Wood v. U.S., 01-2028.

• Citation: 290 F.3d 29
• Decision Date: 10 May 2002
• Docket Number: No. 01-2028.,01-2028.
• Parties: Pamela WOOD, Glenroy WOOD, Plaintiffs, Appellants, v. UNITED STATES, Defendant, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

290 F.3d 29

Pamela WOOD, Glenroy WOOD, Plaintiffs, Appellants, v. UNITED STATES, Defendant, Appellee.

No. 01-2028.

United States Court of Appeals, First Circuit.

Heard January 11, 2002.

Decided May 10, 2002.

COPYRIGHT MATERIAL OMITTED

Ralph A. Dyer with whom the Law Offices of Ralph A. Dyer, P.A. was on brief for appellants.

F. Mark Terison, Senior Litigation Counsel, with whom Paula D. Silsby, United States Attorney, were on brief for appellee.

Before LYNCH, Circuit Judge, CAMPBELL, Senior Circuit Judge, and LIPEZ, Circuit Judge.

LEVIN H. CAMPBELL, Senior Circuit Judge.

I.

A. The Facts

1. The Contract

In 1996, the Navy sought contractor bids for the lead abatement and painting of radio towers ranging in height from 200 to 750 feet, located on the naval base in Cutler, Maine. As part of the award process, bidders were required to submit a two-part proposal. The first part related to pricing alone. The second part consisted of a "technical proposal" with four factors to be addressed: (1) technical expertise (including schedule, quality control, technical approach, and environmental control); (2) corporate management (including organizational structure, management plan, technical personnel, and subcontracting); (3) past experience; and (4) safety plan (including safety plan, safety record, proposed safety procedures, and safety programs/safety awareness/EMR rating). In evaluating each bid, the Navy weighted price and technical factors equally and the four technical factors were also weighted equally with respect to each other. ASI submitted a proposal and was awarded Naval Contract N62472-95-C-0425 (the "Contract") on October 29, 1996. The Contract required that ASI provide "appropriate controls to ensure a safe work environment for employees." Prior to the start of work, ASI was obligated to submit a safety plan demonstrating how the contractual safety goals would be accomplished. ASI presented a safety plan that dictated, inter alia, that all employees exposed to the possibility of falling would wear safety belts and that a project superintendent would make periodic inspections of equipment to assure it was in safe operating condition and properly maintained. According to the plan drafted by ASI, ASI's supervisors would "have the responsibility and the absolute authority to enforce [its] job safety program" to "ensure that no laborer or mechanic employed on this project is allowed to work in surroundings or under conditions which are ... dangerous to his/her health or safety." In addition, the Contract provided that ASI would comply with all federal safety regulations as well as the "Safety and Health" provisions of the Corp of Engineers Manual.

According to the Contract, the Navy was to notify ASI of any non-compliance with the applicable safety provisions of the Contract and identify the corrective action to be taken by ASI. If ASI failed or refused to comply, the Navy was given the option to "issue an order stopping all or part of the work until satisfactory corrective action ha[d] been taken."

2. Safety Violations

After ASI commenced work, the Navy made limited and cursory inspections of the work site. According to the testimony of Navy personnel, it conducted walk-through inspections of the ASI work site several times a week. Each inspection lasted less than an hour and the inspections were confined to the ground level. The inspections were meant to serve a dual purpose: to monitor the quality of ASI's work and to identify possible safety infractions. As required by the Contract, the Navy notified ASI of safety violations that it recognized. In 1997, after being apprized by Navy personnel that ASI was not in compliance with certain safety requirements, the Navy contacted ASI and requested that particular corrective actions be taken. A letter was sent on March 27, 1997, pointing out necessary amendments to ASI's safety plan. After a severe accident on August 20, 1997, another letter was sent to ASI by the Project Engineer, Mark Leighton. In a letter dated August 26, 1997, Leighton noted that ASI was not in compliance with the approved safety plan. On September 17, 1997, yet another letter was sent observing that ASI had failed to address certain issues outlined in the August 26 letter. The Navy recommended a review of ASI's fall protection plan and comprehension training for all employees working on scaffolding.

Meanwhile, the Occupational Safety and Health Administration ("OSHA") was also investigating ASI's compliance with mandated safety regulations after the accident of August 20 had caused serious injury to one of ASI's employees. The accident occurred when two employees were riding a suspension scaffold. The wire cable holding the scaffold broke, dropping the workers to a roof thirty feet below. OSHA cited ASI with eight violations classified as "serious" and administered a penalty of $80,000. During the course of the investigation, OSHA uncovered a similar accident that had occurred just two weeks prior in which a cable broke on a scaffold suspended 720 feet in the air. Fortunately, the five employees on that scaffold reached the ground safely. It appears from the record that ASI had not informed the Navy of the earlier August accident.

As a result of OSHA's investigation and report, issued in February 1998, the Navy informed ASI that, before the 1998 construction season began in June, a revised safety plan, along with several other items, would have to be submitted. After two months had elapsed and ASI had not proffered the requested documents, the Navy threatened to prohibit the start of work on June 1, 1998. On that date, ASI responded to the Navy's requests, and it also hired a full-time Health and Safety Officer, Josh Callander.

3. The Accident

On Sunday, August 23, 1998, Wood, David Boutell, Steve Bailey and Josh Callander were painting one of the towers. They were approximately 250 feet above the ground. As was the norm, the crew had ridden to the work platform on a man-lift.¹ Once the crew arrived, one member descended in the man-lift a short distance, secured it to the side of the tower and then returned to the work platform via the internal ladder. As the crew progressed in its work, the work platform was lowered and eventually the man-lift needed to be lowered as well. It was at this juncture of the process that Bailey instructed Boutell to lower the man-lift.

Boutell left the work platform without his safety harness. Unfamiliar with operating the man-lift, Boutell was having difficulty with the controls and Wood went to assist him. She too failed to wear her safety harness. Apparently the wiring of the man-lift's motor control buttons had been reversed during an earlier repair and had not been re-labeled to reflect the change. As a result, the cable securing the man-lift moved up rather than down. In so doing, it pulled on a large, 3,000 pound concrete block to which the end of the cable was attached. This action strained and broke the ropes securing the man-lift. The man-lift fell approximately 70 feet before the slack in the cable ran out. Boutell was thrown to his death. Wood managed to remain on the platform but sustained injuries.

The subsequent OSHA investigation resulted in the assessment of penalties of $383,500 against ASI. Five citations were considered wilful and resulted in the maximum penalty allowed under law. Several of the citations were directly related to the accident. Specifically, OSHA cited ASI for making unauthorized modifications to the scaffolds and their controls, including tying off the man-lift to the tower, attaching the man-lift to a fixed object on the ground, reversing the control buttons on the man-lift's hoist control and failing to label the change, and failing to ensure that employees working were protected by the means of a "personal fall arrest system." Following the accident, the Navy temporarily suspended work on the towers.

Pamela Wood and her husband thereafter brought this action in district court. In their complaint, the Woods allege that the Navy acted negligently in both the selection and the supervision of Wood's employer, ASI. In Count I, the Woods asserted that the Navy had negligently selected ASI to be the contractor for the project. In Counts II and III, the Woods alleged that the Navy had failed to take the precautions necessary to protect ASI employees against known dangers, both by failing to ensure a safe work environment and by failing to exercise reasonable supervisory control over ASI. Finally, in Count IV, the Woods sought punitive damages.²

The government moved to dismiss the complaint and, in the alternative, sought summary judgment, asserting that the Woods' claims were barred by the "discretionary function" exception to the FTCA. 28 U.S.C. § 2680 (1994). After allowing limited discovery, the district court concluded that the conduct alleged to be negligent fell within the discretionary function exception. See Wood v. United States, 148 F.Supp.2d 68 (D.Me.2001); Wood v. United States, 115 F.Supp.2d 9 (D.Me.2000). Alternatively, the court determined that ASI was an independent contractor, and that the Navy was not liable for any breach of ASI's duty to Wood as its employee. We affirm.

II.

A. The Federal Acquisition Regulations

In the Competition in Contracting Act of 1984 ("Act"), Congress created the Office of Federal Procurement Policy ("Office") to exercise responsibility for, and oversight of, the procurement of property and services³ for the federal government. 41 U.S.C. § 404 (1987 & Supp.2001). To the administrator of the Office ("Administrator"), Congress granted the discretion to prescribe reasonable rules and regulations governing the procurement of property and services by an executive agency, including departments of the military. Id. §§ 403, 404. The goal of the Act is to obtain maximum efficiency in the expenditure of public resources.

To implement a uniform procurement system, the...