regarding the destruction of tetryl. Therefore, Section 410 is not apposite here.
The plaintiff orally renewed his contention that the government, through its inspectors at the Thiokol plant, had such control over the production and disposal of tetryl that the government should be held vicariously liable for any negligent conduct of Thiokol. In my earlier opinion in this case, this theory of liability was rejected, 327 F. Supp. 1277, 1279 (E.D. Pa. 1971). In addition I now hold as the fact finder that there was no control by the government over Thiokol's employees, production, safety procedures or disposal of explosives involving the tetryl which exploded. Even if plaintiff's theory is viable, the facts do not fit such theory.
The plaintiff has, at best, sustained the burden of proving that he was inexperienced in disposing of dangerous explosives, but nevertheless proceeded to do so in the face of orders from his direct superior not to proceed, and that as a result of his lack of experience in recognizing tetryl, the explosion occurred. Plaintiff has shown no liability on the part of the government. The evidence clearly demonstrated that the government had no duty and undertook no obligation to observe, oversee, direct or assist in the destruction of the tetryl.
CONCLUSIONS OF LAW
1. The Court has jurisdiction over the parties and the subject matter and the government is not immune from this suit.
2. The government did not breach any duty or warranty owed to the plaintiff arising from the sale of tetryl to Thiokol.
3. The government owed no duty to the plaintiff or to Thiokol to inspect or give advice concerning the disposal of tetryl on April 23, 1965.
4. The government inspector did not gratuitously undertake any duty to inspect or to give advice concerning the disposal of tetryl on April 23, 1965.
5. The government did not breach any duty to warn Mr. Toppi or Thiokol of the dangerous propensities of tetryl.
6. The government is not vicariously liable for any acts of Thiokol.
Neither counsel in this case elected to take depositions of parties or witnesses. As a result, the plaintiff had to use a "shot gun" approach in his pretrial memorandum and in arguing his legal theories before this Court. The trial was delayed because new witnesses and records were discovered during the trial. In addition, many minor but time consuming points of the case could have been settled by stipulation had pretrial discovery been undertaken.
To the extent the discussion contains findings of fact and/or conclusions of law, the same are adopted as part of the findings of fact and conclusions of law.
At the conclusion of the plaintiff's case, defendant moved for a directed verdict, which the Court deferred until the conclusion of the trial. At this time, I will deny that motion, but on the question of liability, after considering all the evidence, I find for the defendant.