Petition for a Writ of Certiorari — Brezina Construction Co. v. United States

QUESTIONS PRESENTED FOR REVIEW

REASONS FOR GRANTING THE WRIT

POINT IL.

THE HOLDINGS OF THIS COURT IN

RYAN AND WEYERHAEUSER APPLY TO

NON-ADMIRALTY CASES

Circuit Court of Appeals Judgment and

Opinion

Memorandum Decision and Order of the United

States District Court for the District of Utah,

Central Division

TABLE OF CASES CITED

tkford v. Sioux City Dressed Pork, Inc.,

118 N.W.2d 559 (Iowa 1962)

= Bower & Johnson Construction Co. v. White,

| 255 F.2d 482 (5th Cir. 1958)

City of Ft. Scott v. Penn Lubric Oil Co.,

| 252 P.268 (Kan. 1927)

G dy v. Jaochin Hendrik Fisser, 358 U.S.

oS _ 79 S.Ct. 445 (1959)

Eliott Consolidated School District v. Busboom,

& 227 F.Supp. 858 (S.D.Iowa 1964)

Peres v. United States, 340 U.S. 135,

eS Tl "S.Ct. 153 (1950)

peneral Electric Co. v. Moretz, 270 F.2d

= 730 - soregeedl Cert. Denied 361 US, 964

ita. Anzioni di Navigazione v. Oregon

S Stevedoring Co., 376 US. 315 84 S.Ct. 748 (1964)

De Aircraft . v. Hartman-Hanks-Walsh

a Pesnting Co., 323 W.2d 788, (Mo. 1959)

INDEX Continued

Page

Moroni v. Intrusion-Prepakt, Inc., 24 Tll. A

og ne Rens ee _ 10

hee Ine. v. Pan-Atlantic Steamship

., 850 'S. 120, 76 S.Ct, 282 (1956) 20. 2

Smits Pela Serv Ine. v. Monsanto Chemical

Co., 420 F.2d 1108 10

Construction Co, v. United States,

872 US. 712, 88 B.ce 1102 (1968) 9

Waterman S.S. Corp. v. Dugan & MacNamara, Inc.,

864 U.S. 421, 81 S.Ct. 200 (1960) 9

Westchester Co. v, Westchester County

Small ee 278 N.Y, 178,

15 N.E.2d 567 (1988) 8

Weyerhaeuser ip Co. v. Nacirema Operating

Co., Ine., 355 U.S. B68, 78 S.Ct. 488 (1958) .... 2,8

Weyerhaueser Steamship Co, v. United States,

872 U.S. 597, 88 S.Ct. 926 (1968) .

AUTHORITIES CITED

28 U.S.C.A. 1254(1) 2

IN THE

SUPREME COURT OF THE

UNITED STATES

October Term, 1972

No.

BREZINA CONSTRUCTION CO., INC.,

a corporation, and NIELSEN SCOTT CO.,INC.,

Petitioners,

vs.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

A writ of certiorari is respectfully sought to re- -

view the judgment and opinion of the United States

Court of Appeals for the Tenth Circuit, entered in the

-above-entitled case on July 27, 1972.

OPINIONS BELOW

The opinion of the United States Court of Appeals

for the Tenth Circuit has not been officially reported.

The judgment and opinion of the Court of Appeals for

the Tenth Circuit was made and entered on July 27,

1972, and a copy is appended to this petition (Appendix

A).

The Memorandum Decision and Order of the Unit-

ed States District Court for the District of Utah, Cer-

pended to this petition (Appendix B).

JURISDICTION

Jurisdiction is invoked under 28 USCA. 1254(1),

which statutory provision is believed to confer on this

Court jurisdiction to review the judgment below.

QUESTIONS PRESENTED FOR REVIEW

The District Court and the Court of Appeals held

that the decisions of this Court in Ryan Stevedoring

Co., Inc. v. Pan-Atlantic Steamship Corporation, 350

US. 120, 76 S.Ct. 282 (1956) and Weyerhaeuser

Steamship Co. v. Nacitrema Operating Co., Inc., 355

U.S. 568, 78 S.Ct. 488 (1068) were applicable to only

maritime cases and that the principles enunciated in

those decisions would not apply te non-maritime cases.

The question presented by this Petition is:

1. Are the principles of Ryan and Weyerhaeuser

limited to maritime cases or are they applicable also to

non-maritime cases?

STATEMENT OF THE CASE

This is a diversity case.

On December 28, 1965, Third Party Plaintiff, Bre-

zina Construction Co., Inc, (hereafter referred to as

_ Brezina) entered into a written contract with the Unit-

ed States by the terms of which Brezina was required

to do certain remodeling work on Building 1219, among

others, Hill Air Force Base, Utah. Deseret Architects

& Engineers under a written contract with the United

States prepared detailed plans and specifications for

ees aca thnsee Tie elamenad apect

fications provided for a pull-down access stairway in

the ceiling to permit access into the area above the ceil-

_ ing where equipment was installed. (Ex. 16, 17, 18, 19,

20, 21) Brezina entered into 9 written subcontract

_ with the Third Party Plaintiff, Nielsen Scott Co., Inc.

(hereinafter referred to as Nielsen) by the terms of

_ which Nielsen was required to and did install said ac-

_ cess stairway as called for by the plans and specifica-

_ tions. (R. 65-6)

~_ On or about March 8, 1967, Richard E. Barr, the

_ plaintiff, was on active duty with the United States Air

~ Force and was stationed at Hill Air Force Base, Utah.

~ On said day as a part of his regular duties he was in

- Building 1219 making an inspection of certain equip-

_ ment installations above the ceiling. He obtained access

~ to the ceiling area by using the access stairway that had

~ been installed by Nielsen. The access stairway was in-

stalled as per plans without a platform or a guardrail

- _at the head of them. After plaintiff, Richard E. Barr,

~ tompleted his inspection tour, he was in the process of

_ attempting to get on the stairway to descend to the floor

_ below when he allegedly caught his foot on a bolt or in

Some manner lost his balance causing him to fall

_ through the ceiling to the concrete floor below. As a re-

of said fall, plaintiff received serious and perman-

injuries. After the accident, the Air Force installed

= and guardrail at the head of the stairs. (Ex.

This action was commenced by plaintiff to recover

for the injuries he received in said accident.

8

stairway was defectively designed in that it did not

have.« platform or a.guardrail et the head of it. (R.

59-63).

Brezina and Nielsen filed Third Party Complaints

against the United States claiming among other things

that the plans and specifications alleged to be defective

were furnished by the United States and that it knew

or should have known of the dangerous design of the

stairway in that it did not have a platform or a guard-

rail at the head of it (Atkinson Dep. 26-29) and in ad-

dition Brezina and Nielsen claim that during the course

of construction and prior to the plaintiff’s accident,

that they specifically called to the attention of the

United States the fact that the stairway was so design-

ed as to create a dangerous condition and requested per-

mission to correct the dangerous condition by installing

a platform and a guardrail at the head of the stairway.

The United States refused this request and instructed

Brezina and Nielsen to install the same in the manner

that they were in fact installed. (R. 64-7).

Immediately prior to the trial of the case Brezina,

Nielsen, and the architects paid plaintiff $60,000.00 in

settlement of all of his claims, Of that amount Brezina

paid $22,500.00 and Nielsen paid $22,500.00.

It is the position of Brezina and Nielsen that they

have a right of indemnity against the United States for

the amounts they paid plaintiff in settlement of plain-

tiff’s claim. The trial court dismissed the Third Party

Complaints against the United States on the following

grounds:

(1) That since plaintiff was a member of the

4

armed forces on active duty at the time

of injury and therefore could not recover

from the United States under the Tort

Claims Act, such action being precluded

by Feres v. United States, 340 U.S. 135,

71 S.Ct. 153 (1950), that it follows there

could be no right of recovery by Brezina

and Nielsen against the United States on

the theory of indem.ity.

(2) That the principles of Ryan and Weyer-

haeuser as to implied indemnity had ap-

plication only in a maritime case and

therefore were not applicable in this case.

As to the first ground for dismissal of the third

party claims, the Tenth Circuit disagreed with the

trial court and held that the exclusive remedy under

Feres of a serviceman against the government did

not preclude a third party (Brezina and Nielsen)

from seeking indemnity against the government and

that the reasoning of the Ryan body of law was appli-

cable so that a third party seeking indemnity is not

barred at the threshold.

As to the second ground for dismissal, the Court

of Appeals affirmed the trial court and held that the

principles of Ryan and Weyerhaeuser had applica-

_ tion only to maritime claims and therefore were not

applicable to the case at bar. We submit that the Su-

preme Court decisions of Ryan and Weyerhaeuser

hereinafter discussed are a complete answer to the

lower court’s ruling and that the principles of Ryan

and Weyerhaeuser are applicable and are controlling

in this case.

REASONS FOR GRANTING WRIT

This Court should review the decision below for

the following reasons:

1. The Court of Appeals for the Tenth Circuit

has decided a federal question in a way that is in con-

flict with applicable decisions of this Court.

2. There is a conflict in the decisions of the

Court of Appeals for the Tenth Circuit and Fifth Cir-

cuit and the Court of Appeals for the Fourth Circuit

in that the Tenth and Fifth Circuits hold that Ryan

and Weyerhaeuser are applicable only in admiralty

areas whereas the Fourth Circuit holds they apply

also in non-maritime cases.

POINT IL.

THE HOLDINGS OF THIS COURT IN RYAN

AND WEYERHAEUSER APPLY TO NON-AD-

MIRALTY CASES.

In Ryan a stevedoring contractor entered into a

formal stevedoring contract with Pan-Atlantic which

did not contain an express indemnity provision. An

employee of Ryan was injured when part of the car-

go broke loose aboard a Pan-Atlantic ship, which car-

go had been negligently secured by other employees

of Ryan. The employee sued Pan-Atlantic for his per-

sonal injuries, and Pan-Atlantic then sought indem-

nity against Ryan. This court held that the exclusive

remedy of the Longshoremen’s Act did not preclude

suit by a third party against the employer, Ryan.

The Tenth Circuit in the instant case held that

the reasoning of the Ryan body of law was applicable

and Brezina and Nielsen who had paid money to the

eluded from seeking indemnity by reason of the ex-

clusive compensation remedy of the serviceman.

This Court held that the stevedoring contract

tered into between Ryan and Pan-Atlantic contained

essence, the Court implied two contracts on the basis

of the relationship of the parties: (1) the implied

warranty to perform services in a workmanlike man-

ner, and (2) an implied agreement of indemnity for

the breach of warranty. This Court in so holding

said:

”The shipowner’s action here is not found-

ed upon a tort or upon any duty which the stev-

third-party complaint ie groumtel spon te

Siesta conga Sane cae

cargo in a reasonably safe manner.”

The holding of Ryan is controlling in the case

now before this Court. In Ryan there was a contract

between the stevedore company and the shipowner

for the stevedore company to stow the cargo. This

Court implied an agreement on the part of the stev-

edore company that it would use reasonable care in

80 doing. In the case now before this Court, Brezina

had a contract with the United States under the

7

terms of which the United States was obligated to

furnish Brezina with plans and specifications for the

remodeling work. Here, as in Ryan, this should imply

an agreement on the part of the United States to fur-

nish plans and specifications that are free from de-

sign defects and in the event of a breach of this duty

to save the contractor (Brezina) harmless from the

United States failure to do so. It was because of the

defective plans and specifications furnished by the

United States that Brezina and its subcontractor

Nielsen incurred liability to the plaintiff. The Gov-

ernment further compounded its breach of duty to

furnish defect free plans and specifications by re-

fusing, after the defective and unsafe condition was

brought to its attention by Brezina and Nielsen, to

the contractors to construct a platform and

guard rail at the head of the stairway so as to render

it unsafe. The Government should, since it furnished

defective plans in the first place, in violation of its

duty and since it refused to permit the elimination of

the hazardous condition and ordered the contractor

to do the work as per plans and specifications, be re-

quired to indemnify the contractors for the loss they

sustained by reason of the plaintiff's injuries occa-

sioned by the defective plans.

Weyerhaeuser Steamship Co. v. Nacirema Op-

erating Co., Inc., 355 U.S. 568, 78 S.Ct. 438 (1958)

was a case where plaintiff as owner of a steamship

entered into a stevedoring contract with defendant

Nacirema. One of the defendant’s employees injured

while unloading a ship, brought an action against

Weyerhaeuser, and Weyerhaeuser sought to obtain

indemnity from Nacirema for damages payable to

8

For other decisions of this Court extending or

applying the Ryan rule see Crumady v. Jaochim Hen-

drik Fisser, 358 U.S. 423, 79 S.Ct. 445 (1959) ; Wat-

erman S.S. Corporation v. Dugan & MacNamara,

Inc., 364 U.S. 421, 81 S.Ct. 200 (1960) ; Italia Societa

per Anzioni di Navigazione v. Oregon Stevedoring

Co., 376 U.S. 315, 84 S.Ct. 748 (1964) ; Weyerhaeus-

er Steamship Co. v. United States, 372 U.S. 597, 83

S.Ct. 926 (1963); Treadwell Construction Co. v.

United States, 372 U.S. 772, 83 S.Ct. 1102 (1963) ;

McDonnell Aircraft Corp. v. Hartman-Hanks-W alsh

Painting Co., 328 S.W. 2d 788 (Mo. 1959) ; cf. West-

chester Lighting Co. v. Westchester County Small

Estates Corp., 278 N.Y. 178, 15 N.E. 2d 567 (1938).

The Fifth Circuit in several cases, an example

9

of which is Smith Petroleum Service, Inc. v. Monsanto

Chemical Co., 420 F.2d 1108, has held that the prin-

ciples of Ryan are applicable only to admiralty cases.

The Tenth Circuit in the case now before this Court

reached the same result. The Fourth Circuit, how-

ever, in General Electric Co. v. Moretz, 270 F.2d 780

(1959), Cert. Denied 361 U.S. 964, reached a con-

trary result and held that the doctrine of Ryan appli-

ed to a non-maritime case. Moretz involved a truck

driver who brought an action against a shipper for

personal injuries and the shipper made claim against

the motor carrier, the truck driver’s employer, to re-

cover indemnity. Reiying on Ryan, the Court conclud-

ed that an implied contract of indemnity existed and

that the shipper could recover any loss it suffered

occasioned by the neglect of the carrier. The Fourth

Circuit in reaching this result reviewed Ryan, Weyer-

haeuser, Crumady and other decisions of the Su-

preme Court.

In Elliott Consolidated School Disirict v. Bus-

boom, 227 F.Supp. 858 (S.D. Iowa 1964) the court,

relying on Ryan, allowed indemnity against a con-

tractor, reasoning that in a building and construc-

tion contract there was an implied agreement to per-

form in a workmanlike manner and in accordance

with the contract, and that a breach of this implied

agreement would justify indemnity. The Appellate

Court of Illinois in Moroni v. Intrusion-Prepakt, Inc.,

24 Ill. App.2d 534, 165 N.E.2d 346 (1960), relying

on Ryan, Weyerhaeuser, Nacirema and Crumady

held there was an implied obligation on the part of a

contractor to perform the work in a reasonably safe

manner and for the breach of which there was an im-

10

_ plied obligation of indemnity. To the same effect see

City of Ft. Scott v. Penn Lubric Oil Co. 252 P. 268

(Kan. 1927); Bower & Johnson Construction Co. v.

White, 255 F.2d 482 (5th Cir. 1958) ; Blackford v.

Sioux City Dressed Pork, Inc., 118 N.W. 2d 559

(Iowa 1962).

In reading the Ryan line of cases, there is noth-

ing in the opinions of the Supreme Court that indi-

cates an intent to restrict the doctrine of those cases

to admiralty situations. The principle in Ryan that

a stevedoring contractor impliedly agrees to do his

work in a workmanlike manner and that if he

breaches such implied warranty that he impliedly

agrees to indemnify the shipowner for any damage

sustained by the shipowner applies with equal force

whether it be an admiralty situation, as in Ryan, or

a shipper, motor carrier situation, as in the Fourth

Circuit decision of Moretz. In the case before this

Court the United States in performance of its con-

tractual duty furnished plans and specifications to

the contractor, Brezina. As in Ryan, the United

States should be held to have impliedly warranted

that the plans and specifications were free from de-

fect and for a breach of such implied warranty the

United States should be held to respond in damages

resulting to the contractor.

The Tenth Circuit decision is contrary to the in-

tent of the Supreme Court in the Ryan line of cases.

In view of the conflict between the Tenth and Fifth

Circuits on the one hand and the Fourth Circuit on

_ the other, this Court should review the decision of the

_ Tenth Circuit and lay at rest once and for all whether

_ Ryan is applicable to an admiralty case only or whe-

_ ther it has application in non-admiralty situations.

es 11

CONCLUSION

Petitioners respectfully urge this Court to grant

certiorari for the reasons stated above.

Filed in United States District

Court, District of Utah

Aug. 21, 1972

Andrew John Brennan

Clerk

No. 71-1661

APPENDIX A

JULY TERM — JULY 27, 1972

Before Honorable David T. Lewis, Chief Judge; and

Honorable John F. Kilkenny and Honorable William

E. Doyle, Circuit Judges.

BREZINA CONSTRUCTION CO., INC.,

a corporation, and NIELSEN SCOTT

CO., INC.

Defendants-Third-Party

Plaintiffs-A ppellants,

Vv.

UNITED STATES OF AMERICA,

Third-Party Defendant-

Appellee.

This cause came on to be heard on the record on

from the United States District Court for the

istrict of Utah, and was argued by counsel.

On consideration whereof, it is ordered that the

judgment of said court is affirmed.

HOWARD K. PHILLIPS, Clerk

By Helen R. Bartha

FILED

a

July 7, 1972.

Howard K. Phillips

Clerk

No. 71-1661

UNITED STATES COURT

OF APPEALS

TENTH CIRCUIT

JULY TERM, 1972

RICHARD Euieurk

BREZINA CONSTRUCTION CO., INC.,

a conpeeatith and NIELSEN SCOTT ”

Defendants and Third-

Party Plaintiffs and

Appellants,

UNITED ie OF AMERICA,

-Party Defendant

and aad Aveelics

APPEAL FROM THE UNITED STATES

DISTRICT COURT FOR THE DISTRICT

OF UTAH CENTRAL DIVISION

(D.C. No. NC 63-69)

ee ene

Inc.

P. Keith Nelson of Hanson, Brandt & Wadsworth (Rex J.

Hanson of Hanson, Brandt & Wadsworth, on the brief), for

Nielsen Scott Co., Inc.

Glenn J. Mecham, Assistant United States Attorney (C. Nel-

son Day, United States Attorney, on the brief), for United

States of America.

Before LEWIS, Chief Judge, KILKENNY* and DOYLE,

Circuit Judges.

DOYLE, Circuit Judge.

* Of the Ninth Circuit sitting by designation.

14

Re

d the Nielsen Scott Company seek reversal of a judg-

ment denying their indemnity claim against the United

" Biates which sought recovery of sums paid by them to

_ Barr, the plaintiff, in the original suit. They paid the

- sum of $45,000.00 to Barr in settelement of his claim

~ for personal injuries allegedly caused by the negligence

_of the defendants. The theory of appellants in seeking

to shift responsibility is that the government furnished

for the structure built by them which was defec-

tive and unsafe, and which was the ultimate cause of

the injury to Barr.

» The trial court dismissed the third-party com-

plaint, holding that Barr as a serviceman on active duty

was precluded from direct recovery against the United

States by way of the Tort Claims Act/ under the doc-

trine of Feres v United States, 340 U.S. 135, 71 S.Ct.

158 (1950) ;? in the light of this, the court further held

_ the third-party plaintiffs to be legally circumscribed

by the rights of Barr and thus unable to obtain indem-

nity against the United States. An alternative holding

of the trial court as to why the action over failed was

that plaintiffs were guilty of active negligence while

aa United States was passive in the transaction.

___ The primary suit in this case was filed by Richard

E. Barr against Brezina and Nielsen as a result of in-

_juries which he suffered in a fall down an access stair-

way which had been installed by Nielsen, subcontractor

of Brezina, in Building 1219 of Hill Air Force Base in

—

“1, 28 U.S.C. §§ 1291, 1846, 1402, 1504, 2110, 2401, 2402, 2411, 2412, 2671-

2 Which case holds that the Military Claims Ast, 31 USC - $240 et

the exclusive remedy for the serviceman in line of

ea.

15

plaris and spetifications were furnished by the United

States.* - ae 4

The plaintiff Barr was shown to have been on ac-

tive duty with the Air Force at the time of the fall and

was at the time engaged in the performance of his du-

ties as an airman. He suffered serious injuries. The

deficiencies in the stairway were alleged to have been

first in the design — failure to provide a platform or

guardrail at the head of the stairway — and, second,

in the installation ; here there was exposure of bolts pro-

truding above the surface of the 2” x 6” plate to which

the stairway was attached.

The third-party complaint maintains, as has been

noted that the United States knew of the dangerous de-

sign of the stairway and that in fact the defendants-

third-party plaintiffs specifically called attention to

the design deficiency, but were instructed to continue

with construction according to the design.

I.

The Feres doctrine limits a serviceman claimant

seeking recovery against the United States to his rem-

edy under the Military Claims Act. He cannot pursue

the United States under the Federal Tort Claims Act,

28 U.S.C. § 1346(b), because his remedy against the

United States under the Military Claims Act is exclu-

sive of all other remedies. But it does not follow that a

Bp a

t-third-party plaintiff who has been subjected

to liabiilty by a serviceman inherits, so to.speak, the

-Jimitations which apply to the serviceman, since his is

“gn independent remedy based on different considera-

e- ‘The Supreme Court in dealing with an sisi

‘gituation arising under the Longshoremen’s and Har-

bor Workers’ Compensation Act,‘ which Act provides

-an exclusive remedy in favor of the employee or seaman

“against his employer, has held that notwithstanding the

-exclusiveness of this remedy a third-party shipowner

“may maintain indemnity action against the longshore-

‘man’s employer, the stevedoring company, and is not

barred from prosecuting such an action by the exclu-

‘giveness of the remedy of the longshoreman. See Ryan

‘Stevedoring Co., Inc. v. Pan-Atlantic Steamship Corp.,

B50 U.S. 120, 76 S.Ct. 282 (1956); Weyerhaeuser

Steamship Co. v. Nacirema Operating Co., Inc., 355

US. 563, 78 S.Ct. 488 (1958) ; Treadwell Construction

Co. v. United States, 372 U.S. 772, 88 S.Ct. 1102

(1963).5

~The Supreme Court has not had occasion to con-

sider whether a third party who has paid money to a

serviceman who has been injured while on active duty

and while in the performance of his duty is also pre-

eluded by the exclusive compensation remedy of the

terviceman. The reasoning of the Ryan body of law

=r applicable so that a party seeking ed

raced ome oan an implied

authorizing m inotes

that the exclusive rem-

We concede

as

is not barred at the threshold. Merely because the third

party can sue, however, does not mean he is sure to re.

cover. The sweep of Ryan and Weyerhaeuser (assum-

ing for the moment that it applies) is not so broad that

it allows a recovery in the present fact situation. In

our judgment the trial cour't’s determination that the

third-party plaintiffs were not entitled to recover was

@ correct ruling,

' The joint brief of the third-party plaintiffs admits

that the instrumentality which caused the injury and

which was created by them was dangerous and was

known by them to have been dangerous at the time.

They write:

t,

the attention the United States the fact that

the stairway was so designed as to create a dan-

gerous tion and requested permission to cor-

rect the dangerous condition by installing a plat-

form and a guardrail at the head of the stairway.

The United States refused this request and in-

structed Brezina and Nielsen to install the same

in the manner that they were in fact installed.

Thus, while acknowledging that they gave the

United States full notice of the danger and thus

knew of the hazard, they seek to wash their hands of

blame and shift it to the United States. They argue that

the government’s conduct in ordering them to proceed

with the construction while knowing that it would re-

sult in a faulty product gave rise to an implied promise

or an implied warranty to indemnify in the event of

personal injury resulting from the defect.

The appellants’ implied contract or implied war-

ranty theory would appear to have been designed and

18

erated at this appellate level, for it does not appear

ee es & the pretrial onder or the judge's

clusions that this tack was used at trial. From these

2 5 we gather that appellants were there proceeding

/ @s sought indemnity against the respective stevedor-

{ng companies for having to pay damages to injured

“employees of the stevedores. The Supreme Court ruled

that there had been indeed an implied warranty from

the stevedoring companies to the shipowners in which

“the former undertook to use care in loading the cargo.

sound. They then reason that when they saci to the

“attention of the government the deficiencies in the

ins, showing that construction thereby was certain to

in a hazardous stairway, there arose an implied

{promise on the part of the government to indemnify or

“compensate appellants for such damages as they were

| Pequired to pay for injuries incurred in using the stair-

way when the government told appellants to proceed

a. construction according to plan.

II,

Appellants’ effort to transplant the Ryan body of

law so as to make it applicable to our situation fails

: n itially because the facts and posture of the parties are

; different. Here the government is in much the

position as the shipowner in Ryan, whereas the

sition of appellants i is not unlike that of the stevedor-

ig company in Ryan. Thus, the roles are reversed and,

alously, we have in effect the stevedoring com-

19

Se aemetan at tenn

ei i en

i

a HE

be

PAG it

fields. See, for example, Smith Petroleum Service, Inc.

v. Monsanto Chemical Co., 420 F.2d 1103, 1107 (5th

Cir. 1970). There the Fifth Circuit thoroughly consid-

a

ay

i!

_»» ‘Our court has also had occasion to consider the ap-

plicable law in another indemnity case in which a some-

what similar attempt was made to subject the United

States to liability. This was in Morris v. Uhl & Lopez

Bagineers, Inc., 442 F.2d 1247 (10th Cir. 1971). We

held that insofar as indemnity was sought on a tort

basis, the matter was governed by the law of New Mex-

ico. However, a right to indemnity was also asserted in

the Morris case in alleged contract to indemnify. As to

this, the court was careful to point out that the liberal

warranty recognized in the Ryan group of cases was

' to the relationship of stevedore and shipowner.

court expressed doubt as to its applicability to fact

situations other than cargo handling and unseaworthi-

ness of the vessel, but went on to rule that even if it

were applicable, the facts did not give rise in that case

to a contractual right in the United States to recover

indemnity.

The Ryan logic is inapplicable based as it is on the

special and unusual relationships and the problems aris-

ing therefrom which are peculiar to the shipping in-

dustry ; federal common law understandably applies in

_ Ryan cases. There is no justification, however, for sup-

erimposing that body of law on the present controversy,

which is a simple indemnity demand growing out of

the Federal Tort Claims Act, which is in its substantive

aspects essentially governed by state law.

Il.

We see no error in the trial judge’s approach to

the tort problem which was before him, namely, the

passive and active role of the tortfeasors as the test, and

in our judgment the correct result emerged. We have

21

no doubt that the court was correctly applying Utah

law, and we do not here question the judge’s knowledge

of it. It seems desirable, though, in view of the expand-

ed contentions of the appellants — we refer to their

arguments that an implied warranty or contract em-

erged from its communications with the government —

to discuss the problem somewhat.

It is relevant to consider a more specific test, name-

ly, appellants’ proceeding with the construction of the

stairway in question notwithstanding their having full

knowledge that they were creating a hazard likely to

produce harm to one using it. The law of Utah is ex-

pressed in Barrus v. Wilkinson v. St. Paul Fire and

Marine Insurance Company of St. Paul, Minnesota, 16

Utah 2d 204, 398 P.2d 207 (1965). In that case the les-

see’s employee recovered from the lessor damages for

injuries suffered in a hallway of the office building of

the lessor. Relying on an indemnity provision in the

lease, the lessor sought to recover the damages paid

out to the employee from the tenant-lessee, St. Paul Fire

and Marine Insurance Company. It was pointed out by

the Utah court that the agreement did not clearly ex-

press an undertaking to indemnify the defendants-

third-party plaintiffs-lessor from their negligent acts

and, therefore, since the lessor was shown to have been

negligent, it could not recover. A very recent opinion

of this court in Kansas City Power & Light Co. v. Unit-

ed Telephone Co. of Kansas, Inc., 458 F.2d 177 (10th

Cir, 1972), reached the same result.®

The cases are uniform in holding that an indem-

nity agreement will not be construed so as to create a

8. However, Kansas law was there involved.

22

to indemnity for loss resulting from one’s own

te unless the stipulation so to indemnify is

ly and unequivocally set forth in the contract. See

Engineers, Inc. v. Job, 370 F.2d 633 (8th

ir. 1966), wherein Judge Blackmun, now Mr. Justice

Black gave effect to a clause which promised in-

-@emnity even from negligence. In the course of the opin-

jon there it was stated that absent such an explicit con-

- tract the negligence of the indemnitee bars his recovery.

also General Acc. Fire & Life Assur. Corp. v. Fine-

and Burgess, Inc., 351 F.2d 168 (6th Cir. 1965) ;

rs Mut. Liab, Ins. Co. v. Griffin Construction

280 S.W.2d 179 (Ky. 1955) ; Anthony v. Louisiana

@Arkonoas Ry. Co., 316 F-2d 858 (8th Cir. 1968), cert.

375 U.S. 830, 84 S.Ct. 74.

Considered from the standpoint that there was an

contract or promises to indemnify as urged by

we must again hold that appellants’ point

_ is not well taken, for there is not the slightest evidence

t an implied contract or promise on the part of

government to iudemnify in the event of injury. In

connection appellants’ position is less tenable in

; of the difficulty in implying a promise on the part

eens oie Soe ciguen eatin ao

» Appellants’ negligence in building a facility which

‘they knew was faulty precludes them on their other

‘daim, that of breach of implied warranty. As we view

it, the only available implied warranty is one which

‘warrants fitness or suitability of the plans. An implied

‘Warranty of indemnity would be the same thing as an

epeed contract or promise, The warrenty of fitness

fille Bor’ lack of reliance. ‘The plans were deficient and

appellants knowingly proceeded to build the stairway

nevertheless.

The cases hold that indemnity arising from alleg-

ed breach of implied warranty will not succeed where,

as here, the indemnitee knew of the deficiency and neg-

ligently acted in the face of the hazard which has been

present Cf. Williston on Contracts § 988. See, e.g. Mary-

land Casualty Co. v. Independent Metal Products Co.,

99 F. Supp. 862 (D. Neb. 1951) ; Plasikowski v. Arbus,

92 Conn. 556, 103 A. 642 (Conn. 1918).°

In Horrabin v. City of Des Moines, 198 Ia. 549,

199 N.W. 388 (1924), the court said:

One of the tests in determining whether

there may be contribution or indemnity in favor

of one joint wrongdoer against another is whe-

ther the former knew, or must be presumed to

have known, that the act for which he has been

held liable was wrongful.!° 199 N.W. at 990.

In summary then appellants’ third-party claim is

lacking in merit whether it goes forward as a species of

tort, as an implied contract, or as a breach of implied

warranty. As is pointed out by Dean Prosser, Law of

Torts, § 48 at 281, 3rd Ed. 1964, the indemnity action

calls for the shifting or transferring of responsibility

from the indemnitee to the indemnitor. The author

points out that this can come about as a result of the re-

lation of the parties to one another and the consequent

duty owed, or because of significant differences in the

9. Plestbowekt involved s chauffeur seeking indemnity from his em-

ve brakes. Indemnity there

was denied because the chauffeur knew of the hazardous condition.

10. See also “Indemnity Between N t Tortfeasors: A proposed

Rationale,” 37 Iowa Law Review 517, 1952.

24

COPY BOUND CLOSE IN CENTER |

aa

‘kind or quality or their conduct. In short, the doctrine

has an equitable quality.

~ . In the case at bar there is no contract, express or

implied. Further, there is no reason in the relationship

‘between the parties, or resulting from significant dif-

ferences in the conduct of the parties, which would jus-

tify the shifting of the burden of liability from appel-

lants to the United States. In sum there is no legal basis

discoverable on either land or sea capable of giving rise

to liability.

Accordingly, the judgment is affirmed.

POULSEN, and GEORGE C. ‘

YOUNG, dba DESERET a on.

AR | & ENGINEERS, amen

a co-partnership, THIRD-PARTY

nus Somer

a

NIELSEN SCOTT CO. INC, |

Third-Party Plaintiffs,

vs.

UNITED STATES OF AMERICA,

Third-Party Defendant.

The government has moved for a dismissal of third-

party claims and the motion has been argued and sub-

mitted. The court now deems itself fully advised.

COPY BOUND CLOSE IN CENTER

3 No express contract for indemnity being claimed

gad the court perceiving no implied contract from the

pleaded facts and the basic background accepted and

gonfirmed by the parties without dispute during oral

‘argument, it is concluded that no right to indemnity ex-

‘ists in view of the absence of any liability on the part of

the government to the injured person. Feres v. United

States, 340 US. 135, 146, 71 S.Ct. 158, 159, 95 L.Ed.

152. If the apparent division of authority pointed out

in the briefs would render this view tenuous, and I think

there are significant distinctions between this and the

‘eases relied upon by the third-party plaintiffs, it ap-

pears to me that the views expressed by the United

States Court of Appeals for the Tenth Circuit in Titan

Steel Corporation v. Walton, 365 F.2d 542 (10th Cir.

1966), construing Utah law should persuade the court

tp follow the line of authority disallowing indemnity

under the circumstances of this case. mang other

ee

[T]he 2a law draws a clear distine-

tion ton between . a covered employer to a

peration of law and lia-

ity reste whelly lientent contract .

<3. a5 ee

moe tang! y Fight, d t, duty or obligation arizing by op-

(ee ee a

grounds, it appears to me that it is both resolved and

rendered moot by a second reason for. the dismissal.

Basically the negligence claimed against the govern-

Ment is essentially of the same quality or type as that

m which recovery against the third-party plaintiffs

eet be obtained. A mere difference in degree, rather

than in the nature or quality of the negligence, would

not justify indemnity. If the negligence of the govern-

ment either in failing to give notice of danger or in dis-

covering the faulty design or otherwise were the sole

proximate cause of the injuries in question, the third-

party plaintiffs would have a complete defense to the

action without any necessity or justification of indem-

nity. If the third-party plaintiffs were jointly, succes-

sively or concurrently negligent by failure to warn of

a known danger or otherwise their negligence might be

different in degree but not in kind and there could be

no recovery of indemnity anyway, as to them liability

for failure to provide a safe place to work or some other

vicarious liability not being involved. Hardman v. Mat-

thews, 262 P.2d 748 (Utah 1953) ; Salt Lake City v.

Schubach, 159 P. 2d 149 (Utah 1945) ; Cf. Security In-

surance Co. of New Haven v. Johnson, 276 F.2d 182

(10th Cir. 1960) ; Safway Rental & Sales Co. v. Albina

Engine & Machine Works, 343 F.2d 129 (10th Cir.

1965). See also United States v. Acord, 209 F.2d 709

(10th Cir. 1954).

Accordingly, I am of the opinion that the third-

party complaints for indemnity against the United

States should be, and they are hereby, dismissed.

Dated this Ist day of February, 1971.

United States District Judge

A. Sherman Christensen