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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND : ROY WEAKLAND : v. : Civil Action No. DKC 2002-3083

: THE UNITED STATES OF AMERICA, et al. : MEMORANDUM OPINION Presently pending and ready for resolution in this tort liability suit are (1) a motion by Defendant United States of America ("the government") to dismiss, or, in the alternative, for summary judgment, and (2) a motion by Defendant Jim Fletcher for summary judgment. The issues have been fully briefed and Local

the court now rules, no hearing being deemed necessary. Rule 105.6.

For the reasons that follow, the court will grant

the government's motion to dismiss for lack of subject matter jurisdiction and will grant Defendant Fletcher's motion for summary judgment. I. Background A. Factual Background

The following facts are uncontroverted or viewed in the light most favorable to Plaintiff Roy Weakland. United States Department of the Navy solicited In 1998, the bids for a

contract to build a Joint Strike Fighter Hover Pit ("Hover Pit")

on the airfield at the Patuxent Naval Air Station in Lexington Park, Maryland. The Hover Pit was and is owned by Defendant

United States of America (by and through the Department of the Navy). In August 1998, the Navy awarded the contract to R.R.

Gregory Corporation ("R.R. Gregory") as the General Contractor. Generally, the contract required the construction of a concrete lined pit approximately 150 feet by 90 feet by 12 feet deep, with numerous interior columns to support metal gratings to cover the pit. The Hover Pit was to be used to test vertical

take-off aircraft, and, therefore, was required to withstand very high temperatures. Systems Technology, R.R. Gregory subcontracted with Shared ("SST") to pour the special heat

Inc.

resistant refractory concrete that would be needed inside the Hover Pit, and SST subcontracted with Delphi Engineering, Inc. ("Delphi") for the high temperature heat curing and monitoring activities. Plaintiff Roy Weakland was one of the Delphi

employees involved with the project. Delphi arrived on the site Monday, September 20, 1999 to set up its equipment and begin the curing process but was delayed one day because approximately two feet of water had to be pumped out of the bottom of the Hover Pit by R.R. Gregory due to the passage of a recent hurricane. Accordingly, Delphi did not set

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up

its

equipment

and

begin

the

curing

process

until

the

following day, Tuesday, September 21. The heat curing process required Delphi to wrap special electrical and propane heating equipment around the columns and other certain areas inside the pit, and then gradually heat it to a certain temperature, maintain that temperature for a period of time, and then gradually cool the temperature. Once the

equipment was set up, the heating and curing process could be controlled and monitored by a single person primarily from inside an adjacent generator trailer. However, occasionally the

person monitoring the process would be required to exit the trailer to adjust other equipment around the pit, but would not be required to go inside the pit. Additionally, the curing

process required continuous around the clock monitoring. Delphi began the curing process on the afternoon of Tuesday, September 21, and Plaintiff assumed the responsibility of

monitoring the process during the evening and early morning shift. Delphi He was relieved Wednesday morning by John Winn, the employee covering the daytime shift. On Wednesday

evening, September 22, Plaintiff returned to the work site for his second night shift and relieved Winn. A timecard inside the

Delphi trailer indicated that he logged in for his shift at midnight. At approximately 3:30 a.m., Plaintiff was supposed to

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initiate a temperature cool down, but the temperature gauges the next morning indicated that no such cool down occurred. On Thursday morning, September 23, Plaintiff was observed staggering around the work site in a listless, sleepy demeanor. Due to his unusual behavior, medical assistance was requested and Plaintiff was ultimately transported to St. Mary's Hospital in Leonardtown, Maryland, where it was determined he had

sustained a head injury.

Later, at Washington Hospital Center,

Plaintiff was diagnosed with having a fractured skull, collapsed lung, and swelling of the brain. During a subsequent investigation at the Naval Air Station, blood and hair samples were discovered inside the Hover Pit, as well as a baseball hat. Plaintiff has no recollection of how he Plaintiff's theory morning hours of

was injured and there were no eyewitnesses. is that at some point during the early

September 23, he fell into the Hover Pit. on the night Plaintiff was injured,

It is undisputed that was no lighting

there

equipment around the Hover Pit, nor were there barricades or other fall protection structures around the Pit. Plaintiff

alleges that it was the lack of these safety provisions that caused his injuries. B. Procedural History

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On September 18, 2001, Plaintiff filed an administrative claim with the United States Navy as required under 29 U.S.C.

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