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September 28, 1962


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

This is a civil suit against the United States of America, arising under the provisions of Section 2674, Title 28 U.S.C.A. (Federal Tort Claims Act).

Civil Causes Nos. 4264 and 4667 were consolidated and proceeded to trial as No. 4667.

The complaint in Civil No. 4667 seeks recovery from the defendant, United States of America, on three counts.

In Count I recovery is sought under Sections 60-69 of Chapter 48, Illinois Revised Statutes 1957, the Structural Work Act (commonly called the "Scaffold Act") of the State of Illinois, and is a death action brought by the widow and heirs of the decedent, Phillip Skinner.

By Count II the administratrix of the estate of Phillip Skinner, deceased, brings a survival action under the Scaffold Act.

Count III is an action by the administratrix under the Wrongful Death Statute of the State of Illinois.

There is also an intervention complaint, filed by the Edward C. Simon Painting Company, Inc. (hereinafter sometimes referred to as "Simon"), wherein recovery is prayed against the United States for payments for medical expenses under the Workmen's Compensation Act in the amount of $13,460.25 and for payments of compensation under the Illinois Workmen's Compensation Act in the amount of $3,906.00.

The United States previously filed a third-party complaint, which was subsequently amended, against the Ed. Geiger Construction Company, Inc., and the Edward C. Simon Painting Company, Inc., as third-party defendants. This latter complaint, however, was dismissed for failure to state a cause of action.

The accident out of which this cause arises occurred at a building located on Scott Air Force Base, known as Building S-35, which was a hangar used for housing airplanes. The building was located in a restricted area and was entirely fenced, with entrance permitted only to certain authorized personnel. Decedent, Phillip Skinner, was an employee of the Edward C. Simon Painting Company, Inc., a painting subcontractor of Ed. Geiger Construction Company, Inc., the prime contractor, who had a contract with the United States to perform certain work at Scott Air Force Base.

The Edward C. Simon Painting Company, Inc., was in the process of painting certain hangar doors on Building S-35.

In pursuing this work, ladders were placed against the hangar doors and the painters, one of whom was Phillip Skinner, the deceased, would ascend these ladders. The doors were so constructed that when opened they would fold back into a well in the building. These were electrically operated doors and could be placed in operation only by operating switches located inside the hangar. At the trial it was stipulated that the control and movement of the doors at the hangar were exclusively within the control of the Air Force Personnel and that no other persons had, or were permitted to have, any control over the operation thereof.

In the hangar in question there were two doors, commonly referred to as the "north" door and the "south" door, each of which were divided into seven panels, and each door was approximately 50 feet wide and 30 feet high. There was a switch to control each of the doors.

Clarence B. Wellen, a foreman for Simon, testified that they began painting the large doors in front of the hangar about a week before the accident; that before beginning the work he told Sergeant Allard, the assistant hangar chief, that they would be painting the doors and it was imperative that the doors be made completely safe so that they could not be moved; that in furtherance thereof he and Sergeant Allard first positioned the doors for painting and they then went to the fuse box, which was located in the well of the door involved, and Sergeant Allard removed the fuses from the fuse box; that they then proceeded to the other door well and Sergeant Allard removed fuses from that fuse box, thus assuring that it was not possible for anyone to press the control switches and move the doors by accident; that this procedure was followed up to the time of the accident on September 22, 1958; that on the morning in question Sergeant Allard was not present at the hangar and he contacted Sergeant Lamkin, the hangar chief; that on the morning in question he discussed positioning of the doors with Sergeant Lamkin and asked if he was familiar with the operation and the sergeant assured him he was; that at all times previous when it became necessary to operate the doors, whether for original positioning or for changing positions in order to better pursue the painting work after the doors had been placed in the proper position, the sergeant would remove the fuses and, as they were removed, would either hold them up so they could be seen or would wave it was all clear; that on the morning of the accident the painters arrived at the scene and, after he contacted Sergeant Lamkin, the sergeant went to the switch box and positioned the doors as desired; that he then observed him go to the fuse box, after which the sergeant waved an all clear; that he then instructed the painters to proceed; that the painters had proceeded up the ladders and were just commencing work when suddenly the hangar door against which their ladders were mounted began to move; that someone yelled, "Stop the doors!"; that the doors stopped momentarily but then proceeded to move and, as they did, caused the ladders to fall.

Frank Abramovich testified he was working on the doors with the decedent, Phillip Skinner; that neither he nor the decedent ever had anything to do with operating the doors; that on the morning of the accident he and Skinner started to work about 8:00 o'clock; that Wellen was in the area of the hangar and gave them the okay to get on the ladders and begin to paint; that he and Skinner set up their equipment and started up the ladders at approximately 8:15; that after having painted but a short time the doors suddenly moved; that he yelled, "Stop the doors!"; that the doors momentarily stopped and then they started again; that after the doors moved the second time his ladder and Skinner's ladder began to move, causing him and Skinner to fall to the ground. He further testified that rolling scaffolds could have been used for this particular painting job, which would not have utilized the doors as support. He also testified that 40 foot ladders could have been used and in such event it would not be necessary to place the ladders against the hangar door since it would be possible to reach above the doors. He did testify, however, it would have been difficult to paint from the 40 foot ladders.

On cross-examination this witness stated he did not know if the foreman, Wellen, had said it was safe to proceed with the painting but that he did seem to recall that Wellen had waved his hand and that he just doesn't remember too much.

Sergeant Allard testified that Wellen contacted him when the painters first came on the job; that he and Wellen went to the switch box the first time; that he took out the fuses and told Wellen he would have to take out the fuses on the other end of the building also; that at each time thereafter, when he was required to move or operate the doors, he always took out the fuses and either showed them to Wellen or told him it was okay; that when it was necessary to move the doors, they always came to him; that only one or two other non-coms. were permitted to move the doors; that it generally took two to three minutes to close the doors and, after they were closed and secured, he would notify Wellen to proceed; that he did not operate the doors on the day of the accident and had never placed a sign on the switch.

Sergeant Lamkin testified he was in charge of the hangar but that he was not present the week previous to the accident when the painting was going on; that on the morning of the accident he was advised that the painters wanted to paint the doors and he was requested to position them; that he positioned the doors by operating switches located on the south side of the hangar; that thereafter he proceeded to a fuse box located in the door well on the south side of the hangar, which controlled the fusing system to the south door. He testified that he removed one fuse from the box but could not say whether he removed any others; that he proceeded from the door well to a small room adjoining the switches; that he looked around for and found a piece of cardboard, approximately 8 1/2 inches by 11 inches, and wrote on it "Do not operate. Painters painting."; that he obtained another sergeant to help him affix the sign to the switches which operate the north door, which he had positioned and upon which the painters were to paint; that he took the sign and bent it around the switch box and secured it with tape to the top; that when he finished he turned to go across the hangar and, when he had proceeded but a few feet, someone yelled, "Stop the doors!"; that he then noticed the doors moving; that he turned and reached up to the sign and hit what he thought to be the stop button but the door did not stop; that he then ripped off the sign and pushed the stop button and the door stopped moving.

It was stipulated that the deceased met his death as a result of the injuries received in the fall from the ladder or, September 22, 1958, although his death did not occur until July 2, 1960. It was also stipulated that the operation of the doors was exclusively within the control of Air Force personnel.

Mabel Skinner, widow of the decedent, testified that she and decedent had two boys, ages 15 and 18 at the time of the trial; that her husband had earned approximately $125.00 to $130.00 per week; that he would cash his check and give the money to her, except about $10.00 which he used for himself; that he was in pain most of the time and that he wore a back brace and neck brace; that he was not able to walk very well; that she usually served him in bed but that he ate at the table once or twice a week; that he could not get up and down without help. She testified that Phillip Skinner was born on October 19, 1922, and was 37 years of age at the time of his death; that from approximately the year 1945 to the date of the accident he had been a painter ...

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