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RICHARDSON v. PHILADELPHIA AUTHORITY FOR INDUSTRIAL DEV.

United States District Court, E.D. Pennsylvania


July 16, 2004.

BRANCH RICHARDSON Plaintiff,
v.
PHILADELPHIA AUTHORITY FOR INDUSTRIAL DEVELOPMENT; UNITED STATES OF AMERICA; Defendants, PHILADELPHIA AUTHORITY FOR INDUSTRIAL DEVELOPMENT Third-Party Plaintiff, v. AFFILIATED BUSINESS SERVICES, d/b/a WILLARD INC.; SCOTT CONTRACTORS, INC.; CUSHMAN & WAKEFIELD OF PENNSYLVANIA, INC. Third-Party Defendants.

The opinion of the court was delivered by: JAN DuBOIS, District Judge

ORDER AND MEMORANDUM

ORDER

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 defendant.

  MEMORANDUM

  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.

  I. BACKGROUND

  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 States.

  II. STANDARD OF REVIEW

  "[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 (1986).

  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 determinations or weigh the evidence in making its determination. Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 150 (2000).

  III. DISCUSSION

  Under the FTCA, liability can be imposed against the United States only for the negligence of its officers or employees acting within the scope of their employment. 28 U.S.C. § 1346(b). The circumstances must be such that "the United States, if a private person, would be liable to the claimant" under applicable state law. Id.

  Federal employees, for purposes of the FTCA, are defined as "employees of any federal agency." 28 U.S.C.A. § 2671. A federal agency includes "the executive departments, the judicial 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." Id. (emphasis added). Thus, the United States does not waive its right to immunity from suit where the complained of negligence was committed by an independent contractor and not a federal employee. Since the United States cannot be sued unless it waives its immunity, a plaintiff has no cause of action against the United States when a negligent or wrongful act is committed by an independent contractor. United States v. Orleans, 425 U.S. 807, 814 (1976).

  The determination as to whether a party is a federal employee or an independent contractor turns on the federal government's power "to control the detailed physical performance of the contractor." See Norman v. United States, 111 F.3d 356, 357 (3d Cir. 1997) (quoting United States v. Orleans, 425 U.S. 807, 814 (1976)). If the federal government has supervisory control over a party's day-to-day operations, the party is considered an employee. Id. Without day-to-day supervisory control, the party is considered an independent contractor. Id. The determination is unaffected by whether the party receives money from the federal government or is required to "comply with federal standards and regulations." Id.

  Courts in this circuit have frequently reviewed the contract between the United States and a contractor to determine whether the United States exercised day-to-day supervision over the work of a contractor. Dugan v. Coastal Industries, Inc., 96 F. Supp.2d 481, 483 (E.D.Pa. 2000). For example, in Young v. Marriott Intern., Inc., another court in this district held that the independent contractor exception to the FTCA shielded the United States from liability in a personal injury action because the contract between the United States and the contractor expressly required the contractor to clean up spills and remove hazardous conditions from the facility. 1997 WL 700493 1 (E.D. Pa. 1997).

  The United States has submitted evidence that at the time of the accident PAID was responsible for maintaining the sidewalk at issue and argues that, based on the relationship between PAID and the United States, PAID should be classified as an independent contractor. In 1999, PAID and the United States entered into a Cooperative Agreement Award ("Cooperative Agreement") that incorporated, inter alia, an 84-page Caretaker Operations Requirement Statement ("Caretaker Statement"). Def. U.S. Motion Ex. B. The Cooperative Agreement transferred maintenance responsibility from the federal government to PAID for the entire property. Id. Subsection 5.3 of the Caretaker Statement, the Pavements Maintenance provision, expressly required PAID to "prepare a Snow and Ice Control Plan" and to "perform snow and/or ice removal for all areas." Def. U.S. Motion Ex. B-2 (Caretaker Statement p. 18, Section 5.3.2). Under the Cooperative Agreement, PAID provided the United States with Quarterly Status Performance Reports covering the performance of services under the contract. Def. U.S. Motion Ex. B (Cooperative Agreement p. 4).

  PAID subcontracted the day-to-day operations and maintenance requirements of the Cooperative Agreement to Cushman & Wakefield. Def. U.S. Motion p. 11. Cushman & Wakefield, in turn, subcontracted the snow removal and sidewalk maintenance responsibilities to Scott Contractors and Williard, Inc. Id. Scott Contractors was hired by Cushman & Wakefield to remove snow and ice after winter storms. Id. Williard, Inc., was hired by Cushman & Wakefield to put down salt as needed until the snow melted. Id. In connection with its contract with PAID, Cushman & Wakefield created a snow map showing the area covered by their snow removal services — the map included the sidewalk where plaintiff slipped. Def. U.S. Motion Ex. D, McGettingan Dep. at p. 43, 44.

  A contractor is not considered an employee simply because the contractor is required to provide a minimum quality of service or adhere to contractual obligations. Norman, 111 F.3d at 357. The deposition testimony and the Cooperative Agreement establish that PAID was an independent contractor with broad maintenance responsibility for the sidewalk at the time of the incident, including snow and ice removal. The requirement that PAID provide Quarterly Status Performance Reports to the federal government does not make PAID an employee of the United States. Nothing in the record suggests that the United States retained day-to-day supervisory control over PAID. Plaintiff has submitted no evidence on the question whether PAID is an independent contractor. Under all the evidence presented, the Court concludes that PAID was an independent contractor.

  Plaintiff's only argument in opposition to the Motion for Summary Judgment is that the independent contractor exception is not available under Pennsylvania law because a landowner in Pennsylvania has a non-delegable duty to remove dangerous conditions from the property. In advancing this argument plaintiff relies on Dickerson, Inc. v. United States, 875 F.2d 1577 (11th Cir. 1989), in which the Eleventh Circuit, applying Florida law, held that the independent contractor exception of the FTCA was not available as a defense to the United States because a landowner's duty to remove dangerous conditions from the property is non-delegable. What plaintiff fails to state in his motion papers is that the Third Circuit expressly rejected Dickerson in Norman v. United States, 111 F.3d 356 (3d Cir. 1997).

  In Norman, the plaintiff slipped on water and ice located on the floor of the Ceremonial Court Corridor of the William J. Green Federal Building and the Byrne Courthouse Building in Philadelphia. The Third Circuit determined that the persons responsible for maintaining the floor were independent contractors because they were "given broad responsibilities for daily maintenance" and were not subjected to government direction or supervision. Id. at 357, 358. In the alternative, the plaintiff in Norman argued, as does plaintiff in this case, that under Pennsylvania law, a landowner's duty to remove dangerous conditions was non-delegable, and that, as a result, the independent contractor exception to FTCA liability was inapplicable. The Third Circuit recognized a circuit split on that issue, citing Dickerson, in which the federal government was held liable under federal law, and Berkman v. United States, 957 F.2d 108 (4th Cir. 1992), which held that the independent contractor exception precluded federal governmental liability even though liability could be imposed on non federal entities under state law, and rejected Dickerson. Instead, the Third Circuit adopted Berkman, stating "we believe the Fourth Circuit offers the better reasoned analysis and we accept it as our own". Norman, 111 F.3d 356, 358 (3d Cir. 1997). The rationale of Berkman, now the law of this circuit, is as follows:

[A]lthough the threshold inquiry into governmental liability as defined by the FTCA requires an examination of state law to define tortious conduct, the question of whether a state law tort can be applied against the United States is exclusively one of federal law.
* * * * * *
We find nothing in the language of the act or in the legislative history of the FTCA to indicate that Congress considered the existence of a generalized liability, attributable to the United States based on any breach of a state defined duty.
Berkman, 957 F.2d at 112-113 (4th Cir. 1992).

  The Court concludes that the independent contractor exception to FTCA liability applies to this case. It is well understood that the federal government's activities are not performed exclusively by its employees, and, in fact, the government relies on contractors to conduct a wide array of services and functions. Id. at 112. The "FTCA is to be narrowly construed against waivers of sovereign immunity." Id. at 113. By expressly excluding contractors from the FTCA's reach, Congress manifested an intent not to waive sovereign immunity for negligent acts committed by independent contractors. Id. at 112. IV. CONCLUSION

  For the reasons stated above, the Court concludes that the independent contractor exception of the FTCA applies to this case. Accordingly, the United States enjoys sovereign immunity, and its Motion for Summary Judgment is granted.

20040716

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