Sexton v. US

• Citation: 797 F. Supp. 1292
• Decision Date: 18 April 1991
• Docket Number: No. 88-116-CIV-3-H.,88-116-CIV-3-H.
• Court: U.S. District Court — Eastern District of North Carolina
• Parties: James Mark SEXTON and Amelia H. Sexton, Plaintiffs, v. UNITED STATES of America, Defendant and Third-Party Plaintiff, v. ELLIS-WALKER BUILDERS, INC., Third-Party Defendant.

797 F. Supp. 1292

James Mark SEXTON and Amelia H. Sexton, Plaintiffs, v. UNITED STATES of America, Defendant and Third-Party Plaintiff, v. ELLIS-WALKER BUILDERS, INC., Third-Party Defendant.

No. 88-116-CIV-3-H.

United States District Court, E.D. North Carolina, Fayetteville Division.

April 18, 1991.

COPYRIGHT MATERIAL OMITTED

Rodney A. Guthrie, Russ, Worth, Cheatwood & Guthrie, Fayetteville, N.C., Susan K. Burkhart, Patterson, Dilthey, Clay, Cranfill, Sumner & Hartzog, Raleigh, N.C., for plaintiffs.

Richard B. Conely, Sr., Asst. U.S. Atty., for the U.S.

Richard M. Wiggins, McCoy, Weaver, Wiggins, Cleveland & Raper, Fayetteville, N.C., for Ellis-Walker Builders, Inc.

ORDER

MALCOLM J. HOWARD, District Judge.

This matter is before the court for decision after a bench trial held on January 28-30, 1991, in Fayetteville, North Carolina. Closing arguments were made by counsel on Friday, February 1, 1991. Having heard the evidence presented at trial and having reviewed all exhibits, the court now rules in favor of the plaintiff James Mark Sexton in the total amount of $972,218.00 and in favor of the plaintiff Amelia H. Sexton in the total amount of $100,000.00.

STATEMENT OF THE CASE

On November 23, 1988, plaintiffs instituted the case at bar against the United States pursuant to the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671 et seq., alleging that plaintiff James Mark Sexton ("Sexton") received serious and permanent injuries when he stepped on a metal grate located on the grounds of the Womack Army Hospital and fell through the grate to a subterranean pit during a construction project at the hospital. Plaintiffs initially contend that Mark Sexton was a business invitee during the work at the hospital. Plaintiffs contend that defendant United States, as owner of the grate in question, owed to plaintiff Mark Sexton, as a business invitee, a duty of due care in insuring that the premises were in a reasonably safe condition. Plaintiffs allege that defendant was negligent in the design, construction, and maintenance of the grate covering through which plaintiff fell, proximately causing serious and permanent injuries to plaintiff.

Plaintiffs further allege that defendant was actively and grossly negligent in the design, construction, and maintenance of the grate in that it had notice that the grate in question was designed improperly and was maintained improperly and that such situation constituted an undue hazard and risk of injury to the plaintiff and others similarly situated. Plaintiffs further allege that as a direct result of injuries sustained by plaintiff Mark Sexton, plaintiff Amelia Sexton (now Huckenpahler) suffered the loss of society, companionship, kindly offices, love, care, and affection of her husband, Mark Sexton, which resulted in the deterioration of their relationship and ultimate termination of their marriage.

At the conclusion of the trial plaintiff Mark Sexton asserted a claim for damages in the amount of $1,717,881, and plaintiff Amelia Sexton asserted a claim for damages in the amount of $350,000 for loss of consortium.

Great American Insurance Company ("Great American"), a party in interest, asserts a lien against any recovery by plaintiff Mark Sexton for Workers' Compensation benefits paid to plaintiff on behalf of plaintiff's employer, J.J. Barnes, Inc. At the beginning of the trial, Great American had paid Workers' Compensation benefits to plaintiff in the total amount of $265,636.63. Great American contends that since the evidence shows no negligence on the part of the employer J.J. Barnes, Great American is entitled to recover all benefits paid to plaintiff.

Great American further argues that since the government had the complete right of control of the grate premises, and the defect in the grate was a latent defect, J.J. Barnes cannot be held liable for plaintiff's injuries. Lastly, Great American argues that J.J. Barnes can only be held liable if it had notice of the defect in the grate. Great American contends that because J.J. Barnes had no notice of the defect, it cannot be liable for plaintiff's fall.

Defendant and third-party plaintiff United States initially argues that the court lacks subject matter jurisdiction over plaintiffs' claims. The government contends that plaintiffs' claims are barred by the discretionary function exception of the Federal Tort Claims Act in that defendant, by contract, delegated all safety requirements to the third-party defendant Ellis-Walker Builders, Inc. ("Ellis-Walker"); therefore, defendant cannot be held liable for any negligence in the present case.

Defendant United States contends that Ellis-Walker failed to provide a safe working environment to the plaintiff as he performed his duties in connection with the construction project at Womack Army Hospital. Defendant asserts claims for indemnity and contribution against Ellis-Walker.

Defendant further argues that plaintiff Mark Sexton's employer, J.J. Barnes, failed to provide a safe working environment for plaintiff. Lastly, defendant contends that plaintiff Mark Sexton was contributorily negligent in that he received adequate warnings as to the hazard of the grate area but ignored such warnings and failed to maintain a proper lookout in walking across the grate area.

Third-party defendant Ellis-Walker argues that the scuttle door at issue in the case at bar was constructed so that it was inadequately supported within the grating and thus posed a hazard. Ellis-Walker contends that the government had knowledge of the existing danger in the inadequately supported scuttle door but failed to warn Ellis-Walker of such danger. Ellis-Walker acknowledges that the government contracted with it to provide a safe job site for the performance of the contract but argues that the grating area was not within the job site; therefore, Ellis-Walker cannot be held liable for plaintiff's injuries.

FINDINGS OF FACT

1. On September 19, 1984, Ellis-Walker Builders, Inc., following solicitation by the United States Army Corps of Engineers ("Corps of Engineers"), offered to perform interior repairs at Womack Army Hospital, Fort Bragg, North Carolina, a facility owned, operated, and under the control of the United States of America.

2. Contract No. DACA21-84-C-0103, which was the contract to perform the interior repairs at Womack Army Hospital, was awarded to Ellis-Walker by the Corps of Engineers on September 26, 1984.

3. The scope of the work included repairs to the heating and plumbing systems of the hospital. Such work included welding in the basement of the hospital, and Ellis-Walker subcontracted that work to J.J. Barnes, Inc.

4. On May 7, 1985, plaintiff James Mark Sexton was in the employment of J.J. Barnes as a welder.

5. As of May 7, 1985, the employees of J.J. Barnes had been working inside the basement area of Womack Army Hospital for approximately two to three months. As of May 7, 1985, Mark Sexton had been a welder at the job site for approximately two weeks.

6. A door in the basement of the hospital led into a subterranean mechanical pit located outside and adjacent to the hospital and approximately fourteen feet below ground level. The top of the mechanical pit was covered with large grates adjacent to the exterior wall of the hospital. The grates had access or scuttle holes which were covered by scuttle doors made of the same grating material and measuring approximately 30 inches square. The scuttle doors gave access to fixed vertical ladders which descended to the floor of the mechanical pit. The scuttle door at issue in this matter was supported by metal flanges (also referred to as "lips") on two opposing ends; and when properly seated, rested on the flanges flush with the rest of the grate. At the end nearest the ladder located beneath the scuttle door was a piece of aluminum angle material attached to an angle iron. The aluminum angle material was intended to keep the door from moving about.

7. The scuttle door involved in this matter had no markings, warnings, or barricades showing the existence or location of the same.

8. After J.J. Barnes began to do its work on the subcontract with Ellis-Walker, a diesel-powered welding machine was placed on the ground level near the grating area, and welding leads were run through an opening in the grating area close to the scuttle door. The leads were run down into the subterranean mechanical pit area. The welding machine was owned by J.J. Barnes and had to be placed outside due to noxious fumes created by the machine. The machine had to be placed on a grassy area near the hospital's entrance because it could not be placed on a nearby firelane or on the sidewalk parallel to the grating area.

9. On May 7, 1985, at some time shortly before 6:00 p.m., plaintiff Sexton left his work station in the basement of the hospital with the intention of going to the welding machine to adjust the heat of the machine. He left the basement by way of a staircase that led to the outside ground level. Plaintiff did not leave the basement by way of the scuttle door which led into the subterranean pit. After exiting the basement, plaintiff walked in a direct line towards the welding machine. This line took him across the grating over the concrete lined mechanical pit. As plaintiff crossed over, stepping on the scuttle door at issue, the door gave way, causing plaintiff and the scuttle door to fall to the concrete floor of the subterranean pit fourteen feet below.

10. A few minutes after plaintiff had departed from the basement to adjust the welding machine, Oscar Parker, an employee of J.J. Barnes, discovered plaintiff in the subterranean room in an unconscious and injured state. The scuttle door was also found in the subterranean room. Plaintiff's hard hat was discovered on the grate cover over the pit.

11. As a direct and proximate result of Sexton's fall, he suffered serious permanent injuries including:

a. A closed head injury with

...