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

The appellants are the widow and minor child of William A. Kirk, who lost his life when he fell from a scaffold upon which he was working as a carpenter during the construction of the Lucky Peak Dam on the Boise River in Idaho.

This is the second appearance of this case in this Court. Following the filing of the original complaint and before the filing of answer, the defendant moved the district court for summary judgment in its favor. The motion was granted and summary judgment entered. Following the memorandum decision 1 of the district court, plaintiffs sought leave to file an amended complaint, which motion was denied. On appeal, this Court reversed the judgment and remanded the cause to the district court “with directions to permit the requested amendment of the complaint, and to require the defendant to answer thereto, and to proceed with the trial of the cause upon the merits.” 9 Cir., 232 F.2d 763, 770 . In that opinion this Court, in substance, held that the plaintiffs’ action under the wrongful death statute of the State of Idaho against the United States for negligence, as authorized under the provisions of the Federal Tort Claims Act, Title 28 U.S.C.A. Sections 2674…

(concurring).

I agree that the judgment of the district court must be affirmed; but since I have certain reservations with respect to the reasons given for the affirmance in the majority opinion, I prefer to base my concurrence upon another ground.

The gist of the majority opinion seems-to be stated in the quotation from the memorandum decision of the trial court which appears at the end of the opinion. The statement there approved recites: “The voluntary assumption of such a program [accident prevention and safety program] for the welfare of all parties-concerned should not create liability on the part of the defendant to the employees of contractors where the performance, or failure to perform, in no wise increases the hazard to the employees of the contractor beyond that which would otherwise have been present.” I think there are two things wrong about that statement. First, I think it. cannot be said that the failure of the Government’s Construction Engineer and Inspector to carry out the duties prescribed for them in Article 30 of the contract and of the manual “Safety Requirements”, and of the other manuals and regulations from which the opinion quotes, did not increase…

270 F.2d 110 Martha M. KIRK, an adult, and Kenneth William Kirk, a minor, who sues by his Guardian Ad Litem, Martha M. Kirk, Appellants, v. UNITED STATES of America, Appellee. No. 16307. United States Court of Appeals Ninth Circuit. August 25, 1959. Richards, Haga & Eberle, Boise, Idaho, for appellants. Ben Peterson, U. S. Atty., Kenneth G. Bergquist, Asst. U. S. Atty., Boise, Idaho, for appellee. Before POPE, BONE and JERTBERG, Circuit Judges. JERTBERG, Circuit Judge. 1 The appellants are the widow and minor child of William A. Kirk, who lost his life when he fell from a scaffold upon which he was working as a carpenter during the construction of the Lucky Peak Dam on the Boise River in Idaho. 2 This is the second appearance of this case in this Court. Following the filing of the original complaint and before the filing of answer, the defendant moved the district court for summary judgment in its favor. The motion was granted and summary judgment entered. Following the memorandum decision 1 of the district court, plaintiffs sought leave to file an amended complaint, which motion was denied. On appeal, this Court reversed the judgment and remanded the cause to the district…