Camozzi v. Roland/Miller and Hope Consulting Group

• Decision Date: 20 January 1989
• Docket Number: Nos. 87-2554,87-2579,s. 87-2554
• Citation: 866 F.2d 287
• Parties: James CAMOZZI, Plaintiff-Appellant, v. ROLAND/MILLER AND HOPE CONSULTING GROUP, Joint Venture, Defendant, and United States of America, and Does 1 through 100, Inclusive, Defendants-Appellees. Gary LESSNAU, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 287

866 F.2d 287

James CAMOZZI, Plaintiff-Appellant, v. ROLAND/MILLER AND HOPE CONSULTING GROUP, Joint Venture, Defendant, and United States of America, and Does 1 through 100, Inclusive,

Defendants-Appellees.

Gary LESSNAU, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.

Nos. 87-2554, 87-2579.

United States Court of Appeals Ninth Circuit.

Argued May 9, 1988.

Submitted Dec. 5, 1988.

Decided Jan. 20, 1989.

Patrick W. Coyle, Ernst & Coyle, Santa Rosa, Cal., for plaintiffs-appellants.

Andrew M. Wolfe, Asst. U.S. Atty., San Francisco, Cal., for defendants-appellees.

Appeal from the United States District Court for the Northern District of California.

Before BROWNING, ALARCON and NORRIS, Circuit Judges.

JAMES R. BROWNING, Circuit Judge:

James Camozzi and Gary Lessnau were injured during construction of a United States Post Office in Petaluma, California. Both sued the United States under the Federal Tort Claims Act (FTCA). Summary judgment was granted in favor of the United States on the ground that USPS's alleged negligence occurred in the performance of a discretionary function. ¹ See 28 U.S.C. Sec. 2680(a). ² We reverse.

The United States Postal Service (USPS) contracted with the Roland/Miller Associates and Hope Consulting Group (Roland/Miller) to supervise the construction of the Petaluma postal facility. It contracted with Roebbelen Construction Co., Inc. (Roebbelen) to serve as general contractor.

Camozzi and Lessnau were employed by Roebbelen as cement masons. Camozzi fell through an unguarded opening in metal decking on the second floor and sustained serious injuries. The next day Lessnau fell through another opening in the same floor and was similarly injured.

Each sought recovery on two theories of tort liability under California law. ³ The district court did not consider the merits of plaintiffs' claims, nor do we. The sole question before us is whether the conduct upon which plaintiffs rely for recovery falls within the discretionary function exception.

The government argues USPS delegated its responsibility for worker safety to Roebbelen in its contract with that company, and in doing so exercised a discretionary function excepted from the FTCA by section 2680(a).

Plaintiffs do not challenge USPS's execution of the contract imposing responsibility for worker safety upon Roebbelen. Instead they contend that under the Roebbelen contract, USPS retained responsibility for overseeing compliance with safety precautions, and contracted with Roland/Miller to discharge that responsibility. They allege their injuries were caused by USPS's negligent performance, directly or through its agent or employee Roland/Miller, of the safety obligations it retained.

USPS's contract with Roebbelen included the following relevant provisions: Roebbelen was required to "take proper safety and health precautions to protect the work, the workers, the public, and the property of others." Roebbelen was not to require employees to work in hazardous or dangerous surroundings. Roebbelen was to comply with the Occupational Safety and Health Act of 1970, which specified that floor openings were to be covered. 29 C.F.R. Sec. 1926.500(b) (1988). The contract also stipulated that metal deck openings be covered. Work not conforming to contract specifications was to be deemed defective and rejected by USPS. Roebbelen was to submit to USPS for approval a job safety program designed to "minimize or eliminate occupational injuries." Roebbelen was required to furnish USPS an on-site field office and was required to report all accidents to USPS. ⁴ All work was to be performed under the general direction of USPS's contracting officer or his delegate. The contractor was to perform the work in accordance with orders authorized by USPS's contracting officer. USPS could change "the method or manner of performance of the work" without notice; remove any employee it deemed "incompetent, careless or otherwise objectionable;" or terminate or suspend the contract at its convenience. USPS could cancel the contract for failure to comply with health and safety standards.

The Roland/Miller contract included the following provisions: Roland/Miller was "responsible for the administration of the contract between USPS" and Roebbelen. Roland/Miller was designated USPS's on-site technical representative. ⁵ Roland/Miller was to review the contractor's safety plan and monitor the security program, and to be "concerned generally with their observance," although "compliance therewith is solely the contractor's responsibility." Roland/Miller was to record all accidents daily, make weekly reports, and review safety with the contractor at monthly meetings. Roland/Miller was required to "make daily inspections of the construction, materials and workmanship to assure compliance with plans, specifications, and other contract documents." Daily inspections were to be made of 35 listed items, including "floor openings."

As we have said, plaintiffs do not contend their injuries arose from the fact USPS contracted with Roebbelen for the performance of safety functions during construction. Plaintiffs also disavow reliance on USPS's approval of Roebbelen's safety plan. They rely, as we have noted, upon the alleged negligence of USPS in discharging, directly or through Roland/Miller, USPS's authority to police Roebbelen's compliance with safety standards. ⁶ Assuming arguendo, as the district court did, that USPS retained this authority, the question is whether the USPS's exercise of this authority fell within the discretionary function exception. The district court held it did. We believe it did not. ⁷

The acts and omissions upon which plaintiffs rely are not within the discretionary function exception merely because they involved the exercise of choice by the persons responsible. ⁸ The existence of choice is essential to the application of the exception, see Berkovitz v. United States, --- U.S. ----, 108 S.Ct. 1954, 1958, 100 L.Ed.2d 531 (1988); but does not alone justify its application. The discretionary function exception "protects only governmental actions and decisions based on consideration of public policy." Id., 108 S.Ct. at 1959. It "insulates the government from liability if the action challenged ... involves the permissible exercise of policy judgment." Id. In the language of United States v. S.A. Empresa De Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797, 820, 104 S.Ct. 2755, 2767, 81 L.Ed.2d 660 (1984), courts may not "second-guess the political, social, and economic judgments of an agency exercising its regulatory function." The negligent failure of USPS to discover the floor openings through which plaintiffs fell was not of this nature.

In arriving at the contrary conclusion, the district court relied primarily upon Varig, particularly the statement that "[w]hen an agency determines the extent to which it will supervise the safety procedures of private individuals, it is exercising discretionary regulatory authority of the most basic kind." Id. at 819-20, 104 S.Ct. at 2767-68.

This comment might apply to USPS's decision to delegate part of its responsibility for worker safety to Roebbelen, but plaintiffs do not base their actions upon alleged error in this decision. The alleged negligence upon which plaintiffs rely--the negligence of USPS in performing its retained safety functions--involved no policy choices. Failure to inspect floors for uncovered and unguarded openings, for example, was not the result of a policy choice by the particular employees or agents involved. It was simply a failure to effectuate policy choices already made and incorporated in the contracts.

The decisions challenged in Varig were quite different. As the Supreme Court pointed out in Berkovitz, the Varig plaintiffs challenged the "FAA's decision to certify the airplanes [involved in the accidents] without first inspecting them." Berkovitz, 108 S.Ct. at 1959. Congress had vested the FAA with broad authority to establish an appropriate program for the enforcement of airplane safety standards. In the exercise of this authority, the FAA "had devised a system for 'spot-checking' airplanes for compliance." Id. The Varig Court held "the establishment of that system was a discretionary function within the meaning of the FTCA because it represented a policy determination [by the FAA] as to how best to 'accommodate the goal of air transportation safety and the reality of finite agency resources.' " Id. (emphasis added; quoting Varig, 467 U.S. at 820, 104 S.Ct. at 2768). The acts of FAA inspectors in executing the "spot-check" program were also protected because the program authorized these employees to make policy judgments, basing those judgments upon such considerations as "the 'degree of confidence that might reasonably be placed in a given manufacturer, the need to maximize compliance with FAA regulations, and the efficient allocation of agency resources.' " Id. (quoting Varig, 467 U.S. at 820, 104 S.Ct. at 2768). Thus, Varig immunized from liability the adoption by FAA of the "spot-check" program and the failure of individual inspectors to inspect particular aircraft, "because they were within the range of choice accorded by federal policy and law and were the results of policy determinations." Id.

The acts and omissions challenged in the other cases relied upon by the government also fell in this category. ⁹ They occurred in areas in which an agency had been delegated authority by Congress to establish and administer appropriate safety standards. Although the discretionary function exception does not apply to regulatory activity alone, ¹⁰ acts or omissions in an area in which an agency controls policy are more likely to involve policy judgments of the kind the exception is intended to protect. Varig, 467 U.S. at 813-14, 104 S.Ct. at 2764-65. The statement of the Supreme Court upon which the district court particularly relied ¹¹...