Vandergrift v. United States
Decision Date | 30 March 1978 |
Docket Number | Civ. A. No. 77-197-N. |
Citation | 500 F. Supp. 229 |
Parties | Walter B. VANDERGRIFT, Administrator of the Estate of Walter James Vandergrift, Deceased, Plaintiff, v. UNITED STATES of America, Defendant. |
Court | U.S. District Court — Eastern District of Virginia |
George H. Gray, Outland, Gray, O'Keefe & Hubbard, Chesapeake, Va., for plaintiff.
Stephen Wainger, John F. Kane, Asst. U. S. Attys., Norfolk, Va., Dennis L. deLeon, Trial Atty., Torts Branch, Civil Division, U. S. Dept. of Justice, Washington, D. C., for defendant.
Plaintiff seeks to recover damages from the United States for the death of plaintiff's decedent, Walter James Vandergrift (James), caused by his fall through the roof of Building 643 at the Langley Air Force Center on March 29, 1976.
The United States contracted with Mechanical Products, Inc. (Mechanical) for the performance of certain construction and installation work at Langley Field. Mechanical subcontracted a portion of the work to Sullivan Mechanical Contractors, Inc. (Sullivan), including the installation of ducts for the air vent system being installed in Building 643. Plaintiff's decedent was an employee of Sullivan. Almost a year prior to James' accident, Sullivan had performed some of its contract work, but ceased work because Mechanical had failed to make payment for the work performed pursuant to contract. Shortly before James' fall, Sullivan had agreed to and did return to the job.
Installation of the ductwork in Building 643 required James and others to go upon the roof of the building in order to cut a hole in the roof and install a vent. Access to the roof was available through a permanently fixed ladder leading to a platform, and a door opening from that platform onto the roof. This was the means used on March 29, 1976. On the day of the accident, James went with Herbert King, whom he was assisting, to the roof to cut the hole for the air vent. While there, the roof gave way and James fell through the roof some 75 feet to the floor of the building, sustaining injuries, from which he later died on April 3, 1976.
The basic contentions of plaintiff are that the roof in question was defective and dangerous, known to the defendant to be unsafe and dangerous, and although defendant knew Sullivan would be required to go upon that roof to perform its contract, it negligently failed to give any notice or warning of the known unsafe condition.
The issues are two, first, was the defendant negligent in failing to give warning of a known unsafe condition of the roof when it had knowledge workmen would be required to go upon that roof to perform the work contracted to be done, and if so, the amount of damages suffered.
It is stipulated between the parties that the Court has jurisdiction of this action; that James fell through the roof of Building 643 at Langley Research Center, Langley Field, on March 29, 1976, and that he died on April 3, 1976, from the injuries received in such fall; that at the time of the fall James was in the employ of Sullivan, a subcontractor of Mechanical; that James was working in the scope of his employment, doing work required by the general contractor; that the contract of June 11, 1974, between Mechanical and United States, for the performance of the work which James was doing did not contain any provision setting forth the finding made by an examination and survey of the roof in question in 1966, was dangerous and should not be used to support the weight of a workman. Nor did the contract contain any provision or notice of the recommendation of the 1966 survey which recommended that any contract work to be done requiring entry upon the roof to contain a requirement that the contractor submit to the contracting officer for approval a description of the method to be used for spanning catwalks between trusses and between purlins capable of bearing the weight of workmen, materials and equipment so as not to place weight on the corrogated cement asbestos board roof. Nor did the contract provide that safety precautions, safety lines, barricades or signs were to be provided as required by the Safety Manual of the Corps of Engineers. At time of trial defendant stipulated that the part of the roof which was not part of the overlap and which was not supported by the beams, was unsafe to walk on.
The following facts are established by the evidence.
(a) Sullivan was a subcontractor of Mechanical, and had worked at various times on the project in question. Sullivan had worked the week prior to the occasion when James' accident occurred.
(b) On the day of the accident James was assisting Herbert King in cutting a hole in the roof of Building 643. King, one Harris and James, after gaining access to the roof by way of the ladder, platform and door abovementioned, walked down the valley of the roof and up towards its peak. King had told Harris and James to walk where they thought the beams were. However, the overlaps were staggered, so they were not necessarily supported directly beneath by the beams.
(c) As James was walking from the valley towards the peak of the roof, where he and the others had previously walked, up to where King was working, one of the cement asbestos panels gave way and he fell some 75 feet.
(d) The specifications in an earlier contract between defendant and Roof Engineering Corporation of April 29, 1966, established knowledge of the condition of the roof on the part of defendant, for that contract specified that the roof had deteriorated and should not be used to support a workman. Nothing had been done to the roof to change its condition between that date in 1966 and the date of the accident.
(e) Further, the weakness of the roof was known through the fact that a moderate snow load would cause parts of the multi-level roof to cave in. The Facility Coordinator testified it was common knowledge "to anyone who worked in our facility" that Careystone, the material on the roof, "would not support your weight." Tr. of Ev. p. 231.
(f) Bowie, the Technical Project Engineer for the rehabilitation of Building 643, knew that Sullivan was the subcontractor for the ductwork on the building; that he had earlier submitted shop drawings for part of the work; that the work required the men to go upon the roof. An inspector was required to check the building each day during working hours to determine what work was being done on contracts, and the inspector assigned to Building 643 for the work in question knew that work was to be done on the roof.
(g) There was nothing in or on any of the drawings, contracts, specifications or other papers furnished Sullivan or its employees to give notice or an indication of any dangerous condition of the roof. Sullivan's personnel could observe no dangerous condition in or on the roof. Some of them had been on the roof in the area of the accident before. There was no sign posted at or near the door leading to the roof to give warning. Though in the past the door had been locked to prevent access to the roof, there was no lock on it the day of the accident, and there had not been one there for a long period of time.
(h) Some notice had been given to Mechanical's workmen not to walk on the roof without some reinforcement being provided, but this did not refer to the roof where Sullivan was working, and Sullivan's employees were not so advised.
(i) Defendant knew that Sullivan was a subcontractor of Mechanical and would be required to go on the roof, but was never given notice of the condition of the roof. Not only did defendant know Sullivan was a contractor and that its employees were working in Building 643 and required to go on the roof, it never gave notice of the known defective condition of the roof.
Plaintiff's action is grounded in the provisions of the Federal Tort Claims Act, 28 U.S.C. § 2674, jurisdiction being pursuant to 28 U.S.C. § 1346(b). The United States is thus made liable for personal injury or death caused by the negligent or wrongful act or omission of an 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. 28 U.S.C. § 1346(b) and 28 U.S.C. § 2674. The accident in issue having occurred in Virginia, the law of Virginia is to be applied. United States v. Muniz, 374 U.S. 150, 83 S.Ct. 1850, 10 L.Ed.2d 805 (1963); Richards v. United States, 369 U.S. 1, 82 S.Ct. 585, 7 L.Ed.2d 492 (1962); Massachusetts Bonding & Insurance Co. v. United States, 352 U.S. 128, 77 S.Ct. 186, 1 L.Ed.2d 189 (1956); Jennings v. United States, 374 F.2d 983 (4th Cir. 1967); Murray v. United States, 329 F.2d 270 (4th Cir. 1964). The Act is to be invoked only on a negligent or wrongful act. If negligence is not shown, the action does not arise under the Act. Laird v. Nelms, 406 U.S. 797, 92 S.Ct. 1899, 32 L.Ed.2d 499 (1972); Dalehite v. United States, 346 U.S. 15, 73 S.Ct. 956, 97 L.Ed. 1427 (1953). When an agency of the United States undertakes a task, it must perform the task with due care. Rogers v. United States, 397 F.2d 12 (4th Cir. 1968). The Virginia law is the same. City of Richmond v. Virginia Bonded Warehouse Corp., 148 Va. 60, 138 S.E. 503, 507. See also Conowingo Power Co. v. State of Maryland, 120 F.2d 870 (4th Cir. 1941). One is entitled to assume another party will perform his duty, and may act upon such until the contrary appears or reasonably should appear. Harris Motor Line v. Green, 184 Va. 984, 37 S.E.2d 4 (1946).
An employee of a contractor or subcontractor who is upon the premises performing work which the owner has contracted for is there as an invitee at the places where he is authorized to be. Trimyer v. Norfolk Tallow Co., 192 Va. 776, 66 S.E.2d 441; Davis Bakery v. Dozier, 139 Va. 628, 124 S.E. 411; Kalopodes v. Federal Reserve Bank of Richmond, 367...
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