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April 23, 1969

Robert A. FISHER

The opinion of the court was delivered by: LORD, JR.

 JOHN W. LORD, Jr., Chief Judge.

 After full consideration of the evidence presented at trial as well as the affidavits submitted by the parties in connection with the motion of Berks Steel Service, Inc., under Rule 59 of the Federal Rules of Civil Procedure to reopen the record for the presentation of newly discovered evidence, the Court makes the following


 1. On or about June 22, 1960, at or about 3:10 P.M., Eastern Daylight Saving Time, plaintiff, while in the employ of Berks Steel Service Corporation of Coatesville, Chester County, Pennsylvania, as a steelworker, was lawfully working upon the premises commonly referred to as Kettle Creek Dam Project, a United States flood control dam project, at or near the Borough of Renovo, Clinton County, Pennsylvania. Plaintiff was a business invitee of the Government on that property.

 2. Said premises are now and were at the time aforesaid owned by, and in the possession of, the defendant United States.

 3. The aforesaid dam project was designed by the defendant United States.

 4. The United States through the United States Army Corps of Engineers awarded a contract for the complete construction of the dam to the George M. Brewster & Son, Inc. This contract was designated as Contract No. DA-18-020-CIVENG-59-34.

 5. The bulk of the concrete work to be performed under the Government contract was subcontracted by George M. Brewster & Son, Inc. (hereinafter referred to as "Brewster") to the H. I. Lewis Construction Co., Inc. (hereinafter referred to as "Lewis").

 6. Lewis subcontracted the supporting structural steel work required in the pouring of concrete to Berks Steel Service, Inc. (hereinafter referred to as "Berks").

 7. The plaintiff, at the time of his injury, was employed by Berks, and he was in the performance of work under the Berks subcontract with Lewis at the time of his injury.

 8. On June 22, 1960, the water intake portion of the flood control dam was in the early stages of construction. This area later would be under water and have the function of allowing water to enter into a large tunnel and escape downriver in times of heavy rainfall.

 9. To regulate the flow of water into the tunnel the plans provided for the construction of three tunnel-like inlets controlled by separate gates. Prior to the date of the accident, a huge concrete slab had been completed at the base of the dam. Upon this slab, wall-like structures were to be constructed in concrete so that the three inlets described above would have sides.

 10. About noon on June 22, 1960, the plaintiff was inside a ten-foot high wooden form which was to be used for one of the walls above described. The form was approximately four feet wide at the point where the accident occurred. It had been erected previously by Lewis.

 11. This wooden form held its shape by being pulled together by steel tie rods and held apart by wooden spreaders. The spreader was nailed to each side of the form by two nails. It had been installed by Lewis and was not intended to bear weight.

 12. When concrete is poured inside such forms the spreaders (in the case at hand two inch by six inch boards of a length of approximately four feet) are removed when the concrete is poured.

 13. The plaintiff on June 22, 1960, was tying and untying reinforcement steel within the walls of the concrete form previously described when he stepped upon a spreader board, using it as a platform. This spreader broke loose from one side of the form and the plaintiff fell to the concrete slab below, striking his left ankle on some of the reinforcement steel at the concrete slab level.

 14. The spreader board was properly secured in its place for the purpose for which it was used, i.e., maintaining the form's shape.

 15. The defendant United States maintained a safety program for the benefit of the plaintiff and other construction workers at its Kettle Creek Dam Project.

 16. Mr. Weaver was resident engineer for the Government at Kettle Creek Dam. He was in general charge of the construction and his duties involved generally looking after the work to see that it was built in accordance with the contract requirements and general supervision of the Government inspection force.

 17. The men assigned to work as inspectors generally looked for conditions around the job to assure themselves that the general safety conditions were being followed and that there was an observance of safe working practices. Mr. Weaver required the contractor to furnish him with a safety plan and it was within his authority to require the contractor to include safety regulations in that plan. Thus, Mr. Weaver exercised a substantial amount of supervision over safety practices at the Dam site.

 18. The inspectors had the duty to see to it that the work was done in accordance with the specifications and also that there were no violations of safety precautions. They actually did note and report dangerous conditions relating to loose rock, sagging electric wires and other such matters. It was the practice of the Government Inspectors if they saw a dangerous condition or practice to warn the man or men involved and their supervisor.

 19. The defendant United States had inspectors in the tunnel in-take area on June 22, 1960, the day of the accident. Those inspectors were Mr. Robert R. Merritt and Mr. Henry Hurtt. These inspectors knew that it was unsafe to stand on spreaders. They were on the scene daily, and issued safety directions to those working there on numerous occasions.

 20. Mr. Merritt was in the vicinity of the tunnel in-take structure before and after the accident. Mr. Hurtt was in the vicinity of the tunnel in-take structure both before and after the accident.

 21. Mr. Merritt, who was observed by plaintiff prior to the accident in the area where the accident occurred, had the duty of inspecting for safety purposes. If he saw an unsafe practice, he would contact the foreman and ask him to correct it.

 22. No official of the defendant United States warned the plaintiff not to step on the spreaders.

 23. Mr. Weaver knew that on occasions subcontracting companies would hire inexperienced personnel.

 24. Mr. Weaver, as Director of the Safety Program, took no precaution with respect to warning inexperienced employees or causing them to be warned of the dangers of stepping on a spreader.

 25. In the assurances Mr. Weaver required of and received from the prime contractor with respect to safety and safety indoctrination of employees, there was no reference to stepping on spreaders.

 26. The defendant United States had reason to know that there were workmen who made a practice of stepping on spreaders at the job site.

 27. Plaintiff was injured because of the Government's failure to protect him against the danger that existed.

 28. The plaintiff did not complete the 8th grade in grammar school. When he left school, he was a farm boy and did farm work until he was 16 at which time he started work in a road crew with a pick and shovel. Then he went back to the farm for a while. Thereafter, he did miscellaneous labor, banding rolls of steel, working in foundries, occasionally returning to farming, and working in a bakery plant. In 1960 he went to work for the State Highway Department mowing grass. Then he was offered the job when he had the accident out of which this suit arises. Thus, plaintiff was inexperienced in working at such job sites and did not know of the danger of walking on spreaders; rather, he assumed it to be a safe practice since he observed other workmen walking on the spreaders. He had only been working on this construction two days prior to the day of the accident.

 29. To the extent that he saw forms before the accident, plaintiff could not see how the walls were held in place and he did not know anything about spreaders.

 30. The plaintiff saw other workmen, including carpenters and other employees, walking on the spreaders during the course of his employment and prior to the accident. He did not see any Government inspectors stand on a spreader, however.

 31. At no time prior to the accident did anyone ever tell plaintiff not to step on a spreader.

 32. Under the prime contract between the defendant Government and Brewster, the latter agreed that it would comply with all pertinent provisions of a Corps of Engineers Manual and that compliance with the Manual by subcontractors would be the responsibility of Brewster.

 33. One of the provisions of the Manual was "that each employee should be provided initial indoctrination and such continuing instruction as will enable him to conduct his work in a safe manner."

 34. Defendant Brewster did nothing to prevent the plaintiff and others from using the wooden spreaders constructed for the bracing of concrete forms as platforms, scaffolds or ladders while working above the surface of a concrete slab base.

 35. The provisions of the Corps of Engineers Manual that each employee should be provided such initial indoctrination and continuing instruction as would enable him to conduct work in a safe manner was not complied with by Brewster and Brewster did not take adequate steps to see that Berks complied with that provision.

 36. Indoctrination of plaintiff as to how to perform the work in a safe manner within the forms should have included a warning not to step on or walk upon spreader boards within the forms.

 37. The contract between Brewster and Lewis

1. Incorporated by reference all terms and conditions of the United States - Brewster contract, plans and specifications, including the requirement of compliance with Corps of Engineering Manual EM-38511. (page 1 and Article 10, pages 3 and 4 of Brewster-Lewis contract, Exhibit G 10).
2. Expressly provided for indemnification of Brewster by Lewis. (Article 10, pages 3 and 4 of Brewster-Lewis contract, Exhibit G 10).

 38. The only written memorandum relevant to the contractual relationship between Lewis and Berks whereby Berks agreed to handle the structural steel work was a "Purchase Order" which did not incorporate by reference the indemnity provisions of the prime contract. There was no further understanding between these parties by which the indemnity provisions of the prime contract would be incorporated in the contractual relationship between them.

 39. The third-party defendant, Berks, through its foreman, Charles B. Varner, and others, set up and initiated the procedure for doing the work in which the plaintiff was engaged at the time of his injury.

 40. Mr. Varner had seen people on the job at Kettle Creek in the in-take area step on spreaders prior to this accident. They were laborers.

 41. Berks knew that the plaintiff was inexperienced in working in concrete forms and unfamiliar with and uninformed of the nature of their component parts.

 43. Berks failed to properly and adequately instruct the plaintiff as to the safe and prudent manner of performing his work, and in particular as to the use of the spreaders.

 44. After plaintiff fell, he was removed from the form and taken by Mr. Oswalt (a fellow worker) in the latter's car to a hospital at Renovo.

 45. After two and one half days, his friends took him from the Renovo Hospital to his home in Reading, where he was treated by Dr. Yund.

 46. He first went into the Reading Hospital in September of 1960. At that time a cast was put on his ankle. With that cast he could walk with crutches and he had the cast on about six or seven weeks.

 47. The cast did not improve his condition and his leg was extremely painful.

 48. After the first cast was removed on July 15, 1960, plaintiff went back to work for four or five hours. An elastic bandage was applied to his leg when the cast was removed. His task at work at this time was to carry steel, basically the same type of work he had done prior to the accident.

 49. Subsequent to July 15, plaintiff's foot kept swelling and he had such pain that he could not continue working. He returned to the Reading Hospital. At that time Dr. L. C. Yund, plaintiff's doctor at the hospital, recommended a leather ankle support, and plaintiff acquired such a support.

 50. On August 25, when plaintiff returned to the hospital after experiencing continued pain, further x-rays revealed tearing of the calcanco-fibular ligament and the anterior talo fibular ligament. The function of both of these ligaments is to give stability to the ankle joints.

 51. Dr. Yund recommended surgery on September 5, 1960. The operation took place on September 6, 1960, and plaintiff remained in the hospital until September 10. Through an incision in the left thigh, connective tissue called "fascia lata" was taken from the thigh and interwoven where the ligaments were torn in plaintiff's ankle. The removal of tissue from the thigh caused the thigh muscles to protrude somewhat. The surgical repairs used included the drilling of holes through certain bones in the plaintiff's leg.

 52. Subsequent to the above operation, redness, swelling and pain developed in the area of the surgery. There was also substantial drainage about the left ankle. Plaintiff was readmitted to Reading Hospital January 9, 1961 and remained until January 23, 1961. At that time plaintiff was given therapy in the form of whirlpool treatments and hot packs. A culture from the drainage revealed an infection. Surgery was performed on January 18, 1961 to free the sural nerve, which had been pinched by scar tissue from the previous operation, causing great pain. The surgery also included use of the one remaining tendon to reinforce the previous repair.

 53. Plaintiff was readmitted to Reading Hospital on June 2, 1961 as a result of shooting pains he had experienced and yellow purulent drainage which had developed due to cellulitis of the ankle, a diffuse infection. Plaintiff was treated with continuous hot packs of water, and enzyme ointment was used to get rid of the dead tissue which was present. Plaintiff was discharged from the hospital on June 10, 1961.

 54. Plaintiff was again admitted to Reading Hospital on April 23, 1962 as a result of further severe pain and development of more purulent material due to continued infection in the left ankle. As a result of this infection, a pedicle graft from the right thigh was required. The first stage of the surgery was performed on April 25, 1962. This stage involved raising a tube or flap of skin from the plaintiff's right thigh. One end of this flap was then attached to plaintiff's left ankle while the other end remained attached to his right thigh. In order to allow this surgical repair to be performed, plaintiff's legs had to be crossed and he had to be placed in an immovable cast with his right thigh and left ankle connected as indicated above. Plaintiff had to remain in the immovable cast in this position with his left ankle against his right thigh for a period of about three weeks. He was discharged from the hospital on May 18, 1962.

 55. Plaintiff is still being treated for his injuries. He wears a metal brace on his left ankle and walks with a pronounced limp.

 56. The plaintiff has incurred medical expenses to date in the amount of $4409.56 and still requires additional treatment. The amount of these expenses is undisputed.

 57. Plaintiff's work record prior to the accident was irregular and included farm work, pick and shovel work, banding rolls of steel, foundry work, work at a bakery, and work mowing grass for periods of varying duration. No evidence of the amount of plaintiff's earnings during that period was presented at trial. Plaintiff was earning $4.08 per hour at Berks Steel Service, Inc. at the time of the accident, but was only in his third day of employment with Berks Steel Service, Inc. when injured. Taking into account plaintiff's spotty work record and the fact that plaintiff presented such limited evidence of prior earnings, the Court estimates plaintiff's average earning capacity for the purpose of determining past and future wage loss at $3,000.00 per year.

 58. The accident occurred on June 22, 1960. Plaintiff's expected earnings for the 8 1/3 years through the time of trial, computed on the basis of $3,000.00 per year, was $25,000.00. Plaintiff earned $2,200.00 during that period. Therefore plaintiff's past wage loss is $22,800.00.

 59. Plaintiff is 37 years old and has approximately 27 working years remaining based on "Table of Working Life for Men, 1960" U.S. Department of Labor, Bureau of Labor Statistics, Monthly Labor Review, July 1963. On this basis, using a 6% simple rate of interest, as required in Pennsylvania, the present value of future expected earnings in the absence of the accident would be 15.7480 X $3,000.00 or $47,244.00.

 60. Plaintiff's lack of education and training foreclose the opportunity of holding a job other than one utilizing the abilities of an unskilled laborer.

 61. Plaintiff now works part time for his brother-in-law driving a truck. He drives once or twice a week in general, sometimes three times and sometimes not at all. He earns between $15.00 and $40.00 a week depending on how much he works. Plaintiff also remains capable of doing some other light, sedentary type of work.

 62. Plaintiff presented no evidence at trial of permanent, total disability. On the basis of the above evidence of present employment and employment capacity and of earnings subsequent to the accident, together with the nature of the injury itself, the Court believes that a fair evaluation of plaintiff's injury indicates a loss of 70% of future earning capacity. On this basis plaintiff's future wage loss is 70% of $47,244.00 or $33,070.80.

 63. Plaintiff has suffered long and intense physical pain from his injuries and from the series of treatments and surgery he has been required to undergo. A reasonable amount of compensation for pain and suffering is $50,000.00.

 64. Total damages of plaintiff attributable to the accident are in the amount of $110,280.36.



 This is a civil action brought by plaintiff Robert A. Fisher against defendant United States of America under the Federal Tort Claims Act to recover for injuries he sustained while working on the construction of the Alvin D. Bush Dam at Kettle Creek, near Renovo, Pennsylvania. The defendant United States was the owner of property upon which the Dam was being constructed. In June, 1960, it engaged George M. Brewster & Son, Inc. (hereinafter referred to as "Brewster") as general contractor to oversee the construction of the Dam. Brewster then subcontracted the performance of the bulk of the concrete work necessary under its contract with the Government to the H. I. Lewis Construction Co., Inc. (hereinafter referred to as "Lewis"). Lewis in turn subcontracted the supporting structural steel work required in the concrete work to Berks Steel ...

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