Cochran v. U.S.

Decision Date01 September 1998
Docket NumberNo. 3:97CV389/RV.,3:97CV389/RV.
Citation38 F.Supp.2d 986
PartiesInez COCHRAN, Plaintiff, v. UNITED STATES of America and Bowling Mgt. Assocs, Inc., Defendants. Bowling Mgt. Assocs, Inc., Cross-Claim Plaintiff, v. United States of America, Cross-Claim Defendant.
CourtU.S. District Court — Northern District of Florida

David Warner Hiers, Bell Schuster Wheeler et al., Pensacola, FL, for Inez Cochran, plaintiff.

Michael P. Finney, U.S. Attorney, Northern District of Florida, Pensacola, FL, for United States, defendant.

Robert Scott Traweek, Janecky Newell Potts Hare & Wells, Pensacola, FL, for Bowling Mgt. Assocs Inc., defendant.

ORDER

VINSON, Chief Judge.

Pending is the United States of America's motion to dismiss. (Doc. 15) In the alternative the government moves for summary judgment, and Rule 56 notice was provided to allow consideration of matters outside the pleadings.

I. FACTUAL BACKGROUND

This is an action pursuant to the Federal Tort Claims Act ("FTCA") [28 U.S.C. §§ 1346(b), 2671-2680], and state negligence law. The plaintiff alleges that due to the negligence of the United States of America and Bowling Management Associates, Incorporated ("BMA"), she tripped and fell over a stack of panels that BMA was using to resurface the lanes in the Star and Strikes Bowling Center ("Center"), at the Naval Air Station in Pensacola, Florida ("NAS Pensacola"). The United States of America was, and is, the owner and operator of the Center, and BMA was the independent contractor hired to actually perform the resurfacing work.

J. Rogers Patrick, the director of the Navy Morale, Welfare, and Recreation Department at NAS Pensacola, contracted with AMF Corporation (not a party to this action) to purchase lane resurfacing material for the Center. AMF included the installation price of the material in its quote to the government and subcontracted the installation work to BMA. BMA was in the process of resurfacing the lanes at the Center on the day of the plaintiff's accident. Before beginning the project, BMA workmen told Jesse Shealy, the Center's manager, that it was their usual practice to work with all of the panels stacked inside the bowling alley. Based on the suggestions of the BMA employees, Shealy selected five sites within the Center on which to stack the material. According to the United States, Shealy selected sites that would disrupt the operation of the Center as little as possible, and, at the same time, allow BMA's workmen easy access to the panels. Each panel was 5/8 inch thick, and measured 44 inches wide by 12 feet long. Four stacks were placed in the bowling alley's main walkway, and a fifth stack was placed between alleys 16 and 17. Neither the United States nor BMA placed warning signs or barriers anywhere in the Center. All of the stacks were originally about table height before any work was started. However, the height of each stack was incrementally reduced by the BMA workmen as the project progressed. While the work was in progress, the plaintiff tripped over one of the stacks in the walkway and fractured her hip. At the time of the accident, there were only six or eight lanes remaining to be resurfaced, and the stack that the plaintiff tripped over had been reduced to a height of approximately knee level.

The plaintiff alleged in her complaint that the United States was negligent by: (1) keeping the bowling alley open during the renovation; (2) creating or allowing a dangerous condition to exist; (3) failing to warn the plaintiff of the dangerous condition created by the panels; and (4) failing to properly supervise its contractor.

The United States filed the present motion to dismiss1 on three grounds. First, the United States contends that the plaintiff failed to state a cause of action against it for negligence because the stack of material that the plaintiff tripped over was open and obvious, and, therefore, not a hazardous condition. Second, the United States asserts that if I determine that the stack was a hazardous condition, then I should find that it was caused exclusively by BMA. According to the United States, it was the height of the stack that the plaintiff tripped over that caused the dangerous condition, and since the reduction in the height of the stack was caused exclusively by the work being done by the BMA workers, it cannot be held liable by virtue of the independent contractor exception to the FTCA. Third, the United States contends that if I find that it contributed to the creation of the hazardous condition by keeping the center open during the renovation, or by allowing BMA employees to stack the panels inside the Center, then it is shielded from liability by virtue of the discretionary function exception to the FTCA.

II. DISCUSSION
A. Motion to Dismiss Standard

There are two forms of attacks on subject matter jurisdiction under Rule 12(b)(1), Federal Rules of Civil Procedure: facial attacks and factual attacks. "Facial attacks on the complaint require[ ] the court merely to look and see if [the] plaintiff has sufficiently alleged a basis of subject matter jurisdiction, and the allegations in [the] complaint are taken as true for the purposes of the motion." Lawrence v. Dunbar, 919 F.2d 1525, 1528 (11th Cir. 1990) (citing Menchaca v. Chrysler Credit Corp., 613 F.2d 507, 511 (5th Cir.1980)).2 "Factual attacks, on the other hand, challenge the existence of subject matter jurisdiction in fact, irrespective of the pleadings, and matters outside the pleadings, such as testimony and affidavits, are considered." Id.

In this case, the United States' motion primarily raises a facial attack to the complaint. The United States argues in its memorandum of law that there are no issues of material fact with regard to whether I have jurisdiction to grant the relief sought, and that subject matter jurisdiction is lacking. According to the United States, the plaintiff's claims are barred by the FTCA's discretionary function and independent contractor exceptions, even if the plaintiff's allegations of negligence are taken as true. As with a Rule 12(b)(6) motion, the allegations of the complaint are taken as true when the moving party has raised a facial attack to the complaint. See Lawrence v. Dunbar, supra, 919 F.2d at 1529 (citing Williamson v. Tucker, 645 F.2d 404, 412 (5th Cir.1981)). To the extent that the motion raises a factual attack, the material facts are not in dispute except as noted.

B. Analysis

The method of analysis of this matter has been set out by the Eleventh Circuit: "Consideration of a case such as this under the FTCA requires a three-step inquiry: First, are the alleged negligent acts or omissions discretionary functions which are immune from suit under the FTCA? Second, if not, does FTCA's independent-contractor exception apply to insulate the United States against liability? Third, if not, are the theories of liability asserted cognizable under the applicable state tort law?" Dickerson, Inc. v. United States, 875 F.2d 1577, 1580 (11th Cir.1989). This three step inquiry is necessary because the determination of whether the plaintiff's negligence claims are barred by the FTCA's discretionary function or independent contractor exceptions presents a question of subject matter jurisdiction, which must be resolved first before any attempt is made to reach the merits of those claims. Accordingly, I will first consider the discretionary function exception and then the independent contractor exception.

(1) Discretionary Function Exception

The FTCA waives the United States' sovereign immunity from suit in federal court for its employees' negligence. See 28 U.S.C. § 1346(b). However, the discretionary function exception provides that the United States' sovereign immunity is not waived as to "[a]ny claim ... based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused." 28 U.S.C. § 2680(a).

The Supreme Court of the United States has developed a somewhat mechanical two-part test for determining whether challenged conduct falls within the discretionary function exception. First, the trial court should determine whether the nature of the challenged conduct involves "an element of judgment or choice." United States v. Gaubert, 499 U.S. 315, 322, 111 S.Ct. 1267, 1273, 113 L.Ed.2d 335 (1991) (quoting Berkovitz v. United States, 486 U.S. 531, 536, 108 S.Ct. 1954, 1958, 100 L.Ed.2d 531 (1988)); see also Ochran v. United States, 117 F.3d 495, 499 (11th Cir.1997). For example, if a federal statute or regulation mandates the course of action that a government employee must follow in a certain circumstance, no element of judgment or choice is present, and the discretionary function exception does not apply. Berkovitz v. United States, supra, 486 U.S. at 536, 108 S.Ct. at 1958. However, if the challenged conduct involves an element of judgment or choice, then the court must determine under the second part of the test whether the judgment or choice is grounded in considerations of social, economic, and political policy. This is because "the purpose of the [discretionary function] exception is to prevent judicial `second-guessing' of legislative and administrative decisions grounded in social, economic, and political policy through the medium of an action in tort." United States v. Gaubert, supra, 499 U.S. at 323, 111 S.Ct. at 1273 (quoting United States v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797, 814, 104 S.Ct. 2755, 2765, 81 L.Ed.2d 660 (1984)).

Under the first part of the test, the "relevant inquiry is whether the controlling statute or regulation mandates that a government agent perform his or her function in a specific manner." Hughes v. United States, 110 F.3d 765, 768 (11th Cir.1997). Under the second part of the test, I must "look to the...

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4 cases
  • Moore v. United States, 1:13-cv-301-WSD
    • United States
    • U.S. District Court — Northern District of Georgia
    • March 11, 2014
    ...or actually accomplished is necessarily a question of judgment, or discretion, for the government.").3 In Cochran v. United States, 38 F. Supp. 2d 986 (N.D. Fla. 1998), the District Court applied the discretionary function exception in a case similar to the one here. In Cochran, the plainti......
  • Moore v. United States, 1:13-cv-301-WSD
    • United States
    • U.S. District Court — Northern District of Georgia
    • March 11, 2014
    ...or actually accomplished is necessarily a question of judgment, or discretion, for the government.").3 In Cochran v. United States, 38 F. Supp. 2d 986 (N.D. Fla. 1998), the District Court applied the discretionary function exception in a case similar to the one here. In Cochran, the plainti......
  • Graham v. U.S. & Reliant Servs., Inc.
    • United States
    • U.S. District Court — District of South Carolina
    • March 1, 2018
    ...just the type of custodial issue—namely, the wet floor of the produce section—that led to Graham's fall. Likewise, in Cochran v. U.S., 38 F. Supp. 2d 986 (N.D. Fla. 1998), the court held that the discretionary function exception precluded Navy officials' liability for keeping a bowling alle......
  • Cosby v. United States
    • United States
    • U.S. District Court — Middle District of Georgia
    • February 6, 2012
    ...or independent contractor exceptions [as they both] present[ ] a question of subject matter jurisdiction." Cochran v. United States, 38 F. Supp. 2d 986, 990 (N.D. Fla. 1998). The method of such a jurisdictional inquiry has been set out by the Eleventh Circuit: "First, are the alleged neglig......

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