Hollinger v. U.S.

Citation651 F.2d 636
Decision Date06 March 1981
Docket Number79-4527,Nos. 79-4526,s. 79-4526
Parties7 Fed. R. Evid. Serv. 1142 Richard D. HOLLINGER, Plaintiff-Appellee, and Stella Hollinger, Plaintiff, v. UNITED STATES of America, Defendant-Appellant. Richard D. HOLLINGER, Plaintiff-Appellant, and Stella Hollinger, Plaintiff, v. UNITED STATES of America, Defendant-Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

Richard D. Kibby, Anchorage, Alaska, argued for defendant-appellant; Charles Coe, Asst. U. S. Atty., Anchorage, Alaska, on brief.

Kenneth D. Jensen, Jensen, Harris & Roth, Anchorage, Alaska, argued for plaintiff-appellee; Jeffrey H. Roth, Jensen, Harris & Roth, Anchorage, Alaska, on brief.

Appeal from the United States District Court for the District of Alaska.

Before WALLACE, HUG and SCHROEDER, Circuit Judges.

WALLACE, Circuit Judge:

The parties appeal from a judgment entered by the district court in this negligence action brought against the United States of America by the Hollingers pursuant to the provisions of the Federal Tort Claims Act (28 U.S.C. § 1346(b)). Stella Hollinger's claim was dismissed and is not before us. Subsequent to trial, the district judge entered his Findings of Fact, Conclusions of Law and Final Judgment, awarding Hollinger damages in the sum of $462,000. Hollinger moved for entry of amended and additional findings of fact, and the court denied that motion.

On appeal, the government argues that the district judge erred in: (1) applying an incorrect standard of care to the government; (2) failing to rule on certain objections and motions; (3) finding that Hollinger was totally disabled from pursuing all normal courses of employment; and (4) failing to assess a greater percentage of comparative fault against Hollinger. In his cross-appeal, Hollinger contends that the district court erred in: (1) finding that he was thirty percent comparatively negligent; and (2) failing to enter sufficient subsidiary findings of fact concerning the amount of impaired earning capacity.

We remand to the district court for more specific findings as to impaired earning capacity. We affirm as to all other claims of error.

I

On the morning of April 8, 1975, Hollinger, a civilian contractor's employee, slipped and fell while descending from a bulk fuel station platform owned and maintained by the government through its agent, the United States Air Force, at Elmendorf Air Force Base, Alaska. The surface upon which Hollinger fell was a concrete platform designed to provide support for and access to an elevated petroleum truck fuel stand. On the night before Hollinger's injury, a light snow had fallen and by 7:20 a. m. it had been removed from the platform by government employees. Light snow had continued to fall throughout the morning. Around noon, Hollinger parked his fuel truck near the concrete platform. Hollinger then stepped out of the truck and onto the platform, ascended a graded steel stairway to the top of the truck fuel stand, and opened the hatches on the top of the truck. A government agent, Thomas Plum, was on duty, also on the top of the stand. Plum preceded Hollinger down the stairs and advised Hollinger to "keep an eye out" because "it was a little slippery." Hollinger came down the stairs onto the platform where he slipped and fell.

Hollinger did not appear to be seriously injured at the time of the accident, and did not report the incident to the government. He did not consult a physician until April 28th, 1975, and continued to work regular shifts until October, 1975.

In November 1975, surgery was performed on Hollinger. The treating physician, however, could not find the cause of Hollinger's pain. The government's physician also found no neurological damage and no etiological cause for the discomfort.

Finally Hollinger undertook a vocational rehabilitation program designed by vocational counselor at Donald E. Sharp Pain Clinic in San Diego, California. On his return to Alaska, with the assistance of the State Office of Vocational Rehabilitation and a compensation insurance carrier, Hollinger was placed in a subsidized vocational training position. He contended that his physical limitations and inability to tolerate pain continued without significant improvement.

II

We review Federal Tort Claims Act findings of fact by a federal rather than a state review standard. Felder v. United States, 543 F.2d 657, 664 (9th Cir. 1976). Findings of fact are overturned only when clearly erroneous. Fed.R.Civ.P. 52(a).

Even though a determination of negligence is generally recognized as a mixed question of law and fact, Miller v. United States, 587 F.2d 991, 994 (9th Cir. 1978), our review of a finding of negligence is governed by the clearly erroneous standard. Id. However, an appellate review of what standard of conduct should have been utilized in a negligence finding is a legal question. It follows:

... in most cases where the trial judge has erred in determining what standard of conduct should have been used in a negligence determination, that the ultimate finding as to negligence does not pass muster under the "clearly erroneous" test.

Id. at 994-95. See also Pacific Tow Boat Co. v. States Marine Corp. of Delaware, 276 F.2d 745, 752 (9th Cir. 1960). As a result, the district court's findings with respect to the negligence of the government and the comparative negligence of Hollinger will be overturned if we find the application of the wrong standard of conduct results in a clearly erroneous finding.

The government argues that the district judge used the wrong standard in evaluating its care of the platform. Because we apply the state substantive tort law under the Federal Tort Claims Act, the government relies on Hale v. City of Anchorage, 389 P.2d 434 (Alaska 1964), in which the Alaska Supreme Court held that a municipality is not liable for injuries sustained by persons due to the natural accumulation of ice and snow on sidewalks. Id. at 437-38. If the district court's finding of negligence was based exclusively on the presence of ice and snow on the platform, Hale would be controlling. The district court found, however, that the platform upon which Hollinger fell "was painted with a high gloss enamel paint," and "that the government, through its employees, had applied a new coat of the high gloss enamel paint to the concrete platform during the summer preceding the accident, notwithstanding the fact that the government had constructive notice and actual knowledge that the paint used was extremely slippery ...." We conclude therefore that the standard of care articulated by the Alaska Supreme Court in Hale is not applicable in the instant case.

The question to be answered by the trier of fact is whether the landowner has exercised "reasonable care under all circumstances." Webb v. City and Borough of Sitka, 561 P.2d 731, 734 (Alaska 1977). This was the standard properly applied by the district court. As to its application to this case, there is evidence in the record that the government had not exercised reasonable care in applying the paint to the platform. In his deposition, Plum described the surface as being "slippery." He also stated that he had told his supervisors that the paint would not be appropriate for the surface because it was "too slick," and that his supervisors told him to use the paint anyway. Plum also stated that he observed a difference in the slipperiness of the surface after the paint was applied, and he even recalled falling down on the surface himself. The surface was also described by witness McCalment as a "high-gloss yellow paint ... very shiny and slick when it got wet." Witness Pederson characterized the surface as a "high-gloss enamel." We conclude that the finding by the district court that the government was negligent was not clearly erroneous.

III

Hollinger argues that the district judge was clearly in error in finding that he, "being familiar with the premises at which the injury occurred was comparatively negligent to a percentage of thirty percent." The standard of care used to evaluate comparative negligence was discussed by the Alaska Supreme Court in Kaatz v. State, 540 P.2d 1037 (Alaska 1975). There, the court first accepted the "pure" comparative negligence doctrine; hence, a plaintiff's damages are reduced in exact proportion to the amount of negligence that is attributed to him. Id. at 1049. The question presented was whether the plaintiff, Kaatz, was comparatively negligent when he drove his vehicle on a road which he knew was in a dangerous condition. The court stated:

If Kaatz did drive the road shortly before climbing into the loader, then it is apparent that he would have or should have perceived the treacherous and unsanded condition of the road. If, despite such knowledge, he chose to ride in the cab of a vehicle which is notoriously "unstable" on ice, then his conduct can be properly said to be voluntary and unreasonable.

Id. at 1046. Similarly in the instant case, Hollinger had walked across this platform on many previous occasions. In fact Hollinger had made a trip to the fuel stand earlier that morning. Plum had warned Hollinger immediately prior to his descent onto the concrete surface "to keep an eye out" because "it was a little slippery." In view of this evidence, it is apparent that Hollinger would have or should have perceived the dangerous condition of the platform. Therefore, under the standard stated by the Alaska Supreme Court in Kaatz, we hold that the district court did not commit clear error in finding that Hollinger was comparatively negligent to the extent of thirty percent.

IV

The government argues that the district court's failure to rule on the admissibility of certain evidence and on motions to strike evidence had a substantial adverse impact on the ability of the government to defend this action. The government points specifically to the district judge's failure to rule on...

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