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KANDARGE v. UNITED STATES DEPT. OF THE NAVY

April 6, 1994

PAUL W. KANDARGE, Plaintiff
v.
THE UNITED STATES DEPT. OF THE NAVY and/or THE UNITED STATES GOVERNMENT, Defendants/Third Party Plaintiffs v. PHILLYSHIP, Third Party Defendant.



The opinion of the court was delivered by: JOSEPH E. IRENAS

 Irenas, District Judge:

 I. INTRODUCTION

 Plaintiff, Paul Kandarge, sustained personal injuries while excavating a ditch as an employee of a contractor hired to perform certain work at a government installation in Trenton, New Jersey. Plaintiff sued the United States Department of the Navy ("USN") and the United States Government under the provisions of the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 2671-80. The defendants in turn filed a third party complaint against the contractor, Phillyship. The jurisdiction of this court is found in 28 U.S.C. § 1346(b).

 Defendants now move for summary judgment pursuant to Fed. R. Civ. P. 56. *fn1" Because we find that (i) the claims against the governmental entities are barred by the discretionary acts exception found in § 2680(a) of the FTCA and (ii) there is not, in any case, a viable New Jersey cause of action, the motion for summary judgment will be granted in its entirety, and the third party complaint will be dismissed as moot.

 II. BACKGROUND

 On June 23, 1992, plaintiff was working in an excavation ditch when the walls of the ditch collapsed, allegedly causing him severe personal injuries. At the time of the accident Mr. Kandarge was an employee of third party defendant, Phillyship. The parties concur that the proximate cause of the accident and plaintiff's injuries was the lack of shoring to support the walls. *fn2"

 On September 30, 1991, Phillyship entered into a contract with the USN to excavate and replace several underground water valves at defendants' Naval Air Warfare Center ("NAWC"), formerly the Naval Air Propulsion Center, in Trenton, New Jersey.

 Before Phillyship began work on the contract, its representatives met with USN contracting officials in a preconstruction conference on October 31, 1991. In this meeting, the contractor was informed that excavation shoring would be required because the ground was soft and the USN officers received a mandatory Accident Prevention Plan which specified that Phillyship would utilize "proper shoring" in the excavation process. Def.'s Ex. B. Indeed, the contract explicitly incorporated by reference, specifications contained in NAVFAC No. 04-91-6911 which directed the contractor to "provide shoring and sheeting where required" for the purpose of "preventing slippage or movement in banks or slopes adjacent to the excavation." Def.'s Ex. A, at 25.

 The contract documents, incorporated by reference several provisions of 48 C.F.R. Ch. 1, known as the Federal Acquisition Regulations ("FAR"), and imposed upon Phillyship the obligation to (1) ensure the work place safety of its employees, (48 C.F.R. § 52.236-7); (2) to monitor and inspect its work progress and compliance with contract requirements on a daily basis, (48 C.F.R. § 52.246.12); and (3) an accident prevention clause (48 C.F.R. § 52.236-13).

 The accident prevention clause, referred to in § 52.236-13 required Phillyship to "provide for [the] protection [of] the lives and health of employees and other persons. . . . " and "comply with the standards [mandated by] 29 C.F.R. part 1926 and 29 C.F.R. part 1910;. . . ." *fn3" Subparagraph d of this clause also delineated the contracting officer's and the contractor's responsibilities concerning contract compliance:

 
The [officer] shall notify the Contractor of any noncompliance with these requirements and of the corrective action required. This notice, when delivered to the Contractor . . . at the site of the work, shall be deemed sufficient notice of the noncompliance and corrective action required. . . . If the Contractor fails or refuses to take corrective action promptly, the Contracting Officer may issue an order stopping all or part of the work until satisfactory corrective action has been taken.

 48 C.F.R. § 52.236-16.

 48 C.F.R. § 52.246-12(c) and (d), incorporated into the contract by reference, provided that Government inspections were solely for its benefit and "the presence or absence of a Government inspector does not relieve the Contractor from any contract requirement. . . ."

 At approximately 8:00 a.m. on the second day of the excavation project, June 23, 1992, defendants' contract inspector, Bill Merkle, observed Phillyship's employees at the work site for a brief period of time. Mr. Merkle was assigned to monitor the contractor's compliance with and the progress of the contract but emphatically asserts that he was not responsible for direct supervision or control of the undertaking. Merkle Aff. P 7. On this date, no untoward events were noted in Phillyship's operation of the work site.

 Mr. Kandarge was allegedly warned on at least three separate occasions, by naval employees Walter Shimp, George Trick and Bernard Seighman, Jr. that he was placing himself in danger if he continued to work inside toe excavation ditch without the shoring to reinforce the earthen walls. Shortly thereafter, the ditch collapsed onto plaintiff causing him serious injuries.

 Although Mr. Kandarge disputes that anyone ever warned him of this danger and contends that he was unaware of the tenuous nature of the soil's composition, the conflict over these facts are not material to the issues presented by defendants' motion.

 Plaintiff's two count complaint under the FTCA alleges that defendants negligently failed to: i) provide plaintiff a safe work place; ii) monitor construction; iii) institute or require its contractors to implement an appropriate safety program; and iv) ...


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