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BLOOM v. WASTE MGMT.

August 9, 1985

EVELYN BLOOM, et al
v.
WASTE MANAGEMENT, INC., et al v. UNITED STATES OF AMERICA and UNITED STATES ARMY CORPS OF ENGINEERS v. WASTE MANAGEMENT, INC., et al EVELYN BLOOM, et al v. UNITED STATES OF AMERICA and UNITED STATES OF AMERICA and UNITED STATES DEPARTMENT OF THE ARMY, CORPS OF ENGINEERS



The opinion of the court was delivered by: LUONGO

 This wrongful death and survival action *fn1" arises from the death of Lonnie Bloom (Bloom) during the course of his employment with the American Dredging Company (American Dredging or American). Named as defendants are The United States, United States Department of the Army, Corps of Engineers (collectively as the Government or Corps of Engineers), Warner Company (Warner), several companies apparently related in some fashion to Warner, Philadelphia Electric Company (PECO), and American Dredging. Now before me are motions for summary judgment on behalf of PECO, American Dredging, the Government and Warner. For the reasons that follow, I will grant the motions.

 I.

 On September 29, 1981, Lonnie Bloom was electrocuted when he attempted to tie a ground wire to an overhanging electric power line, apparently in an effort to obtain greater clearance for his bulldozer. At the time of his death, Bloom was performing his duties as an assistant foreman for American Dredging Company. American had been engaged as a contractor by the Corps of Engineers to complete certain dredging between Philadelphia, Pennsylvania and Trenton, New Jersey on the Delaware River. The property on which the accident took place is located in Falls Township in Bucks County, Pennsylvania. The land, owned by Warner Company, was the subject of an easement under which the Government or its contractor was entitled to use the property as a disposal site for soil and sludge removed from the river base.

 II.

 Philadelphia Electric Company has filed a motion for summary judgment which no party has opposed. PECO's amply supported motion demonstrates that the electrical lines, poles, and related equipment used to convey electricity across the Falls Township tract were sold to Warner Company in 1942 and 1943. Since that time PECO has continued to supply power to Warner, but has performed no maintenance and has exercised no control over the poles and lines located on Warner's land.

 From this factual record, PECO argues that, as a matter of law, it cannot be held liable for Bloom's death. I agree. Plaintiffs have failed to articulate or support any basis for holding PECO liable. PECO is not responsible for the placement of Warner's electrical lines and poles, and there is no suggestion that PECO had notice of the ongoing dredging operations in a manner that should have caused it to cease supplying power. See Dunnaway v. Duquesne Light Co., 423 F.2d 66 (3d Cir. 1970) (supplier of electricity not liable where it was not on notice of crane operating in proximity to lines which it owned). PECO's motion for summary judgment will therefore be granted.

 III.

 American Dredging Company has filed a motion for summary judgment against all parties except the United States. *fn2" Like PECO's motion, American's motion has drawn no opposition. It is undisputed that American was the decedent's employer, and that Bloom was performing work-related tasks when his accident occurred. American thus argues, and I conclude, that Pennsylvania's Workmen's Compensation Statute bars suit both on behalf of the decedent/employee and by any other defendant seeking non-contractual contribution or indemnity. 77 P.S. § 481(a), (b); Weldon v. The Celotex Corporation, 695 F.2d 67 (3d Cir. 1982). I will therefore grant American Dredging Company's motion as to all parties except the United States.

 IV.

 A. The Contentions

 The Government's motion for summary judgment presents a more substantial question. Pointing to the Army Corps of Engineers' limited involvement in the actual dredging operation, the Government argues that Pennsylvania law would not impose liability for Bloom's death against a private party in the Government's position. But assuming that Pennsylvania law is to the contrary, the Government further contends that it cannot be held liable because of limitations of the United States' waiver of sovereign immunity in the Federal Tort Claims Act.

 The factual predicate for the Government's motion is supplied by the contract between the Government and American Dredging Company, an outline of American Dredging's worker safety program, and various affidavits and depositions submitted by the parties. The Government relies primarily on the affidavit of Stephen J. Lalli, a construction inspector assigned by the Army Corps of Engineers to monitor the performance of American Dredging. Taken together, the Government contends the documents supporting its motion demonstrate that the Army Corps' inspection program was designed, and was in fact exercised, for the limited purpose of assuring that American Dredging was fulfilling its contractual obligations.

 The legal basis for the Government's motion under Pennsylvania law is, essentially, the general rule that one who entrusts work to an independent contractor is not liable for the negligent acts or omissions of the contractor. See Restatement (Second) Torts § 409. The Government denies that any of the relevant exceptions to the rule apply because: (1) the Government did not have superior knowledge of an ultrahazardous condition, (2) the Government did not retain control over the work of the independent contractor, and (3) the source of the danger was an open ...


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