Toole v. U.S., 78-1168

• Decision Date: 04 December 1978
• Docket Number: No. 78-1168,78-1168
• Citation: 588 F.2d 403
• Parties: Willie Mae TOOLE, Deceased, and Clyde Toole, Administrator of Estate, and Clyde Toole, in his own right, Appellant, v. UNITED STATES of America.
• Court: U.S. Court of Appeals — Third Circuit

Page 403

588 F.2d 403

Willie Mae TOOLE, Deceased, and Clyde Toole, Administrator of Estate, and Clyde Toole, in his own right, Appellant, v. UNITED STATES of America.

No. 78-1168.

United States Court of Appeals Third Circuit.

Argued Sept. 7, 1978.

Decided Dec. 4, 1978.

Louis Samuel Fine, Fine, Staud & Grossman, Philadelphia, Pa., for appellant.

Robert N. deLuca, U. S. Atty., Walter S. Batty, Jr., Asst. U. S. Atty., Chief, App. Section, Alfred A. Gollatz, Asst. U. S. Atty., Philadelphia, Pa., for appellee.

Before SEITZ, Chief Judge, and ADAMS and ROSENN, Circuit Judges.

OPINION OF THE COURT

ROSENN, Circuit Judge.

This appeal presents a difficult question concerning the liability of the United States under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671-80 (1976), for the death of an employee of an independent contractor engaged in the manufacture of antitank explosives for the United States Army.

I.

Willie Mae Toole worked at the Philadelphia munitions plant of Action Manufacturing Company ("Action" or "Company"). She was engaged in the manufacture of the "fuze rocket," an antitank explosive that Action made for the United States Army. Specifically, her job was to "stake" together a primer and detonator, both of which contained explosive material. Sitting behind a plexiglass shield at a plywood table, Mrs. Toole would reach around the shield, hold a detonator in her left hand and a primer in her right, insert the primer into the detonator, and put that assembly onto a staking device ¹ in the center of the table. She would then withdraw her hands behind the shield, press levers with each hand in order to operate the staking device, and finally remove the assembled product. Mrs. Toole might have had as many as 50 detonators and 350 primers at her table while she was performing this operation.

The staking device pressed together components that contained highly explosive material. As the contract between Action and the United States noted, a "fire and explosion hazard prevails throughout the entire (manufacturing) process . . . ."

On August 5, 1974, Mrs. Toole was staking a primer and a detonator. The parts that she was assembling, seven other detonators, and all of the primers at her table exploded, throwing her three or four feet from the bench. She died from the injuries. In his own right and as administrator of his wife's estate, Toole sued the United States in the United States District Court for the Eastern District of Pennsylvania for damages under the Federal Tort Claims Act, Supra, asserting claims under the Pennsylvania Survival Statute, 20 Pa.C.S.A. § 3371 (1975), and the Pennsylvania Wrongful Death Statute, 12 P.S.A. §§ 1601-4 (1953). After a bifurcated nonjury trial on the issue of liability alone, the district court, in a thoughtful opinion, rendered judgment for the United States. Toole appealed. We are compelled to reverse.

An important background to the accident and suit is found in the contract between Action and the United States and in the efforts taken to enforce compliance with the contractual provisions. The contract under which Action manufactured the fuze rocket incorporated by reference Armed Services Procurement Regulation 7-104.79 32 C.F.R. § 7-104.79 (1975). According to that regulation, Action had to comply with the Department of Defense Contractors Safety Manual for Ammunition, Explosives and Related Dangerous Materials (DOD Manual 4145.26M). If a contracting officer in the Department of Defense discovered a violation of the manual and notified the contractor, the contractor was obligated to take immediate corrective action. Should the contractor fail to correct the violation, the contracting officer could postpone production until the contractor complied, or the contracting officer could even terminate the contract. Armed Services Procurement Regulation 7-104.79(b), 32 C.F.R. § 7-104.79(b) (1975). Despite the requirement that a contractor abide by the manual, the regulation provided:

Neither the requirements of this clause nor any act or failure to act by the Government shall affect or relieve the Contractor of his responsibility for the safety of his personnel . . . or impose or add to any liability of the Government for such safety.

Id. at § 7-104.79(d).

Among the requirements in the manual was a provision concerning safety shields. The provision required the contractor to install shields protecting employees from hazardous operations, and these shields had to be designed "in such a manner as to protect against the effects of not less than a 25 percent overload above the expected maximum charge (from an accidental explosion)." DOD Manual 4145.26M, § 603(f)(1) & (2). Under another section, rules were to be established governing the quantity of explosives to be kept in any one place, such as a work station. Id. at § 603(b)(1) & (2).

In order to discover whether the contractor was complying with the contract and obeying the manual, the Department of Defense, through an arm of the Defense Supply Agency, established an inspection system. On one occasion before the contract was awarded and at quarterly intervals after the award was made, inspectors from the Department of Defense surveyed Action's plant to ascertain whether the Company was in compliance. The inspectors reported to E. J. Slade, an Administrative Contracting Officer. When Slade learned that a contractor was not following the recommendation of an inspector, Slade would write to the contractor, requesting compliance within a specified time. If the contractor still failed to comply, Slade would investigate the reasons for the failure. Slade's last resort was to bring the violation to the attention of a Procurement Contracting Officer, who had the sole power to postpone work or terminate the contract.

On July 16, 1973, an inspector visited Action's plant. The inspector recommended that Action install a more effective shield around the staking operation. ² Noting that Action had permitted as many as 50 detonators and 350 primers at the staking operation station at one time, the inspector also recommended reducing these numbers. In a subsequent letter to Action, Slade repeated the inspector's recommendations. Although Action's Contracts Manager, Joseph C. Brenner, promised compliance, the Company never fully corrected the hazardous conditions. An inspection in October again resulted in a letter from Slade and a promise by Brenner. After a third inspection, Slade wrote that "the proposed design (of the shields) should be tested with at least 25 percent overload before its use is permitted in operations." In reply, Brenner wrote that Action had tested a shield in an explosion of 25 detonators, and the shield had held fast. Since the manual required, as Slade had indicated, a shield able to withstand a 25 percent overload, rather than an explosion of 25 detonators, Action had not conducted the test with nearly enough explosives. A proper test would have involved the explosion of 500 units (each primer or detonator being a unit) 25 percent more than the 400 units that Action was permitting at the staking operation. It is undisputed that Slade did not notify Action of its error.

At approximately the same time that Brenner wrote to Slade, the plant manager told an inspector, Leo Everett, about the test. Although Everett knew that Action had seriously misinterpreted the manual, the district court found as a fact that Everett did not alert the plant manager to the misinterpretation. Instead, he simply transmitted to Slade what the plant manager had told him. Everett also conducted the next inspection of the plant, and his report did not mention the faulty test. Three months after that inspection, the fatal explosion occurred.

II.

Under the Federal Tort Claims Act, Supra, federal district courts have jurisdiction to entertain suits against the United States for "personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred." Since the acts or omissions upon which liability would be based took place in Pennsylvania, the law of that state governs. Fisher v. United States, 441 F.2d 1288, 1289 (3d Cir. 1971).

The Pennsylvania Survival Statute, Supra, and the Pennsylvania Wrongful Death Statute, Supra, create causes of action here only if, independently of the statutes, Pennsylvania law recognizes a duty owed by the United States to Mrs. Toole. In this appeal, Toole advances several theories according to which the United States is said to owe a duty to the decedent. Under the Restatement (Second) of Torts (1965), Toole argues that the Government assumed a duty as the supplier of a dangerous chattel (section 388), as an employer giving negligent orders to an independent contractor (section 410), as an employer failing to exercise reasonable care in employing an independent contractor to do risky work (section 411), as an employer failing to provide contractually for special precautions in risky work to be done by an independent contractor (section 413), as an employer exercising control over an independent contractor (section 414), and as an employer responsible for its independent contractor's discharge of peculiarly risky work (section 416). The district court rejected these theories. We need not consider them here because we are persuaded that the Government is liable upon a different theory proposed by Toole, which is not grounded in the Restatement.

According to this theory, the United States is liable for its failure to warn either Mrs. Toole or Action about the inadequacy of the test for the shield and about the possible danger of relying on the shield. This duty to warn had arisen, Toole argues, because Mrs. Toole was...