Schwab v. United States, 83-568-CIV-ORL-19.

Citation649 F. Supp. 1319
Decision Date15 December 1986
Docket NumberNo. 83-568-CIV-ORL-19.,83-568-CIV-ORL-19.
PartiesNadine M. SCHWAB, as Administratrix of the Estate of Michael Schwab; Nadine M. Schwab, Individually and Nadine M. Schwab, as Mother and Natural Guardian of Jennifer A. Schwab, Plaintiffs, v. UNITED STATES of America, Defendant and Third Party Plaintiff, v. CUYAHOGA WRECKING CORPORATION, Third Party Defendant.
CourtUnited States District Courts. 11th Circuit. United States District Court of Middle District of Florida

COPYRIGHT MATERIAL OMITTED

Eugene C. Tenney, Buffalo, N.Y., James A. Sisserson, Melbourne, Fla., Thomas H. McDonald, Orlando, Fla., for plaintiffs.

Walter Postula, Asst. U.S. Atty., for U.S.

William D. Palmer, Carlton, Fields, Ward, Emmanuel, Smith & Cutler, Anne C. Conway, Orlando, Fla., for third-party defendant.

MEMORANDUM OPINION

GEORGE KENDALL SHARP, District Judge.

This case is before the court upon the motion for summary judgment by the defendant United States (Doc. 67). On November 27, 1985, the court advised the parties that it would take the motion under advisement on January 1, 1986. On June 20, 1986, the court granted the motion for summary judgment, indicating that subsequently it would set forth the reasons for the summary judgment. This memorandum opinion articulates the basis for the order granting summary judgment for the United States.

STATEMENT OF FACTS

In this wrongful death action, Nadine Schwab, individually, as administratrix of the estate of Michael Schwab, and as natural guardian of Jennifer Schwab, sues the United States under the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346, 2671-2680, for negligence in connection with the death of Michael Schwab. At the time of his November 17, 1977 death, Michael Schwab was employed by Cuyahoga Wrecking Corporation (Cuyahoga) as a crane operator. In the amended complaint, plaintiffs allege that the United States was negligent in failing to inspect the premises and equipment at the Complex 19 accident site, in failing to warn of dangers at Complex 19, in failing to provide a safe place for the decedent to work, in failing to properly supervise the work at Complex 19, and generally in failing to otherwise act prudently under the circumstances. Plaintiffs allege that the United States undertook to perform safety inspections on the equipment used by Cuyahoga and failed to do so, that the decedent relied on the government's undertaking to inspect the equipment, and that, as a result of the increased risk of injury to decedent caused by the government's failure to inspect, the decedent sustained the injuries which caused his death.

In the fall of 1977, Cuyahoga, a demolition company, was awarded a contract for the purchase and removal of launch facility equipment at Complex 19 of the Gemini-Titan launch facility at Cape Canaveral, Florida. The property, offered for sale by the Defense Property Disposal Service (DPDS) of the Defense Logistics Agency (DLA), Department of Defense, was sold to Cuyahoga on September 1, 1977, pursuant to DLA Invitation For Bid (IFB) No. 31-7410 and Contract No. 31-7410-003. The parties agree that the DPDS is an agency of the United States and that the complex was the property of the United States, as was the property to be removed prior to its sale. Since Complex 19, which had been abandoned since the mid-1960s, was being restored as an historical site for tours, some of the items at the launch facility were being retained. The contract required that Cuyahoga complete the work on Contract No. 31-7410-003 by December 9, 1977.

Cuyahoga began removal of the salvage property in September, 1977, and on November 16, 1977, the 21-year-old decedent was using a crane to perform the removal. The crane was owned or rented by Cuyahoga, and was not the property of the United States. Bobby Page, a Pan American World Airways (Pan Am) fireman, was at Complex 19 on fire safety watch on November 16, 1977, and witnessed the accident. According to Page, the decedent's crane was located on a horizontal cement launch pedestal approximately twenty feet above the ground, and the crane was lifting an object out of an elevator shaft pit to the ground below the platform. The decedent's cousin was directing Schwab's maneuvering of the crane and the load at the time of the accident. As Michael Schwab was picking up the load, Page noticed that the left back crane outrigger was moving slightly up and down. As Schwab was lifting the load, this outrigger settled down firmly until Schwab moved the boom to the side to place the load on the ground. It was at this point that the crane overbalanced, slid 15 feet over the launch platform, and crashed to the ground, throwing the decedent out of the crane cab.

William Breyer, an Air Force safety specialist at Patrick Air Force Base (Patrick AFB), visited the accident site on November 17, 1977, and again on November 23, 1977, with an Occupational Safety and Health Administration (OSHA) compliance officer. Based upon their investigation of the accident, Breyer found that the accident was caused by improper extension of the telescoping boom, aggravated by an improper "boom up" signal given to the crane operator. During his investigation, Breyer observed that the crane controls for the telescoping boom were locked in the "extend" position, and indicated in his report that it was quite possible that the operator extended rather than retracted the boom when the crane began overbalancing. He also stated that improper use of the crane's outriggers may have been another cause, although this factor was not able to be demonstrated. In his report, Breyer concluded that "the accident and resultant fatality was caused by a combination of improper lifting/lowering methods, inaccurate positioning of crane boom controls and possible improper use of the crane's outriggers."

The terms governing the purchase and sale of the Complex 19 launch facility equipment are found in the IFB, the contract, and the provisions of the DLA Sale by Reference pamphlet incorporated by the IFB. Under Article BA(A) of the IFB, Cuyahoga agreed "to furnish all labor, material and equipment necessary to dismantle and remove property at no cost to the Government." Section 7 of the General Sale Terms and Conditions, incorporated by the IFB, provides that title to the property vests in the purchaser as and when removal is effected, and William Randolph, the DLA property disposal specialist who wrote the Complex 19 IFB, indicated that a purchaser does not own property until it leaves government property. Section 9 of the General Information and Instructions, incorporated by the IFB from the Sale by Reference, provides generally that "purchasers are responsible for making all necessary arrangements for the removal of their property," and Article BA(D) of the IFB specifies the manner in which purchased items should be dismantled and removed. However, Article BA(D) pertains to which items should be removed rather than the method of safely removing items. Under the contract, the United States had no responsibility to specify, monitor or inspect the placement or use of cranes. Article AQ, incorporated from the Sale by Reference, provides that "all work will be performed in a good and workmanlike manner and subject to such inspection by the Government as it deems necessary to insure strict compliance with the terms of the contract." Article BA(H) of the IFB warns that preparation and handling of the property may be hazardous and that "purchasers must ascertain all facts as to the potential dangers and enforce all applicable fire and safety regulations during the performance of the contract." Article BA(I) directs that the "purchaser must devise his own means of removing property from upstairs locations, providing such means are consistent with established safety practices and reasonably safe methods are employed." The contract does not provide for or incorporate safety regulations from manuals such as the Air Force Ground Accident Prevention Handbook (Handbook), and safety specialist Breyer indicated that the Handbook does not establish any standards that would apply to a contractor unless incorporated in the contract. Moreover, Breyer indicated that there was not any other manual that could apply besides the Handbook, and that the only applicable general safety standards were OSHA regulations, which he lacked the authority to enforce. Thus, although Section 2 of the Sale by Reference General Information and Instructions requires that bidders conform to all fire, safety and security regulations prescribed by the military installation when on the installation, under the Cuyahoga contract there were no such applicable safety requirements other than OSHA regulations.

On September 9, 1977, a prework conference was held on Contract No. 31-7410-003 in order to insure that the successful bidder on the contract understood what was and was not to be removed, as well as the terms and conditions of the contract. William Turner, the chief DLA property disposal officer at Patrick AFB, discussed the contract timetable, working hours, facilities, security matters, and potential delays due to inclement weather and launches. A.T. Wansley, a Pan Am security inspector, explained Cape Canaveral security and traffic rules. Breyer, the safety officer assisting DPDS on this contract, briefed the Cuyahoga personnel on safety, indicating that cranes should have trained operators, and that equipment should be in good working condition and would be inspected.

In his deposition, Breyer testified that he visited Complex 19 possibly twice, and that on neither occasion were there cranes on site. In addition, he indicated that he was not notified when the cranes were brought on site. Breyer explained his statement at the prework conference as follows:

Yeah, I made that statement. It meant that if any of their equipment were brought in, any equipment which was used, that it should be in good working condition. And it would be inspected, was that if
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