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Holloway v. United States

United States District Court, E.D. California

May 4, 2017

ROBYN HOLLOW AY and STERLING HOLLOWAY, Plaintiffs,
v.
UNITED STATES OF AMERICA, Defendant.

          FINDINGS OF FACT AND CONCLUSIONS OF LAW (FED. R. CIV. P. 52(A))

          MORRISON C. ENGLAND JUDGE.

         PHILLIP A. TALBERT United States Attorney CHI SOO KIM ALYSON A. BERG Assistant United States Attorneys 501 I Street, Suite 10-100 Sacramento, CA 95814 Telephone: (916) 554-2700 Facsimile: (916) 554-2900 Attorneys for the United States of America

         A bench trial in this Federal Tort Claims Act ("FTCA") action began on February 8, 2017. Plaintiffs Robyn Holloway and Sterling Holloway rested their case on February 28, 2017. The United States then made an oral motion for judgment on partial findings pursuant to Federal Rule of Civil Procedure 52(c). After the Court heard argument on the Rule 52(c) motion from both sides, the Court ordered the parties to submit findings of fact and conclusions of law/ briefs focused on causation, which were filed by the parties on March 3, 2017. [ECF Nos. 154, 155] The Court held a second hearing on March 6, 2017, heard oral argument from both sides, and orally granted the Government's motion.

         Having carefully reviewed the evidence, the written submissions, and argument, the Court makes the following findings of fact and conclusions of law pursuant to Rule 52 of the Federal Rules of Civil Procedure.[1]

         I. LEGAL STANDARD[2]

         When "a party has been fully heard" on an issue tried to the court, the court may enter judgment against the party. Fed.R.Civ.P. 52(c). Unlike Rule 50(a) motions for judgment as a matter of law, however, in deciding Rule 52(c) motions the "district court is not required to draw any inferences in favor of the non-moving party; rather, the district court may make findings in accordance with its own view of the evidence." Ritchie v. United States, 451 F.3d 1019, 1023 (9th Cir. 2006) (affirming grant of Rule 52(c) motion for judgment on partial findings for government in FTCA case); see also Warren v. United States, 999 F.2d 546, *2 (9th Cir. 1993) (affirming grant of Rule 52(c) motion for judgment on partial findings in FTCA case) (unpublished). "Rule 52(c) expressly authorizes the district judge to resolve disputed issues of fact." Ritchie, 451 F.3d at 1023. "The failure of a party to establish an essential issue justifies the immediate termination of the case or claim. Judgment on partial findings conserves time and resources...." Gannon v. United States, 571 F.Supp.2d 615, 618 (E.D. Pa. 2007) (granting government's Rule 52(c) motion in FTCA case because the plaintiffs failed to meet their burden to prove causation), aff'd, 292 F.App'x 170 (3d Cir. 2008) (quoting Moore's Federal Practice ¶ 52.50 (3d ed. 2007)).

         II. FINDINGS OF FACT[3]

         A. BACKGROUND

         1. In 2007, the Air Force and All Power, Inc., a California corporation, entered into an agreement to repair and improve the B Street Substation, an electrical substation on Beale Air Force Base, which is located near Marysville, California. Raccoons entered the B Street Substation, making contact with the electrical equipment, damaging the equipment, and shutting down the power at the substation, which impacted base operations. The contract was modified to add the construction of a "raccoon proof wall to prevent further damage to the electrical equipment. (Undisputed Fact No. 1 [ECF No. 98 at 4])

         2. The B Street Substation provides power to mission critical functions and real-time intelligence and military operations. The B Street Substation distributes electricity and powers the main part of the Beale Air Force Base, including (but not limited to) intelligence facilities, communications facilities, Global Hawk, base command functions, Security Forces, Civil Engineering, and various base support facilities. Due to its mission critical function, the B Street Substation remains energized and was energized during the construction of the block wall on the outside of the substation. (Undisputed Fact No. 2 [ECF No. 98 at 4]; Barker, Phillips Trial Testimony[4])

         3. In September and October 2011, Plaintiff Robyn Holloway, Plaintiff Sterling Holloway, Cheyenne Sinkola, and Blake Wolfswinkel were employees of All Power. Sterling Holloway is Robyn Holloway's half-brother. Wolfswinkel began working for All Power in 2004 as a foreman. Sterling Holloway began working for All Power as a masonry tender in August 2010. Robyn Holloway and Sinkola began working for All Power in September 2011. (Undisputed Fact No. 4 [ECF No. 98 at 4]; S. Holloway, R. Holloway, Sinkola, Wolfswinkel Tr.)

         4. All Power selected Wolfswinkel to be the supervisor-foreman for the construction of the wall around the B Street Substation. All Power's Project Manager, Rob Anderson, selected which All Power employees would work on the B Street wall with Wolfswinkel, selecting Plaintiffs and Sinkola. Wolfswinkel assigned tasks to Sterling, Robyn, and Sinkola for the construction of the wall. All Power set the crew's work schedule. (Undisputed Fact No. 5 [ECF No. 98 at 4-5]; Wolfswinkel, Sinkola Tr.)

         5. Construction of the wall began in September 2011. Due to rain, the All Power crew (Wolfswinkel, Plaintiffs, and Sinkola) only worked four days in October 2011 before the accident: October 3, 12, 13, and 14, 2011. (R. Holloway, S. Holloway, Sinkola, Wolfswinkel Tr.; Exhs. 20, Gat 9-12)

         6. All of the construction tools used for building the B Street Substation wall were All Power's tools, including the rebar bender. The United States did not provide Plaintiffs with uniforms, rebar, or a rebar bender while they were working on the construction of the wall. (Undisputed Fact No. 6 [ECF No. 98 at 5]; Hughes, Sinkola, Wolfswinkel Tr.; Exh. I)

         7. All Power had the responsibility for overall safety of the job site as well as the safety of All Power's employees. This standard construction industry practice has important policy interests because the duplication of responsibility for overall job site safety is not within the best interest of the public and can create confusion for All Power's employees. As part of its safety responsibilities, All Power was required to train its employees on safety. (Hughes Tr.)

         8. As the foreman for the B Street wall, Wolfswinkel was responsible for enforcing all job site safety related matters. Wolfswinkel was also responsible for supervising Sterling Holloway, Robyn Holloway, and Sinkola for safety. Wolfswinkel gave common sense instructions to his crew to be careful working around high voltage. (Wolfswinkel, Hughes Tr.)

         9. All Power held weekly safety meetings that were mandatory for All Power employees to attend. All Power also held daily safety meetings (called "tailgate" meetings) at the B Street wall construction job site, including a safety meeting on October 3, 2011 for high voltage dangers. The Air Force never attended any All Power safety meetings. (Wolfswinkel, Sinkola Tr.; Exh. G at 9)

         10. The B Street Substation wall being constructed was approximately 95 feet long on the west and east sides and approximately 100 feet long or longer on the north and south sides. All Power placed a temporary fence around the outside of where the wall was being built so that the temporary fence enclosed the entire wall area. All Power foreman Wolfswinkel and Project Manager Anderson decided where to place the temporary fence, placing it approximately 15 feet away from the perimeter of the wall.[5] The total area enclosed inside the temporary fence was approximately 12, 650 square feet (110 feet x 115 feet). (Giorgi, Wolfswinkel, Sinkola, Hughes Tr.; Exh. C)

         11. Wolfswinkel, Plaintiffs, and Sinkola knew that the substation was energized while they were working on the wall. This was "common knowledge" to the entire All Power crew. (Wolfswinkel, Sinkola, R. Holloway Tr.; Exh. G at 9)

         12. Rebar is a steel rod that provides reinforcement and was required for building the wall. Rebar comes in different lengths and widths. On or around September 20, 2011, all the rebar for the B Street wall construction was provided and delivered by Camblin Steel on one truck. Initially, the rebar was stored in the field south of the B Street Substation. Wolfswinkel and All Power's head mason, Kim Holloway, decided to store the rebar upon delivery in the field because there was no foot traffic in the field. They did not consult with anyone before selecting this location. (Undisputed Fact No. 3 [ECF No. 98 at 4]; Exh. B-3 (wall design required the placement of rebar within the wall at multiple stages of construction); Wolfswinkel Tr.; Exhs. G at 6, K-l)

         13. In October 2011, Staff Sergeant Brian Giorgi was an Air Force Construction Inspector. Giorgi joined the Air Force in 2003 and was assigned in 2007 to Beale as a Construction Inspector. Plaintiffs claim that on Thursday, October 13, or Friday, October 14, 2011, Staff Sergeant Giorgi instructed Wolfswinkel to move rebar to the inside of the temporary fence surrounding the B Street Substation. Wolfswinkel testified that Giorgi instructed him to get the rebar out of the field south of the substation because there was lots of foot traffic in the field. Giorgi denies this allegation. (Giorgi, Wolfswinkel Tr.)

         14. Because All Power ordered pre-bent rebar for use in the wall, bending rebar was not expected for the construction of the wall. (Wolfswinkel, Hughes Tr.)

         15. As a result, the first time rebar was bent for the wall construction was the rebar that was bent causing the accident on October 17, 2011. This rebar was bent because All Power discovered an unanticipated culvert in the trench dug for the wall and the rebar would be placed in the trench over this culvert. (R. Holloway, Sinkola, Giorgi, Wolfswinkel, Hughes Tr.)

         16. Wolfswinkel assigned tasks to Sterling, Robyn, and Cheyenne for the construction of the wall. The task of bending rebar to go over the unanticipated culvert was assigned to Sinkola. (S. Holloway, R. Holloway, Sinkola, Wolfswinkel, Hughes Tr.)

         17. Before the accident, Sinkola had never bent rebar or used a rebar bender. Sinkola had no training on how to use a rebar bender. Wolfswinkel never showed Sinkola how to use a rebar bender or how to bend rebar. Even though Sinkola had no training and had never bent rebar before the accident, he assumed he could figure out how to make four 90-degree bends using the rebar bender because he was "mechanically inclined." (Sinkola, Wolfswinkel Tr.)

         18. Before the accident, Robyn Holloway had no training on how to use a rebar bender and had never watched anyone use a rebar bender. Wolfswinkel never showed Robyn how to use a rebar bender or how to bend rebar. (R. Holloway, Wolfswinkel Tr.)

         19. Before working on the B Street Substation wall, Sterling Holloway frequently worked with rebar in building walls and received training from All Power on how to bend rebar using a rebar bender. Sterling had experience using All Power's rebar bender to bend rebar and this was the same rebar bender used during the accident. Sterling bent rebar using All Power's rebar bender on most jobs for All Power. (S. Holloway Tr.)

         20. At approximately 8:30 a.m. on Monday, October 17, 2011, Robyn Holloway was bending a 20-foot piece of rebar with Sinkola using All Power's rebar bender so that approximately 17.5 feet of rebar was placed vertically up in the air. The rebar they were bending got stuck in the bender. The 17.5 feet of rebar Robyn was holding vertically either contacted the energized busbars or came close enough to the energized busbars for the electricity to arc. The energized busbars were approximately 17 feet 10 inches above the ground. Only Plaintiffs, Sinkola, and Wolfswinkel were present at the B Street site on October 17, 2011 before the accident occurred. (Undisputed Fact No. 7 [ECF No. 98 at 5]; Sinkola, R. Holloway, S. Holloway, Wolfswinkel, Philips Tr.)

         21. Robyn Holloway sustained burns over 50% of his body and was hospitalized for approximately six weeks at the University of California Davis Medical Center where he underwent grafting procedures and reconstructive surgery. (R. Holloway, Maguina Tr.; Exhs. TTT-3, TTT-4).

         B. PLAINTIFFS' WITNESSES AND CONSTRUCTION EXPERT HUGHES

         1. Plaintiffs presented the following witnesses in their case-in-chief: Duane Barker, Beale's Base Electrical Engineer in October 2011; Plaintiff Sterling Holloway; Lyn Phillips, Beale's Electrical Maintenance Supervisor; Sinkola; Plaintiff Robyn Holloway; Dr. Pirko Maguina, a surgeon who treated Robyn Holloway at U.C. Davis after the accident; Giorgi; Wolfswinkel; and Jeffrey Hughes, Plaintiffs' construction expert.

         2. Plaintiffs offered expert testimony on liability from Hughes. Hughes has no prior experience with electrical substations such as the B Street Substation. (Hughes Tr.)

         3. The Court gives little weight to Hughes' opinions because his opinions are not reliable, he was not credible, and his analysis was based on insufficient materials. For example, Hughes changed his testimony during cross-examination and then changed it again on re-direct, ultimately conceding that the location of the rebar on the ground inside the temporary fence was safe. Hughes would not answer questions posed and had to be asked the same question multiple times. He would not admit to facts in common knowledge such as the use of a shovel to flatten gravel or dirt. In reaching his opinions, Hughes admitted that (1) he did not review all the accident scene photographs; (2) he did not review or consider the testimony of Sinkola even though Sinkola bent the rebar in the accident with Robyn Holloway, testified at trial, and gave two depositions related to this accident; (3) he did not review or consider other prior testimony of both Plaintiffs and Anderson; (4) he did not consider the distance of the rebar located on the ground from the energized lines; and (5) he did not consider the fact that there are no energized lines above the location of the rebar on the ground. (Hughes Tr.; see Exhs. D-2 through D-48)

         4. Hughes opined that placing rebar on the ground inside the wall perimeter was not consistent with customary construction practices because the rebar should have been placed on the outside of the perimeter. This includes the area between the temporary fence and the perimeter. He testified that placing the rebar on the perimeter's inside created trip and fall hazards. (Hughes Tr.)

         5. Hughes testified that he believed Sinkola and Robyn Holloway selected the rebar bending location used in the accident because it was "more efficient" to bend the rebar in that location, and because even though other areas near the location of the rebar were further away from the energized lines, those areas were not level ground. (Hughes Tr.)

         6. Wolfswinkel testified that the rebar was located in the field south of the substation approximately 50 feet away from the temporary fence and was only moved from this location because of Giorgi's instruction to get the rebar "out of the field." Hughes opined that rebar is bent in the area next to where the rebar is located. As a result, Plaintiffs argue that but for Giorgi's alleged instruction, the rebar would have remained outside the temporary fence 50 feet away and would have been bent next to this location outside the temporary fence 50 feet away. (Wolfswinkel, Hughes Tr.)

         7. Plaintiffs' argument and Hughes' testimony are speculative and inconsistent with other testimony and the facts. Sinkola and Robyn Holloway did not bend the rebar used in the accident next to where the rebar was located.[6] Instead, Sinkola chose to move the rebar bender and the rebar away from where the rebar was located inside the temporary fence. Sinkola and Robyn Holloway chose to bend the rebar 30-45 feet away from where the rebar was located inside the temporary fence, either directly underneath or almost directly underneath energized lines. It is undisputed that the rebar bent in the accident was the first piece of rebar that was bent for the wall construction, so there was no prior rebar bending upon which to base Plaintiffs' argument. (Wolfswinkel, Hughes, Sinkola, R. Holloway Tr.)

         8. Plaintiffs' argument is also inconsistent with both Wolfswinkel's and Hughes' testimony. They testified that the rebar was not bent outside the wall perimeter because carrying 20-foot rebar was difficult as the rebar would bow and drag on the ground. This is inconsistent with Plaintiffs' argument that, but for Giorgi's alleged instruction, the rebar would have remained outside the temporary fence 50 feet away and would have been bent next to this location because this would require carrying each ...


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