Moffitt v. U.S., Nos. 90-15654

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Citation995 F.2d 232
Decision Date09 June 1993
PartiesNOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel. Denise MOFFITT, Individually and as Guardian Prochein Ami for Brian Craig Moffitt and Dayton Christopher Moffitt, Minors, and as Special Administratrix of the Estate of Clayton E. Moffitt, Plaintiff-Appellant, v. UNITED STATES of America and Utility Body Company, Defendants-Appellees. Denise MOFFITT, Individually and as Guardian Prochein Ami for Brian Craig Moffitt and Dayton Christopher Moffitt, Minors, and as Special Administratrix of the Estate of Clayton E. Moffitt, Plaintiff-Appellee, v. UNITED STATES of America, Defendant, and Utility Body Company, Defendant-Appellant.
Docket NumberNos. 90-15654,90-15682

Page 232

995 F.2d 232
NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.
Denise MOFFITT, Individually and as Guardian Prochein Ami
for Brian Craig Moffitt and Dayton Christopher Moffitt,
Minors, and as Special Administratrix of the Estate of
Clayton E. Moffitt, Plaintiff-Appellant,
v.
UNITED STATES of America and Utility Body Company,
Defendants-Appellees.
Denise MOFFITT, Individually and as Guardian Prochein Ami
for Brian Craig Moffitt and Dayton Christopher Moffitt,
Minors, and as Special Administratrix of the Estate of
Clayton E. Moffitt, Plaintiff-Appellee,
v.
UNITED STATES of America, Defendant,
and
Utility Body Company, Defendant-Appellant.
Nos. 90-15654, 90-15682.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted Feb. 11, 1992.
Decided June 9, 1993.

Before: HALL and WIGGINS, Circuit Judges, and BURNS, * Senior District Judge.

AMENDED MEMORANDUM **

Plaintiff-appellant (for convenience, hereinafter referred to as the Moffitts) filed an action against the United States and Utility Body Company (Utility) for the wrongful death of Clayton Moffitt (Moffitt), husband of Denise Moffitt and father of Brian and Dayton Moffitt. The Moffitts appeal the judgments in favor of the United States and Utility. The Moffitts also appeal the district court's denial of their motion for judgment notwithstanding the verdict (JNOV) or, in the alternative, for a new trial. The Moffitts seek a reversal of the judgments in favor of United States and Utility and a remand on the sole issue of apportionment of responsibility between the United States and Utility. 1

Utility appeals the district court's denial of its motion to tax attorneys' fees against the Moffitts. Utility also requests an award of the attorneys' fees required to defend this appeal.

We have jurisdiction under 28 U.S.C. § 1291 (1988).

BACKGROUND

In 1982 the United States entered into a Defense Administrative Telephone System Agreement (DATS Agreements) with Hawaiian Telephone Company (Hawaiian Telephone) to install and to maintain telecommunication systems at all military bases on the island of Oahu, Hawaii. On March 17, 1987, Moffitt, a telephone lineman for nine years, and two other employees of Hawaiian Telephone were installing and moving telephone cables to new and existing poles at Schofield Barracks on the island of Oahu. Moffitt worked from an aerial lift manufactured by Utility.

In preparation for the installation of the telephone cables, one of Moffitt's co-workers had drilled holes on Pole 5XT one foot apart ranging from 21 to 24 feet from the ground. While Moffitt was attaching a telephone cable in the hole at the 22-foot mark, an arc of electricity leapt from the power line to Moffitt; he was electrocuted instantaneously.

PROCEDURAL HISTORY

The Moffitts sued Utility, the manufacturer of the aerial lift in which Moffitt was working at the time of his electrocution, for strict liability, negligence, and breach of warranty. A jury awarded the Moffitts damages of $1,224,727 and found Moffitt 25% negligent, Hawaiian Telephone 55% negligent, 2 the United States 20% negligent, and Utility 0% negligent. The jury's verdict was binding only on Utility. See generally 28 U.S.C. § 2402.

The Moffitts also sued the United States 3 under the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346(b) and 2671 et seq. (1988), for negligent failure to supervise an independent contractor engaged in an inherently dangerous activity, vicarious liability, and liability as owner of the premises. The parties agreed pretrial the claims against the United States were to be decided by the court. After the trial against Utility was completed, the court entered its findings of fact and conclusions of law as to the Moffitts' claims against the United States, ordering judgment in favor of the United States.

The district court denied the Moffitts' subsequent motion for JNOV or, in the alternative, for a new trial.

The Moffitts appeal the judgment granted by the court in favor of the United States, the jury verdict in favor of Utility, and denial of their motion for JNOV or, in the alternative, for a new trial.

Utility moved the court to tax attorneys' fees against the Moffitts pursuant to Hawaii Revised Statutes (HRS) § 607-14 (1972) on the grounds that the action pursued by the Moffitts sounded in assumpsit. The district court denied Utility's motion, and Utility appeals the court's decision.

THE MOFFITTS' CLAIMS

A. CLAIMS AGAINST THE UNITED STATES.

1. Negligence and Duty of Care.

The Moffitts contend the district court erred when it found the United States did not breach any duty owed to Moffitt.

The FTCA imposes liability on the government only where "a private person would be liable to the claimant in accordance with the law of the place where the act or omission occurred." 28 U.S.C. § 1346(b). See also Gardner v. United States, 780 F.2d 835, 837 (9th Cir.1986). Hawaiian Telephone was an independent contractor; the issue, therefore, was "whether, and to what extent, a person [i.e., the government] who hired an independent contractor would be liable for injuries suffered by the contractor's employee under Hawaiian law." Barron v. United States, 473 F.Supp. 1077, 1082 (D.Haw.1979), aff'd in part and rev'd in part on other grounds, 654 F.2d 644 (9th Cir.1981).

Questions and interpretation of state law are reviewable de novo. Matter of McLinn, 739 F.2d 1395, 1397 (9th Cir.1984). The district court's determination of the standard of care in a negligence claim is a question of law and, therefore, is also reviewed de novo. Bunting v. United States, 884 F.2d 1143, 1145 (9th Cir.1989). The district court's application of the legal standard to the facts is reviewed under the clearly erroneous standard. Miller v. United States, 587 F.2d 991, 994 (9th Cir.1978). The clearly erroneous standard also applies to the district court's finding on proximate causation. Bunting, 884 F.2d at 1145.

a. Duty to provide a reasonably safe workplace.

Under Hawaii law, an owner of land who hires an independent contractor has a duty to provide the independent contractor's employees with a reasonably safe place to work. See Michel v. Valdastri, Ltd., 59 Haw. 53, 56-57, 575 P.2d 1299, 1301-02 (1978). The Moffitts contend the district court's conclusion that the United States provided a reasonably safe workplace for Moffitt was clearly erroneous.

The Moffitts assert the United States did not provide a reasonably safe workplace because: (1) the United States did not eliminate known electrical hazards before allowing Hawaiian Telephone employees to install telephone cables at Schofield Barracks, and (2) the United States did not correct the location of Pole 5XT even though it was aware the pole was too close to the overhead power lines in violation of the National Electric Safety Code (NESC) (1987). 4

The parties did not dispute that placement of Pole 5XT violated NESC standards, which require a six-foot vertical and five-foot horizontal clearance between power lines and other objects. NESC, however, permits trained telecommunication crews in uninsulated lifts to approach within two feet of 7,200-volt power lines, the type of power line involved in Moffitt's fatal accident. NESC § 43, Table 430-1. This standard for approach distances has also been adopted in both federal and state occupational safety and health regulations. See Occupational Safety and Health Administration Regulations (OSHA), 29 C.F.R. §§ 1910.268(a) and (b)(7), Table R-2 (1987); Hawaii State Occupational Safety and Health Administration Standards (Hawaii OSHA), § 12-92-3, Table 92-1 (1982).

The district court found Moffitt was an experienced telephone lineman who had received training in identifying live power lines and the dangers posed by same. No power outage was requested by Moffitt, his fellow crew members, or any employees of Hawaiian Telephone before or during the time of the telephone cable installation. The district court found the power lines were approximately two feet above the top of Pole 5XT, satisfying the NESC and OSHA two-foot clearance standards for telecommunication workers. The district court further found Moffitt could have accomplished his job without approaching closer than two feet from the overhead power lines; 5 therefore, the Moffitts did not establish that the location of Pole 5XT or the distance between the overhead power line and Pole 5XT was the proximate cause of Moffitt's fatal accident. We do not find the district court's conclusions clearly erroneous.

The Moffitts also contend the United States was required, pursuant to the United States Army Corps of Engineers Safety and Health Requirements Manual EM 385-1-1 (ACE Requirements) (1984), to shut off the power before allowing Hawaiian Telephone's linemen to install telephone cables or, in the alternative, to ensure Hawaiian Telephone employees did not go within ten feet of the power lines. 6 We reject this contention.

ACE Requirements apply only to projects undertaken by the United States Army Corps of Engineers (ACE). ACE Requirements § 1. The Moffitts did not claim ACE was involved in Hawaiian Telephone's work at Schofield Barracks. Even if ACE Requirements did apply, the FTCA does not provide a remedy for violation of these requirements. Le Suer v. United States, 617 F.2d 1197, 1199 (5th Cir.1980) (Although ACE "is authorized to issue regulations for its own operational purposes, there is no Congressional authorization for the Corps to create a duty of care to business invitees leading to liability under the Federal Tort Claims Act. Violation of the Corps' safety standards, therefore, does not constitute actionable negligence").

Based on the foregoing, we agree with the district court's conclusion that the...

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