Jackson v. Tennessee Val. Authority

• Decision Date: 17 March 1976
• Docket Number: No. 74-343-NA-CV.,74-343-NA-CV.
• Citation: 413 F. Supp. 1050
• Parties: Howard JACKSON v. TENNESSEE VALLEY AUTHORITY and Ickes-Braun Glasshouses, Inc.
• Court: U.S. District Court — Middle District of Tennessee

413 F. Supp. 1050

Howard JACKSON v. TENNESSEE VALLEY AUTHORITY and Ickes-Braun Glasshouses, Inc.

No. 74-343-NA-CV.

United States District Court, M. D. Tennessee, Nashville Division.

March 17, 1976.

COPYRIGHT MATERIAL OMITTED

Harlan Dodson, Jr., Hooker, Keeble, Dodson & Harris, Nashville, Tenn., Marks & Fleming, Clarksville, Tenn., for plaintiff.

Herbert S. Sanger, Jr., Gen. Counsel, Charles W. Van Beke, Associate Gen. Counsel, Larry S. Bush, Atty., Tennessee Val. Authority, Knoxville, Tenn., for Tennessee Val. Authority.

John K. Maddin, Jr., Gracey, Maddin, Cowan & Bird, Nashville, Tenn., for Ickes-Braun Inc.

MEMORANDUM

MORTON, District Judge.

Plaintiff Howard Jackson, a citizen and resident of the Middle District of Tennessee, sues defendants Tennessee Valley Authority (TVA) and Ickes-Braun Glasshouses, Inc. (IBG) in the amount of $1,000,000.00 for personal injuries which he received in an accident at defendant TVA's Cumberland Steam Plant in Cumberland City, Tennessee. Defendant TVA is a wholly owned federal corporation, able to sue and be sued in its own name, created by the Tennessee Valley Authority Act of 1933, as amended, 16 U.S.C. § 831. Defendant IBG is an Illinois corporation. Jurisdiction of this court is invoked pursuant to the provisions of 28 U.S.C. §§ 1331 and 1332.

TVA's Cumberland Steam Plant is a large electric power generating facility. The plant was designed with eight large raised barrel vault type skylights located on the roof of its turbine room, at a height of approximately eighty feet above the interior floor. These skylights are similar in appearance to greenhouses, approximately thirty-five feet wide and sixty feet long. They rise in an are like a half-barrel to a maximum height of approximately eight feet above the flat roof surface.

A single barrel vault skylight is located on either end of the roof above the turbine room, with the remaining six barrel vaults arranged in pairs at even intervals along the roof. Each barrel vault consists of forty plexiglas (acrylic plastic) panels eight feet by eight feet, supported by a gridwork of arched aluminum beams, which are three to five inches in width. The individual plexiglas panels are dome-shaped, rising to a maximum height of eight inches above the supporting aluminum framework. The plexiglas of which they are constructed is a bronze-tinted, transparent material, approximately one-quarter inch thick. The surface of the plexiglas is smooth and slick.

Defendant IBG was the successful bidder on the TVA contract to manufacture and install the barrel vault skylights. IBG, as an independent contractor, agreed to manufacture and install the barrel vault skylights at a contract price of $168,700.00. The skylights at Cumberland Steam Plant, which were accepted by TVA in November of 1972, were the first skylights of the barrel vault type ever used by defendant TVA. However, it appeared that IBG has installed many skylights of this type over a period of approximately fifteen years.

Plaintiff was injured on August 6, 1973, when he fell through one of the plexiglas panels on barrel vault # 7. Plaintiff fell a distance in excess of eighty-five feet, landing on the floor of the turbine room below and suffering extensive injuries to his feet and legs.

At the time of the accident, plaintiff was employed by the George Tarbuk Company (Tarbuk), which had contracted with defendant TVA as an independent contractor to do painting work on the Cumberland Steam Plant. Plaintiff, who was twenty-two years old and had just completed his junior year at Austin Peay State University, was employed by Tarbuk as a painter's helper. His duties did not include actual painting; his primary function was to pour and mix paints, but he was occasionally required to perform other miscellaneous tasks. Plaintiff had been working for Tarbuk slightly in excess of one week at the time of the accident.

On the morning of the accident, plaintiff's foreman instructed him to accompany a journeyman painter, Joe Wilbanks, to the roof above the turbine room to assist him in removing cloth canvases from the barrel vault skylights. These muslin canvases, which Tarbuk had placed upon the skylights to protect them from paint overspray, were needed for use by Tarbuk in another area of the construction site. Plaintiff testified that at first he attempted to sling the canvases off the skylights while standing on the flat roof surface, because he was reluctant to climb upon the skylights. However, this method of removing the canvas proved to be impractical, because the material caught on the bolts on the metal framing around the plexiglas. Joe Wilbanks was atop the skylights removing the canvas, so plaintiff followed his example and began climbing upon the skylights in order to assist Wilbanks in taking off the canvases.

Wilbanks testified that he was walking mainly upon the aluminum framing, though in turning it was necessary to place his foot upon a portion of the plexiglas panels. Plaintiff walked partly on the plastic and partly on the metal ribs. He testified that he "wasn't really watching" where he stepped. Plaintiff indicated that he followed the example of Wilbanks, who did not appear to plaintiff to be watching too closely as to where he placed his feet. Wilbanks was working at the opposite end of each barrel vault from plaintiff, and plaintiff admitted that he therefore did not have a clear view of Wilbanks' feet.

Plaintiff and Wilbanks had removed the covers from three or four barrel vaults prior to climbing atop barrel vault # 7, where the accident occurred. On the barrel vault adjacent to # 7, plaintiff had at one point come down the side of the barrel vault and placed his foot in the center of one of the plexiglas panels. The panel had given way under plaintiff's weight, but had "popped up" to its normal position after plaintiff removed his foot from its surface. Plaintiff testified that he was of the opinion that it was safe to walk on the plexiglas panels, and that he had assumed that he would be warned if there were any danger. Plaintiff's testimony indicated that he was aware that it was a long distance to the turbine room floor below.

When plaintiff began working on barrel vault # 7, he fell through one of the plexiglas panels. Joe Wilbanks testified that he heard the plexiglas crack immediately prior to plaintiff's fall, and that he heard plaintiff call out. Plaintiff tried to prevent his fall by holding onto the muslin canvas, but it ripped and he fell through the panel and down to the floor of the turbine room below, a distance in excess of eighty-five feet.

The proof at trial showed that there was a hole the size of a fist in the panel through which plaintiff fell. The hole had been noted in the project diary of TVA engineering inspector, William K. Preacher, on July 24, 1972, and patched with cardboard and sealant by TVA personnel. Several of the panels in other barrel vaults were also broken. The evidence showed that the panels had been broken as the result of various objects (such as rock from nearby blasting operations) falling through them, rather than any defect in the plexiglas itself. The testimony at trial indicated that TVA was responsible for repairing the panels which were broken by falling objects, as the three-year warranty in the TVA-IBG contract provided only that the barrel vaults were "guaranteed for a period of three years against leakage and all defective workmanship."

The evidence at trial showed that the plexiglas panels were designed to resist a live load of 25 pounds per square foot, a specification directed solely toward the type of uniform loading resulting from weather conditions, primarily snow. The skylights were not designed to support persons climbing or walking on them, although the metal ribs of the skylight were capable of bearing the weight of a man. The evidence was somewhat inconclusive with regard to the capacity of the skylights to bear the type of weight which would result from a man walking on the plexiglas panels. Such conditions would bring into consideration the factor of impact loading, which involves different dynamics from uniform loading. However, the preponderance of the evidence indicated that an undamaged plexiglas panel of the type on the barrel vaults probably would be able to withstand the weight of a man walking carefully on top of it.

It was undisputed that the presence of a fist-sized hole in one of the plastic panels would drastically reduce its weight-bearing capacity. Thus, the evidence showed that the presence of the hole in the plexiglas panel through which plaintiff fell was definitely a major factor in his fall.

The evidence showed that the roof on which the skylights were located was an area to which access was controlled and limited to those employees of TVA or independent contractors who were there to perform specific tasks. TVA officials were cognizant of the fact that anyone working atop the barrel vaults would be exposed to the danger of falling through a plexiglas panel, and they were extremely skeptical of the weight-bearing capacity of even a non-broken plexiglas panel. All TVA personnel performing work upon the barrel vaults were given specific instructions with regard to the appropriate safety measures to be taken for work on the barrel vaults. These instructions provided that the employees should walk only upon the metal ribs and that the employees should be secured by a safety belt and tied off to a hand line. The evidence showed that TVA employees performing work atop the barrel vaults did in fact take the precautions ordered by TVA.

Donald R. Aaron, a partner in Tarbuk who was supervisor of the painting job at Cumberland City, testified that he was aware of the dangers involved in working atop the barrel vaults. He testified that he had met with TVA officials several times to discuss safety procedures on the construction site, and that he had been informed that the...