Opinion
CIVIL ACTION 00-712 SECTION "T" (2)
April 19, 2001
Before the Court is a Motion to Dismiss pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure, or in the alternative, Motion for Summary Judgment filed on behalf of the defendant, the United States of America. The parties waived oral argument and the matter was submitted for consideration on its assigned hearing date, February 14, 2001. The Court, having considered the arguments of counsel, the evidence presented, the record, the applicable law and jurisprudence, is fully advised in the premises and ready to rule.
ORDER AND REASONS
I. BACKGROUND:
This suit arises out of personal injuries alleged to have been sustained by the plaintiff after a slip and fall on a recently mopped floor in the women's bathroom of the Allen J. Ellender Federal Building ("Ellender Building"), located at 423 Lafayette Street, in Houma, Louisiana. The United States of America ("United States") has been sued pursuant to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 1346(b) and 2671 et seq. The plaintiff later amended her complaint to add Three Frenchman Janitorial Service ("Three Frenchmen") as a defendant. Plaintiff asserts that if Three Frenchmen is an independent contractor of the United States responsible for the janitorial services of the Ellender Building, including the ladies bathroom, in which the plaintiff allegedly fell, it is jointly and concurrently liable with the United States. The United States has filed the present Motion to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1), or in the alternative, Motion for Summary Judgment.
II. ARGUMENTS OF THE RESPECTIVE PARTIES:
A. Arguments of the Defendant, United States, in Support of the Motion:
The United States contends that it is immune from suit as the "independent contractor" exception to the FTCA insulates the United States from liability for the negligence of Three Frenchmen and thus the complaint must be dismissed. In this case, Three Frenchman and its employees were acting as independent contractors of the General Services Administration ("GSA"), and GSA should be exempt from liability under the FTCA. The contract specifically requires Three Frenchman to provide supervision over all contract work, including the day-to-day supervision of employees, and conduct all hiring. It further states that the contractor shall furnish all supplies, materials, equipment, and employee training for the performance of the work of the contract. Additionally, the contract provides that "[i]t is the policy of the GSA that Government direction or supervision of contractor's employees, directly or indirectly, shall not be exercised." These activities at all times remained in the hands of Three Frenchmen. The United States did not supervise the day-to-day operations or control the detailed physical performance of the contractor which would be required to expose the government to liability for actions of independent contractors. As the FTCA does not waive sovereign immunity for negligence of an independent contractor, the United States cannot be sued, and no federal court has jurisdiction over the subject matter between plaintiff and the United States.
In addition to the contract language, the deposition testimony of Donald Gray evidences an independent contractor relationship. Gray testified that he was employed by Three Frenchmen to act as supervisor over three to four people employed to clean the Ellender Building. Additionally, Gray stated that he had no on-site supervisor and reported to no one on-site in Houma. He further provided the hours during which the post office area and other areas of the building were cleaned which he stated had been established by Three Frenchmen. In addition, there was no contract representative of the government at the Ellender building and although Gray knew of a GSA contract representative in Baton Rouge, that person had no one at the Ellender Building in Houma charged to report to him. Furthermore, Gray testified that no employee of the post office ever came to him and asked that the cleaning schedule be changed or asked to do anything other than what was being done on a day-to-day basis. In addition, the security personnel at the Ellender Building were likewise independent contractors.
Moreover, the United States asserts that any strict liability or nondelegable duty claim is precluded by the FTCA. It is submitted that the independent contractor exception to the waiver of sovereign immunity in the FTCA extends to cases of strict liability and nondelegable duties found in state liability laws. Therefore, the United States and GSA, may not be sued under state laws of strict liability through the FTCA. As such, dismissal is warranted under Rule 12(b)(1). Alternatively, summary judgment is appropriate as the contract language makes clear that an independent contractor relationship existed.
B. Arguments of the plaintiff, Bennett, in Opposition to the Motion:
While plaintiff concedes that the United States is not responsible for the negligent acts of its independent contractors and that Three Frenchman has the appearances of such a contractor, plaintiff contends that the United States was negligent in its own right and that such negligence contributed to and was a cause of claimant's injuries. The contract language concerning cleaning the floors provides that such cleaning during business hours was to be minimized and that when such was done the floors were to be kept dry. Contrary to these requirements, Three Frenchmen damped mopped the restrooms as part of the required twice daily "policing". Plaintiff contends that the United States, through its employees in the Ellender Building, knew of this damp mopping activity. Furthermore, these employees knew that the damp mopping presented the possibility that a person would slip and fall on the wet floor. The United States did nothing to stop the damp mopping during business hours. This failure to act and instruct Three Frenchmen to cease damp mopping the restrooms during business hours was negligence and was a cause in fact of the incident. Therefore, plaintiff suggests that the motion should be denied.
III. LAW AND ANALYSIS:
A. Law on 12(b)(1) Motion to Dismiss:
The defendant seeks to have the plaintiffs action dismissed for want of subject matter jurisdiction or in the alternative seeks summary judgment. A motion under Rule 12(b)(1) of the Federal Rules of Civil Procedure should be granted "only if it appears certain that the plaintiff cannot prove any set of facts in support of his claim that would entitle him to relief." Home Builders Ass'n of Mississippi, Inc. v. City of Madison, 143 F.3d 1006, 1010 (5th Cir. 1998) (citing Benton v. United States, 960 F.2d 19, 21 (5th Cir. 1992)). "A case is properly dismissed for lack of subject matter jurisdiction [only] when the court lacks the statutory or constitutional power to adjudicate the case." Nowak v. Ironworkers Local 6 Pension Fund, 81 F.3d 1182, 1187 (2d Cir. 1996).
B. Treatment of Alternative Motions:
When considering a Rule 12(b)(1) motion to dismiss with a motion for summary judgment in the alternative, the Court must determine if subject matter jurisdiction is present before considering the substantive arguments of the summary judgment motion. See Cupit v. United States, 964 F. Supp. 1104 (W.D. La. 1997). In this case, the United States does not challenge the face of the complaint which asserts subject matter jurisdiction pursuant to the FTCA. As such, this Court must look to the factual evidence in resolving the issue of subject matter jurisdiction.
Where the factual findings regarding subject matter jurisdiction are "intertwined with the merits," the motion to dismiss is treated as an attack on the merits. Clark v. Tarrant County, Texas, 798 F.2d 736, 741-42 (5th Cir. 1986). Subject matter jurisdiction and the merits are considered "intertwined" where the same statute provides both the basis for subject matter jurisdiction and the cause of action. Id. at 742. In this case, the FTCA, 28 U.S.C. § 1346(b), provides the basis both for jurisdiction and the cause of action against the United States. See, Augustine v. United States, 704 F.2d 1074, 1077-78 (9th Cir. 1983). In such a case we approach the jurisdictional challenge as an attack on the merits and employ the standard applicable to a motion for summary judgment. Clark, 798 F.2d at 742; Augustine, 704 F.2d at 1077; Holt v. United States, 46 F.3d 1000, 1003 (10th Cir. 1995).Cupit, 964 F. Supp. at 1107. As such, this Court will assess subject matter jurisdiction using a summary judgment standard.
C. Law on Motion for Summary Judgment:
Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment should be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." FRCP 56(c). "The party moving for summary judgment bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the record which it believes demonstrate the absence of a genuine issue of material fact."Stults v. Conoco, 76 F.3d 651 (5th Cir. 1996), (citing Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 912-13 (5th Cir.) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). When the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts. The nonmoving party must come forward with "specific facts showing that there is a genuine issue for trial." Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 588 (1986) (emphasis supplied); Tubacex, Inc. v. M/V Risan, 45 F.3d 951, 954 (5th Cir. 1995).
Thus, where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no "genuine issue for trial." Matsushita Elec. Industrial Co., 475 U.S. at 588. Finally, the court notes that substantive law determines the materiality of facts and only "facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
D. Law on FICA and Independent Contractor's Exception:
"Absent a waiver, sovereign immunity shields the Federal Government and its agencies from suit." FDIC v. Meyer, 510 U.S. 471, 475, 114 S.Ct. 996, 1000, 127 L.Ed.2d 308 (1994). Since "[s]overeign immunity is jurisdictional in nature," the United States may only be sued with its consent. Id. In the Federal Tort Claims Act ("FTCA"), Congress has given a limited consent for the federal government to be sued for tort liability: "The United States [with certain stated exceptions] shall be liable, respecting the provisions of this title relating to tort claims, in the same manner and to the same extent as a private individual under like circumstances." 28 U.S.C. § 2674. The statutory provision regarding the jurisdictional grant over FTCA cases, 28 U.S.C. § 1346(b), further provides,
[T]he district courts . . . shall have exclusive jurisdiction of civil actions on claims against the United States, for money damages, . . . for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.28 U.S.C. § 1346(b).
An "employee of the Government" includes "officers or employees of any federal agency, members of the military or naval forces of the United States, and persons acting on behalf of a federal agency . . .". 28 U.S.C. § 2671. "`Federal agency' includes the executive departments and independent establishment of the United States, . . . but does not include any contractor with the United States." 28 U.S.C. § 2671. Accordingly, under the terms of the FTCA, the United States is not liable for the negligence of an employee of an independent government contractor. See, Brooks v. A.R. S. Enterprises, Inc., 622 F.2d 8, 10 (1st Cir. 1980), United States v. Orleans, 425 U.S. 807, 96 S.Ct. 1971, 48 L.Ed.2d 390 (1976).
Determination of an "independent contractor" under the FTCA turns on the degree of control exercised by the United States. "In order to be liable, the Government must have supervised day-today operations or controlled the detailed physical performance of the contractor." Pershing v. United States, 736 F. Supp. 132, 134 (W.D. Texas 1990), citingMartinez v. United States, 661 F. Supp. 762 (W.D. Tex. 1987), citingUnited States v. Orleans, 425 U.S. at 815, 96 S.Ct. at 1976; Logue v. United States, 412 U.S. 521, 93 S.Ct. 2215, 37 L.Ed.2d 121 (1973). However, retention of the right to inspect progress, to provide advice on contract provisions, and to order work stopped should safety violations occur is insufficient to constitute the type of control necessary to impute liability to the government. Id. Requiring compliance with detailed regulations does not transform an independent contractor into an agent of the United States. See, Alexander v. United States, 605 F.2d 828, 832-34 (5th Cir. 1979).
D. The Court's Analysis:
The contract entered into by Three Frenchmen with the GSA specifically provides under the section entitled "Supervision" that:
[t]he contractor shall arrange for satisfactory supervision of contract work. . . . Supervisor(s) under this contract will supervise and train custodial workers. . . . It is the policy of GSA that Government direction or supervision of contractor's employees, directly or indirectly, shall not be exercised.
Defendant's Exhibit 1, p. 11, Court Doc. 4. Furthermore, Section 3 of the contract entitled "Supplies, Equipment and Utilities" under subheading B entitled "Furnished by the Contractor" states that the "contractor shall furnish all supplies, materials, equipment, and employee training necessary for the performance of the work of this contract unless otherwise specified herein. Training shall include all applicable OSHA and other related standards." Defendant's Exhibit 1, p. 12, Court Doc. 4. The contract further specified the regular cleaning requirements of bare floors such that:
(1) Floors shall be kept clean, dry, and present an overall appearance of cleanliness.
(2) Spray buffing will be performed to maintain a uniform luster. Floors shall be slip resistant, free of marks, skipped areas, streaks, and mop strands.
Defendant's Exhibit 1, p. 65, Court Doc. 4. In this section, in bold print, the contract provides this additional note:
NOTE: Toilet Rooms will be serviced and policed once in the morning and once in the afternoon to ensure the servicing and policing requirements are met.
Defendant's Exhibit 1, p. 67, Court Doc. 4.
The Government did retain the right of inspection in Section E Subparagraph 4C which states:
[t]he Government has the right to inspect and test all services called for by the contract, to the extent practicable at all times and places during the term of the contract. The Government shall perform inspections and tests in a manner that will not unduly delay the work.
Defendant's Exhibit 1, p. 17, Court Doc. 4.
Furthermore, the contract required the contractor to secure liability insurance naming the United States of America acting by and through the General Services Administration as an additional insured with respect to operations performed under the contract. The contract further required that the insurance carrier waive all subrogation rights against any of the named insureds. Defendant's Exhibit 1, p. 25, Court Doc. 4.
Based upon this evidence, it is the opinion of this Court that these provision clearly set forth an independent contractor relationship. The question then becomes whether the plaintiff can show control by the government over the day to day operations of the contractor to subject the government to liability.
In response, the plaintiff introduced excerpts of the deposition testimony of Donald Gray, the Three Frenchmen's supervisor assigned to the Ellender Building. His testimony provides that from the inception of the contract until its termination, Three Frenchmen would damp mop the restrooms as part of the required twice daily "policing". Gray depo, p. 10, In. 16-25, and p. 11, In. 1-19. Plaintiff argues that governmental employees knew of this activity and knew that damp mopping created an unreasonable risk to the general public, yet nothing was done to stop the damp mopping during business hours. The Court finds however that this argument is unsubstantiated by any evidence whatsoever. The mere fact that Mr. Gray testified that damp mopping was conducted twice daily, in no way, imputes knowledge to governmental employees. Furthermore, there is no evidence or testimony to suggest that governmental employees controlled the day-to day operations of Three Frenchmen or its employees. Stated another way, the evidence in no way shows that the government controlled the detailed physical performance of the contractor. As such, it is the finding of this Court that Three Frenchmen is an independent contractor whose negligent acts do not subject the government to liability.
Moreover, while a review of plaintiff's complaint does not specifically set forth claims pursuant to state law, out of an abundance of caution, this Court notes the following. The FTCA precludes liability of the United States based on strict liability in tort. See, Lathers v. Penguin Industries, 687 F.2d 69, 72 (5th Cir. 1982); Laird v. Nelms 406 U.S. 797, 92 S.Ct. 1899, 32 L.Ed.2d 499 (1972). As such, the Government is immune from suit pursuant to the independent contractor exception of the FTCA for any claims of strict liability or nondelegable duties found in state tort law.
Accordingly,
IT IS ORDERED that the Motion to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1), or in the alternative, Motion for Summary Judgment, filed on behalf of the defendant, United States of America, be and the same is hereby GRANTED.
IT IS FURTHER ORDERED that the claims of the plaintiff, Elodie Bennett, filed against defendant, United States of American, be and the same are hereby DISMISSED WITH PREJUDICE.