his wife; OWEN FACEMIRE, JR., and


John R. Mitchell, Attorney at Law, for claimants.
Nancy J. Aliff and Andrew Lopez, Attorneys at Law, for respondent.


This claim was filed to recover damages for personal injury and a
wrongful death which
occurred when claimants were employed in the construction of the New
River Gorge Bridge in
Fayette County. One of the original claimants has died since the filing
of the complaint, and the
Court, on its own motion, amended the style of the claim to include
Helen King, Adminstratrix of
the Estate of Gerald King, deceased, as the proper party claimant.

The claimants allege that respondent failed to comply with regulations
of the Department of
Labor Occupational Safety and Health Administration. These regulations
refer to the use of
scaffolds, flooring, overhead lines, excavations and safety nets, among
others. In addition,
claimants allege that standards mandated by "An Informational Guide on
Occupational Safety on
Highway Construction Projects" were not followed.

The prime contractor on this job was American Bridge, a Division of the
U.S. Steel, Inc. The
contract for this project was let on June 26, 1973. Work began in the
latter part of August,
At about 1:00 p.m., on May 17, 1974, an accident occurred in which the
husband of one of
the claimants was killed and the other claimants were injured. Claimants
allege that the
respondent project engineer did not fulfill his responsibility of
overseeing the safety of employees
on this project. It is alleged that the project engineer was advised of
certain hazardous conditions
which were in violation of safety specifications. It is further alleged
that the project engineer was
negligent in failing to rectify these conditions, and as a result, the
accident occurred.

Arnold Bradshaw, Ironworker Steward from Ironworker's Local 301,
described the site of
the accident. The accident occurred on the north approach abutment.
There was na excavation
between this abutment and the north rim of the gorge. The witness
explained that there was a
working pad or mat in place from the top of the north abutment to the
actual north rim. The mat
was placed on the ground level extending from the north rim out to the
north abutment. The cap
portion of the pier was not completed, thereby exposing metal rods which
were protruding from
the cap to maintain the mat's elevation even with the ground level. The
mat was on top of the
rods. According to Mr. Bradshaw, the excavation below the mat was at
least 25 feet deep.

Mr. Bradshaw testified that the mats were not attached or tied down in
any way on the rim
side of the gorge. He testified that he complained to the superintendent
of U.S. Steel, the
project manager of U.S. Steel, and to respondent's engineer about the
excavation. He felt that
the excavation below the mat should have been filled in to ensure the
safety of the men working
on the mat. There were no handrails on the mat nor was there a safety
net under the mat.

Claimant Owen Facemire, Jr. testified that at the time of this incident
the men were in the
process of attaching a cable system between towers that were located on
each side of the
gorge. One cable was in place. The sheaves where the cable was riding
had to be jacked apart
to place the pins in. The sheaves were laying on the ground as they were
being jacked apart.
"The cable that was holding the sheaves on the platform was draped out
over." The sheave was
cabled to the platform, and the cable was not attached to anything. The
men were attaching
another cable to the trolley system when the platform fell into the
excavation below. Mr.
Facemire was standing on the platform and scaffold at the edge of the
rim side. He stated that
the work platform that he was working on "was going in the hole as he
was getting off the end of
it." The platform had been placed there the week of the accident. It was
not attached to
anything on the earth side, nor was it attached to anything on the
concrete or gorge side. The
mat consisted of two platforms on top of each other. He estimated the
excavation below the
mat as 26 or 27 feet deep. There were no handrails erected on this work
platform nor were
there any toe boards on it. There were no provisions for safety lines
nor was there a safety net
provided below the mat.
Earl R. Scyoc, Director of Construction for respondent at the time of
this incident, testified that
the contract for the construction of this bridge was a contract of
design with Michael Baker
Company and a contract for construction with American Bridge Company. He
stated that "... it's
American Bridge's responsibility as the contractor to provide safety for
the workmen that's
performing their work in the contract." However, he testified that his
department does have the
ability to enforce safety regulations on construction projects. He also
stated that prior to the
time of this accident, he was not made aware of any serious safety
violations on this project.

Jesse H. Gravely, Construction Engineer for respondent, testified that
his duties concerning the
New River Gorge Bridge project were principally those of administrator
for the contract. He
stated that it has always been his understanding that the contractor is
responsible for safety on
the projects.

After reviewing the pertinent OSHA regulations, it appears that a
number of safety violations
were present at the time of the incident. The most obvious appear to be
the safety net and
guardrail requirements for scaffolds.

While these violations may not have caused the accident, it is
reasonable to assume that had
the net and guardrails been present, the injuries and death might will
have been avoided.

Nevertheless, the Court cannot, in good conscience, find respondent's
conduct to be the
proximate cause of the accident. Testimony disclosed that a number of
supervisory individuals
participated in this project. The Court has been unable to discern any
omissions or acts on the
part of the project engineer, which could be construed to have been the
proximate cause of this

The OSHA regulations cited by the claimants provide specific
requirements regarding various
aspects of construction. The evidence revealed that the prime
contractor, American Bridge, had
the duty to maintain safety standards and was responsible for complying
with the OSHA
regulations, not the respondent.

Although the Court sympathizes with the tragedy which occurred on this
project, the Court is
unable to find that there was negligence on the part of respondent.
Construction sites are
inherently dangerous. The evidence does not support the contention that
there was negligence on
the part of the respondent which was the proximate cause of the injuries
to the claimants. For
these reasons, the Court is of the opinion to, and does, deny this claim.

Claim disallowed.