Savic v. U.S.

• Citation: 918 F.2d 696
• Decision Date: 19 November 1990
• Docket Number: No. 89-1399,89-1399
• Parties: Tomislav SAVIC, Plaintiff-Appellee, v. UNITED STATES of America, Defendant and Third Party Plaintiff-Appellant, v. KOVILIC CONSTRUCTION COMPANY, INCORPORATED, Third Party Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 696

918 F.2d 696

Tomislav SAVIC, Plaintiff-Appellee, v. UNITED STATES of America, Defendant and Third Party Plaintiff-Appellant, v. KOVILIC CONSTRUCTION COMPANY, INCORPORATED, Third Party

Defendant-Appellee.

No. 89-1399.

United States Court of Appeals,

Seventh Circuit.

Argued Feb. 13, 1990.

Decided Nov. 19, 1990.

Francis J. Marasa, James J. Graney, Georgene M. Wilson, Sweeney & Riman, Chicago, Ill., Bogdan Martinovich, Ray & Glick, Libertyville, Ill., Kenneth A. Helmin, Thomas J. Karacie, Katz, Karacie & Helmin, Chicago, Ill., for plaintiff-appellee.

Anton R. Valukas, U.S. Atty., Gail C. Ginsberg, Mark A. Flessner, Asst. U.S. Attys., Office of the U.S. Atty., Nancy K. Needles, Asst. U.S. Atty., Office of the U.S. Atty., Civ. Div., Appellate Section, Chicago, Ill., for U.S James J. Graney, Sweeney & Riman, Chicago, Ill., for Kovilic Const. Co., Inc.

Before WOOD, Jr., COFFEY, Circuit Judges, and ESCHBACH, Senior Circuit Judge.

COFFEY, Circuit Judge.

The United States appeals the district court's finding of liability and the award of damages following a bench trial pursuant to the Illinois Structural Work Act, Ill.Rev.Stat. ch. 48, Pars. 60-69, and the Federal Tort Claims Act, 28 U.S.C. Secs. 2671-2680 in favor of Tomislav Savic. 702 F.Supp. 695. We reverse.

I. FACTS

Tomislav Savic had been employed as a roofing laborer for Kovilic Construction Co., Inc. ("Kovilic") for approximately two weeks prior to his fall from a ladder, in which he sustained injuries to his arm, ribs, kidney and hip. Kovilic had contracted with the United States to strip and re-roof the canopies covering loading docks on three warehouses at the Great Lakes Naval Training Station in Great Lakes, Illinois.

The standard United States Government construction contract was used on this project and placed the responsibility for proper safety and health precautions on the contractor. Kovilic, the contractor, was required to submit a safety plan for the project, and the parties stipulated that a pre-construction conference was held at which the government, among other things, discussed Kovilic's responsibility for the safety of his employees and the administration of the contract, as well as the applicable labor standards.

The government retained the authority under the contract for general oversight of the project, such as the ability to stop work for any safety violations observed and the authority to change the construction specifications during the performance of the work. In the Accident Prevention section of the contract, the "Contractor" (Kovilic) was required to take actions necessary to ensure a safe workplace, but the Government only had the responsibility to "notify the Contractor of any noncompliance with the foregoing provisions and the action to be taken. The Contractor shall, after receipt of such notice, immediately take corrective action." At a later point in that section, the contract provided: "If the Contractor fails or refuses to comply promptly, the Contracting Officer may issue an order stopping all or part of the work until satisfactory corrective action has been taken."

The government employed two experienced construction inspectors whose responsibilities included general overseeing responsibilities of Kovilic's performance and ensuring quality control during the term of the contract. One of the inspectors, Mr. James Skonie, was a government employee, and the other, Mr. Joseph Szyszka, was an employee of an independent contractor.

On the particular portion of the roofing job where Savic was injured, Kovilic's workers climbed to the roof via an aluminum extension ladder. Even though there was a conflict in testimony between the government's construction representative and other witnesses dealing with the method of how the ladder was secured, the judge failed to state why he chose to believe that the ladder was attached by nails, rather than wire in spite of the fact that James Skonie, one of the government's construction representatives, testified that he recalled the ladder being tied and secured at the top with wire. There was also conflicting testimony at trial on the question of whether attaching the top of the ladder with nails was the safest method, but the two construction representatives and the plaintiff's ladder expert did agree that this method would have prevented the ladder from moving sideways and thus would have prevented the accident. At trial Savic testified that at the beginning of the work day on the morning of August 10, 1981 he climbed the ladder, and that the ladder was attached to the roof, as it had been in the past, and further, that he and one of his As a result of the fall, Savic injured his left elbow, fractured four ribs, damaged his left kidney as well as his left hip. After being awarded worker's compensation for his claim against Kovilic, Savic filed suit against the United States claiming violations of the Illinois Structural Work Act and common law negligence. The United States filed a third-party complaint against Kovilic Construction, on the grounds of common law indemnity, and later amended the third party complaint to include a claim under the Contribution Among Joint Tortfeasors Act, Ill.Rev.Stat. ch. 70, pars. 301-305. Over four years after the filing of the original third-party complaint, the trial judge refused to allow a further amendment by the United States, a claim against Kovilic for contractual indemnity, because of the lapse in time. Kovilic was dismissed from the action prior to trial after settling directly with Savic. Savic v. United States, 689 F.Supp. 854 (N.D.Ill.1988).

co-workers moved a tar pipe ¹ immediately prior to his accident. Moving the tar pipe necessitated the detachment of the ladder from the roof momentarily in order that the pipe might be passed behind it. Although it is unclear from the evidence whether Savic or his co-worker detached the ladder, it is clear that it was not reattached to the roof after the pipe had been moved. Immediately after moving the pipe, Savic was summoned by his supervisor (Nic Kovilic) to help him move some insulation on the ground. As Savic stepped on the ladder to descend, the ladder moved sideways, catapulting Savic to the ground, some eighteen feet. ²

The court trial was bifurcated as to the issues of liability and damages. In the liability phase of the trial, the trial judge found the United States to be liable under the Illinois Structural Work Act but did not find common law negligence on the part of the United States. In its oral decision, the court found that the United States "had charge of" the project on which Kovilic was working, according to the Illinois Structural Work Act, because the government participated in the work beyond merely owning the property or employing an independent contractor, citing Phillips v. United States, 792 F.2d 639 (7th Cir.1986). The court further found that the method of attaching the ladder with nails to the building was an improper method of securing the ladder, was inadequate, and this was the proximate cause of Savic's injuries. The court also reasoned that the United States had willfully violated the Act, as the term "willful" is used under the Illinois Structural Work Act, in allowing this method of ladder attachment. Although the government inspectors' testimony conflicted on the question of whether the ladder was secured with nails or wire, both inspectors nonetheless agreed that attaching the ladder with nails would have complied with safety requirements. Despite extensive testimony in the record regarding the adequacy of the method of attachment using nails, the judge discounted the testimony of the government's expert witnesses, who testified concerning the attachment of the ladder and instead cited his "great deal of experience on ladders" as the basis for his findings. ³

After having found liability on the part of the United States, the judge received evidence regarding Savic's damages, finding that Savic had sustained damages in the amount of $523,087.00. ⁴ After subtracting the $100,000.00 which Savic received as a result of the settlement with Kovilic, judgment was entered against the United States in the amount $423,087.00. The United States appealed.

II. DISCUSSION

This case arises under the Federal Tort Claims Act, 28 U.S.C. Secs. 2671-2680 ("FTCA"). The law which is to be applied is the law of the State of Illinois, "the law of the place where the act or omission occurred." 28 U.S.C. Sec. 1346(b).

The trial judge found that the United States was liable pursuant to the Illinois Structural Work Act, Ill.Rev.Stat. ch. 48, pars. 60-69. ⁵ In order to find liability under the Structural Work Act, the plaintiff must prove all of the following:

"(1) The plaintiff was engaged in or was passing under or by a structural activity; (2) the activity was being performed with reference to a structure; (3) a scaffold or other mechanical device was being used; (4) a defect existed in the construction or use of the device; (5) the defect proximately caused the plaintiff's injuries; (6) the defendant had charge of the work being performed; and (7) the defendant willfully violated the Act's safety standard."

Fisher v. Crippen, 144 Ill.App.3d 239, 98 Ill.Dec. 183, 493 N.E.2d 1204, 1206 (1986) Findings of fact pursuant to FTCA and the Illinois Structural Work Act must be affirmed unless they are clearly erroneous. Phillips v. United States, 792 F.2d 639, 644 (7th Cir.1986). A finding is clearly erroneous when, although there may be some evidence to support it, "the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." Anderson v. City of Bessemer City, 470 U.S. 564, 573, 105 S.Ct. 1504, 1511, 84 L.Ed.2d 518 (1985) (quoting United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746 (1948)). "We may have such a conviction if the trial judge's interpretation of the...