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RICHARDSON v. PHILADELPHIA AUTHORITY FOR INDUSTRIAL DEV.

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 ...


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