Hsieh v. Consolidated Engineering Services, Inc.

• Decision Date: 07 August 2008
• Docket Number: Civil Action No. 06-1218 (CKK).
• Parties: Natalie T. HSIEH, et al., Plaintiffs, v. CONSOLIDATED ENGINEERING SERVICES, INC., et al., Defendants.
• Court: U.S. District Court — District of Columbia

569 F.Supp.2d 159

Natalie T. HSIEH, et al., Plaintiffs, v. CONSOLIDATED ENGINEERING SERVICES, INC., et al., Defendants.

Civil Action No. 06-1218 (CKK).

United States District Court, District of Columbia.

August 7, 2008.

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Robert Benbow Adams, Timothy R. Obitts, Gammon & Grange, P.C., McLean, VA, for Plaintiffs.

David D. Hudgins, Hudgins Law Firm, PC, Alexandria, VA, Diane M. Sullivan, Karen L. Melnik, United States Attorney's Office, Washington, DC, for Defendants.

MEMORANDUM OPINION

COLLEEN KOLLAR-KOTELLY, District Judge.

Currently pending before the Court are a variety of dispositive motions filed by the Defendants in this action, the United States of America and the General Services Administration ("GSA") (collectively the "Federal Defendants") and Consolidated Engineering Services, Inc. ("CESI") (together with the Federal Defendants, "Defendants"), a contractor that contracted with GSA to perform maintenance and repairs on the Heating Operation and Transmission District ("HOTD") Steam Distribution Complex ("SDC") located in Washington, DC and owned by the United States. Plaintiff Matthew M. Hsieh brings this suit on behalf of himself and his minor daughter, Natalie T. Hsieh, alleging that both Plaintiffs sustained severe burns when they were struck by a vapor emitted from a sidewalk grate as Mr. Hsieh pushed his daughter over the grate in a carriage. Plaintiffs allege that their injuries were caused by Defendants' joint and several negligence.

Defendant CESI has brought a crossclaim against the Federal Defendants seeking indemnification and/or contribution in the event that any damages are imposed upon CESI based on Plaintiffs' claims. CESI has also asserted a counterclaim against Mr. Hsieh, alleging contributory negligence and seeking contribution from Mr. Hsieh in the event that damages are imposed upon CESI.¹ The Federal Defendants have likewise asserted a cross-claim against CESI, seeking contractual and/or common law indemnity and/or contribution from CESI in the event that any damages are imposed upon the Federal Defendants.

The parties have completed both fact and expert discovery in this case, and Defendants have filed a variety of dispositive motions. Specifically, the Federal Defendants have filed a Motion to Dismiss or, in the Alternative, for Summary Judgment in which they argue: (1) that Plaintiffs' injuries were caused by CESI's acts or omissions, such that the Court lacks jurisdiction to hear both Plaintiffs' claims and CESI's cross-claim against the Federal Defendants because of the independent contractor exception to the Federal Tort Claims Act ("FTCA"); (2) that the SDC Contract requires CESI to indemnify and hold harmless the Federal Defendants for the incident that caused Plaintiffs' injuries; (3) that any duty on the part of the Federal Defendants to warn Plaintiffs of a danger was fully and validly delegated to CESI via the SDC Contract; and (4) that Plaintiffs cannot show that the Federal Defendants had actual or constructive notice of a hazard. See generally Docket No. [59]. Both CESI and Plaintiffs oppose this Motion. See Docket Nos. [68] and [69].

CESI has also filed a Motion for Partial Summary Judgment on the Federal Defendants' cross-claim against CESI, in which it argues that the terms of the SDC Contract do not allow the Federal Defendants to seek indemnification or contribution from CESI for their own negligence. See Docket No. [60]. Finally, both Defendants have filed a Joint Motion for Summary Judgment against Mr. Hsieh, arguing that he cannot recover on his claim because he was contributorily negligent, see Docket No. [61], and CESI has filed a separate Motion for Summary Judgment against Mr. Hsieh, arguing that if he is found to be contributorily negligent, CESI is entitled to indemnification and/or contribution from Mr. Hsieh as to any damages that may be imposed on CESI, see Docket No. [62].

The Court has thoroughly reviewed all of the parties' filings in connection with the foregoing motions, as well as the exhibits attached thereto, the relevant statutes and case law, and the entire record herein. In so doing, the Court has found that, although the Federal Defendants flatly assert that Plaintiffs' injuries were caused by CESI's negligence, in reality, a significant factual question exists as to the proximate cause of Plaintiffs' injuries. Specifically, while it is undisputed that the vapor that allegedly injured Plaintiffs was caused by water entering the SDC, the record reveals a genuine issue as to whether that water came from a leaking valve, a larger systemic problem of water leaking into the SDC, or both. The SDC Contract delegated to CESI the responsibility for inspecting the SDC and performing preventative maintenance and repairs under $1,000 (hereinafter "minor repairs"), but provided that GSA retained responsibility for capital improvements and repairs over $1,000 (hereinafter "major repairs"). As such, while the Court concludes that the independent contractor exception applies to the inspection, preventative maintenance, and minor repairs of the SDC—and therefore grants-in-part the Federal Defendants' [59] Motion to Dismiss, and dismisses CESI's cross-claim and Plaintiffs' claims insofar as they are premised on those activities—a possibility still remains that Plaintiffs' injuries were proximately caused by a lack of capital improvements or major repairs that were not delegated to CESI under the SDC Contract.

This real possibility raises another threshold jurisdictional issue not addressed by any party in its briefing: whether the Federal Defendants' decisions as to capital improvements and major repairs fall within the scope of the discretionary function exception to the FTCA. If the discretionary function exception applies, the Court entirely lacks jurisdiction to entertain Plaintiffs' claims and CESI's cross-claim against the Federal Defendants. As the parties have neither briefed nor developed the record in a manner sufficient to allow the Court to determine whether the discretionary function exception applies in this case, the Court shall require the parties to submit briefing on that issue pursuant to the schedule set forth in the Order accompanying this Memorandum Opinion. Further, the potential application of the discretionary function exception in this case requires that the Court deny without prejudice CESI's [60] Motion for Partial Summary Judgment because if the Court lacks jurisdiction over Plaintiffs' negligence claims against the Federal Defendants, the Federal Defendants will have no need to seek indemnification or contribution from CESI. As the Court discusses in greater detail below, the factual question as to the proximate cause of Plaintiffs' injuries and the unbriefed question of the discretionary function exception's application in this case also precludes the Court from resolving a number of other issues raised by the parties in their briefs at this time. These include whether the Federal Defendants delegated their duty to warn, whether they had actual or constructive notice of a hazard, and whether CESI can benefit from the so-called government contractor defense. As such, the Court shall deny the parties', motions without prejudice insofar as they are based on those issues.

Finally, it is clear from the record before the Court that the question of Mr. Hsieh's alleged contributory negligence must be left for the jury to resolve at trial. As such, the Court shall DENY Defendants' [61] Joint Motion for Summary Judgment against Mr. Hsieh, DENY CESI's [62] separate Motion for Summary Judgment against Mr. Hsieh, GRANINT-PART and DENY-IN-PART WITHOUT PREJUDICE the Federal Defendants' [59] Motion to Dismiss or, in the Alternative, for Summary Judgment, and DENY WITHOUT PREJUDICE CESI's [60] Motion for Partial Summary Judgment.

I. BACKGROUND

The Court begins its discussion of the facts by noting that it strictly adheres to the text of Local Civil Rule 56.1 (identical to Local Civil Rule 7(h) (formerly Rule 7.1(h))). The local rules for summary judgment "assist[ ] the district court to maintain docket control and to decide motions for summary judgment efficiently and effectively." Jackson v. Finnegan, Henderson, Farabow, Garrett & Dunner, 101 F.3d 145, 150 (D.C.Cir.1996). "Requiring strict compliance with the local rule is justified both by the nature of summary judgment and by the rule's purposes .... The procedure contemplated by the rule thus isolates the facts that the parties assert are material, distinguishes disputed from undisputed facts, and identifies the pertinent parts of the record." Id. (quoting Gardels v. CIA, 637 F.2d 770, 773 (D.C.Cir.1980)). "[A] district court should not be obliged to sift through hundreds of pages of depositions, affidavits, and interrogatories in order to make [its] own analysis and determination of what may, or may not, be a genuine issue of material fact." Id. (quoting Twist v. Meese, 854 F.2d 1421, 1425 (D.C.Cir.1988)). As such in resolving the pending summary judgment motions, this Court "assumes that facts identified by the moving party in its statement of material facts are admitted, unless such a fact is controverted in the statement of genuine issues filed in opposition to the motion." LCvR 56.1.

In the instant case, each party has submitted a statement of material facts in support of its motion for summary judgment, and each opposing party has responded with an opposing statement of material facts. The Court cites to these statements as appropriate in this Background section, referring to opening statements of material fact as the party's "Statement" ("Stmt.") and referring to opposing statements of material fact as the "Opposition Statement" ("Opp'n Stmt."). In addition, where appropriate, the Court cites directly to undisputed facts in the record to supplement the facts identified by the parties.

A. Plaintiffs and the...