Toole v. United States, Civ. A. No. 75-2311.

Decision Date30 December 1977
Docket NumberCiv. A. No. 75-2311.
Citation443 F. Supp. 1204
PartiesClyde TOOLE, Administrator of the Estate of Willie Mae Toole, Deceased v. UNITED STATES of America.
CourtU.S. District Court — Eastern District of Pennsylvania

COPYRIGHT MATERIAL OMITTED

Louis Samuel Fine, Philadelphia, Pa., for plaintiff.

Alfred A. Gollatz, Asst. U. S. Atty., Philadelphia, Pa., for defendant.

SUR PLEADINGS AND PROOF

LUONGO, District Judge.

Plaintiff's decedent was fatally injured in an explosion at her place of employment, the Large Street plant of Action Manufacturing Company (Action), in Philadelphia. The incident occurred while she was working on a partially assembled "fuze rocket," an antitank explosive that Action produced for the United States Army. Shortly thereafter, her husband filed this action under the Federal Tort Claims Act, 28 U.S.C. § 1346(b) (1970), asserting causes of action under both the Pennsylvania survival statute, 20 Pa.Cons.Stat.Ann. § 3371 (Purdon 1975), and the Pennsylvania wrongful death statute, Pa.Stat.Ann. tit. 12, §§ 1601-04 (Purdon 1953). Jurisdiction is based on 28 U.S.C. § 1346(b) (1970). After considering the pleadings and the evidence offered at trial, I make the following findings of fact. Fed.R.Civ.P. 52(a).

1. The United States Army Munitions Command awarded Action a contract (Plaintiff's Exhibit 2) for the manufacture of M412A1 "fuze rockets." This contract took effect on March 2, 1973, and it called for the delivery of 668,200 fuze rockets between August 31, 1973 and August 31, 1974.

2. The contract was administered by the Defense Contract Administration Services Region, Philadelphia (DCASR), an office of the Defense Supply Agency.

3. On January 26, 1973, Leo A. Everett, a Safety Engineer in the Specialized Safety and Flight Operations Division of DCASR's Directorate of Quality Assurance, made a pre-award safety survey of Action's Large Street plant. In a survey of this kind, DCASR personnel review the prospective contractor's facilities and assess its potential for compliance with the contractual safety requirements. Everett's report on his visit (Plaintiff's Exhibit 7) stated that Action was already producing the M412A1 fuze pursuant to another government contract, and that the award of the proposed contract would not "cause violations of the contractual safety requirements."

4. Throughout the time that the contract was in force, Walter Wotjas, a Quality Assurance Representative (QAR), and two or three other quality control specialists assigned to him were "in residence" at Action's Large Street plant and shared an office at the plant. None of the men had extensive training or experience in the field of explosives safety.

5. In the course of performing their quality assurance functions, Wotjas or one of the men assigned to him inspected the "loading plant" area at Action once or twice a day. These inspections were aimed at detecting potential quality assurance problems, and included noting any obvious safety hazards that might impair Action's ability to meet the production schedule set out in the contract. If such a problem or hazard was observed, the inspector would notify the supervisor of the Action employee whose work area was involved. If no corrective measures were taken, the inspector would then notify Everett. Neither Everett nor the inspectors, however, could compel Action to alter its procedures.

6. At one stage in the process of assembling a fuze, a small M106 primer is "staked" into an M48 detonator. During the period covered by the contract, this task was performed by a single Action employee sitting at a work table in the "loading plant" area of the Large Street plant. Both the primer and the detonator contain explosive material, and both are ranked as Class 7 hazards (Mass Detonating Hazards). Plaintiff's Exhibit 1, ¶ 709, at 7-7 to -8.

7. The operator of the staking device works behind a plexiglass shield at a plywood table. Essentially, the operator reaches around the shield on both sides, picks up a detonator with her left hand, picks up a primer with her right hand, inserts the primer in the detonator, places this assembly on the staking device located in the center of the table, withdraws her hands behind the shield, presses two levers (one with each hand) to activate the staking device, and then withdraws the assembled product from the staking device.

8. Beginning in May of 1973, DCASR safety personnel conducted quarterly post-award safety surveys at Action's Large Street plant. These inspections lasted from 8:00 a. m. until lunchtime or later, and were directed at safety hazards that could potentially interfere with any of the production schedules set out in the government contracts held by Action.

9. The inspector conducting a post-award survey would check in, inquire whether Action had been awarded any new contracts, inquire whether any recent unreported accidents had occurred, tour the plant, talk to Wojtas or one of the men assigned to him about Action's safety record in recent weeks, and, beginning in 1974, talk to Wojtas about the Procedures Evaluation check-list that Wojtas had developed. DCASR inspectors had no authority to compel changes in Action's operating procedures.

10. On May 10, 1973, Everett L. Graham, a Safety Officer in the Specialized Safety and Flight Operations Division of DCASR's Directorate of Quality Assurance, conducted a post-award safety survey at Action. Graham's report on his visit (Plaintiff's Exhibit 8) noted that an excessive quantity of explosive material was found "at the reject inspection station in room 7," and that Action should develop and post clearly written standard operating procedures for the guidance of its employees.

11. Beginning in July of 1973 or shortly thereafter, copies of the reports on post-award inspections were routinely sent to E. J. Slade, the Administrative Contracting Officer (ACO) at DCASR.

12. On July 16, 1973, Leo A. Everett conducted a post-award safety survey at Action. Everett's report on his visit (Plaintiff's Exhibit 6) noted that he observed a posted limit of 400 units—50 detonators and 350 primers—at the staking operation, and recommended that, in order to comply with certain safety requirements incorporated in the contract, Action "install an effective operational shield at the M106 primer staking operation and substantially reduce the quantity of primers at this location."

13. On August 27, 1973, E. J. Slade, the Administrative Contracting Officer of DCASR, wrote to Joseph C. Brenner, Action's Contracts Manager, repeating Everett's recommendations and asking to be notified of Action's proposed corrective measures within twenty days. Plaintiff's Exhibit 28.

14. On September 13, 1973, Brenner wrote to Slade, stating that corrective action had already begun and that "completion is anticipated within the next 3-4 weeks." Plaintiff's Exhibit 29. These corrective measures were never completed, however.

15. On October 23, 1973, A. K. Siler, a Safety Specialist with DCASR, conducted a post-award safety survey at Action. On November 14, 1973, Slade wrote to Brenner, repeating the recommendations made in Siler's report, one of which was that Action "install effective operational shields at stations as indicated in survey report of 19 July 1973." Plaintiff's Exhibit 30. Slade requested immediate corrective action and asked to be notified of proposed or completed corrective action within ten days.

16. On November 28, 1973, Brenner wrote to Slade, stating that explosives limits had been posted at the operating stations, and that Action had ordered material for the operational shields, which would be installed as soon as the material was received. Plaintiff's Exhibit 31.

17. On January 15, 1974, Siler conducted a post-award safety survey at Action. On February 8, 1974, Slade wrote to Brenner, repeating the recommendations contained in Siler's report. In particular, Slade stated:

"Procured fasteners for operational shields should be tested and, if results acceptable installed as soon as possible. Since reliable data proving the adequacy of the shields is not available, the proposed design should be tested with at least 25% overload before its use is permitted in operations."

Slade also requested that Brenner advise him of proposed corrective measures within twenty days.

18. On February 20, 1974, Brenner replied to Slade's letter of February 8. In particular, Brenner stated:

"A quantity of 25 each M48 Detonators were placed on a steel plate and fired, the fasteners on the operational shield held firm and fast and are therefore considered to be satisfactory."

19. At about the same time, George W. Hoffnagle, Action's Plant Manager, told Everett that he had conducted this test. Everett knew that the Department of Defense Contractor's Safety Manual for Ammunition, Explosives and Related Dangerous Material (Plaintiff's Exhibit 1, ¶ 603(f)) required a test using a twenty-five percent overload, and that a proper test for the staking operation shield would thus have employed five hundred units rather than twenty-five. Everett knew that the manual's requirement had not been complied with, but he simply forwarded the information to Slade without attempting to correct Hoffnagle's mistaken impression of what was required by the manual.

20. On May 9, 1974, Everett conducted a post-award safety survey at Action. On June 10, 1974, Slade wrote to Brenner, repeating the recommendations made in Everett's report. These recommendations dealt with the need for more emergency exits and the need to resurface and test the conductive flooring. Everett made no recommendation in regard to proper testing of the operational shield. Slade also requested that Brenner advise him of proposed corrective measures within twenty days. Plaintiff's Exhibit 32.

21. On June 25, 1974, Brenner wrote to Slade, stating that additional exits would be installed "when plans and specifications have been firmed up and released," and that the...

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