Martha M. Kirk, an Adult, and Kenneth William Kirk, a Minor, Who Sues by His Guardian Ad Litem, Martha M. Kirk v. The United States of America

This is an appeal from a summary judgment for the defendant in an action brought under the provisions of the Federal Tort Claims Act, 28 U.S.C.A. §§ 1346 (b) and 2674 -to 2680. The plaintiffs, appellants here, are the widow and minor child of William M. Kirk, who lost his life when he fell from a scaffold upon which he was working as a carpenter during the construction of Lucky Peak Dam on the Boise River in Idaho. The action was predicated upon the wrongful death statute of that State, § 5-311, Idaho Code.

Lucky Peak Dam was being constructed in accordance with plans and specifications prepared by the Department of Army, Corps of Engineers, under a contract between the United States and Bruce Construction Co. and Russ Mitchell Inc., general contractors for the construction of certain control works at the outlet of the dam. Kirk was an employee of these general contractors. He was not an employee of the United States.

The complaint alleged that Kirk’s death came about when the scaffold upon which he was working broke, causing him to fall into the current of the river and to be carried into the tunnel; that the breaking of the scaffold and the fall of Kirk were due to the…