Leroy Douglas, April Brookins, Clarence Brookins and Lawrence Jett were all present in Gladys Brookins' apartment. The fire captain, John Kelly, and the Fire Marshall, William Snyder found that careless smoking was the cause of the fire. The present litigation ensued, with plaintiffs seeking damages for their injuries sustained in the fire, alleging that HUD was negligent in failing to install smoke detectors and in violating federal rules and regulations regarding inspection and maintenance of the premises.
A. Standard of Review
Under the Federal Rules of Civil Procedure, summary judgment may be granted when "there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). This rule is a procedure which enables the court to facilitate the resolution of a pending controversy without the expense and delay of conducting a trial when the critical facts of a case are not in dispute. Peterson v. Lehigh Valley Dist. Council, 676 F.2d 81, 84 (3d Cir. 1982). For a dispute to be "genuine," the evidence must be such that a reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). To establish a genuine issue of material fact, the non-moving party must introduce evidence beyond the mere pleadings to create an issue of material fact on "an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex v. Catrett, 477 U.S. 317, 322, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). The burden of demonstrating the absence of genuine issues of material fact is initially on the moving party regardless of which party would have the burden of persuasion at trial. First Nat'l Bank of Pennsylvania v. Lincoln Nat'l Life Ins., 824 F.2d 277, 280 (3d Cir. 1987). Following such a showing in a case where the non-moving party is the plaintiff and thus bears the burden of proof, it must present evidence through affidavits or depositions and admissions on file which comprise of a showing sufficient to establish the existence of every element essential to that party's case. Celotex, 477 U.S. at 323.
In ruling on a motion for summary judgment, the court must consider the evidence presented in a light most favorable to the non-moving party, United States v. Diebold, Inc., 369 U.S. 654, 655, 8 L. Ed. 2d 176, 82 S. Ct. 993 (1962); Baker v. Lukens Steel Co., 793 F.2d 509, 511 (3d Cir. 1986), must give that party the benefit of all reasonable inferences arising from that evidence, Tigg Corp. v. Dow Corning Corp., 822 F.2d 358, 361 (3d Cir. 1987); Gans v. Mundy, 762 F.2d 338, 341 (3d Cir.), cert. denied, 474 U.S. 1010, 88 L. Ed. 2d 467, 106 S. Ct. 537 (1985), and must take as true all allegations of the non-moving party that conflict with those of the movant. Anderson, 477 U.S. at 255. If that evidence is, however, "'merely colorable' or is 'not significantly probative,' summary judgment may be granted." Equimark Commercial Financing Co. v. C.I.T. Financial Services Corp., 812 F.2d 141, 144 (3d Cir. 1987) (quoting, in part, Anderson, 477 U.S. at 249-50).
B. Federal Tort Claims Act
As a general matter, the Federal Tort Claims Act serves as a waiver of the government's sovereign immunity. Such waiver is, however, subject to several significant exceptions as the Act only sanctions suit against the United States as a result of a government employee's negligent or otherwise wrongful conduct. Vicarious or strict liability for the torts of independent contractors are thus excepted as theories of liability because these theories fall outside the ambit of the statute. Carmona v. United States, No. 86-3754, slip op. at 3-4 (E.D. Pa. Oct. 17, 1986) (LEXIS, Genfed library, Dist file) (quoting Bloom v. Waste Management, Inc., 615 F. Supp. 1002, 1007 (E.D. Pa. 1985), aff'd, 800 F.2d 1131 (3d Cir. 1986)). See Laird v. Nelms, 406 U.S. 797, 32 L. Ed. 2d 499, 92 S. Ct. 1899, reh'g denied, 409 U.S. 902, 34 L. Ed. 2d 165, 93 S. Ct. 95 (1972). "Since the United States can be sued only to the extent that it has waived its immunity, due regard must be given to the exceptions, including the independent contractor exception, to such waiver."
United States v. Orleans, 425 U.S. 807, 814, 48 L. Ed. 2d 390, 96 S. Ct. 1971 (1976).
The issue upon which this case turns is whether managers of government owned properties are employees of the federal government. It is well settled that "one who employs an independent contractor is ordinarily not responsible for the acts of the independent contractor or its employees, unless the relation of master and servant or principal and agent exists between them. When an injury is caused by an independent contractor, the person employing him is not responsible for the injury." Carmona v. United States, No. 86-3754, slip op. at 6 (E.D. Pa. Oct. 17, 1986) (LEXIS, Genfed library, Dist file). Thus, if defendants Fireside Realty and Vincent Primavara are employees of HUD, and therefore not independent contractors, then summary judgment must be denied and plaintiffs must be allowed to proceed with this action. If, however, they are, as the government contends, independent contractors, the government is exempt from liability under the FTCA and summary judgment must be granted in its favor.
A trio of recent cases in this district are instructive on this issue in that each has confronted the question of whether the government may be held liable for personal injuries sustained on property owned by the government, but managed by a private realty company who maintained possession of the premises. See Wollaver v. United States, 1989 U.S. Dist. LEXIS 8433, No. 89-0772, slip op. (E.D. Pa. July 24, 1989) (LEXIS, Genfed library, Dist file) (Giles, J.); Williamson v. United States, No. 87-1470, slip op. at 2 (E.D. Pa. Aug. 13, 1987) (LEXIS, Genfed library, Dist file) (McGlynn, J.); Carmona v. United States, No. 86-3754, slip op. at 6 (E.D. Pa. Oct. 17, 1986) (LEXIS, Genfed library, Dist file) (Weiner, J.).
These courts have uniformly held that the private management company was an independent contractor and therefore that the government could not be held liable to an individual who sustained personal injuries on those premises.
In Carmona, plaintiff brought suit against the government under the FTCA, alleging that she was injured when she tripped and fell while descending the steps of property which HUD had purchased at a sheriff's sale pursuant to a foreclosure action. The court in Carmona found that the government was not the possessor of the property and reasoned that the Area Management Broker was an independent contractor who exercised responsibility to arrange for and supervise the continuing maintenance of the premises where the accident occurred. The Area Management Broker Contract in Carmona provided, in part:
It shall be the duty of the Contractor to obtain the services of qualified employees in all instances, and the Contractor shall be responsible for the actions and omissions of such employees in the performance of the contract. All employees engaged in the performance of the contract shall be hired by the Contractor and shall be employees of the Contractor and not employees of the Government.