United States District Court, E.D. Pennsylvania
July 16, 2004.
BRANCH RICHARDSON Plaintiff,
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
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
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
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).
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
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.
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.
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
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.
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.
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