The opinion of the court was delivered by: JAN DuBOIS, District Judge
AND NOW, this 16th day of July, 2004, upon consideration
of the Defendant United States' Motion for Summary Judgment
(Docket No. 37, filed May 20, 2004), Plaintiff's Opposition to
Defendant United States' Motion for Summary Judgment (Docket No.
39, filed June 9, 2004), Reply of Defendant United States to
Plaintiff's Opposition to Motion for Summary Judgment (Docket No.
43, filed June 16, 2004) and Response in Opposition to Defendant
United States Motion for Summary Judgment (Docket No. 44, filed
June 17, 2004), IT IS ORDERED that the United States' Motion
for Summary Judgment is GRANTED and the action against the United States is DISMISSED WITH PREJUDICE.
IT IS FURTHER ORDERED that the caption of the case is
AMENDED so as to DELETE reference to the United States as a
Presently before the Court is defendant United States' Motion
for Summary Judgment. The United States asserts that it is immune
from suit under the "independent contractor exception" to the
Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 1346(b), 2671. The
Court concludes that the independent contractor exception to
liability under the FTCA applies and plaintiff may not proceed
against the United States. Accordingly, the Court will grant the
United States' Motion for Summary Judgment.
On January 10, 2001, plaintiff slipped and fell on ice and snow
while walking on the sidewalk of the 1900 block of Oregon Avenue,
Philadelphia, PA. Second Amended Complaint ¶ 15. Plaintiff
sustained physical injuries that included nerve damage to his
elbow. Id. ¶ 18.
The Complaint was filed on May 7, 2003 against the U.S.
Department of the Army under the FTCA. Docket ¶ 1 ("Original
Complaint"). In the Original Complaint, plaintiff claimed that
the U.S. Department of the Army, as owner of the property, was
negligent under the respondent superior doctrine for failing to
make the sidewalk safe for its intended purpose. Original
Complaint ¶ 7, 10, 13. By Order dated October 2, 2003, the United
States was substituted for the U.S. Department of the Army as a
defendant. Plaintiff amended the Original Complaint on September
26, 2003 to add the Philadelphia Authority For Industrial
Development ("PAID") as a defendant. Docket ¶ 16 ("Amended
Complaint"). The Amended Complaint was further amended to add the City of Philadelphia as a defendant on January
30, 2004. Docket ¶ 26 ("Second Amended Complaint"). By Order
dated June 25, 2004, PAID was granted leave to file a Third Party
Complaint against Cushman & Wakefield of Pennsylvania, Inc.,
Scott Contractors, Inc., and Affiliated Business Services D/B/A/
Willard Inc. On July 9, 2004, the Court granted the unopposed
motion of the City of Philadelphia to dismiss.
The United States admits that it owned the property at the time
of the incident, but claims that it contractually delegated
maintenance and caretaking responsibilities for the property to
an independent contractor, PAID. The United States seeks summary
judgment, arguing that the independent contractor exception to
the FTCA bars plaintiff from proceeding against the United
"[I]f the pleadings, depositions, answers to interrogatories,
and admissions on file, together with 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[,]"
summary judgment should be granted. Fed.R.Civ.P. 56(c). The
Supreme Court describes the summary judgment determination as
"the threshold inquiry of determining whether there is the need
for a trial whether, in other words, there are any genuine
factual issues that properly can be resolved only by a finder of
fact because they may reasonably be resolved in favor of either
party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250
A court may grant summary judgment if the non-moving party
fails to make a factual showing "sufficient to establish an
element essential to that party's case, and on which that party
will bear the burden of proof at trial." Celotex Corp. v.
Cartrett, 477 U.S. 317, 322 (1986). In making this determination, the non-moving party is entitled to
all reasonable inferences. Pollock v. Am. Tel. & Tel. Long
Lines, 794 F.2d 860, 864 (3d Cir. 1986). A court may not,
however, make credibility ...