compartment. In order to work under the hood of the vehicle, plaintiff needed the assistance of steps, and there were none in her bay.
There were two pairs of steps located in bay number 3, but defendant Barto was not present in bay number 3 when plaintiff removed a set of steps to bay number 2 for her own use. The steps were made of wood and consisted of three treads. At the time plaintiff removed the steps from bay number 3, they were up against a truck in bay number 3, but no one was around the truck. Plaintiff was unaware of whether any work was in progress on the truck in bay number 3, though she knew that bay number 3 was defendant Barto's work area.
Plaintiff carried the steps over to the passenger side of the Blazer on which she was working, and set them down against the tire and frame of the vehicle. Plaintiff was on the top step of the set of steps roughly ten to fifteen minutes when she saw defendant Barto walking towards the parts room. The next event of which plaintiff was aware was defendant pulling the steps out from under her while making the comment, "I made these //--ing steps; they are mine." Plaintiff stepped down from the steps on her left foot very hard on the concrete floor and twisted her neck while twisting her torso from underneath the hood because she did not want to fall and did not want to hit her head.
The steps in question were regularly and routinely in use at the army reserve facility. Plaintiff understood that defendant Barto took the steps back and returned them to the place where he was using them, and in fact that is what occurred.
Plaintiff reported the incident immediately, but did not report any injury at the time of the incident. Her physical problems began during the course of that day, and she worked from the day of the incident, a Monday, through Wednesday of the same week at 4:00 p.m. She did not work on that Thursday or Friday, and went to a doctor that Thursday with her complaints. The appointment was made the day after the incident. [Plaintiff's full injuries are not material to disposition of the instant motion.]
Plaintiff applied for and received workers compensation under the Federal Employees Compensation Act in December, 1990, due to the injuries received as a result of the incident of March 6, 1989.
Plaintiff further alleges that defendant Barto's action in pulling the steps from under her were personal to her and not connected with defendant Barto's employment.
The motion filed by defendant first seeks to substitute the United States as defendant based upon the Federal Tort Claims Act. 28 U.S.C. § 1346(b), 2671 et seq. Specifically, § 2679(b)(1) provides that an action against the United States, and not against a federal employee/tortfeasor, is the exclusive avenue of redress for an injury caused by a federal employee acting within the scope of his employment. Section 2679(d)(1) provides that certification by the Attorney General or his designee constitutes prima facie evidence that the employee was acting within the scope of his employment.
Should the United States be substituted as the defendant, defendant next argues that the United States has not waived sovereign immunity under the facts of this case. Specifically, defendant argues that plaintiff has not strictly complied with the Federal Tort Claims Act's provisions regarding exhaustion of administrative remedies, and that, since plaintiff has benefited from the Federal Employee Compensation Act, 5 U.S.C. §§ 8101 et seq., this action is barred by the exclusive remedy provisions of that Act.
Under the Federal Tort Claims Act, a federal district court has exclusive jurisdiction over any claim brought against the United States for injuries caused by the negligent or wrongful act or omission of a federal employee acting within the scope of his office or employment. 28 U.S.C. § 1346(b). The remedy against the United States is exclusive.
The remedy against the United States provided by sections 1346(b) and 2672 of this title for injury or loss of property, or personal injury or death arising or resulting from the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment is exclusive of any other civil action or proceeding for money damages by reason of the same subject matter against the employee whose act or omission gave rise to the claim or against the estate of such employee. Any other civil action or proceeding for money damages arising out of or relating to the same subject matter against the employee or the employee's estate is precluded without regard to when the act or omission occurred.