United States v. State of Illinois

• Court: U.S. Court of Appeals — Seventh Circuit
• Writing for the Court: HASTINGS, Senior Circuit , and PELL and SPRECHER, Circuit
• Citation: United States v. State of Illinois, 454 F.2d 297 (7th Cir. 1971)
• Decision Date: 27 December 1971
• Docket Number: 18559.,No. 18558,18558
• Parties: UNITED STATES of America, Third Party Plaintiff-Appellee, v. STATE OF ILLINOIS, Third Party Defendant-Appellant. STATE OF ILLINOIS, Fourth Party Plaintiff-Appellee, v. LLOYD'S OF LONDON, Fourth Party Defendant-Appellant.

454 F.2d 297 (1971)

UNITED STATES of America, Third Party Plaintiff-Appellee, v. STATE OF ILLINOIS, Third Party Defendant-Appellant.

STATE OF ILLINOIS, Fourth Party Plaintiff-Appellee, v. LLOYD'S OF LONDON, Fourth Party Defendant-Appellant.

Nos. 18558, 18559.

United States Court of Appeals, Seventh Circuit.

December 8, 1971.

Rehearing Denied December 27, 1971.

William J. Scott, Atty. Gen., Samuel E. Hirsch, Asst. Atty. Gen., Chicago, Ill., for the State of Ill.; Francis T. Crowe, Asst. Atty. Gen., of counsel.

Richard E. Mueller, Chicago, Ill., Maurice W. Kepner, Springfield, Ill., for Lloyd's of London; Lord, Bissell & Brook, Chicago, Ill., of counsel

William D. Appler, Dept. of Justice, Washington, D. C., Donald B. Mackay, U. S. Atty., Springfield, Ill., L. Patrick Gray, III, Asst. Atty. Gen., Frank J. Violanti, U. S. Atty., Walter H. Fleischer, Atty., Dept. of Justice, Washington, D. C., for United States.

Before HASTINGS, Senior Circuit Judge, and PELL and SPRECHER, Circuit Judges.

HASTINGS, Senior Circuit Judge.

This matter originated with the filing of four separate complaints on behalf of four individuals killed or injured at the 1966 Illinois State Fair, when a portion of a catwalk on top of the grandstand was pulled free from the roof during a performance by a United States Army Special Forces Unit, the Green Berets. The actions were filed against the United States of America¹ based on the alleged negligence of the Green Berets in performing their act.

United States brought a third-party action for indemnity against the State of Illinois contending that the negligence of the Green Berets, if any, was passive in nature, while Illinois was actively negligent and primarily responsible for the losses. Subsequently, Illinois in turn instituted a fourth-party action against Certain Underwriters at Lloyd's of London seeking recovery under a liability insurance policy for any amount for which Illinois might be held liable to the United States.

The four suits were consolidated for trial and were tried to the district court, without the intervention of a jury. The district court filed findings of fact, stated its conclusions of law and entered judgments thereon in favor of three of the plaintiffs against the United States in the aggregate sum of $637,847.03. After denying the motion of Illinois to dismiss the third-party complaint, the trial court held that Illinois was actively negligent as a matter of law and that the Green Berets were passively negligent, and determined that Illinois was required to reimburse the United States. The trial court further found and held that the subject insurance policy entitled Illinois to be reimbursed by Lloyd's of London.

The United States paid in full the judgments against it by plaintiffs and plaintiffs are no longer concerned in these appeals. In No. 18,558, Illinois has appealed, and in No. 18,559, Lloyd's of London has appealed.

The issues presented in No. 18,558 are (1) whether the district court had jurisdiction to implead and hear a third-party complaint for indemnity brought by the United States against the State of Illinois pursuant to Title 28, U.S.C.A. § 1345, and (2) whether the district court correctly found and held Illinois to be actively negligent and the United States to be only passively negligent and entitled to indemnity under the facts of this case.

The issue presented in No. 18,559 is essentially whether the automobile racing liability policy issued by Lloyd's of London applied to and covered the State of Illinois, not a named insured, and whether it applied to and covered the Green Beret performance in question. The United States is not a party to this appeal.

We deem it appropriate to make a brief statement of the underlying facts before proceeding to a discussion of the issues.

A Green Beret unit was invited by the manager of the Illinois State Fair to appear and perform as a part of the entertainment at the 1966 Fair on the State Fair Grounds in Springfield, Illinois. The State provided transportation, room and board for the twenty-one Green Berets who were to present two daily performance demonstrations from August 12 through August 21, 1966. The performance included, among other things, a demonstration of the techniques of traversing an open space by sliding down a rope attached at one end to a catwalk on the roof of the grandstand and kept taut by tying the other end to a truck or tractor on the ground below.

Prior to their August appearance, two officers from the unit made an inspection trip to the fairgrounds to determine how they might rig their various acts. At that time they were introduced to Ralph G. Heger, the long time manager, employed by Illinois, in charge of all the activities at the grandstand for the Fair. The officers inquired about an appropriate point to attach the elevated end of the rope to the grandstand, explaining they would need a firm place to tie down the rope used in rapelling and traversing. Heger represented to them that certain metal angle irons, which were part of the catwalk on the grandstand, were welded to the metal superstructure.² It was not possible then to get up on the roof to check the connection and the Fair manager did not provide the officers with available blueprints. Such blueprints would have shown that the angle irons were attached to the wooden roof with 1½" wood screws.

When the entire Green Beret Unit arrived at the Fair on August 11, 1966, Heger directed Sergeant Rumrill, who was in charge of the rope acts, to tie the rope only to the stanchions at that time, saying this was "the only safe place to tie." Rumrill was left only with the choice of which angle iron to tie on. Heger repeated such assurances and directions. Relying on this information, the Green Berets tied their rope at that point. They were subsequently denied permission to cut through the tarpaper roof to check the metal to metal connection and later were refused permission to tie at a different point for their own convenience.

The Green Berets performed their show several times on days prior to the accident. On the day of the accident, August 20, the rope was attached at one end to the angle irons at the catwalk and at the other end to a truck which had been repositioned from previous acts, resulting in more tension on the rope. The rope was pulled more taut by driving the truck away from the grandstand. While it was being tested for tautness, the moorings of the catwalk loosened and a portion of the catwalk fell upon the grandstand and race track below.

As a result of the fall of the catwalk, two photographers who were on the catwalk and Heger, standing on the ground, were killed and two spectators in the stands were seriously injured. At the time of the accident, time trials were being conducted on the race tracks for an upcoming automobile race.

After the accident, it was discovered that the metal angle irons were not welded or attached to the metal superstructure of the grandstand as represented by Heger, but rather were attached by screws to the wooden portion of the roof. Blueprints of the grandstand on file with Illinois, but not disclosed to the Green Berets, verified this condition. The Green Berets, relying upon this misinformation by Illinois, failed to inspect the manner of the attachment of the catwalk to the roof. The trial court found, inter alia, that had the angle irons been attached "metal to metal" as represented by Illinois, they would have withstood the tension placed upon them.

No. 18,558

Illinois contends that the federal district court had no jurisdiction to implead the State of Illinois in the case at bar. It asserts immunity from such an action, claiming (1) that it is barred by the Eleventh Amendment to the Federal Constitution and by Article IV, Section 26 of the Illinois Constitution; (2) that jurisdiction under 28 U.S.C.A. § 1345 extends only to suits "commenced" by the United States, and not to a thirdparty action; and, (3) that Rule 14 of the Federal Rules of Civil Procedure, 28 U.S.C.A., authorized impleader only of "persons", and that the State is not a person.

In our judgment, after reviewing the relevant authorities, the claim of immunity here is misplaced and the arguments advanced have been uniformly rejected by the federal courts.

The Eleventh Amendment reads: "The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State." The mere reading of this amendment makes clear that it has no application to suits brought by the United States for indemnity or for any other purpose. It applies to actions brought against a state by citizens of another state, which prohibition has now been extended to its own citizens, unless the State consents to be sued. Truitt v. State of Illinois, 7 Cir., 278 F.2d 819, 820 (1960), cert. denied, 364 U.S. 866, 81 S. Ct. 109, 5 L.Ed.2d 88, and cases cited therein.

As in Truitt, supra, in the instant case the State of Illinois did not consent to be sued and, in fact, could not so consent in view of Art. IV, § 26 of its own Constitution, S.H.A., which provides: "The State of Illinois shall never be made defendant in any court of law or equity." Further, it may not be seriously contended that § 26, supra, immunizes the State from a suit by the United States. United States v. Texas, 143 U.S. 621, 646, 12 S.Ct. 488, 36 L.Ed. 285 (1892).

Congress enacted 28 U.S.C.A. § 1345 in its present form on June 25, 1948 (62 Stat. 933), which reads: "Except as otherwise provided by Act of Congress, the district courts shall have original jurisdiction of all civil actions, suits or proceedings commenced by the United States, or by any agency or officer thereof expressly authorized to sue by Act of Congress." A comprehensive scholarly review of the legislative history and the...