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Hale v. United States

United States District Court, District of Columbia

August 9, 2019

ROBERT H. HALE, Plaintiff,


          Randolph D. Moss, United States District Judge.

         This civil action for damages arises under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 2671 et seq. Plaintiff Robert Hale is suing the United States for a workplace injury that he sustained while performing repairs at a U.S. Department of the Navy building. At the time of the accident, Plaintiff was employed by EMCOR Government Services (“EMCOR”), a subcontractor for the Navy. The Court held a four-day bench trial, which concluded on February 27, 2019. The parties completed post-trial briefing on June 6, 2019. For the reasons set forth below, the Court concludes that Plaintiff is barred from recovery because he was contributorily negligent.

         I. BACKGROUND

         Plaintiff Robert Hale was formerly employed by EMCOR, a Navy subcontractor, as a heating and air-conditioning mechanic. On May 12, 2011, Plaintiff received an emergency “ticket” to repair the heating, ventilation, and air conditioning (“HVAC”) unit in Building 220 at the Washington Navy Yard. The unit was located above a drop ceiling between floors one and two. To access the unit's controls compartment, Plaintiff climbed up a ladder and crawled into a dark space along a narrow, wooden plank. When Plaintiff reached the end of the plank, he stood up, hitting his head on conduit. He lost his balance and fell forwards through the drop ceiling. As a result of his twelve-foot fall, Plaintiff fractured his wrist in multiple places. He alleges that the effects of this injury persist to this day. See Dkt. 1 at 2 (Compl. ¶ 9).

         This Court held a four-day bench trial, which concluded on February 27, 2019. Plaintiff principally argued at trial and in his post-trial briefing that, because the worksite at Building 220 failed to comply with various Occupational Safety Health Administration (“OSHA”) regulations, the Navy was negligent per se. Dkt. 90 at 4-9. Defendant counters that the Navy does not owe Plaintiff a duty (beyond that of an ordinary landowner), Dkt. 98-1 at 17, 24-25, and that, in any event, Plaintiff is barred from recovery because he (1) was contributorily negligent and (2) assumed the risk of falling, id. at 3-16. Although the parties' post-trial briefing raises various factual and legal issues, including the scope of the Navy's duty to Plaintiff and the degree to which Plaintiff's wrist is permanently impaired, the Court need not resolve these issues here. Rather, the case turns on whether Plaintiff was contributorily negligent, and, if so, whether his contributory negligence bars his recovery as a matter of law. The Court concludes that it does. The Court will, accordingly, find in favor of the United States.

         A. Procedural Background

         Plaintiff filed suit against the United States on September 12, 2013. The United States, in turn, filed a third-party complaint against EMCOR on April 25, 2016. Dkt. 31 (3d Party Compl.). At the joint request of the United States and EMCOR, the Court dismissed the third-party complaint without prejudice on July 14, 2017. Dkt. 52 (Joint Stip. of Dismissal). Plaintiff and the United States engaged in settlement discussions and initially reported to the Court that they had “reached a settlement in principle.” Dkt. 61 at 1. At a subsequent status conference, however, the parties disagreed about whether they had reached a binding settlement, and they asked that the Court resolve that dispute. See Oct. 10 2018 Hrg. Tr. (Rough at 2-3, 4-7). Because FTCA cases are tried to the bench, the Court suggested referring the parties' dispute regarding settlement to a magistrate judge, who could hear from the parties regarding the details of the putative settlement and could decide whether the parties' agreement “in principle” was binding. Id. (Rough at 14). After the parties declined to consent to referring that limited portion of the case to a magistrate judge, the Court determined that it should, first, hear the evidence and decide the case as the trier of fact and, then, if necessary, decide whether the parties had entered into a binding settlement agreement. Minute Order (Oct. 10, 2018). Although that approach is far from efficient, the Court concluded that neither aspect of the parties' dispute was necessarily antecedent to the other and that it was appropriate to proceed in this order to avoid any appearance that the parties' settlement discussions influenced the Court's factfinding.

         At trial, Plaintiff testified in support of his FTCA claim, and he called the following additional witnesses: Elvin (“Buddy”) Luskey (his supervisor at EMCOR), Dr. Richard Barth (an expert in orthopedic surgery with a specialty in hand and upper extremity), and Terry Lane (an expert on OSHA worksite safety). The government, in turn, called Robert Goodwin (the site manager of Navy Yard at the time of the accident), Jonathan Dobry (the maintenance manager), James Waite (a contracting officer with the Naval Facilities Engineering Command), and Eugenia Kennedy (an expert on OSHA worksite safety). The parties jointly called James Watts, who was, at the time of the accident, a public works officer at the Naval Air Station. Both parties also offered into evidence, inter alia, photographs and floor plans of Building 220, Def. Exs. 4A-C, Plaintiff's sketch of the mezzanine area where the HVAC unit was located, Joint Ex. 11B, and the accident report prepared by EMCOR, Pl. Ex. 4. Having considered the evidence and testimony presented at trial and the parties' post-trial submissions, [1] the Court will make the following findings of fact and conclusions of law:

         B. Factual Background

         Plaintiff is a 49-year-old steamfitter (in layman's terms, someone who installs or repairs HVAC systems). Dkt. 85 at 39, 97 (Trial Tr.). He was hired by EMCOR in 2009. Id. at 41 (Trial Tr.). At the time, EMCOR held a contract with the Navy to perform repairs and general maintenance of the mechanical equipment in all of the buildings at the Washington Navy Yard. Id. at 51 (Trial Tr.). As a journeyman steamfitter for EMCOR, Plaintiff's job entailed servicing and maintaining all of the HVAC equipment for approximately forty buildings. Id. at 38 (Trial Tr.).

         1. Plaintiff's Training

         Plaintiff began his career as a steamfitter in 2003 and, over the next five years, completed an apprenticeship with the Steamfitters Local 602. Id. at 38-39 (Trial Tr.). In 2009, Plaintiff was certified as a journeyman steamfitter, id., and he also received a certificate in OSHA safety compliance, (Joint Ex. 11D). After Plaintiff joined EMCOR in 2009, he continued to receive safety training. Plaintiff attended employee safety orientation, see Def. Ex. 4G, and was required to attend weekly sessions on workplace safety, see Dkt. 77 at 110 (Trial Tr.); Dkt. 85 at 46-47 (Trial Tr.). Those weekly sessions covered topics such as fall protection, OSHA Top Ten Standards, and the importance of creating a pre-task plan. See Joint Ex. 11F.

         2. Building 220 Worksite

         The HVAC unit in Building 220 was located on the mezzanine level of the building (between floors one and two) above the kitchen area. Dkt. 85 at 56 (Trial Tr.); see also Def. Ex. 4C (Photo of Kitchen and Mezzanine Stairs). To access the room containing the HVAC unit, Plaintiff had to ascend a portion of a flight of stairs and then climb a ladder that rose above the stairs. See Dkt. 85 at 56 (Trial Tr.). The top of the ladder came up to the base of a door, which opened outwards, leading into the mezzanine. Def. Ex. 4A (Photo of Mezzanine Entrance). Photographs of the stairs and ladder are reproduced below:

         (Image Omitted)

         Def. Ex. 4C (Photo of Kitchen and Mezzanine Stairs)

         (Image Omitted)

         Def. Ex. 4A (Photo of Mezzanine Entrance)

         Inside the mezzanine-between six and twenty inches from the door[2]-was the HVAC unit, which was eight feet wide, four feet tall, and four or five feet deep. Dkt. 85 at 61-2 (Trial Tr.). The unit sat on top of steel beams above the drop ceiling. See Id. at 71 (Trial Tr.). The eight-foot side of the unit was facing the door, and the controls compartment was located on the opposite side. Id. at 61-62 (Trial Tr.). The space between the wall and the unit was covered with concrete. Id. at 62 (Trial Tr.). Along the right side of the unit (as one approached from the mezzanine door) was a four-foot wide by eight-foot long wooden plank, [3] which sat on top of the steel beams. Id. at 62, 64 (Trial Tr.). This was the only pathway to access the controls compartment on the back side of the unit. Joint Ex. 11B (Plaintiff Sketch). The plywood pathway was partially obstructed at the half-way point by ductwork protruding across the pathway, “a couple feet” off the ground. Dkt. 85 at 65 (Trial Tr.). At the end of the wooden plank was a metal catwalk, which abutted, and ran parallel to, the back side of the unit. Dkt. 78 at 23-24 (Trial Tr.). There was also a plywood platform along the back side of the unit. Joint Ex. 11B (Plaintiff Sketch). A diagram of the area, drawn by Plaintiff at his deposition, is included below:

         (Image Omitted)

         Joint Ex. 11B (Plaintiff Sketch)

         Significantly, the Court finds that, at the time of Plaintiff's accident, the area was unilluminated, except for the ambient light coming through the mezzanine door. See Dkt. 85 at 63 (Trial Tr.). In addition, there were no barriers or tie-off points around the wooden plank or catwalk. Dkt. 78 at 103 (Trial Tr.). As a result, there was nothing to prevent someone-like Plaintiff-from accidentally falling off the wooden plank or metal catwalk and plunging through the drop ceiling into the kitchen area below.

         3. May ...

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