White v. United States
| Decision Date | 17 January 2013 |
| Docket Number | CASE NO. 11-5536 RJB |
| Court | U.S. District Court — Western District of Washington |
| Parties | LIONEL WHITE, Plaintiff, v. UNITED STATES OF AMERICA, and PACIFIC SHIP REPAIR AND FABRICATION, INC., Defendants /Third Party Plaintiff's v. AMSEC LLC, Third Party Defendant. |
DISMISS, MOTIONS FOR
SUMMARY JUDGMENT, AND
This matter comes before the Court on the Plaintiff's Motion to Strike (Dkt. 54), Defendant United States of America's Motion to Dismiss (Dkt. 48), Pacific Ship Repair and Fabrication Inc.'s Motion for Summary Judgment Dismissing Plaintiff's Claims (Dkt. 51), Third-Party Defendant AMSEC, LLC's Motion for Summary Judgment (Dkt. 45), and to the extentthat one is made, Pacific Ship Repair and Fabrication Inc.'s motion for summary judgment dismissing the United States' claims against it (Dkt. 58). The Court has considered the pleadings filed in support of and in opposition to the motions, oral argument held on 10 January 2013, and the file herein.
Plaintiff Lionel White filed this case to recover for injuries he sustained at work after tripping and falling while walking on the west wall of Puget Sound Naval Shipyard, Dry Dock 6. Dkt. 16. Now ripe is the Defendant United States' Motion to Dismiss, where it asserts that this Court lacks subject matter jurisdiction over Plaintiff's claims against it because of the discretionary function exception to Federal Tort Claims Act ("FTCA"). Dkt. 12. Defendant Pacific Ship Repair and Fabrication Inc. ("PacShip") moves for summary judgment on Plaintiff's claims against it, arguing that if the United States' is immunized by the discretionary function exception, as a contractor for the United States, it is entitled to the government contractor defense. Dkt. 51. Defendant AMSEC moves for summary dismissal of the indemnity and contribution cross claims asserted against it, arguing that there is no evidence that it was negligent and because it paid workers' compensation benefits, it is immune from further liability. Dkt. 45.
For the reasons set forth below, the discretionary function exception does not apply and so the United States' motion (Dkt. 12) should be denied. PacShip, accordingly, is not entitled to the government contractor defense, and so its motion for summary judgment (Dkt. 51) should be denied. AMSEC's motion (Dkt. 45) should be granted because there is no evidence it was negligent and so PacShip's cross claims for contribution and indemnity should be dismissed. To the extent that PacShip moves for summary dismissal of the United States' claims (made inPacShip's response to AMSEC's motion (Dkt. 58)) the motion should be denied without prejudice for failing to follow Western District of Washington Rule of Civ. Pro. 7(d).
Puget Sound Naval Shipyard and Intermediate Maintenance Facility ("PSNS"), established in 1891, is a major industrial facility for the maintenance, repair, and modernization of the U.S. Navy Fleet. Dkt. 50, at 2. Employing over 10,500 civilians and a multitude of contractors, operations at PSNS occur 24 hours a day, seven days a week, in and around the six dry docks. Id.
PSNS is a "high security, nuclear, military repair facility." Dkt. 53, at 5. Dry Dock 6 is in the middle of the secure area, also known as the Controlled Industrial Area or ("CIA"), and is not open to the public. Id. Special security clearances are required to enter, and access is controlled by guards. Id. Visitors must receive clearances in advance and be escorted by authorized personnel. Dkt. 53, at 5-6. "Any and all changes to the shipyard must be approved by the appropriate Navy personnel so they can evaluate potential security risk and then assure that such changes are carried out is a way that does not compromise security." Dkt. 53, at 6.
PSNS's Dry Dock 6 is the largest dry dock, and the only dry dock in the Pacific capable of berthing the Navy's nuclear aircraft carriers. Dkt. 53, at 2. It is surrounded on three sides by the waters of Sinclair Inlet, and at its' south end is a caisson, or dam. There can be a workforce of over 4000 people a day on Dry Dock 6 at the height of production. Dkt. 50, at 3. It is over 1100 feet long, 180 feet wide, and 60 feet deep. Dkt. 50, at 2. "Encircling it is nearly one mile of crane track, major utilities tunnels, services, dock access points, brows and ramps to support the heavy industrial work on the ships." Dkt. 50, at 2-3. "The walking surface of the west wallof Dry Dock 6 is not a smooth surface." Dkt. 53, at 7. There are many incongruities and changes in height though out the length of the west wall, which is a work area that workers move around on foot. Dkt. 53, at 7. Crane tracks for the 170 ton capacity cranes are recessed into the pavement, but are open and the flange way grooves are around three inches wide and an inch deep. Dkt. 50, at 3. There are many track switches and rail transfer points along these tracks. Id. "The areas around and in the dry dock are utilized for industrial operations and may include electrical generators, transformers, compressors, tanks and other large pieces of equipment, all of which require power cables, hoses and other services that are placed or anchored on the pavement." Id. The concrete and asphalt surfaces are worn down and damaged by "heavy trucks, forklifts, and other heavy transportation vehicles which are constantly bringing supplies and parts and machinery" to be moved onto the ship by crane. Id. "Large blast and paint equipment is used and containment structures are raised, anchored and then moved as work progresses on the ship." Id. There are steel plates and metal drains used for draining water off the dock. Dkt. 53, at 8. The surface also has other bolts and rebar that "are used or have been used for equipment in connection with dry docking vessels." Id. The walking surfaces of the dry dock are constantly changing as phases of work are started and completed. Dkt. 49, at 4. Although it is repaved, according to the United States, "[i]t would be impossible to move all of this heavy equipment and perform the work necessary on the ship in dock and maintain the area in a completely trip hazard free condition." Dkt. 49, at 4.
Code 106 is the department at PSNS that is responsible for safety within the shipyard. Dkts. 49 and 53, at 6. They conduct daily inspections of the vessels under repair as well as the other work areas of the shipyard. Id. "Code 106 personnel are responsible for identifying and addressing any safety issues or unsafe conditions found within the shipyard." Dkt. 53, at 6. Thisincludes the walking surface on the walls of Dry Dock 6. Id. If a hazardous condition is found anywhere but aboard the ship, such as a common area, the Navy will address and correct such hazard. Id. PacShip asserts that contractors such as it and AMSEC "have no control or authority over, or ability to make any change to, any common area within PSNS." Id. If a contractor believes a safety issue exists in the common area, it can report this to Code 106, and Code 106 will "evaluate the condition and make their own decision whether such condition constitutes an actionable safety hazard or requires remediation." Id.
The United States acknowledges that the heavy industrial area around Dry Dock 6 cannot be made free of all safety hazards. Dkt. 49, at 2. "PSNS uses paint to mark certain hazards on the walking surface, such as crane tracks, but it is impractical to mark all possible trip hazards because the dry dock would then resemble a 'leopard' print, thereby negating the effect of such markings." Dkt. 53, at 8. Accordingly, employees are given training and daily safety briefings of the "need to 'watch your step' and to be on the constant lookout for tripping hazards." Dkt. 53, at 8. "In addition to the constant reinforcement of warnings, nobody is allowed to work [on Dry Dock 6] without appropriate safety equipment" including steel toed shoes or boots, safety glasses, and hard hats. Dkt. 49, at 3.
In 2007, Defendant PacShip was awarded a "Multiple Award Contract" to perform repair and maintenance work on U.S. Navy vessels. Dkt. 53, at 3. In September of 2008, PacShip was "awarded a contract pursuant to the Multiple Award Contract to perform 'habitability' work aboard the U.S.S. EMORY S. LAND." Id., at 4.
One month later, PacShip subcontracted with Third-Party Defendant AMSEC, LLC to perform certain work on the LAND. Id. PacShip and AMSEC had been instructed by the Navy to use a specific area of the dock for their work trailers, toolboxes, and supplies. Dkt. 55-1 at 10-12. Employees had to walk on Dry Dock 6 between the Conex boxes (which are large trailers) and the LAND. Id.
On December 15, 2008, Plaintiff was working for AMSEC on Dry Dock No. 6. Dkt. 16. Plaintiff was assigned to the fire watch. Id. Around 6:15 a.m., he picked up a large fire extinguisher and walked along the west wall toward his assigned station aboard the U.S.S. EMORY S. LAND. Dkt. 42-1, at 33-35. It was dark. Dkt. 42-1, at 36. Near the gangway, Plaintiff felt his foot stop, and fell, injuring his shoulder. Id. He states that he "was just walking along there at a normal pace and put [his] foot out on the next step and it stopped and down [he] went." Dkt. 42-1, at 38. Plaintiff states that he looked around and believed that he tripped on a bolt or "stud" embedded in the walking surface which was over ¼ of an inch in height. Dkt. 42-1, at 38 and 40. As a result of his fall, Plaintiff's states that his right rotator cuff was torn. Dkt. 40-1, at 6.
On the day of his injury, Plaintiff was a 64 year old retired PSNS worker, 5'7" tall and weighed 276 pounds. Dkt. 42-1, at 24. He had surgery on his big toe less than two weeks before his accident, had left knee pain, and a leg length discrepancy which caused an alteration in his gait. Dkt. 41-1, at 11-16. He also suffered from blurry vision and a loss in sensation in both feet from uncontrolled...
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