Daniels-Lumley v. United States

• Decision Date: 07 June 1962
• Docket Number: No. 16597.,16597.
• Citation: 306 F.2d 769,113 US App. DC 162
• Parties: Dorcas J. DANIELS-LUMLEY, Appellant, v. UNITED STATES of America et al., Appellees.
• Court: U.S. Court of Appeals — District of Columbia Circuit

113 US App. DC 162, 306 F.2d 769 (1962)

Dorcas J. DANIELS-LUMLEY, Appellant, v. UNITED STATES of America et al., Appellees.

No. 16597.

United States Court of Appeals District of Columbia Circuit.

Argued February 21, 1962.

Decided June 7, 1962.

Mr. Charles N. Ford, Washington, D. C., for appellant.

Mr. William Leavenworth Colby, Atty., Dept. of Justice, with whom Asst. Atty. Gen. William H. Orrick, Jr., and Mr. David C. Acheson, U. S. Atty., were on the brief, for appellee United States of America. Mr. Morton Hollander, Atty., Dept. of Justice, also entered an appearance for appellee United States of America.

Mr. John R. Hess, Asst. Corp. Counsel for the District of Columbia, with whom Messrs. Chester H. Gray, Corp. Counsel, Milton D. Korman, Prin. Asst. Corp. Counsel, and Hubert B. Pair, Asst. Corp. Counsel, were on the brief, for appellee District of Columbia.

Before PHILLIPS, Senior United States Circuit Judge for the Tenth Circuit,^* and WASHINGTON and BURGER, Circuit Judges.

WASHINGTON, Circuit Judge.

This appeal raises questions as to the liability of the United States and the District of Columbia for damages for the injuries sustained by the appellant, an employee of the United States, as a result of a fall on a sidewalk in the District.

On December 5, 1957, the plaintiff-appellant was employed in the South Building of the United States Department of Agriculture in the District of Columbia. During her normal working hours on that day, she left the building to mail a personal letter in the public mailbox located on the sidewalk a few feet from the northwest entrance of that building. She fell after she had stepped from the steps of the building onto the sidewalk, which she alleges was in a hazardous condition due to an accumulation of snow and ice. She sued both the United States and the District, asserting that either or both were negligent in permitting this condition to exist, and that either or both are liable to her for the injuries sustained in her fall. The District Court dismissed the suit against the United States, and entered judgment in favor of the District of Columbia. This appeal followed.

Dismissal as Against the United States.

Under the Federal Employees' Compensation Act, 5 U.S.C.A. § 751 et seq., the United States must pay specified compensation for a disability resulting from personal injuries sustained by an employee "while in the performance of his duty," and the liability of the United States under the Act is "exclusive, and in place, of all other liability of the United States" to the employee. 5 U.S.C.A. §§ 751(a) and 757(b).¹ The District Court here made no finding as to whether plaintiff's fall occurred while she was in the performance of her duties within the meaning of the Act, nor would it have been appropriate for it to do so. Decision of that question and all questions under the Act is committed by the Act to the Secretary of Labor, and his decision is not subject to review by any court. 5 U.S.C.A. §§ 783, 786 and 793.² The Federal Employees' Compensation Act seeks to provide for public employees a well-defined system of compensation as a replacement for the expense and hazards of a tort suit. The Act expresses "a general statement of a congressional policy favoring a remedy through compensation rather than by action in tort for Federal employees." Lewis v. United States, 89 U.S.App.D.C. 21, 22, 190 F.2d 22, 23, cert. denied, 342 U.S. 869, 72 S.Ct. 110, 96 L.Ed. 653 (1951). Accordingly, unless plaintiff's injuries were clearly not compensable under the F. E. C. A. (and this is not such a case),³ we believe that the Secretary of Labor must be given the primary opportunity to rule on the applicability of the Act to this case.⁴

Plaintiff has, however, declined throughout to secure a decision from the Secretary although given every opportunity to do so. After hearing evidence and argument on the matter, the District Court stayed the proceedings before it, allowing plaintiff ten days in which to file her claim for compensation under that Act with the Bureau of Employees' Compensation, U. S. Department of Labor,⁵ and allowing her the additional time needed to secure a determination as to whether her injuries were compensable thereunder.⁶ Upon plaintiff's failure to file her claim within the ten day period, the District Court dismissed her suit as against the United States but without prejudice to the right of the plaintiff to pursue her remedies within the Bureau of Employees' Compensation, Department of Labor. In this court, plaintiff's counsel has stated that she will not present her claim administratively.

Accordingly, we will affirm the dismissal by the District Court of her suit against the United States, without prejudice to such further proceedings as she may be advised to pursue under the Employees' Compensation Act.

Judgment in Favor of the District of Columbia.

At the trial the following facts emerged. Through condemnation of private property in 1929 the United States acquired a tract of land, including the land on which the sidewalk where plaintiff fell is now situated. It built the South Agriculture Building on this land and has always occupied the building. In 1936 at the request of the United States the District constructed the subject sidewalk and curbing abutting this building, and received payment from the United States for the cost of the construction. On one occasion in 1956 the United States requested the District to repair the curbing and sidewalk, and apparently the District did so without reimbursement from the United States. The sidewalk is not owned by, and is not under the control of, the District of Columbia, and jurisdiction over it was not shown to have been transferred from the United States to the District under the statute authorizing such transfer. D.C.Code § 8-115 (1961). The United States maintained a crew at the South Agriculture Building to remove snow and ice from the sidewalk areas around the building and this crew was available for work on the day when plaintiff fell. On this evidence, the District Court concluded as a matter of law that the District owed no duty to the plaintiff to repair or maintain the sidewalk, and that it is not liable for failure to clear the sidewalk of snow and ice.

Plaintiff contends that under Section 7-101 of the D.C.Code (1961), the District had the duty to maintain all public sidewalks in reasonably safe condition for pedestrian use, whereas the District contends that the sidewalk involved here is exempted from its jurisdiction by Section 7-102 of the Code.⁷ We find it unnecessary to decide this question, since there are other statutory provisions, less general than Sections 7-101 and 7-102, which deal specifically with the responsibility for snow removal from sidewalks in the District. We think that these provisions control in the situation before us.

In Sections 7-802 and 7-803 of the D.C.Code (1961), enacted first in 1922, Congress undertook to determine the responsibility, as between the District and the United States, for removal or treatment of snow and ice on sidewalks adjacent to public buildings. Section 7-802 places upon the District the duty of removing or treating snow and ice on sidewalks in front of or adjacent to all public buildings owned or leased by the District. Under Section 7-803 the Director of the National Park Service has the duty to remove or treat snow and ice on sidewalks in front of or adjacent to buildings owned by the United States, and from sidewalks to open spaces owned by the United States.⁸

We think these sections evidence a clear intention on the part of Congress to place the primary duty of clearing and maintaining the sidewalk here in question, under the facts shown, upon the United States. The legislative history supports this understanding of the congressional intention. See S.Rep.No. 461, 67th Cong., 2d Sess. (1922); H.R. Rep.No.664, 67th Cong., 2d Sess. (1922).⁹ Whether in some special circumstances the District might be subject to a common law obligation regarding the removal of snow and ice from sidewalks such as this one is a question not now before us.¹⁰ Consequently, the District, having no statutory or other responsibility with respect to the sidewalk in question, cannot be said to have negligently failed to perform such a duty.

Although we said in District of Columbia v. Campbell, 103 U.S.App.D.C. 20, 254 F.2d 357 (1958), that Section 7-803 does not shift the responsibility from the District of Columbia for removal of snow from sidewalks adjacent to Federal property in such sense as to bar a suit against the District for personal injuries, the statement must be considered in the factual context of that case. There the Federal land in question was in part occupied by a building, apparently built by the District, which housed the Municipal Court of the District of Columbia. The evidence showed that the District maintained in the building a custodial force expressly charged with the duty of removing snow and ice from the sidewalks around the building¹¹ and that the United States also had a force which was sanding the sidewalks around the building at the time Mrs. Campbell fell.¹² Thus, the Campbell case was one in which the District controlled, if it did not own, the building adjacent to (although not abutting) the sidewalk there in question, and the District in practice recognized a duty to remove snow and ice by maintaining a custodial force for that purpose. In the circumstances we regarded it as having such a duty under Section 7-802 and as not being exonerated from liability under that section by reason of the fact that the United States might have also been liable if it had been sued. The facts in the present case offer no basis for finding a similar dual duty with respect to the sidewalk.¹³

The decision of the District Court is accordingly

Affirmed.

* Sitting by designation pursuant to Sec. 294(d), Title 28, U.S.Code.

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