Phillips v. U.S., 91-8040
| Decision Date | 30 March 1992 |
| Docket Number | No. 91-8040,91-8040 |
| Citation | 956 F.2d 1071 |
| Parties | Steven Paul PHILLIPS and Phyllis Diane Phillips, Plaintiffs-Appellees, v. UNITED STATES of America, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Stuart M. Gerson, Asst. Atty., Gen., Civ. Div. Torts Branch, Washington, D.C., Paul F. Figley, Asst. Director, Gail K. Johnson, Stephen E. Handler, Trial Attys., Torts Branch, Dept. of Justice, Washington, D.C., for defendant-appellant.
Marc T. Treadwell, Chambless, Higdon and Carson, Paul M. Knott, Manley F. Brown, O'Neal, Brown & Sizemore, Macon, Ga., for plaintiffs-appellees.
Appeal from the United States District Court for the Middle District of Georgia.
Before JOHNSON, * CLARK, * and PECK, ** Senior Circuit Judges.
Steven and Phyllis Phillips brought this action pursuant to the Federal Tort Claims Act [FTCA], 28 U.S.C. §§ 1346(b), 2671-2680 (1988). After a bench trial, the district judge determined that the Army Corps of Engineers [Army Corps] had been negligent in its inspections of scaffolds in aircraft hangar extensions at Robins Air Force Base in Georgia. The district court further found that the Army Corps's negligence was the proximate cause of an accident in which Steven Phillips fell from the scaffolds.
The United States argues that the district court committed three errors. First the United States contends that the trial court erred in determining that the discretionary function exception to the FTCA, 28 U.S.C. § 2680(a) (1988), did not apply to the Army Corps's conduct. Second, the United States contends that the court erred in failing to determine that the Phillipses' suit was barred by the independent contractor exception to the FTCA, 28 U.S.C. § 2671 (1988). Third, the government contends that the trial court erred in determining that the United States owed Steven Phillips an actionable duty under Georgia law. For the reasons stated below we find that the district court did not err in reaching its conclusions. Accordingly, we affirm.
The trial judge found the following facts. The construction project at Robins Air Force Base involved enlarging four aircraft hangars. Connor-Harben Construction Company [Connor-Harben] was the general contractor for the project; Plasteel Construction Company [Plasteel] was the subcontractor responsible for installing metal siding on the aircraft hangars. Plasteel employed Plaintiff-Appellee Steven Phillips. By July 1987 the contractors had completed two of the four hangars. Phillips was working on the third hangar. When the scaffolds collapsed on July 9, 1987, Phillips had not yet completed his first week on the job.
The Army Corps was not actively engaged in the construction work of the project at Robins Air Force Base. The contractors were responsible for the construction of the project and supervision of employees. The Army Corps's responsibilities, however, included assurance of job safety and accident prevention. At trial the Army Corps's resident engineer at Robins Air Force Base, Elton Cobb, testified that his office had the responsibility for assuring "safety with a dedicated commitment to free the job site of unsafe conditions and activities which may result in injury."
Before work began on the project, the Army Corps required its general contractor, Connor-Harben, to prepare a "job hazard analysis" for each phase of the construction. The district court concluded that after the contractor prepared the "job hazard analysis", the Army Corps was responsible for reviewing the analysis and ascertaining its adequacy, and that the job hazard analysis should have addressed the anchorage system for the suspended scaffolds. The district court found that the analysis did not mention suspended scaffolds. The Army Corps did not report that the job hazard analysis was inadequate.
At a "mutual understanding meeting" between the Army Corps and Connor-Harben, the Army Corps informed the general contractor that the company's Chief of Quality Control [CQC] would be required to submit daily "quality control reports", which were to include the results of all safety inspections. The daily quality control reports were submitted to an Army Corps employee known as a "Quality Assurance Representative" [QAR]. In his testimony the QAR's immediate supervisor and the Army Corps's Chief of Quality Assurance, Doug McMillan, admitted that he and the QAR had the responsibility for reviewing the daily quality control reports and for insuring that the required inspections had been performed. The district court found that prior to the beginning of Phillips's work shift on the day of the collapse of the scaffolds, no inspections of the scaffolds were documented. Prior to Phillips's shift, Connor-Harben's CQC, David Andrews, did not submit a quality control report concerning the suspended scaffolds. The Army Corps's QAR testified that he could not recall if he or anyone else had inspected the anchorage system of the scaffolds prior to Phillips's shift.
In addition the court found that in February 1987 the Army Corps's resident engineer, Elton Cobb, prepared a document entitled "Accident Prevention Plan of Action"; the document details specific responsibilities for Cobb, McMillan, and the QAR. This document lists among its requirements that these men perform "field safety inspections every time they visit a construction site"; it requires them "to take necessary action to insure that corrective measures are taken as needed."
The district court further found that to assist its employees in carrying out their duties, Army Corps personnel used the Corps's Safety Manual, which was received in evidence. The Army Corps's Safety Manual requires that the anchorages of suspended scaffolds be inspected prior to each work shift. According to the Safety Manual Connor-Harben's CQC, Andrews, had the duty to perform inspection of the scaffolds. The Army Corps had the duty to review the reports of the inspections. Furthermore, the Safety Manual requires a secondary means of anchorage for suspended scaffolds. Both Cobb and McMillan admitted that if they had known that the contractors used methods of anchoring scaffolds by suspending them from door rails without a secondary means of anchorage, then they would have stopped work and required a safer means of anchorage.
The trial court determined that Army Corps employees observed the scaffolds and the means of anchorage on several occasions as the scaffolds were suspended from the door rails. In reports in August and September 1986 (approximately ten months before Phillips's accident), an Army Corps QAR inspected the scaffolds. At first he declared that the anchorage of the scaffolds was "questionable". Later, the QAR amended his opinion and concluded that the means of anchorage for the scaffolds was "okay". The district court found that Army Corps representatives had ample opportunity to inspect the scaffolds' anchorage system.
The district court found that when working on the front of a hangar, the scaffolds were suspended from the underside of the overhang of the hangar's roof, and that because the Army Corps did not require Plasteel to use a secondary means of anchorage for its scaffolds, the company did not do so. The court determined that the scaffolds fell because they were not properly anchored on July 9, 1987 and because no secondary means of anchorage was employed. Steven Phillips sustained serious and permanent injuries as a result of his fall from the scaffolds as they collapsed. He incurred substantial medical expenses as well.
The district court concluded that the Army Corps had specific responsibilities with regard to the construction project's safety. See Federal Acquisitions Regulations System, Solicitation Provisions and Contract Clauses, 48 C.F.R. § 52.236-13 (1991). The court found that the Army Corps was required to insure that the means of anchorage of suspended scaffolds was inspected; furthermore, the judge found that Army Corps personnel were required to inspect the scaffolds on field inspections, and that the Army Corps failed to correct the scaffolds' safety violations. The district court held that the Army Corps discharged its safety responsibilities negligently. The district court awarded Steven Phillips $452,214.28 in economic damages and $500,000.00 for pain and suffering; the court awarded his wife, Phyllis Phillips, $100,000.00 for loss of consortium.
The FTCA imposes civil liability on the United States "for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, 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). The FTCA contains several exceptions to the Act's broad waiver of sovereign immunity, however. See e.g. 28 U.S.C. §§ 2671-2680.
In the Supreme Court's most recent decision concerning the discretionary function exception to the FTCA, the Court reaffirmed the principle that the exception only covers government conduct that involves an element of judgment or choice. United States v. Gaubert, --- U.S. ----, 111 S.Ct. 1267, 1273, 113 L.Ed.2d 335 (1991); see also Berkovitz v. United States, 486 U.S. 531, 536, 108 S.Ct. 1954, 1958, 100 L.Ed.2d 531 (1988). In Gaubert, the Court indicated that the critical questions to ask in assessing the applicability of the exception are: 1) whether or not the conduct of the individuals employed by the government agency involved any permissible exercise of policy judgment, and 2) whether or not that judgment is of the kind that the discretionary function was designed to protect. Gaubert, --- U.S. at ----, ...
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