Phillips v. US

• Decision Date: 31 July 1992
• Docket Number: Civ. No. 89-1133.
• Citation: 801 F. Supp. 337
• Parties: Christopher L. PHILLIPS, Plaintiff, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — District of Idaho

801 F. Supp. 337

Christopher L. PHILLIPS, Plaintiff, v. UNITED STATES of America, Defendant.

Civ. No. 89-1133.

United States District Court, D. Idaho.

July 31, 1992.

Walter H. Bithell, Steven B. Andersen, Karl Brooks, Holland & Hart, Boise, Idaho, for plaintiff.

Maurice O. Ellsworth, U.S. Atty., Robert C. Grisham, Asst. U.S. Atty., D. Idaho, Boise, Idaho, for defendant.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

RYAN, District Judge.

I. INTRODUCTION

This non-jury, negligence action was brought by the plaintiff, Christopher L. Phillips, who suffered permanent injuries on June 6, 1985, when the tanker truck he was driving went off Boise National Forest Road 10384, commonly known as "Little Owl Road," near Lowman, Idaho. On May 15, 1989, the plaintiff filed suit against the United States, specifically the United States Forest Service (hereinafter "Forest Service"), and its agents and employees. The plaintiff alleges that the accident occurred because a portion of the road gave way, which forced the truck off the road and into the Crooked River below. The plaintiff claims that the accident was the direct result of negligence on the part of the Forest Service and its employees. This action is brought under the Federal Tort Claims Act, 28 U.S.C. §§ 2671 et seq.

Trial commenced on June 2, 1992, and concluded on June 11, 1992. The plaintiff was represented by the law firm of Holland & Hart. The defendant was represented by Robert C. Grisham, Assistant United States Attorney. The parties introduced oral and documentary evidence, and the court has considered and reviewed all pretrial briefs. The court, being fully advised, makes the following Findings of Fact and Conclusions of Law.

II. FINDINGS OF FACT

A. Stipulated Factual Issues

Prior to the trial, the parties stipulated to the following findings of fact:¹

1. Christopher Phillips was employed by Loomix, Inc., on June 6, 1985, as a truck driver. Before going to work for Loomix, Phillips had been a truck driver for five years.

2. On the date of his truck accident/crash, June 6, 1985, Phillips was working as a contractor's employee on the reconstruction of Boise National Forest Road 10384 ("the road" or "Crooked River Road" or "Little Owl Road").

3. Little Owl Road is a forest development road in the Boise National Forest.

4. The road parallels Edna Creek from State Highway 21 to its confluence with Crooked River at approximately milepost 1. From there, it parallels Crooked River through the accident/crash site.

5. In July of 1981, the Forest Service and Producers Lumber Company entered into a timber sale contract. Little Owl Road provided access to the area in which the logging was to occur. Pursuant to the contract, Producers was, in part, required to "reconstruct" a 6.35 mile stretch of Little Owl Road. The accident site lies within this portion of the road. A copy of the contract was attached as Exhibit A to the stipulation.

6. Producers entered into a contract with Burnett Construction Company, pursuant to which Burnett was to perform the roadwork required under the timber sale contract.

7. Pursuant to the contract, the 6.35 mile stretch of road was to be reconditioned pursuant to Forest Service Standard Specification 306 as amended by the contract, and aggregate was to be placed on that stretch pursuant to Forest Service Standard Specifications 304 and 212. The reconditioning work and the placement of aggregate was accomplished in August of 1984. Copies of these Forest Service Standard Specifications were attached as Exhibit B to the stipulation.

8. The contract also required that a dust palliative be placed upon the 6.35 mile stretch of the road and that the road be bladed prior to the placement of the dust palliative. This work was accomplished in June of 1985, prior to the date of the accident.

9. The Forest Service approved the reconstruction work performed in the area of milepost 5 prior to the date of the accident. No work remained to be done at the accident/crash site near milepost 5. At the time of the accident, the final acceptance inspection had not taken place.

10. Forest Service policy is set forth in the Forest Service Directive System, which consists of Forest Service handbooks and Forest Service manuals. Portions of the Forest Service Manual in effect for the period of time between the drafting of the plans and specifications for the reconstruction and the date of the accident of the accident/crash were attached as Exhibit C of the stipulation. A copy of the Transportation Engineering Handbook in effect for the period of time between the drafting of the plans and specifications and the accident/crash was attached as Exhibit "D" of the stipulation.

11. Copies of the contract daily diaries relating to the reconstruction of the 6.35 mile stretch of road were attached as Exhibit E of the stipulation.

12. At the time of the accident/crash, plaintiff was driving a white cabover Freightliner tanker, tandem-axle tractor unit. The tanker was carrying magnesium chloride.

13. Boise National Forest employees prepared the 1981 Lone Pine contract specifications and its incorporated roadwork drawings.

14. Forest Service employees Dean Carlson, Donald Jankovsky, and Jack VanHorn worked as inspectors during various phases of the reconstruction of the 6.35 mile stretch of road.

15. The Boise National Forest designated Don Jankovsky as the engineering representative under the contract on October 12, 1984. He, in turn, designated Jack VanHorn as one of his construction inspectors when he left for vacation in late May 1985. In 1984, during the road's reconditioning and surfacing, Dean Carlson carried out the duties of construction inspector.

16. A copy of the Forest Service sign inventory reflecting the signs which were on the road at the time of the accident, was attached as Exhibit F of the stipulation.

17. No signs or warnings existed warning of soft shoulders or soft road surfaces.

18. The principal business of Loomix, Inc., in 1985 was the bulk transportation of liquid fertilizer it manufactured at a plant in Nyssa, Oregon. Loomix dispatched a small fleet of tanker trucks and tractor-tank rigs to haul bulk liquids. It employed truck drivers, some of whom drove their own rigs and others of whom drove company-owned vehicles.

19. Phillips' first task for Loomix on June 3, 1985, was to drive a 1966 white Freightliner tanker truck from Nyssa to the Crooked River gravel pit. The white tanker truck was loaded with magnesium chloride brine. Loomix and Crazy Bob's were using the gravel pit, situated along the road about two miles from State Highway 21, as the loading point for brine into Crazy Bob's spray truck.

20. From June 3 to June 5, 1985, Phillips hauled brine in bulk from Wendover, Utah, to the gravel pit. Phillips made two round trips from the Crooked River gravel pit to the Great Salt Lake to load brine. On each trip he co-drove a tractor-tanker owned by David Salisbury, another Loomix driver. Returning on the night of June 5 from the second trip, Phillips parked Salisbury's loaded tractor-tanker rig in Idaho City, Idaho.

21. On June 6, 1985, the morning of his accident/crash, Phillips rode with Salisbury in the tractor-tanker to the gravel pit. There, he helped Salisbury and another Loomix employee, James Gerke, transfer the bulk brine from Salisbury's rig to the white Freightliner tanker truck Phillips had ferried to the gravel pit on June 3.

22. At about 1:00 p.m., Phillips headed out of the gravel pit behind the wheel of the Freightliner. He was alone in the truck's cab. He had never driven the road past the gravel pit. He followed Gerke, who was driving some distance ahead in a Loomix pickup. Gerke had told Phillips at the gravel pit that they would drive east up the road toward Little Owl Summit until they encountered the Crazy Bob's spray truck, driven by Robert Geier. Gerke did not know exactly where Geier would rendezvous with their two-truck caravan. As he left the gravel pit behind Gerke, Phillips knew only that he was to drive along the road until they encountered the Crazy Bob's spray truck.

23. Just before 1:30 p.m. on June 6, 1985, Gerke and Phillips had driven about seven miles up the road from the gravel pit. Varying his truck's speed from about 15 mph to about 25 mph, depending on the road's steepness and curvature, Phillips had usually kept Gerke's pickup in sight.

24. Phillips' truck rolled down the slope into the river, coming to rest on the driver's side after a three-quarter roll.

25. As a result of the rollover and accident/crash into Crooked River, Phillips suffered a C4-5 neck fracture.

26. Phillips was pinned in the truck's cab for over two hours with a C4-5 neck fracture. Gerke and Geier assisted in his rescue.

27. Boise County paramedics responded to the accident scene and worked to extract Phillips from the truck. Once removed, he was airlifted out of the Boise National Forest and transported to Saint Alphonsus Regional Medical Center (hereinafter "Saint Alphonsus") in Boise, Idaho. On admission to the emergency room, Phillips was found to be suffering severe hypothermia and CT-scan revealed a C4-5 fracture which resulted in quadriplegia. Phillips was also found to suffer from respiratory insufficiency for which he was treated with tracheostomy and subsequently bronchoscopy. On June 13, 1985, Dr. Patrick Cindrich performed a posterior cervical laminectomy with reduction, wiring and autologous oliac bone graft fusion. Phillips remained in the intensive care unit until June 24, 1985, when he was transferred to the neurosurgery unit. During his stay at Saint Alphonsus, he requested psychiatric counseling to cope with reactive depression.

28. Following discharge from Saint Alphonsus on July 17, 1985, Phillips was transferred to the Idaho Elks Rehabilitation Hospital (hereinafter "the Elks") in Boise. His prognosis upon admission to the Elks was noted as "guarded" by Dr. Leonard Young. During his...