Petznick v. United States

• Decision Date: 05 December 1983
• Docket Number: No. CV 81-0-277.,CV 81-0-277.
• Citation: 575 F. Supp. 698
• Parties: Wesley PETZNICK and Commercial Union Insurance Company, Plaintiffs, v. UNITED STATES of America, Defendant and Third-Party Plaintiff, v. OK ELECTRIC COMPANY, INC., Third-Party Defendant.
• Court: U.S. District Court — District of Nebraska

575 F. Supp. 698

Wesley PETZNICK and Commercial Union Insurance Company, Plaintiffs, v. UNITED STATES of America, Defendant and Third-Party Plaintiff, v. OK ELECTRIC COMPANY, INC., Third-Party Defendant.

No. CV 81-0-277.

United States District Court, D. Nebraska.

December 5, 1983.

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Robert A. Skochdopole, William M. Lamson, Jr., Patricia A. Zieg, Omaha, Neb., for plaintiff Wesley Petznick.

Richard E. O'Toole, Omaha, Neb., for plaintiff Commercial Union Ins. Co.

Paul J. Johns, Omaha, Neb., for defendant and third-party plaintiff U.S.

Milton A. Katskee, Omaha, Neb., for third-party defendant OK Elec. Co., Inc.

BEAM, District Judge.

In this action under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b) and 2671 et seq. (the Act), plaintiff, Wesley Petznick, seeks damages for injuries sustained on May 26, 1979, while he was working on high voltage electrical transmission lines on the premises of Offutt Air Force Base, Omaha, Nebraska. Plaintiff, a journeyman electrician, was employed by OK Electric Company, Inc. (OK Electric), a party to contract number F25600-78-C0045 with the United States Air Force. The contract required OK Electric to replace certain switchgear in Building 304, the main electrical substation at the base, in connection with Offutt Project Number 77-0069.

Negligence of the United States

Under sections 2672 and 2674 of the Federal Tort Claims Act, the "United States shall be liable ... in the same manner and to the same extent as a private individual under like circumstances" for injury "caused by the negligent or wrongful act or omission of any employee" of a federal agency. Liability arises "under circumstances where the United States, if 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), 2672.

Thus, the tort liability of the United States is determined with reference to the law of the state in which the allegedly tortious conduct occurred, in this case Nebraska. Garber v. United States, 578 F.2d 414, 415 (D.C.Cir.1978); Bowen v. United States, 570 F.2d 1311, 1315-17 (7th Cir. 1978). Similarly, the manner in which state law treats defenses such as contributory or comparative negligence is also incorporated into the determination of liability under the Act. Bowen, 570 F.2d at 1319-20; McCormick v. United States, 539 F.Supp. 1179, 1182 (D.Colo.1982); Insurance Co. of North America v. United States, 527 F.Supp. 962, 967 (E.D.Ark.1981).

Plaintiff was injured when he and a co-worker were engaged in stringing a new span of wires between poles 7-2 and 7-145 of the Offutt Air Force Base electrical system. He incurred serious electrical burns, loss of limb and permanent disability as the result of the passage of electrical current from an overhead span of wires through a jumper cable, plaintiff's body, an uninsulated bucket in which he was working, to the ground. Plaintiff argues that his inadvertent contact with the electrical current was proximately caused by the negligence of the United States.

Plaintiff's many specifications of negligence may be condensed to three major allegations of negligent conduct by the United States. He charges that the defendant: (1) failed to de-energize the power lines on and near plaintiff's work area; (2) failed to supervise the work adequately, specifically by failing to implement or to require the implementation of appropriate safety measures and procedures for the protection of business invitees performing hazardous activity on government premises, and (3) failed to install certain safety equipment, specifically a ground fault circuit interrupter.

Defendant has denied any negligence and raises a number of affirmative defenses. First, defendant contends that it was performing a discretionary function, for which it may not be sued, in permitting plaintiff to work on energized lines, in determining the degree of supervision to exercise over employees of OK Electric and in declining to install a ground fault circuit interrupter. See 28 U.S.C. § 2680(a). Under section 2680(a), the United States has retained its sovereign immunity from liability based on the negligent "exercise or performance or the failure to exercise or perform a discretionary function or duty."

The essence of a discretionary function involves the formulation of governmental policy, i.e., the making of executive and administrative decisions at a planning rather than an operational level. Thus, the United States does not enjoy immunity from liability for the want of due care by its personnel in the implementation at the operational level of policy choices previously made, often by others. Dalehite v. United States, 346 U.S. 15, 26-36, 73 S.Ct. 956, 963-68, 97 L.Ed. 1427 (1953); Madison v. United States, 679 F.2d 736, 738-41 (8th Cir.1982); Lakeland R-3 School Dist. v. United States, 546 F.Supp. 1039, 1042-43 (W.D.Mo.1982).

Under this analysis, the award of a government contract to an allegedly inappropriate contractor and the promulgation of safety regulations to govern work by contractors have been considered planning level acts reflecting policy decisions immune from judicial review. Madison, 679 F.2d at 739-41. On the other hand, the failure to enforce a contractor's compliance with such safety rules has been regarded as operational level conduct for which the United States may be sued. Id. See also, Allnut v. United States, 498 F.Supp. 832, 835-38 (W.D.Mo.1980).

In the present case, certain policies of the United States Air Force with respect to the performance of electrical work at Offutt Air Force Base are defined in Air Force Pamphlet No. 85-1, "Electrical Facilities Safe Practices Handbook" and the "SAC Supplement 1" (AFP 85-1 and SAC Supplement). Plaintiff does not challenge the sufficiency of the safety standards embodied therein, but urges that the manner in which the United States permitted the work to proceed violated the policies prescribed by AFP 85-1 and the SAC Supplement.

The Eighth Circuit has previously decided that the discretionary function exception does not apply to "allegations that government employees ignored or failed to comply with regulations or policies designed to guide their actions in the particular situation." Bergmann v. United States, 689 F.2d 789, 792 (8th Cir.1982) and cases cited therein. More specifically, the Court has ruled that the failure of the United States to require an independent contractor to conduct inherently dangerous or ultrahazardous activity in compliance with applicable safety precautions amounts to operational level decision-making which is not immune from suit under the Act. Madison, 679 F.2d at 740-41.

The Court finds, therefore, that the Offutt Air Force Base Electrical Superintendent was not formulating policy when he decided to allow the work to be performed on energized lines in this case. The same is true for the degree of supervision actually exercised by Air Force officials over the manner in which the work was performed, including the failure to implement the previously prescribed safety measures. As to these allegations of negligence, the discretionary function exemption of 28 U.S.C. § 2680(a) does not bar this suit. On the other hand, the decision whether or not to provide specific equipment in connection with the base electrical system, i.e., a ground fault circuit interrupter, is the kind of discretionary decision at a planning level, similar in character to formulation of safety specifications and procedures, which is immune from judicial review under section 2680(a).

Defendant next urges that it should be considered a "statutory employer" under the Nebraska Workmen's Compensation Law, Neb.Rev.Stat. §§ 48-101 et seq. (1978), and that it is therefore immune from liability on state law grounds. In this regard, defendant relies on the fact that as part of its contract with plaintiff's employer, the United States required OK Electric to obtain workmen's compensation insurance. The United States reasons that the cost of such insurance was therefore implicitly included in OK Electric's bid price for its electrical work. Consequently, the United States urges that it has indirectly paid for the workmen's compensation coverage provided to plaintiff, and that as a result, it is entitled to the immunity from suit enjoyed by immediate employers under Neb.Rev.Stat. § 48-111 (1978).

For this proposition defendant cites Thomas v. Calavar Corp., 679 F.2d 416 (5th Cir.1982); Griffin v. United States, 644 F.2d 846 (10th Cir.1981); Roelofs v. United States, 501 F.2d 87 (5th Cir.1974), cert. denied, 423 U.S. 830, 96 S.Ct. 49, 46 L.Ed.2d 47 (1975), and Olveda v. United States, 508 F.Supp. 255 (E.D.Tex.1981). These decisions, however, turned upon express statutory provisions of Louisiana, Kansas and Colorado law which include within the definition of an "employer" who is liable for workmen's compensation coverage, a principal who employs a contractor to perform work which is part of the principal's trade, business or occupation. In such event, the principal is liable, as a statutory employer, to the contractor's employees for workmen's compensation coverage but is not liable in tort. The employee is therefore provided with "two debtors" from whom he can obtain workmen's compensation, and both employers, in return, enjoy exemption from certain tort liability. One reason cited for affording the United States the protection of these specific statutory provisions is that it has indirectly borne the cost of its contractors' workmen's compensation insurance.

Nebraska's definition of a "statutory employer," however, is much narrower. The Nebraska workmen's compensation scheme neither assigns workmen's compensation liability to principals who hire contractors to perform work within the principal's trade or business, nor does it recognize as a statutory employer one who ultimately bears...