Berkman v. U.S.

• Decision Date: 20 February 1992
• Docket Number: No. 91-3037,91-3037
• Citation: 957 F.2d 108
• Parties: Monroe E. BERKMAN, Plaintiff-Appellant, v. UNITED STATES of America, Defendant & Third Party Plaintiff-Appellee, v. ARROW GENERAL, INCORPORATED, Third Party Defendant-Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 108

957 F.2d 108

Monroe E. BERKMAN, Plaintiff-Appellant, v. UNITED STATES of America, Defendant & Third Party Plaintiff-Appellee, v. ARROW GENERAL, INCORPORATED, Third Party Defendant-Appellee.

No. 91-3037.

United States Court of Appeals, Fourth Circuit.

Argued Oct. 31, 1991.

Decided Feb. 20, 1992.

Jon Franklin Mains, Mains & Mains, Alexandria, Va., argued, for Berkman.

Dennis Edward Szybala, Asst. U.S. Atty., Alexandria, Va., argued for appellees (Henry E. Hudson, U.S. Atty., Alexandria, Va., on brief for U.S., William Joseph Carter, Carr, Goodson & Lee, P.C., Fairfax, Va., on brief, for Arrow General).

Before WILKINSON and NIEMEYER, Circuit Judges, and HARVEY, Senior District Judge for the District of Maryland, sitting by designation.

OPINION

NIEMEYER, Circuit Judge:

While disembarking from a mobile lounge to the terminal at Washington's Dulles International Airport in northern Virginia, Monroe E. Berkman slipped on hydraulic fluid that escaped from a door mechanism and fell, injuring himself. He sued the United States for negligence under the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346(b), 2671-2680 (1988), as the airport facilities were owned and operated by the Federal Aviation Administration (FAA), Department of Transportation. The district court concluded that the negligence, if any, was that of an independent contractor which was under contract to clean and maintain the airport facilities and dismissed the case under the FTCA's independent contractor exception. See 28 U.S.C. § 2671. On appeal, Berkman contends that (1) the duty to maintain premises in a safe condition is not delegable under Virginia tort law which is incorporated into the FTCA and, therefore, the United States remains liable even if the conduct was that of an independent contractor; (2) that the United States exercised day-to-day control over the independent contractor's work and is thus liable on an agency theory; and (3) that independent negligence on the part of employees of the United States, in any event, contributed to cause his injury.

Although the question is not settled, we agree with the district court that the independent contractor exception to the waiver of sovereign immunity under the FTCA excludes liability based solely on the negligence of an independent contractor. This is true even though Virginia law, which is incorporated under 28 U.S.C. § 1346(b), might hold other property owners liable for injuries resulting from unsafe conditions on the land because the duty to maintain property in a reasonably safe condition is nondelegable. We also agree that agency theory provides no basis to impute to the United States the negligence of the independent contractor. Because the district court never reached Berkman's claim based on the direct negligence of the FAA, however, we find it necessary to vacate the judgment and remand the case for consideration of that claim.

I

On May 17, 1987, Monroe E. Berkman, who was a passenger on a mobile lounge used to transfer him from an aircraft to the terminal at Washington's Dulles International Airport, slipped and fell while moving across a metal plate located in the doorway between the mobile lounge and the terminal. Berkman, who has walked with the aid of leg braces and crutches since age 12, slipped on an "oily substance" that had dropped onto the metal plate. The Federal Aviation Administration (FAA), an agency of the United States Department of Transportation, owned and operated Dulles International Airport at the time. After the accident, the terminal lounge supervisor, an employee of the FAA, contacted the terminal electrician, who was apparently also an employee of the FAA, and instructed the electrician to inspect the door through which Berkman was walking when he fell. The record reveals that the terminal electrician did inspect the door and concluded from that inspection that the door was leaking hydraulic fluid. Because the electrician was unable to repair the door, the gate was put out of operation. Later that same day, another FAA employee repaired the leaking door and returned the gate to service.

On July 11, 1988, Berkman filed a damage claim with the Department of Transportation, and the Department, by letter dated May 15, 1990, denied his request for relief. Having spent nearly two years in exhausting his administrative options, Berkman filed suit in federal court against the United States alleging that the FAA was negligent in (1) lubricating the doors, (2) keeping the premises clean, (3) seeing to it that "slippery foreign substances were not left on the floor," (4) failing as a common carrier to transport him safely, and (5) failing to warn him of the hazardous condition. The government answered, denying liability, and filed a third-party claim against Arrow General, Incorporated, a company with which the FAA contracted to provide custodial services at Dulles. The government alleged, apparently for the first time, that Arrow General was responsible for the oily floor which caused Berkman's fall.

The scope of the contract between the FAA and Arrow General is described by the contract's terms:

This contract includes: floor cleaning and maintenance; restroom cleaning, disinfecting, and servicing; room cleaning; dusting; policing; routine inspection; and miscellaneous tasks as specified in C.10, Technical Specifications. It is also the declared intention of this contract to provide refuse removal services and walk-off mat services as described in C.10, Technical Specifications.

Nothing in section C.10 of the contract, or anywhere else in that document, assigns mechanical, electrical or hydraulic work to Arrow General. Nor does the contract appear to delegate maintenance (other than cleaning) of the malfunctioning door which may have been a cause of Berkman's fall.

Shortly after answering and impleading Arrow General, the United States filed a motion to dismiss the complaint or, in the alternative, for summary judgment, on grounds that the government cannot be held liable for Arrow General's alleged negligence. The United States argued that Arrow General was an independent contractor, and was responsible for failing to discover and remove the oily substance which caused Berkman's injuries. The district court granted the motion to dismiss, concluding that:

the negligence complained of is that of an independent contractor, Arrow General, Inc., and ... the liability of the United States as owner of the premises cannot be asserted under the Federal Tort Claims Act.

This appeal followed.

II

The tort liability of the United States in this case rests entirely upon the waiver of sovereign immunity under the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346(b), 2671-2680. "That Act provides for 'a limited waiver of sovereign immunity, making the Federal Government liable to the same extent as a private party for certain torts of federal employees acting within the scope of their employment.' " Wood v. Standard Products Co., Inc., 671 F.2d 825, 829 (4th Cir.1982) (quoting United States v. Orleans, 425 U.S. 807, 813, 96 S.Ct. 1971, 1975, 48 L.Ed.2d 390 (1976)). The FTCA, by its own terms, applies only to the acts of federal employees and explicitly excludes the possibility of federal government liability for the acts of independent government contractors. Section 1346(b) covers injuries "caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment" (emphasis added), but the term, employee of the government, "does not include any contractor with the United States," see 28 U.S.C. § 2671.

Berkman contends that, even if an independent contractor was negligent in failing to clean and maintain the terminal facilities, the United States is nevertheless liable as an "owner and occupier" of the airport. He notes that the United States waives immunity and accepts liability to the extent that a "private person[ ] would be liable to the claimant in accordance with the law of the place where the act or omission occurred." 28 U.S.C. § 1346(b). Under Virginia law (Virginia being the state in which the airport is located), an owner and occupier of land may not delegate to third persons its duty to maintain premises in a reasonably safe condition for its invitees. See, e.g., Love v. Schmidt, 239 Va. 357, 389 S.E.2d 707, 710 (1990) (holding that landlord's common law duty to provide reasonably safe premises cannot be delegated to independent contractor). Berkman therefore asserts that since, under Virginia law, a private owner or occupier of premises has a nondelegable duty to invitees to keep the premises reasonably safe, so too does the United States. His position is supported by Dickerson, Inc. v. United States, 875 F.2d 1577, 1582-84 (11th Cir.1989), where the court, faced with the same question presented here, stated, "the independent contractor exception in the FTCA would not insulate the Government from the contractor's negligence if the duty was nondelegable under Florida law." Id. at 1583. Berkman's contentions therefore raise the question whether the independent contractor exception of 28 U.S.C. § 2671 limits the scope of waiver under 28 U.S.C. § 1346(b). We hold that it does.

We note from the start that, although 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. Claimants obtain their " 'right to sue [the federal government] from Congress [and they] necessarily must take it subject to such restrictions as have been imposed.' " Dalehite v. United States, 346 U.S. 15, 31, 73 S.Ct. 956, 965, 97 L.Ed. 1427 (1953) (quoting Federal Housing Administration v. Burr, 309 U.S. 242, 251, 60 S.Ct. 488, 493, 84 L.Ed. 724 (1940)). As stated in Logue v. United States, 412 U.S. 521, 528, ...