Larsen v. Empresas El Yunque, Inc.

• Decision Date: 30 December 1986
• Docket Number: No. 86-1433,86-1433
• Citation: 812 F.2d 14
• Parties: Helen LARSEN, Plaintiff, Appellant, v. EMPRESAS EL YUNQUE, INC., et al., Defendants, Appellees.
• Court: U.S. Court of Appeals — First Circuit

Page 14

812 F.2d 14

Helen LARSEN, Plaintiff, Appellant, v. EMPRESAS EL YUNQUE, INC., et al., Defendants, Appellees.

No. 86-1433.

United States Court of Appeals, First Circuit.

Argued Nov. 7, 1986.

Decided Dec. 30, 1986.

A. Santiago-Villalonga, Hato Rey, P.R., with whom Law Offices of Nachman & Fernandez-Sein, Santurce, P.R., was on brief, for plaintiff, appellant.

Eduardo E. Toro-Font, Asst. U.S. Atty., with whom Daniel F. Lopez Romo, U.S. Atty., Hato Rey, P.R., was on brief, for defendants, appellees.

Before COFFIN, BOWNES and BREYER, Circuit Judges.

BOWNES, Circuit Judge.

This is a Federal Tort Claims Act case. Plaintiff-appellant Helen Larsen appeals from the grant of summary judgment to defendant-appellee United States. Larsen fell and was injured on the premises of a restaurant, "Empresas El Yunque, Inc.," located in the Caribbean National Forest, more commonly known as "El Yunque." El Yunque, which is a tropical rain forest, is located in Puerto Rico and, like all National Forests, is owned and controlled by the United States. The restaurant was operated by Empresas El Yunque, Inc., under a contract with the United States.

Plaintiff alleged in her complaint: that she fell on the premises of the restaurant; that as owner and operator or licensor of the premises, the United States is liable for the condition of the premises under the law of Puerto Rico; and that the United States was negligent in failing to properly maintain the restaurant premises, in failing to repair the broken and defective pavement which caused plaintiff to fall and in failing to either warn of the danger or rope off the dangerous area.

The issue is whether the United States is insulated from plaintiff's claim by its cloak of sovereign immunity. It is well established that the United States is not, because of its sovereign immunity, liable for torts committed by independent contractors. 28 U.S.C. Sec. 2671 provides in pertinent part:

As used in this chapter and sections 1346(b) and 2401(b) of this title, the term--

"Federal agency" includes the executive departments, the military departments, independent establishments of the United States, and corporations primarily acting as instrumentalities or agencies of the United States, but does not include any contractor with the United States. [Emphasis added.]

There are three controlling cases. Logue v. United States, 412 U.S. 521, 93 S.Ct. 2215, 37 L.Ed.2d 121 (1973), considered the "Act's exclusion of employees of a 'contractor with the United States.' " Id. at 523, 93 S.Ct. at 2217. The contract in Logue was between the federal government and local county jail officials for the temporary safekeeping, care and custody of federal prisoners. The Court first noted that "the distinction between the servant or agent relationship and that of independent contractor turns on the absence of authority in the principal to control the physical conduct of the contractor in performance of the contract." Id. at 527, 93 S.Ct. at 2219. It found that the contract did not give the United States the right to physically supervise the jail's employees, only the right to inspect the jail premises. Id. at 530, 93 S.Ct. at 2220. The Court, in a unanimous decision, held that because of its sovereign immunity the United States was not liable for the tort of jail employees resulting in the death of a federal prisoner. In light of plaintiff's argument that the law of Puerto Rico controls the duty of the United States as landlord of the restaurant premises, the following language is instructive:

Congress, of course, could have left the determination as to whose negligence the Government should be liable for under the Federal Tort Claims Act to the law of the State involved, as it did with other aspects of liability under the Act. But it chose not to do this, and instead incorporated into the definitions of the Act the exemption from liability for injury caused by employees of a contractor. While this congressional choice leaves the courts free to look to the law of torts and agency to define "contractor," it does not leave them free to abrogate the exemption that the Act provides.

Id. at 528, 93 S.Ct. at 2220.

In United States v. Orleans, 425 U.S. 807, 96 S.Ct. 1971, 48 L.Ed.2d 390 (1976), the question was whether "a community agency funded under the Economic Opportunity Act of 1964 was a federal instrumentality or agency for purposes of Federal Tort Claims Act liability." Id. at 809, 96 S.Ct. at 1973. Quoting from Logue, the Court noted that "a critical element in distinguishing an agency from a contractor is the power of the Federal Government 'to control the detailed physical performance of the contractor.' " Id. at 814, 96 S.Ct. at 1976. The key question was "whether the...