United States v. Page

Decision Date18 August 1965
Docket NumberNo. 7880.,7880.
Citation350 F.2d 28
PartiesUNITED STATES of America, Appellant, v. Delora Huff PAGE, individually and as Guardian Ad Litem of Stanley James Page and Jenny Lynn Page, Minors, Appellee.
CourtU.S. Court of Appeals — Tenth Circuit

Martin Jacobs, Atty., Dept. of Justice, Washington, D. C. (John W. Douglas, Asst. Atty. Gen., William T. Thurman, U. S. Atty., and Alan S. Rosenthal, Washington, D. C., Atty., with him on the brief), for appellant.

Paul N. Cotro-Manes, Salt Lake City, Utah, for appellee.

Before PICKETT, LEWIS and SETH, Circuit Judges.

SETH, Circuit Judge.

This is an action brought under the Federal Tort Claims Act, seeking damages for the death of the decedent, Stanley G. Page, who was an employee of Hercules Powder Company. The company is not a party. At the time of his death in an explosion the decedent was employed in the manufacture of solid fuel propellants for model experimental rockets to be used by the United States Government. The work was performed at Bacchus, Utah, in a plant owned by Hercules Powder Company pursuant to a cost plus fixed fee research and development contract with the United States. The contract provided that the Government would supply certain items of equipment and supplies, and the contractor would provide personnel, facilities and also certain material and supplies. The Government acquired title to property which was purchased by the contractor for which reimbursement was to be made. Title was vested in the Government at the time the property was acquired by the contractor. The Government provided in this contract that Hercules was to comply with specific safety requirements, including certain Air Force technical orders, and further was to comply with "any additional safety measures required by the Contracting Officer." There were Air Force officers and civilian personnel located at the plant, and at the adjoining plant where the contractor performed other duties for the Government. The Government employees in both plants numbered approximately one hundred and four. At the plant in question, Hercules employed approximately three thousand persons. The Air Force officers were charged with the duty of seeing that the contractor performed his duties in accordance with the contract and to see that the contractor properly accounted for and handled Government property. There was an Air Force officer who had the title of "Safety Engineer" whose duties extended to both plants, and it was his responsibility to "monitor" the contractor's safety performance under the requirements of the contract.

The manufacture of the solid fuel propellant required the mixture of a form of gunpowder with a solvent containing plasticizers and 89.95 per cent pure liquid nitroglycerin. This mixture was placed in a mold and was cured under varying conditions for a period of some seven or eight days, after which time the molds were removed from the curing process. These molds consisted of an eleven-inch square aluminum base upon which was placed a cylinder about nine inches in diameter. On top of this cylinder, another aluminum top plate was attached together with certain air hoses. The total mold was about six feet three inches in height and when filled weighed about 340 pounds.

The explosion which caused the death of the decedent and two fellow workers occurred at a time when they were moving these filled molds from the curing room and placing them upon a small trailer to be moved from the curing building. There was provided in the curing room an air hoist which was attached to overhead track. The molds were lifted by means of this hoist and moved through a doorway and with the hoist loaded onto the trailer. At the time of the explosion, three of these molds had been placed upon the trailer, one was in the process of being moved along the track, and four were standing on the floor of the curing room, the ventilating hoses having been removed from their wall connections. The molds so standing were not supported or fixed by any ties or fastenings to the walls or ceiling of the room but were merely standing on the floor by their own weight.

By reason of the force of the explosion, the witnesses found it difficult to determine where the initial explosion took place and were unable to determine the exact cause of the explosion.

As will be hereinafter more fully described, the court found that the Government employees were negligent in that they did not supervise properly the industrial safety practices of the contractor nor did they prescribe additional safety practices or properly inspect the Government property as to safety. The court found that the Government had a duty in this connection by reason of the rights reserved under its contract to prescribe and impose safety regulations in addition to those contained in the contract, and also by reason of the Government's reserved right to inspect the plant and work performed by the contractor. The court further found that the molds were inherently dangerous by reason of their size, shape, and the materials from which they were made. The court therefore rendered judgment in favor of the plaintiffs, and this appeal has been taken by the Government.

As stated above, the trial court found a duty from the United States to the decedent by reason of the contract provisions reserving a right in the United States to prescribe safety requirements in addition to those set out in the contract, and in the right to inspect contractor's facilities and work. The appellee contended below and here that the reservation of such powers to the United States in the contract created a duty to the decedent. The authorities do not however support the argument.

The fact that the contract may have reserved to the United States the right to inspect the work and facilities of the independent contractor, and the right to stop the work, does not in itself override or alter the general rule of non-liability for the torts of the contractor because no duty is created to employees or third parties. This includes the reservation to inspect for the adherence to contract safety provisions. Kirk v. United States, 270 F.2d 110 (9th Cir.). In the cited case an employee of an independent contractor doing dam work for the United States was killed when a scaffold collapsed and he fell into the river. The claimants contended that the Government officials were remiss in not enforcing the safety regulations as to safety belts, nets and rescue equipment, and in not inspecting more carefully the scaffold and the methods used to move it. The court rejected the contentions and found no duty arose by the contract, by the statute under which the contract was executed, nor by the Government's undertaking a safety program. The fact that the work and duties of the independent contractor and of his employees originate in a contract, in plans, or regulations issued by the Government does not create a duty by it to the employees where there was not such an affirmative control and direction by Government officials over the employees or interference in the work of the contractor as to create conditions where there was in fact no independent contractor. The court in Grogan v. United States, 341 F.2d 39 (6th Cir.), also considered a claim based on the Government's failure to inspect scaffolding used by an independent contractor. It there said there was a right reserved, but no duty was created. The contractor there had designed and built the scaffold. See also Cannon v. United States, 328 F.2d 763 (7th Cir.).

Could it be that the United States is liable because although it may not have a duty, it undertook to administer a safety program and thereby became liable for its negligence in carrying it out? Indian Towing Co. v. United States, 350 U.S. 61, 76 S.Ct. 122, 100 L.Ed. 48, and Rayonier, Inc. v. United States, 352 U.S. 315, 77 S.Ct. 374, 1 L.Ed.2d 354; Grogan v. United States, supra; Kirk v. United States, supra. In Blaber v. United States, 332 F.2d 629 (2d Cir.), the court considered an accident which took place in the laboratory of an independent contractor who was conducting contract research and development work for the Atomic Energy Commission. The claimant was killed when an explosion occurred while employees were burning thorium. The court in the cited case referred to the periodic inspections made by AEC representatives of the contractor's plant to see that safety regulations were complied with. The Commission also received periodic reports on safety, it conducted air sample and other tests with regard to radiation. The court found that the doctrine of Indian Towing Co. v. United States, supra, and Rayonier, Inc. v. United States, supra, did not apply. The court in Blaber held that the contractor had the primary responsibility for safety of its employees and the contractor was charged with and supervised the particular duty which was being performed when the thorium exploded. The same standards are applicable to the case at bar. Hercules had the primary responsibility for the safety of its employees; it had the direct control and supervision over them, and they were working in its plant. Further, it had the duty to perform and supervise the individual functions, the total of which produced the end product. The function the decedent was performing was but one of many of these in this chain of production. It and the safety of those then working was under the exclusive control and supervision of Hercules. The safety program of the Government did not constitute an exercise of any such control. The fact that the activity may be dangerous has no consequences on this issue. See Wallach v. United States, 291 F.2d 69 (2d Cir.). See also Buchanan v. United States, 305 F.2d 738 (8th Cir.); Nyquist v. United States, 226 F.Supp. 884 (D. Mont.).

The trial court found that the "exact cause" of the explosion was unknown, that the first detonation occurred inside the center bay of the...

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