Conner On Behalf of Conner v. U.S.
| Citation | 967 F.Supp. 894 |
| Decision Date | 20 June 1997 |
| Docket Number | Civil Action No. 96-7461-B-M1. |
| Parties | Dionne and Todd CONNER, on Behalf of their minor child, George CONNER, v. UNITED STATES of America. |
| Court | U.S. District Court — Middle District of Louisiana |
Michael Anthony Mitchell, Sean A. Jackson, Jackson, Mitchell & Jackson, Baton Rouge, LA, for Plaintiffs.
Tara Avery Hingle, U.S. Attorney's Office, Middle District of Louisiana, Baton Rouge, LA, William V. Cerbone, Jr., U.S. Department of Housing & Urban Development, Fort Worth, TX, for Defendant.
RULING ON DEFENDANT'S MOTION TO DISMISS, OR IN THE ALTERNATIVE, MOTION FOR SUMMARY JUDGMENT
This matter is before the Court on the defendant's motion to dismiss, or in the alternative, motion for summary judgment.
Todd and Dionne Conner filed this Federal Tort Claims Act1 ("FTCA") suit on behalf of their minor child, George, against the United States of America. The plaintiffs claim George was injured as a result of a fall outside of his apartment at the Cedarwood Apartments located at 3484 Cedarcrest Avenue in Baton Rouge, Louisiana where the plaintiffs resided. Cedarwood Apartments are owned by the United States Department of Housing and Urban Development ("HUD").2 HUD had contracted with Barron Builders and Management Company ("Barron") to operate and manage the Cedarwood Apartments.3
At the time of the accident, the flooring of the balcony/walkway fronting the plaintiffs' apartment unit was undergoing some repairs. The plaintiffs claim their son tripped on the second story balcony/walkway leading from his apartment that was being replaced and fell down the stairs. The plaintiffs reported the incident to the property manager.4
Following the accident, the plaintiffs submitted their $10,000 claim to HUD in accordance with 28 U.S.C. § 2675. HUD denied the claim on May 8, 1996. On November 7, 1996, plaintiffs brought this suit under the FTCA for injuries allegedly sustained as a result of the March 17, 1995 incident.5 The plaintiffs alleged causes of action in negligence and strict liability under Louisiana law.6 Thereafter, the defendant filed its motion seeking to have the Court to dismiss, or in the alternative, to grant summary judgment in this matter.
The defendant contends Barron, as the property manager of the Cedarwood Apartments, was an independent contractor of the United States and was solely responsible for the care, maintenance and repair of the apartment complex. Thus, the United States contends that to the extent the plaintiffs' negligence claim involves the repair of the second-story balcony/walkway near plaintiffs' apartment, the United States is not responsible for any negligence that was caused by the act or omission of Barron and/or its subcontractor, American Home Maintenance, Inc. ("American").7 The United States argues the independent contractor exception to the FTCA8 excludes it from liability for the acts of independent contractors such as Barron. In addition, the defendant urges this Court to dismiss the plaintiffs' strict liability claim because the FTCA does not authorize strict liability claims against the United States.
In their memorandum in opposition to the defendant's motion, the plaintiffs' characterize their negligence claim as one that is only "based upon defendant's own negligence and not that of Barron Builders." Because the complaint itself may be construed to indicate otherwise, this Court will address the liability of the United States for the negligence of Barron, as well as the liability of the United States for the acts of its own employees.9
Furthermore, the plaintiffs' assert their additional claim is not grounded in strict liability, but is based on the non-delegable duty doctrine. Because the complaint makes specific references to strict liability articles under the Louisiana Civil Code,10 the Court will address both the strict liability claim and the assertions made under the non-delegable duty doctrine.
It is well established that the United States, as a sovereign, is immune from suit, except when it consents to be sued.11 Congress waived the federal government's sovereign immunity under limited circumstances with the passage of the FTCA. Under the FTCA, the government is subject to suit for certain torts of federal employees acting within the scope of their employment.12 The FTCA limits liability to injuries caused by negligent acts or omissions of "employees" of the government.13 The waiver of sovereign immunity by Congress under the FTCA does not extend to the acts of independent contractors.14 As with all statutes waiving sovereign immunity of the United States, the FTCA must be strictly construed.15 Therefore, if Barron is an independent contractor, the plaintiffs may not recover against the United States for any negligent acts of Barron.
The Court must first determine whether Barron is an independent contractor under the facts of this case. In deciding this issue, the Court must look to the degree of control exercised by the federal government.16 Specifically, the Court must focus on whether the federal government had power "to control the detailed physical performance" of Barron.17
Cedarwood Apartments were part of HUD's Multifamily Property Disposition Program. In this case, Barron and HUD entered into a property management contract ("PM Contract") for the Cedarwood Apartments.18 The purpose of the PM contract was to obtain "professional property management services to adequately perform the day to day management duties of property that are required to operate, repair, and properly maintain" the Cedarwood Apartments.19 In her affidavit, Sandra Krchnak, Multifamily Realty Specialist, Multifamily Division, Real Estate Owned (REO) Branch, and overseer of all of HUD's property in Louisiana, stated that HUD had no regular on-site presence at Cedarwood Apartments.20 Under the terms of the contract submitted by the defendant, Barron was specifically responsible for the physical maintenance of the property including all repair work at the Cedarwood Apartments.21 Furthermore, Barron was responsible for assuring that no common areas presented health and safety hazards.22 It is clear from the evidence that Barron, and not HUD, had control over the daily activities of managing the Cedarwood Apartments.
After consideration of all of the evidence now before the Court, the Court finds the federal government did not have the power to control the detailed physical performance of Barron. The plaintiffs submitted no evidence to the contrary. The plaintiffs argument that the United States is liable because HUD owned the property and there was an accident is wholly inadequate to defeat the defendant's motion.
The evidence establishes that Barron was an independent contractor of HUD. Moreover, courts around the country have found property managers, such as Barron, were independent contractors under similar circumstances.23 Therefore, as to any claim which seeks to hold the defendant liable for the acts of Barron as an independent contractor, the Court finds that there has been no waiver of sovereign immunity under the FTCA in this case.
The Fifth Circuit in Broussard v. United States,24 held that an absence of a waiver of sovereign immunity means that a Court lacks subject matter jurisdiction as to a claim.25 The plaintiff bears the burden of persuasion if subject matter jurisdiction is challenged under Rule 12(b)(1), and this Court finds in the instant matter that the Conners have failed to meet their burden.26 Therefore, this claim must be dismissed pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure. Since the basis of dismissal is a finding that the Court lacks subject matter jurisdiction over this claim, it is not necessary for the Court to decide the alternative motion for summary judgment.
As noted earlier, the plaintiffs claim in their opposition to the defendant's motion that their cause of action for negligence is based on the defendant's own negligence and not that of Barron. If this claim is based on the negligent acts of any employee of the government, it is clear the FTCA would apply. The Court has subject matter jurisdiction under this claim because the federal government has waived its sovereign immunity for suits against the United States for negligent acts of its employees.27 Thus, the issue under this claim is not one involving Rule 12(b)(1) of the Federal Rule of Civil Procedure. To resolve this issue, therefore, the Court must decide the defendant's alternative motion for summary judgment.
(1) Summary Judgment
Under Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment is proper when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law."28
The well-established criteria that there must be no genuine issue of material fact before summary judgment will issue insures that a properly supported motion will not be defeated simply by the "existence of some alleged factual dispute."29 With respect to "materiality," because the underlying substantive law is referenced to determine what facts are material,30 only factual disputes that might affect the action's outcome under governing law can properly preclude summary judgment; disputes over facts which have no effect on the action's resolution are irrelevant.31 In addition, even if material, a factual dispute will not prevent summary judgment if the dispute is not "genuine." Such a conclusion is reached when the evidence could not lead a rational trier of fact to return a verdict for the non-moving party.32 In examining the...
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