Unpublished Disposition, 865 F.2d 264 (9th Cir. 1984)

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US Court of Appeals for the Ninth Circuit - 865 F.2d 264 (9th Cir. 1984)

Kelly FULLER, Plaintiff-Appellant,v.UNITED STATES of America, Defendant-Appellee.

No. 87-2883.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Nov. 16, 1988.Decided Dec. 13, 1988.

Before CHOY, O'SCANNLAIN and TROTT, Circuit Judges.


MEMORANDUM* 

Kelly Fuller appeals from a judgment in favor of the United States in his personal injury action under the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346(b), 2671 et. seq. The district court found Fuller 70% responsible and the United States 30% responsible for Fuller's injury and denied all recovery under Hawaii Rev.Stat. Sec. 663-31.

On appeal, Fuller contends the district court erred in (1) allocating a greater percentage of fault to Fuller, (2) failing to apply a statutory standard of care, (3) failing to find that the United States breached its duty to provide Fuller with a safe place to work, and (4) failing to find that the United States breached its duty to warn Fuller of a known, extreme danger. We have jurisdiction under 28 U.S.C. § 1291 and we affirm.

FACTUAL BACKGROUND

On February 6, 1984, Kelly Fuller, a locksmith, was sent to the Public Works Center ("PWC") at Pearl Harbor to make keys for an interlock on a high voltage electric substation referred to as D-6. Previously, another locksmith had gone out to the site to try to make keys for the same lock but he was unsuccessful. That locksmith was warned that the substation was "hot."

When Fuller arrived at PWC, he met Mr. Wyatt, the high voltage electrician foreman. Wyatt asked Fuller if Fuller knew what needed to be done and had been briefed by the other locksmith. Fuller replied that he understood the job. Two PWC employees escorted Fuller to D-6. They advised Fuller that he should let PWC know if he needed any further help. They then left Fuller at the site without telling him D-6 was energized. The front of D-6 had two signs pasted across each cabinet door stating "DANGER HIGH VOLTAGE." There was no noise or humming coming from D-6 and no meter inside the cabinet indicating the power was on.

Fuller tried but was unable to make a key for the interlock by the most common methods. He then went around to the back of the substation, intending to open the back panel and go through the cabinet to remove the lock. The back panel of the substation was secured with about 20 bolts, which were neither sealed nor welded. Fuller removed 17 bolts, pried open the back panel, and entered the cabinet. While reaching toward the lock and bolts, electricity arced and connected to him, hitting him with an electrical charge. He suffered electrical shock and burns to a portion of his body, causing some permanent injuries.

Fuller brought a personal injury action against the United States in the federal district court under the FTCA. The district court, after trial without a jury, concluded that the government was negligent for its failure to warn Fuller that the substation was energized. The court then determined that Fuller was 70% at fault for the accident and the government was only 30% responsible. The court entered judgment for the government under Haw.Rev.Stat. Sec. 663-31, which precludes recovery by a plaintiff whose negligence was greater than the negligence of the defendant.

STANDARD OF REVIEW

In FTCA actions, the substantive law of the state where the injury occurred is controlling. 28 U.S.C. §§ 1346(b), 2674. However, judgments under the FTCA are reviewed under a federal standard of review. Miller v. United States, 587 F.2d 991, 994 (9th Cir. 1978).

We review the district court's conclusions of law de novo; findings of fact are reviewed under a clearly erroneous standard. Allen v. Steele, 759 F.2d 1469 (9th Cir. 1985). Determining the applicable standard of care is a legal question subject to de novo review. Armstrong v. United States, 756 F.2d 1407, 1409 (9th Cir. 1985). The actual application of the legal standard to the facts, the determination of the ultimate issue of negligence, and the allocation of comparative fault is reviewed under the clearly erroneous standard. Trinidad Corp. v. S.S. Keiyoh Maru, 845 F.2d 818, 822 (9th Cir. 1988); Miller, 587 F.2d at 994.

DISCUSSION

Fuller argues that the district court erred in finding that there was no applicable statutory standard of care. At trial, Fuller offered four sets of statutes which he contended were applicable to PWC: the Hawaii Occupational Safety and Health Act (OSHA), Hawaii Public Utilities Commission General Order No. 7 (PUC No. 7), Federal OSHA regulations, and the National Electric Code (NEC). The district court applied a common law standard of care because it determined that these statutes do not apply to PWC's operations, at least with respect to substation D-6.

PUC No. 7 applies only to electrical utilities under the jurisdiction of the Hawaii PUC. PUC No. 7 Sec. 1.2. The statutes governing jurisdiction of the Hawaii PUC do not explicitly exclude federally owned utilities. Haw.Rev.Stat. Sec. 269-1 does not exclude federally owned utilities from the definition of a public utility. Section 269-31 limits applicability to utilities not owned by the state or its political subdivisions.

Arguably, however, if state-owned facilities are excluded, federally owned utilities would be excluded as well. In addition, there was trial testimony that no PUC inspectors had come out to the PWC in the past twenty years. If the Hawaii PUC had jurisdiction over PWC operations at Pearl Harbor, it would have exercised its jurisdiction by now. The district court correctly concluded that PUC No. 7 is not binding on the PWC.

The district court concluded that Hawaii OSHA does not apply to the federal government. Haw.Rev.Stat. Sec. 396-16, governing applicability of the state OSHA laws, states that OSHA does not apply to "working conditions of employees with respect to which any federal agency exercises statutory authority to prescribe and enforce standards...." The Navy has its own OSHA regulations and thus fits within this exception. There was also testimony at trial that Hawaii has not sought to enforce OSHA regulations against the United States at Pearl Harbor since implementation of the laws in 1975. The district court correctly determined that Hawaii OSHA does not apply.

Federal OSHA is not binding on military installations because the federal government is excluded from the definition of "employer." 29 C.F.R. Sec. 1910.2(c). The NEC is a model code which the federal government has not adopted as a national law. However, the Navy has incorporated federal OSHA and the NEC into its own safety regulations. The district court used these statutes as a guide in determining the common law standard of care because it found that "industry standards are determined in large part by these regulations" and "the common law standard of care and the statutory requirements track very closely." The district court then determined that PWC had not violated either statute.

Neither federal OSHA nor the NEC applies to electrical utilities or equipment on the supply side of distribution. 29 C.F.R. Secs. 1910.302(a) (2) (v), 1910.303(h) (1); NEC arts. 90-2(b) (5), 110-30. The district court found that PWC is an electrical utility and that substation D-6 is involved in the supply side of the distribution system. Fuller does not argues that this finding was incorrect and the finding is supported by the testimony of several witnesses. Fuller has the burden on appeal of showing that this finding is clearly erroneous. Glens Falls Indemnity Co. v. United States, 229 F.2d 370, 373 (9th Cir. 1956). Since he has not done so, we uphold the district court's determination that NEC and federal OSHA were not violated.

II. Breach of Duty to Provide Safe Place to Work

Fuller argues that the United States breached its duty to provide him with a safe working place because D-6 was inherently dangerous and the government's failure to comply with industry safety standards rendered D-6 extremely dangerous. Hawaii law requires that a private employer provide a safe place to work to anyone he allows to work on his premises, including employees of independent contractors, at least in situations for which the state OSHA laws clearly apply. Michel v. Valdastri, 575 P.2d 1299, 1302 (Haw.1978). This duty has been extended to cases for which Hawaii OSHA is inapplicable, if an employer permits a contractor to conduct an extra hazardous activity on the employer's premises. Barron v. United States, 473 F. Supp. 1077, 1082 (D. Haw. 1979) (interpreting Hawaii law), aff'd in part, rev'd in part, 654 F.2d 644 (9th Cir. 1981).

Fuller argues that substation D-6 was inherently dangerous because it contained high voltage electricity and that the substation was an extra hazardous work place because of PWC's failure to comply with industry safety standards. Specifically, he points to (1) the failure to provide Fuller with supervision by qualified personnel, (2) the failure to warn Fuller that the substation was turned on, (3) the presence of unsealed bolts on the rear panel of D-6; and (4) the presence of a warning sign on the front of D-6 which said "Danger High Voltage" but did not say "Keep Out." Fuller's expert witness testified that these specific violations of industry safety standards caused Fuller's accident.

This argument does not aid Fuller's appeal. Ordinarily, if the trial judge has erred in determining the appropriate standard of care, the ultimate finding as to negligence "does not pass muster under the 'clearly erroneous' test." Miller v. United States, 587 F.2d, 995 (9th Cir. 198?). In this case, however, the district court considered each of the alleged safety violations that made D-6 a possibly unsafe place to work. With the exception of PWC's failure to warn, the district court found that these violations were not the proximate cause of Fuller's injury. Assuming the government breached its duty to provide Fuller with a safe place to work, the district court already has made all the necessary findings to determine that this breach was not the proximate cause of Fuller's injury.

The district court's determination of proximate cause is binding on appeal unless clearly erroneous. Armstrong v. United States, 756 F.2d 1407, 1409 (9th Cir. 1985). Fuller does not offer any argument as to why the district court's determinations of proximate cause are erroneous, except to state that his expert witness testified the violations caused Fuller's injury. The district court, as trier of fact, is not bound by a witness' opinion regarding proximate cause if the opinion is contrary to the court's best judgment. Maison v. Confederated Tribes of the Umatilla Indian Reservation, 314 F.2d 169, 173 (9th Cir. 1963). Once again, Fuller has not met his burden on appeal to show why the findings of fact made by the district court are clearly erroneous. Glens Falls, 229 F.2d at 373.

Under Hawaii law, a landowner is required to use reasonable care for the safety of anyone reasonably anticipated to be on the premises, regardless of legal status. Farrior v. Payton, 562 P.2d 779, 786 (Haw.1977) (quoting Pickard v. City & County, 452 P.2d 445, 446 (Haw.1969)). This requirement includes a duty to warn of dangers not known or readily apparent to the plaintiff, which the plaintiff reasonably would not be expected to avoid. Poston v. United States, 396 F.2d 103, 108 (9th Cir. 1968); Friedrich v. Department of Transp., 586 P.2d 1037, 1040 (Haw.1978).

Fuller contends that the exception for known or obvious dangers does not apply if the danger at issue is extreme. He relies on language in Friedrich which states that " [w]here the government maintains land upon which the public are ... entitled to enter, it 'may reasonably assume that members of the public will not be harmed by known or obvious dangers which are not extreme....' " 586 P.2d at 1040 (emphasis added) (quoting Restatement (Second) of Torts Sec. 343A, Comment g (1965)). He argues that because D-6 contained high voltage electricity, it presented an extreme danger of which he should have been warned.

It is unnecessary to decide whether Hawaii imposes a duty to warn of obvious but extreme dangers because the district court did find that the government was negligent in failing to give a clear oral warning to Fuller. Mr. Wyatt, the high voltage electrician foreman, testified that the government's customary practice was to give safety warnings to any unqualified person who might come in contact with a high voltage substation. That the government had a duty to warn in this case is implicit in the district court's finding of negligence for failure to warn. It makes no difference whether the basis for finding the duty to warn was the extreme nature of the danger posed by D-6 or the government's failure to adhere to its general safety practices. Thus, any error the district court may have made in failing to recognize a duty to warn of obvious but extreme dangers was harmless.

Finally, Fuller argues that the district court committed clear error in finding that Fuller was 70% responsible for his injuries. However, he never directly attacks the overall allocation of fault. He argues that the district court applied incorrect standards of care. As we have discussed, these arguments are meritless. In addition, he contends that he did not act unreasonably. He then concludes that this court must remand to allow the district court to redetermine allocation of fault.

The district court's allocation of fault can be overturned only if it is clearly erroneous. Trinidad Corp. v. S.S. Keiyoh Maru, 845 F.2d 818, 822 (9th Cir. 1988). A finding is only clearly erroneous if " 'the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.' " Anderson v. Bessemer City, 470 U.S. 564, 573 (1985) (quoting United States v. United States Gypsum Co., 333 U.S. 364, 395 (1948)). We are not free to reverse the finding simply because we would have decided the case differently, as long as "the district court's account of the evidence is plausible in light of the record viewed in its entirety.... Where there are two permissible views of the evidence, the factfinder's choice between them cannot be clearly erroneous." Id. at 574.

After a complete review of the record, it cannot be said that the district court's allocation of fault was clearly erroneous. In addition to the findings on proximate cause and the government's failure to warn, the district court made two key findings which affected the allocation of fault. First, Judge Kay determined that a reasonable person would have inquired further before entering the cabinet, even if he thought that the substation was not energized, because the dangers of electricity are obvious and of common knowledge. Second, the court determined that the government reasonably could expect Fuller to report his failure to make keys by conventional methods before trying to remove the lock by going through the rear of the substation. These findings were supported by ample evidence in the record.

The district court did not commit clear error in determining that a reasonable person would have inquired further before entering the cabinet. There were signs on the front of D-6 indicating that the substation contained high voltage electricity. Fuller's employer testified that the presence of the warning signs alone would have caused him to ask the government prior to attempting to remove the lock by going through the cabinets. Fuller admitted that he had been instructed to contact the government if he needed further assistance. Mr. Wyatt testified that his office was only a mile and a half away from D-6, along a straight road with no turns, and that it would take about five minutes to drive from D-6 to his office. Fuller conceded that nothing prevented him from returning to Wyatt's office and asking Wyatt to have PWC employees let him in to the substation.

It would have been quite simple for Fuller to get into his truck and drive back to Wyatt's office to inquire whether D-6 was energized before entering the substation. The only reason why he did not do so was because he assumed that the substation was not currently operating. Fuller testified that Mr. Wyatt told him the keys were needed to get the substation going and that Fuller interpreted this statement to mean the station was not working yet. Mr. Wyatt testified that he did not recall making the statement. The district court found that Mr. Wyatt did not make the statement, because it determined that Wyatt's testimony was more credible than that of Fuller. A finding virtually never will be clear error when based on the trial judge's decision to credit the testimony of one witness over that of another, as long as each person's testimony is plausible and not contradicted by extrinsic evidence. Anderson, 470 U.S. at 575; Gibbs v. Pierce County Law Enforcement Support, 785 F.2d 1396, 1402 (9th Cir. 1986). As Judge Kay noted, the extrinsic evidence in this case supported a finding that the statement was not made because it would have been inaccurate if made. The interlock had nothing to do with turning electricity on or off; it was merely a safety device for controlling the flow of electricity within the substation. It cannot be said that the finding that the statement was not made was clearly erroneous.

Without this alleged statement, the only basis for Fuller's belief that the station was not energized was his impression that the substation looked brand new, and the lack of any humming noise or voltage meter to indicate that D-6 was active. Fuller was given very limited access to the interlock through a panel on the front door of the cabinet that had been removed for him. It would have been much easier for him to work on the lock had PWC employees opened the front door of the substation. That they did not do so should have given him some indication that he was not intended to have access to the interior of the substation.

In the same five or ten minutes that it took Fuller to unscrew the bolts on the back panel, he could have returned to Wyatt's office and asked whether the station was energized. It is obvious to the average person that severe injury is likely to result from contact with high voltage electricity. On these facts, it would be impossible to say with a firm conviction that it was reasonable for Fuller to enter the substation through the rear panel without first asking a PWC employee whether the substation was energized. Thus, the district court's finding that a reasonable person would have inquired further was not clearly erroneous.

The district court's finding that PWC reasonably could expect Fuller to report back to PWC before entering the substation also is not clearly erroneous. The district court found that by entering the substation Fuller deviated from the normal practices of the ordinary locksmith. In making this finding, Judge Kay relied on testimony from Fuller's employer that it was economically unreasonable for Fuller to try to remove the interlock by going through the rear panel because of the amount of time already expended on a job that would cost only fifteen dollars. Fuller contends that it was error to rely on testimony as to what was normal in the economic sense. It would seem inappropriate to rely solely on this type of economic testimony to conclude that Fuller's behavior was unexpected. However, there was other evidence on which the district court could rely.

Fuller testified that he never indicated to any PWC employees that he might remove the lock. Fuller had been told to contact a PWC employee if he had any trouble and the drive back to Wyatt's office was simple and would have taken about five minutes. Instead of contacting PWC, Fuller unscrewed 17 of 20 bolts, pried the substation's rear panel open, and crawled through the panel into the crowded interior of the substation.

Removing a lock to take it apart is one of the common methods of making keys for a lock. On the basis of this fact alone, it is possible to conclude that the government should have foreseen Fuller might try to enter the cabinet. However, the mere presence of an alternative permissible view of the evidence does not render the district court's decision clearly erroneous. The obvious dangers of high voltage electricity, the instruction to contact PWC if Fuller had any trouble, the ease of the drive back to Wyatt's office, and the unorthodox means Fuller used to enter the substation all support a finding that the government could not have foreseen that Fuller would try to enter the station without first contacting PWC to find out whether it was energized. The finding of foreseeability was not clearly erroneous.

CONCLUSION

The district court's decision to apply a common law standard of care instead of a statutory standard was correct. Any error based on failure to consider the duty to provide a safe place to work was harmless since the district court made all the determinations necessary to conclude that a breach of this duty was not the proximate cause of the injury. The district court found that the government was negligent for failing to warn Fuller the substation was energized. It makes no difference to the result whether the basis for finding a duty to warn was the government's deviation from standard safety practices or a case law duty to warn of obvious but extreme dangers. Finally, the district court did not commit clear error in finding that Fuller was more negligent than the government. Therefore, we affirm.

 *

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Cir.R. 36-3

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