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HARMON v. UNITED STATES

January 22, 1998

STEVEN C. HARMON, Plaintiff,
v.
UNITED STATES OF AMERICA, Defendant.



The opinion of the court was delivered by: KOCORAS

MEMORANDUM OPINION AND ORDER

 CHARLES P. KOCORAS, District Judge:

 This matter comes before the Court on Defendant United States' motion for summary judgment. For the following reasons, the motion is denied.

 BACKGROUND

 Defendant United States of America ("the United States") contracted with Maytag Aircraft Corporation ("Maytag") to "provide alongside aircraft fuel delivery and operation of bulk storage facility for the period of 01 May 92 through 31 May 96" at the Glenview Naval Air Station. Section C of this contract required the contractor, Maytag, to provide qualified personnel and to ensure that all new employees were trained and passed the appropriate competency tests. On October 26, 1993, Plaintiff Steven Harmon ("Harmon") was hired by Maytag as a driver/operator trainee. Prior to working for Maytag, Harmon had received a college degree in airframes and power plants, where he learned about the dangers of jet blast.

 The Maytag Training Plan contains the following relevant provisions: "ALWAYS wait until the props or jet engines are fully stopped" before refueling aircraft; "you will not refuel/defuel any aircraft when an unsafe condition exists"; "no vehicle shall be parked or driven in the danger area of an aircraft while engines are in operation"; and, all personnel "must be able to recognize and handle potential hazards."

 Harmon completed Maytag's training for driver/operators, which consisted of one day of training. On November 1, 1993, Harmon was promoted to the position of driver/operator and continued in that position until November 23, 1994. Though there is some dispute about the maximum number of planes that Harmon could refuel in one day, Harmon testified that he would consider refueling thirty-two planes in a single day to be a busy day.

 This lawsuit concerns an incident which occurred on November 23, 1994. On this date, the United States was the owner of the Glenview Naval Air Station in Glenview, Illinois. At 1600 hours, a Rich International DC-8 jet aircraft landed at Glenview Naval Air Station. Being a "military contract aircraft", Harmon was called to service it. Harmon was instructed that the fueling of the DC-8 was to be done quickly in order to get passengers home for the Thanksgiving holiday. Harmon asserts that this was the first time in his career that he was required to fuel a DC-8 aircraft.

 After being called in to fuel the aircraft, Harmon was motioned to enter the area of the aircraft and directed where to park by T-line personnel. Harmon drove the refueling truck in front of the starboard wing, exited the truck and proceeded to retrieve a clipboard to write down the aircraft's tail number. When Harmon exited the truck, the T-line personnel were no longer in the area of the aircraft. He walked under the starboard wing between the fuselage and the engine. He then stepped back to read the tail numbers and was hit by a blast of air and injured. Harmon alleges that he was thrown approximately 20 feet by this jet blast.

 Harmon admits that he did not look at the jet engines to ascertain whether the engines were turning because he relied on T-line personnel to ensure that the engines were shut down completely before they signaled him into the area. Harmon admits his belief that, had he looked at the jet engines, he could have seen whether they were turning. After being hit by the blast of air, Harmon returned to the fuel farm, and the refueling job was completed by another Maytag employee.

 The United States military set the procedures for, and Navy personnel supervised, the fueling and refueling aircrafts on the T-line. T-line personnel and other workers, including Harmon, wore hearing protection while working on the T-line. Though the United States asserts that there is a noticeable lack of noise when jet engines are shut down, Harmon contends that at the time of his injury running jet engines, diesel truck engines, and other machinery created a very loud atmosphere on the T-line.

 "Aircraft handlers" are Navy personnel who can be identified by their yellow shirts, cranials, vests and jerseys. Aircraft handlers are responsible for signaling to the air crew to shut down the jet engines, which is done by pointing to the aircraft with one hand and performing a cutting motion across their throat with the other. Though the United States disputes the extent of their responsibility, Harmon contends that aircraft handlers are responsible for ensuring that jet engines are shut down completely and then signaling to the fuel truck driver to enter the area of the aircraft.

 Harmon also asserts that fuel truck drivers are not allowed to enter the area of an aircraft until the T-line personnel determine that it is safe and signal the drivers in. Truck drivers would wait 50 to 100 feet away from the aircraft until they were signaled in by the aircraft handlers. Fuel truck authorities have no authority over T-line personnel; in contrast, T-line personnel had the authority to stop the work on the T-line at any time it was thought to be unsafe. For example, if T-line personnel instructed a fuel truck driver to move his truck and he refused, the T-line personnel had the authority to stop fueling operations.

 On March 9, 1995, Plaintiff Harmon filed a standard Form 95 claim with the Department of the Navy for his injuries resulting from the jet blast incident. Subsequently, Harmon brought this action pursuant to the Federal Tort Claims Act, 28 U.S.C. § 2671 et seq., against the United States. This action alleges that the United States was negligent in that its employees: (1) improperly operated, managed, maintained and controlled the aircraft and runway; (2) failed to make reasonable inspection of the aircraft and runway when it was necessary to prevent injury; (3) failed to warn Harmon of the dangerous condition of the aircraft and runway; (4) failed to properly connect and install the auxiliary power unit to the aircraft; (5) failed to ensure that the aircraft's engines had been turned off before refueling procedures commenced; (6) allowed and permitted refueling procedures to begin before the aircraft had been properly connected to the auxiliary power unit and the aircraft's engines turned off; (7) improperly signaled and/or notified Harmon to commence refueling procedures ...


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