Thompson v. Timpanogos Metals

762 F. Supp. 927, 1991 WL 69445
CourtDistrict Court, D. Utah
DecidedMay 23, 1991
DocketNo. 89-C-0492A
StatusPublished

This text of 762 F. Supp. 927 (Thompson v. Timpanogos Metals) is published on Counsel Stack Legal Research, covering District Court, D. Utah primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Thompson v. Timpanogos Metals, 762 F. Supp. 927, 1991 WL 69445 (D. Utah 1991).

Opinion

AMENDED ORDER

ALDON J. ANDERSON, Senior District Judge.

The above-captioned case is now before the court on Defendant United States Government’s motion for summary judgment. The Government contends it is entitled to judgment because it cannot be held liable for Plaintiff’s injuries as a matter of law. The Government asserts it did not exercise any control over the independent contractor whose actions caused the injury. For this reason, the Government argues, it is protected under the Federal Tort Claims Act. Having reviewed the parties’ memo-randa, considered the arguments presented at hearing, and scrutinized relevant law, the court is prepared to rule.

I. BACKGROUND

The dispute in this suit revolves around the transportation and installation of a large steel door at Hill Air Force Base. The door was not designed, manufactured, altered, handled, nor transported by the Government. The Government left responsibility for safety and the construction process to the general contractor, Gramoll Construction Co., by express written contract. Contract at ¶ 55(a), Exhibit to file doc. no. 50. By contract, the Government reserved to itself only the authority to inspect. Id. at II 61. In actual practice, the Government’s inspector directed the contractor to comply with safety requirements and the contract specifications at various times during the project. The Plaintiff asserts that this reservation of authority coupled with the actions of the inspector created a duty requiring the Government to supervise the contractors.

The parties do not disagree over the essential facts in the case. The construction site was at Hill Air Force Base. The Government contracted with Gramoll to provide ammunition storage igloos built to Government specifications. Gramoll Construction was an independent contractor for the Government with the authority to enter subcontracts. All construction personnel working at the site were employees of the independent contractor, Gramoll Construction Co., or its subcontractors.

The Government had an inspector at the construction site between three and five times per week. The inspector noted errors in the construction process and breaches of safety regulations. The Government had the authority to require the contractor to submit a job hazard analysis on particular procedures if the inspector so desired. No such hazard analysis was either requested or prepared for the procedures that resulted in the accident giving rise to this suit.

As part of the contract, Gramoll had to supply and install large steel doors. Gra-moll subcontracted with Timpanogos Metals, Inc. for the fabrication of the doors. When the doors arrived at the construction site they were equipped with steel eyelets that were not required by the Government specifications. On April 7, 1987, workers strung cable through the eyelets and lifted a door vertically off the ground using a backhoe. The workers then transported the door to an igloo and installed it and a [929]*929second door using the same procedure. The Government inspector was not present during this initial transportation and installation, nor had he been consulted about it.

On May 8, 1987, workers were again transporting an igloo door by using the eyelets and cable to suspend it from a backhoe. The accident occurred during this process. The Government inspector was on the construction site that day but was not aware that the installation was to take place. Neither had the inspector approved the procedure of carrying the heavy doors by the eyelets. The inspector did, however, see the backhoe carrying a door pass by the window of an office he was occupying. The inspector questioned a nearby representative of the independent contractor that was supplying the doors about the door hanging from the backhoe. A short time later, the Plaintiff was injured in the accident.

II. DISCUSSION

Plaintiff does not dispute that the Government is not generally liable for the actions of its independent contractor. Nor does Plaintiff dispute that the relationship between Gramoll Construction and the Government was one of independent contractor-owner. Plaintiff argues that the Government’s instructions to the contractor in conjunction with the Government’s contract authority constituted the exercise of control over the general contractor. Plaintiff contends this exercise of control was sufficient to impose on the Government a limited duty to supervise the contractor for safety. Plaintiff asserts the Government breached this duty, thereby becoming a cause of Plaintiff’s injury. The Government argues that it is not liable for the actions of independent contractors and did not exercise sufficient control over the contractor to create a duty to supervise.

The published cases on this issue speak with substantial agreement. The reservation by the Government of the right to inspect, make safety requirements, and stop work is not sufficient to pierce the general veil of sovereign immunity. E.g., United States v. Page, 350 F.2d 28, 31 (10th Cir.1965) cert. denied 382 U.S. 979, 86 S.Ct. 552, 15 L.Ed.2d 470 (requirements of government safety program do not constitute control and create no liability for failure to enforce safety rules). See, e.g., Russell v. United States, 763 F.2d 786, 787 (10th Cir.1985) (negligently conducted mine inspections are discretionary function and not actionable); Flynn v. United States, 631 F.2d 678 680-81 (10th Cir.1980) (for Government to be liable under similar theory of liability, it “must have retained some degree of control over the manner in which the work is to be done.... The general right to inspect and make safety requirements is not enough.” “The existence of a safety program does not create liability when the contractor, as here, is primarily responsible for safety”); Wright v. United States, 568 F.2d 153, 159 (10th Cir.1977) (Government cannot be held liable for choosing bridge design or assisting state in constructing bridge that later failed); Craghead v. United States, 423 F.2d 664, 666 (10th Cir.1970) (insufficient control over independent contractor demonstrated to impose liability on Government); Irzyk v. United States, 412 F.2d 749, 751 (10th Cir.1969) (safety requirements and inspections by Government inspector are not sufficient to make Government liable for injury due to independent contractor’s negligence); Eutsler v. United States, 376 F.2d 634, 636 (10th Cir.1967) (Government’s failure to enforce safety regulations, even though regarding inherently dangerous activity, does not create liability); Hamman v. United States, 267 F.Supp.

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762 F. Supp. 927, 1991 WL 69445, Counsel Stack Legal Research, https://law.counselstack.com/opinion/thompson-v-timpanogos-metals-utd-1991.