*1 Plaintiff-Appellee, GOWDY, Clifford America,
UNITED STATES
Defendant-Appellant.
No. Appeals Court States Circuit.
Sixth 20, 1969.
June *2 Bishop, Justice, Atty., Dept. F. J. Washington, C., appellant; Ed for D. Weisl, Jr., Gen., Atty. Mor L. Asst.
win
Justice,
Hollander, Atty., Dept. of
ton
Washington,
C.,
Beaton,
D.
Harold D.
U.
Atty.,
Rapids, Mich.,
S.
Grand
on brief.
Philo, Detroit, Mich.,
Harry M.
McCroskey,
Reamon, Marcus,
William G.
Libner, Reamon,
Dilley,
&
Williams
Rapids, Mich.,
appellee.
Grand
WEICK,
Judge, ED-
Before
Chief
WARDS,
Judge,
MC-
Circuit
ALLISTER,
Judge.
Senior Circuit
WEICK,
Judge.
Chief
appealed from a
United States has
judgment of the
District Court
favor
plaintiff, Gowdy,
amount of
personal
$289,248.82, in
in-
an action for
brought
authority
prevent plain-
juries
under
house so as to
Act. 28 U.S.C.
tiff’s fall therefrom.
Tort Claims
the Federal
opin-
seq.
1346(b)
2671 et
§§
ADMIRALTY
IS
LAW APPLICABLE?
reported in
ion of the District
At
the outset we must determine
*3
applies
whether maritime
law
journeyman
electrician
awas
claim under
the Federal Tort Claims
employed by
Com-
Whittaker Electric
Act,
held
as was
the District Court.
[Whittaker],
independent
pany
con-
an
271
738.
tractor,
which had a contract with
Coast
to install new electrical ma-
Guard
The Federal Tort Claims Act
chinery
machinery
in
house which was
a
against
provides
remedy
on claims
part
lighthouse
on a
located
break- United States for—
Michigan.
The
water on Lake
beacon
“* * * personal
injury
or death
lighthouse
upward
extended
tower
wrongful
negligent
caused
part
from a
roof of the
the flat
ma-
any employee
or omission of
of the
act
chinery
light-
house. Entranсe
to the
acting
Government while
within
gained from inside the ma-
house was
scope
employment,
office or
un-
chinery house.
der
circumstances where
United
operating
While
a hand hoist or rach-
States,
private person,
if a
would be
et on the flat
roof of
to the
liable
claimant
accordance
house, Gowdy
fell
lost his balance and
place
with the law of
where the
ground,
sustaining
eleven feet
to the
occurred.”
28
act
omission
U.S.C.
comminuted fractures
heels. He
of both
1346(b)
§
Compensation
was awarded Workmen’s
place”
“law of the
words
have been
Michigan
benefits under
em-
law as an
require
applicаtion
construed to
ployee Whittaker,
but sued the Gov-
the “whole law” of the state
where
third-party
ernment as a
tortfeasor.1
act or omission occurred. Richards v.
complaint, Gowdy alleged negli-
In his
States,
11,
1,
United
369 U.S.
82 S.Ct.
gence
585,
(1962).
fied: the — you fractions of a second before had you Court “Q tell And would losing your this sensation bal- you happened exactly as best what ance? remember it? have, A The recollection that I actually remember. I don’t A trying get I on back trying only thing I do remember that roof. getting my back to catch balance Q just— But time before that it’s out [sic] roof. I was started you you I wave remember how A I Before that time was get words, try to hands —In other up my the hoist time I to that lost get back, your body I couldn’t balance; I recollection of thing I remem- And the next back. happened. what I don’t know.” ber, I lit down beside Chuck. Gowdy did not Since know what Q lower And level? fall, him caused to lose his balance and A level.” On lower spec- there would seem to be no basis On cross-examination he testified: negligence ulate that it was the of em- ployees Government, “Q you give any spe- rather than us more Can you con- cific details as what recall tractor, giving improper during instructions the last few seconds and failing properly supervise or in you fractions of a second before had losing employees. work of you its the realization that were yоur balance? It was not function A All I can remember I instruct the contrac trying my I to catch balance. employee, Gowdy, tor’s how to use the get trying to back on this roof or ratchet hoist. Nor did the Government platform. attempting I was to. liability having personnel incur Q you But al- were time present during the course of construc ready process falling ? tion to make sure that the contractor’s already my A I had lost balance. employees using properly were the con equipment. Q you tractor’s Bosun Mate *7 process Gilli And in were the gan falling testified that on occasions when he ? site, “they was out at the had a hoist yet. mean, A I hadn’t left I I hаnging I but don’t recall what it looked platform yet. hadn’t left pay like. I didn’t that much attention Q you your way, But were on * * * to it. I don’t remember though ? attached, whether the ratchet was if it Yes, guess my way. A I I was on up ring at the or arms-level. Q * Bight. * * you Just before had that part Some of it was hooked to losing your balance, sense of what top davit, yes.” of the you do remember about those few knowledge The evidence of or seconds few fractions of a sec- of the Government that Whittaker’s em- ond? ployees using were flat of the nothing. A I don’t remember In quite house as a work area is words, other I have no recollection sketchy. Gilligan, who was callеd as a of— by plaintiff, witness testified: Q push you? Did someone “Q you, And did in the course Nobody me, pushed A no. work, employees engaged this see Q you out, Did black or con- lose performance of the Whittaker sciousness ? level, contract at the second moving A No. up or from the lower level involving hospital in higher the sec- an excited entrance level to a state. ond level? alleges that de- “The declaration out I was When
A don’t know. I ought hospital knew fendant generally there, out went and pay I using people have known that I foreman. didn’t talked to emergency be under entrance would I walked when much attention 'physicаl and emotional strain standing guy one where and, of reason- shock in the exercise up probably them I seen other one. care, provided a able should have didn’t; Maybe I I did there. guard type platform. of some on this don’t recall.” think “We when situations such as this kind evi- would doubt that We arise, considering the attendant dence, by party who has offered emo- excitement and the mental and proof, qualify un- would even burden en- tional condition of the individuals rule. der the scintilla tering leaving emergency en- an Judge Michigan applied hospital, The District to a reasonable men trance negli- might on the issue substantive law differ as to whether or not holding gence. necessity that ad- In, view of our there was construc- ease, miralty apply guard to this protect law does not tion those rail Michigan apply the sub- platform we also law to on or about the as business here. stantive issues involved invitees.” Id. N.W.2d at finding negligence, support To Ackerberg Gowdy’s the District relied attention to his work certain- Muskegon Osteopathic Hospital, ly inability does raise same (1962), 596, 115 protect danger Mich. N.W.2d himself from obvious question which involved the emotional excitement in- and mental erred in direct- whether the trial court ing Ackerberg, plain- volved where the in favor of defendant at ability perceive a verdict tiff’s plaintiff’s close of evidence. been limited the circumstances. plat- Ackerberg plaintiff Although fell from a pushed Gowdy. No one he form from two elevated happened, could not remember what ground. plat- three feet This above did not black out or lose consciousness emergency form led to the entrance prior simply to the He lost his fall. bal- emergency which in turn room led ance and fell from the roof. hospital, and was used Ackerberg further the Court said public entering leaving hospi- page 602, page 293: N.W.2d at tal. strong testified that Plaintiff because “We do not in this case that decide emergency room odor recovery, is entitled to but child, injury to his he became nau- *8 merely question that there is of fact a Feeling dizzy. seated and little a the as to which defendant’s air, through need fresh he walked out jury.” should be submitted to a emergency the platform, entrance the rear onto ground. where he fell to the any does not involve Our case The Court stated: question should to whether the Court as test, verdict, then, “The or in the instant case or should not have directed a
is, agree grant granted would all men or refused to reasonable as should have question hospital to whether here or not defendant a motion to dismiss. The guard 52(a) duty Fed had a to construct is whether a under Rule protection finding platform the rear Procedure around eral Rules Civil general Judge by public which was used of the District that Govern entering clearly leaving emergency and erroneous. ment was is
533 danger.” States obvious See United 2 States v. Restatement of In United Torts, 395, Second, 364, Co., 68 343A. S.Ct. Gypsum 333 U.S. admitted § (1948), guardrails the Court that he knew there L.Ed. 746 were no on this flat roof. held: ‘clearly finding er- Suppose is a [of “A homeowner contracts with fact] a although is evi- supplier when there on roneous’ aerial erect an television reviewing support it, dence roof is a his house. The the roof of left slanting roof, evidence is court еntire less on it is even definite firm conviction with the and home- flat The to work than a roof. safe guardrails mistake committed.” that a has been no around has owner repairman, em- of his home. A roof Wright Courts, the au- on Federal working by ployed the supplier, while says page 377': thor rooftop loses on his balance non-jury appellate “In case the sustaining personal ground, falls reject it court can inferences which (1) injuries. Is the homeowner liable clearly re deems can erroneous having guardrails around his finding, by though supported verse a repairman prevent roof as to so evidence, is substantial the court if falling, (2) for failure warn convinced on the whole record that already the serviceman of a that he fact finding does not the truth and reflect guard- namely, knew, that there were right Citing of the case.” Sanders v. say, rails? We “No.” Leech, 486, Court, think, The District un- we 1946); United States v. United States duly impressed testimony of two Co., 395, Gypsum 364, 68 S. U.S. Government, employees former 525, (1948). Ct. L.Ed. 746 safety who testified for the legal Assuming stand- the correct experts. They testified that the Govern- “clearly erro- applied, has been ard guardrails ment’s failure to maintain finding of applicable to a test neous” the roof around an undue risk created citing 376, Wright, supra negligence. guarded reasonably which could not U.S. McAllister against by roof, a workman be- on L.Ed. 20 75 S.Ct. might engrossed cause he in his become on relied also District danger. forget work and about Co., Gypsum United States McCord v. origi- Guardrails had been on roof (1966), Mich.App. N.W.2d nally, years they but over the disinte- case since to our it was similar said grated and were removed. guard- of a “the absence he found inference which reason- deceptive hidden presented a rail ably be drawn from the evidence is that F.Supp. at plaintiff.” the davit had been used the Coast similarity facts findWe purpose loading Guard for the or un- McCord, plaintiff was of the cases. loading equipment supplies, and that through roof fell on a might necessary get up it either to tending presented skylight. He evidence the roof or to use a ladder to attach a skylight prove was covered block and tackle to the davit or to in- skylight dust and dirt and that with spect or oil the There was no davit. ap- the roof so that into was built proof Coast Guard used ever peared roof and to be area, as a work or authorized *9 held that see it. The Court not could the contractor to make such use of it. question presented as to this a factual The roof was never enter used to to a entitled was whether lighthouse. dangerous condition, warning of warning defendant It necessаry of which is clear the absence it was not contrast, injuries. By Gowdy operate for for his to was liable the ratchet hoist present “known from op- case involves a the roof level for he could have working plat- on the an elevated ground. Nor safely it erated place form and fall. Gowdy could be distracted necessary to was it Clearly, question of whether it was preca- was at best in what himself operate for a to dis- foreseeable workman be to position in which rious competence ap- tracted and fall is within the expert witnesses Plaintiff’s ratchet. parently layman. ordinary it an fact that not consider did perform Gowdy unnecessary for expert testi “To warrant use * * * doing roof from the he was work mony subject of infer level. distinctively ence must so related be science, profession, to some business Judge was of the view The District occupation beyond as to the ken testimony experts that from the * * average layman knowledge in the the Government had McCormick, 28; Law of Evidence engineering “unquestion- safety field of Hotels, Inc., Cohen v. Western 276 F. Gowdy ably” superior that of (9th 1960); 2d Cir. and Henkel high- Whittaker, therefore it owed a Varner, U.S.App.D.C. v. 138 F.2d protection duty er for the of Whittaker’s employees. He stated: light- “If the deck of the second in this case holdWe working platform, house were not a safety knowledge standards if this case the defendant in were impose not did Government typical landowner unaware of applica greater duty any than was on it n safety engi- sophisticated nuances of person, particularly private to a ble neering, might agree probably we upon depends here, duty where, as such discharged defendant its duties to foreseeability failure another’s plaintiff.” F.Supp. and ob protect from a known himself danger. vious place the wisdom of Gow- first dy’s roof as use of the flat Court characterized The District questioned. platform may alluring,” well but hazard аs “subtle necessary the roof for him to be on not withstand does characterization analysis. the davit. hoist above, Gowdy to attach the testi- noted As Gowdy without in- made the attachment the fact that he was aware of fied that necessary jury It was not to himself. careful, fall. he would not if were operate from the the hoist for him to upon by the Court Reliance operated top, it could have as he expertise in this case the Government’s ground safely from level. may an in effect make The mere fact that safety Govern who use its all insurer premises knowledge superior had purposes under for business safety did not increase its of duty standards private persons where circumstances ordinary Michigan recogniz to exercise care. would be liable. “ performing the Government was occupier an insur is not es that ‘[t]he ” * * work, under its su was not safety *.’ of invitees er of the pervision or control. The District Court Katz, Kroll 374 Mich. doing anything not feel it (1965), Prosser, did that was quoting N.W.2d determining Torts, (2d ed.). other than superior the Govern The Act Law knowledge ment’s liability of limits the the Government 746. As here involved. “private person.” of a Mider v. stated, before owed no duty inspection op and control of the 1963). independent erations of the contractor. judgment, In our a flat roof guardrails expert do not testi not a We believe without around mony dangerous instrumentality prove needed that one so to im-
535 liability property pose absolute on a was on flat roof and that it was dan- gerous ownership of his thereof. owner because for him to work too close to the present might But even if the roof in the case of the roof because he lose dangerous, considered the Govern- were balance and fall. Neither Government, circumstances, ment would not be liable under Fed- under such merely provide guardrail. required eral Tort Claims Act because it a Thus dangerous property. Government, owned The Su- we hold that preme roof, Court owner of so held Dalehite v. Unit- this flat could not have States, 15, 956, anticipated reasonably ed 346 U.S. 73 S.Ct. 97 that a careful 1427, protect L.Ed. wherein said: workman would not himself from danger the known and in- obvious here negli requires “But the statute volved.
gent judgment our act. So it is that liability virtue ei We does arise conclude consideration of the ownership ther of record as United States of an a whole that mistake has dangerous ‘inherently commodity’ finding been made and the of the Dis- property, engaging or of in an trict that ‘extra- activity.” 45, clearly hazardous’ Id. at 73 is erroneous. United S. Gypsum Co., Ct. at 972. v. United States su- States pra. plaintiff points While to later Su- 4 preme Court decisions he which claims CONTRIBUTORY NEGLIGENCE place aspects in doubt some of Dalehite respect negligence opera- with at the contributory negligence, As level, authority tional is cited which District Court stated: jeopardizes principle the trust of the that “Defendant’s claim that the Government cannot be held liable on guilty contributory theory liability of absolute on account testimony is unfounded. From the ownership dangerous proper- mere safety experts, defendant’s former we ty. conclude the attention a rea- recognized prudent workman,
This Court has
sonable and
such as
may
plaintiff,
the Government
not be held liable
while
on the second
Taylor,
lighthouse,
without
fault
in United States
deck of
would
con-
649,
(6th
1956).
236 F.2d
exclusively
Cir.
centrated
See
almost
on his
Mahoney
States,
F.Supp.
v. United
work
and that
into a
lulled
effort
(D.C.Tenn.1963), aff’d,
security,
easily
present is Court that was case. clearly erroneous. in v. En stated rule is DeGrave 565, 569, Nothing Michigan gle, in cases Mich. N.W.2d recent (1950): contributory neg finding of forecloses a “ supra, ligence, Marr, Jones Dockham v. persons must exercise ‘Normal Michigan Racing Ass’n, supra, and v. protec- their their for own faculities Co., 10 L. Hudson Mich. Honorl v. J. injury and must in order to avoid tion (1968), App. and N.W.2d sight, use of their make reasonable category. cleаrly into this case falls that intelligence hearing to discover negligence contributory plain This bars may dangerous situations which ” recovery Michigan tiff’s under law. Dahlerup quoting presented,’ v. Michigan Ass’n, Racing supra, Jones v. Co., 319 Trunk Western R.R. Grand Co., supra. and Honorl v. J. L. Hudson 100-101, Mich. 96 at N.W.2d We need not determine whether Gow- above, reject the District noted we As contributorily negligent dy as a was finding danger involved Court’s that hold matter law. We that apparent to the United here was more finding of the Court that Gow- District through expertise it its than States dy clearly was not is erro- clearly employer. his neous. appears could have been this work have done in a manner which would further The Government contends e.g., attaching injury, by damages avoided the in the amount of the award of $289,248.82 it could have been hoist-ratchet so that for comminuted fractures level, ground heels, at waist used at even “made claimant to a able Thus, walk, car, engage not faced with a sit- we are drive level. seden- involving tary employment, no alternative. uation and under substan- regime gross- pain is tial medication” Michigan aptly Jones As stated in ly excessive, and that District Court Racing Ass’n, 78 N. 346 Mich. wrong damages. applied the measure (1956): W.2d holding respect In view of our with negli- guilty of “If defendant was negligence and contributo- issues gence ignoring of a the existence negligence, ry we consider need not or should of which it knew condition damages, adopted issue of the rules it should have have known and which Judge opinion the District his dangerous to invi- foreseen would damages. plaintiff, tees, have then who should aware, did, seen, judgment as he as been Court of the District known, was, of its existence and is remanded with reversed and cause danger- did, complaint. he said he instructions dismiss contributory ous, guilty equally (concur- EDWARDS, Circuit ignored negligence having it and ring). * * * acting disregard of that I concur in the result reached danger.” join portion opin- court required pay ion record shows no ac- holds One is tionable under the terms of to those features attention exclusive Act, surroundings the Federal Tort risk Claims U.S.C. § which involve his 1346(b) injury. One allow attention