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TOPPI v. UNITED STATES

May 27, 1971

Robert J. TOPPI
v.
UNITED STATES of America


Van Artsdalen, District Judge.


The opinion of the court was delivered by: VAN ARTSDALEN

VAN ARTSDALEN, District Judge.

 The defendant has moved for summary judgment claiming lack of jurisdiction over the subject matter and that the complaint, alleging a cause of action under the Federal Tort Claims Act, 28 U.S.C.A. § 2671 et seq. (1965), fails to state a claim upon which relief can be granted. This motion is denied.

 Since this suit was brought under the Federal Tort Claims Act, 28 U.S.C.A. § 2671 et seq. (1965), it is clear that, as alleged by the plaintiff, this court has jurisdiction of the subject matter of this case under 28 U.S.C.A. § 1346(b) (1962).

 For this court to grant summary judgment, it must appear that there is no genuine issue of fact to be resolved by the court.

 
"It is well settled that on a motion for summary judgment the court must take that view of the evidence most favorable to the party against whom the motion is directed, giving to that party the benefit of all favorable inferences that might reasonably be drawn from the evidence, thereby placing the burden of proving the absence of any factual issue on the movant." Janek v. Celebrezze, 336 F.2d 828, 834 (3rd Cir. 1964), cited in Season-All Indus. Inc. v. Turkiye Sise Ve Cam Fabrikalari, A.S., 425 F.2d 34, 40 n. 13 (3rd Cir. 1970).

 Therefore, in this case the allegations and supporting affidavits of the parties must be examined to determine if the plaintiff has created an issue of fact upon which a viable cause of action can be founded.

 The Federal Tort Claims Act removes the shield of immunity from the United States and allows injured plaintiffs to maintain certain actions against the federal government if such an action would exist against an individual under state law. Frazier v. United States, 412 F.2d 22, 23 (6th Cir. 1969). In this case the law of Pennsylvania is the applicable law. Plaintiff's first contention is that the government placed inspectors in the Thiokol Chemical Corporation plant to inspect production involving tetryl, a dangerous explosive, sold to Thiokol by the United States Naval Ammunition Depot. This inspection was to determine whether the tetryl's use in production was safe and to prevent an incompatible mixture from being produced. The failure of the government to properly inspect is alleged to have allowed an improperly mixed substance containing tetryl to pass through the production process and ultimately to the destruction point at the incinerator. It is further alleged that the government normally provides an inspector who had the duty of preventing the improper and unsafe incineration of the chemicals involved in production. As a result of the negligence of these government inspectors in inspecting or failing to inspect, tetryl was placed in the incinerator at which time it blew up severely injuring the plaintiff. See the affidavit of Frank M. Goodrich, a former United States inspector at the Thiokol plant. This allegation raises a sufficient question of fact and cause of action in negligence under the law of Pennsylvania, and thus this court need not examine the plaintiff's other theories of liability.

 The Restatement of Torts Second, Section 324A (1965), provides a basis for a cause of action under the alleged facts:

 
"324A. Liability to Third Person for Negligent Performance of Undertaking
 
One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if
 
(a) his failure to exercise reasonable care increases the risk ...

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