Kirk v. United States, 16307.

Citation270 F.2d 110
Decision Date25 August 1959
Docket NumberNo. 16307.,16307.
PartiesMartha M. KIRK, an adult, and Kenneth William Kirk, a minor, who sues by his Guardian Ad Litem, Martha M. Kirk, Appellants, v. UNITED STATES of America, Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

Richards, Haga & Eberle, Boise, Idaho, for appellants.

Ben Peterson, U. S. Atty., Kenneth G. Bergquist, Asst. U. S. Atty., Boise, Idaho, for appellee.

Before POPE, BONE and JERTBERG, Circuit Judges.

JERTBERG, Circuit Judge.

The appellants are the widow and minor child of William A. Kirk, who lost his life when he fell from a scaffold upon which he was working as a carpenter during the construction of the Lucky Peak Dam on the Boise River in Idaho.

This is the second appearance of this case in this Court. Following the filing of the original complaint and before the filing of answer, the defendant moved the district court for summary judgment in its favor. The motion was granted and summary judgment entered. Following the memorandum decision1 of the district court, plaintiffs sought leave to file an amended complaint, which motion was denied. On appeal, this Court reversed the judgment and remanded the cause to the district court "with directions to permit the requested amendment of the complaint, and to require the defendant to answer thereto, and to proceed with the trial of the cause upon the merits." 9 Cir., 232 F.2d 763, 770. In that opinion this Court, in substance, held that the plaintiffs' action under the wrongful death statute of the State of Idaho against the United States for negligence, as authorized under the provisions of the Federal Tort Claims Act, Title 28 U.S. C.A. Sections 2674 to 2680, is not barred by the Idaho Workmen's Compensation Act, I.C. § 72-101 et seq., but may be brought in the same manner as any injured employee may bring an action against a third party who is not an employer within the definitions of said workmen's compensation act. Following remand, the cause was tried on the merits before the district court sitting without a jury, as required by statute.2 Jurisdiction of the district court was based on Section 1346(b), Title 28 U.S.C.A.3 Section 2674, Title 28, provides: "The United States shall be liable * * * in the same manner and to the same extent as a private individual under like circumstances, but shall not be liable for interest prior to judgment or for punitive damages.

"If, however, in any case wherein death was caused, the law of the place where the act or omission complained of occurred provides, or has been construed to provide, for damages only punitive in nature, the United States shall be liable for actual or compensatory damages, measured by the pecuniary injuries resulting from such death to the persons respectively, for whose benefit the action was brought, in lieu thereof."

The action was predicated upon the wrongful death statute of the State of Idaho.4

Lucky Peak Dam and the control works thereof were upon land in the possession of and owned by the United States. The control works at the outlet of the dam were being constructed in accordance with plans and specifications prepared by the Department of the Army, Corps of Engineers, under a contract between the United States and Bruce Construction Co. and Russ Mitchell, Inc., independent contractors. Kirk was employed by the contractors as a carpenter, and was not an employee of the United States.

The area where Kirk worked consisted of the top of the control works tower as it was formed of concrete and raised above the river. The concrete was poured inside of forms which were connected to the tower by she-bolts. These bolts tied into the previously poured section below and to the steel reinforcing iron in the area where the new concrete was to be poured. On the back of the form were two scaffold walkways, one above the other, and each protected by guard rails on the outer side. These forms and attached scaffolds could be moved from one pouring area to the next individually or in groups fastened together with three-quarter inch bolts. The forms were strongly constructed and it was the usual practice to move as a unit several forms bolted to each other. Each form had two "eyes" on its top corners to which lines from a crane could be inserted when the form was to be lifted and moved to another pouring location.

On the date of the accident Kirk was working on two panels of forms which were tied into the concrete and reinforcing steel by she-bolts. These forms were twenty and five feet wide respectively, and were 70 or 80 feet high directly over the river. Approximately five days before the accident some of the she-bolts and all of the three-quarter inch bolts holding the two forms together had been removed on orders of the foreman of the contractors.

On the day of the accident lines were run from a crane and attached to "eyes" at the top of the outer side of the two forms for the purpose of lifting both forms as a unit. After other employees of the contractors had removed the she-bolts on which they were working, they stepped off of the form. Kirk was still engaged in removing the last she-bolt. At the time, or immediately after, the last she-bolt was removed by Kirk the structure collapsed at the point where the two panels were joined, plunging Kirk into the river. He was carried by the current into a tunnel under the dam, through which most of the water of the river was being diverted during construction. His body was recovered some time later. The position of Kirk immediately prior to the accident was variously described by witnesses as the upstream end of the 20-foot section, the downstream end, and toward the middle to the two sections.

After falling into the river Kirk was seen floating on the water. One witness testified as to hearing him call out. Another witness testified, however, that Kirk "paddled unconscious like" for a few seconds.

Following Kirk's death, the plaintiffs duly filed a claim against the United States, which claim was rejected. Subsequently plaintiffs recovered the "death award" under the provisions of the Workmen's Compensation Act of Idaho.

The contract under which the control works at the outlet of the dam was being constructed is typical of contracts used by the Corps of Engineers in the construction of flood control and related projects. It consists of 16 printed pages, together with detailed specifications, schedules, drawings and conditions. The employers of Kirk were required to furnish the materials and perform the work for completion of the dam "in strict accordance with specifications, schedules, drawings and conditions * * *" Under the contract all material and workmanship is subject to inspection, examination and test by representatives of the contracting officer at any and all times during manufacture and/or construction, and the United States retains the right to reject defective material and workmanship or require its correction.

Article 30 of the contract provides:

"Accident Prevention. (a) 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 will comply with all pertinent provisions of the manual `Safety Requirements\' approved by the Chief of Engineers, 16 December 1941, as revised 16 April 1951, and as may be further 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.
"(b) The Contractor will maintain an accurate record of, and will report to the Contracting Officer in the manner and on the forms prescribed by the Contracting Officer, exposure data and all accidents resulting in death, traumatic injury, occupational disease, and/or damage to property, materials, supplies and equipment incident to work performed under this contract.
"(c) The Contracting Officer will notify the Contractor of any noncompliance with the foregoing provisions and the action to be taken. The Contractor shall, after receipt of such notice, immediately correct the conditions. Such notice, when delivered to the Contractor or his representative at the site of the work, shall be deemed sufficient for the purpose. If the Contractor fails or refuses to comply promptly, the Contracting Officer may issue an order stopping all or part of the work until satisfactory corrective action has been taken. No part of the time lost due to any such stop order shall be made the subject of claim for extension of time or for excess costs or damages by the contractor.
"(d) Compliance with the provisions of this article by subcontractors will be the responsibility of the Contractor."

The manual "Safety Requirements" mentioned in Article 30 of the contract was received into evidence. The foreword of the manual states:

"Accidents on work under jurisdiction of the Corps of Engineers have proven these important conclusions.
"a. Accidents produce consequences which do not operate for the best interests of the Nation.
"b. Circumstances which cause accidents do not automatically adjust themselves with the passing of time; therefore a controlling medium is required.
"These Safety Requirements are designed to assure acceptable standards of safety with a resultant profit to all. They have been developed specifically as considerations to be incorporated into planning, layout, and methods and not as rules to be superimposed thereon.
"Pertinent provisions of these Safety Requirements will be applied to all work under jurisdiction of the Corps of Engineers, both military and civil and whether accomplished by contractor or government forces. The term `pertinent provisions\' as used in the foregoing will be those provisions which are applicable to the situation at hand.
"In circumstances where literal application

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