Thomas F. Hogan, Senior United States District Judge
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 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.
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, 106 S.Ct. 2505, 91 L.Ed.2d 202 (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, 106 S.Ct. 2505. "[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.
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, 106 S.Ct. 2505 (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
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 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 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.
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.
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.
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
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) [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
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, 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.
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.' 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
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 that were within 10 feet of the contractors began to visibly and audibly hammer,
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:
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
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 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
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 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].
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, James D. Rosenberger Dep. 49:19-49:21, 156:4-156:7 (Dec. 1, 2009) [ECF No. 97-15]. Alion
One of the plumbers
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.
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
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].
"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
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 Pacific Power Co. v. Anderson, 77 Nev. 68, 358 P.2d 892, 894 (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).
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
The plaintiffs concede that the water flooding the steam vault was "abnormal and problematic."
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,
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 steamstop 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[,]"
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].
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.
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. 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
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 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,
There is no question that Frank Stotmeister knew he was not authorized to
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'
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. 201-3] (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:
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].
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
It can be logically inferred from the undisputed evidence that the reason no contractor was authorized to open a steamline 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 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)
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");
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
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
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 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."
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 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,
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.
Even if Thomas Johnson directed Frank Stotmeister to shut down or turn on the steamline 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. 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,
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
Exs. In Supp. of Stotmeister Pls.' Mem. of P. & A. In Opp'n to Mots. for Summ. J.
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 — 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
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:
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 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
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. 369 Fed.Appx. 538, 541-42. 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 540-41. 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 540-42. Unpersuaded by the seaman's argument that "the district court 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 541-42 (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."
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 "following a direct order to perform a task in a specific manner ...." Jenkins v. Union Pacific R.R. Co., 22 F.3d 206, 211 (9th Cir.1994) (emphasis added).
Although nearly all of these cases involve tort actions by seamen and railway employees pursuant to the Federal Employer's Liability Act ("FELA") or the Jones Act, and none of these cases is controlling, they nevertheless are instructive and serve as cautionary examples that suggest to the Court that it should hesitate before adopting the plaintiffs' theory that Frank Stotmeister should be shielded from all contributory negligence for acts taken to execute an order from Thomas Johnson. Particularly when the plaintiffs cited no legal authority for their theory, no evidence demonstrating that Thomas Johnson had the actual authority to order Frank Stotmeister to personally shut down or turn on the steam-line valve in Manhole 11, no facts to show that Johnson ordered Stotmeister to personally operate the steam-line valve, and no evidence indicating that Johnson specified the method by which Stotmeister should accomplish the shutting down or turning on of the steam system. The plaintiffs are, in essence, asking this Court to create a new rule that has never been suggested by District of Columbia courts and is not warranted in light of the undisputed facts in this case.
In the final analysis, the plaintiffs do not dispute that "[t]he cause of the steam release" that killed Frank Stotmeister can be attributed to the "water that flowed from the cut water main" and "inundate[ed] nearby steam lines" and that "[w]hen Mr. Stotmeister began to open the isolation valve in Manhole 11, the mixture of condensate and steam surged" and resulted in "high-pressure shock waves, known as steam-condensate water hammer" that "caus[ed] the massive eruption that fatally injured Messrs. Stotmeister and [Joseph] Hudert." Stotmeister Pls.' Disputed Material Facts ¶ 72 [ECF No. 196-2]. This is a tragic case and there is no indication that Frank Stotmeister acted with anything other than the intent to ensure that the water line tie-in project was completed as quickly as possible so the streets could be reopened. After considering all the undisputed facts, however, the inescapable conclusion is that Frank Stotmeister's decisions and actions while supervising the water line tie-in project — particularly his profound failure to act to have the work suspended, the steam system shut down or the steam system evaluated when it became apparent that water from the water line tie-in project was causing an abnormal flooding of the steam vault — were unreasonable and the proximate cause of the steam explosion that killed him. Lest it be forgotten, Frank Stotmeister's unreasonable decisions and actions also resulted in the death of Joseph Hudert and serious injury to another contractor. Although he might simply have been doing his best to assist and accommodate Thomas Johnson
For all the foregoing reasons, the Court holds that there is no genuine dispute as to any material fact and the preponderance of the evidence shows that Frank Stotmeister's negligence was a substantial factor in causing his injuries and death. The Court further holds that Frank Stotmeister's injuries and death were a direct result or reasonably probable consequence of his negligent acts or omissions. As a result, the Court will grant 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] and judgment will be entered in favor of Day & Zimmerman and M & M Welding. The foregoing reasons also compel the Court to deny the pending Stotmeister Plaintiffs' Motion to Reconsider [ECF No. 246],
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.
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.
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].
