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FERGUSON v. UNITED STATES

June 29, 1992

DAVID FERGUSON, et al.
v.
UNITED STATES OF AMERICA, et al.



The opinion of the court was delivered by: BY THE COURT; HARVEY BARTLE III

 BARTLE, J.

 Plaintiff David Ferguson has instituted this negligence action against defendant the United States of America pursuant to the provisions of the Federal Tort Claims Act, 28 U.S.C. § 2675 et seq. Plaintiff has also sued defendant William Edens t/a Edens Tree Service ("Edens") for negligence and breach of contract. Plaintiff Joan Ferguson, the wife of David Ferguson, has a claim for loss of consortium.

 Before the Court is the Motion of the United States to Dismiss for lack of subject matter jurisdiction under Rule 12(b)(1) of the Federal Rules of Civil Procedure or in the Alternative for Summary Judgment. *fn1" The Government contends that the claim of plaintiff David Ferguson is barred by the independent contractor exception to the Federal Tort Claims Act. It further argues that the claim of plaintiff Joan Ferguson is barred because she failed to exhaust certain administrative remedies.

 Plaintiff David Ferguson alleges he was injured on January 7, 1991 when he slipped and fell as a result of "hills and ridges of ice and snow" on the parking lot of the Internal Revenue Service Payment Center ("IRS") at 11601 Roosevelt Boulevard, Philadelphia, Pennsylvania. He contends the accident was the result of the negligence and carelessness of the defendants, who had a duty under law to maintain the premises in a reasonably safe condition, and keep them free of dangerous ice and snow.

 Since the Motion of the United States against plaintiff David Ferguson is supported by matters outside the pleadings, it will be treated as a motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. See Fed. R. Civ. P. 12(b); Boyle v. Governor's Veterans 's Outreach & Assistance Center, 925 F.2d 71, 74 (3d Cir. 1991). Rule 56(c) of the Federal Rules of Civil Procedure provides, in pertinent part, that "the judgment sought shall be rendered forthwith 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."

 The law to be applied in deciding summary judgment motions is well settled. To obtain summary judgment the moving party must establish that no genuine issue of material fact remains in dispute. Celotex Corporation v. Catrett, 477 U.S. 317, 106 S. Ct. 2548, 2552, 91 L. Ed. 2d 265 (1986). In deciding whether this standard has been met, the evidence must be viewed in the light most favorable to the non-moving party. Weldon v. Kraft, Inc., 896 F.2d 793, 797 (3d Cir. 1990).

 In support of its motion, the United States relies on 28 U.S.C. § 2671, the independent contractor exception to the Federal Tort Claims Act. Section 2671 provides in pertinent part:

 
"Federal agency" includes the executive departments, the judicial and legislative branches, the military departments, independent establishments of the United States and corporations primarily acting as instrumentalities or agencies of the United States, but does not include any contractor with the United States. [Emphasis added]

 The Federal Tort Claims Act waives sovereign immunity for actions sounding in tort against the United States, its agencies and/or employees acting within the scope of employment. J.D. Pflaumer v. U.S. Department of Justice, 450 F. Supp. 1125, 1132 n.11 (E.D. Pa. 1978). Actions based upon the negligence of independent contractors, however, are specifically excluded from the Federal Tort Claims Act's waiver of sovereign immunity. 28 U.S.C. § 2671. United States v. Orleans, 425 U.S. 807, 814, 48 L. Ed. 2d 390, 96 S. Ct. 1971 (1976); Logue v. United States, 412 U.S. 521, 530, 37 L. Ed. 2d 121, 93 S. Ct. 2215 (1973).

 The United States contends that it was the responsibility of Edens, with whom the United States had a contract, to remove snow and ice. Under the express terms of the contract, Edens alone was responsible for all aspects of this work. The contract between the Government and Edens provides in pertinent part:

 B.1 DESCRIPTION

 
The contractor shall provide all management, supervision, labor, supplies and equipment (except as otherwise specified) to furnish snow removal/de-icing services for the IRS Philadelphia Service Center, 11601 and 11501 Roosevelt Blvd., Philadelphia, PA 19154.

 The plaintiff David Ferguson, however, has not sued the Government for failing properly to remove the snow and ice. Instead, he alleges that the Government did not call Edens soon enough to have the snow and ice removed, and as a result ...


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