C. Report safety violations to the violating contractor (N.T. 16-17; N.T. 61-62; N.T. 87-90).
D. Ascertain whether the work was being performed in compliance with GSA Handbook Safety Requirements and, if not, order that the work be suspended, delayed or interrupted (N.T. 19; N.T. 21; N.T. 27; N.T. 89; P. 40, § 15, 3a, 3b; P. 41, general conditions, sub-section 30-31);
E. Write to the violating contractor advising that the job would be stopped if a specific safety violation was not corrected (N.T. 69; N.T. 80);
F. Withhold monthly payments if a contractor was not performing in accordance with the contract requirements (N.T. 78); and
G. Inform the employees on the job site of the OSHA safety rules and regulations which governed this job project (N.T. 158).
19. Before DiSalvatore's accident, a dispute arose between Turner Construction and Tishman Construction over compliance with the OSHA regulations incorporated in Paragraph 18.1 of the contract between GSA and Owens-Corning. (N.T. 252). A Mr. Mitchell from Turner Construction urged Tishman Construction to take immediate steps to correct the failure to meet the OSHA requirements. Tishman failed to do so. (P. 23, part II, § III A and B; P. 23, part VI). GSA, through its representative Mr. Kandra, was aware of but did not resolve this dispute between Tishman and Turner. (P. 23, part VI, letter dated 4/11/74).
20. GSA was notified on the following dates of the absence of required protection in the elevator shaft down which DiSalvatore fell: April 11, 1974 (P. 23, part VI, letter dated 4/11/74); April 10, 1974 (P. 23, part VI, letters dated 4/10/74); March 28, 1974 (P. 23, part VI, letter dated 3/28/74; P. 23, part VI, memo dated 3/28/74); March 22, 1974 (P. 23, part VI, memo); March 21, 1974 (P. 23, part VI, written construction safety survey); March 19, 1974 (P. 23, part VI, letter from Turner Construction); March 6, 1974 (P. 23, part VI, letter sent to Turner Construction); March 5, 1974 (P. 23, part VI, memo); and February 25, 1974 (P. 23, part VI, letter).
21. Mr. Kandra, although it was his responsibility to do so, did not:
A. Inspect the job site during construction because he was busy with paper work in his trailer (N.T. 77; N.T. 79; N.T. 87);
B. Report the open freight elevator shaft to the violating contractors (P. 2; P. 3; N.T. 87);
C. Stop the job or withhold payment to contractors as a result of their known safety violations (N.T. 27). He did not even know that under the contract he had this authority (N.T. 17; N.T. 27; N.T. 69);
D. Write letters to violating contractors threatening to stop the job (P. 23, part VI);
E. Inform others on the job site of the safety rules and regulations which govern the project. He did not even know the contents of these regulations, although they were available in his office and part of his records. Instead, he relied on the contractors and sub-contractors to be familiar with these rules (N.T. 81; N.T. 95; N.T. 97); or
F. Read the GSA contracts and know his responsibilities as set forth therein (N.T. 25).
Defendant argues, Inter alia, that it has incurred no liability under the Federal Tort Claims Act because: (a) the negligence with which plaintiff charges GSA was not the cause in fact of DiSalvatore's accident under controlling law; and (b) DiSalvatore was contributorily negligent and is thus barred from any recovery under applicable tort principles. Because I must agree with these two contentions, I will here discuss only cause and contributory negligence and will express no conclusion concerning the many other issues raised by the above facts.
Pennsylvania law governs the substantive issues of liability in this action. 28 U.S.C. § 1346(b). The leading Pennsylvania case on causation in an accidental fall is Barber v. John C. Kohler Co., 428 Pa. 219, 237 A.2d 224 (1968). Plaintiff in Barber, while working on a scaffold three feet above the ground, fell into an open hole sixteen feet deep. He alleged that defendant was negligent in failing to cover the hole. The Pennsylvania Supreme Court, affirming the lower court's dismissal of plaintiff's suit for failure to establish cause, held that "while appellant may have sustained greater injuries by falling to the bottom of the hole than he would have received had the hole been covered, that has no bearing on The cause of the fall . . . . (I)t is clear that appellee was not The cause of the fall. . . . (T) he extent of the injuries is irrelevant to a determination of the Cause of the accident." 428 Pa. at 221-22, 237 A.2d at 225. (emphasis supplied). Cf. Colosimo v. May Department Store Co., 466 F.2d 1234 (3d Cir. 1972) (Hastie, J., concurring) (summarizing Barber holding).
Under the rule of causation stated in Barber, the relevant determination is the cause of Decedent's fall, not Decedent's injury. DiSalvatore's Fall was caused by his attempt to perform alone the two man task of removing the sixth floor elevator shaft planking, not by defendant's allegedly negligent failure to provide either a safety net or planking on the fifth floor opening. Finding of Fact No. 12; Finding of Fact No. 14. One of the frustrations encountered in the mandatory application of state law is its stultifying effect on federal judges. The rationale of the Pennsylvania Supreme Court in Barber is, to my mind, sophomoric and logically indefensible. And yet, despite my own convictions, I am bound by its holding. It follows that under Pennsylvania law, I must conclude that plaintiffs have failed to prove the necessary causal connection between any negligence of defendant and the accident.
B. Contributory Negligence
A second reason that defendant is entitled to judgment is DiSalvatore's contributory negligence. Because this accident occurred in 1974, two years before the effective date of Pennsylvania's comparative negligence statute, the action is governed by traditional rules of contributory negligence. DiSalvatore's attempt to perform alone the two-person task of removing the planking from the sixth floor elevator shaft was unsafe and the cause of his fall. Finding of Fact No. 10; Finding of Fact No. 12. Accordingly, DiSalvatore was contributorily negligent and plaintiffs are totally barred from recovery.
Plaintiffs contend that the unspoken policy of immediately dismissing a construction worker found standing idle compelled decedent to perform the unsafe task of removing alone the sixth floor planking and therefore absolves him of contributory negligence. Finding of Fact No. 15. Whatever estoppel effect that compulsion may have in a suit against American Bridge, an issue on which I express no opinion, defendant United States was not responsible for the unwritten dismissal policy and is not precluded from raising successfully the contributory negligence defense. Finding of Fact No. 17Q.
The tragic circumstances of DiSalvatore's death make this conclusion a most difficult one to reach. Nonetheless, "motives of commiseration, from whatever source they follow, must not mingle in the administration of justice. Judges, in the exercise of their functions, have frequent occasion to exclaim, "durum valde durum, sed sic lex est.' " Penhallow v. Doane's Adm'rs, 3 U.S. (Dall.) 54, 88-89, 1 L. Ed. 507, 521-22 (1795).
CONCLUSIONS OF LAW
1. I have jurisdiction over this case by virtue of the Federal Tort Claims Act, 28 U.S.C. § 1346(b).
2. Pennsylvania law governs the substantive issues of liability in this action. 28 U.S.C. § 1346(b).
3. Under Pennsylvania law, defendant's alleged negligence was not the cause of Michael DiSalvatore's fall and the United States is therefore not liable for any of DiSalvatore's injuries.
4. Under the law of Pennsylvania, DiSalvatore was contributorily negligent for continuing work without his "buddy" and plaintiffs therefore cannot recover from this defendant.
5. The United States is entitled to judgment in its favor.