Unpublished Disposition, 872 F.2d 430 (9th Cir. 1987)

MEMORANDUM^* 

The government appeals from a judgment and award after a bench trial under the Federal Tort Claims Act. Pickering, the wife of an Army soldier, brought action for injuries she sustained at an Army-sponsored woodworking class. The government contends it was not negligent, but that even if it were negligent, the damages should be reduced because Pickering was herself negligent and that she assumed the risk of her injuries.

Factual and Procedural Background

Pickering was enrolled in a beginning woodworking shop at Fort Lewis in Tacoma, Washington. On February 6, 1985, while performing a cut with a table saw, Pickering severely injured her left index, middle fingers and thumb. The blade was not then protected by a guard although the guard, was replaced immediately after the accident. Pickering's instructor, Robert Frye, who was standing by her left side, commented that she had made a "nice cut." She claimed she did not hear what was said and turned to look at Frye. This caused her to shift her body and her hand came into contact with the saw blade.

On July 10, 1987, after a bench trial, the district court found the government to be negligent because of Frye's distracting comment and because of the government failing to properly warn Pickering of the specific dangers of using a table saw without a guard. The court concluded that this government negligence was the direct and proximate cause of Pickering's injury and that Pickering had not been negligent. The court awarded Pickering $152,445.00 in total damages, including special damages of $2,445.00.

Discussion

The determination of negligence is generally recognized as a mixed question of law and fact. Our review of negligence, however, is governed by the clearly erroneous standard. Hollinger v. United States, 651 F.2d 636, 639 (9th Cir. 1981). The applicable duty of care under the Federal Tort Claims Act is based on the law of the state where the negligent act occurred. Molsbergen v. United States, 757 F.2d 1016, 1020 (9th Cir.), cert. denied, 473 U.S. 934 (1985). Thus, Washington state law applies in the instant case.

The government argues that Frye did not distract Pickering because he followed the usual workshop practice of "talking students through the cuts", that is, standing by the students while they were using the saw and praising them after they had completed their cuts. In response, expert witness Freeman testified that it was unsafe to talk to someone while operating a table saw without a guard. With this conflicting view of the evidence, the finding of government negligence was not clearly erroneous.

In Washington, a "contributory fault" system works to reduce proportionately the amount of damages awarded to a plaintiff based upon the plaintiff's degree of fault. See Wash.Rev.Code Sec. 4.22.005. The government contends that Pickering was negligent in taking her attention away from the blade even though she was told not to respond to anything the instructor said during her cutting. But the district court explicitly found that Pickering was not negligent, and this finding is not clearly erroneous.

The government also argues that the district court erred in impliedly holding that Pickering did not assume the risk of her injury. The government, however, has failed to carry its burden of establishing the law and the facts on assumption of risk.

The judgment is AFFIRMED.

WIGGINS, Circuit Judge dissenting:

The majority has voted to affirm the judgment in favor of Pickering because I believe it feels bound by the applicable standards of review. We are required to judge the finding of negligence on a clearly erroneous standard. Although such a standard is highly deferential to the fact finder, it does not require that we overlook the clear import of uncontroverted facts. In my view, we disregard our responsibilities as a court of review in affirming a conclusion that is simply at odds with common sense.

The facts here are not disputed. Mrs. Pickering is an adult. She had received instructions at least twice regarding the dangers of the table saw. She was told to keep her hands away from the moving blade. She was carefully supervised in her operation of the saw. She had operated the saw safely on several prior occasions. At the time of the accident, Pickering was making a cut under the supervision of the instructor. He said, "Nice cut." Pickering evidently did not hear him and took her eyes from the table and turned toward the instructor. At that instant, the blade sliced into her hand.

The district court viewed these facts and concluded that the plaintiff was distracted by the comment made by the instructor, and that the instructor was negligent in making the statement. The district court also concluded that these facts disclosed no negligence on the part of the plaintiff.

I believe the district court's conclusions are simply wrong and I must dissent.

The primary responsibility for operating dangerous equipment safely rests with the operator. The first rule is for the operator to focus her attention on what she is doing and not permit herself to be distracted by others. If she did not hear the comment by the instructor, it was her responsibility to remove her hands from the vicinity of the blade before diverting her attention to the instructor. These are rules of common sense. A breach of these rules by an operator is negligence. The district court erred in concluding that the plaintiff was free from negligence under the circumstances present here.

The undisputed facts do not show the government to be blameless, however. The district court found the government's failure to provide a guard around the blade to be negligence contributing to the plaintiff's injury. I agree with this conclusion.

Accordingly, it is my view that this case should be remanded to the court below to recalculate damages on the basis of the comparative negligence of the parties.