Palaidis v. United States

• Decision Date: 27 May 1983
• Docket Number: No. 80-86-Orl-Civ-Y,80-128-Orl-Civ-Y.,80-86-Orl-Civ-Y
• Citation: 564 F. Supp. 1397
• Parties: Christopher PALAIDIS, Plaintiff, and Steve Lewis, Plaintiff, v. UNITED STATES of America, Defendant/Third Party Plaintiff, v. HENRY ANGELO & SONS, INC., Third Party Defendant.
• Court: U.S. District Court — Middle District of Florida

564 F. Supp. 1397

Christopher PALAIDIS, Plaintiff, and Steve Lewis, Plaintiff, v. UNITED STATES of America, Defendant/Third Party Plaintiff, v. HENRY ANGELO & SONS, INC., Third Party Defendant.

Nos. 80-86-Orl-Civ-Y, 80-128-Orl-Civ-Y.

United States District Court, M.D. Florida, Orlando Division.

May 27, 1983.

Mark S. Feldheim, Asst. Director, Torts Branch, Dept. of Justice, Washington, D.C., Kendell W. Wherry, Asst. U.S. Atty., Orlando, Fla.; Captain Harold Bistline, Patrick Air Force Base, Fla., for defendant U.S.

Richard Nichols, Coral Gables, Fla., for plaintiff Lewis.

James H. Nance, Melbourne, Fla., for plaintiff Palaidis.

Michael A. Miller, Orlando, Fla., for third party defendant.

AMENDED MEMORANDUM OPINION

GEORGE C. YOUNG, Senior District Judge.

On December 16, 1977, the plaintiffs, Christopher Palaidis and Steve Lewis, were severely burned and permanently injured while working as painters for an independent contractor when the metal scaffold they were pushing from hangars 986 to 985 at Patrick Air Force Base, Brevard County, Florida, came into contact with an overhead electrical power line. Plaintiffs brought this action against the United States Government under the Federal Tort Claims Act.¹ The United States filed a third party complaint against Henry Angelo and Sons, Inc., plaintiffs' employer, for indemnification of any recovery by plaintiffs from the government. This cause came on for nonjury trial before this Court on March 28 through 30, 1983. Upon consideration of the evidence and arguments of counsel, this Court makes the following Findings of Fact and Conclusions of Law:

FINDINGS OF FACT

1. On September 21, 1977 the United States (Defendant) awarded Henry Angelo and Sons, Inc. (Henry Angelo) Contract FO8650-77-90311 to paint the exterior of 20 base facilities at Patrick Air Force Base for the sum of $33,559.76. Henry Angelo was an independent contractor performing the work required under such contract.

2. Christopher Palaidis, as representative for Henry Angelo, attended the preperformance conference on October 18, 1977. Henry Angelo commenced exterior painting of the 20 base facilities on October 19, 1977.

3. Hangars 986 and 985 were two of the 20 base facilities at Patrick Air Force Base which were to be painted by Henry Angelo under its contract with Defendant. The two hangars are located side by side and such that the hangar doors face directly south, onto a parking lot. Hangar 985 is directly to the east of Hangar 986. The distance between 986 and 985 is 40 feet. At the time of plaintiffs' accident, electric power to service 986 and 985 came off the main power from a pole (the main power line pole) located at the south side of the parking lot. From that pole, the power line ran north to a pole (the dip pole) located between the two hangars, 11 feet 2 inches from the west edge of 985 and 28 feet 10 inches from the east edge of 986, and then split to service each building. The power line between the two poles was composed of number four gauge bare copper wire and carried over 7,000 volts of electricity. The height of the two conductors on each of the two poles was 32 feet 6 inches and 29 feet 9 inches, with the span between the two poles measuring 265 feet. The hangar doors were 32 feet 6 inches high, the metal scaffold was 29 feet 9 inches high and the lowest part of the electrical line was 22 feet 6 inches high. At the point where the scaffold came into contact with the power line, the power line was 27 feet, 6 inches high.

4. At the time of the accident defendant owned and operated the power line running between the main power pole and the dip pole. There were no signs posted to warn that the high voltage power line was uninsulated and the painters were given no oral warnings to that effect.

5. On the morning of December 13, 1977, a Tuesday, Henry Angelo started painting 986 and began painting 985 on December 15, 1977. On December 15, 1977 employees of Henry Angelo had finished painting the east side of 986 and the west side of 985 (the area between the two hangars and in the immediate vicinity and on two sides of the dip pole).

6. Friday, December 16, 1977 started out as a wet day and for that reason Henry Angelo employees could not commence work until approximately 9:30 A.M. That morning the employees were using a metal scaffolding to paint the top of the hangar doors and the track controlling said doors of hangar 986. Henry Angelo had rented the scaffold from Brevard Rentals and had erected it at the job site. The base of the scaffold measured six feet square. After a lunch break, painting was resumed at approximately 12:30 P.M. with the sun directly overhead. The painters had completed their work on the top of the hangar doors and door track of 986 just before lunch and were about to begin painting the top of the hangar doors and door track of 985.

7. Palaidis, who was supervisor on the job, and Lewis began moving the scaffolding east toward hangar 985. Neither Palaidis nor Lewis looked up and neither had noticed that the scaffold was higher than the power line at that spot.

8. As plaintiffs were moving the scaffold, the top of the scaffold came in contact with the overhead power line. Electricity from the power line traveled down through the scaffold and into plaintiffs, seriously burning them.

9. Palaidis was born April 23, 1937 and had worked for Henry Angelo on various painting contracts from 1967 to the time of the accident, when he was serving as job supervisor. Palaidis suffered severe burns to his scalp, hip and leg. He now needs braces to stand up and uses crutches to walk.

10. Lewis was born March 21, 1955 and had had 2½ years of painting experience before becoming employed with Henry Angelo. He had been working with Henry Angelo for two months before the accident but had had no painting experience involving scaffolds prior to starting to paint with Henry Angelo. Lewis suffered severe burns to his scalp and arm, leaving him permanently injured.

11. Henry Angelo had delegated the responsibility of carrying out appropriate safety measures to Palaidis on this particular contract. On two occasions, both within a month prior to the accident, defendant had to warn Henry Angelo employees of the danger of painting too close to electric wires. On one occasion, defendant's foreman, Clifford Guerry, discovered a painter on a ledge leaning over and painting within a few inches of an electric connection. On another occasion, Palaidis and another painter working with a 20 foot aluminum ladder, were found in a 12 foot by 15 foot enclosure located next to building 313. Even though signs were posted warning that high voltage transformers were located inside the enclosure, the painters had not requested a power outage prior to painting inside that area.

12. Under the contract, Henry Angelo was required to provide for the safety of its employees by complying with the safety requirements of the Corps of Engineers Manual, EM 385-1-1. In pertinent part, the contract provides:

"(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 shall comply with all pertinent provisions of Corps of Engineers Manual, EM 385-1-1, dated 1 June 1977, entitled `General Safety Requirements', as 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."

Defendant's Exhibit No. 10, Clause 7-602.42, Armed Services Procurement Regulation (June 1977).

In pertinent part, the Corps of Engineers Manual provides:

"22.J.03. Extreme caution shall be taken where metal scaffolds are used in the vicinity of energized electrical circuits.

22.J.29. When free-standing mobile scaffold towers are used, the height shall not exceed four times the minimum base dimension."

Defendant's Exhibit No. 11, General Safety Requirements Manual, EM 385-1-1 (1 June 1977).

13. Henry Angelo employees were invitees of defendant, and, as such, defendant landowner had the duty of using due care in maintaining its premises during the time plaintiffs were painting the exteriors of the 20 base facilities and to warn plaintiffs of hidden dangers known to the owner but not known to plaintiffs. Quinnelly v. Southern Maid Syrup Company, 164 So.2d 240 (2d Fla. DCA 1964). Plaintiffs have not proved that defendant United States breached such duty. The existence of the uninsulated overhead power line would have been clearly visible to plaintiffs if they had been exercising reasonable care for their own safety and had looked up. Defendant breached no duty of care in failing to give plaintiffs warning of the location of the power line.

14. Plaintiffs were not engaged in an inherently dangerous activity. Even assuming, arguendo, that plaintiffs had been engaged in an inherently dangerous occupation, defendant still would have breached no duty of care since plaintiffs have proved no positive act of negligence or negligent omission on the part of defendant which caused plaintiffs' injuries.

15. Employees of Henry Angelo, including Palaidis, had been warned by defendant on two occasions, within a month prior to the accident, of the danger of painting close to electrical connections. Palaidis had had nearly 10 years of work experience with Henry Angelo prior to the accident, much of that experience involving government contracts, and was in charge of painting 986 and 985.

16. Plaintiffs were negligent in failing to comply with two provisions of the Corps of Engineers Manual. Plaintiffs failed to exercise extreme caution when using a metal scaffold in the vicinity of the power line and the scaffold height did exceed by five feet nine inches the maximum height allowed — four times the minimum base dimension, or 24 feet....