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BROOKINS v. UNITED STATES

September 29, 1989

GLADYS M. BROOKINS, LEROY DOUGLAS, APRIL C. BROOKINS and LAWRENCE H. JETT
v.
UNITED STATES OF AMERICA, VINCENT PRIMAVERA and JAMES PRIMAVERA t/a FIRESIDE REALTY



The opinion of the court was delivered by: REED, JR.

 LOWELL A. REED, JR., UNITED STATES DISTRICT JUDGE

 Plaintiffs bring this action under the Federal Tort Claims Act (FTCA), 28 U.S.C. ยงยง 2671-2680, *fn1" to recover damages for personal injuries sustained as a result of a fire which occurred in an apartment owned by the Department of Housing and Urban Development (HUD) and managed by Fireside Realty (Fireside), a private realty firm. Plaintiffs allege that they were injured when a fire broke out at the Larchwood Gardens Apartments, a housing project located at 8111 Lyons Avenue in Philadelphia.

 Before the court in this non-jury case is the motion of the defendant United States of America for summary judgment. There are no genuine issues of material fact and, for the reasons set forth below, the motion of the defendant will be granted.

 I

 Factual Background

 The relevant facts of this case are not in dispute. The property where plaintiffs were injured, a two-level apartment project consisting of fourteen buildings containing 180 units known as the Larchwood Garden Apartments, was acquired by HUD on November 3, 1982, following a mortgage foreclosure sale. In November, 1983, plaintiff Gladys Brookins entered into a leasehold agreement with HUD to lease an apartment in the Larchwood Gardens Project. At the time Gladys Brookins entered into the lease agreement, Interstate Realty was managing Larchwood Gardens. On or about December 1, 1983, Interstate Realty unilaterally discontinued its services as Project Manager to enable it to submit an offer to purchase the project.

 In its search for a new Project Manager, three firms were invited to bid to become Property Manager for HUD at Larchwood Gardens. Fireside, whose sole proprietor was Vincent Primavera, was awarded the Project Management Contract on December 9, 1983. *fn2" As part of that contract, Fireside was to provide management services, collect rent and other income from the tenants of Larchwood Gardens, *fn3" pay the operating expenses of the project and supervise all repairs, maintenance and operating activities. *fn4" Additionally, Fireside was responsible for the hiring and day-to-day supervision of employees and remained responsible for the acts and omissions of those employees. *fn5"

 II

 Discussion

 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 ...


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