Appeal from the United States District Court for the Southern District of Illinois, Benton Division. No. CV 84-4028--Kenneth J. Meyers, Magistrate.
Before FLAUM and EASTERBROOK, Circuit Judges, and WILL, Senior District Judge.*fn*
WILL, Senior District Judge.
This is an action under the Federal Tort Claims Act, 28 U.S.C. § 1346(b). It arises out of the accidental death of Jerry Dean Phillips ("Phillips"), the husband of Elnora Phillips, who sues as the Administrator of his estate ("Administrator"). The accident on Monday, April 20, 1981, occurred when Phillips, an independent electrical sub-contractor who was installing conduit and lights on a water tower on the grounds of the United States Veterans Administration Hospital ("VA" or "Hospital") in Marion, Illinois, slipped and fell to his death from over half way up the 160 foot tower.
The case was tried by agreement before United States Magistrate Kenneth Meyers of the Southern District of Illinois who found for the defendant on all three counts of the complaint. For the reasons set forth herein, we affirm, though not without some regret, since this episode was truly a tragedy of errors.
I. The Applicable Statutes
A. The Federal Tort Claims Act provides in relevant part, 28 U.S.C. § 1346(b):
(b) Subject to the provisions of chapter 171 of this title, the district courts, together with the United States District Court for the District of the Canal Zone and the District Court of the Virgin Islands, shall have exclusive jurisdiction of civil actions on claims against the United States, for money damages, accruing on and after January 1, 1945, for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.
B. Section 60 of the Illinois Structural Work Act, Ill. Rev. Stat. ch. 48, § 60, provides in relevant part:
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 thereon, . . .
C. Section 64 of the Illinois Structural Work Act, Ill. Rev. Stat. ch. 48, § 64, provides in relevant part:
Any person, firm or corporation in this State, hiring, employing or directing another to perform labor of any kind, in the erecting, repairing, altering or painting of any water pipe, stand pipe, tank, smoke stack, chimney, tower, steeple, pole, staff, dome or cupola, when the use of any scaffold, staging, swing, hammock, support, temporary platform or other similar contrivance are required or used, in the performance of such labor, shall keep and maintain at all times, while such labor is being performed, and such mechanical device is in use or operation, a safe and proper scaffold, stay, support or other suitable device, not less than sixteen (16) feet or more below such working scaffold, staging, swing, hammock, support or temporary platform, when such work is being performed, at a height of thirty-two (32) feet, for the purpose of preventing the person or persons performing such labor, from falling in case of any accident to such working scaffold, staging, swing, hammock, support or temporary platform.
D. Section 69 of the Illinois Structural Work Act, Ill. Rev. Stat. ch. 48, § 69, provides in relevant part:
§ 9. any owner, contractor, sub-contractor, foreman or other person having charge of the . . . repairing, [or] alteration, . . . of any . . . structure within the provisions of this act, shall comply with all the terms thereof. . . .
For any injury to person or property, occasioned by any wilful violations of this Act, or wilful failure to comply with any of its provisions, a right of action shall accrue to the party injured, for any direct damages sustained thereby; and in case of loss of life by reason of such wilful violation or wilful failure as aforesaid, a right of action shall accrue to the surviving spouse of the person so killed, . . . for a like recovery of damages for the injuries sustained by reason of such loss of life or lives.
Was the magistrate's finding for the defendant as to any of the following issues clearly erroneous?
A. Was the VA "in charge" of the work being done by Phillips at the time of his death as contemplated by section 69 of the Illinois Structural Work Act?
B. Did the VA wilfully violate the Illinois Structural Work Act or wilfully fail to comply with its provisions?
C. Was Phillips a person who, at the time of his death, was hired, employed or directed by the VA as contemplated by section 64 of ...