APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA D.C. Civil No. 75-2311
Before Seitz, Chief Judge, and Adams and Rosenn, Circuit Judges.
This appeal presents a difficult question concerning the liability of the United States under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671-80 (1976), for the death of an employee of an independent contractor engaged in the manufacture of antitank explosives for the United States Army.
Willie Mae Toole worked at the Philadelphia munitions plant of Action Manufacturing Company ("Action" or "Company"). She was engaged in the manufacture of the "fuze rocket," an antitank explosive that Action made for the United States Army. Specifically, her job was to "stake" together a primer and detonator, both of which contained explosive material. Sitting behind a plexiglass shield at a plywood table, Mrs. Toole would reach around the shield, hold a detonator in her left hand and a primer in her right, insert the primer into the detonator, and put that assembly onto a staking device*fn1 in the center of the table. She would then withdraw her hands behind the shield, press levers with each hand in order to operate the staking device, and finally remove the assembled product. Mrs. Toole might have had as many as 50 detonators and 350 primers at her table while she was performing this operation.
The staking device pressed together components that contained highly explosive material. As the contract between Action and the United States noted, a "fire and explosion hazard prevails throughout the entire (manufacturing) process . . . ."
On August 5, 1974, Mrs. Toole was staking a primer and a detonator. The parts that she was assembling, seven other detonators, and all of the primers at her table exploded, throwing her three or four feet from the bench. She died from the injuries. In his own right and as administrator of his wife's estate, Toole sued the United States in the United States District Court for the Eastern District of Pennsylvania for damages under the Federal Tort Claims Act, Supra, asserting claims under the Pennsylvania Survival Statute, 20 Pa.C.S.A. § 3371 (1975), and the Pennsylvania Wrongful Death Statute, 12 P.S.A. §§ 1601-4 (1953). After a bifurcated nonjury trial on the issue of liability alone, the district court, in a thoughtful opinion, rendered judgment for the United States. Toole appealed. We are compelled to reverse.
An important background to the accident and suit is found in the contract between Action and the United States and in the efforts taken to enforce compliance with the contractual provisions. The contract under which Action manufactured the fuze rocket incorporated by reference Armed Services Procurement Regulation 7-104.79, 32 C.F.R. § 7-104.79 (1975). According to that regulation, Action had to comply with the Department of Defense Contractors Safety Manual for Ammunition, Explosives and Related Dangerous Materials (DOD Manual 4145.26M). If a contracting officer in the Department of Defense discovered a violation of the manual and notified the contractor, the contractor was obligated to take immediate corrective action. Should the contractor fail to correct the violation, the contracting officer could postpone production until the contractor complied, or the contracting officer could even terminate the contract. Armed Services Procurement Regulation 7-104.79(b), 32 C.F.R. § 7-104.79(b) (1975). Despite the requirement that a contractor abide by the manual, the regulation provided:
Neither the requirements of this clause nor any act or failure to act by the Government shall affect or relieve the Contractor of his responsibility for the safety of his personnel . . . or impose or add to any liability of the Government for such safety.
Among the requirements in the manual was a provision concerning safety shields. The provision required the contractor to install shields protecting employees from hazardous operations, and these shields had to be designed "in such a manner as to protect against the effects of not less than a 25 percent overload above the expected maximum charge (from an accidental explosion)." DOD Manual 4145.26M, § 603(f)(1) & (2). Under another section, rules were to be established governing the quantity of explosives to be kept in any one place, such as a work station. Id. at § 603(b)(1) & (2).
In order to discover whether the contractor was complying with the contract and obeying the manual, the Department of Defense, through an arm of the Defense Supply Agency, established an inspection system. On one occasion before the contract was awarded and at quarterly intervals after the award was made, inspectors from the Department of Defense surveyed Action's plant to ascertain whether the Company was in compliance. The inspectors reported to E. J. Slade, an Administrative Contracting Officer. When Slade learned that a contractor was not following the recommendation of an inspector, Slade would write to the contractor, requesting compliance within a specified time. If the contractor still failed to comply, Slade would investigate the reasons for the failure. Slade's last resort was to bring the violation to the attention of a Procurement Contracting Officer, who had the sole power to postpone work or terminate the contract.
On July 16, 1973, an inspector visited Action's plant. The inspector recommended that Action install a more effective shield around the staking operation.*fn2 Noting that Action had permitted as many as 50 detonators and 350 primers at the staking operation station at one time, the inspector also recommended reducing these numbers. In a subsequent letter to Action, Slade repeated the inspector's recommendations. Although Action's Contracts Manager, Joseph C. Brenner, promised compliance, the Company never fully corrected the hazardous conditions. An inspection in October again resulted in a letter from Slade and a promise by Brenner. After a third inspection, Slade wrote that "the proposed design (of the shields) should be tested with at least 25 percent overload before its use is permitted in operations." In reply, Brenner wrote that Action had tested a shield in an explosion of 25 detonators, and the shield had held fast. Since the manual required, as Slade had indicated, a shield able to withstand a 25 percent overload, rather than an explosion of 25 detonators, Action had not conducted the test ...