De Blasio v. United States, 85 CV 0156.

• Decision Date: 20 September 1985
• Docket Number: No. 85 CV 0156.,85 CV 0156.
• Citation: 617 F. Supp. 1004
• Parties: Jean DE BLASIO and Clifton De Blasio, Plaintiffs, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — Eastern District of New York

617 F. Supp. 1004

Jean DE BLASIO and Clifton De Blasio, Plaintiffs, v. UNITED STATES of America, Defendant.

No. 85 CV 0156.

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

September 20, 1985.

Frank E. Maher, P.C., Brooklyn, N.Y., for plaintiffs; Patrick J. Kane, Brooklyn, N.Y., of counsel.

Raymond J. Dearie, U.S. Atty., for the Eastern District of New York, Brooklyn, N.Y., for defendant; Robin L. Greenwald, Asst. U.S. Atty., Brooklyn, N.Y., of counsel.

MEMORANDUM AND ORDER

McLAUGHLIN, District Judge.

This is an action brought under the Federal Tort Claims Act ("FTCA or "Act"), 28 U.S.C. § 1346(b) (1982), to recover for personal injuries sustained at the Gateway Sports Center, part of the Gateway National Recreation Area. Defendant has moved for summary judgment, Fed.R.Civ.P. 56, on the ground that under the FTCA the United States cannot be sued for the acts or omissions of its independent contractors. For the reasons developed below, the motion is granted.

Facts

The undisputed material facts are as follows. On the night of August 15, 1982, plaintiff Jean DeBlasio was walking along the sidewalk between the golf driving range and the parking lot of the Gateway Sports Center, 3200 Flatbush Avenue, Brooklyn, New York. The Sports Center is part of the Gateway National Recreation Area, which is owned by the United States and administered by the Department of the Interior, National Park Service.

Plaintiff alleges that protruding cement nodules on the sidewalk caused her to fall, thus sustaining serious injuries. Claiming that the condition of the sidewalk was the result of the defendant's negligence, she now sues for her physical and emotional pain and suffering and for medical expenses. Plaintiff Clifton DeBlasio, her husband, adds a derivative claim for the loss of the support, society, services and consortium of his wife.

The Sports Center is operated as a concession by Shields and Dean Concessions, Inc. pursuant to a "Contract/Permit" entered into with the National Park Service on February 2, 1976, and covering the period April 1, 1974 to December 31, 1984. The contract, which establishes Shields and Dean as concessioner, provides that Shields and Dean is responsible for the maintenance and operation of the Sports Center. The government argues that because Shields and Dean runs the Sports Center as an independent contractor, the United States cannot be liable under the FTCA for any negligent maintenance of the sidewalk.¹

Discussion

The FTCA, a limited waiver of the sovereign immunity of the United States, provides for suits against the United States for 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...." 28 U.S.C. § 1346(b) (1982). The Act defines "employee of the government" to include "officers and employees of any federal agency," and specifically excludes from the definition of "federal agency" "any contractor with the United States." 28 U.S.C. § 2671 (1982). Thus, if Shields and Dean runs the Sports Center as an independent contractor, the FTCA does not apply and the United States is immune from suit.

The Supreme Court has clearly enunciated the standard to be applied in distinguishing a federal agency from an independent contractor: "A critical element ... is the power of the Federal Government `to control the detailed physical performance of the contractor.'" United States v. Orleans, 425 U.S. 807, 814, 96 S.Ct. 1971, 1976, 48 L.Ed.2d 390 (1976) (quoting Logue v. United States, 412 U.S. 521, 528, 93 S.Ct. 2215, 2219, 37 L.Ed.2d 121 (1973)). I have examined the contract between the defendant and Shields and Dean and it reveals that here the government has no such power. Shields and Dean is authorized to "provide accommodations, facilities and services for the public" (contract § 2(a)), to "maintain and operate" the accommodations, facilities, and services, and to "provide the plant, personnel, equipment, goods, and commodities necessary therefor" (contract § 3(a)). It is further provided that Shields and Dean "shall provide all necessary maintenance and repairs ..." (contract § 4(f)). There is no provision for government supervision of Shields and Dean employees. Moreover, the affidavit of Robert McIntosh, Superintendent of the Recreation Area, makes clear that Shields and Dean alone is responsible for the operation and maintenance of the Sports Center (McIntosh Affidavit ¶ 3, ¶ 4, ¶ 5).

Plaintiff submits no evidence suggesting the existence of a triable issue of fact as to whether the defendant controls the "detailed physical performance" of Shields and Dean. Plaintiff does make much of the facts that Shields and Dean must operate the Sports Center to the satisfaction of the government (contract §§ 3(a), 4(g)) and that officials of the National Park Service are empowered to make periodic inspections and spot checks of the facility (Supplementary Maintenance Agreement). The question, however, is not whether the contractor "must comply with federal standards and regulations, but whether its day-to-day operations are supervised by the Federal Government." United States v. Orleans, supra, 425 U.S. at 815, 96 S.Ct. at 1976.

Defendant asserts that no "federal government agency or employee supervises the day to day operations" of the Sports Center (McIntosh Affidavit ¶ 5), and indeed the contract gives no indication that such a level of government scrutiny was within the...