Korotkova v. United States, 12 CV 2436 SJ.

• Decision Date: 07 July 2014
• Docket Number: No. 12 CV 2436 SJ.,12 CV 2436 SJ.
• Citation: 990 F.Supp.2d 324
• Parties: Musya KOROTKOVA, Plaintiff, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — Eastern District of New York

990 F.Supp.2d 324

Musya KOROTKOVA, Plaintiff,

v.UNITED STATES of America, Defendant.

No. 12 CV 2436 SJ.

United States District Court,

E.D. New York.

July 7, 2014.

Law Offices of William Pager, Brooklyn, By: William Pager, for Plaintiffs.

United States Attorney's Office, Brooklyn, By: Orelia E. Merchant, for Defendant United States of America.

MEMORANDUM AND ORDER

JOHNSON, Senior District Judge:

Plaintiff Musya Korotkova (“Plaintiff”) brings this action against Defendant United States of America (“United States”) pursuant to the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 2671–80, and the Eighth Amendment to the United States Constitution. In short, in this slip-and-fall case, the plaintiff alleges she slipped and fell on the ice, while skating recreationally at an ice rink, and that the United States is liable for unspecified injuries. The ice rink at issue is the Aviator Sports and Public Recreation Area, which sits in a national park but is run by the Aviator Development Company, LLC, an independent contractor.

Presently before this Court is a Motion to Dismiss for Lack of Subject Matter Jurisdiction, pursuant to Federal Rule of Civil Procedure 12(b)(1), and for Failure to State a Claim, pursuant to Federal Rule of Civil Procedure 12(b)(6), brought by Defendant United States. For the reasons stated herein, the Motion is GRANTED and the case DISMISSED.

FACTUAL BACKGROUND

According to Plaintiffs Complaint, Plaintiff Musya Korotkova was injured on January 6, 2012 when she fell while ice skating recreationally at an ice rink located in the Aviator Sports and Public Recreation Area. ( See Complaint at ¶¶ 5–6.) In fact, and unstated in the Complaint, the Aviator Facility is at the Floyd Bennett Field in Gateway National Recreation Area, which is part of the United States National Park System. (Declaration of John Finley at ¶¶ 2–3; Pl. Mem. Law Opp. Mot. Dismiss, 12–CV–2436, Docket No. 12, at 3.) As a result of this fall on the ice while skating, the Complaint alleges that Plaintiff has suffered and will suffer “injuries to her entire body, as well as the right shoulder, arm, and wrist,” “the full extent of which is not known.” ( See Complaint at ¶ 10.) It appears there was no accident report or any involvement by medical or security personnel at the time of the incident.

The first report of the alleged incident to any party that Plaintiff acknowledges is the filing of an administrative claim with the Department of the Interior two months later, on March 5, 2012. ( See Complaint at ¶ 5) Plaintiff claims the Department of the Interior failed to timely adjudicate this claim. ( Id.) The remainder of the Complaint is composed, exclusively, of unspecified and conclusory allegations about Defendant's duty of care and Plaintiff's injury ( See Complaint at ¶¶ 8–9, 11–12)

DISCUSSION

A. Subject Matter Jurisdiction

Rule 12(b)(1) of the Federal Rules of Civil Procedure provides for the dismissal of a claim when the federal court “lacks jurisdiction over the subject matter.” Fed.R.Civ.P. 12(b)(1). In considering a 12(b)(1) motion to dismiss for lack of subject matter jurisdiction, a court must assume as true factual allegations in the complaint. Shipping Fin. Servs. Corp. v. Drakos, 140 F.3d 129, 131 (2d Cir.1998) (citing Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974)). The Plaintiff must then prove the Court's jurisdiction by a preponderance of the evidence. Id. A court may consider affidavits and other material beyond the pleadings to resolve jurisdictional questions under Rule 12(b)(1). Robinson v. Gov't of Malaysia, 269 F.3d 133, 141 n. 6 (2d Cir.2001); Makarova v. United States, 201 F.3d 110, 113 (2d Cir.2000).

1. Liability for Actions of Independent Contractors Under the FTCA

Under the FTCA, the United States has waived its sovereign immunity for suits arising from any 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[.]” 28 U.S.C. § 1346(b)(1). However, 28 U.S.C. § 2671 clarifies that the term “employee” specifically excludes “any contractor with the United States.” Therefore, the United States cannot be held liable under the FTCA for the actions or negligence of independent contractors. See United States v. Orleans, 425 U.S. 807, 96 S.Ct. 1971, 48 L.Ed.2d 390 (1976); Logue v. United States, 412 U.S. 521, 93 S.Ct. 2215, 37 L.Ed.2d 121 (1973).

Moreover, the United States cannot be held liable for the selection and supervision of independent contractors, because the selection and supervision of contractors is a discretionary function, Carter v. United States, 1998 WL 744009, *4 (S.D.N.Y. Oct. 26, 1998) (citing United States v. Varig Airlines, 467 U.S. 797, 104 S.Ct. 2755, 81 L.Ed.2d 660 (1984)), and the FTCA does not permit “claim[s] based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty ... whether or not the discretion involved be abused.” 28 U.S.C. § 2680(a).

Distinguishing a federal employee from an independent contractor is a matter of federal law. See Fraser v. United States, 490 F.Supp.2d 302 (E.D.N.Y.2007). “The critical factor in distinguishing an employee of the government from an independent contractor is whether the government retained the authority to control the detailed physical performance of the work or whether the worker's day-to-day operations in fact were supervised by the federal government.” Abrams–Fogliani v. United States, 952 F.Supp. 143, 145 (E.D.N.Y.1996); Fraser, 490 F.Supp.2d at 310. The hallmark of an independent contractor is that the United States does not direct and “control the detailed physical performance of the contractor.” See Logue v. United States, 412 U.S. 521, 528, 93 S.Ct. 2215, 37 L.Ed.2d 121 (1973). Plaintiff does not dispute the law regarding the United States' liability for the selection or supervision of independent contractors, or for the actions or negligence of independent contractors. However, Plaintiff asserts further discovery is warranted in order to determine whether Aviator was indeed an independent contractor, rather than an employee. (Pl. Mem. Law at 9.)

“Whether an entity is classified as a federal employee or an independent contractor is a matter of law ... not a question of fact [.]” Carter, 1998 WL 744009, at *4. The question is appropriately resolved by looking at the language of the contract between the Government and the contracting entity, in order to determine whether the contract provides for detailed day-to-day supervision of the contractor's physical performance, or rather grants the contractor autonomy in the performance of his work. See Hentnik v. United States, 2003 WL 22928648, at *4 (S.D.N.Y. Dec. 10, 2003); Carter, 1998 WL 744009, at *4. “The Government is immune to liability even where it retains the right to inspect a contractor's work or its compliance with regulations.” Fraser, 490 F.Supp.2d at 311.

2. Aviator is Clearly an Independent Contractor

In the present case, Defendants have provided the twenty-year contract between the United States of America and the Aviator Development Company, LLC, which was executed April 10, 2003, and its addendum, the Operating Plan between the parties which was last updated on August 9, 2011 and in place at the time of the incident alleged in the Complaint. (Def. Mot. Dismiss, Decl. of John Finley, at Exhibit A, Contract Number CC–GATE015–03 §§ ) (“Contract”). Under the Contract, Aviator was “required to operate a family-oriented sports center, on a year-round basis to include: Ice sports as the core activity and anchor for the sports center with support activities and services...” ( See Contract at § 3(a)(1).) In accordance with the Contract, Aviator was to “provide, operate, and maintain the required and authorized visitor services and any related support facilities...” ( See Contract at § 3(b).) Aviator had to “provide the plant, personnel, equipment, goods, and commodities necessary for providing, operating and maintaining the required and authorized visitor services....” ( See id.)

Under the Operating Plan, Aviator is “responsible for visitor services, facility development and maintenance, administration and other functions....” (Contract Operating Plan § II(A).) Aviator was to fill key positions, including lead managers, additional managers and supervisors, and security specialists. (Contract Operating Plan § II(A)(1–3).) Aviator had to “submit a written Security Plan...updated and reviewed on an annual basis [which would] address year-round operations ....” (Contract, Operating Plan § XI(B).) In addition, Aviator was responsible for “address[ing] all aspects of personal safety and protection of property...” (Contract, Operating Plan § XI(C).) Under the Contract, Aviator was required to ensure “facilities will be patrolled 7 days per week and 24 hours per day either by [Aviator] employees or by bonded guard service.” (Contract, Operating Plan § XI(C)(2).) The United States Park Police was to report problems to Aviator, not to any United States entity or employee. (Contract, Operating Plan § XI(C)(3).)

In addition, the Court has reviewed the deposition of John Finley, submitted by Plaintiff from an earlier, factually identical case to support the proposition that federal employees were heavily involved in day-to-day management at the site and finds it unavailing on that point particularly. ( See Defs.' Opp. to Mot. Dismiss at Ex. B, Deposition of John Finley in Svetnikova v. United States of America, 10–CV–03457 (E.D.N.Y.).)

In the context of other recent lawsuits, judges in the Eastern District of New York have had occasion to consider the liability of Aviator, the statements and testimonyof John Finley, Business Management Specialist with the United States Department of the Interior, the location referenced in this case, and the same or similar contracts, under the FTCA (and prosecuted by the same plaint...