Raymer v. United States
| Decision Date | 19 October 1979 |
| Docket Number | No. C 76-0119-L(B).,C 76-0119-L(B). |
| Citation | 482 F. Supp. 432 |
| Parties | Gwynith RAYMER, Administratrix of the Estate of Ronald Latney Raymer, Deceased, Plaintiff, v. UNITED STATES of America, Defendant. Marilyn GILL, Administratrix of the Estate of David R. Gill, Deceased, Plaintiff, v. UNITED STATES of America, Defendant. |
| Court | U.S. District Court — Western District of Kentucky |
Harold M. Streets, Greenville, Ky., Charles A. Williams, Paducah, Ky., for plaintiff Raymer.
William P. Hurley, Edward Ewen, Jr., Louisville, Ky., Vaughn & Vaughn, Henderson, Ky., for plaintiff Gill.
James P. Klapps, Asst. Director, Raymond A. Nowak, Charles E. Mandolia, Trial Attys., Torts Branch, Dept. of Justice, Washington, D. C., Albert Jones, U. S. Atty., Mikell Grafton, Asst. U. S. Atty., Western Dist., Louisville, Ky., for defendant United States.
MEMORANDUM CONTAINING FINDINGS OF FACT AND CONCLUSIONS OF LAW
This matter was heard by the Court without a jury on November 30 and December 1, 1978. It is now before the Court for findings of fact, conclusions of law and entry of a judgment.
(1) Plaintiff, Gwynith Raymer, is the duly qualified administratrix of the estate of Ronald Raymer, deceased, and Marilyn Gill is the duly qualified administratrix of the estate of David R. Gill, deceased. (Stipulation with respect to facts, exhibits and certain other matters filed November 30, 1978 hereafter "Stipulation", Para. 11.) Plaintiffs' decedents met their deaths from injuries sustained when a 988 front end loader overturned on January 8, 1972 (Stipulation, Para. 7). Ronald Raymer's date of birth was March 17, 1951, and his funeral expenses amounted to $3070.00 (Stipulation, Para. 10). David Gill's date of birth was January 21, 1945, and his funeral expenses were $1656.75 (Stipulation, Para. 9). No claim is asserted by either plaintiff for pain and suffering prior to death of her intestate (Stipulation, Para. 8).
(2) On January 8, 1972, at about 4:00 p. m., plaintiffs' decedents reported for work at Peabody Coal Company's Sinclair Mine, Drakesboro, Muhlenberg County, Kentucky. They were instructed by their immediate superior to take the 988 front end loader to the 4500 Pit to extricate a truck which had become mired in the mud. They apparently became confused and drove on several roads that did not lead to the 4500 Pit. At about 5:45 p. m. Robert Millard, an electrician, found skid marks on the TVA levee. He stopped his truck and saw the 988 front end loader lying on its top at the foot of an embankment. He called for help and a crane was brought to the area and the front end loader was turned upright. Plaintiffs' decedents were removed from the cab and taken to Muhlenberg County Hospital, where they were pronounced dead on arrival (Depo. Troy Wills, Exhibit E, p. 4).
(3) It was impossible to determine who had been driving the front end loader at the time it overturned. The levee on which the accident occurred was used both by mine employees and TVA employees (Transcript of Evidence, Volume 1, pp. 141, 160, 165, 186, 197, 202; Transcript of Evidence, Volume 2, p. 63). The front end loader was used any place it was needed. It was not restricted to the shop area (T.E. Volume 1, pp. 167, 196, 205; T.E. Volume 2, p. 39).
(4) The front end loader was not equipped with a roll over protection structure (ROPS) (Stipulation, Para. 5).
(5) The roadway on which the accident occurred did not have berms or guardrails (Stipulation, Para. 6), and it was elevated 27 feet above the natural terrain (Wills Depo., Exhibit E, p. 5).
(6) On August 10, 1971, Federal Inspector Troy Wills issued a notice of violation of 30 C.F.R. Section 77.403 which requires ROPS on mobile equipment (Depo. Troy Wills, p. 12, Exhibit B-1). The notice directed that the violation "shall be totally abated by 8:00 a. m. on September 13, 1971" (Depo. Troy Wills, pp. 14 and 15, Exhibit B-1). On September 13, 1971, the violation was not abated but an extension was granted to October 13, 1971, because the company stated that it had ordered ROPS (Depo. Troy Wills, p. 15). The copy of the order given by the company to Wills did not have the name of any company from which the ROPS were ordered (Depo. Troy Wills, p. 16, Exhibit C). Instead of granting the extension Wills could have ordered the equipment removed from service (Depo. Troy Wills, p. 19). Further extensions were granted to the company on October 13, 1971, November 10, 1971, December 9, 1971, and January 6, 1972 (Depo. Troy Wills, p. 20). On February 3, 1972, after the fatal accident, the equipment was ordered removed from service (Depo. Troy Wills, p. 20), and by February 16, 1972, all equipment at the mine had ROPS (Depo. Troy Wills, p. 22). From August 10, 1971, Wills knew that the order for ROPS had not been placed (Depo. Troy Wills, pp. 25-26).
(7) The extensions referred to above were granted after company employees exhibited a "Mine Purchase Order" to the federal inspector. The purchase order was unsigned and was not directed to any vendor but the suggested vendor was designated "Best Place" (Depo. Troy Wills, Exhibit C).
(8) About 200 ROPS were sold by Whayne Supply Company (Whayne) between June 1, 1971, and December 31, 1971. The ROPS were delivered within 30 to 45 days from the date of the order (T.E. Volume 1, pp. 84-86). Whayne did not receive an order for ROPS from Peabody for its Sinclair Mine before the accident in question (T.E. Volume 1, p. 91).
(9) At the time of their deaths, Ronald Raymer's life expectancy was 52.55 years and David Gill's life expectancy was 46.95 years.
(10) Ronald Raymer's gross income in 1970 was $13,970.10 and in 1971 was $15,625.50, an average for the 2 years of $14,797.80 (Gwynith Raymer's Answer to Interrogatories No. 38, first set of Interrogatories propounded by defendant Feb. 20, 1974).
(11) Ronald Raymer had an anticipated work life of 45 years. Disregarding any inflationary factor or accretion in his earning capacity, he had an anticipated gross income during that period of $665,901.00.
(12) David Gill's gross income in 1970 was $14,394.32 and in 1971 was $14,840.02, for an average income for the 2 years of $14,617.17. (Marilyn Gill's Answer to Interrogatory No. 28, first set of Interrogatories propounded by defendant February 15, 1974).
(13) David Gill had an anticipated work life of 39 years. Disregarding any inflationary factor or accretion in his earning capacity, he had an anticipated gross income during that period of $570,069.63.
(14) The total damage suffered by the plaintiff, Gwynith Raymer, for the destruction of Ronald Raymer's power to labor and earn money and his funeral expenses is $668,971. The total damage suffered by plaintiff, Marilyn Gill, by reason of the destruction of David Gill's power to labor and earn money and his funeral expenses is $571,726.38.
(15) The substantial factors which caused and brought about the deaths of Raymer and Gill were the absence of ROPS and the absence of berms or guardrails on the elevated roadway at the scene of the accident.
(16) There is no evidence in the record to support the allegation of contributory negligence raised by the defendant.
(1) The Court has jurisdiction over the parties and the subject matter of this action. Title 28 U.S.C. Section 1346(b).
(2) The liability of the defendant is to be determined according to the law of Kentucky. Title 28 U.S.C. Sections 1346(b) and 2674. See also Hess v. United States, 361 U.S. 314, 80 S.Ct. 341, 4 L.Ed.2d 305 (1960).
(3) The statute in effect on the date of the accident read in pertinent part:
(4) The regulations adopted by the Secretary may be found at 30 C.F.R. Section 77.403a:
30 C.F.R. 77.1605(k) reads as follows: "Berms or guards shall be provided on the outer bank of elevated roadways."
(5) "Imminent danger" means the existence of any...
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