Berghoff v. US

• Decision Date: 01 November 1989
• Docket Number: No. 89 Civ. 0990 (MBM).,89 Civ. 0990 (MBM).
• Citation: 737 F. Supp. 199
• Parties: Henry BERGHOFF, Plaintiff, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — Southern District of New York

737 F. Supp. 199

Henry BERGHOFF, Plaintiff, v. UNITED STATES of America, Defendant.

No. 89 Civ. 0990 (MBM).

United States District Court, S.D. New York.

November 1, 1989.

Kevin Olds Reilly, Mineola, N.Y., for plaintiff.

Jed Rubenfeld, Asst. U.S. Atty., S.D. N.Y., New York City, for defendant.

OPINION AND ORDER

MUKASEY, District Judge.

In this action, plaintiff Henry Berghoff seeks to recover damages from the United States for injuries he sustained while working on a construction project at the Governor's Island Coast Guard Base. Plaintiff bases his suit on the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346(b), 2671-2680, which allows individuals to sue the United States in federal court for injuries caused by negligent acts of government employees. Such suits may be maintained only when the United States, "if a private person, would be liable to the claimant in accordance with the law of the place where the action or omission occurred." 28 U.S.C. § 1346(b).

The government moves to dismiss the suit under Fed.R.Civ.P. 12(b)(1) and 12(b)(6) for lack of subject matter jurisdiction and failure to state a claim, or in the alternative, for summary judgment pursuant to Fed.R.Civ.P. 56, on the ground that the doctrine of sovereign immunity bars plaintiff's claims. The government asserts that the FTCA waives governmental immunity only when plaintiff has been injured through the negligence of a United States employee, and thus does not apply when the allegedly negligent party is not a United States employee, nor when plaintiff asserts a strict liability claim against the United States. The government also argues that the discretionary function exception to the FTCA, which precludes all claims based on the exercise of discretion by a federal agency or employee, 28 U.S.C. § 2680(a), bars plaintiff's claim that the United States failed to supervise properly its contractor's safety practices.

The government's limited waiver of sovereign immunity does not apply to plaintiff's claims in this case; accordingly, I grant the government's motion for summary judgment.

I.

On November 26, 1985, plaintiff was working on a federally-owned construction site on Governor's Island when he fell from a ladder that ran from the basement of a building under construction to the second floor of that building. Plaintiff was descending from the second to the first floor when the ladder suddenly twisted, causing him to fall through the opening on the first floor and land in the concrete basement. He suffered severe injuries, including fractures of his arm, damage to his hip and post-traumatic arthritis. (Complaint at ¶ 10) At the time of the accident, he was employed as a plumber by the J. Kokolakis Company, a general contractor under agreement to build 32 housing units at the United States Coast Guard facility on Governor's Island. The written contract signed by Kokolakis and the United States in 1983 contained numerous standard provisions regarding safety, which placed on the contractor the burden of taking reasonable safety measures and complying with state safety laws.

Plaintiff received a total of $18,030 through the New York State Worker's Compensation system to help compensate for his medical expenses, lost wages and permanent disabilities. (Defendant's Affidavit, Exh. C) On October 19, 1987, plaintiff filed a timely administrative claim with the United States Department of Transportation, the parent department of the Coast Guard, requesting $1 million in damages arising out of the accident. He was denied relief in writing the following August. Thereafter, he filed this suit, claiming that the United States breached its duties under New York law to provide him with a safe place to work, and that the government's negligent and improper supervision caused his injuries.

II.

In Maltais v. United States, 546 F.Supp. 96 (N.D.N.Y.1986), aff'd mem., 729 F.2d 1442 (2d Cir.1983), Judge Miner was presented with a claim remarkably similar to the one at bar: plaintiff sought to recover damages under the Federal Tort Claims Act for her husband's injury and death from a fall that occurred while he was employed by a subcontractor working on a government-owned construction site. Judge Miner decided, and the Court of Appeals agreed, that plaintiff's claims, including claims under New York Labor Law §§ 240 and 241, did not fall under the FTCA's waiver of sovereign immunity, and thus were barred with regard to the United States government. The reasoning of that case is applicable to each point raised here.

The Federal Tort Claims Act, 28 U.S.C. § 1346(b), waives the government's sovereign immunity and provides district courts with exclusive jurisdiction over claims against the United States,

For injury or death 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, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.

If a tort claim against the United States falls outside the FTCA's provisions, the claim is barred by the Government's sovereign immunity. A Government "employee," for the purposes of § 1346(b), is an employee of any federal agency, the military, or someone acting on behalf of a federal agency. A "federal agency" includes "the executive departments and independent establishment 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." 28 U.S.C. § 2671 (emphasis added).

The Supreme Court consistently has interpreted this provision as barring suits against the United States for the negligence of independent contractors, as these contractors are not Government employees under the FTCA. United States v. Orleans, 425 U.S. 807, 96 S.Ct. 1971, 48 L.Ed.2d 390 (1976); Logue v. United States, 412 U.S. 521, 93 S.Ct. 2215, 37 L.Ed.2d 121 (1973). The critical factor in distinguishing between a government agent and an independent contractor is "the power of the Federal government to control the detailed physical performance of the contractor." Orleans, 425 U.S. at 814, 96 S.Ct. at 1976.

Here, the contract delegates detailed supervision and control of the construction project to Kokolakis. Kokolakis agreed to furnish "all labor, material and equipment necessary," (Def. Affidavit, Exh. A at 1) and to "give his personal superintendence to the work or to have on the work a competent superintendent." (Def. Affidavit, Exh. A at 39). Furthermore, the contract provides for procedures which the contractor must follow when hiring subcontractors for the job, and specifically disclaims "any contractual relation between a subcontractor and the Government." (Exh. A at 48). The contract reserves the government's right to inspect the progress of the project, and to approve certain steps in the construction along the way.

Plaintiff concedes that the over-all construction contract provides for little governmental control over the contractor, but asserts that with regard to safety requirements, the contract does impose strict governmental control. He bases this argument on provisions in the contract: (1) authorizing the Contracting Officer¹ to notify the contractor of any noncompliance with safety provisions and to specify corrective actions that the contractor must take; and (2) allowing an authorized governmental representative to have access to the site to determine the adequacy of the Contractor's safety and health measures. The contract also directs the contractor to submit a safety plan and health plan for the Contracting Officer's approval, and to take any other safety and health measures that the Contracting Officer deems necessary.

These safety provisions, however, do not provide for such day-to-day supervision by the government as would convert Kokolakis from an independent contractor into a federal agent. The safety provisions in the contract mainly set forth minimum standards for safety, and reserve the government's right to inspect the site and find Kokolakis deficient. In Orleans, the Court explained that in a contract, "the Government may fix specific and precise conditions to implement federal objectives. Although such regulations are aimed at assuring compliance with goals, the regulations do not convert the acts of entrepreneurs ... into federal governmental acts." Orleans, 425 U.S. at 816, 96 S.Ct. at 1977. In Lipka v. United States, 369 F.2d 288 (2d Cir.1966), cert. denied, 387 U.S. 935, 87 S.Ct. 2061, 18 L.Ed.2d 997 (1967), reh'g denied, 388 U.S. 925, 87 S.Ct. 2129, 18 L.Ed.2d 1381 (1967), the Court of Appeals found that even when a contract between a construction company and the Army Corps of Engineers bound the contractor to follow the Corps' safety manual and additional safety measures, empowered the Contracting Officer to order compliance with these measures, and provided for an employee of the Corps to be at the site, the construction company nonetheless was an independent contractor under the FTCA. Lipka, 369 F.2d at 291.

Here, the boilerplate safety provisions in the contract do not negate the obvious fact that Kokolakis is an independent contractor bearing most of the onus for maintaining safety. The United States therefore cannot be held vicariously liable under the FTCA for any potentially negligent acts on the part of Kokolakis, because Kokolakis is not a Government employee.

III.

Plaintiff also asserts that the United States breached duties that it owed directly to him under the labor laws of New York to "furnish or erect, or cause to be furnished or erected for the performance of the labor being conducted at this location sufficient scaffolding, hoists, stays, ladders and other devices, thereby constructed, placed or operated so as to give proper protection to the plaintiff in the performance of...