King v. U.S.

• Decision Date: 22 June 2007
• Docket Number: No. 3:04cv2098 (MRK).,3:04cv2098 (MRK).
• Citation: 491 F.Supp.2d 286
• Parties: Susan KING, Plaintiff, v. The UNITED STATES of America, Defendant.
• Court: U.S. District Court — District of Connecticut

491 F.Supp.2d 286

Susan KING, Plaintiff, v. The UNITED STATES of America, Defendant.

No. 3:04cv2098 (MRK).

United States District Court, D. Connecticut.

June 22, 2007.

COPYRIGHT MATERIAL OMITTED

Raymond J. Rigat, Gilbride & Rigat, Clinton, CT, for Plaintiff.

Charles A. Quinlan, III, David S. Fishback, U.S. Department of Justice, Washington, DC, Lauren M. Nash, U.S. Attorney's Office, New Haven, CT, for Defendant.

MEMORANDUM OF DECISION

KRAVITZ, District Judge.

In this personal injury action, Plaintiff Susan King asserts that she was injured while working as a contractor at the Naval Submarine Base in Groton, Connecticut. Ms. King seeks to hold the United States liable for her injuries under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 2680(a), because she sustained the injuries while working in a federal building.¹ The United States has moved for summary judgment on the ground that it is immune from Ms. King's suit for damages. For the reasons explained below, the Court GRANTS in PART and DENIES in PART Defendant's Motion for Summary Judgment [doe. # 46].

I.

The following forms the factual background to Ms. King's claims. As is required on a motion for summary judgment, the Court relates the facts in the light most favorable to Ms. King.² The Court will provide additional facts in connection with its discussion of the parties' legal claims.

Ms. King worked as a social worker in the Fleet and Family Support Center ("Family Support Center") of the Naval Submarine Base New London, in Groton, Connecticut (the "Groton Base"), from November 18, 2002, through February 21, 2003. Ms. King was employed under a contract between the Navy and her employer, Information Network Services.

The Family Support Center was located at all relevant times in Building 83 of the Groton Base, and Ms. King worked in that building. Beginning in January 2003, Building 83 underwent renovations. Instead of relocating all personnel out of Building 83 during the course of the renovations, the Navy decided to use a "`swing space' method of relocating one area of the building at a time while the renovation work in the particular area was completed." Ex. J para. 16. This decision was made in part due to the limited amount of available space on the Base, as well as the unique requirements of the Family Support Center. See id.; King v. England, 05cv949(MRK), Local Rule 56(a)1 Statement [doe. # 35] Ex. P at 4 (affidavit of Paul East).³

The renovation work was performed by Newfield Construction Company ("Newfield"), a private construction company under contract with the Navy. During the course of Newfield's work on Building 83 on February 3 or 4, the contractor set up temporary lighting in the building's basement. On the afternoon of February 6, employees at the Family Support Center noticed a burning smell in the office. These employees, including Ms. King, reported the offensive smell to their immediate supervisor, Lynn-Marie Smith-Martin. Two clinicians in addition to Ms. King reported a burning feeling in their noses and scratchy throats. After receiving these reports of odor and discomfort, Ms. Smith-Martin reported the complaints to her supervisor, Paul East, who was the Director of the Family Support Center. At Mr. East's request, a representative from either the Base Safety Office or the Industrial Hygiene Office came to the Family Support Center offices on February 6. Mr. East further reported these complaints to Robert Brese, the Executive Officer of the Groton Base.

The Groton Base was closed the next day, February 7, due to snow, and when the employees returned to work on the following Monday, February 10, Ms. King and other members of the Family Support Center administrative staff reported to Ms. Smith-Martin that the odor remained in their offices. Ms. Smith-Martin again informed Paul East of these reports.

Later on the morning of February 10, Barbara Ross, Program Manager for the Family Support Center, investigated the odors. Ms. Ross reported to Ms. Smith-Martin that she would check Ms. King's office and that she would contact the Safety Office and inform Mr. East of the situation. The Safety Office investigated the situation but was unable to determine the origin of the odor. Soon thereafter, Natali Krause from the Industrial Hygiene Depaztment came to Building 83 to investigate the odor. Ms. Krause, an Industrial Hygienist, noticed that a burning smell was still present. She spoke with the employees about the reactions they were having and how long the smell had persisted. She also advised the employees to open the windows for fresh air and to go to the base Occupational Health Office if they continued to experience symptoms.

Ms. Krause followed the odor down a flight of stairs and into a basement hallway where she saw that the plastic protective cages surrounding light bulbs, which had been brought in by the contractors for the renovation project, had melted. Ms. Krause concluded that this situation was the likely source of the offensive odor. The cages were then changed and the other employees who experienced discomfort reported that their symptoms subsided later that morning. Ms. Krause confirmed with contractor personnel that no chemicals had yet been used during the course of the renovation in that area of Building 83, but that a limited amount of bleach and spray paint had been used in other sections of the building. See Pl.'s Exs. 12, 13; Ex. M. Ms. Krause believed that the problem had been fully resolved, and Ms. King returned to her office once Ms. Krause had left.

However, on the following morning, February 11, Ms. King was told not to go into her office in Building 83, because Mr. East and Ms. Krause intended to enter it together to investigate the odor. Mr. East also requested a meeting with the Public Works department to discuss the situation. Family Support Center employees were notified both about the meeting and that the Industrial Hygiene Department and the Occupational Health/Preventive Medicine Department would continue to inspect the offices.

Ms. King spent the morning of February 11 working in another clinician's office on the same floor of Building 83, and she continued to smell the odor at one end of the office corridor. However, neither Ms. Krause nor Mr. East detected any offensive odor in Ms. King's office. Nevertheless, because employees had reported that the odor had been strongest in Ms. King's office, Mr. East arranged temporarily to relocate Ms. King downstairs on the main floor of Building 83. On February 12, Ms. King called in sick and did not report to work. On the following day, Ms. Smith-Martin arranged for Ms. King's belongings to be moved down to the main floor of Building 83. While Ms. King worked for most of February 13 on the main floor, she says that she still smelled and reacted to the odor in the upstairs hallway.

On Friday, February 14, Ms. King called in sick, and on Monday, February 17, the Family Support Center was closed because of a national holiday. From February 18 through 20, 2003, Ms. King was out of the office on approved leave. Mr. East continued to check Ms. King's original office space each day to assess whether any odor had returned. In this period of time, Mr. East does not recall any complaints from those who worked in Building 83 regarding odors or general air quality.

On February 21, 2003, Ms. King returned to work. When she reported that morning to the alternate office provided for her on the main floor of Building 83, Ms. King suffered another serious reaction and again left work.⁴ Her reaction was so severe that she went to the Westerly Urgent Care Facility, as she had done several times since her first exposure to the odors in early February. A doctor at the facility provided Ms. King with a note stating that she be excused from work from February 21, 2003 to February 26, 2003. Ms. King did not report to Building 83 again after February 21, 2003, and she no longer works at the Groton Base. Ms. King was ultimately diagnosed with "[i]rritant-induced allergic rhinoconjunctivitis as well as pharyngitis with associated asthma symptoms," which her doctor believed "within a reasonable degree of medical certainty" to be related to her "exposure to irritants in her work place." King v. England, 05cv949(MRK), Local Rule 56(a) 1 Statement [doc. # 35] Ex. B at 2.

At the end of February 2003, the Industrial Hygiene Department performed air quality testing in the Family Advocacy Program offices. The findings were communicated to Mr. East and the rest of the staff in late February, and a report was issued on March 6, 2003. The report revealed that (1) "ventilation in the counseling offices was not functional"; (2) "[a]lthough there was significant airflow in the hallway outside FS from south to north, airflow within the counseling office was minimal"; (3) "[r]elative [h]umidity was low ... and temperatures were high"; and (4) "no contaminants above OSHA limits or EPA Recommended Values [were] found." Ex. M paras. 4-6.⁵

II.

The summary judgment standard is a familiar one. Summary judgment is appropriate only when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). "A dispute regarding a material fact is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Williams v. Utica College of Syracuse Univ., 453 F.3d 112, 116 (2d Cir.2006) (internal quotation marks omitted). "The substantive law governing the case will identify those facts that are material, and `[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.'" Bouboulis v. Transp. Workers Union of Am., 442 F.3d 55, 59 (2d Cir. 2006) (quoting ...