# Stotmeister v. Alion Science and Technology Corporation

> District Court, District of Columbia · August 25, 2014 · 65 F. Supp. 3d 56

URL: https://www.frixlaw.com/law-library/cases/2720439

## Case

- **Full name:** Mary S. STOTMEISTER, Et Al., Plaintiffs, v. ALION SCIENCE & TECH. CORP., Et Al., Defendants
- **Court:** District Court, District of Columbia
- **Decided:** August 25, 2014
- **Citations:** 65 F. Supp. 3d 56; 2014 U.S. Dist. LEXIS 117719
- **Precedential status:** Published
- **Opinion:** Opinion by Hogan
- **Judges:** Judge Thomas F. Hogan
- **Nature of suit:** Civil
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

MARY S. STOTMEISTER, et al.,

Plaintiffs,
v. Civil Action No. 08-01193 (TFH) 1

ALION SCIENCE & TECH. CORP., et al.,

Defendants.

MEMORANDUM OPINION

Pending before the Court is the Joint Motion for Summary Judgment of Alion Science

and Technology Corporation, Cherry Hill Construction, Inc., Day & Zimmerman Group

Services, DC Water and M&M Welding & Fabricators, Inc. on the Issue of Frank Stotmeister’s

Contributory Negligence [ECF No. 160], which urges the Court to grant summary judgment in

the defendants’ favor on the ground that the doctrine of contributory negligence bars the

plaintiffs from prevailing on their claims for damages relating to fatal injuries Francis (“Frank”)

Stotmeister sustained while working on a construction project on April 23, 2004. After the
1
On July 8, 2011, the Court issued an order consolidating the following cases: 05-cv-
00545, 06-cv-00834, 05-cv-00813 and 08-cv-01193. Stotmeister v. Alion Science & Tech. Corp.,
No. 05-cv-00813, Order (July 8, 2011) [ECF No. 95]. Stipulations of dismissal were later filed
in 05-cv-00545 and 06-cv-00834, as well as in 10-cv-02280, which was another related case that
was never consolidated. Consequently, only 08-cv-01193 and 05-cv-00813 remain active. From
this Court’s perspective, this decision and the accompanying order resolve all remaining claims
pending in 08-cv-01193, with the exception of a MOTION FOR RECONSIDERATION AND
CLARIFICATION [ECF No. 151] that was filed by Day & Zimmerman Services, Inc. on June 7,
2011. That motion will be addressed separately. With respect to any causes of action pending in
05-cv-00813, the Court views this decision as rendering moot those causes of action, as indicated
in the accompanying order.

--1--
motion was filed, the plaintiffs entered into settlement agreements with all the moving

defendants except Day & Zimmerman Group Services (“Day & Zimmerman”) and M&M

Welding & Fabricators, Inc. (“M&M Welding”). Accordingly, the Court considers the merits of

the motion only with respect to Day & Zimmerman and M&M Welding. For the reasons set

forth below, the Court concludes that Frank Stotmeister’s injuries were caused by his own

contributory negligence so summary judgment in favor of Day & Zimmerman and M&M

Welding shall be granted. For these same reasons, the Court will deny the Stotmeister Plaintiffs’

Motion to Reconsider [ECF No. 246] and, accordingly, the Joint Motion to Strike Plaintiffs’

Motion to Reconsider [ECF No. 249] and Plaintiffs’ Motion for Oral Argument [ECF No. 256]

will be denied as moot.

APPLICABLE LEGAL STANDARD

Federal Rule of Civil Procedure 56 mandates that “[t]he Court shall grant summary

judgment if the movant shows that there is no genuine dispute as to any material fact and the

movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A fact is material if it

“might affect the outcome of the suit under the governing law.” Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 248 (1986). A dispute over a material fact is genuine “if the evidence is such that

a reasonable jury could return a verdict for the nonmoving party.” Id. At the summary judgment

stage, however, “the judge’s function is not himself to weigh the evidence and determine the

truth of the matter but to determine whether there is a genuine issue for trial.” Id. at 249.

“[T]here is no issue for trial unless there is sufficient evidence favoring the nonmoving party for

a jury to return a verdict for that party.” Id.

--2--
Although “[t]he evidence is to be viewed in the light most favorable to the nonmoving

party and the court must draw all reasonable inferences in favor of the nonmoving party,”

Talavera v. Shah, 638 F.3d 303, 308 (D.C. Cir. 2011), “[i]f the evidence is merely colorable, or

is not significantly probative, summary judgment may be granted,” Anderson, 477 U.S. at 249

(internal citations omitted). “The mere existence of a scintilla of evidence in support of the

plaintiff’s position will be insufficient; there must be evidence on which the jury could

reasonably find for the plaintiff.” Id. at 252. The ultimate inquiry is “whether the evidence

presents a sufficient disagreement to require submission to a jury or whether it is so one-sided

that one party must prevail as a matter of law.” Id.

The evidence the Court may consider when passing on a summary judgment motion

consists of “materials specified in Federal Rule of Civil Procedure 56(c) as well as any material

that would be admissible or usable at trial.” Estate of Parsons v. Palestinian Auth., 651 F.3d

118, 145 (D.C. Cir. 2011) (internal quotation marks omitted). Pursuant to Rule 56(c), the Court

is not limited to the evidence cited by the parties but also “may consider other materials in the

record.” Fed. R. Civ. P. 56(c)(3). In addition, the Rules of the United States District Court for

the District of Columbia state that “[i]n determining a motion for summary judgment, the court

may assume that facts identified by the moving party in its statement of material facts are

admitted, unless such a fact is controverted in the statement of genuine issues filed in opposition

to the motion.” LCvR 7(h)(1), available at http://www.dcd.uscourts.gov/dcd/local-rules.

THE UNDISPUTED FACTS

The Court reviewed the extensive volumes of evidence that constitute the record in this

case and carefully culled and evaluated the facts to determine whether there were any genuine

--3--
disputes about facts that could be deemed material to the outcome. On the whole, it frankly is

surprising how little dispute there is with respect to the facts, particularly in light of the

realization that most of the evidence involved the testimony of witnesses, many of whom were

deposed about the same events multiples times, by multiple attorneys, over a period of several

years. The witnesses in this case were remarkably concordant in their recollections of the events

that took place during the early morning hours on April 23, 2004, so there quite simply were few

instances of conflicting evidence that raised genuine disputes. 2 After considering all the

evidence and the entire record in this case, the Court finds the following facts to be undisputed. 3

A. Grunley-Walsh’s Contract with the General Services Administration

The General Services Administration National Capital Region Heating Operation and

Transmission District (referred to by its acronym “GSA HOTD”) manages and operates the

Steam Distribution Complex, which is a “12-mile distribution pipeline that spiders the central

business district of Washington, D.C.” Exs. In Supp. of Stotmeister Pls.’ Mem. of P. & A. In

Opp’n to Mots. for Summ. J. Ex. 38, Richard Matkins Dep. 16:1-3 (quote), 198:3-198:9 (Dec.

12, 2007) [ECF No. 204-5]; id. at Ex. 103, Carroll Williams Dep. 23:5-23:11 (Oct. 28, 2009)

2
As a testament to the fact that there was scant contradictory evidence, the Court was able
to rely principally on the plaintiffs’ -- i.e., the nonmoving parties’ – evidence as citation sources
for many, if not most, of the undisputed facts. This evidence includes Stotmeister Pls.’ Disputed
Material Facts [ECF No. 196-2], which the Court notes in most cases disputed only an inference
that could be drawn from facts set forth in the defendants’ Statement of Material Facts Not In
Dispute [ECF No. 160-1] but not the facts themselves. See Stotmeister Pls.’ Disputed Material
Facts ¶¶ 5, 12, 20, 21, 25, 26, 27, 28, 29, 30, 31, 32, 36, 41, 44, 63, 67, 68, 69, 70, 73 [ECF No.
196-2]. Consequently, most of the facts in the defendants’ Statement of Material Facts Not In
Dispute [ECF No. 160-1] remain undisputed and supported by the evidence in the case.
3
All facts discussed in other sections of this opinion also were determined by the Court to
be undisputed unless expressly identified as disputed herein. Any facts omitted from this
decision were deemed to be immaterial.

--4--
[ECF No. 208-6] (confirming that the GSA department that operates high-pressure steam is

referred to as “HOTD”). 4 The section of the Steam Distribution Complex that runs beneath 17th

Street provides steam to several federal buildings. Compare Statement of Material Facts Not In

Dispute ¶ 1 [ECF No. 160-1], with Stotmeister Pls.’ Disputed Material Facts [ECF No. 196-2]

(indicating no dispute with paragraph 1).

In 2002, GSA HOTD entered into a task-order contract with Grunley-Walsh Joint

Venture, Inc. (“Grunley-Walsh”) that ultimately required Grunley-Walsh to replace a section of

the Steam Distribution Complex running under 17th Street from the so-called “Point of

Connection” -- which was located at the intersection of 17th Street and New York Avenue -- to

Manhole 8. 5 Compare Statement of Material Facts Not In Dispute ¶ 2 [ECF No. 160-1], with

Stotmeister Pls.’ Disputed Material Facts [ECF No. 196-2] (indicating no dispute with paragraph

2); Exs. In Supp. of Stotmeister Pls.’ Mem. of P. & A. In Opp’n to Mots. for Summ. J. Ex. 70,

Bassem Soueidan Dep. 118:16-124:18, 129:1-136:22, 145:1-145:7 (Mar. 16, 2007) [ECF No.

206-5]; United States’ Supplemental Mem. In Supp. of Mot. for Summ. J. Ex. 7, Westphal Decl.

4
The evidence in the case is voluminous and many documents cited in this decision were
submitted by the various parties pursuant to other prior proceedings. To assist the parties or
others who might be reviewing this decision, the Court has identified not only the title of a
document and pinpoint citation but also the Electronic Case Filing (“ECF”) number to facilitate
efficient cross reference to the record evidence. There also are many individuals whose
deposition testimony is cited or who otherwise are identified in this decision so, albeit somewhat
cumbersome, for clarity the Court generally refers to individuals by their full name.
5
The 2002 contract originally required Grunley-Walsh to perform asbestos abatement in
the steam tunnels, replace condensate lines and provide new insulation. Exs. In Supp. of
Stotmeister Pls.’ Mem. of P. & A. In Opp’n to Mots. for Summ. J. Ex. 70, Bassem Soueidan
Dep. 118:16-120:13, 129:2-129:20, 130:22-131:21, 136:11-136:15 (Mar. 16, 2007) [ECF No.
206-5]; United States’ Supplemental Mem. In Supp. of Mot. for Summ. J. Ex. 10, Scope of Work
¶ A [ECF No. 122-1]. In 2003, however, a change order modified the contract to require
replacing the steam system. United States’ Supplemental Mem. In Supp. of Mot. for Summ. J.
Ex. 1, Scope of Work ¶ 8 [ECF No. 122-1].

--5--
¶ 3 [ECF No. 122-1]; United States’ Supplemental Mem. In Supp. of Mot. for Summ. J. Ex. 10

(Order No. P-11-02-YT-0256) [ECF No. 122-1]. The project was referred to as the “17th Street

Steam Distribution Project” and involved, among other things, excavating 17th Street to remove

the existing steam and condensate pipes and install new pipes. Exs. In Supp. of Stotmeister Pls.’

Mem. of P. & A. In Opp’n to Mots. for Summ. J. Ex. 70, Bassem Soueidan Dep. 118:6-118:8,

129:15-129:20, 131:7-131:21 (Mar. 16, 2007) [ECF No. 206-5]; Day & Zimmerman’s Opp’n to

the United States’ Mot. for Summ. J. Ex. 10, Greg Westphal Decl. ¶ 4 [ECF No. 94-9].

Although Grunley-Walsh was the prime contractor responsible for performing the 17th

Street Steam Distribution Project, Grunley-Walsh entered into subcontracts with other

companies to assist with the required work. Mem. of P. & A. In Supp. of Pls.’ Partial Opp’n to

Third Party Def. U.S.A.’s Mot. for Summ. J. 2-3 [ECF No. 97] (stating that Grunley-Walsh was

hired to be the general contractor); Exs. In Supp. of Stotmeister Pls.’ Mem. of P. & A. In Opp’n

to Mots. for Summ. J. Ex. 70, Bassem Soueidan Dep. 145:5-145:11 (Mar. 16, 2007) [ECF No.

206-5]; id. at Ex. 73, Bassem Soueidan Dep. 31:1-31:8 (May 25, 2010) [ECF No. 206-8].

Grunley-Walsh hired M&M Welding to replace the components of the steam system and install a

temporary boiler in Manhole 11. Mem. of P. & A. In Supp. of Pls.’ Partial Opp’n to Third Party

Def. U.S.A.’s Mot. for Summ. J. 3 [ECF No. 97]. Grunley-Walsh also contracted with Cherry

Hill Construction, Inc. (“Cherry Hill”) to excavate, insulate, and perform back-filling services for

the 17th Street Steam Distribution Project. Exs. In Supp. of Stotmeister Pls.’ Mem. of P. & A. In

Opp’n to Mots. for Summ. J. Ex. 70, Bassem Soueidan Dep. 145:1-145:4 (Mar. 16, 2007) [ECF

No. 206-5].

--6--
After Grunley-Walsh began performing the contract work for the 17th Street Steam

Distribution Project, GSA HOTD issued a change order that modified Grunley-Walsh’s contract

to require the installation of an 8-inch water service line between Manhole 7 and Manhole 9 as

part of an effort to modernize the Old Executive Office Building. Compare Statement of

Material Facts Not In Dispute ¶ 34 [ECF No. 160-1], with Stotmeister Pls.’ Disputed Material

Facts [ECF No. 196-2] (indicating no dispute with paragraph 34); compare Statement of Material

Facts Not In Dispute ¶ 13 [ECF No. 160-1], with Stotmeister Pls.’ Disputed Material Facts [ECF

No. 196-2] (indicating no dispute with paragraph 13); Exs. In Supp. of Stotmeister Pls.’ Mem. of

P. & A. In Opp’n to Mots. for Summ. J. Ex. 70, Bassem Soueidan Dep. 133:2-133:22, 136:11-

136:17 (Mar. 16, 2007) [ECF No. 206-5]; id. at Ex. 33, Thomas Johnson Dep. 340:12-340:16,

450:3-450:10, 484:3-484:11 (Nov. 17, 2010) [ECF No. 203-5]; id. at Ex. 74, Brian Staudenmaier

Dep. 51:7-52:5 (Mar. 12, 2008) [ECF No. 207-1]; id. at Ex. 91, Greg Westphal Decl. ¶ 5(b)

[ECF No. 207-18]; id. at Ex. 65, Dayrell Schneider Dep. 28:10-29:17, 30:12-31:12 (Dec. 10,

2007) [ECF No. 205-15]. The water line tie-in project involved cutting into the existing 20-inch

main water line to connect or “tap” a new 8-inch water line. Compare Statement of Material

Facts Not In Dispute ¶ 36 [ECF No. 160-1], with Stotmeister Pls.’ Disputed Material Facts ¶ 36

[ECF No. 196-2] (asserting that the scope of Cherry Hill’s work was not limited to cutting and

tapping the water line but otherwise not disputing that “[i]nstallation of the water service line

required Cherry Hill to tie-into existing 20” and 8” water mains maintained by DC Water”); Exs.

In Supp. of Stotmeister Pls.’ Mem. of P. & A. In Opp’n to Mots. for Summ. J. Ex. 91, Greg

Westphal Decl. ¶ 5(b) [ECF No. 207-18]; id. at Ex. 94, Greg Westphal Dep. 28:17-28:24 (Apr.

13, 2010) [ECF No. 207-21]; Ex. 112, Record of Change Order Negotiation (Mar. 12, 2004)

--7--
[ECF No. 208-15]. Grunley-Walsh subcontracted the water line tie-in project to Cherry Hill.

Compare Statement of Material Facts Not In Dispute ¶ 35 [ECF No. 160-1], with Stotmeister

Pls.’ Disputed Material Facts [ECF No. 196-2] (indicating no dispute with paragraph 35); Exs. In

Supp. of Stotmeister Pls.’ Mem. of P. & A. In Opp’n to Mots. for Summ. J. Ex. 65, Dayrell

Schneider Dep. 28:10-28:20 (Dec. 10, 2007) [ECF No. 205-15].

By the time Grunley-Walsh and Cherry Hill were set to begin the water line tie-in project,

all work on the 17th Street Steam Distribution Project had been completed and the steam system

was back in service. Exs. In Supp. of Stotmeister Pls.’ Mem. of P. & A. In Opp’n to Mots. for

Summ. J. Ex. 70, Bassem Soueidan Dep. 188:15-188:19 (Mar. 16, 2007) [ECF No. 206-5].

Grunley-Walsh’s President, Bassem Soueidan, explained that “all of the steam system had been

completed[,] inspected, tested, punched out – punch list – verified, accepted” and “the only thing

that was left was, in fact, the installation of the water main, which was a change order.” United

States’ Supplemental Mem. In Supp. of Mot. for Summ. J. Ex. 17, Bassem Soueidan Dep. 49:12-

49:16 (Jan. 18, 2008) [ECF No. 122-1]; United States. Mot. for Summ. J. Ex. 4, Bassem

Soueidan Dep. 11:4-11:6 (Jan. 18, 2008) [ECF No. 85-1] (identifying himself as Grunley-

Walsh’s president). Soueidan confirmed that, because the contractors had finished and turned

over the steam system, “[n]othing was contemplated that would involve a shutdown of the steam

line in connection with the work that remained on the [water line tie-in] project.” Third Party

Def. United States’ Combined Reply In Supp. of Mot. for Summ. J. Ex. 1, Bassem Soueidan

Dep. 49:4-49:7 (May 25, 2010) [ECF No. 106-2].

--8--
B. The Water Line Tie-In Project Begins Late

On the night of April 22, 2004, Grunley-Walsh and Cherry Hill began work on the water

line tie-in project. Compare Statement of Material Facts Not In Dispute ¶¶ 37, 38 [ECF No.

160-1], with Stotmeister Pls.’ Disputed Material Facts [ECF No. 196-2] (indicating no dispute

with paragraphs 37 and 38); Day & Zimmerman’s Mot. for J. on the Pleadings Ex. B, Greg

Westphal Decl. ¶ 5 [ECF No. 32-4]. Grunley-Walsh’s Superintendent, Frank Stotmeister, was

supervising the water line tie-in project and had oversight responsibility for all the work and

subcontractors. Compare Statement of Material Facts Not In Dispute ¶ 3 [ECF No. 160-1], with

Stotmeister Pls.’ Disputed Material Facts [ECF No. 196-2] (indicating no dispute with paragraph

3); see also J.A. In Supp. of Joint Mot. for Summ. J. Ex. A, Brian Staudenmaier Dep. 14:6-14:9

(Mar. 12, 2008) [ECF No. 161-1]. The Cherry Hill supervising personnel who reported to Frank

Stotmeister that night included Joseph Hudert, who was Cherry Hill’s Superintendent, Dayrell

Schneider, who was Cherry Hill’s Utility Divisional Manager, and Gary Sims, who was the

Foreman of the Cherry Hill pipe crew performing the water line tie-in project. Exs. In Supp. of

Stotmeister Pls.’ Mem. of P. & A. In Opp’n to Mots. for Summ. J. Ex. 65, Dayrell Schneider

Dep. 13:20-13:21, 21:1-22:6, 24:2-24:21 (Dec. 10, 2007) [ECF No. 205-15]; id. at Ex. 66,

Dayrell Schneider Dep. 70:10-70:16, 205:7-205:8 (May 12, 2010) [ECF No. 206-1].

The water line tie-in project began inauspiciously. The District of Columbia Water and

Sewer Authority (“DC WASA”) crew was late performing the water main shutdown that was

necessary before the Grunley-Walsh and Cherry Hill contractors could begin cutting the main

pipe for the water line tie-in project. Exs. In Supp. of Stotmeister Pls.’ Mem. of P. & A. In

Opp’n to Mots. for Summ. J. Ex. 28, Dexter Holmes Dep. 136:1-136:3, 148:20-152:17 (Dec. 9,

--9--
2010) [ECF No. 202-15]; id. at Ex. 32, Thomas Johnson Dep. 96:3-106:22 (Oct. 19, 2010) [ECF

No. 203-4]; id. at Ex. 65, Dayrell Schneider Dep. 130:8-131:9 (stating that he was notified that

the water main was shut down between 1:00 a.m. and 2:00 a.m.), 134:20-135:20 (Dec. 10, 2007)

[ECF No. 205-15]; compare Statement of Material Facts Not In Dispute ¶ 37 [ECF No. 160-1],

with Stotmeister Pls.’ Disputed Material Facts [ECF No. 196-2] (indicating no dispute with

paragraph 37). As a result, the water main was not shut off until between 1:00 a.m. and 2:00

a.m. on April 23, 2004, which caused concern among the contractors about whether they could

meet a 5:30 a.m. deadline to complete the water line tie-in project and reopen the street to traffic.

Exs. In Supp. of Stotmeister Pls.’ Mem. of P. & A. In Opp’n to Mots. for Summ. J. Ex. Ex. 65,

Dayrell Schneider Dep. 130:8-131:9, 134:20-135:20, 138:4-138:16 (Dec. 10, 2007) [ECF No.

205-15]; id. at Ex. 31, Thomas Johnson Dep. 136:15-136:17 (Feb. 4, 2008) [ECF No. 203-3]

(confirming that the job should have been completed around 5:30 a.m.); id. at Ex. 66, Dayrell

Schneider Dep. 69:14-70:19, 93:5-93:22 (indicating a 5:30 a.m. deadline), 252:4-252:10 (May

12, 2010) [ECF No. 206-1]; Joint Mot. for Summ. J. of Alion Science & Technology Corp.,

Cherry Hill Construction, Inc., Day & Zimmerman Group Servs., DC Water and M&M Welding

& Fabricators, Inc. On the Issue of Frank Stotmeister’s Contributory Negligence [hereinafter

cited as “Joint Mot. for Summ. J.”] Ex. K, Gary Sims Dep. 171:4-171:18 (July 7, 2010) [ECF

No. 162-4]; id. at Ex. M, Dayrell Schneider Dep. 39:14-39:16 (May 12, 2010) [ECF No. 162-6].

Frank Stotmeister, Dayrell Schneider and Joseph Hudert conferred, however, and agreed to

proceed with the water line tie-in project notwithstanding the delay. 6 Exs. In Supp. of

6
Dayrell Schneider testified that someone from GSA was present for this discussion but he
was uncertain about that individual’s identity. Exs. In Supp. of Stotmeister Pls.’ Mem. of P&A
In Opp’n to Mots. for Summ. J. Ex. 65, Dayrell Schneider Dep. 146:8-146:14 (Dec. 10, 2007)

--10--
Stotmeister Pls.’ Mem. of P. & A. In Opp’n to Mots. for Summ. J. Ex. 32, Thomas Johnson Dep.

100:22-104:15 (Oct. 19, 2010) [ECF No. 203-4]; id. at Ex. 65, Dayrell Schneider Dep. 134:20-

135:20, 138:4-138:16 (Dec. 10, 2007) [ECF No. 205-15] (explaining that “[i]t was a joint

decision, Frank, Joe, myself”); id. at Ex. 66, Dayrell Schneider Dep. 69:16-70:19, 170:2-171:16,

252:4-252:18 (May 12, 2010) [ECF No. 206-1].

C. Water Floods the Steam Vault and Causes the Steam Pipes to Hammer

Between 2:00 a.m. and 2:30 a.m., the contractors began cutting the water main pipe so

the pipe could drain. Compare Statement of Material Facts Not In Dispute ¶ 38 [ECF No. 160-

1], with Stotmeister Pls.’ Disputed Material Facts [ECF No. 196-2] (indicating no dispute with

paragraph 38); Exs. In Supp. of Stotmeister Pls.’ Mem. of P. & A. In Opp’n to Mots. for Summ.

J. Ex. 65, Dayrell Schneider Dep. 71:5-71:12, 144:4-147:6 (Dec. 10, 2007) [ECF No. 205-15];

id. at Ex. 66, Dayrell Schneider Dep. 39:14-40:3 (May 12, 2010) [ECF No. 206-1]; id. at Ex. 67,

Gary Sims Dep. 79:2-80:15 (July 7, 2010) [ECF No. 206-2]; id. at Ex. 91, Greg Westphal Decl. ¶

5(c) (Apr. 28, 2005) [ECF No. 207-18]; id. at Ex. 25, Dexter Holmes Dep. 189:15-189:18 (Dec.

9, 2010) [ECF No. 202-12]. The water never fully drained, however, and continued to flow from

the main pipe into the trench where the contractors were working. Stotmeister Pls.’ Disputed

Material Facts ¶ 39 [ECF No. 196-2] (stating that “[t]hroughout the process of Cherry Hill’s

cutting the water main, water steadily flowed out of the pipe”); Exs. In Supp. of Stotmeister Pls.’

[ECF No. 205-15]; id. at Ex. 66, Dayrell Schneider Dep. 70:10-70:16, 170:5-171:9, 252:4-
252:18 (May 12, 2010) [ECF No. 206-1]. In 2008, Thomas Johnson testified that he was present
when the discussion occurred, Exs. In Supp. of Stotmeister Pls.’ Mem. of P&A In Opp’n to
Mots. for Summ. J. Ex. 31, Thomas Johnson Dep. 42:14-44:16 (Feb. 4, 2008) [ECF No. 203-3],
but in 2010 he testified that Kevin Moore, an inspector for Alion, was present, id. at Ex. 32,
Thomas Johnson Dep. 102:9-102:18 (Oct. 19, 2010) [ECF No. 203-4]. The identity of the other
individual who was present is not material to the outcome of this case, however.

--11--
Mem. of P. & A. In Opp’n to Mots. for Summ. J. Ex. 65, Dayrell Schneider Dep. 171:12-172:21,

220:11-221:3 (Dec. 10, 2007) [ECF No. 205-15]; id. at Ex. 66, Dayrell Schneider Dep. 39:14-

39:16 (May 12, 2010) [ECF No. 206-1]. As the contractors proceeded to make additional cuts

into the main pipe a significant amount of water continued to flow and accumulate in the trench

despite the use of four electric pumps to dewater. 7 Exs. In Supp. of Stotmeister Pls.’ Mem. of P.

& A. In Opp’n to Mots. for Summ. J. Ex. 65, Dayrell Schneider Dep. 151:1-151:21, 154:3-

155:21, 171:12-172:21 (Dec. 10, 2007) [ECF No. 205-15].

Within about thirty minutes of the contractors making the initial cuts to the water main

pipe, the accumulating water overflowed the trench and began to run into the steam vault toward

Manholes 9 and 10 where it made contact with the uninsulated steam pipes. Exs. In Supp. of

Stotmeister Pls.’ Mem. of P. & A. In Opp’n to Mots. for Summ. J. Ex. 65, Dayrell Schneider

Dep. 157:6-157:21, 173:11-173:21, 208:1-208:9 (Dec. 10, 2007) [ECF No. 205-15]; id. at Ex.

66, Dayrell Schneider Dep. 184:19-185:3 (May 12, 2010) [ECF No. 206-1]; id. at Ex. 67, Gary

Sims Dep. 128:5-128:10, 175:20-177:10, 213:21-214:22, 224:16-224:22 (July 7, 2010) [ECF No.

206-2]; J.A. In Supp. of Joint Mot. for Summ. J. Ex. L, Dayrell Schneider Dep. 168:9-168:19

(Dec. 10, 2007) [ECF No. 162-5]; id. at Ex. M, Dayrell Schneider Dep. 81:19-83:22, 85:5-86:20

(May 12, 2010) [ECF No. 162-6]; Stotmeister Pls.’ Disputed Material Facts ¶ 72 [ECF No. 196-

2] (stating that “the water flowing from the 20-inch water main entered the steam vault” and

“contacted the steam lines”). As a result, steam rose out of the manholes and two steam pipes

7
Dayrell Schneider stated that “[t]he volume of water overwhelmed us because even when
the whole piece was cut out, you still had a 4- or 5-inch flow, which is not normal.” Exs. In
Supp. of Stotmeister Pls.’ Mem. of P&A In Opp’n to Mots. for Summ. J. Ex. 66, Dayrell
Schneider Dep. 190:14-190:17 (May 12, 2010) [ECF No. 206-1].

--12--
that were within 10 feet of the contractors began to visibly and audibly hammer, 8 causing

Dayrell Schneider and Gary Sims, who were in charge of the pipe crew, to fear for their safety. 9

Stotmeister Pls.’ Disputed Material Facts ¶ 72 [ECF No. 196-2] (stating that “the steam pipes

jumped and made a loud hammering noise”); Exs. In Supp. of Stotmeister Pls.’ Mem. of P. & A.

In Opp’n to Mots. for Summ. J. Ex. 31, Thomas Johnson Dep. 47:19-48:21 (Feb. 4, 2008) [ECF

No. 203-3]; id. at Ex. 65, Dayrell Schneider Dep. 157:6-157:21, 208:1-208:12 (Dec. 10, 2007)

[ECF No. 205-15]; id. at Ex. 66, Dayrell Schneider Dep. 83:13-84:6, 86:4-89:20, 101:3-101:21,

200:12-201:9, 208:8-209:15, 233:21-237:21, 249:19-250:5 (May 12, 2010) [ECF No. 206-1]; id.

at Ex. 67, Gary Sims Dep. 91:7-94:22, 213:1-214:22 (July 7, 2010) [ECF No. 206-2]; id. at Ex.

68, Gary Sims Dep. 285:12-286:18, 328:2-328:9 [ECF No. 206-3]; id. at Ex. 28, Dexter Holmes

Dep. 169:4-169:19, 171:17-172:2 (Dec. 9, 2010) [ECF No. 202-15]; J.A. In Supp. of Joint Mot.

for Summ. J. Ex. K, Gary Sims Dep. 91:7-94:22 (July 7, 2010) [ECF No. 162-4]; id. at Ex. L,

Dayrell Schneider Dep. 167:21-171:4, 224:1-224:11 (Dec. 10, 2007) [ECF No. 162-5]; id. at Ex.

M, Dayrell Schneider Dep. 298:14-300:20 (May 12. 2010) [ECF No. 162-6]; compare Statement

of Material Facts Not In Dispute ¶ 40 [ECF No. 160-1], with Stotmeister Pls.’ Disputed Material

Facts [ECF No. 196-2] (indicating no dispute with paragraph 40).

8
There is conflicting evidence about whether the hammering was a single incident or
whether it was ongoing while the water main pipe was being cut. Compare, e.g., Exs. In Supp.
of Stotmeister Pls.’ Mem. of P&A In Opp’n to Mots. for Summ. J. Ex. 66, Dayrell Schneider
Dep. 101:17-101:21 (May 12, 2010) [ECF No. 206-1] (agreeing that there was only one water
hammer that night), with Ex. 67, Gary Sims Dep. 92:7-92:20 (July 7, 2010) [ECF No. 206-2]
(stating that the hammering lasted “[f]or approximately the entire time” the cuts were being
made to the water main). The duration of the hammering is, however, immaterial to the outcome
of this case.
9
Dexter Holmes also stated that he found the hammering to be “dangerous to a degree.”
Exs. In Supp. of Stotmeister Pls.’ Mem. of P&A In Opp’n to Mots. for Summ. J. Ex. 28, Dexter
Holmes Dep. 169:4-169:17, 171:17-172:2 (Dec. 9, 2010) [ECF No. 202-15].

--13--
D. Frank Stotmeister Refuses to Shut Down the Steam System Despite Dayrell
Schneider’s Multiple Requests

When the steam pipes hammered, Dayrell Schneider ordered the contractors to get out of

the trench and asked Frank Stotmeister three times to shut down the steam system so the

contractors could work safely on the water line tie-in project. Compare Statement of Material

Facts Not In Dispute ¶ 41 [ECF No. 160-1], with Stotmeister Pls.’ Disputed Material Facts ¶ 41

[ECF No. 196-2] (indicating no dispute that Dayrell Schneider ordered the crew to evacuate the

trench because he was alarmed); compare Statement of Material Facts Not In Dispute ¶ 43 [ECF

No. 160-1], with Stotmeister Pls.’ Disputed Material Facts [ECF No. 196-2] (indicating no

dispute with paragraph 43); J.A. In Supp. of Joint Mot. for Summ. J. Ex. L, Dayrell Schneider

Dep. 167:20-169:14, 223:9-224:19 (Dec. 10, 2007) [ECF No. 162-5]; id. at Ex. M, Dayrell

Schneider Dep. 298:14-300:20 (May 12. 2010) [ECF No. 162-6]; Exs. In Supp. of Stotmeister

Pls.’ Mem. of P. & A. In Opp’n to Mots. for Summ. J. Ex. 66, Dayrell Schneider Dep. 84:3-84:6,

86:4-86:20, 208:12-209:15, 250:6-250:22 (May 12, 2010) [ECF No. 206-1]; id. at Ex. 67, Gary

Sims Dep. 213:17-213:20 (July 7, 2010) [ECF No. 206-2]; id. at Ex. 68, Gary Sims Dep. 297:18-

298:17, 328:2-328:13, 329:3-329:11 (Mar. 2, 2011) [ECF No. 206-3]. Frank Stotmeister

refused, however, to shut down the steam system and, instead, assured Dayrell Schneider that it

was safe to proceed without turning off the steam:

Frank came over and basically said that we’re going to be okay, Dayrell. We just
dealt with mother nature. We have had three inches [of rain]. Look at the
weather reports.

--14--
This steam system is not designed to drain water anytime, anywhere. We’ve seen
these steam lines jump like that before. This is schedule[] 80. 10 I said, I’m not an
expert with scheduled 80; but he says, It will be okay.

I said, Why don’t you just go back to the source and shut the steam line down;
and we won’t even have this conversation. And he assured me that we’re okay.
And we made the decision to go back in.

J.A. In Supp. of Joint Mot. for Summ. J. Ex. L, Dayrell Schneider Dep. 170:2-170:15 (Dec. 10,

2007) [ECF No. 162-5] (capitalization in original). Compare Statement of Material Facts Not In

Dispute ¶ 43 [ECF No. 160-1], with Stotmeister Pls.’ Disputed Material Facts [ECF No. 196-2]

(indicating no dispute with paragraph 43); J.A. In Supp. of Joint Mot. for Summ. J. Ex. L.,

Dayrell Schneider Dep. 168:4-168:8 (Dec. 10, 2007) [ECF No. 162-5]; United States’

Supplemental Mem. In Supp. of Mot. for Summ. J. Ex. 7, Greg Westphal Decl. ¶ 5(d) (Apr. 28,

2005) [ECF No. 122-1] (stating that “Grunley-Walsh Construction Superintendent, Frank

Stotmeister, instructed Cherry Hill employees that it was safe to continue working and that the

steam lines . . . could withstand the water hammering”). Rather than shut down the steam

system, Frank Stotmeister directed the contractors to dump ten tons of recycled material into the

trench to create a temporary berm to control the water flowing from the water main pipe into the

steam vault. Compare Statement of Material Facts Not In Dispute ¶ 44 [ECF No. 160-1], with

Stotmeister Pls.’ Disputed Material Facts ¶ 44 [ECF No. 196-2] (indicating no dispute with the

facts contained in paragraph 44 but disputing the inference that Cherry Hill controlled the water

contacting the steam line after the berm was created); Exs. In Supp. of Stotmeister Pls.’ Mem. of

P. & A. In Opp’n to Mots. for Summ. J. Ex. 65, Dayrell Schneider Dep. 183:11-183:19, 238:1-

238:15 (Dec. 10, 2007) [ECF No. 205-15]; id. at Ex. 67, Gary Sims Dep. 177:11-177:15 (July 7,
10
Frank Stotmeister was referring to the thickness of the metal pipe. Exs. In Supp. of
Stotmeister Pls.’ Mem. of P. & A. In Opp’n to Mots. for Summ. J. Ex. 66, Dayrell Schneider
Dep. 209:18-22 (May 12, 2010) [ECF No. 206-1].

--15--
2010) [ECF No. 206-2]; J.A. In Supp. of Joint Mot. for Summ. J. Ex. K, Gary Simms Dep.

101:12-103:4 (July 7, 2010) [ECF No. 162-4]; id. at Ex. M, Dayrell Schneider Dep. 192:16-

193:13 (May 12, 2010) [ECF No. 162-6]; id. at Ex. I, Dexter Holmes Dep. 188:1-188:3 (Dec. 9,

2010) [ECF No. 162-2] (indicating that the berm was created after the contractors evacuated the

trench). Despite the berm, though, water continued to accumulate in the trench and overflow

into the steam vault. Stotmeister Pls.’ Disputed Material Facts ¶ 44 [ECF No. 196-2] (stating

that water continued to flow into the steam vault after the berm was created).

E. Water Condensation Causes the Steam Pipes in the New Executive Office Building
to Hammer, Which Damages the Steam System and Sets Off a Fire Alarm

The New Executive Office Building (“NEOB”) is heated by a steam station that is

connected to the 17th Street steam line via a six-inch line that branches from Manhole 11.

Compare Statement of Material Facts Not In Dispute ¶ 45 [ECF No. 160-1], with Stotmeister

Pls.’ Disputed Material Facts [ECF No. 196-2] (indicating no dispute with paragraph 45); J.A. In

Supp. of Joint Mot. for Summ. J. Ex. N, James Plakas Dep. 20:8-21:1 (Oct. 6, 2009) [ECF No.

162-7]. At around the same time the contractors in the trench observed steam pipes hammering,

a fire alarm went off at the NEOB. J.A. In Supp. of Joint Mot. for Summ. J. Ex. KK, Letter from

Tisa B. Smith, Information and Privacy Officer, D.C. Fire/EMS Dept., to James Jordan (May 3,

2010) [ECF No. 163-16] (attaching an incident log reflecting an emergency contact around 3:00

a.m. at the NEOB); id. at Ex. P, Thomas Johnson Dep. 356:13-356:19 (Nov. 17, 2010) [ECF No.

162-9]; Exs. In Supp. of Stotmeister Pls.’ Mem. of P. & A. In Opp’n to Mots. for Summ. J. Ex.

31, Thomas Johnson Dep. 54:16-55:7 (Feb. 4, 2008) [ECF No. 203-3]; id. at Ex. 32, Thomas

Johnson Dep. 155:4-156:21 (Oct. 19, 2010) [ECF No. 203-4]; compare Statement of Material

Facts Not In Dispute ¶ 46 [ECF No. 160-1], with Stotmeister Pls.’ Disputed Material Facts [ECF

--16--
No. 196-2] (indicating no dispute with paragraph 46). Plumbers working at the NEOB

discovered that a pressure-relief valve at the NEOB steam station was blowing steam and water,

which was unusual and indicated that the steam system was full of condensation. Compare

Statement of Material Facts Not In Dispute ¶ 46 [ECF No. 160-1], with Stotmeister Pls.’

Disputed Material Facts [ECF No. 196-2] (indicating no dispute with paragraph 46); J.A. In

Supp. of Joint Mot. for Summ. J. Ex. Q, Darrell Jackson Dep. 22:1-28:22 (Jan. 28, 2010) [ECF

No. 162-10]; id. at Ex. R, Marion Christopher Yewell Dep. 25:2-32:13, 35:21-36:9, 37:3-37:14

(Dec. 3, 2009) [ECF No. 162-11]; id. at Ex. T, Richard Julian Dep. 38:7-15 (Oct. 9, 2009) [ECF

No. 162-13]. The steam released from the damaged pressure-relief valve had caused heat

detectors in the steam station to activate the fire alarm. Compare Statement of Material Facts

Not In Dispute ¶ 46 [ECF No. 160-1], with Stotmeister Pls.’ Disputed Material Facts [ECF No.

196-2] (indicating no dispute with paragraph 46).

The plumbers at the NEOB shut off the steam system isolation valves to prevent steam

from entering the NEOB steam station and then proceeded to drain the condensation out of the

pipes. Compare Statement of Material Facts Not In Dispute ¶ 47 [ECF No. 160-1], with

Stotmeister Pls.’ Disputed Material Facts [ECF No. 196-2] (indicating no dispute with paragraph

47); J.A. In Supp. of Joint Mot. for Summ. J. Ex. R, Marion Christopher Yewell Dep. 32:14-

35:12, 40:3-41:3 (Dec. 3, 2009) [ECF No. 162-11]. After the condensation was drained from the

system, the plumbers replaced a gasket that had been blown out of the pressure-relief valve and

then the plumbers attempted to slowly turn the valve back on to reestablish steam. Compare

Statement of Material Facts Not In Dispute ¶ 49 [ECF No. 160-1], with Stotmeister Pls.’

Disputed Material Facts [ECF No. 196-2] (indicating no dispute with paragraph 49); J.A. In

--17--
Supp. of Joint Mot. for Summ. J. Ex. R, Marion Christopher Yewell Dep. 35:6-41:11 (Dec. 3,

2009) [ECF No. 162-11]; id. at Ex. T, Richard Julian Dep. 42:6-42:8 (Oct. 9, 2009) [ECF No.

162-13]; Exs. In Supp. of Pls.’ Partial Opp’n to United States’ Mot. for Summ. J. Ex. 14, Marion

Christopher Yewell Dep. 135:3-135:5 (Dec. 3, 2009) [ECF No. 97-14]. When the plumbers tried

to reestablish steam, however, the steam pipes began to hammer so dramatically that the valve

wheel started turning on its own. Compare Statement of Material Facts Not In Dispute ¶ 49

[ECF No. 160-1], with Stotmeister Pls.’ Disputed Material Facts [ECF No. 196-2] (indicating no

dispute with paragraph 49); J.A. In Supp. of Joint Mot. for Summ. J. Ex. R, Marion Christopher

Yewell Dep. 42:6-44:19, 71:5-72:21 (Dec. 3, 2009) [ECF No. 162-11]; id. at Ex. T, Richard

Julian Dep. 42:9-45:14, 47:15-47:21 (Oct. 9, 2009) [ECF No. 162-13]. Frightened by what was

happening at the NEOB steam station, the plumbers quickly left the building. Exs. In Supp. of

Pls.’ Partial Opp’n to Unites States’ Mot. for Summ. J. Ex. 14, Marion Christopher Yewell Dep.

135:3-135:18 (Dec. 3, 2009) [ECF No. 97-14]; J.A. In Supp. of Joint Mot. for Summ. J. Ex. Q,

Darrell Jackson Dep. 28:13-28:22 (Jan. 28, 2010) [ECF No. 162-10]; id. at Ex. T, Richard Julian

Dep. 47:19-47:21 (Oct. 9, 2009) [ECF No. 162-13].

F. Frank Stotmeister Closes the Feeder Valve In Manhole 11

On the street, the plumbers ran into Thomas Johnson, who was a government contractor

employed by Alion Science and Technology Corporation (“Alion”). Def./Cross Def.’s

Submission In Resp. to Order of April 12, 2011 1 [ECF No. 120-1]; Exs. In Supp. of Stotmeister

Pls.’ Mem. of P. & A. In Opp’n to Mots. for Summ. J. Ex. 40, Larry Melton Dep. 37:11-38:5

(Mar. 9, 2010) [ECF No. 204-7]; Pls.’ Partial Opp’n to United States’ Mot. for Summ. J. Ex. 15,

--18--
James D. Rosenberger Dep. 49:19-49:21, 156:4-156:7 (Dec. 1, 2009) [ECF No. 97-15]. Alion 11

had a contract with the GSA’s White House Project’s Office to perform construction

management services for certain designated projects pursuant to work orders issued under the

contract. Exs. In Supp. of Stotmeister Pls.’ Mem. of P. & A. In Opp’n to Mots. for Summ. J. Ex.

2, Alion Contract IB1-IC1 (ALI 00017-20) [ECF No. 201-2]; Def./Cross Def.’s Submission In

Resp. to Order of April 12, 2011 1 [ECF No. 120-1]. Thomas Johnson was on 17th Street the

night of April 23, 2004, because he was supervising a water-fountain construction project at the

NEOB for the White House Service Center. Pls.’ Partial Opp’n to United States’ Mot. for

Summ. J. Ex. 17, Thomas Johnson Dep. 49:4-49:12 (Oct. 19, 2010) [ECF No. 97-17]; United

States’ Combined Reply In Supp. of Mot. for Summ. J. Ex. 6, Thomas Johnson Dep. 433:1-

433:21 (Nov. 17, 2010) [ECF No. 106-2]. Thomas Johnson also had been a Project Manager for

the 17th Street Steam Distribution Project. Exs. In Supp. of Stotmeister Pls.’ Mem. of P. & A. In

Opp’n to Mots. for Summ. J. Ex. 40, Larry Melton Dep. 37:11-38:5, 39:9-40:5 (Mar. 9, 2010)

[ECF No. 204-7]; Third Party Def.’s Combined Reply In Supp. of Mot. for Summ. J. Ex. 1,

Bassem Soueidan Dep. 31:9-31:15 (May 25, 2010) [ECF No. 106-2]; United States’

Supplemental Mem. In Supp. of Mot. for Summ. J. Ex. 2, Greg Westphal Dep. 379:3-379:9 (Apr.

13, 2010) [ECF No. 122-1].

11
The indefinite-delivery-indefinite-quantity contract was executed by Alion’s predecessor,
ANADAC, Inc., and the GSA. Def./Cross Def.’s Submission In Resp. to Order of April 12,
2011 Ex. 1 [ECF No. 120-1].

--19--
One of the plumbers 12 told Thomas Johnson about the hammering at the NEOB steam

station and asked to have the steam to the NEOB shut off in the street so the plumbers could

change a valve. Compare Statement of Material Facts Not In Dispute ¶ 50 [ECF No. 160-1],

with Stotmeister Pls.’ Disputed Material Facts [ECF No. 196-2] (indicating no dispute with

paragraph 50); Pls.’ Partial Opp’n to United States’ Mot. for Summ. J. Ex. 15, James D.

Rosenberger Dep. 49:19-50:9, 156:4-157:17, 161:2-162:14 (Dec. 1, 2009) [ECF No. 97-15]; J.A.

In Supp. of Joint Mot. for Summ. J. Ex. T, Richard B. Julian Dep. 54:13-55:2 (Oct. 9, 2009)

[ECF No. 162-13]; id. at Ex. O, Thomas Johnson Dep. 87:10-87:22 (Mar. 12, 2007) [ECF No.

162-8]; Exs. In Supp. of Stotmeister Pls.’ Mem. of P. & A. In Opp’n to Mots. for Summ. J. Ex.

30, Thomas Johnson Dep. 20:7-20:20, (Mar. 12, 2007) [ECF No. 203-2]. Thomas Johnson

relayed the plumbers’ request to Frank Stotmeister and asked Stotmeister to shut the steam off. 13

12
It is unclear from the evidence who actually told Thomas Johnson about the hammering
but that detail is immaterial and there is no dispute that one of the plumbers did. Compare
Statement of Material Facts Not In Dispute ¶ 50 [ECF No. 160-1] (stating that James
Rosenberger told Thomas Johnson about the hammering), and Stotmeister Pls.’ Disputed
Material Facts [ECF No. 196-2] (indicating no dispute with paragraph 50), with Pls.’ Partial
Opp’n to United States’ Mot. for Summ. J. Ex. 15, James D. Rosenberger Dep. 161:10-161:17,
162:1-162:6 (Dec. 1, 2009) [ECF No. 97-15] (stating that he could not recall whether he told
Thomas Johnson about the hammering).
13
There is a factual dispute about whether Thomas Johnson asked Frank Stotmeister to shut
the steam off at Manhole 7 or Manhole 11. Compare J.A. In Supp. of Joint Mot. for Summ. J.
Ex. P, Thomas Johnson Dep. 120:4-121:1 (Feb. 4, 2008) [ECF No. 162-9] (stating “I just asked
if it could be shut down at manhole 7”), with Stotmeister Pls.’ Disputed Material Facts ¶ 51 [ECF
No. 196-2] (disputing paragraph 51 of the defendants’ Statement of Material Facts Not In
Dispute and stating that “Tom Johnson asked Frank Stotmeister to shut off the steam in Manhole
11”). The dispute arises from conflicts between Thomas Johnson’s deposition testimony and
Bassem Soueidan’s deposition testimony. Thomas Johnson asserts that he asked Frank
Stotmeister whether it was possible to turn the steam off at Manhole 7. J.A. In Supp. of Joint
Mot. for Summ. J. Ex. P, Thomas Johnson Dep. 121:8-123:3 (Feb. 4, 2008) [ECF No. 162-9]; id.
at Ex. O, Thomas Johnson Dep. 88:6-88:22 (Mar. 12, 2007) [ECF No. 162-8] (stating “yes, I did
walk up to Frank and ask him if he could shut down the steam in manhole number 7”). Bassem

--20--
Compare Statement of Material Facts Not In Dispute ¶¶ 51, 52 [ECF No. 160-1], with

Stotmeister Pls.’ Disputed Material Facts [ECF No. 196-2] (indicating no dispute with

paragraphs 51 and 52); J.A. In Supp. of Joint Mot. for Summ. J. Ex. T, Richard B. Julian Dep.

54:13-55:2 (Oct. 9, 2009) [ECF No. 162-13]; id. at Ex. O, Thomas Johnson Dep. 87:10-88:22

(Mar. 12, 2007) [ECF No. 162-8]; id. at Ex. P, Thomas Johnson Dep. 95:1-95:9 (Feb. 4, 2008)

[ECF No. 162-9]. A couple of hours later, Frank Stotmeister told Thomas Johnson that the

steam to the NEOB had been shut off at Manhole 11. Exs. In Supp. of Stotmeister Pls.’ Mem. of

P. & A. In Opp’n to Mots. for Summ. J. Ex. 31, Thomas Johnson Dep. 142:18-144:14 (Feb. 4,

2008) [ECF No. 203-3].

Souiedan, on the other hand, stated during depositions that Thomas Johnson directed Frank
Stotmeister to turn the steam off at Manhole 11. Exs. In Supp. of Stotmeister Pls.’ Mem. of P. &
A. In Opp’n to Mots. for Summ. J. Ex. 71, Bassem Soueidan Dep. 101:4-101:6 (Jan. 18, 2008)
[ECF No. 206-6] (stating that Johnson “asked Frank to see what they can do and asked him to
shut the -- the shut-off valve at Manhole 11”). Bassem Soueidan later conceded during a
deposition, however, that he could not recall Thomas Johnson’s specific words and implied that
he inferred that Thomas Johnson meant Manhole 11 because Johnson “knew full well” that was
“the only place to shut the steam off”:

Specific words I probably would not remember. But if you are asking me if he
said, Frank, go inside Manhole 11 and turn the steam off, I don’t think I’m in a
position to say that these were his exact words. But he did say, I asked Frank to
shut the steam off knowing full well that the only place to shut the steam off is in
fact inside Manhole 11.

Exs. In Supp. of Stotmeister Pls.’ Mem. of P. & A. In Opp’n to Mots. for Summ. J. Ex. 72,
Bassem Soueidan Dep. 146:15-146:22 (Mar. 27, 2008) [ECF No. 206-7]. Ultimately, though,
this disputed fact is immaterial to the outcome, as discussed infra.

The parties also dispute whether Thomas Johnson directed Frank Stotmeister to turn the
steam off or simply asked whether it was possible to do so. Statement of Material Facts Not In
Dispute n.3 [ECF No. 160-1]. For the purpose of resolving the pending motion, however, the
defendants conceded “that Johnson told Stotmeister to turn the steam off.” Id.

--21--
G. Frank Stotmeister Attempts to Turn On the Steam-Line Valve in Manhole 11,
Which Causes a Water Hammer and Massive Steam Explosion

By around 6:30 a.m., the Cherry Hill crew had finished the water line tie-in project and

was cleaning up the site. J.A. In Supp. of Joint Mot. for Summ. J. Ex. L, Dayrell Schneider Dep.

174:19-175:17, 186:1-187:20 (Dec. 10, 2007) [ECF No. 162-5]; id. at Ex. K, Gary Sims Dep.

301:7-302:2 (Mar. 2, 2011) [ECF No. 162-4]; Exs. In Supp. of Stotmeister Pls.’ Mem. of P. & A.

In Opp’n to Mots. for Summ. J. Ex. 28, Dexter Holmes Dep. 189:11-189:14, 195:11-195:19

(Dec. 9, 2010) [ECF No. 202-15]; Stotmeister Pls.’ Disputed Material Facts ¶ 57 [ECF No. 196-

2] (arguing that the water line tie-in was not completed until between 6:30 a.m. and 7 a.m. and

citing Dexter Holmes’ deposition testimony stating that “they had the T and mechanical pieces in

place around 6:30 a.m., I think”). Shortly thereafter, Thomas Johnson alerted Frank Stotmeister

that the GSA plumbers were done fixing the valve in the NEOB steam station and asked

Stotmeister to turn the steam back on. 14 Compare Statement of Material Facts Not In Dispute ¶

59 [ECF No. 160-1], with Stotmeister Pls.’ Disputed Material Facts [ECF No. 196-2] (indicating

no dispute with paragraph 59).

At approximately 8:48 a.m., Frank Stotmeister descended the ladder into Manhole 11 and

Joseph Hudert was halfway down the ladder holding a flashlight. Compare Statement of

Material Facts Not In Dispute ¶ 62 [ECF No. 160-1], with Stotmeister Pls.’ Disputed Material

Facts [ECF No. 196-2] (indicating no dispute with paragraph 62). Frank Stotmeister

14
For the purpose of resolving the pending motion the defendants do not dispute “that
Johnson told Stotmeister to turn the steam on.” Statement of Material Facts Not In Dispute ¶ 60
n.4 [ECF No. 160-1].

--22--
subsequently “began to open the isolation valve in Manhole 11” to turn the steam back on. 15

Stotmeister Pls.’ Disputed Material Facts ¶¶ 72, 73 [ECF No. 196-2] (paragraph 72 contains the

quoted language and both paragraphs support the fact that Frank Stotmeister opened the isolation

valve to turn the steam back on). As a result, a “steam-condensate water hammer” exploded

from the steam line in a “massive eruption” of steam that fatally injured Frank Stotmeister and

Joseph Hudert. Stotmeister Pls.’ Disputed Material Facts ¶ 72 [ECF No. 196-2].

DISCUSSION

Day & Zimmerman and M&M Welding contend that the plaintiffs cannot prevail on their

claims for compensatory damages arising from Frank Stotmeister’s death because Stotmeister

was contributorily negligent by failing to act with reasonable care for his own safety, knowingly

putting himself in a dangerous situation, and failing to take reasonable steps to protect himself

from harm. Mem. of P. & A. In Supp. of Joint Mot. for Summ. J. 1-15 [ECF No. 160-2]. Aside

from the contention that there are material facts in dispute, the plaintiffs’ principal counter

argument is that Frank Stotmeister’s actions opening and closing the steam-line valve in

Manhole 11 were reasonable because he was directed to do so by Thomas Johnson, who the

plaintiffs assert was the government’s representative. Pls.’ Mem. of P. & A. In Opp’n To Defs.’

Joint Mot. for Summ. J. 5-26 [ECF No. 196].

15
The plaintiffs equivocate about whether Frank Stotmeister turned the steam valve off or
on, stating that “no direct evidence has been presented that he did . . . .” Pls. Mem. of P&A In
Opp’n to Defs.’ Joint Mot. for Summ. J. 6 [ECF No. 196]. The undisputed circumstantial
evidence, however, reflects that Frank Stotmeister was the only person who was observed in
Manhole 11 that morning (Joseph Hudert was only ever observed standing on the ladder
descending into the manhole). Exs. In Supp. of Stotmeister Pls.’ Mem. of P. & A. In Opp’n to
Mots. for Summ. J. Ex. 50, Kevin Moore Dep. 118:1-118:13 (Jan. 11, 2011) [ECF No. 204-17];
United States’ Mot. for Summ. J. Ex. 1, Edwin Reyes Dep. 104:6-105:3, 105:16-105:22, 107:14-
107:21, 109:3-109:16 (Jan. 15, 2008) [ECF No. 85-1].

--23--
I.

“The District of Columbia is one of the few jurisdictions in which the claimant’s

contributory negligence can act as a complete defense to the defendant’s liability for

negligence.” Jarrett v. Woodward Bros., Inc., 751 A.2d 972, 985 (D.C. 2000). “To establish

contributory negligence, the party asserting the defense must prove by a preponderance of the

evidence that the opposing party’s negligence was a substantial factor in causing his or her

injury, and that the injury or damage was either a direct result or a reasonably probable

consequence of the negligent act or omission.” Durphy v. Kaiser Found. Health Plan of Mid-

Atlantic States, Inc., 698 A.2d 459, 465 (D.C. 1997). Contributory negligence is “conduct

‘which falls below the standard to which a plaintiff should conform for his own protection’ and

contributes to the plaintiff’s injury.” Scoggins v. Jude, 419 A.2d 999, 1004 (D.C. 1980) (quoting

Restatement (Second) of Torts § 496E, Comment a (1965)). It is “the failure to act with the

prudence demanded of an ordinary reasonable person under like circumstances.” Stager v.

Schneider, 494 A.2d 1307, 1311 (D.C. 1985). “[T]he defense of contributory negligence

requires a determination of what the plaintiff should have known and acted upon in the exercise

of reasonable care for his own safety,” Morrison v. MacNamara, 407 A.2d 555, 566 (D.C. 1979),

and “generally involves inadvertence or failure to observe or act,” Harris v. Plummer, 190 A.2d

98, 100 (D.C. 1963).

Unlike the assumption-of-risk doctrine, which operates only when the plaintiff actually

knows the full scope and magnitude of a danger but voluntarily exposes himself to it,

contributory negligence applies “’when a party knows or by the exercise of ordinary care should

have known a particular fact or circumstance . . . .” Stager, 494 A.2d at 1311 (quoting Sierra

--24--
Pacific Power Co. v. Anderson, 358 P.2d 892, 894 (Nev. 1961)) (emphasis in original). The

contributory negligence framework also applies in cases of unreasonable risk taking, District of

Columbia v. Mitchell, 533 A.2d 629, 639 (D.C. 1987), involving allegations that a plaintiff

voluntarily but unreasonably accepted a known risk, in which case “the focus . . . is on the

reasonableness of the plaintiff’s conduct rather than the voluntariness of it.” Phillips v. Fujitec

America, Inc., 3 A.3d 324, 328 (D.C. 2010).

“Whether a plaintiff is contributorily negligent is usually a question for the jury” and “it

is the rare case with evidence so clear and unambiguous that contributory negligence should be

found as a matter of law.” Paraskevaides v. Four Seasons Washington, 292 F.3d 886, 893 (D.C.

Cir. 2002) (internal quotation marks omitted). That being said, “[s]ome fact patterns allow [the

court] to take the question away from the jury.” Phillips, 3 A.3d at 329 n.16. Accordingly, when

“reasonable persons, after viewing the facts in the light most favorable to the non-moving party,

can draw but one inference from those facts, and where that one inference points ‘unerringly’ to

the conclusion that the plaintiff failed to act reasonably under the circumstances, [the court] may

find that [the plaintiff] was contributorily negligent as a matter of law.” Id. (quoting Starks v.

North East Ins. Co., 408 A.2d 980, 982 (D.C.1979)). The burden of proving contributory

negligence by a preponderance of the evidence, however, rests with the defendants. Aetna Cas.

& Sur. Co. v. Carter, 549 A.2d 1117, 1119 (D.C. 1988); Poyner v. Loftus, 694 A.2d 69, 71 (D.C.

1997).

--25--
II.

The undisputed evidence reveals that there are three instances when Frank Stotmeister’s

own negligence contributed to his injury and death. First, when the water from the cut water-

main pipe began to overflow the trench and flood the steam vault and manholes, Frank

Stotmeister should have exercised his authority as the superintendent of the water line tie-in

project to (A) halt the project entirely, (B) notify officials at GSA HOTD about the abnormal

situation involving the steam system and/or (C) shut down the steam system at the Point of

Connection. Instead, Frank Stotmeister acted unreasonably by failing to notify GSA HOTD

officials that the steam system was being exposed to an unusual amount of water from the cut

water-main pipe, directing the contractors to continue working in the trench despite all signs that

the abnormal circumstances were creating a hazard, and failing to shut down the steam system to

eliminate the risk of a steam leak or explosion posed by the hammering steam pipe.

The plaintiffs do not dispute that, as Grunley-Walsh’s superintendent, Frank Stotmeister

was responsible for all the construction activities and subcontractors on site the morning of the

steam explosion. Exs. In Supp. of Stotmeister Pls.’ Mem. of P. & A. In Opp’n to Mots. for

Summ. J. Ex. 71, Bassem Soueidan Dep. 15:20-16:6 (Jan. 18, 2008) [ECF No. 206-6] (stating

that Frank Stotmeister’s responsibilities as superintendent were to “[b]asically oversee all of the

construction activities, coordinate the subcontractors, coordinate with the client to a certain

extent, and make sure that scheduled milestones are met” and he was “basically the front man for

Grunley-Walsh on a day-to-day basis, or in this case a night-to-night basis since the job was

done at night”); accord J.A. In Supp. of Joint Mot. for Summ. J. Ex. A, Brian Staudenmaier Dep.

14:4-14:9 (Mar. 12, 2008) [ECF No. 161-1] (stating that he was Frank Stotmeister’s immediate

--26--
supervisor but that Stotmeister “had the day-to-day responsibility, oversight of the job and the

contractors on the site”). It also is undisputed that Frank Stotmeister was responsible for safety

at the job site and was “authorized to immediately stop work at the job-site if any . . . safety

hazard is observed . . . .” United States’ Supplemental Mem. In Supp. of Mot. for Summ. J. Ex.

10, Grunley-Walsh Joint Venture, Price Proposal, Section 2.H Safety Program at 43 [ECF No.

122-1]. Frank Stotmeister also was contractually responsible for administering and enforcing

Grunley-Walsh’s Safety and Accident Prevention Plan, including “[a] thorough and continuing

analysis of potential hazards.” Id. at 42. Moreover, in the event of an emergency, Grunley-

Walsh’s contract authorized Frank Stotmeister to shut down the entire steam system at the Point

of Connection located in the vault at the intersection of 17th Street and New York Avenue. 16

Exs. In Supp. of Stotmeister Pls.’ Mem. of P. & A. In Opp’n to Mots. for Summ. J. Ex. 25,

Expert Witness Report of Suzanne H. Harness 8 (Apr. 29, 2010) [ECF No. 202-12]; United

States’ Supplemental Mem. In Supp. of Mot. for Summ. J. Ex. 11, Robert Hixon Dep. 215:9-

215:19 (Mar. 1, 2011) [ECF No. 122-1]; United States’ Mot. for Summ. J. Ex. 2, Greg Westphal

Dep. 309:18-310:4 (March 11, 2010) [ECF No. 85-1].

The plaintiffs concede that the water flooding the steam vault was “abnormal and

problematic.” 17 Stotmeister Pls.’ Disputed Material Facts ¶ 39 [ECF No. 196-2]. Frank

16
See discussion infra Part III describing this authority.
17
After the contractors performing the water line tie-in project began cutting the water-
main pipe it became apparent that the pipe never fully drained and was continuing to flow at a
rate that subcontractor Dayrell Schneider found to be “alarming” and “overwhelming.” Exs. In
Supp. of Stotmeister Pls.’ Mem. of P. & A. In Opp’n to Mots. for Summ. J. Ex. 66, Dayrell
Schneider Dep. 50:1-50:4; 188:4-188:5 (May 12, 2010) [ECF No. 206-1]; accord Stotmeister
Pls.’ Disputed Material Facts ¶ 39 [ECF No. 196-2] (stating that “[a]ccording to . . . Dayrell

--27--
Stotmeister knew or should have known that the hammering in the steam pipe was being caused

by this abnormal flooding. Frank Stotmeister knew that the water from the water-main pipe was

overflowing the trench and flooding the steam tunnel toward Manhole 10 because it was visible

from where he stood at the trench. Exs. In Supp. of Stotmeister Pls.’ Mem. of P. & A. In Opp’n

to Mots. for Summ. J. Ex. 65, Dayrell Schneider Dep. 157:6-157:21 (Dec. 10, 2007) [ECF No.

205-15]; J.A. In Supp. of Joint Mot. for Summ. J. Ex. K, Gary Sims Dep. 100:16-100:22 (July 7,

2010) [ECF No. 162-4] (stating that he did not inform anyone that the berm was leaking because

“Mr. Frank . . . was standing right over top of the hole”). Steam also could be seen rising out of

the manholes, Exs. In Supp. of Stotmeister Pls.’ Mem. of P. & A. In Opp’n to Mots. for Summ.

J. Ex. 65, Dayrell Schneider Dep. 208:1-208:12 (Dec. 10, 2007) [ECF No. 205-15], and Dayrell

Schneider testified that Frank Stotmeister said that water was running down the tunnel into

Manhole 10, id. at Ex. 65, Dayrell Schneider Dep. 157:11-157:13 (“And you have Joe and Frank

saying, [w]e’re getting water in 10 coming down the tunnel.”). The steam pipe began

hammering only after the water from the water-main pipe overflowed the trench and made

contact with the steam pipe, indicating that the hammering was being caused by the overflowing

water. Exs. In Supp. of Stotmeister Pls.’ Mem. of P. & A. In Opp’n to Mots. for Summ. J. Ex.

65, Dayrell Schneider Dep. 208:1-208:12 (Dec. 10, 2007) [ECF No. 205-15]; id. at Ex. 66,

Dayrell Schneider Dep. 83:13-84:6, 89:4-89:20, 101:3-101:21, 200:12-201:9, 233:21-237:21

(May 12, 2010) [ECF No. 206-1]; id. at Ex. 67, Gary Sims Dep. 91:7-94:22 (July 7, 2010) [ECF

No. 206-2]; id. at Ex. 68, Gary Sims Dep. 285:12-286:18, 328:2-328:9; id. at Ex. 28, Dexter

Holmes Dep. 169:4-169:17, 171:17-172:2 (Dec. 9, 2010) [ECF No. 202-15]; J.A. In Supp. of

Schneider . . . the amount of water pouring out of the water main was unusual, unacceptable, and
even alarming”).

--28--
Joint Mot. for Summ. J. Ex. K, Gary Sims Dep. 91:7-94:22 (July 7, 2010) [ECF No. 162-4]; id.

at Ex. L, Dayrell Schneider Dep. 167:21-171:4, 224:1-224:11 (Dec. 10, 2007) [ECF No. 162-5];

id. at Ex. M, Dayrell Schneider Dep. 298:14-300:20 (May 12. 2010) [ECF No. 162-6]; compare

Statement of Material Facts Not In Dispute ¶ 40 [ECF No. 160-1], with Stotmeister Pls.’

Disputed Material Facts [ECF No. 196-2] (indicating no dispute with paragraph 40). The

plaintiffs concede that “[t]he water flowing from the 20-inch water main entered the steam vault”

and “contacted the steam lines[,]” which “caused condensate to form rapidly and mix with the

steam in the steam lines” and “[w]hen that happened, the steam pipes jumped and made a loud

hammering noise.” Stotmeister Pls.’ Disputed Material Facts ¶ 72 [ECF No. 196-2].

Frank Stotmeister also knew or should have known that the hammering steam pipe was a

danger. When the steam pipe started hammering, Dayrell Schneider (1) ordered the

subcontractors to evacuate the trench, (2) told Frank Stotmeister that he felt the situation was

hazardous, 18 and (3) asked Stotmeister three times to shut down the steam system, 19 putting

18
Indeed, one of the plaintiffs’ expert witnesses stated that he “understood [the contractors]
were pretty scared.” Exs. In Supp. of Stotmeister Pls.’ Mem. of P. & A. In Opp’n to Mots. for
Summ. J. Ex. 56, Roland O’Brien-Bills Dep. 358:14-358:15 (June 3, 2011) [ECF No. 205-6].
And the only logical interference to be drawn from Frank Stotmeister’s assurances that the steam
pipe had survived prior rain water, he had seen the steam pipes hammer on other occasions, and
the steam pipes were schedule 80 -- which was a reference to the thickness of the pipes, see
supra n. 10 -- is that he knew that the hazard at issue was a pipe leak or explosion.

The plaintiffs argue that this cumulative evidence “creates an inference that Mr.
Stotmeister did not fully appreciate the nature of or risks associated with water hammer.” Pls.’
Mem. of P&A In Opp’n to Defs.’ Joint Mot. for Summ. J. 23 [ECF No. 196]. Frank
Stotmeister’s reference to the thickness of the pipe belies the plaintiffs’ theory, though. In light
of all the circumstances then occurring, the only rational reason to mention the thickness of the
pipe would have been to support Frank Stotmeister’s belief that, because of its thickness, the
pipe would not crack or burst. Absent concerns about the risk of cracking or bursting, which
would lead to a steam escape or explosion, there simply is no other logical relevance to be
associated with the thickness of the pipe in this Court’s view.

--29--
Stotmeister on notice that Schneider believed the situation was dangerous. 20 Furthermore, after

Dayrell Schneider asked Frank Stotmeister to shut down the steam system, Stotmeister ordered

the contractors to create a berm out of backfill to prevent water from flowing into the steam

tunnel. 21 Frank Stotmeister’s actions in this regard lead to the logical inference that Stotmeister

knew there was a correlation between the water flooding the steam tunnel and the hammering

19
J.A. In Supp. of Joint Mot. for Summ. J. Ex. L, Dayrell Schneider Dep. 167:20-169:14,
223:9-224:19 (Dec. 10, 2007) [ECF No. 162-5]; id. at Ex. M, Dayrell Schneider Dep. 298:14-
300:20 (May 12. 2010) [ECF No. 162-6]; Exs. In Supp. of Stotmeister Pls.’ Mem. of P. & A. In
Opp’n to Mots. for Summ. J. Ex. 65, Dayrell Schneider Dep. 238:17-238:21 (Dec. 10, 2007)
[ECF No. 205-15]; id. at Ex. 66, Dayrell Schneider Dep. 84:3-84:6, 86:4-86:20, 208:12-209:15
(May 12, 2010) [ECF No. 206-1]; id. at Ex. 67, Gary Sims Dep. 213:17-213:20 (July 7, 2010)
[ECF No. 206-2]; id. at Ex. 68, Gary Sims Dep. 297:18-298:17, 328:2-328:13, 329:3-329:11
(Mar. 2, 2011) [ECF No. 206-3]; compare Statement of Material Facts Not In Dispute ¶ 43 [ECF
No. 160-1], with Stotmeister Pls.’ Disputed Material Facts [ECF No. 196-2] (indicating no
dispute with paragraph 43).
20
Dayrell Schneider testified that he believed the hammering was dangerous:

Q I -- I -- I take it you believed that was dangerous?

A I -- you know, with all my experience, yes.

Exs. In Supp. of Stotmeister Pls.’ Mem. of P. & A. In Opp’n to Mots. for Summ. J. Ex. 66,
Dayrell Schneider Dep. 208:21-209:2 (Dec. 10, 2007) [ECF No. 206-1]. Gary Sims also testified
that he was personally afraid when the pipes started hammering. Exs. In Supp. of Stotmeister
Pls.’ Mem. of P. & A. In Opp’n to Mots. for Summ. J. Ex. 68, Gary Sims Dep. 328:2-328:9
[ECF No. 206-3].
21
Compare Statement of Material Facts Not In Dispute ¶ 44 [ECF No. 160-1], with
Stotmeister Pls.’ Disputed Material Facts ¶ 44 [ECF No. 196-2] (indicating no dispute with the
fact that “Sostmeister directed that backfill material be placed into the excavation trench to create
a berm to stop the water from exiting the excavation trench”); Exs. In Supp. of Stotmeister Pls.’
Mem. of P. & A. In Opp’n to Mots. for Summ. J. Ex. 65, Dayrell Schneider Dep. 176:1-176:10
(Dec. 10, 2007) [ECF No. 205-15] (“And then Frank had us put up a whole load of RC6 to dam
on the top of the steam line to dump a whole load in there and actually make a temporary dam to
eliminate some of the water.”); J.A. In Supp. of Joint Mot. for Summ. J. Ex. K, Gary Sims Dep.
101:12-103:4 (July 7, 2010) [ECF No. 162-4].

--30--
that was occurring in the steam pipe -- and he recognized that the situation was problematic;

otherwise, there would have been no reason to take the precaution of building a berm.

The plaintiffs’ own expert witness explained that once the water hammering occurred

there was “a high degree of risk” that warranted evaluation by “the [GSA] HOTD people, who

are experts in their system” to determine why the water hammer was occurring and “[w]hat is the

damage as a consequence of all this water getting in -- in the steam tunnels[.]” United States’

Supplemental Mem. In Supp. of Mot. for Summ. J. Ex. 11, Robert Hixon Dep. 185:5-20 (Mar. 1,

2011) [ECF No. 122-1]. Another of the plaintiffs’ expert witnesses characterized the water

hammering in the steam pipe as “a dangerous condition,” Exs. In Supp. of Stotmeister Pls.’

Mem. of P. & A. In Opp’n to Mots. for Summ. J. Ex. 58, Roland O’Brien-Bills Report 2 (Jan.

20, 2011) [ECF No. 205-8], and found that “[t]he development of the water hammer in the high-

pressure steam piping along 17th Street NW should have constituted an emergency,” id. at 79.

Significantly, that same expert witness also concluded that “[t]he reasonable standard of care . . .

was to secure the large steam-stop valve in the steam tunnel [at] New York Avenue and 17th

Street NW when water started to enter the steam tunnel crawl-space and manholes[,]”22 id. at 79

22
Although this finding stated that Day & Zimmerman employees should have shut the
steam down at the Point of Connection, there is no evidence that anyone from Day &
Zimmerman was at the work site at the time the water line tie-in project was taking place and
there is no evidence that Frank Stotmeister or any other contractor attempted to contact anyone at
Day & Zimmerman to alert them about the situation. Regardless, the relevant point is that if the
steam system had been shut down at the Point of Connection at the time the water began
flooding the steam tunnel, the explosion that killed Frank Stotmeister and Joseph Hudert might
not have happened. And the evidence in the record reveals that, at the time the water line tie-in
project was taking place, Frank Stotmeister was the individual with both the knowledge of the
situation and the contractual authority to shut down the steam system at the Point of Connection.
Frank Stotmeister nonetheless made the decision to proceed with the water line tie-in project
without shutting down the steam system despite Dayrell Schneider’s request that the steam be cut
off to ensure the contractors’ safety.

--31--
(emphasis added). The plaintiffs’ expert also found that “[t]he simple decision of closing the

steam-stop [valve] at the steam tunnel at New York Avenue and 17th Street NW [the Point of

Connection] at around 2:30-AM when the hammer first occurred would have prevented the

steam-condensate water hammer that occurred after 2-AM to 8:51-AM.” Id. at 79. In other

words, given that an emergency was occurring, if Frank Stotmeister had exercised his authority

to shut the steam down at the Point of Connection when Dayrell Schneider thrice asked him to

do so the steam explosion that killed Stotmeister and Joseph Hudert might not have occurred.

The same expert who found that the tragedy might have been avoided by shutting the

steam system down at the Point of Connection when water began flooding the steam tunnels also

concluded that “[f]looding from the water main(s) into the steam tunnel crawl space and

manholes and on the steam pipe caused the steam-condensate water hammer.” Id. at 80. The

expert further stated during a deposition that the conditions during the water line tie-in project

were “abnormal” and no particular training would be needed to understand that if the steam vault

and manholes were being flooded with water there might be condensate forming in the steam

line. Exs. In Supp. of Stotmeister Pls.’ Mem. of P. & A. In Opp’n to Mots. for Summ. J. Ex. 57,

Roland O’Brien-Bills Dep. 848:4-849:14 (June 8, 2011) [ECF No. 205-7] (stating “I don’t think

you need particular training to understand the physics, especially when it’s first pointed out”).

Consistent with the expert’s testimony, Dayrell Schneider stated during a deposition that, with

respect to the water flowing into the steam tunnel, he viewed the situation to be “not normal.”

Exs. In Supp. of Stotmeister Pls.’ Mem. of P. & A. In Opp’n to Mots. for Summ. J. Ex. 65,

Dayrell Schneider Dep. 173:11-173:21 (Dec. 10, 2007) [ECF No. 205-15].

--32--
As the superintendent of the water line tie-in project Frank Stotmeister was the

responsible contractor on site who had the authority to halt the project, call GSA HOTD

personnel to advise them about the abnormal flooding in the steam system and confirm whether

it was safe to proceed with the project, or shut down the steam system at the Point of Connection

when the steam pipes started hammering and Dayrell Schneider asked him three times to do so. 23

Frank Stotmeister could see that the steam tunnel was being flooded by the water overflowing

the trench and was on notice that the subcontractors considered the situation to be dangerous. By

exercising his authority to shut down the steam system or halt the work at that point in time,

Frank Stotmeister could have eliminated the risk of danger posed by the steam pipe and

prevented the tragic explosion that ultimately killed him. Instead, Frank Stotmeister directed the

contractors to dump backfill into the trench and continue working, despite all indications that a

dangerous situation had evolved, and without ever notifying officials at GSA HOTD about the

water flooding the steam tunnel. As a consequence, the water continued to overflow the trench,

flood the steam tunnel, and cause condensation to build in the steam pipe, which ultimately led to

the water-hammer blast that exploded from the drip leg in Manhole 11 and killed Frank

Stotmeister and Joseph Hudert. Exs. In Supp. of Stotmeister Pls.’ Mem. of P. & A. In Opp’n to

Mots. for Summ. J. Ex. 57, Roland O’Brien-Bills Dep. 812:1-812:20 (June 8, 2011) [ECF No.

23
From the Court’s vantage point, Dayrell Schneider modeled the behavior of a reasonable
person under the circumstances. Although he was not a steam specialist, he sensibly recognized
that an unusual and potentially dangerous situation was occurring in light of the volume of water
flooding the trench and steam tunnel, the steam rising from the manholes, and the hammering of
the steam pipe. He immediately halted the subcontractors’ work on the water line tie-in project
and ordered the subcontractors to evacuate the trench to ensure their safety. He then sought out
the superintendent, expressed his concern about the hazard posed by the hammering steam pipe,
and requested that the steam system be shut down to eliminate the risk of danger to the
subcontractors. See factual sources cited supra Parts C, D.

--33--
205-7] (stating that excess condensation was forming in the steam pipes as a result of the water

overflowing from the main); id. at Ex. 58, Roland O’Brien-Bills Report 54 (Jan. 20, 2011) [ECF

No. 205-8] (stating that shock waves from the mixing of condensation and steam in the pipe

blew the drip leg). Under the circumstances, Stotmeister’s failure to halt the water line tie-in

project, shut down the steam system, or contact GSA HOTD to confirm the safety of the flooded

steam system was both unreasonable and imprudent. 24

III.

The second instance when Frank Stotmeister’s negligence contributed to the cause of his

injury and death occurred when Stotmeister shut off the steam-line valve in Manhole 11 at the

behest of Thomas Johnson and the plumbers who were attempting to repair damage to the NEOB

steam station caused by the steam system water hammering. When requested to shut off the

steam, Frank Stotmeister did so unreasonably by (1) entering Manhole 11 without authority and

(2) operating the steam-line valve located in Manhole 11 without authority.

Frank Stotmeister had no authority to enter Manhole 11 because it was restricted federal

property that was outside the scope of work for the water line tie-in project. United States’ Mot.

24
Particularly if, as the plaintiffs argue, Frank Stotmeister “was not a steam expert” and
“evidently he knew nothing about water hammer and how dangerous it is.” Pls.’ Mem. of P&A
In Opp’n to Defs.’ Joint Mot. for Summ. J. 13 [ECF No. 196] (internal quotation marks omitted).
Once Dayrell Schneider notified Frank Stotmeister that he viewed the steam pipe hammering to
be a danger, the reasonable course of action would have been for Stotmeister to confirm whether
a danger actually existed -- as he was contractually required to do, see supra Part II at 27
(describing the contractual requirement to thoroughly analyze potential hazards -- rather than
relying on his own inexpert opinion. Confirmation about the safety of the steam pipe could have
been quickly accomplished by calling officials at GSA HOTD or even Grunley-Walsh’s own
subcontractor, M&M Welding, which Bassem Soueidan characterized as “a steam specialist.”
J.A. In Supp. of Joint Mot. for Summ. J. Ex. C, Bassem Soueidan Dep. 124:1-124:3 (Jan. 18,
2008) [ECF No. 161-3].

--34--
for Summ. J., Supplemental Decl. of Greg Westphal ¶ 4 [ECF No. 106-1] (stating that “[e]ntry

into the Steam Distribution Complex (‘SDC’) is highly restricted”); United States’ Mot. for

Summ. J. Ex. 2, Greg Westphal Dep. 1128:2-1128:8 (June 1, 2010) [ECF No. 85-1] (“Nobody

was authorized to go into that manhole at any time. There was no work being performed in that

manhole. They had no authority -- they had no business being in that manhole . . . regardless.”);

id. at 1128:9-1128:21 (“Nobody had permission to go down in the manhole. There was no work

being performed.”); Exs. In Supp. of Stotmeister Pls.’ Mem. of P. & A. In Opp’n to Mots. for

Summ. J. Ex. 70, Bassem Soueidan Dep. 188:15-188:19 (Mar. 16, 2007) [ECF No. 206-5] (“I

can tell you that, prior to the date of the incident, all contract work related to the Steam Line

Replacement Project, specifically as it relates to that portion of the work, was completed and

back on service.”); United States’ Mot. for Summ. J. Ex. 3, Dayrell Schneider Dep. 226:6-227:13

(May 12, 2010) [ECF No. 85-1] (affirming that there was no work involving Manhole 11 and

there was no reason for the contractors to be in that manhole the morning of April 23); United

States’ Supplemental Mem. In Supp. of Mot. for Summ. J. Ex. 5, Bassem Soueidan Dep. 167:14-

167:16 (Mar. 27, 2008) [ECF No. 122-1] (“After we turned the steam over two to three weeks

prior to the date . . . we had no business touching the steam system”).

Moreover, even assuming for the sake of argument that Frank Stotmeister was authorized

to enter Manhole 11, it is undisputed that he was never authorized to manipulate the steam-line

valve located in that manhole, regardless of whether he was directed to do so by the government.

J.A. In Supp. of Joint Mot. for Summ. J. Ex. B, Bassem Soueidan Dep. 151:16-152:12 (Mar. 16,

2007) [ECF No. 161-2] (stating that, with respect to Grunley-Walsh, “[w]e were not allowed to

turn a valve on or off . . . by contract”); United States’ Combined Reply In Supp. of Mot. for

--35--
Summ. J. Ex.7, Mark Middleton Dep. 181:8-182:20 (Apr. 12, 2010) [ECF No. 106-2] (agreeing

that when the steam system needed to be shut off or on that it was to be done by GSA and no one

else); id. at Ex. 6, Thomas Johnson Dep. 435:7-435:13 (Nov. 17, 2010) [ECF No. 106-2] (stating

that contractors “cannot operate the steam valves”); Pls.’ Mem. of P. & A. In Opp’n To Defs.’

Joint Mot. for Summ. J. 21 [ECF No. 196] (noting Bassem Soueidan’s testimony that Grunley-

Walsh does not operate systems for owners). Indeed, Frank Stotmeister’s boss, Bassem

Soueidan, 25 confirmed that “with or without direction from the government, we as a contractor

don’t typically handle life systems,” United States’ Combined Reply In Supp. of Mot. for Summ.

J. Ex. 1, Bassem Soueidan Dep. 71:3-71:5 (May 25, 2010) [ECF No. 106-2] (emphasis added),

and “[w]e were not authorized . . . to do either, de-energize or energize the steam line,” using the

feeder and shut-off valves along the steam line, id. at 52:5-6. Accord Exs. In Supp. of

Stotmeister Pls.’ Mem. of P. & A. In Opp’n to Mots. for Summ. J. Ex. 70, Bassem Soueidan

Dep. 188:2-188:8 (Mar. 16, 2007) [ECF No. 206-5] (confirming that Grunley-Walsh was not

allowed to turn steam on or off at the job site because “by contract, that’s not our scope of work

to do”). This point is further corroborated by an expert report submitted by the plaintiffs that

states that “[c]ontractors do not have the authority to operate GSA steam valves . . . .” Exs. In

Supp. of Stotmeister Pls.’ Mem. of P. & A. In Opp’n to Mots. for Summ. J. Ex. 25, Expert

Witness Report of Suzanne H. Harness 8 (Apr. 29, 2010) [ECF No. 202-12].

There is no question that Frank Stotmeister knew he was not authorized to manipulate the

steam-line valve in Manhole 11 for the purpose of shutting off the steam because Grunley-Walsh

25
Exs. In Supp. of United States’ Mot. for Summ. J. Ex. 2, Bassem Soueidan Dep. 15:5-
15:22 (March 16, 2007) [ECF No. 175-1] (stating that Frank Stotmeister reported to Bassem
Soueidan).

--36--
employees were twice rebuked when Grunley-Walsh’s subcontractor, M&M Welding, shut off

steam while performing work for the 17th Street Steam Distribution Project. During the first

occurrence, M&M Welding shut down a temporary boiler connected to Manhole 11 that was

supplying steam to the New Executive Office Building, 26 after which Grunley-Walsh and its

contractors were “reprimanded very heavily” by GSA officials. United States’ Supplemental

Mem. In Support of Mot. for Summ. J. Ex. 4, Bassem Soueidan Dep. 36:7-36:9 (Mar. 16, 2007)

[ECF No. 122-1]. It is undisputed that, as a result, Frank Stotmeister attended a meeting during

which GSA officials admonished the contractors about the steam shut down, 27 J.A. In Supp. of

Joint Mot. for Summ. J. Ex. D, Bassem Soueidan Dep. 58:14-60:18 (May 25, 2010) [ECF No.

161-4], and Bassem Soueidan told Stotmeister that shutting off the steam was not to be done

again, id. at 71:10-72:15. In addition, Brian Staudenmaier, Frank Stotmeister’s direct supervisor

at Grunley-Walsh, testified during a deposition that, after the incident, he forwarded to

Stotmeister a copy of a January 14, 2004, email from a GSA HOTD official stating that the

contractors could contact identified GSA HOTD personnel if they needed an “unexpected or

unplanned shutdown of the steam.” United States’ Combined Reply In Supp. of Mot. for Summ.

J. Ex. 5, Brian Staudenmaier Dep. 67:5-67:18 (Mar. 12, 2008) [ECF No. 106-2]. That email

26
Pls.’ Mem. of P&A In Opp’n to Def.’s Joint Mot. for Summ. J. 17 [ECF No. 196]
(describing the circumstances of the steam shut down); J.A. In Supp. of Joint Mot. for Summ. J.
Ex. B, Bassem Soueidan Dep. 161:1-163:20 (Mar. 16, 2007) [ECF No. 161-2] (stating that “what
we did here was shut down the boiler . . . [w]e didn’t touch any GSA systems”); id. at Ex. B,
Letter from Brian Staudenmaier to Thomas Johnson (Jan. 12, 2004) and Letter from Mark
Middleton to Brian Staudenmaier (Jan. 12, 2004) [ECF No. 161-2] (deposition exhibits).
27
M&M’s Project Manager, Mark Middleton, testified that Frank Stotmeister was informed
that the contractors could not shut down the steam without first notifying GSA HOTD. Exs. In
Supp. of Stotmeister Pls.’ Mem. of P. & A. In Opp’n to Mots. for Summ. J. Ex. 42, Mark
Middleton Dep. 226:20-227:18 (Apr. 12, 2010) [ECF No. 204-9].

--37--
stated that Grunley-Walsh should contact the specified GSA HOTD officials “[f]or emergencies

when you need valves to be opened/closed.” J.A. In Supp. of Joint Mot. for Summ. J. Ex. B,

Email from Greg Westphal to Brian Staudenmaier (Jan. 14, 2004) [ECF No. 161-2] (deposition

exhibit).

Another unauthorized occurrence took place about two weeks later and involved M&M

Welding shutting down and re-opening the steam valve located in Manhole 7, which caused a

steam pressure drop at the Old Executive Office Building. J.A. In Supp. of Joint Mot. for Summ.

J. Ex. B, Email from Joel Klotz to Thomas Johnson with copies to Leonard Weiser, Greg

Westphal and John Bright (Jan. 30, 2004) [ECF No. 161-2] (deposition exhibit); Exs. In Supp. of

Stotmeister Pls.’ Mem. of P. & A. In Opp’n to Mots. for Summ. J. Ex. 70, Bassem Soueidan

Dep. 45:4-46:3 (Mar. 16, 2007) [ECF No. 206-5]. After that occurrence, emails between

Grunley-Walsh officials and GSA officials indicated that, in the case of an emergency, Grunley-

Walsh was authorized to enter the steam vault at the Point of Connection for the purpose of

shutting down the entire steam system. Exs. In Supp. of Stotmeister Pls.’ Mem. of P. & A. In

Opp’n to Mots. for Summ. J. Ex. 3, Email from Brian Staudenmaier to Greg Westphal (Feb. 25,

2004) [ECF No. 201-3]; United States’ Combined Reply In Supp. of Mot. for Summ. J. Ex. 3,

Email from Brian Staudenmaier to Greg Westphal (Feb. 25, 2004) [ECF No. 106-1] (declaration

exhibit).

Although GSA HOTD provided Grunley-Walsh with limited authority to shut down the

entire steam system during an emergency, that authority applied only to the valve located at the

Point of Connection and not to any valves located in manholes along the steam line. Exs. In

Supp. of Stotmeister Pls.’ Mem. of P. & A. In Opp’n to Mots. for Summ. J. Ex. 3 [ECF No. 201-

--38--
3] (stating that “[d]uring a steam emergency, and an emergency shutdown of the steam, GW will

promptly be entering the vault at POC”); Exs. In Supp. of Pls.’ Partial Opp’n to United States’

Mot. for Summ. J. Ex 7, Bassem Soueidan Dep. 39:16-39:20, 41:1-42:15 (May 25, 2010) [ECF

No. 97-7] (agreeing that the grant of authority to shut down the steam was limited to the valve at

the Point of Connection). Notably, Frank Stotmeister’s boss testified during a deposition that the

need for an emergency shut-down at the Point of Connection would be determined by Frank

Stotmeister, albeit in consultation with the project team:

Q Who was it that was to determine whether or not there was a need for an
emergency steam shutdown? Who would have made that decision?

A I would say that would be the general contractor if we felt there was an
emergency.

Q And who for you at Grunley-Walsh, the general contractor, would have
made that determination?

A I would say that it would be – you know, our Project Superintendent, in
this case Frank, and work together [sic] with the entire team. It was a
team effort.

J.A. In Supp. of Joint Mot. for Summ. J. Ex. B, Bassem Soueidan Dep. 71:13-72:2 (Mar. 16,

2007) [ECF No. 161-2]. 28 Aside from determining that an emergency steam shutdown at the

Point of Connection was warranted, 29 however, the undisputed evidence is that Frank Stotmeister

was not authorized to operate the steam-line valves in a manhole “with or without direction from

28
Given that Frank Stotmeister would have determined whether or not there was a need for
an emergency shut down there is no merit to the plaintiffs’ assertion that it was reasonable for
Stotmeister to assume that, because Thomas Johnson did not give Stotmeister the key to the
Point of Connection, Johnson did not view the situation to be an emergency, in which case
Stotmeister need not employ the emergency procedure. Pls.’ Mem. of P&A In Opp’n to Defs.’
Joint Mot. for Summ. J. 11-12 [ECF No. 196].
29
Which Frank Stotmeister failed to do. See supra Part II.

--39--
the government.” United States’ Combined Reply In Supp. of Mot. for Summ. J. Ex. 1, Bassem

Soueidan Dep. 71:3-71:5 (May 25, 2010) [ECF No. 106-2].

IV.

The third instance when Frank Stotmeister’s negligence contributed to the cause of his

injury and death occurred when he opened the steam-line valve in Manhole 11. It remains

entirely undisputed that, in nonemergency situations, no contractor was ever authorized to open a

steam-line valve -- whether at the Point of Connection or in a manhole on 17th Street. Exs. In

Supp. of Stotmeister Pls.’ Mem. of P. & A. In Opp’n to Mots. for Summ. J. Ex. 25, Expert

Witness Report of Suzanne H. Harness 8 (Apr. 29, 2010) [ECF No. 202-12] (stating that “[n]o

procedures allowed a contractor to turn the steam back on”); id. at Ex. 70, Bassem Soueidan

Dep. 188:2-188:8 (Mar. 16, 2007) [ECF No. 206-5] (stating that Grunley-Walsh was not

permitted by the contract to turn steam on or off because doing so was “not our scope of work to

do”); id. at Ex. 73, Bassem Soueidan Dep. 37:3-37:9 (May 25, 2010) [ECF No. 206-8] (agreeing

that Grunley-Walsh and its employees were not authorized to operate the steam-line valves along

17th Street except); United States’ Supplemental Mem. In Supp. of Mot. for Summ. J. Ex. 11,

Robert Hixon Dep. 215:17-215:19, 248:5-248:11 (Mar. 1, 2011) [ECF No. 122-1] (deposition

testimony by the plaintiffs’ expert witness confirming that “Stotmeister certainly knew that the

protocol was that HOTD gets called; they turn on the system; we don’t touch it”); id. at Ex. 5,

Bassem Soueidan Dep. 167:13-167:16 (Mar. 27, 2008) [ECF No. 122-1] (stating that “[a]fter we

turned the steam over . . . we had no business touching the steam system”). The uncontroverted

evidence reveals that there was no emergency at the time Frank Stotmeister attempted to turn the

steam back on by manipulating the steam-line valve in Manhole 11. Exs. In Supp. of Stotmeister

--40--
Pls.’ Mem. of P. & A. In Opp’n to Mots. for Summ. J. Ex. 72, Bassem Soueidan Dep. 182:15-

183:1 (Mar. 27, 2008) [ECF No. 206-7] (“I would not consider that turning the valve back on is

in fact an emergency”); id. at Ex. 73, Bassem Soueidan Dep. 167:7-167:8, 195:2-195:3 (May 25,

2010) [ECF No. 206-8] (stating “[a]t the time of the reopening, I don’t believe there was an

emergency”); J.A. In Supp. of Joint Mot. for Summ. J. Ex. D, Bassem Soueidan Dep. 166:19-

167:8 (May 25, 2010) [ECF No. 161-4]; United States’ Supplemental Mem. In Supp. of Mot. for

Summ. J. Ex. 11, Robert Hixon Dep. 246:11-246:17 (Mar. 1, 2011) [ECF No. 122-1] (deposition

testimony by one of the plaintiffs’ expert witnesses affirming that “there was no emergency at

the time that Stotmeister turned on the valve in manhole 11 to reenergize the system”); United

States’ Combined Reply In Supp. of Mot. for Summ. J. Ex. 1, Bassem Soueidan Dep. 194:17-

195:3 (May 25, 2010) [ECF No. 106-2] (“At the time of the reopening, I don’t believe there was

an emergency.”).

It can be logically inferred from the undisputed evidence that the reason no contractor

was authorized to open a steam-line valve was to ensure safety because of the danger presented

by high-pressure steam. As one of the plaintiffs’ expert witnesses acknowledged, “with high

pressure steam . . . there’s great risk and there needs to be a process to ensure that you [turn it on]

safely” because “it’s very dangerous.” United States’ Supplemental Mem. In Supp. of Mot. for

Summ. J. Ex. 11, Robert Hixon Dep. 213:16-213:20 (Mar. 1, 2011) [ECF No. 122-1]; accord

Exs. In Supp. of Stotmeister Pls.’ Mem. of P. & A. In Opp’n to Mots. for Summ. J. Ex. 43, Mark

Middleton Dep. 278:3-281:21 (May 18, 2010) [ECF No. 204-10] (stating that the process to open

high-pressure steam valves was for safety and high-pressure steam must be handled properly to

avoid water hammer and other complications). For more than a century federal courts have

--41--
recognized that steam, and the “escape of live steam,” is dangerous, Viscount De Valle Da Costa

v. Southern Pac. Co., 176 F. 843, 845 (1st Cir. 1910) (noting that piping and valves permitted

“the improper and dangerous escape of live steam”) and Frank Stotmeister’s boss stated that

“anybody would” appreciate the dangers associated with working on a steam system, Ex. 73,

Bassem Soueidan Dep. 133:3-133:8 (May 25, 2010) [ECF No. 206-8]. Thus, according to the

plaintiffs’ expert witness, “only people skilled in that process [of safely turning on steam] should

be attempting to reenergize a steam system.” United States’ Supplemental Mem. In Supp. of

Mot. for Summ. J. Ex. 11, Robert Hixon Dep. 213:21-214:2 (Mar. 1, 2011) [ECF No. 122-1]

(stating “[t]hat’s true” and “I agree”).

The undisputed evidence reveals that Frank Stotmeister was not skilled in the process of

safely turning on steam. Frank Stotmeister reportedly knew a lot about steam, the dangers

associated with steam systems, and the procedures to safely turn on steam by slowly opening the

valves, but he was not a steam expert. Exs. In Supp. of Stotmeister Pls.’ Mem. of P. & A. In

Opp’n to Mots. for Summ. J. Ex. 43, Mark Middleton Dep. 278:3-281:21 (May 18, 2010) [ECF

No. 204-10] (stating that Frank Stotmeister knew the procedure to open and drain the steam

system and that the procedure was for “safety’s sake”); 30 id. at Ex. 70, Bassem Soueidan Dep.

30
The plaintiffs challenge Mark Middleton’s deposition testimony that Frank Stotmeister
understood the procedure by arguing that Middleton’s testimony was only about the “chain of
command” for re-energizing so Stotmeister was not aware of the “specific re-energization
procedures used by HOTD.” Pls.’ Mem. of P&A In Opp’n to Defs.’ Joint Mot. for Summ. J. 20
[ECF No. 196]. The plaintiffs apparently overlook, though, Mark Middleton’s testimony that
Frank Stotmeister was aware of the technical procedure that involved cracking a valve and
draining the condensate and that Stotmeister knew that procedure was for safety. Exs. In Supp.
of Stotmeister Pls.’ Mem. of P. & A. In Opp’n to Mots. for Summ. J. Ex. 43, Mark Middleton
Dep. 281:2-281:21 (May 18, 2010) [ECF No. 204-10]. The plaintiffs also fail to cite any other
evidence to contradict Mark Middleton’s testimony; as a result, it remains undisputed that Frank

--42--
145:12-22 (Mar. 16, 2007) [ECF No. 206-5] (“Frank been [sic] around mechanical systems for

many, many years. I believe he was a master plumber and a master HVAC. That does not

qualify him as a steam expert, but he’s been around steam lines.”); id. at Ex. 73, Bassem

Soueidan Dep. 132:13-132:14 (May 25, 2010) [ECF No. 206-8] (“I would not say he’s a steam

expert, but he’s experienced, yes.”); id. at 133:3-133:8 (confirming that Frank Stotmeister

appreciated the dangers associated with working on steam systems); J.A. In Supp. of Joint Mot.

for Summ. J. Ex. A, Brian Staudenmaier Dep. 65:5-65:13 (Mar. 12, 2008) [ECF No. 161-1]

(stating that Frank Stotmeister “knew a lot about steam”). Although Frank Stotmeister’s boss

stated that Stotmeister “knew about steam systems and knew how the system functions,” J.A. In

Supp. of Joint Mot. for Summ. J. Ex. C, Bassem Soueidan Dep. 122:19-123:3 (Mar. 27, 2008)

[ECF No. 161-3], the plaintiffs nevertheless concede that Stotmeister’s experience “did not

include turning steam on and off,” Stotmeister Pls.’ Disputed Material Facts ¶ 10 [ECF No. 196-

2], and “Frank Stotmeister had never turned on or turned off a steam valve on the 17th Street

Steam system before April 23, 2004,” id. at ¶ 73; accord J.A. In Supp. of Joint Mot. for Summ.

J. Ex. C, Bassem Soueidan Dep. 122:14-123:3 (Jan. 18, 2008) [ECF No. 161-3] (stating that, to

his knowledge, Frank Stotmeister had never personally turned steam on or off). It goes without

saying that someone who has no experience turning a steam system on is not “skilled” -- as that

term is commonly defined 31 -- in the process of safely turning on steam.

Stotmeister knew the technical procedure for opening a steam-line valve and that the purpose for
the procedure was safety.
31
The term “skilled” is defined as “having acquired mastery of or skill in something (as a
technique or a trade).” Merriam-Webster’s Collegiate Dictionary 1100 (10th ed. 1999).

--43--
Ultimately, though, whether Frank Stotmeister qualified as “skilled” is of no moment in

light of the deposition testimony by one of the plaintiffs’ expert witnesses who stated that no

specialized training was necessary to understand that, if steam lines are being flooded with water,

as happened in this case, there might be condensate forming in the steam lines and, furthermore,

it would violate a reasonable standard of care to open a steam-line valve knowing that the steam

line was flooded with condensate. Pls.’ Mem. of P. & A. In Opp’n To Defs.’ Joint Mot. for

Summ. J. 25 [ECF No. 196] (identifying Roland O’Brien-Bills as “the Stotmeisters’ expert”);

Exs. In Supp. of Stotmeister Pls.’ Mem. of P. & A. In Opp’n to Mots. for Summ. J. Ex. 57,

Roland O’Brien-Bills Dep. 763:12-764:5, 848:22-849:14 (June 8, 2011) [ECF No. 205-7]. The

undisputed evidence shows that Frank Stotmeister knew that the steam lines were being flooded

with water, see discussion supra Part II, in which case he should have known that condensate

might be forming in the steam lines, Exs. In Supp. of Stotmeister Pls.’ Mem. of P. & A. In Opp’n

to Mots. for Summ. J. Ex. 57, Roland O’Brien-Bills Dep. 763:12-764:5; 848:22-849:14 (June 8,

2011) [ECF No. 205-7]. The plaintiffs do not dispute that water condensate must be drained

from a steam line before the steam is turned back on “or a dangerous situation is created which

may cause water hammer or pipes to rupture.” Compare Statement of Material Facts Not In

Dispute ¶ 30 [ECF No. 160-1], with Stotmeister Pls.’ Disputed Material Facts ¶ 30 [ECF No.

196-2] (disputing that “the technical or engineering reasons for turning off steam at the POC

applied to Frank Stotmeister on the morning of April 23, 2004” but otherwise not disputing that

the failure to drain condensate from a steam line creates a dangerous situation and might cause a

water hammer). The plaintiffs’ expert witness confirmed that such a dangerous situation

materialized when he testified that Frank Stotmeister’s act of opening the steam-line valve in

--44--
Manhole 11 created a “pressure difference” that increased the steam flow toward Manhole 11

and, when the steam mixed with water condensate, caused the “shock waves” or “blasting” that

exploded from the drip leg in Manhole 11. Exs. In Supp. of Stotmeister Pls.’ Mem. of P. & A. In

Opp’n to Mots. for Summ. J. Ex. 58, Report from Roland O’Brien-Bills to William P. Lightfoot

54 Figure 11 (Jan 20, 2011) [ECF No. 205-8] (the quoted language is contained in the section of

the expert report titled “Evidence, Observations and Findings”).

Consequently, knowing that the steam lines had been flooded with water, it was

unreasonable and dangerous for Frank Stotmeister to open the steam-line valve in Manhole 11,

particularly when he had no authority to do so, no experience doing so, and had not first drained

the water condensate from the steam system. Stotmeister’s actions are inexplicable in light of

the undisputed fact that GSA HOTD officials were “on call” in the event of an emergency the

morning of the water line tie-in project, so Stotmeister could have contacted a GSA HOTD

official before taking matters into his own hands. Exs. In Supp. of Stotmeister Pls.’ Mem. of P.

& A. In Opp’n to Mots. for Summ. J. Ex. 87, United States’ Response to D&Z’s First Set of

Interrogs. 11 [ECF No. 207-14] (stating in response to Interrogatory No. 15 that more than nine

GSA or HOTD employees “remain[ed] ‘on call’ in the event of an emergency, and, as reflected

in the email from Greg Westphal dated January 14, 2004 . . . the contractors working along 17th

Street, N.W. on the morning of April 23, 2004, had been provided telephone numbers of certain

HOTD supervisors to contact in the event of an emergency”). Alternatively, Frank Stotmeister

could have contacted officials at M&M Welding for assistance turning the steam-line valve on or

off given that they were “steam specialist[s]” who Grunley-Walsh subcontracted with because of

their expertise. Exs. In Supp. of Stotmeister Pls.’ Mem. of P&A In Opp’n to Mots. for Summ. J.

--45--
Ex. 70, Bassem Soueidan Dep. 145:1-145:4 (Mar. 16, 2007) [ECF No. 206-5]; J.A. In Supp. of

Joint Mot. for Summ. J. Ex. C, Bassem Soueidan Dep. 124:2-124:3 (Jan. 18, 2008) [ECF No.

161-3] (stating “I would consider M&M a steam specialist”). Frank Stotmeister’s operation of

the steam line by opening the valve in Manhole 11 in the absence of skill, experience or authority

was unreasonable. 32

V.

The plaintiffs contend that Frank Stotmeister’s actions shutting down and re-opening the

steam-line valve in Manhole 11 was reasonable because he acted at the direction of Thomas

Johnson, who the plaintiffs assert was the “project manager and on-site representative of GSA”

and who Stotmeister viewed as a client. Stotmeister Pls.’ Disputed Material Facts ¶ 6 [ECF No.

196-2]; Pls.’ Mem. of P. & A. In Opp’n to Defs.’ Joint Mot. for Summ. J. 5-7 [ECF No. 196]

(quoted language on page 5). Even assuming that Frank Stotmeister viewed Thomas Johnson to

be a “government representative” or “client,” the plaintiffs cited no legal authority to support the

proposition that, in the District of Columbia, a contractor may blindly follow a client’s order and

be immune from all liability for contributory negligence in carrying out the order. The plaintiffs

likely cited no authority for this proposition because it appears that none exists in this

jurisdiction -- as far as this Court can determine, the precise question of whether an exception to

contributory negligence applies when a contractor’s negligence occurs while carrying out a

client’s or superior’s order has never been addressed by the District of Columbia Court of

Appeals. For the foregoing reasons, though, the Court concludes that, even if such an exception

32
As Frank Stotmeister’s boss testified, “you need a steam expert for operations . . . .” Exs.
In Supp. of Stotmeister Pls.’ Mem. of P&A In Opp’n to Mots. for Summ. J. Ex. 70, Bassem
Soueidan Dep. 147:10-147:17 (Mar. 16, 2007) (explaining that a steam expert was not necessary
to replace piping but was necessary to operate the steam line) [ECF No. 206-5].

--46--
existed, the particular facts of this case would not warrant its application because there were

alternative methods Frank Stotmeister could have employed to reasonably execute an order to

shut down or open the steam-line valve, but he chose to proceed in a way that demonstrated a

lack of due care for his own safety.

As an initial matter, it is undisputed that Thomas Johnson was contractually prohibited

from directing Grunley-Walsh’s employees, including Frank Stotmeister, about the means,

methods or procedures to accomplish a project. The Alion government contract under which

Thomas Johnson was employed stated that “[t]he construction contractors are solely responsible

for construction means, methods, sequences and procedures used in the construction of the

projects, and for related performance in accordance with their contracts with the Government.” 33

Exs. In Supp. of Stotmeister Pls.’ Mem. of P. & A. In Opp’n to Mots. for Summ. J. Ex. 2 at I-C-2

(subparagraph (g)) [ECF No. 201-2]; J.A. In Supp. of Joint Mot. for Summ. J. Ex. P, Thomas

Johnson Dep. 671:11-673:14 (Nov. 17, 2010) [ECF No. 162-9] (confirming that Exhibit 2 of the

Exhibits in Support of Stotmeister Plaintiffs’ Memorandum of Points and Authorities In

Opposition to Motions for Summary Judgment [ECF No. 201-2] consists of excerpts of Alion’s

contract and accurately reflects Alion’s role on both the 17th Street Steam Distribution Project

and the water line tie-in project). It therefore follows that, if Thomas Johnson told Frank

Stotmeister to shut down or open the steam-line valve at Manhole 11, it was Frank Stotmeister’s

prerogative to determine the means, methods and procedures to accomplish that task. As already

noted, supra Parts III and IV, Frank Stotmeister had only two reasonable means or methods to

33
There was no contract between Alion and Grunley-Walsh. Exs. In Supp. of Stotmeister
Pls.’ Mem. of P. & A. In Opp’n to Mots. for Summ. J. Ex. 74, Brian Staudenmaier Dep. 43:10
(Mar. 12, 2008) [ECF No. 207-1].

--47--
accomplish a shut down of any part of the steam system, one that applied in cases of emergency

and one that applied in all other circumstances. In the case of an emergency, Frank Stotmeister

was authorized to shut down the entire steam system at the Point of Connection only. In all other

cases, the only means by which Frank Stotmeister could shut down any part of the steam system

was by contacting GSA HOTD and requesting that GSA HOTD perform the task. Again, under

no circumstance, whether in the case of an emergency or otherwise, was Frank Stotmeister

authorized to reenergize the steam system or open a steam-line valve.

To the extent that Thomas Johnson could direct Frank Stotmeister to do anything, that

direction was limited to matters within the scope of work of Grunley-Walsh’s contract, and

turning steam on or off was not within that scope. As Bassem Soueidan explained, Thomas

Johnson “can’t direct [Frank Stotmeister] to do anything outside the contract.” Exs. In Supp. of

United States’ Mot. for Summ. J. Ex. 2, Bassem Soueidan Dep. 55:5-55:6 (Mar. 16, 2007) [ECF

No. 175-1]. The contracting officer for the 17th Street Steam Distribution Project also confirmed

that a construction manager or project manager never has the authority to direct anyone to

exceed the scope of work under a contract. Third Party Def. United States’ Combined Reply In

Support of Mot. for Summ. J. Ex. 3, Michael Vrobel Dep. 194:3-194:7 (Sept. 7, 2010) [ECF No.

106-2]. At best, Thomas Johnson could only “direct [Frank Stotmeister] to do things within the

contract terms . . . .” Exs. In Supp. of Stotmeister Pls.’ Mem. of P. & A. In Opp’n to Mots. for

Summ. J. Ex. 2, Bassem Soueidan Dep. 55:6-55:7 (Mar. 16, 2007) [ECF No. 206-5]. Bassem

Soueidan confirmed that turning the steam on or off at the job site was not within the scope of

Grunley-Walsh’s contract. Id. at 188:2-188:8 (“We were not -- by contract, that’s not our scope

of work to do.”). In fact, according to Bassem Soueidan, because the work on the steam system

--48--
had been completed by the time the water line tie-in project was underway, Grunley-Walsh

employees, including Frank Stotmeister, “had no business touching the steam system.” United

States’ Supplemental Mem. In Supp. of Mot. for Summ. J. Ex. 5, Bassem Soueidan Dep. 167:14-

167:16 (Mar. 27, 2008) [ECF No. 122-1].

It also remains undisputed that Thomas Johnson lacked any authority to grant Frank

Stotmeister access to the “highly restricted” Steam Distribution Complex, including the steam

tunnels and manholes. United States’ Mot. for Summ. J., Supplemental Decl. of Greg Westphal

¶¶ 4, 5 [ECF No. 106-1]. The Alion contract that Thomas Johnson worked under involved

projects for the GSA White House Projects Office, 34 which “is a distinct division of GSA from

HOTD.” Id. at ¶ 5. “Personnel in the White House Center do not have authority to permit access

into the SDC.” Id. “Only HOTD personnel have authority to permit access into the manholes

that are part of the SDC, such as manhole 11 on 17th Street.” Id. at ¶ 6. The plaintiffs proffered

no evidence to the contrary and there is no evidence that Thomas Johnson was ever held out to

be a GSA HOTD (versus White House Center) representative or employee. Grunley-Walsh

officials obviously did not view Thomas Johnson to be a GSA HOTD employee or representative

given Bassem Soueidan’s testimony failing to identify Johnson when asked whether there were

any GSA HOTD personnel on site the morning of the accident:

Q On the night before and the morning of the accident, do you know if
HODT [sic] personnel were on the job site?

A Not to my knowledge, I don’t believe there would have been a need for
them.

34
Exs. In Supp. of Stotmeister Pls.’ Mem. of P. & A. In Opp’n to Mots. for Summ. J. Ex. 2
(Alion’s contract) [ECF No. 201-2]; Third Party Def. U.S.’s Combined Reply In Supp. of Mot.
for Summ. J. Ex. 6, Thomas Johnson Dep. 433:1-433:21 (Nov. 17, 2010) [ECF No. 106-2].

--49--
Exs. In Supp. of Stotmeister Pls.’ Mem. of P&A In Opp’n to Mots. for Summ. J. Ex. 70, Bassem

Soueidan Dep. 189:14-189:19 (Mar. 16, 2007) [ECF No. 206-5]. Because there is no dispute

that Thomas Johnson was not a GSA HOTD employee or representative, a fortiori, there

likewise can be no dispute that he lacked the authority to grant Frank Stotmeister access to

Manhole 11. 35

Even if Thomas Johnson directed Frank Stotmeister to shut down or turn on the steam-

line valve in Manhole 11 it was unreasonable for Stotmeister to take it upon himself to

accomplish that task under the circumstances. The evidence reflects that Thomas Johnson lacked

any expertise to direct the specific means by which the steam system or a steam-line valve

should be shut down or turned back on. Thomas Johnson did not “have any role on the job with

respect to turning steam on or off” -- he simply “coordinate[d]” steam shutdowns when Grunley-

Walsh needed them. Exs. In Supp. of Stotmeister Pls.’ Mem. of P. & A. In Opp’n to Mots. for

Summ. J. Ex. 70, Bassem Soueidan Dep. 182:5-182:11 (Mar. 16, 2007) [ECF No. 206-5].

Thomas Johnson’s role with respect to the 17th Street Steam Distribution Project was managerial

and involved administrative responsibilities like scheduling, the approval of requisitions, and

negotiating change orders. Exs. In Supp. of Stotmeister Pls.’ Mem. of P. & A. In Opp’n to Mots.

35
It is a long-standing principle of government contracting that “[w]hatever the form in
which the Government functions, anyone entering into an arrangement with the Government
takes the risk of having accurately ascertained that he who purports to act for the Government
stays within the bounds of his authority.” Federal Crop Ins. Corp. v. Merrill, 332 U.S. 380, 384
(1947). “And this is so even though . . . the agent himself may have been unaware of the
limitations upon his authority.” Id. Consequently, even assuming for the sake of argument that
Thomas Johnson could be deemed a government agent or representative, because Johnson’s
request to shut down and turn on the steam was outside the scope of Grunley-Walsh’s contract,
the request arguably would have constituted a new request for work, which would have resulted
in a new agreement (whether by a change order or otherwise) for which Grunley-Walsh, and
Frank Stotmeister, bore the burden of ensuring that Johnson was acting within the bounds of his
actual authority. Id.

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for Summ. J. Ex. 71, Bassem Soueidan Dep. 110:11-110:16 (Jan. 18, 2008) [ECF No. 206-6]; id.

at Ex. 38, Richard Matkins Dep. 182:8-182:14 (Dec. 12, 2007) [ECF No. 204-5] (stating that

Thomas Johnson “was in management” and “was suit and tie” versus working in manholes).

Thomas Johnson had no steam experience, no understanding about the implications of, or the

purpose for, the GSA plumbers’ request to turn the steam off on April 23, 2004, and he did not

understand what water hammering was. J.A. In Supp. of Joint Mot. for Summ. J. Ex. P, Thomas

Johnson Dep. 96:6-96:19, 121:8-123:17, 151:2-151:17 (Feb. 4, 2008) [ECF No. 162-9]; Third

Party Def. U.S.’s Combined Reply In Supp. of Mot. for Summ. J. Ex. 6, Thomas Johnson Dep.

427:8-427:17 (Nov. 17, 2010) [ECF No. 106-2]. As Bassem Soueidan explained, Thomas

Johnson did not “manage [Grunley-Walsh’s] operations” but, instead, “basically” acted as “the

liaison between the Government and the contractor.” J.A. In Supp. of Joint Mot. for Summ. J.

Ex. B, Bassem Soueidan Dep. 70:9-70:16 (Mar. 16, 2007) [ECF No. 161-2]. There is no

evidence to contradict this.

There also is no evidence indicating that Thomas Johnson ordered Frank Stotmeister to

personally operate the steam-line valve in Manhole 11. To the contrary, the record reflects that

Thomas Johnson understood that only GSA HOTD could turn the steam on and off 36 and that

Frank Stotmeister did “whatever was in the requirements to have it turned off at manhole number

11,” 37 implying that Johnson believed Stotmeister followed Grunley-Walsh’s contract

requirement to contact GSA HOTD to request a steam-system shut down or to turn on the steam-

36
Exs. In Supp. of Stotmeister Pls.’ Mem. of P. & A. In Opp’n to Mots. for Summ. J. Ex.
30, Thomas Johnson Dep. 66:6-66:11 (stating that “[i]t’s their system” so “[t]hey have to turn it
on and off”), 81:5-81:15 (Mar. 12, 2007) [ECF No. 203-2].
37
Exs. In Supp. of Stotmeister Pls.’ Mem. of P. & A. In Opp’n to Mots. for Summ. J. Ex.
31, Thomas Johnson Dep. 143:8-143:21 (Feb. 4, 2008) [ECF No. 203-3].

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line valve in Manhole 11. The evidence shows that Thomas Johnson did not view himself as

having either the contractual responsibility or the contractual authority to contact GSA HOTD to

request a steam shut down during the water line tie-in project because there was no contract

between his employer, Alion, and GSA HOTD, whereas there was such a contract between

Frank Stotmeister’s employer, Grunley-Walsh, and GSA HOTD:

Q As you know, in the GSA report they indicate that only HODT [sic] was
to turn off the steam, correct?

A Correct.

Q And you read that in the report, right?

A That’s correct.

Q And did you know that on April the 22nd of --

A I did.

Q Knowing that, did you call HODT [sic] to ask about turning off the steam?

A No.

Q Knowing that, did you call anybody from GSA about turning off the
steam?

A No.

Q Knowing that, why did you not ask somebody from HODT [sic] to turn off
the steam?

A Because I wasn’t involved in the [water line tie-in] project, so how could I
ask them to turn something off in a project that I’m not involved in? They
would not have recognized it. They would not have known who I -- they
may not know who I was. They understood who Frank was. They
understood that Frank had a project going on out there, so he was the
contact between HODT [sic] and the steam at the time.

Exs. In Supp. of Stotmeister Pls.’ Mem. of P. & A. In Opp’n to Mots. for Summ. J. Ex. 31,

Thomas Johnson Dep. 97:13-98:16 (Feb. 4, 2008) [ECF No. 203-3]. The evidence further shows

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that Thomas Johnson’s only prior communications with GSA HOTD regarding steam system

shut down requests were purely ministerial to confirm that White House officials approved of the

timing of a shut down that Grunley-Walsh had requested from GSA HOTD during a project

progress meeting. Exs. In Supp. of Stotmeister Pls.’ Mem. of P. & A. In Opp’n to Mots. for

Summ. J. Ex. 31, Thomas Johnson Dep. 98:17-106:20 (Feb. 4, 2008) [ECF No. 203-3]. The

record is devoid of any evidence that Thomas Johnson ever made such a request himself. As

Greg Westphal, the GSA HOTD mechanical engineer responsible for “coordinating steam

outages with customer buildings” 38 testified:

Q And, as of April 2004, was Tom Johnson, as project manager of the 17th
Street project, allowed to ask the government for a steam shutdown?

A The contractor [Grunley-Walsh] would request the shutdown during our
progress meetings, so he [Johnson] wouldn’t actually make the request.
The contractor would – would made the request to the government.

Exs. In Supp. of Stotmeister Pls.’ Mem. of P. & A. In Opp’n to Mots. for Summ. J. Ex. 94, Greg

Westphal Dep. 33:8-33:16 (Apr. 13, 2010) [ECF No. 207-21].

Furthermore, even if Frank Stotmeister believed that he was being directed to personally

operate the steam-line valve in Manhole 11, it was unreasonable for him to do so without ever

alerting Thomas Johnson that he lacked the expertise, experience or contractual authority to do

so. There are times when common sense must prevail and this certainly was one of them in light

of the unusual circumstance involving the steam tunnel flooding, the danger involved, the fact

that Frank Stotmeister was the supervising contractor responsible for the construction activities --

38
Exs. In Supp. of Stotmeister Pls.’ Mem. of P. & A. In Opp’n to Mots. for Summ. J. Ex.
91, Greg Westphal Decl. ¶ 2 [ECF No. 207-18] (stating that “I was the mechanical engineer for
Steam Distribution, with duties that included managing projects, coordinating steam outages
with customer buildings, and locating drawings for other utilities working near the system”).

--53--
and safety -- at the time, and the fact that Frank Stotmeister was knowledgeable about steam

systems, whereas Thomas Johnson was not. If Frank Stotmeister was being asked to do

something he did not know how to do he should have notified Thomas Johnson of that fact or

sought appropriate guidance about how to safely accomplish the task by contacting officials at

GSA HOTD or perhaps even subcontractor M&M Welding.

The notion that Grunley-Walsh officials, including Frank Stotmeister, were patsies who

felt obligated to blindly follow government directives simply does not hold up against the

evidence. From the outset of Grunley-Walsh’s contracting relationship with GSA, Grunley-

Walsh officials questioned government directives or performed in a manner that contravened

government orders. For example, about six months after Grunley-Walsh was awarded the

contract for the 17th Street Steam Distribution Project, Grunley-Walsh officials refused to

perform the contract as awarded and told GSA “there is no way we can do what they’re asking

for.” Exs. In Supp. of Stotmeister Pls.’ Mem. of P. & A. In Opp’n to Mots. for Summ. J. Ex. 70,

Bassem Soueidan Dep. 118:16-118:21 (confirming date contract was awarded), 120:19-20

(quote) [ECF No. 206-5]. In addition, as discussed supra Part III, Grunley-Walsh officials,

including Frank Stotmeister, 39 were twice rebuked for shutting down parts of the steam system

contrary to government directives prohibiting them from doing so. The Court therefore is not

swayed by the plaintiffs’ argument that “Mr. Stotmeister may even have believed that he would

be labeled as uncooperative if he objected to the request” made by Thomas Johnson to turn the

39
Bassem Soueidan testified that Frank Stotmeister attended a meeting during which the
prohibition on shutting down steam was discussed and Soueidan himself told Stotmeister that the
steam was not to be shut down again. J.A. In Supp. of Joint Mot. for Summ. J. Ex. D, Bassem
Soueidan Dep. 58:8-60:18, 71:10-72:15 (May 25, 2010) [ECF No. 161-4].

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steam off or on. Pls.’ Mem. of P&A In Opp’n to Defs.’ J. Mot. for Summ. J. On Issue of

Contributory Negligence 7 [ECF No. 196].

Generally, the law has been reluctant to endorse a plaintiff’s blind adherence to an order

or directive when alternative methods to execute the directive are available but the plaintiff

chooses to proceed in a way that demonstrates a lack of due care for his own safety. Thus, for

example, in Wasilko v. United States, 300 F. Supp. 573 (N.D. Ohio 1967), a federal district court

held that a pilot who was killed when his plane crashed after taking off from an airport runway in

the wake of a large airliner was not relieved of his own contributory negligence despite relying

on a clearance that control-tower personnel negligently issued without warning the pilot of the

risk of airliner wake turbulence. 300 F. Supp. at 598. The court in Wasilko concluded that:

The clearance to use an intersection takeoff did not relieve Pilot Wasilko from his
final authority and responsibility in the control and operation o[f] his plane. Nor
was the intersection takeoff clearance an order that he was blindly bound to
follow. He had the right to ‘use either another point on the runway or the full
length of the runway,’ FAA Flight Information Manual, Air Traffic Control
Procedures, promulgated September, 29, 1961, and Tower Information Bulletin,
Cleveland Hopkins FAA Tower Facility. To pilot his plane under the
circumstances found to have then existed, knowingly behind TWA 224 and
beneath its flight path, was a failure to exercise care for his own safety and
constituted negligence on the part of Pilot Wasilko.

Id. at 598.

Likewise, in Gish v. CSX Transp., Inc., 890 F.2d 989, 992-93 (7th Cir. 1989), the Seventh

Circuit affirmed a district court’s determination that there was sufficient evidence to support a

jury verdict finding that a pipefitter was contributorily negligent for the back injuries he suffered

when he tried to remove a wedged manhole cover to execute an order to clear a clogged sewer

line. The Seventh Circuit noted in Gish that there were multiple methods to remove the lid

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safely and the jury was not required to believe that the supervisor ordered the pipefitter to

proceed in the manner the pipefitter chose. 890 F.2d at 993.

Consistent with these cases, in Alholm v. American Steamship Co., 144 F.3d 1172, 1179

(8th Cir. 1998), the Eighth Circuit rejected a plaintiff’s argument on appeal that “because he was

following orders the jury should not have been permitted to find him comparatively negligent or

to consider whether there was a safe alternative course of action at the time . . . .” In Alholm, the

plaintiff was a deckhand on a ship who suffered back injuries after holding a heavy cable while

the ship was being re-docked. 144 F.3d at 1179. After stating that precedent did “not establish a

blanket rule precluding a seaman from being found contributorily negligent when acting at the

direction of a supervisor,” the Eighth Circuit went on to find that there was sufficient evidence

for the jury to conclude that the plaintiff chose the method of accomplishing the task and chose a

less safe alternative that contributed to his injury. Id.

In a more recent case, albeit one that is unpublished, the Fifth Circuit in Pallis v. United

States, No. 09-40088, 2010 WL 785171 (5th Cir. 2010) (per curiam), reviewed a district court’s

determination that a seaman was 75% contributorily negligent for injuries to his knee sustained

while carrying out a supervisor’s order to move trash on a ship. 2010 WL 785171 at **2-3. The

facts revealed that, after being directed to move the trash, the seaman asked for help with bulky

items and inquired about using a crane but was told that assistance was not available, the crane

was not working, and chainfalls could be found throughout the ship to lift heavy objects. Id. at

**1. The seaman was injured while carrying a 50-pound steel plate to an upper deck and argued

on appeal that he had no obligation to find the safest means to perform the supervisor’s directive

to move trash. Id. at **1, 3. Unpersuaded by the seaman’s argument that “the district court

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erred when it found him contributorily negligent because he was following orders,” the Fifth

Circuit quipped that the plaintiff’s argument “would make automatons of seaman” and conflicted

with its prior precedent holding that “[a]lthough a seaman may not be obligated to find the safest

method of performance . . . he has a duty to exercise the judgment and acumen of a seaman with

like experience in like circumstances.” Id. at **3 (citing Gautreaux v. Scurlock Marine, Inc.,

107 F.3d 331 (5th Cir.1997) (en banc)). Consequently, the Fifth Circuit affirmed the district

court’s conclusions that “because [the seaman] elected to move the object that caused his injury,

rather than moving lighter items until assistance became available, he contributed to his injury”

and “[he] could have used available chainfalls, but chose not to do so.” Id.

In Atchison, T. & S.F. Ry. Co. v. Seamas, 201 F.2d 140 (9th Cir. 1952), the Ninth Circuit

explained that, when an employee receives a general order about what is to be done, but not a

specific order about how to do it, “an employee must use ordinary care in its execution, and the

giving of the order does not affect the question of whether the servant has been negligent in his

manner of carrying it out, where there is a choice open to him.” 201 F.2d at 144. The Ninth

Circuit’s decision in Jenkins v. Union Pacific R.R. Co., 22 F.3d 206, 211 (9th Cir. 1994) is in

accord, stating “[w]e continue to adhere to the traditional rule that when an employee carries out

his supervisor’s general order in an unsafe manner, he is responsible under [the Federal

Employer’s Liability Act] for his own contributory negligence.” 40

Courts have, however, carved out an exception to contributory negligence when an

employee is complying with a superior’s specific order, which applies when the employee is

40
In Collins v. National R.R. Passenger Corp., 9 A.3d 56 (Md. 2010), the Court of Appeals
of Maryland cited with favor the Ninth Circuit’s decision in Jenkins, suggesting that Maryland
courts would follow the specific order versus general order principle, at leas

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/2720439. Public record. Not legal advice.