This wrongful death and survival action
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.
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.
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.
American Dredging Company has filed a motion for summary judgment against all parties except the United States.
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.
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.
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.