Lipka v. United States

• Decision Date: 08 December 1965
• Docket Number: Civ. No. 9488,9584.,9583
• Citation: 249 F. Supp. 213
• Parties: Agnes LIPKA, as Administratrix of the Estate, Goods, Chattels and Credits of Walter J. Lipka, Sr., Deceased, and individually and as Widow and Next of Kin of said Walter J. Lipka, and John E. Abbott, Plaintiffs, v. UNITED STATES of America, Defendant and Third-Party Plaintiff, v. VAUGHN CONSTRUCTION CORPORATION, Third-Party Defendant. Olga SICKO, as Administratrix of the Estate, Goods, Chattels and Credits of John Sicko, Deceased, and individually and as Widow and Next of Kin of said John Sicko, Deceased, Plaintiff, v. UNITED STATES of America, Defendant and Third-Party Plaintiff, v. VAUGHN CONSTRUCTION CORPORATION, Third-Party Defendant. Maurice SMITH, Plaintiff, v. UNITED STATES of America, Defendant and Third-Party Plaintiff, v. VAUGHN CONSTRUCTION CORPORATION, Third-Party Defendant.
• Court: U.S. District Court — Northern District of New York

249 F. Supp. 213

Agnes LIPKA, as Administratrix of the Estate, Goods, Chattels and Credits of Walter J. Lipka, Sr., Deceased, and individually and as Widow and Next of Kin of said Walter J. Lipka, and John E. Abbott, Plaintiffs, v. UNITED STATES of America, Defendant and Third-Party Plaintiff, v. VAUGHN CONSTRUCTION CORPORATION, Third-Party Defendant.

Olga SICKO, as Administratrix of the Estate, Goods, Chattels and Credits of John Sicko, Deceased, and individually and as Widow and Next of Kin of said John Sicko, Deceased, Plaintiff, v. UNITED STATES of America, Defendant and Third-Party Plaintiff, v. VAUGHN CONSTRUCTION CORPORATION, Third-Party Defendant.

Maurice SMITH, Plaintiff, v. UNITED STATES of America, Defendant and Third-Party Plaintiff, v. VAUGHN CONSTRUCTION CORPORATION, Third-Party Defendant.

Civ. Nos. 9488, 9583, 9584.

United States District Court N. D. New York.

December 8, 1965.

George S. Lettko, Troy, N. Y., for plaintiffs Lipka and Abbott.

Connolly, Mirch & Murphy, Troy, N. Y., for plaintiff Sicko.

Thomas M. Monahan, Jr., Troy, N. Y., for plaintiff Smith.

Justin J. Mahoney, U. S. Atty., Albany, N. Y., Eugene N. Hamilton, U. S. Dept. of Justice, Washington, D. C., trial counsel, Frank A. Dziduch, Asst. U. S. Atty., for defendant United States.

Donohue, Bohl & Clayton, Albany, N. Y., for defendant Vaughn Const. Corp.

CASHIN, District Judge.

On June 15, 1962 the Vaughn Construction Corporation (Vaughn) was awarded a United States government contract to modify the upstream guide walls and approach channels of the Troy Lock and Dam on the Hudson River at Troy, New York. The Lock and Dam were and are owned and operated exclusively by the United States. Among other operations at the site, a cofferdam was constructed which was to be dewatered to permit the extension of the east guide wall. On March 16, 1963, after dewatering had gone on for some time and excavation of "muck" from the river bottom had begun, the cofferdam collapsed and several employees of Vaughn, working within the dam, were killed, and several others injured.

These actions are brought under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b) and 2674, to recover damages from the United States for the injuries suffered by and deaths of several of those individuals. The administratrix of the estate of the decedent, Walter J. Lipka, also asks damages for the mutilation of the latter's body subsequent to the collapse of the dam. The Government impleaded Vaughn as a third-party defendant.

The Honorable Thurgood Marshall, former United States Circuit Judge, originally tried these actions and a record of over 2000 pages was compiled. Judge Marshall was, however, unable to decide the cases before resigning from the Bench to become Solicitor General of the United States. In due course the cases were assigned to me. At a conference, at which counsel for all parties were present, all of the plaintiffs and the defendant United States agreed that I would determine the government's liability upon the record taken by Judge Marshall, without a new trial. I then ordered a separate trial of the government's action against Vaughn, dependent upon the outcome of the actions against it. Rule 42(b) Federal Rules of Civil Procedure.

The cofferdam in question consisted of steel sheet pilings with rows of bracing. Bracing was introduced at several levels to support the dam wall as the water level within the dam was reduced. As dewatering and excavation from the river bottom continued water pressure upon the wall of the dam gradually increased. It is my opinion that an additional row of braces should have been added to the dam to make it structurally sound and able to withstand the pressure to which it would be subject as a result of dewatering and excavation. I hold that the failure to add such bracing before dewatering and excavating to the level at which the cofferdam collapsed, was negligence and the direct cause of the failure of the dam.

An owner or general contractor is not usually required to protect the employees of an independent contractor from the negligence of their employer. In general, an owner or general contractor is not held liable for the torts of an independent contractor employed by him. In this case, however, the plaintiffs urge that the United States intervened in the actual operations of the project on such a scale that the relationship of principal and independent contractor was destroyed. The evidence shows, among other things, the following examples of government participation in the project:

1. The contract between the government and Vaughn permitted considerable supervision of the project and approval of methods and operations by the government;

2. Under the contract, work could be stopped by the government under certain conditions;

3. A sign on the project site announced that the project was under construction by the "U. S. Army Corps of Engineers;"

4. The government had an inspector assigned to the site on a daily basis. His job was to see that work was being performed in compliance with the contract;

5. The government rejected the contractor's first plan for a cofferdam. As an alternative it was suggested that the contractor build a double wall cofferdam.

6. Vaughn did, in fact, construct a double wall cofferdam;

7. The government requested, but never received, final plans for the cofferdam.

8. Work proceeded and the dam was erected even though the plans were not furnished;

9. Upon several occasions the government pointed out to the contractor that the project was behind schedule and directed that work be speeded up;

10. The contractor was told that debris discovered in the channel must be removed before the completion of the project;

11. The government ordered a work stoppage due to a hazardous condition found on the project site;

12. The hazardous condition was corrected and work was resumed;

13. At the contractor's request an employee of the government demonstrated a method of sealing locks in the cofferdam;

14. When a weld snapped within the cofferdam, the contractor was ordered to replace it and to insert a knee brace;

15. The weld was replaced and a knee brace inserted by the contractor;

16. Government employees were aware of abnormal movement of the cofferdam during the course of dewatering;

17. When it was discovered that the contractor had wedged an H-beam between the end of the cofferdam and a government emergency panel, the contractor was ordered to remove the beam and to build an independent and stable cofferdam;

18. The H-beam was removed by the contractor;

19. It was suggested and requested at various times, that the contractor place additional bracing within the cofferdam.

The law of New York is clear that general provisions in a contract, reserving to a principal the right to supervise, inspect or approve the work of a contractor, do not of themselves make the principal liable for harm resulting from negligence of the contractor. The principal may not be...