Fraser v. U.S.

Decision Date04 June 2007
Docket NumberNo. 06-CV-4345 (ILG).,06-CV-4345 (ILG).
Citation490 F.Supp.2d 302
PartiesOscar FRASER, Plaintiff, v. UNITED STATES of America, Defendant.
CourtU.S. District Court — Eastern District of New York

Vincent I. Eke-Nweke, Law Office of Vincent I Eke-Nweke P.C., Brooklyn, NY, for Plaintiff.

Margot P. Schoenborn, United States Attorneyes Office Eastern District of New York Brooklyn, NY for Defendant.

MEMORANDUM AND ORDER

GLASSER, Senior District Judge.

INTRODUCTION

Plaintiff Oscar Fraser ("Fraser" or "Plaintiff') filed this action against the United States of America ("the Government") seeking damages for personal injuries under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346(b), 2401(b), 2671-2680 (2006).1 Fraser, a construction worker, alleges that he sustained injuries when a concrete capstone that was being hoisted by a forklift fell from a height of approximately ten to eleven feet, causing the makeshift scaffold upon which he was standing to collapse. See Compl. ¶ 24. The Government now moves to dismiss the complaint pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure ("Rule 12(b)(1)"). For the reasons set forth below, the Court grants the Government's motion.

FACTS

The Government, by and through the Federal Bureau of Prisons, owns the premises and buildings located at 63 Flushing Avenue, Building No. 4 in the Brooklyn Navy Yard in Brooklyn, New York (the "Premises"). See Compl. ¶¶ 19, 11. On March 28, 2005, the United States, through the Federal Bureau of Prisons awarded a contract to Cooper Construction Inc. ("Cooper") for the purpose of renovating the Premises.2 See id. ¶¶ 13-14; Declaration of Assistant United States Attorney Margot Schoenborn ("Schoenborn Decl."), dated February 15, 2007, Ex. A.

A. The Accident

From approximately July 2005, through January 20, 2006, Fraser was employed as a mason and carpenter on the Premises. See Affidavit of Plaintiff in Opposition to the Defendant's Motion to Dismiss ("Pl. Aff."), dated April 20, 2007, ¶ 3. On or about January 20, 2006, Fraser sustained injuries when a concrete capstone that was being hoisted by a forklift fell from a height of approximately ten to eleven feet, causing the makeshift scaffold upon which Fraser was standing to collapse. See Compl. ¶ 24; Pl. Aff. ¶ 9. Fraser sustained several injuries for which he underwent surgery and physical therapy. See Pl. Aff. ¶ 10. Fraser claims that, prior to January 20, 2006, he complained to "Mike" the "foreman of the construction project" that the "makeshift scaffold was too narrow and not suitable for the work [Fraser] did with respect to the installation of the capstones and the construction project generally."3 Pl. Aff. ¶¶ 6, 13.

B. The Complaint

Plaintiff alleges that the injuries he suffered as a result of the fall were "due to the negligence, carelessness and recklessness of the defendant, its Bureau of Prisons, agents, servants and/or employees" in failing to, amongst other things, properly maintain, construct, grade, level or pave the ground or surface upon which the forklift was operating, thus allowing it to be operated on an uneven surface which caused the forklift to "wobble, shake and dislodge the capstone." Compl. 27. He also alleges that the Government was negligent in failing to properly erect the scaffolding upon which Fraser was standing at the time he fell, and in failing to provide proper safety equipment. See Compl. 1127. Fraser complains that a forklift was "not the proper equipment for lifting a capstone," and that the makeshift scaffolding was too narrow. See Pl. Aff. ¶ 11. Additionally, Fraser claims that the pavement upon which the forklift was operated, which was located in the rear of the warehouse that was being renovated, was broken, not part of the construction project, and that this condition preexisted plaintiffs employment at the Premises in July 2005. See Pl. Aff. ¶¶ 11, 15-16.

C. The Contract

Plaintiff has challenged the authenticity of the contract attached within Exhibit A to the Schoenborn Declaration (the "Contract"). See Pl. Br. at 3. Exhibit A consists of the Solicitation, Offer and Award (Standard Form 1442), dated June 2, 2005 between the Government and Cooper. See Schoenborn Decl. ¶ 1, Ex. A. The documents in Exhibit A include the Standard Form 1442, the Standard Form 24 (the Bid Bond), a Power of Attorney form, a letter from the Contracting Officer to Cooper with respect to its bid, and a form marked "IFB 21451-0035." IFB 2145-3035 consists of three sections containing provisions that allocate and delegate specific responsibilities between the Government and Cooper.

Fraser argues that, because a box in paragraph 29 on the Standard Form 1442 is checked, that means that the Standard Form 1442, which is three pages in length, constituted the entirety of the contract between the Government and Cooper. Paragraph 29 states, "Award (Contractor is not required to sign this document) Your offer on this solicitation, is hereby accepted as to the items listed. This award consummates the contract, which consists of (a) the Government solicitation a.n. your offer, and (b) the contract award. No further contractual document is necessary." Schoenborn Decl., Ex. A, Standard Form 1442 ¶ 29. (emphasis added). Fraser also contends that the silence of Robert J. Kruskie, who signed the Standard Form 1442 as the Contracting Officer, as to the authenticity of Sections I, I:, and III of IFB 21451-0035 is evidence that IFB 21451-0035 and the attachments referenced therein were not part of the Cooper Contract.

The Government defends the authenticity of the Contract. The Government submitted a declaration from Patrick J. Nicholson, the Contracting Officer's Technical Representative ("COTR"), that states that the contract attached to the Schoenborn Declaration was indeed the Cooper Contract which he abided by in overseeing the construction. See Reply Declaration in Support of Motion to Dismiss ("Nicholson Decl."), dated May 2, 2007, 113. The Government further argues that Sections I, II, and III of IFB 21451-0035 were, in fact, incorporated by the Standard Form 1442 pursuant to paragraphs 11 and 14 of the amendments to the Standard Form 1442. Paragraph 11 indicates that the Standard Form 1442 is amended by the items set forth in paragraph 14. Schoenborn Decl., Ex. A, Standard Form 1442 at 2 ¶ 11. Paragraph 14 lists certain amendments to the Specifications attached to IFB 21451-0035. See id. ¶ 14.

Sections I, II, and III of IFB 21451-0035 set forth the division of responsibility between the Government and Cooper. By reference to multiple clauses under the Federal Acquisition Regulations System (48 C.F.R. Ch. 1), Section III incorporated several delegations of responsibility to Cooper with regards to the safety and upkeep of the Premises. See Schoenborn Decl., Ex. A, IFB 21451-0035 § Specifically, it incorporated 48 C.F.R. 52.236-7, which delegates to the contractor the responsibilities of "obtaining any necessary licenses and permits, and for complying with any Federal, State, and municipal laws, codes, and regulations applicable to the performance of the work." The same regulation also obligates the contractor to assume liability for "all damages to persons or property that occur as a result of the Contractor's fault or negligence." Id. With regards to the safety of the Premises, the Contract incorporated 48 C.F.R. 52.236-13, which requires the contractor to "provide and maintain work environments and procedures which will ... safeguard the public and Government personnel, property, materials, supplies and equipment exposed to Contractor operations and activities" as well as take corrective action upon notice from the Government for "any condition which poses a serious or imminent danger to the health or safety of the public or Government personnel...." Aside from the incorporated regulations, Section I specifically required the contractor to "Wake all reasonable steps and precautions to prevent accidents and preserve the life and health of the contractor and Government personnel performing or in anyway coming in contact with the performance of this contract...." Schoenborn Decl., Ex. A, IFB 21451-0035 § I.14(c).

Section III also reserved to the Government the right to inspect the contractor's work and provide general direction. It states that the COTR would be responsible for "inspecting and accepting the supplies or services provided hereunder in accordance with the terms and conditions of this contract; providing direction to the contractor which clarifies the contract effort, fills in details or otherwise serves to accomplish the contractual Scope of Work; [and] evaluating performance...." Id. § III.7(b). Section III identified Patrick J. Nicholson of the Metropolitan Correctional Center of the Department of Justice, Federal Bureau of Prisons, as the COTR for the renovations on the Premises. It also specifically stated that Nicholson did "not have the authority to alter the contractor's obligations under the contract, and/or modify any of the expressed terms, conditions, specifications, or cost of the agreement." Id. § III.7(c). Indeed, Nicholson's declaration confirms that as the COTR for the Cooper Contract, he was "responsible for overseeing" the technical aspects of construction to ensure that the renovations were completed consistent with the contract's Specifications and Drawings, as well as any applicable safety regulations. Nicholson Decl. ¶¶ 12, 3, 6.

DISCUSSION
A. Standard of Review

Rule 12(b)(1) allows for the dismissal of a claim when a federal court has a "lack of jurisdiction over the subject matter." The plaintiff bears the burden of proving by a preponderance of the evidence that the court retains jurisdiction. See Makarova v. United States, 201 F.3d 110, 113 (2d Cir.2000) ("A plaintiff asserting subject matter jurisdiction has the burden of proving by a preponderance of the evidence that it exists."); Arndt v. UBS AG, 342...

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