contract period, the contract provided:

"Continued Occupancy: * * * Facilities will not be vacated by the Air Force and the contractor will be required to accomplish his work with a minimum of interference to the occupants and full protection for the occupants and the equipment in and around the building. All work connected with this contract will be accomplished during the hours of 8:00 a. m. and 4:45 p. m., Monday through Friday. Written approval will be required for other hours of work. Ground work areas will be adequate and will be where recommended by the Contracting Officer."

With respect to accident prevention, General Provision Number 46 of the Chambless contract provided:

"In order to provide safety controls for protection to the life and health of employees and other persons, for prevention of damage to property, materials, supplies and equipment; and for avoidance of work interruptions in the performance of this contract, the Contractor shall comply with all pertinent provisions of the Corps of Engineers Manual, EM 385-1-1, dated 13 March 1958, entitled `General Safety Requirements,' as amended, and will also take or cause to be taken such additional measures as the Contracting Officer may determine to be reasonably necessary for the purpose."

The provisions of the Corps of Engineers Manual specified in the contract which may be pertinent provide as follows:

"7-i. Employees working from unguarded surfaces above pits or moving machinery, over dangerous waters or boiling cauldrons, on steep slopes, or otherwise subjected to falls hazardous to life and limb, shall be secured by safety belts and life lines or protected by use of safety nets."³ (Emphasis added.)

"20-21 Runways, ramps, platforms, elevated work surfaces, and scaffolds of 6 feet in height or more above the adjoining surface shall be effectively guarded as follows:

"a. Guard rails of such height and stability as the nature of the work being performed * * * may require. * * * Intermediate rails shall be provided.

"b. Toeboards not less than 6 inches in height * * * shall be provided as necessary. * * *"

* * * * * *

"F. During construction all openings — floor, roof, stairwell, shaftways, pits, and similar unguarded locations shall be provided with an inclosure guard securely anchored in the opening. * * * If the use of such a guard is not considered feasible, then the openings shall be decked over solid or closed with material and bracing of sufficient strength to support any load which may be imposed, and properly anchored to prevent accidental displacement. (Emphasis added.)

"20-22 In the construction of roofs, protective devices shall be provided which will prevent workmen from slipping and falling from the roof, and prevent workmen on lower levels from being struck by falling objects. These devices may be shingling footlocks, lifelines, crawling boards, ladders, railings, catwalks, toeboards, temporary decking, or any other device that will furnish positive protection." (Emphasis added.)

At a preconstruction conference, which the contract requires the contractor to attend, Chambless was advised of the requirements of the safety manual and was given a copy of the manual. It was specifically "recommended" to him by Safety Officer Edward C. Holt that he use plywood walkboards or other "suitable planking" to prevent workmen from stepping onto unprotected areas and falling through the roof. (Record at 56, 74). Also discussed at the conference was the method to be used to prevent government employees in the building from working beneath an area of the roof then being demolished or reroofed. The contractor was supposed to (and did) effect coordination with the workers below by designating the area over which he would be working on a particular day. Upon receiving this designation the officer in charge of operations in the building would see that the area was roped off. The roped-off areas were fairly large and in practice remained roped off for a day or two while work was being done on the roof above.

Early on Monday morning, August 22, 1966, Hodge and Norman went together to the job site on the base. Later, when Chambless arrived, he instructed them that their specific duties were to pick up the pieces of old roofing material that other workers were removing, load the material into wheelbarrows and take it over to the south side of the roof where they were to dump it down the chute leading into a truck. When the two boys began working (about 9:00 a. m.), there were no plywood walkways except for a few pieces covering a hole in the roof in front of the chute on the south side about which Chambless had warned them. (Record at 176). All workers on the roof were then...