Raymer v. United States, No. C 76-0119-L(B).

CourtUnited States District Courts. 6th Circuit. United States District Court of Western District of Kentucky
Writing for the CourtBALLANTINE
Citation482 F. Supp. 432
PartiesGwynith 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.
Decision Date19 October 1979
Docket NumberNo. C 76-0119-L(B).

482 F. Supp. 432

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.

No. C 76-0119-L(B).

United States District Court, W. D. Kentucky, Louisville Division.

October 19, 1979.


482 F. Supp. 433

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

BALLANTINE, District Judge.

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.

FINDINGS OF FACT

(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'

482 F. Supp. 434
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...

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2 practice notes
  • Raymer v. U.S., No. 80-3033
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • October 9, 1981
    ..."imposes a duty on the defendant to see that mine safety regulations are vigorously and meticulously enforced." Raymer v. United States, 482 F.Supp. 432, 436 (W.D.Ky.1979). The breach of this duty which resulted in liability was stated thus: "In the case at bar, the Court finds that the aff......
  • Taylor v. United States, Civ. A. No. 81-0018-0(G).
    • United States
    • United States District Courts. 6th Circuit. United States District Court of Western District of Kentucky
    • August 7, 1981
    ...risk of harm. See, Restatement, Law of Torts 2d, Section 323." 455 F.Supp. at 166. The Raymer Court (after a trial without a jury at 482 F.Supp. 432 (1979)) was aware of the Holland decision, but found it factually distinguishable. The plaintiff places substantial reliance on Raymer, and co......
2 cases
  • Raymer v. U.S., No. 80-3033
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • October 9, 1981
    ..."imposes a duty on the defendant to see that mine safety regulations are vigorously and meticulously enforced." Raymer v. United States, 482 F.Supp. 432, 436 (W.D.Ky.1979). The breach of this duty which resulted in liability was stated thus: "In the case at bar, the Court finds that the aff......
  • Taylor v. United States, Civ. A. No. 81-0018-0(G).
    • United States
    • United States District Courts. 6th Circuit. United States District Court of Western District of Kentucky
    • August 7, 1981
    ...risk of harm. See, Restatement, Law of Torts 2d, Section 323." 455 F.Supp. at 166. The Raymer Court (after a trial without a jury at 482 F.Supp. 432 (1979)) was aware of the Holland decision, but found it factually distinguishable. The plaintiff places substantial reliance on Raymer, and co......

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