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SCHMID v. UNITED STATES

July 23, 1957

VINCENT W. SCHMID, PLAINTIFF,
v.
UNITED STATES OF AMERICA, DEFENDANT AND THIRD PARTY PLAINTIFF (LOREN "MIKE" KRAUSE CONSTRUCTION COMPANY, INC., AN ILLINOIS CORPORATION, THIRD PARTY DEFENDANT).



The opinion of the court was delivered by: Juergens, District Judge.

This is a civil suit arising against the United States of America under the provisions of § 2674, Title 28, U.S.C. and § 60 to § 69, both inclusive, of Chapter 48, Illinois Revised Statutes, 1955, commonly known as the "Scaffolding Act."

The plaintiff was employed by the Loren "Mike" Krause Construction Company, Inc., who had a contract with the United States, as a carpenter in the repair of building No. S-920 owned by the United States at Scott Field Air Base, a military installation. In the performance of his duties the plaintiff was required to work upon a scaffold elevated 10 feet above the surface of the ground. He fell from this scaffold and was injured.

The suit was brought against the United States alleging the violation of the provisions of the "Scaffolding Act" by wilfully failing to maintain, furnish or provide plaintiff with a safe and sufficiently supported scaffold upon which to carry out his duties as a carpenter.

The United States of America answered denying all of the allegations of the complaint except the jurisdictional averments and at the same time filing a Third Party Complaint making Loren "Mike" Krause Construction Company, Inc., a Third Party Defendant, under which it claimed indemnification under its contract with Krause; further stating that the plaintiff was an employee of Krause, that the injuries to the plaintiff resulted from the negligence of Krause in failing to furnish a safe and sufficiently supported scaffold upon which plaintiff was to carry out his duties and that if plaintiff recovered judgment from it, then the United States was entitled to indemnification from Krause pursuant to Paragraph 11 of the contract.

The case was tried by the court upon plaintiff's complaint, as amended, the amended answer of the United States, the amended answer of Loren "Mike" Krause Construction Company, Inc., to the plaintiff's complaint, the Third Party Complaint and the amended answer of the Third Party Defendant to the Third Party Complaint.

Loren M. Krause, President of the Loren "Mike" Krause Construction Company, Inc., was called as a witness under Rule 43b. He testified that he had a contract with the United States to repair building S-920 at Scott Field; that it was a one-story frame building "at the very top" 15 or 16 feet high; that the patented steel scaffolding belonged to him; that they are in 5 feet high and 7 feet long sections and that the trades that would be working off of them put them together; that any scaffolding has a tendency to shift from the weight walking across it; in other words, it has a tendency to creep and that to keep the boards from shifting or creeping, if a scaffold is properly constructed, the boards the men walk on have cleats under them. When called as his own witness, he testified that the people he had working on the job were not employees of the government but were his employees. He paid their wages and directed the performance of their work.

Plaintiff Vincent Schmid testified he was working on the alert hangar at the field when between 2 and 3 o'clock in the afternoon Krause's foreman called him "to come from the alert hangar to this building" and directed him to put siding on the building. The scaffold was there. It was 10 feet high and 40 or 50 feet long. That he did not examine it before he went up. That he was working there a short time when he and Charles E. Thomas, a fellow carpenter, walked to side of scaffold to get material laid there by a laborer. That "as we walked from the first on to the second section, we stepped on the board we used as a walk-away and the board went down with us." It slipped off the end of the scaffold and he was thrown to the ground and was injured. That while on the ground he looked at the boards and that "they lacked the cleats on the ends." He also testified that he then noticed that the scaffold had only one brace on each side instead of the usual two and that "only one brace will make it shake." The cleats are to keep the boards from walking back and forth and working themselves loose. That a Mr. Dunbar, a government inspector, came around once or twice a day and that if material was bad he "gave orders" about that. Sometimes a man in uniform came with him. He drove a United States truck.

On cross-examination he testified that he was an employee of Krause and not of the government and that Dunbar was not boss on that particular job and "never told me anything on this job." That if Dunbar told us about bad weather-boarding "we would get in touch with our foreman and it would be taken care of." That he took orders from his foreman and that the United States did not erect the scaffold. That he noticed nothing unusual about the scaffold when he walked over it and that if he had noticed anything unusual about it he would have done something about it.

Charles E. Thomas, a fellow carpenter, testified that plaintiff had worked about half an hour before accident happened; that "I would say a board slipped off"; that 2 or 3 boards fell off and they had no cleats but that some of the boards had cleats. That inspectors came around about once a day but exercised no active control on what to do or what not to do or where to place this or that. On cross-examination he admitted telling Mr. Krause some time after this accident that it was his carelessness and not his (Krause's). That on the 19th of September, 1955, the day prior to the accident, he helped carry the scaffold down there "we just carried it end for end." That it was the same frame and everything on the scaffold on the 20th as it had been on the day before and that the only difference was they moved it along as the work progressed. That he had never complained about the scaffold being inadequate or deficient.

LeRoy Feltman, a fellow employee, testified that he was about 6 or 7 feet north of plaintiff when he fell. That he was going for material to hand up to them; that he would bring it up and lay it up against the scaffold. That some boards had cleats, others didn't. That a government inspector was there a little after 8 that morning, that he was there about once a day. That if they passed up a board that was bad the inspectors would tell us to take it out. That the government inspectors had no control whatever over him or any of Krause's work, that he took orders from the superintendent of Mr. Krause.

The remaining testimony in this case pertains to the injuries and the medical interpretations thereof which is not necessary to discuss in view of the decision to be made herein.

The United States Supreme Court in the recent case of Rayonier, Inc., v. United States, 352 U.S. 315, 77 S.Ct. 374, 376, 1 L.Ed.2d 354, said:

    "But as we recently held in Indian Towing Co. v.
  United States, 350 U.S. 61, 76 S.Ct. 122, [100 L.Ed.
  48], the test established by the Tort Claims Act for
  determining the United States' liability is whether a
  private person would be responsible for similar
  negligence under the laws of the State where the acts
  occurred."

Therefore, if a private person would be responsible for similar negligence under the Scaffolding Act, then the United States would be responsible.

The so-called Scaffolding Act (Chapter 48, Sections 60-69, inclusive, Revised Statutes 1955) is entitled as follows:

    "An Act providing for the protection and safety of
  persons in and about the construction, repairing,
  alteration, or removal of buildings, bridges,
  viaducts, and other structures, and to provide for
  the enforcement thereof."

Section 60 reads as follows:

    "That all scaffolds, hoists, cranes, stays,
  ladders, supports or other mechanical contrivances,
  erected or constructed by any person, firm, or
  corporation in this State for the use in the
  erection, repairing, alteration, removal or painting
  of any house, building, bridge, viaduct, or other
  structure, shall be erected and constructed in a
  safe, suitable and proper manner, and shall be so
  erected and constructed, placed and operated as to
  give proper and adequate protection to the life and
  limb of any person or persons employed or engaged
  ...

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