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Fisher v. United States

decided: April 2, 1971.

ROBERT A. FISHER
v.
UNITED STATES OF AMERICA (THIRD-PARTY PLAINTIFF), APPELLANT IN NO. 18151, V. GEORGE M. BREWSTER AND SON, INC., APPELLANT IN NO. 18152, AND BERKS STEEL SERVICE, INC. (THIRD-PARTY DEFENDANTS), V. H. I. LEWIS CONSTRUCTION COMPANY, INC. (THIRD-PARTY DEFENDANT). APPEAL OF BERKS STEEL SERVICE, INC. (THIRD-PARTY DEFENDANTS), IN NO. 18153



Hastie, Chief Judge, and Staley and Gibbons, Circuit Judges.

Author: Staley

Opinion OF THE COURT

STALEY, Circuit Judge.

Robert A. Fisher brought this action to recover for injuries he sustained while working on a flood control dam near Renovo, Pennsylvania. The dam was being constructed on land owned by the United States of America and was commonly known as the Kettle Creek Dam Project.*fn1 The Government had engaged George M. Brewster & Son, Inc. ("Brewster") as general contractor to oversee the construction of the dam. Brewster then subcontracted the bulk of the concrete work to H. I. Lewis Construction Co., Inc. ("Lewis"). Lewis in turn subcontracted the structural steel work for the support of the concrete to Berks Steel Service, Inc. ("Berks"). Fisher was employed by Berks and was in the performance of Berks' subcontract with Lewis at the time he was injured.

Fisher, a new employee of Berks, was injured on his third day at work. He was working in a wooden form built to provide a shape into which concrete would be poured. He had descended into the form to tie and untie reinforcement steel within the walls of the form, part of the work assigned to him by Berks. The walls of the form were pulled together by tie rods and held apart by boards called "spreaders." Fisher was crossing the form from one side to the other by stepping from one spreader to another, using them as a walkway. He had previously seen other employees of Berks do this. The second spreader upon which Fisher stepped broke loose from the form, causing him to fall to a concrete slab some ten feet below, injuring his left ankle.

Fisher brought this action against the United States under the Federal Tort Claims Act.*fn2 The Government joined Berks, Fisher's employer, and Brewster, the general contractor, seeking indemnity of, or contribution to, any verdict that the Government might become obligated to pay. Brewster subsequently joined Lewis, seeking contribution or indemnity. Lewis then filed a cross claim against Berks, alleging that Lewis was entitled to indemnity or contribution from Berks. Brewster then filed a similar cross claim against Berks.

The case was tried without a jury. The district court found in favor of Fisher and entered judgment against the United States.*fn3 However, the district court held the Government entitled to full indemnity from Berks and Brewster for the amount of the judgment. The district court also held that Brewster's subcontractor, Lewis, was obligated by the terms of the subcontract to fully indemnify Brewster. In addition, the court held that both Lewis and Brewster were entitled to full indemnity from Berks, because it found Berks to have been primarily negligent and Lewis and Brewster to have been only secondarily negligent. The result of the district court's decision, 299 F. Supp. 1, therefore, is that Berks will be responsible for satisfying the judgment entered against the United States.

Because of its structure, the entire judgment will fail if no basis exists for finding liability on the part of the United States. We must, therefore, first consider the district court's conclusion that the Government was liable for the injuries sustained by Fisher. At the outset, we note that since the acts or omissions complained of occurred in Pennsylvania, that state's law is applicable under the Federal Tort Claims Act, 28 U.S.C. § 1346(b).

The district court's holding that the United States was liable to Fisher was based upon its findings that (1) the Government was in possession of the land on which the dam was being built; (2) the Government's resident engineer at the site, who was in general charge of the construction and whose duties included supervision of the safety inspection work of the Government's inspection force at the site, was aware that the contractors might hire inexperienced workmen; (3) the Government had reason to know that there were workmen on the site who made a practice of stepping on spreaders; and (4) the Government required the contractor to follow a safety plan and had the power to require the inclusion of safety regulations in that plan.

The district court considered that such facts placed the United States squarely within the class of persons subject to those obligations of possessors of land set forth in Restatement of Torts (Second) § 318.*fn4 This section of the Restatement has been adopted as law and applied by the Supreme Court of Pennsylvania in Glass v. Freeman, 430 Pa. 21, 240 A.2d 825 (1968). The district court concluded that since the United States was in possession of the land and had permitted third persons, here Brewster, Berks, and Lewis, to conduct activities on that land, it had a duty to protect its invitees, including Fisher, from any unreasonable risks of harm which might arise from those activities. The district court further concluded that the Government knew or had reason to know that it had the ability to control the third persons and that the Government knew or had reason to know of the necessity and opportunity for exercising control. The Government's failure to warn Fisher of the danger of stepping on spreaders or to see to it that Berks, as Fisher's employer, warned him, was viewed by the district court as a breach of the duty owed to him as an invitee under § 318 of the Restatement, supra.*fn5

Judicial review of the district court's finding that the United States was negligent is limited to a consideration of whether under Rule 52(a) of the F.R.C.P. that finding is clearly erroneous. McAllister v. United States, 348 U.S. 19, 75 S. Ct. 6, 99 L. Ed. 20 (1954). A finding is clearly erroneous when, although there is evidence to support it, the reviewing court is convinced on the whole record that a mistake has been committed. United States v. United States Gypsum Co., 333 U.S. 364, 68 S. Ct. 525, 92 L. Ed. 746 (1948).

In the instant case, the very heart of the judgment against the Government is the district court's finding that the United States was in possession of the construction site. This finding was based on evidence that (1) the Government had a resident engineer at the site who was in general charge of the construction and who had authority to require the contractor's compliance with a safety plan, and (2) the Government had two inspectors*fn6 whose duties included seeing that the work was done in accordance with specifications, enforcing safety regulations, and issuing safety directions.*fn7 We do not view the presence of a few Government employees at the construction site of a large dam as being evidence that the United States was in possession of the site.

The law of Pennsylvania makes it clear that one who employs an independent contractor may also employ a person to ascertain that the work is done according to plans and specifications and that the employment of such a person in no way indicates that the independent contractor is being subjected to control. Hader v. Coplay Cement Mfg. Co., 410 Pa. 139, 189 A.2d 271 (1963); Townsend v. City of Pittsburgh, 383 Pa. 453, 119 A.2d 227 (1956); Pennsylvania R. Co. v. Allegheny County, 324 Pa. 216, 188 A. 178 (1936). This is a corollary to the long recognized general right of inspection and supervision that an owner normally enjoys and exercises to insure his receiving from the contractor the benefit or total performance bargained for. In employing those men, the United States was only seeking to protect itself and to insure that the contractors were performing in the manner required of them under the contract. Gowdy v. United States, 412 F.2d 525, 529 (C.A. 6, 1969), cert. denied, 396 U.S. 960, 90 S. Ct. 437, 24 L. Ed. 2d 425 1969);*fn8 Roberson v. United States, 382 F.2d 714, 721 (C.A. 9, 1967). We conclude that the district court's finding that the United States was in possession of the site based on the presence of the Government's engineer and inspectors was clearly erroneous. United States v. United States Gypsum Co., supra.

The district court placed great reliance on the decision of the Pennsylvania Supreme Court in Glass v. Freeman, 430 Pa. 21, 240 A.2d 825 (1968), wherein the court applied the principles contained in § 318 of the Restatement. In that case, a couple named Freeman who owned and operated a tavern had secured the aid of several of their relatives and neighbors to help them blacktop the surface of the tavern's parking lot. The couple's son-in-law was operating a borrowed tractor to roll the surface. The tractor, left unattended for a moment, was set into motion by the son-in-law's child and injured one of the neighbors working a short distance away. The court ...


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