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FULTON v. UNITED STATES

September 17, 1991

BRUCE FULTON, Plaintiff,
v.
UNITED STATES OF AMERICA, Defendant. UNITED STATES OF AMERICA, Third-Party Plaintiff, v. DUNBAR & SULLIVAN DREDGING COMPANY, Third-Party Defendant



The opinion of the court was delivered by: NORGLE

 CHARLES R. NORGLE, UNITED STATES DISTRICT JUDGE

 Before the court is the defendant United States' motion for summary judgment. For the following reasons, the motion is granted.

 FACTS

 The plaintiff, Bruce Fulton ("Fulton"), was injured on January 28, 1987, while working as a laborer on a rehabilitation project at the Brandon Road Lock and Dam on the Illinois Waterway in Joliet, Illinois. Fulton was employed by the prime contractor on the project, Dunbar and Sullivan Dredging Company ("Dunbar and Sullivan"), which itself had been hired by the United States Army Corps of Engineers ("Corps of Engineers"). The injury occurred when Fulton and a co-worker were directed by their foreman to move railroad ties across a trench, two to three feet deep and from four to seven feet wide, *fn1" that ran along the base of the dam. The area at which Fulton was working was inaccessible to a crane, and there were no planks crossing the trench. Fulton, while holding one end of a tie, allegedly slipped on an icy rock, fell, and twisted a knee. A co-worker, who was helping Fulton carry the tie, then allegedly dropped the other end of the tie on Fulton's chest. Despite the mishap, Fulton was soon able to stand up and report the matter to the safety officer on the project.

 The safety officer, Chad Keillor, who also served as field engineer, was employed by Dunbar and Sullivan. Keillor was responsible for making reports of accidents and safety violations, and for conducting weekly safety meetings. He had an office on the construction site. A safety meeting which Fulton attended on January 12, 1987 included warnings about icy areas.

 Fulton was not generally aware of the presence of Corps of Engineers officials on the construction site. He did not see any Corps officials on the day of the accident, nor did he ever speak to any Corps officials regarding the accident.

 Michael Edwards served as the Corps of Engineers civil engineer on the Brandon Road project, as representative of the primary contracting officer, and as construction inspector during January 1987. He visited the construction site on average three or four times a week, for two to four hours, to ensure compliance with the contract specifications. Edwards observed safety conditions on site, reported safety violations he discovered to the contractor, and made follow-up inspections. About 20 percent of Edwards' time was spent inspecting the Brandon Road site.

 Several provisions of Dunbar and Sullivan's contract with the government are relevant to the dispute. Clause 47 made Dunbar and Sullivan responsible for supervising its employees; Corps of Engineers personnel could not directly supervise any Dunbar employees. Clause 54 made Dunbar and Sullivan responsible for the safety of its employees, including the provision of safety devices. Clause 60 required Edwards to observe Dunbar and Sullivan's inspections and tests for contract compliance and to ensure that the contractor had an adequate quality control system. Dunbar and Sullivan, however, remained responsible for providing its own quality control system.

 Fulton filed a one-count complaint on May 25, 1989, alleging that the United States violated the Illinois Structural Work Act, Ill. Rev. Stat. ch. 48, paras. 60-69 (1987), as applicable to the government under the Federal Tort Claims Act, 28 U.S.C. § 1346(b). The complaint asserted that Fulton was injured as a result of the government's failure to provide a safe workplace, failure to provide planking or another suitable form of support across the trench which Fulton had been required to cross with the railroad tie, and failure to provide a crane or other device to carry the railroad ties across the trench.

 DISCUSSION

 Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). A dispute about a material fact is "genuine" if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). A plaintiff cannot rest on mere allegations of a claim without any significant probative evidence which supports his complaint. Id.; see First Nat'l Bank of Arizona v. Cities Serv. Co., 391 U.S. 253, 20 L. Ed. 2d 569, 88 S. Ct. 1575 (1968). "One of the principal purposes of the summary judgment rule is to isolate and dispose of factually unsupported claims or defenses . . . ." Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). Accordingly, the non-moving party is required to go beyond the pleadings, affidavits, depositions, answers to interrogatories and admissions on file to designate specific facts showing a genuine issue for trial. Id. at 324. Nevertheless, in determining the existence of any genuine issues of material fact, the court must draw all reasonable inferences in the light most favorable to the non-movant. Bank Leumi Le-Israel, B.M. v. Lee, 928 F.2d 232, 236 (7th Cir. 1991).

 The government maintains that Fulton cannot prove any of the essential elements of an action under the Illinois Structural Work Act, and that even if Fulton could establish a claim under that statute, the United States is immune from liability under the discretionary function and independent contractor exceptions in the Federal Tort Claims Act, 28 U.S.C. §§ 2671, 2680(a).

 Fulton must prove, to establish a prima facie case under the Structural Work Act, that (1) a scaffold or other supporting device covered by the Act was involved, (2) the device was used in the construction of a structure, (3) the device was unsafe in design, placement or operation, (4) a defendant (who was "in charge of" the work) willfully violated the Act, and (5) that Fulton's injury was proximately caused by the defendant's violation. Ryan v. E.A.I. Constr. Corp., 158 Ill. App. 3d 449, 457, 511 N.E.2d 1244, 1249110 Ill. Dec. 924 (1st Dist. 1987); see also Savic v. United ...


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