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Contractor’s Widow Loses $1.2M Award

Monday, April 1, 2013

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A federal appeals court has thrown out a $1.2 million award to the widow of a contractor who was fatally struck by a poorly installed gutter while working at a military base.

The shoddy construction that later killed Clarence Darrien was not the responsibility of the United States, but of the series of independent contractors that built, inspected and maintained the building, ruled a three-judge panel of the U.S. Court of Appeals for the Sixth Circuit.

The appellate panel's ruling Thursday (March 28) reversed a 2012 U.S. District Court award to Donna Berrien, holding that the U.S. was not liable for the 2006 death of Clarence Darrien at the U.S. Army Garrison on Selfridge Air National Guard Base near Mt. Clemens, MI.

On the morning of June 28, 2006, Berrien was working for TECOM Inc., a contractor that was conducting maintenance, inspection and repairs at the base. Berrien was fatally struck in the head by a heavy metal rain gutter attached to a 2x4 that fell off a liquor store on the base, court documents said.

M. Minderhoud / Wikipedia Commons

Experts found that the gutter that fell and mortally wounded Clarence Darrien had not been properly installed. The structure was built by contractors, not the military. The gutter shown is not the one involved in the lawsuit.

The blow caused him to fall and hit his head again. He died a week later without regaining consciousness. There were no witnesses to the accident.

Maintenance and Contracts

The store had been built in 1992 and 1993 by another contractor, The Bell Company. The work was supervised by a third contractor, Marshall Waters Woody.

Maintenance on the completed liquor store was rolled into an Army maintenance contract with Raytheon Technical Services until 2004. At that point, TECOM Inc./All-Star received the contract to perform all maintenance for all buildings and structures on the base. The contract included gutter work.

Experts in the case eventually determined that the gutter had been improperly fastened with non-weather-resistant screws and without corrosion-resistant fasteners. They also found that the piece of wood attached to the gutter was improperly lashed and the gutter was not supported by proper gutter straps.

No Government Negligence

Because the store and gutter were built and maintained by independent contractors, the U.S. cannot be held liable under the Federal Tort Claims Act for failure to warn Berrien of the risk, the appellate panel found.

Government liability "could only be based on the negligence of government employees," the panel said.

Selfridge AFB
Selfridge ANG

Base employees were not responsible for knowing the condition of a building constructed, inspected and maintained by independent contractors, the court said.

It added: "There is no evidence that government employees actually knew of the dangerous condition of the liquor store, however, so that—under applicable Michigan law—any liability for failure to warn an invitee of a dangerous condition would have to have been based on a negligent failure to discover the dangerous condition."

The panel chastised the 2012 ruling in Berrien's favor by U.S. District Judge Victoria Roberts, who awarded the widow $1,181,611 in damages.

'Clearly Erroneous'

“To the extent that the district court found that any government official, as opposed to an employee of an independent contractor, should have known of the dangerous condition, such a finding was clearly erroneous,” the appeals court said.

Berrien originally filed suit in 2008. Later, Roberts dismissed a claim that sought to hold the government liable for the liquor store's allegedly negligent design and construction. However, Roberts upheld Donnetta's claim against the government for "failure to warn."

In her ruling, Roberts said that the U.S. was not shielded from liability if the duty it had attempted to delegate to a contractor was nondelegable. Roberts ruled that the U.S. was not protected by a contractor exception "when it knows that the contractor created a dangerous condition on its property."

The appellate panel disagreed, ruling: "Michigan’s nondelegable duty doctrine cannot render the United States liable for TECOM’s negligence."


Tagged categories: Contractors; Contracts; Corrosion; Government; Government contracts; Health and safety; Lawsuits

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