Carroll v. United States

• Decision Date: 31 October 2011
• Docket Number: No. 10–1152.,10–1152.
• Citation: 661 F.3d 87
• Parties: Courtney R. CARROLL, et al., Plaintiffs, Appellants, v. UNITED STATES, et al., Defendants, Appellees.Board of Directors of the Rainforest Kids Child Development Center, et al., Defendants.
• Court: U.S. Court of Appeals — First Circuit

661 F.3d 87

Courtney R. CARROLL, et al., Plaintiffs, Appellants,

v.UNITED STATES, et al., Defendants, Appellees.Board of Directors of the Rainforest Kids Child Development Center, et al., Defendants.

No. 10–1152.

United States Court of Appeals, First Circuit.

Heard March 10, 2011.Decided Oct. 31, 2011.

Salvador J. Antonetti–Stutts, with whom Courtney R. Carroll and O'Neill & Borges were on brief, for appellants.

Ginette L. Milanes, with whom Rosa Emilia Rodriguez–Velez, United States Attorney, Nelson Pérez–Sosa, Assistant United States Attorney, Chief, Appellate Division, and Luke Cass, Assistant United States Attorney, were on brief, for appellees.

Before LIPEZ, SILER,^* and HOWARD, Circuit Judges.LIPEZ, Circuit Judge.

This tort action was brought by the parents of a young child who was seriously injured when she was struck in the head by an object thrown from a lawnmower as she rode a tricycle at her childcare center. Separate entities were providing the lawn maintenance and the childcare on the day of the accident under contracts with the federal government. Appellants brought a suit for damages against the United States under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346(b), 2671–2680, and alleged supplemental claims under Puerto Rico law against other defendants, including the childcare provider and the maintenance company. The district court concluded that the FTCA's independent contractor defense barred liability under the statute, and it thus dismissed the action for lack of subject matter jurisdiction. We agree that the case must be dismissed, although we conclude that the FTCA's discretionary function exception provides the rationale.

I.

On the morning of October 17, 2006, three-year-old V.C.¹ was riding a tricycle in the parking lot of the Rainforest Kids Child Development Center (“Rainforest Kids”) in San Juan at the same time that an employee of Genett Group, Inc. (“Genett”) was mowing the grass adjacent to the lot. A projectile dislodged by the lawnmower struck V.C. in the forehead, above her right eye. V.C.'s mother, appellant Courtney Carroll, was summoned to the scene and accompanied her daughter in an ambulance to a nearby hospital, where the girl had emergency surgery. V.C. was discharged from the hospital two days later. She will require ongoing observation to determine whether the injury caused permanent impairment.

Rainforest Kids operates the childcare facility on land adjacent to the Federico Degetau Federal Building under a license from the General Services Administration (“GSA”). Genett has a contract with GSA to provide maintenance and landscaping services for the Federico Degetau property, including at Rainforest Kids. Carroll and her husband, Ricardo Acosta Rodriguez, brought suit alleging, inter alia, that the United States was liable for V.C.'s injuries under the FTCA because it failed to coordinate the activities of the two contractors to ensure the safety of children enrolled at Rainforest Kids. ² They claimed that their family had suffered $9.5 million in physical, emotional, and economic damages as a result of V.C.'s injury.

The United States disputed its liability for the accident based on two limitations on the jurisdiction granted by the FTCA for tort claims against the government: the independent contractor defense and the discretionary function exception. Under the former, the government may not be held responsible for negligent acts or omissions committed by employees of government contractors whose daily operations are not closely supervised by United States officials—in essence, eliminating vicarious liability as a theory of recovery against the federal government. See United States v. Orleans, 425 U.S. 807, 815, 96 S.Ct. 1971, 48 L.Ed.2d 390 (1976); Wood v. United States, 290 F.3d 29, 36 n. 4 (1st Cir.2002).³ Under the latter, discretionary acts of government employees are immunized from liability when based on policy considerations. See 28 U.S.C. § 2680(a); Abreu v. United States, 468 F.3d 20, 25–26 (1st Cir.2006). The district court found that the independent contractor defense required dismissal of the case and, consequently, did not consider the applicability of the discretionary function exception. Having rejected federal jurisdiction under the FTCA, the court also dismissed the supplemental causes of action under Puerto Rico law.

This timely appeal followed.

II.

The FTCA provides a “carefully limited waiver” of the federal government's sovereign immunity for certain claims alleging harm caused by United States employees or agents. Bolduc v. United States, 402 F.3d 50, 62 (1st Cir.2005). It allows civil actions against the government “for injury or loss of property ... 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.” 28 U.S.C. § 1346(b)(1). The FTCA expressly does not waive the government's immunity for claims arising from the acts or omissions of independent contractors. See supra n. 3 (quoting, inter alia, 28 U.S.C. § 2671). The waiver also has exceptions and, where they apply, “the federal courts lack subject matter jurisdiction over torts against the United States.” Wood, 290 F.3d at 35; see also Montijo–Reyes v. United States, 436 F.3d 19, 24 (1st Cir.2006).

Plaintiffs argue on appeal that the district court erred in dismissing the case based on the FTCA's independent contractor defense because they do not seek to impose liability on the United States for the actions of Rainforest Kids' or Genett's employees. Rather, their target is the government's own failure to coordinate the contractors' activities to ensure the safety of Rainforest Kids' young charges. Nor does the discretionary function exception apply, they assert, because V.C.'s injury did not arise from policy-related discretionary conduct entitled to protection from tort liability. Plaintiffs argue that the government had no discretion to fail to implement and enforce schedules for lawn mowing and outdoor play that would have protected Rainforest Kids' children from the risk of flying objects. Appellants also contend that the district court erred in relying on the contract documents submitted by the United States as proof of the terms of the government's agreement with Genett because they were “unsigned, incomplete, [and] unauthenticated.” ⁴

As we shall explain, the independent contractor defense and the discretionary function exception are linked in the factual circumstances of this case. Although we agree with the district court that Rainforest Kids and Genett are independent contractors, the discretionary function exception provides the ground for dismissal because appellants argue that the United States is directly, rather than vicariously, liable for the injury to V.C. See Wood, 290 F.3d at 36 n. 4 (limiting discussion to the discretionary function exception where the plaintiff “fashion[ed] her argument as one of direct rather than vicarious negligence”).⁵

In evaluating a motion to dismiss under Rule 12(b)(1) for lack of subject matter jurisdiction, we construe plaintiffs' complaint liberally and ordinarily “may consider whatever evidence has been submitted, such as ... depositions and exhibits.” Aversa v. United States, 99 F.3d 1200, 1209–10 (1st Cir.1996); see also Merlonghi v. United States, 620 F.3d 50, 54 (1st Cir.2010). Our inquiry, however, is tilted toward the government's claim of immunity: “[T]he FTCA must be ‘construed strictly in favor of the federal government, and must not be enlarged beyond such boundaries as its language plainly requires.’ ” Bolduc, 402 F.3d at 56 (quoting United States v. Horn, 29 F.3d 754, 762 (1st Cir.1994)).

We begin with plaintiffs' assertion that we should not take into account the Genett contract documents on which the district court relied. ⁶

A. The Contract Exhibits

The agreement between the United States and Genett is critical evidence in evaluating the government's relationship with the contractor and, as will be seen, the nature of that relationship is an essential component of our analysis of the discretionary function exception. See Williams v. United States, 50 F.3d 299, 307 (4th Cir.1995) (examining the contract between the government and contractor in evaluating contractor's status); Brooks v. A.R. & S. Enters., 622 F.2d 8, 11 (1st Cir.1980) (“Contracts typically define the parameters of the contracting parties' responsibilities.”). The status of the documents evidencing the contract is thus important to our inquiry.

Without question, the contract materials in the record are less than ideal. The primary item is a comprehensive document that describes the maintenance and landscaping tasks at the Federico Degetau complex for which GSA sought to hire a contractor.⁷ This document, which spans more than sixty pages, is what the district court treated as the contract, although the document itself merely presents the government's expectations and does not refer to Genett by name. Nor is it signed by either party.⁸ Included in the same packet of materials, however, are multiple forms labeled “Amendment of Solicitation/Modification of Contract,” several of which indicate that amendments were made to an agreement between the government and Genett. One such form bears the signatures of both Genett's president and GSA's contract specialist. See Docket 50–11.⁹

Although acknowledging that it may have been “technically permissible” under Rule 12(b)(1) for the court to consider the submitted materials, appellants maintain that the court erred in accepting them as accurate depictions of the government's relationship with Genett. They argue that the government's failure to produce “complete and authenticated copies” of the contracts should have led the district...