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May 2, 2000


The opinion of the court was delivered by: Lowell A. Reed, Jr., Senior District Judge.


Plaintiff Thomas Dugan ("Dugan") avers that he slipped and fell due to an accumulation of water on a floor in the Sparkman Building at the United States Army Missile Command, Redstone Arsenal, Alabama. Dugan claims to have suffered serious injuries to his knee and consequent loss of wages, pain, and suffering. Dugan brought this action under the Federal Tort Claims Act, 28 U.S.C. § 2671, et seq., alleging that the negligence and recklessness of defendants United States of America ("United States" and "government") and Coastal Industries, Inc. ("Coastal"), caused his injuries. The complaint also includes a claim for loss of consortium by Dugan's wife, plaintiff Karen Dugan.

This Court has jurisdiction over this action pursuant to 28 U.S.C. § 1346(b).

I. Thomas Dugan's Claim

The United States moves to dismiss Dugan's first claim under Rule 12(b)(1) of the Federal Rules of Civil Procedure on the ground that this Court lacks subject matter jurisdiction over the claim. A motion under Rule 12(b)(1) may take the form of either a factual or a facial challenge to subject matter jurisdiction. See Singer v. Commissioner of Internal Revenue Service, 2000 WL 14874 at 1 (E.D.Pa. Jan. 10, 2000) (citing Mortensen v. First Fed. Sav. & Loan Ass'n, 549 F.2d 884, 891 (3d Cir. 1977)); Gould Electronics, Inc. v. United States, 1999 WL 817729 at 1 (E.D.Pa. Oct. 12, 1999) (citing Mortensen, 549 F.2d at 891). Where, as here, there is a factual challenge to subject matter jurisdiction, the court is "not confined to allegations in the plaintiff's complaint, but [can] consider affidavits, depositions, and testimony to resolve factual issues bearing on jurisdiction." Gotha v. United States, 115 F.3d 176, 179 (3d Cir. 1997) (citing Mortensen, 549 F.2d at 891-92). It is appropriate to decide a factual motion to dismiss based on an exception in the Federal Tort Claims Act under Rule 12(b)(1). See id. (addressing a motion to dismiss based on the FTCA's "discretionary function" exception).

"When subject matter jurisdiction is challenged under Rule 12(b)(1), the plaintiff must bear the burden of persuasion." Kehr Packages v. Fidelcor, Inc., 926 F.2d 1406, 1409 (3d Cir.), cert. denied, 501 U.S. 1222, 111 S.Ct. 2839, 115 L.Ed.2d 1007 (1991) (citing Mortensen, 549 F.2d at 891); see also Development Fin. Corp. v. Alpha Housing & Health Care, 54 F.3d 156, 158 (3d Cir. 1995). However, plaintiff's burden is light;*fn1 dismissal for lack of jurisdiction is only appropriate where the right claimed "is so insubstantial, implausible, foreclosed by prior decisions of this Court, or otherwise completely devoid of merit as not to involve a federal controversy." Growth Horizons, Inc., v. Delaware Cty., Pa., 983 F.2d 1277, 1280-81 (3d Cir. 1993) (quoting Kulick v. Pocono Downs Racing Ass'n, 816 F.2d 895, 899 (3d Cir. 1987) (quoting Oneida Indian Nation v. County of Oneida, 414 U.S. 661, 666, 94 S.Ct. 772, 777, 39 L.Ed.2d 73 (1974))). The Court must be careful, however, not to allow its consideration of jurisdiction to spill over into a determination of the merits of the case, and thus must tread lightly in its consideration of the facts concerning jurisdiction. See Growth Horizons, 983 F.2d at 1281 n. 5 (citing Kulick, 816 F.2d at 897; Mortensen, 549 F.2d at 891).

The Federal Tort Claims Act sets forth the limited circumstances under which the United States waives its sovereign immunity from suit in federal court, and establishes certain exceptions to that waiver. See Gotha, 115 F.3d at 179. This case involves one of those exceptions: the "independent contractor exception."

The independent contractor exception does not appear in the "exceptions" section of the FTCA, 28 U.S.C. § 2680, but has evolved from the FTCA provision that restricts recovery to injuries arising out of the acts and omissions of government employees and, according to the Supreme Court, excludes injuries caused by independent contractors. 28 U.S.C. § 1346(b). Drawing on agency concepts, the Supreme Court has held that the independent contractor exception turns on whether the United States "control[s] the physical conduct of the contractor in performance of the contract." Logue v. United States, 412 U.S. 521, 527, 93 S.Ct. 2215, 2219, 37 L.Ed.2d 121 (1973). In other words, "the question here is . . . whether [the contractor's] day-to-day operations are supervised by the Federal Government." United States v. Orleans, 425 U.S. 807, 815, 96 S.Ct. 1971, 1976, 48 L.Ed.2d 390 (1976).

Courts in this circuit have addressed the FTCA's independent contractor exception in a number of slip-and-fall actions. In those cases, the courts have looked to the contract between the United States and the contractor to determine whether the United States exercised day-to-day supervision over the work of the contractor. In Norman v. United States, 111 F.3d 356 (3d Cir. 1997), which involved a slip and fall in this very Courthouse, the Court of Appeals for the Third Circuit held that the independent contractor exception applied because the contract gave the contractor "broad responsibilities for daily maintenance," required the contractor to maintain an on-site supervisor, and stated explicitly that government officers were not to supervise contractor employees. See id., at 357. In Young v. Marriott Intern., Inc., 1997 WL 700493 (E.D.Pa. 1997), a case involving a slip and fall in a federal building cafeteria managed by Marriott International, Inc., the court found that the contract "specifically stated that Marriott was responsible for spillage clean up and for preventing any hazardous or dangerous conditions in the cafeteria," and thus the independent contractor exception applied. See id. at 2. Brookins v. United States of America, 722 F. Supp. 1214 (E.D.Pa. 1989) involved a plaintiff who fell down the stairs of a building owned by the U.S. Department of Housing and Urban Development. The government's contract with the maintenance company in Brookins provided that "the Contractor shall be responsible for the actions and omissions of such employees in the performance of the contract," and the court therefore concluded that the independent contractor exception was applicable. See id. at 1218.

The United States argues that the independent contractor exception applies in this case. While the contract in this case does, as did the contract in Norman, grant broad responsibilities for the maintenance of buildings, (United States of America's Memorandum of Law in Support of Motion to Dismiss, Exh. 1, Coastal Industries Contract, Att. 01, § 1.1) ("Coastal Contract"), and require the contractor to provide on-site supervision of its employees, (Coastal Contract, at § 1.2),*fn2 the contract in this case is missing the most persuasive contract language in Norman, Young, and Brookins. The contract does not explicitly state that government officers shall never exercise supervision over contractors employees, as in Norman; does not explicitly or implicitly hold Coastal responsible for cleaning up spills, as in Young; and does not state that only Coastal will be held liable for the acts and omissions of its employees, as in Brookins. The silence of the Coastal Contract in this regard is deafening.*fn3

The contract between the United States and Coastal contains specific language delegating to Coastal duties that require inspection, monitoring and resolution, such as the responsibility to patrol for trash (Coastal Contract, at § 8.9), inspect and replace all building lights (Coast Contract, at § 8.10), and remove ice and snow (Coastal Contract, at § 8.13). It also requires that areas where Coastal employees are working, including wet floors, be marked with warning signs (Coastal Contract, at § 8.5), and that material used by contractors "shall be picked up and work areas kept free from tripping hazards" (Coastal Contract, at § 8.6). Yet despite this remarkable specificity as to the inspection duties of Coastal, the contract nowhere delegates to Coastal or mentions the duty to inspect for or clean up spills, wet spots, or other hazards inside buildings. Invoking the venerable interpretive canon inclusio unius est exclusio alterius (the inclusion of one thing suggests the exclusion of all others) seems appropriate here; the inclusion of such detailed inspection and safety-related delegations suggests that the contract should be read to exclude other similar delegations not included therein. The drafters of the Coastal Contract were clearly concerned with safety and delegated in detailed fashion numerous safety-related duties, yet chose not to delegate to Coastal the readily apparent responsibility for monitoring and cleaning up spills and wet spots.

In addition, the contract places the responsibility with the government for identifying and notifying the contractor of the need for "emergency services," which are defined as "any situation which may endanger health [sic] of individuals." (Coastal Contract, at § 8.11). A spill on a floor certainly meets this definition. Even if a spill could not be considered an emergency, the contract further places the responsibility with the government to ask the contractor to "perform special cleaning duties (i.e., clean an unoccupied building for occupancy, etc.)." (Coastal Contract, at § 8.12). The implication of these provisions is that the responsibility lies with the government to require the contractor to perform any ad hoc duties not specifically delegated to Coastal in the contract, such as cleaning up spills and water accumulations.

On the face of the contract, the responsibility for inspecting for and supervising the clean-up of spills and wet spots in buildings at the United States Army Missile Command, Redstone Arsenal, Alabama, lay with the United States. Thus, the United States supervised the day-to-day operations of Coastal in this respect, and the independent contractor exception of the FTCA does not apply to Dugan's claim. As the case proceeds, evidence may come to light that alters this conclusion, but I cannot conclude on the evidence now before me that Dugan's claim "is so insubstantial, implausible, foreclosed ...

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