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TOOLE v. UNITED STATES

December 29, 1977

CLYDE TOOLE, Administrator of the Estate of WILLIE MAE TOOLE, Deceased
v.
UNITED STATES OF AMERICA



The opinion of the court was delivered by: LUONGO

 LUONGO, J.

 Plaintiff's decedent was fatally injured in an explosion at her place of employment, the Large Street plant of Action Manufacturing Company (Action), in Philadelphia. The incident occurred while she was working on a partially assembled "fuze rocket," an antitank explosive that Action produced for the United States Army. Shortly thereafter, her husband filed this action under the Federal Tort Claims Act, 28 U.S.C. § 1346(b) (1970), asserting causes of action under both the Pennsylvania survival statute, 20 Pa. Cons. Stat. Ann. § 3371 (Purdon 1975), and the Pennsylvania wrongful death statute, Pa. Stat. Ann. tit. 12, §§ 1601-04 (Purdon 1953). Jurisdiction is based on 28 U.S.C. § 1346(b) (1970). After considering the pleadings and the evidence offered at trial, I make the following findings of fact. Fed. R. Civ. P. 52(a).

 1. The United States Army Munitions Command awarded Action a contract (Plaintiff's Exhibit 2) for the manufacture of M412A1 "fuze rockets." This contract took effect on March 2, 1973, and it called for the delivery of 668,200 fuze rockets between August 31, 1973 and August 31, 1974.

 2. The contract was administered by the Defense Contract Administration Services Region, Philadelphia (DCASR), an office of the Defense Supply Agency.

 3. On January 26, 1973, Leo A. Everett, a Safety Engineer in the Specialized Safety and Flight Operations Division of DCASR's Directorate of Quality Assurance, made a pre-award safety survey of Action's Large Street plant. In a survey of this kind, DCASR personnel review the prospective contractor's facilities and assess its potential for compliance with the contractual safety requirements. Everett's report on his visit (Plaintiff's Exhibit 7) stated that Action was already producing the M412A1 fuze pursuant to another government contract, and that the award of the proposed contract would not "cause violations of the contractual safety requirements."

 4. Throughout the time that the contract was in force, Walter Wotjas, a Quality Assurance Representative (QAR), and two or three other quality control specialists assigned to him were "in residence" at Action's Large Street plant and shared an office at the plant. None of the men had extensive training or experience in the field of explosives safety.

 5. In the course of performing their quality assurance functions, Wotjas or one of the men assigned to him inspected the "loading plant" area at Action once or twice a day. These inspections were aimed at detecting potential quality assurance problems, and included noting any obvious safety hazards that might impair Action's ability to meet the production schedule set out in the contract. If such a problem or hazard was observed, the inspector would notify the supervisor of the Action employee whose work area was involved. If no corrective measures were taken, the inspector would then notify Everett. Neither Everett nor the inspectors, however, could compel Action to alter its procedures.

 6. At one stage in the process of assembling a fuze, a small M106 primer is "staked" into an M48 detonator. During the period covered by the contract, this task was performed by a single Action employee sitting at a work table in the "loading plant" area of the Large Street plant. Both the primer and the detonator contain explosive material, and both are ranked as Class 7 hazards (Mass Detonating Hazards). Plaintiff's Exhibit 1, para. 709, at 7-7 to -8.

 7. The operator of the staking device works behind a plexiglass shield at a plywood table. Essentially, the operator reaches around the shield on both sides, picks up a detonator with her left hand, picks up a primer with her right hand, inserts the primer in the detonator, places this assembly on the staking device located in the center of the table, withdraws her hands behind the shield, presses two levers (one with each hand) to activate the staking device, and then withdraws the assembled product from the staking device.

 8. Beginning in May of 1973, DCASR safety personnel conducted quarterly post-award safety surveys at Action's Large Street plant. These inspections lasted from 8:00 a.m. until lunchtime or later, and were directed at safety hazards that could potentially interfere with any of the production schedules set out in the government contracts held by Action.

 9. The inspector conducting a post-award survey would check in, inquire whether Action had been awarded any new contracts, inquire whether any recent unreported accidents had occurred, tour the plant, talk to Wojtas or one of the men assigned to him about Action's safety record in recent weeks, and, beginning in 1974, talk to Wojtas about the Procedures Evaluation check-list that Wojtas had developed. DCASR inspectors had no authority to compel changes in Action's operating procedures.

 10. On May 10, 1973, Everett L. Graham, a Safety Officer in the Specialized Safety and Flight Operations Division of DCASR's Directorate of Quality Assurance, conducted a post-award safety survey at Action. Graham's report on his visit (Plaintiff's Exhibit 8) noted that an excessive quantity of explosive material was found "at the reject inspection station in room 7," and that Action should develop and post clearly written standard operating procedures for the guidance of its employees.

 11. Beginning in July of 1973 or shortly thereafter, copies of the reports on post-award inspections were routinely sent to E. J. Slade, the Administrative Contracting Officer (ACO) at DCASR.

 12. On July 16, 1973, Leo A. Everett conducted a post-award safety survey at Action. Everett's report on his visit (Plaintiff's Exhibit 6) noted that he observed a posted limit of 400 units -- 50 detonators and 350 primers -- at the staking operation, and recommended that, in order to comply with certain safety requirements incorporated in the contract, Action "[install] an effective operational shield at the M106 primer staking operation and substantially reduce the quantity of primers at this location."

 13. On August 27, 1973, E. J. Slade, the Administrative Contracting Officer of DCASR, wrote to Joseph C. Brenner, Action's Contracts Manager, repeating Everett's recommendations and asking to be notified of Action's proposed corrective measures within twenty days. Plaintiff's Exhibit 28.

 14. On September 13, 1973, Brenner wrote to Slade, stating that corrective action had already begun and that "completion is anticipated within the next 3-4 weeks." Plaintiff's Exhibit 29. These corrective measures were never completed, however.

 15. On October 23, 1973, A. K. Siler, a Safety Specialist with DCASR, conducted a post-award safety survey at Action. On November 14, 1973, Slade wrote to Brenner, repeating the recommendations made in Siler's report, one of which was that Action "[install] effective operational shields at stations as indicated in survey report of 19 July 1973." Plaintiff's Exhibit 30. Slade requested immediate corrective action and asked to be notified of proposed or completed corrective action within ten days.

 16. On November 28, 1973, Brenner wrote to Slade, stating that explosives limits had been posted at the operating stations, and that Action had ordered material for the operational shields, which would be installed as soon as the material was received. Plaintiff's Exhibit 31.

 
"Procured fasteners for operational shields should be tested and, if results acceptable installed as soon as possible. Since reliable data proving the adequacy of the shields is not available, the proposed design should be tested with at least 25% overload before its use is permitted in operations."

 Slade also requested that Brenner advise him of proposed corrective measures within twenty days.

 18. On February 20, 1974, Brenner replied to Slade's letter of February 8. In particular, Brenner stated:

 
"A quantity of 25 each M48 Detonators were placed on a steel plate and fired, the fasteners on the operational shield held firm and fast and are therefore considered to be satisfactory."

 19. At about the same time, George W. Hoffnagle, Action's Plant Manager, told Everett that he had conducted this test. Everett knew that the Department of Defense Contractor's Safety Manual for Ammunition, Explosives and Related Dangerous Material (Plaintiff's Exhibit 1, para. 603(f)) required a test using a twenty-five percent overload, and that a proper test for the staking operation shield would thus have employed five hundred units rather than twenty-five. Everett knew that the manual's requirement had not been complied with, but he simply forwarded the information to Slade without attempting to correct Hoffnagle's mistaken impression of what was required by the manual.

 20. On May 9, 1974, Everett conducted a post-award safety survey at Action. On June 10, 1974, Slade wrote to Brenner, repeating the recommendations made in Everett's report. These recommendations dealt with the need for more emergency exits and the need to resurface and test the conductive flooring. Everett made no recommendation in regard to proper testing of the operational shield. Slade also requested that Brenner advise him of proposed corrective measures within twenty days. Plaintiff's Exhibit 32.

 21. On June 25, 1974, Brenner wrote to Slade, stating that additional exits would be installed "when plans and specifications have been firmed up and released," and that the conductive flooring would be resurfaced as soon as Action received the special paint it had ordered for that purpose. Plaintiff's Exhibit 33.

 22. On August 5, 1974, plaintiff's decedent, Willie Mae Toole, was performing the staking operation on the M412 fuzes at her work station in the "loading plant" area of Action. At about 10:32 a.m., an explosion occurred on her work table. The explosion caused extensive damage to the work station. Mrs. Toole was thrown backward by the force of the blast, and landed on the floor three or four feet behind her work bench. She was gravely injured by the explosion, and she died in the hospital on August 20, 1974 as a result of those injuries.

 23. The posted explosives limit of 400 units at Mrs. Toole's work station encompassed a tray of 50 detonators and a cup containing 350 primers. In the explosion on August 5, 1974, seven of the detonators, all the primers in the cup, and the fuze assembly on which Mrs. Toole was working all exploded.

 24. On August 8, 1974, Harry A. Dittman, a DCAS Safety Specialist, conducted an accident investigation at Action. Dittman "reminded" Action personnel that the Department of Defense manual required that the work station, or barricade, as well as the shield and the fasteners, be tested with a twenty-five percent overload of explosives. In his report on the visit, Dittman concluded:

 
"The immediate cause of the functioning of the fuze assembly being staked was not conclusively determined . . . However, it is concluded that the large number of explosives components directly exposed to the staking operation and the inadequacy of the operational shields for the quantity of explosives involved contributed heavily to the severity of the accident."

 Plaintiff's Exhibit 3, at 3 (emphasis in original).

 25. On October 23, 1974, Everett conducted a post-award safety survey at Action. On November 8, 1974, Slade wrote to Brenner, repeating the recommendations set out in Everett's report. In particular, Slade requested that Action "[decrease] the explosives limit and shield the M106 primer punch out operation to provide adequate protection for the operator's transients." Slade also requested that Brenner advise him of proposed corrective measures within fifteen days. Plaintiff's Exhibit 36.

 26. On November 21, 1974, Brenner wrote to Slade, stating that "[an] operational shield booth of the type recently constructed for the staking operation" was being used at the station where the primers were punched out of their shipping boards. Plaintiff's Exhibit 37.

 27. When Slade learned that a recommendation made by a DCASR safety inspector was not being implemented, it was his usual practice to write to the contractor and request that corrective action be taken within a specified time. If no action resulted, Slade would investigate the matter. If no good reason for the inaction became evident, Slade would advise the Procurement Contracting Officer (PCO), who had the sole power to terminate the contract for noncompliance with safety regulations.

 28. In deciding whether to recommend to the PCO that a contract be terminated, Slade would take into consideration (1) the nature of the noncompliance, (2) whether or not the noncompliance was deliberate, and (3) the actual safety hazard resulting from the noncompliance.

 29. DCASR's safety inspection program was limited to assuring compliance with contractual safety requirements. Moreover, its primary purpose was to protect the contractor's production capability, rather than to protect the contractor's employees. A subsidiary purpose of the program was to protect the government employees who worked on the contractor's premises. In some cases, the contractor's own employees were incidental beneficiaries of the DCASR program, but the contractor was generally understood to be responsible for its own employees' safety.

 30. Action retained complete control of the manner in which work was conducted in its plant. DCASR safety personnel had no authority to compel changes in Action's operating procedures. When DCASR personnel made safety recommendations, however, Action's policy was to comply with any recommendation that was within reason. Although it was generally understood that the government could suspend production, or even terminate the contract, for noncompliance with contractual safety requirements, these sanctions were used infrequently, if at all. Action's ready acceptance of DCASR safety recommendations stemmed from a desire to maintain good business relations with the United States, which supplied approximately seventy-five percent of Action's business, as well as from a desire to protect its own employees.

 31. Several years before the contract at issue here was awarded, Action received another government contract for the manufacture of a different fuze. The United States supplied Action with barricades, or work stations, at which various operations in the assembly process were to be performed, and over a period of several years Action found the government-supplied barricades to be satisfactory. In 1973, Action was awarded the contract at issue here. Because the staking operation on the M412A1 fuze would be performed in a barricade containing a quantity of explosives equivalent to the quantity maintained during fuze assembly under the earlier contract, Action concluded that the barricade supplied for the earlier contract would be suitable for the staking operation. At the time of the explosion on August 5, 1974, the barricade at which Mrs. Toole was working either had been supplied to Action by the United States or had been assembled by Action, using a government-supplied barricade as a model. (Deposition of Harry Stern, President of Action)

 
-- place a local shield around the staking device itself,
 
-- reduce the quantity of explosives maintained at that work station to 50 detonators and 200 primers, and
 
-- redesign the barricade, or work station, to protect the operator and shield any explosives stored nearby.

 Plaintiff's Exhibit 3. Dittman never visited Action prior to the accident, but he testified at trial that he would have made the same recommendations before the accident if he had had an opportunity to study Mrs. Toole's work station.

 33. The barricade, or work station, was ultimately redesigned to afford greater protection to the operator and to insure that any accidental explosion would not spread to the detonators and primers that the operator kept on top of the work table. In addition, the explosives limit for the work station was reduced to 50 detonators and 100 primers, and these units were required to be stored in individual compartments of a tray, rather than in a single cup.

 34. The post-accident changes in the staking operation were determined after discussions among Lieutenant Colonel Walter M. Nickens, Chief of the Specialized Safety and Flight Operations Division of DCASR's Directorate of Quality Assurance, Max Rubin, Action's safety consultant, and others. Action sent reports on its design proposals to Colonel Nickens, and he returned these reports to Action with his comments or recommendations. Colonel Nickens testified at trial that Action did not need his approval of the new barricade design in order to resume production of the fuze rockets, but Rubin's testimony made it plain that Action nevertheless sought the government's prior approval of their new design. Action did this because, under their contract, the government's dissatisfaction with the barricade (from a safety point of view) might justify its refusal to accept Action's fuze rockets until the barricade was redesigned.

 35. The contract between the United States and Action stated, with respect to the M412A1 fuze, that applicable "[safety] limitations and precautions" were contained in the Defense Department's Contractor's Safety Manual (DOD Manual 4145.26M), and that "[all] special requirements usually associated with electrical detonators and stab primers" were to be observed. With respect to the M48 detonator, the contract listed the following special requirements:

 
"Operational shields are required. All equipment must be bonded and grounded. Quantities must be limited to [operational] needs. All personnel handling the M48 Detonators must be properly grounded."
 
Plaintiff's Exhibit 1, at 15.

 With respect to the M106 primer, the contract listed the following special requirements:

 
"All equipment must be bonded and grounded. Quantities must be limited to operating needs."
 
Plaintiff's Exhibit 1, at 16.

 With respect to both the primer and the detonator, the contract stated that "all safety precautions must be observed."

 36. The contract between the United States and Action incorporated by reference Armed Services Procurement Regulation 7-104.79, 32 C.F.R. § 7-104.79 (1975), which provides in part:

 
"(b) The Contractor shall comply with the DOD Contractor's Safety Manual for Ammunition, Explosives and Related Dangerous Materials (DOD Manual 4145.26M) [Plaintiff's Exhibit 1], in effect on the date of the solicitation for this contract, as it relates to ammunition and explosives, and any other additional or more stringent requirements included in the schedule of this contract. If the Contracting Officer notifies the Contractor of any noncompliance with such Manual, or schedule provisions, the Contractor shall immediately take corrective action. If the Contractor fails or refuses to take corrective action within the time specified by the Contracting Officer, the Contracting Officer may direct the Contractor to cease performance on all or part of this contract, or until satisfactory corrective action has been taken. Any notification or direction under this paragraph should be in writing or confirmed in writing by the Contracting Officer. The Contracting Officer may at any time remove Government personnel whenever the Contractor is in noncompliance with the safety requirements of this clause. Either action by the Contracting Officer shall not entitle the Contractor to an adjustment of the contract price or other reimbursement for resulting increased costs, or to an adjustment of the delivery or performance schedule. However, should direction to cease performance be issued or Government personnel be removed and it is later determined that the Contractor had, in fact, complied with the Manual, or schedule provisions, the Contractor shall be entitled to an equitable adjustment in delivery schedule, in contract price, or both, in accordance with the procedures provided for in the clause of this contract entitled 'Changes.'
 
. . .
 
(d) Neither the requirements of this clause nor any act or failure to act by the Government in surveillance or enforcement thereof shall affect or relieve the Contractor of responsibility for the safety of his personnel and his property and for the safety of the general public in connection with the performance of this contract, or impose or add to any liability of the Government for such safety. The Contractor is not entitled to rely on the requirements of this clause or on any Government surveillance or enforcement thereof, or lack thereof, or granting of any waiver or exemption in accordance with DOD 4145.26M in discharging the Contractor's responsibility.
 
. . .
 
(f) Nothing contained herein shall relieve the Contractor from complying with applicable federal, state and local laws, codes, ordinances and regulations (including the obtaining of licenses and permits) in connection with the performance of this contract."

 37. The Defense Department manual (DOD Manual 4145.26M) referred to in the above ...


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