Fury Bailey - Personal Injury - Wrongful Death Attorneys

WRONGFUL DEATH AGAINST UNITED STATES SETTLES FOLLOWING PLAINTIFF'S SUCCESSFUL PRETRIAL MOTIONS

By William S. Bailey

I. SUMMARY OF IMPORTANT DEVELOPMENTS IN THIS CASE OF INTEREST TO TRIAL NEWS READERS

1. Court grants partial summary judgment on liability, finding uncontroverted evidence of failure of the U.S. Department of Energy to enforce safety procedures.

2. DOE's failure to enforce safety procedures constitutes a breach of duty to provide a safe workplace.

3. Enforcement of safety regulations by DOE does not involve the discretionary function exception.

4. DOE's report of investigation following decedent's accident is admissible under ER 803(8) and is not a subsequent remedial measure under ER 407.

5. The United States is not entitled to subtract any portion of negligence attributable to an immune entity such as decedent's employer in reducing the net award to decedent.

A wrongful death case against the U.S. Department of Energy on behalf of the wife and children of Louis O. Beatty settled recently for $1,500,000, following a series of rulings by the Honorable Justin L.
Quackenbush in the U.S. District Court for the Eastern District. Louis O. Beatty had been a journeyman power operator at Hanford since 1989. On June 7, 1993 , he was asked to go into a concrete lined underground steam pit to release the pressure on a steam line by turning a valve. During this process, the contact of hot steam and cold water in the line led to a “steam hammer” which ruptured the valve, filling the pit with scalding steam. Mr. Beatty was literally cooked inside and out in this tragic accident. He was ultimately flown to the Burn Center at Harborview Medical Center , where he died seven days later. Mr. Beatty left behind his wife Denise and two children, a daughter, Kerry and a son, Lorne. Mr. Beatty was a well-respected power operator at Hanford with an excellent work record. He was also a loving, involved father.

To the credit of Energy Secretary Hazel O'Leary, a major investigation into the circumstances of Mr. Beatty's death followed. The U.S. Department of Energy convened a “Type A” Accident Investigation Board, made up of high level DOE officials as well as working men and women who were directly involved in the daily operation of Hanford. The final report of the Board was quite critical of both the Department of Energy's and Westinghouse Hanford Corporation's safety practices at Hanford . The Board determined that Mr. Beatty's death was due in substantial part to both DOE's and Westinghouse's failure to:

1. Enforce existing safety procedures;

2. Provide adequate training;

3. Develop written operations procedures;

4. Implement design changes; and

5. Properly maintain the Hanford Facility.

Following the issuance of this report, Secretary O'Leary took the extraordinary compassionate step of making a personal call on Ms. Beatty. There were no members of the press or officials present for this meeting.

However, once Ms. Beatty and her children filed an administrative claim for the wrongful death of Louis O. Beatty, the DOE bureaucracy swung into action. No action was taken on these claims within the six month waiting period. A suit was filed against the United States in U.S. District Court for the Eastern District of Washington under the Federal Tort Claims Act, 28 U.S.C. § 1346(b). The matter was assigned to the Honorable Justin L. Quackenbush.

In a key motion brought before the Court, plaintiff moved for summary judgment on liability in March, 1996. Plaintiff reviewed the history of the control of the U.S. Government over Hanford and the contract between United States and the Westinghouse Hanford Corporation. Numerous provisions in the contract reinforced the United States ' right to absolute control of all activities at Hanford . In many respects, the contract between DOE and Hanford Westinghouse Corporation resembled that between the United States and the Argonne National Laboratory which was the basis of the Federal Tort Claim Act lawsuit in Fried v. United States , 579 F. Supp. 1212 (N.D. Ill. 1983). Plaintiff also reviewed the broad statutory authority granted to DOE under various regulations, including 48 C.F.R. 970.2303-1. Plaintiff had filed a FOIA request for documents reviewed by the Type A Accident Investigation Board. These reiterated longstanding problems at Hanford with inadequate training staffing and communication noted as continuous problems. Key to the Type A Accident Investigation Board's findings was the lack of training of operators such as Louis Beatty to safely enter confined spaces such as the steam pit. For years, DOE
superiors noted the absence of confined space entry procedures with alarm. But little was ever done to correct this.

Key to the plaintiff's motion for summary judgment was the case of McCall v. U.S. Department of Energy , 914 F.2d 191 (9th Cir. 1990). In McCall , an employee of an independent contractor injured in a government construction project brought action against the United States under the Federal Tort Claims Act. The Ninth Circuit determined that the law of the state in which the accident occurred determines what the liability of the United States shall be. Under Montana law, a project owner such as the United States had a non-delegable duty to maintain a safe workplace for the employees of an independent contractor engaged in inherently dangerous activities.

Plaintiffs argued that under Washington law the Stute v. P.B.M.C. line of cases, 114 Wn.2d 454 (1990) established liability on a site owner, such as the United States, who maintained control over the work activities of an independent contractor.

The United States vigorously resisted the notion that the Type A Accident Investigation Report was admissible, calling it a subsequent remedial measure. Plaintiff argued that under Rocky Mountain Helicopters v. Bell Helicopters , 805 F.2d 907 (10th Cir. 1986), ER 407 does not exclude preventative investigative tests and reports. In addition, as observed by the Tenth Circuit in Rocky Mountain Helicopters , such follow-up reports are often the best source of evidence as to what actually happened in an accident. Plaintiff further pointed out that the Type A Accident Investigation Board Report was not a self-critical analysis under Dowling v. American Hawaii Cruises, Inc. , 971 F.2d 423 (9th Cir. 1992).

The Court issued a 17 page memorandum opinion on May 28, 1996, granting summary judgment to plaintiff on everything but proximate cause -- would the training on confined space entry procedures have made a difference to decedent. That issue was reserved for trial. At the outset, the Court determined that because DOE's decisions regarding implementation and enforcement of safety regulations at Hanford do not involve the considerations of public policy protected by 28 U.S.C. § 2680(a), the discretionary function does not apply. Further, the Court found that the Type A Accident Investigation Report prepared by the United States was based upon a factual investigation, satisfying the trustworthiness requirement of ER 803(8). The Court concluded that it was admissible pursuant to this rule and was not a subsequent remedial measure, citing Rocky Mountain Helicopters , supra .

The Court found that the McCall case governed the application of the law to apply to the site owner in this case, the United States . Applying McCall , the Court noted that “The Government does not dispute that it retains control” of Hanford and found that:

The retention of control by the DOE imposes a duty upon the Government to exercise ordinary care to provide a safe workplace.

However, the Court determined that DOE did not have a statutory duty to ensure compliance with its safety provisions and “may not be held liable for a statutory duty that does not exist”.

At the end of the Court's analysis, it found:

Uncontroverted evidence demonstrating failure by the DOE to enforce safety procedures and regulations regarding steam system operation, and that this failure constitutes a breach of
the duty to provide a safe workplace to employees of Westinghouse Hanford Corporation.

The only issue left for trial was whether the lack of training and the failure to provide a written valve opening procedure was a proximate cause of this injury. This was a subject upon which plaintiff had more than ample testimony establishing the necessary proximate cause.

After the Court's ruling on partial summary judgment, the Government's fallback position was that the United States was entitled to take a “discount” for any negligence attributable to Mr. Beatty's employer, the Hanford Westinghouse Corporation. In essence, the Government argued that although RCW 4.22.070 now bars a defendant from using an entity immune from liability as a “empty chair”, this did not apply to the United States in this case.

Plaintiff argued that this situation had already been addressed by the Ninth Circuit in Barron v. United States , 654 F.2d 644 (9th Cir. 1981). In that case, the United States was found jointly and severally liable to a contractor's employee who was engaged in hazardous work in a ditch when injured. Applying Hawaiian law, the Court found that the employee was not barred from recovering his entire damages from the United States . The United States based its position on a series of cases which focused more on whether an entity was an independent contractor or not. Since government control of Hanford had already been established, these cases arguably did not apply to this situation.

On July 12, 1996, the Court granted plaintiff's motion for summary judgment on joint and several liability. The Court analyzed RCW 4.22.070, concluding that it eliminated the decedent's employer in this case, Westinghouse Hanford Corporation, from the apportionment of fault. The
Court found that Barron v. United States , supra , applied, though the Beatty case did not involve the application of either joint and several liability or vicarious liability. Even though the Washington statute resulted in the same effect as a finding of vicarious liability, the Court determined that “The sameness in result does not transmute the statute into such an imposition”.

After all the legal issues of any significance were ruled on by the Court, the parties then began settlement discussions. These ultimately culminated in a total settlement of $1,500,000, with $700,000 going to Mr. Beatty's Estate, $400,000 to his wife Denise for loss of consortium and $200,000 a piece for each one of his children. This case is Beatty v. United States of America , No. CS-95-115-JLQ, United States District Court, E.D. Washington. The plaintiffs were represented by William S. Bailey of the Fury Bailey Law Firm and by Judge Edward Heavey, retired King County Superior Court Judge.

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