Stanley v. United States

• Citation: 476 F.2d 606
• Decision Date: 13 April 1973
• Docket Number: 72-1355.,No. 72-1354,72-1354
• Parties: Bernice M. STANLEY, etc., Plaintiff-Appellee, v. UNITED STATES of America et al., Appellees. Appeal of MIDWEST CONSTRUCTION CO., INC., First Third-Party Defendant and Second Third-Party Plaintiff. Bernice M. STANLEY, etc., Plaintiff-Appellee, v. UNITED STATES of America et al. Appellants.
• Court: U.S. Court of Appeals — First Circuit

476 F.2d 606 (1973)

Bernice M. STANLEY, etc., Plaintiff-Appellee, v. UNITED STATES of America et al., Appellees.

Appeal of MIDWEST CONSTRUCTION CO., INC., First Third-Party Defendant and Second Third-Party Plaintiff.

Bernice M. STANLEY, etc., Plaintiff-Appellee, v. UNITED STATES of America et al. Appellants.

Nos. 72-1354, 72-1355.

United States Court of Appeals, First Circuit.

Argued March 7, 1973.

Decided April 13, 1973.

John W. Ballou, Bangor, Me., with whom Mitchell & Ballou, Bangor, Me., was on brief, for Midwest Construction Co., Inc.

Ronald R. Glancz, Atty., Department of Justice, with whom Harlington Wood, Jr., Asst. Atty. Gen., Peter Mills, U. S. Atty., and Morton Hollander, Atty., Department of Justice, were on brief, for United States.

Thomas Schulten, Portland, Me., with whom Perkins, Thompson, Hinckley, Thaxter & Keddy, Portland, Me., were on brief, for Bernice M. Stanley.

Before ALDRICH, McENTEE and CAMPBELL, Circuit Judges.

ALDRICH, Senior Circuit Judge.

Plaintiff's intestate, Stanley, was killed when he fell from a platform inside a Navy antenna tower. Stanley was an employee of a subcontractor of Midwest Construction Co., which was engaged in painting a complex of low-frequency radio towers at Cutler, Maine. Plaintiff, barred by the receipt of workmen's compensation from suing Stanley's employer for negligence, brought suit against the government, alleging defective design of the tower. The government claimed over against Midwest, asserting its negligence and breach of its undertaking to "take proper safety . . . precautions to protect . . . the workers." The district court, in a comprehensive opinion, 347 F.Supp. 1088, found for the plaintiff in her suit against the government, and for the government against Midwest. Both defendants appeal.

The tower in question, No. S-O, is an elongated triangular prism, its three legs arising 979 feet from the apexes of a triangular base 12 feet on a side. The sides are skeletal, with a horizontal beam about every 12 feet, with a single diagonal cross of tie-rods, or windrods, so called, in the space between. The inside is empty, except that every 70 feet there is a triangular grating, or platform, 12'x12'x12' with a 2'x3' rectangular aperture, or cut-out, to afford access to a ladder which runs down the side to the platform next beneath. These apertures are staggered from platform to platform, as the ladder shifts from one side of the tower to another as one progresses from one platform to the next. Although there was no testimony on the subject, this seems an obvious safety feature, so that the platform at the base of the ascending ladder would be solid. The effect of this, of course, is to require everyone ascending or descending the tower to dismount the ladder and cross over at each platform. The principal purpose of the platform, apart from providing strength to the structure, is to serve as a place of rest. There are no guardrails around the cut-out, and none around the outside of the platform.

On the day in question Stanley and two other men were engaged in painting the tower, some 700 feet up. It was Stanley's second day on the job. He was 20 years old, and without experience or even training in high work. Because of his inexperience he was assigned to work from the platforms, which was thought to be safer. The other workers were a short distance above him, using simply the beams and windrods for support. They clambered about, applying the paint with a mitten. Stanley, having an easier foothold, was using a paint roller on a 6-foot rod, which required both hands. Shortly before the accident he was observed standing in a corner by one leg of the tower on an essentially triangular portion of the platform which was of a small area, because immediately in back of him was the ladder cut-out. He was reaching up with the roller and in no apparent difficulties. Shortly thereafter the other workers heard a clatter, that they took to be the fall of the roller and handle onto the platform, and they then saw Stanley in the air dropping down to the platform below. He died of a crushed skull.

The dispute at the trial revolved about two issues—whether the government was liable because of failure to supply guards to the ladders' cut-outs, and whether Midwest was liable for not taking precautions in view of the absence of such protection. The court found for the plaintiff against the government on the issue of absence of guardrails, and for the government against Midwest on the ground that it should have provided Stanley with a safety belt and attachment, which, it found, would have served as an adequate substitute.

One of Stanley's co-workers testified, without contradiction, that the belt offered them by the contractor did not fit the ladder safety device, and was not usable for the work they had to do. No serious attack is made by anyone on the court's finding that a different belt should have been provided, or by Midwest on the court's finding liability over. Having in mind the contractor's general assumption of safety responsibility as part of its contract, an attack on either of these conclusions would be difficult to sustain. Midwest's basic position on appeal is that the government was not liable, and that accordingly Midwest was not. Concededly the conclusion follows if the predicate is correct.

Plaintiff's case against the government is based principally upon the testimony of her expert, one DeTarnowsky.¹ DeTarnowsky, relying upon a published American Standard Safety Code for Floor and Wall Openings, Railings, and Toe Boards, testified that good safety practice called for guardrails around the ladder cut-outs. Asked whether these apertures, and their consequent dangers, were not fully obvious,² he stated that a man engaged in painting might have his attention diverted, and temporarily "forget" their existence, or proximity. The court accepted this testimony, and on this basis found for the plaintiff.³

DeTarnowsky conceded that the absence of a guardrail did not constitute a danger to persons climbing the tower, who could be expected to pause on the platform only for a rest. For such persons there would be nothing to distract their attention from the existence of the aperture. To this must be added, because of the court's obligation to look at the record as a whole, United States v. United States Gypsum Co., 1948, 333 U.S. 364, 395, 68 S.Ct. 525, 92 L.Ed. 746, certain uncontradicted and inherently credible testimony introduced by the defendants that as to such other persons guardrails would have been...