Hostetler v. U.S.

• Decision Date: 18 April 2000
• Docket Number: No. Civ.A. 2:99cv2026.,Civ.A. 2:99cv2026.
• Citation: 97 F.Supp.2d 691
• Parties: Cecilia HOSTETLER, Plaintiff, v. UNITED STATES of America, Defendant and Third-Party Plaintiff, v. Burdin Lift Co., Third-Party Defendant.
• Court: U.S. District Court — Eastern District of Virginia

97 F.Supp.2d 691

Cecilia HOSTETLER, Plaintiff, v. UNITED STATES of America, Defendant and Third-Party Plaintiff, v. Burdin Lift Co., Third-Party Defendant.

No. Civ.A. 2:99cv2026.

United States District Court, E.D. Virginia, Norfolk Division.

April 18, 2000.

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Lance A. Jackson, Huff, Poole & Mahoney, PC, Virginia Beach, VA, for plaintiff.

Lawrence R. Leonard, United States Attorney's Office, Norfolk, VA, for defendant and third party plaintiff.

ORDER AND OPINION

FRIEDMAN, District Judge.

On December 7, 1999, plaintiff filed a Complaint in this matter under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346, 2671, et seq., for personal injuries occurring on or about February 20, 1999, on property owned and controlled by the Department of the Navy. On March 10, 2000, defendant and third-party plaintiff, United States of America, filed a Third-Party Complaint, naming Burdin Lift, Co. ("Burdin") as the third-party defendant. On March 13, 2000, the United States filed a Motion to Dismiss, or in the Alternative, for Summary Judgment. A hearing was held on the Motion to Dismiss, or in the Alternative, for Summary Judgment on April 12, 2000, and the matter was taken under advisement. For the reasons stated below, the United States' Motion to Dismiss is GRANTED.

Factual and Procedural Background

On February 20, 1999, plaintiff was a patient at the Portsmouth Naval Hospital ("PNH"). At approximately 10:30 p.m. that day, she was on elevator #7 in Building 215 of PNH when the elevator suddenly dropped two floors. Plaintiff alleges that the sudden drop caused her to be injured. Plaintiff alleges that the sudden drop of the elevator was caused by the negligence of the United States in the following particulars: 1) failure to maintain the elevator properly; 2) failure to inspect and/or test the elevator properly; 3) failure to remove the elevator from service; 4) failure to warn of a dangerous condition of the elevator; and 5) violation of various building codes. See Complaint, at ¶ 14. At the time of plaintiff's injury, the maintenance, repair, inspection, and testing of the elevators at PNH was the sole responsibility of Burdin, pursuant to the contract between the United States and Burdin. The contract required Burdin to "maintain the elevators in a continuously safe, reliable and satisfactory operating condition;" "ride all cars to detect and then repair any improper operation;" "perform all inspections, tests, maintenance and repairs" in accordance with applicable standards; ensure proper operation of all elevators; "record all inspections, tests, maintenance, and repairs performed;" and prepare certain reports of all repairs, inspections, and tests. See Contract No. N00187-94-D-9001, at § C.5 (contract between the United States and Burdin for maintenance and repair of elevators and PNH). Defendant furnished no equipment, material or services to Burdin, nor did it control or supervise Burdin's work.

Plaintiff alleges that according to James R. Harris, a corpsman at the hospital, the same elevator had dropped on Harris before. Additionally, plaintiff alleges that a nurse had been on the same elevator several days before when the elevator dropped suddenly and got stuck between two floors.

Analysis

I. Standard of Review

In considering a Motion to Dismiss pursuant to Rule 12(b)(1), the Court may consider "(1) the complaint alone; (2) the complaint supplemented by undisputed facts evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the court's resolution of disputed facts." Williamson v. Tucker, 645 F.2d 404, 413 (5th Cir.1981). In considering this Rule 12(b)(1) motion, the Court may properly consider facts outside the Complaint to determine whether the claim is within, or excepted from, FTCA coverage. Williams v. United States, 50 F.3d 299, 304 (4th Cir.1995). Additionally, dismissal for jurisdictional defects has no res judicata effect. See id. When the subject matter jurisdiction of the Court is challenged, the burden of proving that jurisdiction is proper is the plaintiff's. See id. In Williams, the Fourth Circuit recognized that the proper practice for purposes of considering exceptions to the FTCA is dismissal for want of jurisdiction under Rule 12(b)(1), as opposed to granting summary judgment under Rule 56(c). See id.

II. The Federal Tort Claims Act

As sovereign, the United States "is immune from suit save as it consents to be sued ... and the terms of its consent to be sued in any court define the court's jurisdiction to entertain the suit." Lehman v. Nakshian, 453 U.S. 156, 160, 101 S.Ct. 2698, 69 L.Ed.2d 548 (1981) (quoting United States v. Testan, 424 U.S. 392, 399 (1976)). The FTCA is a limited waiver of sovereign immunity by the United States, which grants District Courts exclusive jurisdiction over civil suits for damages:

for injury or loss of property, or personal injury or death caused by 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

Being a waiver of sovereign immunity, the FTCA is strictly construed, and all ambiguities are resolved in favor of the United States. See Radin v. United States, 699 F.2d 681, 685 (4th Cir.1983).

Federal Courts, however, lack subject matter jurisdiction to review actions falling within any one of the exceptions to the FTCA. See United States v. Orleans, 425 U.S. 807, 813-14, 96 S.Ct. 1971, 48 L.Ed.2d 390 (1976); Thigpen v. United States, 800 F.2d 393, 394 (4th Cir.1986) (stating that the FTCA, "like all waivers of sovereign immunity, must be strictly construed in favor of the sovereign") (citations omitted). The United States argues that this Court lacks subject matter jurisdiction over this suit because plaintiff's claims are barred by two exceptions to the FTCA: 1) the discretionary function exception; and 2) the independent contractor exception.

III. The Discretionary Function Exception

The liability of the United States under the FTCA is limited by the discretionary function exception. This exception provides that the United States shall not be liable for:

[a]ny 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).

The exception provides that agents and employees of the United States will not be held liable for their challenged conduct if performance of their duties necessarily involves making decisions that are grounded in public policy. See Berkovitz v. United States, 486 U.S. 531, 536-37, 108 S.Ct. 1954, 100 L.Ed.2d 531 (1988).

In United States v. Gaubert, 499 U.S. 315, 111 S.Ct. 1267, 113 L.Ed.2d 335 (1991), the Supreme Court outlined a two-part test governing the application of § 2680(a). First, the Court must examine the challenged conduct to determine if it is discretionary, for the exception only applies to acts that are "discretionary in nature." Id. at 322, 111 S.Ct. 1267. Discretionary conduct involves "an element of judgment or choice." Id. The challenged conduct, however, will not be considered discretionary if a "federal statute, regulation, or policy specifically prescribes a course of action for an employee to follow" because "the employee has no rightful option but to adhere to the directive." Id.

The second element focuses on whether the discretionary conduct at issue involved is "of the kind that the discretionary function exception was designed to shield." Id. at 322-23, 111 S.Ct. 1267. The Court must examine the challenged conduct to determine whether the policy underlies the choice or judgment at issue, because the discretionary function is intended to insulate from liability such "governmental actions and decision based on considerations of public policy." Berkovitz, 486 U.S. at 537, 108 S.Ct. 1954. If the challenged conduct is of the nature Congress intended to shield from suit under the discretionary function, the Court lacks subject matter jurisdiction even if the suit is based on alleged negligence by government employees. See United States v. Varig Airlines, 467 U.S. 797, 820, 104 S.Ct. 2755, 81 L.Ed.2d 660 (1984). Section 2680(a) precludes liability for a discretionary function whether or not the discretion involved is abused. See Blakey v. U.S.S. Iowa, 991 F.2d 148, 153 (4th Cir.1993). Therefore, if the Court determines that the conduct at issue is discretionary and policy-based, negligence is irrelevant.

When a statute, regulation, or agency guideline "allows a Government agent to exercise discretion, it must be presumed that the agent's acts are grounded in policy when exercising that discretion." Gaubert, 499 U.S. at 324, 111 S.Ct. 1267. The burden is on the non-moving party to allege facts that would establish that the exception does not apply, and which "would support a finding that the challenged actions are not the kind of conduct that can be said to be grounded in the policy of the regulatory regime." Id. The Court's inquiry must focus on "the nature of the actions taken and on whether they are susceptible to policy analysis." Id. at 325, 111 S.Ct. 1267.

Pursuant to § C.5.a.1 of the contract between the United States and Burdin, Burdin was required to maintain the elevators in a continuously safe, reliable, and satisfactory operating condition. Such a delegation is a policy determination protected by the discretionary function exception. See, e.g., Williams, 50 F.3d...