Dischner v. US, CV-84-148-BU-WDM.

• Decision Date: 26 February 1987
• Docket Number: No. CV-84-148-BU-WDM.,CV-84-148-BU-WDM.
• Citation: 654 F. Supp. 631
• Parties: Wanda T. Loftis DISCHNER, Plaintiff, v. UNITED STATES of America, Defendant and Third-Party Plaintiff, v. IRBY CONSTRUCTION COMPANY, INC., Third-Party Defendant.
• Court: U.S. District Court — District of Montana

654 F. Supp. 631

Wanda T. Loftis DISCHNER, Plaintiff, v. UNITED STATES of America, Defendant and Third-Party Plaintiff, v. IRBY CONSTRUCTION COMPANY, INC., Third-Party Defendant.

No. CV-84-148-BU-WDM.

United States District Court, D. Montana, Butte Division.

February 26, 1987.

Michael J. McKeon, Anaconda, Mont., for plaintiff.

Robert J. Brooks, Asst. U.S. Atty., Butte, Mont., for the U.S.

William Evan Jones of Garlington, Lohn & Robinson, Missoula, Mont., for Irby Const. Co.

MEMORANDUM AND ORDER

WILLIAM D. MURRAY, Senior District Judge.

I.

This is a personal injury action brought under the Federal Tort Claims Act, 28 U.S.C. §§ 2671-2680. Jurisdiction vests in this court pursuant to 28 U.S.C. § 1346(b).

This case is before the court on motions for summary judgment by defendant United States of America and third-party defendant Irby Construction Company. The parties have submitted briefs and supporting evidentiary material. The court finds, pursuant to Fed.R.Civ.P. 78 and Local Rule 220-4, that oral argument is not necessary.

II.

At all relevant times, plaintiff Wanda T. Loftis Dischner was employed by Irby Construction. In June 1982, Irby Construction entered into a contract with the Bonneville Power Administration (BPA), an agency of the United States, to construct certain electric transmission lines and towers in Montana. Under the terms of its contract with BPA, Irby Construction hired its own crews, directed the day-to-day performance of such crews, and was responsible for their safety and health. BPA reserved the right of oversight and inspection, employing various construction inspectors to visit the project sites and check compliance of the work with contract specifications. The BPA inspectors had no supervisory authority over employees of Irby Construction. The BPA, however, did reserve the right to change the manner or method of Irby Construction's performance.

On September 3, 1982, Dischner was injured at a project site when a tower leg being put into place slipped and struck her right shoulder. Dischner alleges she sustained arm, shoulder and back injuries as a result of the September 3, 1982 incident.

The complaint alleges that the tower leg slipped because of the negligent operation of a crane by another employee of Irby Construction. The complaint further alleges that the United States owed a duty to Dischner, the employee of an independent contractor, to provide her with a safe work place. The complaint also alleges that the United States owed a duty to Dischner to exercise reasonable care in supervising the performance of Irby Construction, and in particular Irby Construction's crane operators.

Prior to bringing suit against the United States, Dischner filed an administrative tort claim with the Department of Energy, Bonneville Power Administration. The administrative claim was denied on October 31, 1984.

The United States now moves for summary judgment on the grounds (1) that it cannot be held liable for the negligence of its independent contractors and (2) that, as to any negligence on the part of BPA personnel, the court lacks jurisdiction over plaintiff's cause of action under the so-called "discretionary function exception." 28 U.S.C. § 2680(a). Plaintiff contends that the discretionary function exception is inapplicable to the instant case and that the United States owed to her a nondelegable duty to provide a safe workplace.

Irby Construction moves for summary judgment on the third-party complaint brought by the United States. The United States alleges that, should it be found liable to Dischner, it is entitled to indemnification from Irby Construction by virtue of a "hold harmless" clause in the construction contract. Irby Construction contends that Mont. Code Ann. § 39-71-411, the exclusive remedy provision of the Montana Workers' Compensation Act, operates as a bar to common law indemnity or contractual indemnity. The United States argues that the validity of the indemnification agreement between Irby Construction and itself is a matter of federal law and that the Montana workers' compensation statute is inapplicable under the circumstances.

III.

At the outset, the court notes that the alleged negligence of Irby Construction's crane operator is irrelevant to consideration of plaintiff's action against the government. It is well settled that the United States cannot be held liable for the negligence of its independent contractors. See United States v. Orleans, 425 U.S. 807, 96 S.Ct. 1971, 48 L.Ed.2d 390 (1976).

The standard for ruling on a motion for summary judgment is set forth in Fed.R. Civ.P. 56(c). Summary judgment may be granted when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.

A party bringing a cause of action against the United States may do so only to the extent the government has waived its sovereign immunity. Orleans, 425 U.S. at 814, 96 S.Ct. at 1975. The plaintiff bears the burden of demonstrating the government's unequivocal waiver of immunity. Holloman v. Watt, 708 F.2d 1399, 1401 (9th Cir.1983), cert. denied, 466 U.S. 958, 104 S.Ct. 2168, 80 L.Ed.2d 552 (1984).

The Federal Tort Claims Act renders the United States liable for damages:

"for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the government while acting within the scope of 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).

The Act, however, does not constitute an absolute waiver of immunity. Several classes of tort claims are excepted from the Act's waiver of immunity. Of particular importance in the instant action is the "discretionary function exception" found in 28 U.S.C. § 2680(a). The Federal Tort Claims Act does not apply to:

"Any claim based upon an act or omission of an employee of the Government, exercising due care, in the execution of a statute or regulation, whether or not such statute or regulation be valid, or based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused."

28 U.S.C. § 2680(a) (emphasis added). In Orleans, the Supreme Court reaffirmed the principle that the "Federal Tort Claims Act is (only) a limited waiver of immunity," and, as such, "due regard must be given to the Act's exceptions." 425 U.S. at 813-14, 96 S.Ct. at 1975.

When the discretionary function exception is invoked, the basic inquiry is "whether the challenged conduct of a Government employee — regardless of status — is of a nature and quality that Congress intended to shield from tort liability." United States v. S.A. Empresa De Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797, 813, 104 S.Ct. 2755, 2765, 81 L.Ed.2d 660 (1984).

In the instant case, plaintiff advances two...