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DISALVATORE v. UNITED STATES

June 26, 1979

Joseph DiSALVATORE and Mary DiSalvatore, Administrator and Administratrix of the Estate of Michael DiSalvatore, Deceased.
v.
The UNITED STATES of America



The opinion of the court was delivered by: LORD, III

This action brought under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671 Et seq., alleges that plaintiffs' decedent was killed as a result of defendant's negligence. Defendant's motion for summary judgment was denied on September 15, 1978, DiSalvatore v. United States of America, 456 F. Supp. 1079 (E.D.Pa. 1978), and the issue of liability was tried before me on December 18 and 19, 1978. I now make the following findings of fact and conclusions of law.

I. FINDINGS OF FACT

 1. Michael DiSalvatore was employed by American Bridge Company to work on construction of the Social Security Administration Program Center at 3rd and Spring Garden Streets, Philadelphia, Pennsylvania. (P. 23, part II, § Ia and § IIb). *fn1"

 2. Michael DiSalvatore was killed at 12:05 P.M. on April 12, 1974 when he fell from the sixth floor of the building to the floor of the pit of freight elevator No. 1. (P. 23, Part II, § 4A).

 3. Entities Involved

 A. The General Services Administration of the United States (GSA) is the owner of the construction site at 3rd and Spring Garden Streets, Philadelphia. The terms "contracting officer", "resident engineer" and "project manager", when used in the applicable contracts refer to United States Government employees. (P. 40, P. 41; N.T. 19 & 20). Albert Kandra, as Resident Engineer, was the Government's representative on the job site at the Social Security Building. (N.T. 9, N.T. 12, N.T. 21).

 B. Turner Construction Company (Turner) was hired by GSA as overall construction manager for the Social Security Administration Center project in Philadelphia. (P. 40).

 C. Owens-Corning Fiberglass Corporation and Wolf & Munier, Inc. (Owens-Corning), a joint venture, was hired by GSA as the prime contractor for the Social Security Administration Center project. (P. 41).

 D. Tishman Construction Company (Tishman) was hired by the Owens-Corning-Wolf-Munier joint venture as construction manager. (P. 41).

 E. American Bridge Company was hired by Tishman Construction Company to design, fabricate and erect the structural steel at the site. (D-1).

 THE ACCIDENT

 4. Michael DiSalvatore's specific job at the time of the accident was to uncover the floor opening for freight elevator No. 1 on the sixth floor of the Social Security Building. (P. 23, part II, § 11D).

 5. The planking was being removed to allow the concrete workers to frame out the elevator shaft. (N.T. 47-48; N.T. 77; N.T. 81; N.T. 90-91; N.T. 98-99). The planking had already been removed from the floors below the sixth. (N.T. 214).

 6. Although not an imperative procedure, removal of the planking from an elevator shaft for the purpose of framing the opening is an acceptable method of construction. When this removal method is used safety requires either that the floor below be planked or that a net be hung in the open shaft. (N.T. 120-121).

 7. At the time of DiSalvatore's accident, the elevator opening on the sixth floor was protected neither by planking on the floor below nor by a net hung in the shaft. (N.T. 214; N.T. 220; N.T. 270).

 8. The failure to have either a net hung from the sixth floor elevator opening or planking on the fifth floor shaft violated the safety provisions of the government construction contracts. (N.T. 43; N.T. 88-89; N.T. 121; N.T. 127; P. 23, part II, § III D1).

 9. At the time of his accident, DiSalvatore was working with Harry Rolf, a journeyman ironworker and DiSalvatore's "buddy" on the job. (N.T. 209). DiSalvatore and Rolf removed the planks over the elevator opening by standing at the end of each board and rolling it over the edge of the shaft onto the deck. Each plank would then be carried to the other end of the building by both men. (N.T. 209; N.T. 220; N.T. 223-24).

 10. Removal of the planking from the sixth floor elevator shaft was a two man job. (N.T. 124-25; N.T. 240). Performance of the task alone, without a co-worker or "buddy", was unsafe. (N.T. 196).

 11. During removal of the planking on the sixth floor, Mr. Rolf, DiSalvatore's "buddy", left the elevator shaft opening. Rolf told DiSalvatore that he would be right back and that DiSalvatore should wait until he returned to continue removing the planks. When Rolf left the elevator shaft, DiSalvatore was standing several feet away from the opening. (N.T. 209-10; N.T. 224).

 12. DiSalvatore continued to remove the planking from the sixth floor elevator without his "buddy", Rolf. DiSalvatore attempted to cross the elevator shaft carrying alone one of the planks that he and Rolf together had been removing. This attempt was unsafe. DiSalvatore lost his balance and fell with the plank down the shaft. The fall was caused by DiSalvatore's unsafe attempt to perform the job alone. (N.T. 193-94; N.T. 227-36).

 13. DiSalvatore fell 98' down the open elevator pit to his death. (P. 23, part II, § II D).

 14. The absence of required safety devices, I. e., nets hung in the shaft or planking on the floor below, although the cause of DiSalvatore's death, did not cause DiSalvatore's fall. (N.T. 124-25).

 15. DiSalvatore's employer, American Bridge, requires that removal of planking from an elevator shaft opening be performed by two workers. If one worker leaves for whatever reason, his co-worker must wait until the "buddy" comes back, according to official American Bridge policy. (N.T. 213). However, there is an unwritten rule of construction work that an employee found standing idly, even if awaiting the return of his "buddy" to continue a two-worker job, is subject to immediate dismissal. Although this rule was never stated by American Bridge, the widespread practice in the construction industry of firing on the spot a worker caught standing idly undermined the American Bridge requirement that planking from an elevator opening be removed only by two workers. (N.T. 125; N.T. 196).

 THE CONTRACTS

 16. GSA and Turner Construction: The contract between GSA and Turner Construction provided that the services of the Construction Manager (Turner) be performed under the general direction of the Project Manager (GSA). GSA could, at its option, manage the project during the construction phase. (P. 40, § 1). During the construction phase, GSA had the right to:

 A. Resolve any disputes in interpretation of meaning, plans and ...


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