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BLOOM v. WASTE MGMT.

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA


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

LUONGO, Ch.J.

 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 and obvious condition. Finally, the Government contests plaintiffs' effort to characterize the Army Corps as possessor of the disposal site.

 Pennsylvania law notwithstanding, the Government argues that the Federal Tort Claims Act does not permit imposition of liability against the United States on the facts of this case. The Government points out that its liability must be predicated on a finding of negligence by Government employees, and not on theories of strict liability or vicarious liability for the torts of its independent contractor. Addressing plaintiffs' allegation of negligence on the Army Corps' behalf, the Government argues that the claim is nonetheless barred by the discretionary function exception. The Government's discretionary function argument rests on the premise that the Secretary of the Army's patent discretion to contract out dredging work encompasses also his judgment as to the degree to which the Corps of Engineers would enforce safety regulations for the protection of a contractor's employees.

 Plaintiffs and the Warner Company have opposed the Government's motion for summary judgment. Plaintiffs assert three theories of liability against the Government. Joined by Warner Company, plaintiffs first contend that the Government was in possession of the disposal site, but failed to use reasonable care to protect Bloom, a business invitee, from an unreasonable risk of harm about which the Government knew or should have known. Giannone v. United States Steel Corp., 238 F.2d 544 (3d Cir. 1956); Restatement (Second) Torts § 343. Second, plaintiffs contend that the Government is liable because the Army Corps should have recognized that the overhanging electric wires presented, in the absence of "special precautions," a "peculiar unreasonable risk of physical harm" to workers at the disposal site, but failed either to require by contract that American Dredging safeguard the worksite or to take such precautions on its own. Restatement (Second) Torts § 413; Toole v. United States, 588 F.2d 403 (3d Cir. 1978) (duty to warn contractor or its employee arose where Government had superior knowledge of special danger); Gonzalez v. United States Steel Corp., 484 Pa. 277, 398 A.2d 1378 (1979). Third, plaintiffs assert that the Government retained control over the dredging operation and the energized wire at issue in this case. Restatement (Second) Torts § 414; Byrd v. Merwin, 456 Pa. 516, 317 A.2d 280 (1974); DiSalvatore v. United States, 456 F. Supp. 1079 (E.D. Pa. 1978).

 In response to the Government's discretionary function argument, plaintiffs and the Warner Company deny that their theories of liability effectively seek review of policy-laden governmental decisions. In their view, the Government's liability for Bloom's death arises from its breach of rather mundane duties of care shared by all possessors of land and employers of independent contractors.

 B. Discussion

 The Federal Tort Claims Act, 28 U.S.C. § 1346(b), vests jurisdiction in the district courts over suits against the United States for damages

 

for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.

 Under the Act, the Government is liable with respect to tort claims "in the same manner and to the same extent as a private individual under like circumstances. . . ." 28 U.S.C. § 2674.

 The waiver of sovereign immunity embodied in the Tort Claims Act, however, is subject to several important limitations and exceptions. As a threshold matter, the Act authorizes suit against the United States only on account of the negligent or otherwise wrongful conduct of a Government employee. Thus excluded from the Act's coverage are theories of strict liability and vicarious liability for the torts of independent contractors. Laird v. Nelms, 406 U.S. 797, 32 L. Ed. 2d 499, 92 S. Ct. 1899 (1972); United States v. Orleans, 425 U.S. 807, 48 L. Ed. 2d 390, 96 S. Ct. 1971 (1976).

 The jurisdiction conferred by the Tort Claims Act is also subject to several exceptions the effect of which is to preclude liability notwithstanding that state law would impose liability on a similarly situated private party. The most prominent of these exceptions is the discretionary function exception, 28 U.S.C. § 2680(a). As recently interpreted by the Supreme Court in United States v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797, 104 S. Ct. 2755, 81 L. Ed. 2d 660 (1984), the discretionary function exception bars any lawsuit in which the gravamen of the plaintiff's complaint directly or indirectly challenges a decision which Congress intended to insulate from judicial review through the medium of a common law tort suit.

 The starting point for any case under the Federal Tort Claims Act, however, is the plaintiff's case against the Government under principles of otherwise applicable law, here the law of Pennsylvania. In the case at bar, therefore, I will first determine whether there exists a genuine issue of material fact with respect to a theory of liability involving the negligence or wrongful conduct of Government employees. For the reasons that follow, I conclude that the Government is entitled to summary judgment on the basis of principles of state tort law. For the most part, therefore, I need not decide whether the suit is barred by the discretionary function exception.

 At the outset, it should be made clear that the record abundantly supports the Government's contention that its supervision of the dredging operation was exercised simply to assure the Government that it was receiving the benefit of its bargain. Both the Government's contract with American Dredging Company and the affidavit of Stephen Lalli demonstrate that American Dredging, an independent contractor, retained and exercised responsibility for the daily operation of the landfill as well as the safety of American Dredging's employees. Although Lalli reported minor safety violations to American Dredging supervisors and felt he had the authority to stop work if he perceived a life-threatening hazard, his routine duties were to monitor the level of water in the dikes and to measure "spillway density" to assure that dredged material was not being returned to the river.

 The Army Corps' limited involvement in the actual dredging operation is confirmed by the Corps' minimal presence on the Falls Township tract. Whereas American Dredging employed approximately fifty employees and various subcontractors to operate the disposal site twenty-four hours a day, seven days a week, the Corps assigned only Lalli to inspect the site on a forty hour per week basis. Consistent with this limited supervisory role, the Corps did not assign inspectors to the site on weekends.

 On the basis of this record, I conclude that the Government cannot be held liable as possessor of the land on which Bloom's death occurred. Confronted with far greater evidence of the Government's supervision of a contractor, our court of appeals has reversed as clearly erroneous a district court finding that the Government was in possession of a construction site. Fisher v. United States, 441 F.2d 1288 (3d Cir. 1971). In Fisher, the district court concluded that the Government had possession of a construction site on the basis of evidence that the Government assigned to the project a "resident engineer" who had "general charge of the construction" and the "authority to require the contractor's compliance with a safety plan." Id. at 1290. The record also contained evidence that the Government assigned two or more "inspectors whose duties included seeing that the work was done in accordance with specifications, enforcing safety regulations, and issuing safety directions." Id. at 1290-1291 (footnotes omitted). Despite this evidence, the court of appeals overturned the district court's finding that the Government had possession of the site. The appellate court's rationale requires rejection of the present effort to characterize the Government as possessor of the Falls Township tract:

 

The law of Pennsylvania makes it clear that one who employs an independent contractor may also employ a person to ascertain that the work is done according to plans and specifications and that the employment of such a person in no way indicates that the independent contractor is being subjected to control. . . . This is a corollary to the long recognized general right of inspection and supervision that an owner normally enjoys and exercises to insure his receiving from the contractor the benefit or total performance bargained for. In employing those men, the United States was only seeking to protect itself and to insure that the contractors were performing in the manner required of them under the contract. . . . We conclude that the district court's finding that the United States was in possession of the site based on the presence of the Government's engineer and inspectors was clearly erroneous.

 Id. at 1291 (citations and footnote omitted). See also Brletich v. United States Steel Corp., 445 Pa. 525, 285 A.2d 133 (1971).

  Plaintiffs make much of an isolated statement by Francis Branagan, an employee of the Warner Company, reporting a conversation he had with unspecified representatives apparently of the Army Corps of Engineers. When deposed on the issue of Warner's involvement at the location of the accident, Branagan responded that he made occasional visits but no inspections, and that his request to have certain dredged materials relocated was rebuffed by someone who added that the Army Corps "runs it." Taking this remark out of context, plaintiffs claim that the record shows the Army Corps' pervasive control over the operation. I cannot agree. The record is otherwise barren of evidence that the Government troubled itself with the details of operating this project. Standing against the Government's unequivocal affidavit demonstrating the Army Corps' limited role, Branagan's statement is insufficient to create a genuine issue of material fact.

 Under a similar analysis, plaintiff's third theory of liability, premised on Restatement (Second) Torts § 414, must be rejected. In this regard plaintiffs contend that the Government is liable for Bloom's death because it controlled the dredging operation and the energized wires at issue in this case.

 Section 414 permits imposition of liability against an employer of an independent contractor who "retains the control of any part of the work . . . for physical harm to others for whose safety the employer owes a duty to exercise reasonable care, which is caused by his failure to exercise his control with reasonable care." See Byrd v. Merwin, 456 Pa. 516, 317 A.2d 280 (1974).

 Although there has been some uncertainty as to the level of control over a contractor that is required to subject an employer to liability under section 414, there has emerged a consensus that liability may not be imposed simply because the employer retained either the general power to stop work or the right to inspect and supervise the results of the contractor's operation. Retention of such powers is consistent with the employer's legitimate interest in assuring itself that the contractor is properly fulfilling its obligations. Rather, to establish liability under section 414, it is necessary to show that the employer retained control over the manner of the contractor's work or the operational detail of the construction project, and that the employer's negligent control of the work caused physical harm. See generally, Byrd v. Merwin, supra; Hurst v. Triad Shipping Co., 554 F.2d 1237 (3d Cir.), cert. denied, 434 U.S. 861, 54 L. Ed. 2d 134, 98 S. Ct. 188 (1977); Fisher v. United States, supra; Marshall v. Southeastern Pennsylvania Transportation Authority, 587 F. Supp. 258, 264-266 (E.D.Pa. 1984); Sharkey v. Airco, Inc., 522 F. Supp. 646, 650-652 (E.D.Pa. 1981) (section 414 properly invoked where "retained control is tantamount to reservation of the power to direct the manner in which the contractors produce the result. . . ."), aff'd mem., 688 F.2d 824 (3d Cir. 1982); Toole v. United States, 443 F. Supp. 1204, 1223-24 (E.D.Pa. 1977), rev'd on other grounds, 588 F.2d 403 (3d Cir. 1978).

 Liability under section 414 is therefore based directly on the negligence of the employer; it is not a theory of vicarious liability for the contractor's misdeeds. Hurst v. Triad Shipping Co., supra; Sharkey v. Airco, Inc., supra; Moss v. Swann Oil, Inc., 423 F. Supp. 1280, 1282 (E.D.Pa. 1976), aff'd mem., 566 F.2d 1168 (3d Cir. 1977).

 Application of section 414 to the Government as an employer of an independent contractor requires particular attention to the Tort Claims Act's limitation of liability to that caused by the negligence or other malfeasance of Government employees. Our court of appeals and other appellate courts have "consistently held that the United States cannot be vicariously liable for injuries to workmen on Government construction sites, solely because the Government has retained control over the work and safety practices of the independent contractor whose negligence caused the injury." Gibson v. United States, 567 F.2d 1237, 1243 (3d Cir. 1977), cert. denied, 436 U.S. 925, 56 L. Ed. 2d 768, 98 S. Ct. 2819 (1978). In short, to impose liability against the Government under Restatement (Second) Torts § 414, it is necessary for the plaintiff to show: (1) that the Government retained control over the manner of contractor's work or the operational detail of the project, (2) that the manner in which the Government or its employees controlled the contractor constituted negligence or an otherwise wrongful act, independent of fault attributable to the contractor, and (3) that the Government's negligence or wrongful act caused physical harm.

 Applying this standard to the facts of this case, plaintiffs' claim under section 414 cannot survive the Government's motion for summary judgment. As discussed above, our court of appeals specifically rejected the contention, and a district court's finding, that the Government exercised control over a contractor by inspection and supervision of the results of the contractor's work. Fisher v. United States, supra. The evidence of Government involvement was far greater in Fisher than plaintiffs have been able to muster in the case at bar. The record in this case is devoid of any suggestion that the Government controlled either the manner in which American Dredging conducted its operation or the operative detail of the dredging project. I must therefore grant the Government's motion for summary judgment as to plaintiffs' section 414 claim.

 Plaintiffs' lone remaining theory of liability against the Government is premised on Restatement (Second) Torts § 413 and the variation of § 416 or § 427 liability enunciated by our court of appeals in Toole v. United States, 588 F.2d 403 (3d Cir. 1978). Under section 413 plaintiffs contend that the Government is liable because the energized wires in the vicinity of dredging operations presented, in the absence of "special precautions" an "unreasonable risk of physical harm," and that the Government failed either to require American Dredging to take special precautions or to take such precautions itself. Under Toole v. United States, plaintiffs claim that the Government had superior knowledge of the special danger presented by energized wires, but failed to warn either American Dredging or Bloom of the danger. *fn3"

 Section 413 of the Restatement imposes liability against

 

one who employs an independent contractor to do work which the employer should recognize as likely to create, during its progress, a peculiar unreasonable risk of physical harm to others unless special precautions are taken . . . for physical harm caused to them by the absence of such precautions if the employer

 

(a) fails to provide in the contract that the contractor shall take such precautions, or

 

(b) fails to exercise reasonable care to provide in some other manner for the taking of such precautions.

 Interpreting analogous language in sections 416 and 427 of the Restatement, the courts have held that the presence of uninsulated energized electric wires in close proximity to a construction zone is a condition that an employer should recognize as likely to create an unreasonable risk of harm in the absence of special precautions. Nationwide Mutual Insurance Co. v. Philadelphia Electric Co., 443 F. Supp. 1140, 1144-45 (E.D.Pa. 1977); Colloi v. Philadelphia Electric Co., 332 Pa.Super. Ct. 284, 297, 481 A.2d 616, 622-23 (1984) (underground power line). See also Philadelphia Electric Co. v. James Julian, Inc., 425 Pa. 217, 228 A.2d 669 (1967) (underground gas main).

 As a theory of direct negligence on the part of an employer, however, section 413 limits the duty imposed by that section in accord with the attenuated relationship between an employer and the employees of his independent contractor. In particular, both the Restatement and Pennsylvania caselaw enable the employer to satisfy his duty by providing in the contract that the contractor must take the special precautions necessitated by the peculiar hazards attendant to the work. Restatement (Second) Torts § 413(a); Gonzalez v. United States Steel Corp., 484 Pa. 277, 398 A.2d 1378 (1979). This is in contrast to rules of vicarious liability contained in sections 416 and 427 of the Restatement which do not permit an employer to avoid by contract its responsibility for a contractor's negligence. See Restatement (Second) Torts § 416, comment c.

 In the case at bar, the record demonstrates that the Government satisfied its duty under section 413 by requiring American Dredging to abide by safety regulations which, if followed, would have prevented Bloom's death. In relevant portion, the contract between the Government and American Dredging Company required American Dredging to comply with Army Corps of Engineers Manual EM 385-1-1 (June 1, 1977), which was entitled "General Safety Requirements." Contract No. DACW 61-81-C-0166, para. 52(a). Although the Army Corps' safety manual has not been made part of the record in its entirety, the record makes clear that the manual included several provisions compliance with which by the contractor would have prevented Bloom's accident. For example, as recited in the Army Corps' internal report on the accident, paragraph 11a17 provided "When moving equipment under or near energized lines, a designated employee shall be utilized to determine that required clearance is maintained." United States Army Corps of Engineers, Board of Investigation Report at 5. More importantly, also as related by the report, paragraph 15e08 provided in part:

 

Operations adjacent to overhead lines are prohibited unless one of the following conditions is satisfied: (a) Power has been shut off and positive means taken to prevent the lines from being energized. (b) Equipment or any part thereof does not have the capability of coming within the following minimum clearance from energized overhead lines, and equipment has been positioned and blocked to assure no part thereof including cables can come within the following minimum clearances.

  POWER LINES MINIMUM NOMINAL SYSTEM KV REQUIRED CLEARANCE 50 or under 10 feet (3.05m)

19850809

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