Ferguson v. US

• Decision Date: 24 April 1989
• Docket Number: No. C-87-4175 MHP.,C-87-4175 MHP.
• Citation: 712 F. Supp. 775
• Parties: Elrey John FERGUSON, Plaintiff, v. The UNITED STATES of America, Defendant.
• Court: U.S. District Court — Northern District of California

712 F. Supp. 775

Elrey John FERGUSON, Plaintiff, v. The UNITED STATES of America, Defendant.

No. C-87-4175 MHP.

United States District Court, N.D. California.

April 24, 1989.

Joseph P. Meyers, Grossman & Davis, San Francisco, Cal., for plaintiff.

John R. Bolton, Asst. Atty. Gen., Joseph P. Russoniello, U.S. Atty., Stephen L. Schirle, Asst. U.S. Atty., Paul F. Figley, Asst. Director, Torts Branch, Civil Div., Julie Zatz, Trial Atty., Torts Branch, Civil Div., U.S. Dept. of Justice, Washington, D.C., for defendant.

PATEL, District Judge.

Plaintiff brought this action against the United States under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346(b), 2671-2678 and 2680, to recover for injuries sustained in the course of his employment as a private security inspector assigned to premises owned by the United States and leased to Sandia National Laboratories. The case is now before the court on the government's motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. Having considered the written and oral submissions of the parties, for the following reasons, the court denies the government's motion for summary judgment.

BACKGROUND

Plaintiff, Elrey John Ferguson, was employed by Advanced Security, Inc. ("ASI"), as a security inspector. Ferguson was assigned to work at Sandia National Laboratories in Livermore, California, pursuant to an agreement between Sandia Corporation and ASI.

Sandia National Laboratories is managed by Sandia Corporation, ("Sandia"), a Delaware corporation, pursuant to a contract between the United States Department of Energy ("DOE")¹ and Western Electric Company, Inc., which is now AT & T Technologies, Inc.² Sandia was organized in 1949 as a special subsidiary of Western Electric for the purposes of performing research and development for the United States Atomic Energy Commission ("AEC"), now performed for the DOE. Sandia engages exclusively in federally sponsored research relating to atomic energy research and development, receives no fee or profit from the government under its contract, and owns no property except $1,000 in United States bonds that constitutes its paid-in capital.³

The DOE requires ongoing training of security personnel at Sandia National Laboratories. Security personnel must participate in classroom training and exercises relating to security procedures at the facility. As part of their work assignments, Ferguson and other security inspectors were also periodically required to take part in security drills and tests. The drills routinely involved mock terrorist "attacks" on the Livermore facility. The drills were designed so that the security force at Sandia National Laboratories would pass performance tests required by the DOE and, if necessary, respond effectively to actual terrorist attacks against the facility.

In 1983, a construction project was commenced near two storage buildings identified as buildings 978 and 979 at the Livermore facility. A fence was erected across a roadway leading to the buildings to prevent construction workers access to sensitive areas of the buildings. The fence consisted of two, seven to eight-foot-high wooden posts, one at each side of the approximately fifteen to twenty-foot-wide roadway. Chain link fence was affixed to the wooden posts with staples and wire.

On October 19, 1985, at approximately 8:00 p.m., Ferguson and several other security inspectors began a training exercise. In the exercise, mock terrorists were presumed to have entered the Livermore premises and set off an alarm in building 978. The exercise was designed to continue until the mock intruders either had been captured or had escaped. Ferguson positioned himself near building 978 in order to maintain surveillance and carry out his team's assignment of "containing" the terrorists inside the building.

During the course of the exercise, Ferguson was told that his group leader had been shot by the terrorists and that he was to take charge. As he moved to a new position, Ferguson proceeded on the roadway that led to buildings 978 and 979. When Ferguson reached the fence described earlier, he climbed to the top and swung his body to the other side. The fence came loose from the wooden posts and collapsed. Ferguson fell to the ground, sustaining injuries for which he now seeks recovery.

LEGAL STANDARD

Summary judgment shall be granted "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial ... since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986). See also T.W. Elec. Serv. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir.1987) (the nonmoving party may not rely on the pleadings but must present specific facts creating a genuine issue of material fact); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986) (a dispute about a material fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.").

The court's function, however, is not to make credibility determinations. Anderson, 477 U.S. at 249, 106 S.Ct. at 2510-11. The inferences to be drawn from the facts must be viewed in a light most favorable to the party opposing the motion. T.W. Elec. Serv., 809 F.2d at 631.

DISCUSSION

This case concerns the liability of the United States for injuries sustained by a security inspector injured on government-owned property managed by a private contractor. Whether the government is liable under the FTCA depends on what type of relationship exists between the United States and its contractor Sandia. If Sandia is found to be an independent contractor of the government, then the United States will be immune from suit for the negligence of Sandia under 28 U.S.C. § 2671. The United States will be liable for the negligence of Sandia only if the United States has waived its sovereign immunity, or if Sandia falls within the definition of a "government employee" under 28 U.S.C. § 2671.

The government has moved for summary judgment on three grounds: (1) plaintiff's suit is barred because the DOE's decision to delegate to Sandia the maintenance and security of the facilities at Livermore was a discretionary function, (2) the United States is not liable for the negligent acts of its independent contractors, and (3) the United States owed no duty to plaintiff to ensure that fences built at Sandia National Laboratories would be safe for him to climb.

I. The Discretionary Function Exception to the Federal Tort Claims Act

Under the doctrine of sovereign immunity, the government is immune from suits by its citizens, except when the government has given its consent to being sued. See Dalehite v. United States, 346 U.S. 15, 30, 73 S.Ct. 956, 965, 97 L.Ed. 1427 (1953). In 1946, Congress enacted the Federal Tort Claims Act which waived, for the first time, the United States' general immunity from liability in tort for the wrongful or negligent acts of its agents or employees. The FTCA designates the federal courts as the forum for

claims against the United States, for money damages ... for ... personal injury ... 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).

The FTCA's waiver of sovereign immunity, however, excludes any claim

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). This "discretionary function" exception, "marks the boundary between Congress' willingness to impose tort liability upon the United States and its desire to protect certain governmental activities from exposure to suit by private individuals." United States v. S.A. Empresa De Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797, 808, 104 S.Ct. 2755, 2761-62, 81 L.Ed.2d 660 (1984). The purpose of the exception is to permit the government to make policy judgments without fear of suit. Berkovitz by Berkovitz v. United States, ___ U.S. ___, ___, 108 S.Ct. 1954, 1959, 100 L.Ed.2d 531 (1988); see Camozzi v. Roland/Miller & Hope Consulting Grp., 866 F.2d 287, 289-90 (9th Cir.1989) (negligent failure of postal service to discover floor openings in construction project administered by third party is not a discretionary function).

The liability of the United States in this case does not turn on the application of this "discretionary function" exception. Plaintiff's claim is not a challenge to the government's decision to delegate the operation of the Livermore facility to Sandia. The liability of the government in the instant case is predicated on the nature of the relationship between the United States and Sandia.

Having determined that the discretionary function exception is inapplicable, the court turns to the government's exculpatory theories based on its contractual relationship with Sandia.

The government contends that Sandia is an independent contractor of the United States for all purposes of the operation of the Livermore facility. Therefore, it argues, Sandia's negligence cannot be imputed to the government, because, as an independent contractor, Sandia is not an "employee" of the United States. See 28 U.S. C. § 2671. Plaintiff contends that Sandia, pursuant to the contract with the United States, acted as the government's agent in the construction and...