Laurence v. US

• Decision Date: 15 April 1994
• Docket Number: No. C-93-0381 DLJ.,C-93-0381 DLJ.
• Parties: Matthew LAURENCE, et al., Plaintiffs, v. UNITED STATES, United States Department of the Navy, and United States Department of Housing and Urban Development, Defendants.
• Court: U.S. District Court — Northern District of California

851 F. Supp. 1445

Matthew LAURENCE, et al., Plaintiffs, v. UNITED STATES, United States Department of the Navy, and United States Department of Housing and Urban Development, Defendants.

No. C-93-0381 DLJ.

United States District Court, N.D. California.

April 15, 1994.

COPYRIGHT MATERIAL OMITTED

Richard L. Bowers, of The Boccardo Law Firm in San Jose, CA, appeared on behalf of plaintiffs.

Steven M. Talson, with the U.S. Dept. of Justice in Washington, DC, appeared on behalf of defendants.

ORDER

JENSEN, District Judge.

The Court heard arguments on December 15, 1993 on defendant United States' motion for summary judgment. Richard L. Bowers of The Boccardo Law Firm appeared on behalf of plaintiffs; Steven M. Talson of the United States Department of Justice appeared on behalf of defendants. Having considered the arguments of counsel and the papers submitted, the Court hereby grants defendant's motion for the following reasons.

BACKGROUND

I. Factual Background

The facts underlying this dispute were presented in an Order of this Court dated July 8, 1993, which is now deemed incorporated herein. A brief synopsis of this background, however, is a useful predicate to an understanding of the issues involved.

In 1944 the United States acquired approximately 50 acres of property in Daly City, California. Approximately 40 acres were acquired by condemnation from the private owners of the property and 10 acres were leased from Pacific Gas & Electric ("PG & E"). The property was taken for the "duration of the existing national emergency" of World War II for the purpose of constructing national defense housing.

The Federal Public Housing Authority ("FPHA") directed the construction of a military housing facility known as Midway Village for use by the United States Navy on the 40 acres of land. FPHA contracted with the architectural and engineering firm of Ellinger, Lee & Mitchell ("EL & M") of San Francisco to survey, design and construct the housing facility. In the course of constructing the housing facility, contaminated soil was taken from the 10 acres of PG & E property and used to fill the present location of Midway Village. Upon completion of the construction, the United States took possession of approximately 426 family units to house military personnel.

Following the Korean War, the Department of Defense no longer needed the property. On May 2, 1955, PG & E and the United States terminated the lease on the 10 acres of land, and the San Mateo County Housing Authority and the Bayshore Elementary School District acquired fee simple title to Midway Village from the United States. The Housing Authority subsequently operated the facility as a low-income public housing project.

By 1976, the buildings had become dilapidated. As a result, the San Mateo County Housing Authority demolished the buildings and constructed a new housing facility on the site.

Plaintiffs, 250 current and past residents of the Midway Village public housing complex, brought suit against the United States, the Department of the Navy, and the Department of Housing and Urban Development ("HUD") under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671-80 ("FTCA"). Plaintiffs sought damages totalling $125,000,000 for personal injuries alleged to be caused by the United States.

In an Order dated July 8, 1993, the Court: (1) denied defendant's motion to dismiss based on the discretionary function exception to the FTCA; (2) denied defendant's motion to dismiss based on the independent contractor exception; (3) denied defendant's motion to dismiss based on plaintiffs' alleged failure to meet notice requirements; (4) granted defendant's motion to dismiss plaintiffs' negligence per se claims; (5) granted plaintiffs' request that the Navy and HUD be dismissed as defendants; and (6) allowed the parties to proceed with limited discovery on the issue of the applicability of the discretionary function exception and the independent contractor exception of the FTCA.

The United States now brings this motion for summary judgment. In the intervening time since issuance of the Court's last Order, plaintiffs have conducted no further discovery. Again, the government argues its activities are protected by the discretionary function and independent contractor exceptions to the FTCA.

II. Legal Standard

The Federal Rules of Civil Procedure provide for summary adjudication where "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 party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c).

In a motion for summary judgment, "if the party moving for summary judgment meets its initial burden of identifying for the court those portions of the materials on file that it believes demonstrate the absence of any genuine issues of material fact," the burden of production then shifts so that "the nonmoving party must set forth, by affidavit or as otherwise provided in Rule 56, `specific facts showing that there is a genuine issue for trial.'" T.W. Electric Service, Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir.1987) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323-25, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1983)).

In contrast to a plaintiff's motion for summary judgment, a defendant's motion for summary judgment faces a lighter burden. Because the defendant does not bear the burden of proof at trial, the defendant need only point to the insufficiency of the plaintiff's evidence to shift the burden to the plaintiff to raise genuine issues of fact as to each claim by substantial evidence. T.W. Electric at 630, citing Celotex, at 323-25, 106 S.Ct. at 2553. If plaintiff fails to raise a genuine issue of fact, then summary adjudication in favor of the defendant will be granted.

DISCUSSION

Plaintiffs argue at the onset that their case is uniquely situated since the challenged acts precede enactment of the FTCA. See Plaintiffs' Opp'n at 9-10. Specifically, plaintiffs claim their cause of action arises under the FTCA since the alleged injuries post-date the Act's enactment, but that "the acts or omissions occurring in 1944 cannot be the basis for discretionary function and independent contractor exceptions because it is improper to relate back the affirmative defenses offered by defendant...." Plaintiffs' Opp'n at 10 (emphasis added). This argument, generously characterized as "a matter of first impression," id., is entirely unpersuasive. It is irrelevant that the FTCA does not cover claims accruing before January 1, 1945, 28 U.S.C.A. § 1346(b) and that the landfill was placed in 1944. The claims in the present case have accrued after that date; the FTCA is the plaintiffs' sole, attempted remedy; and, plaintiff has invoked no legal support to justify glossing over the Act in a manner favorable to plaintiffs merely because the challenged activity preceded enactment of the FTCA. Plaintiffs accordingly are within the scope of the Act's protections as well as its exceptions in maintaining this action. See Reply at 3-4.

Plaintiffs continue to argue that the exceptions, even if pertinent to the lawsuit, are nonetheless inapplicable under the particular facts presented. Disputing that contention, the government asserts the discretionary function and independent contractor exceptions divest this Court of jurisdiction to adjudicate each of plaintiffs' various theories of liability — (1) that the government impermissibly handled, deposited, stored or dumped toxic or hazardous waste, and (2) that the government failed to monitor the toxic contamination of the soil and to warn of the contamination. See Plaintiffs' Opp'n at 4.

A. Plaintiff's Allegation that the Government Impermissibly Handled, Deposited, Stored or Dumped Toxic or Hazardous Waste

Plaintiffs are unable to maintain this claim concerning direct government participation, given the absence of admissible evidence that has been proffered in support of the theory. Substantially all the available evidence points to the conclusion that the work pertaining to the fill was undertaken exclusively by EL & M. See Mot. at 6. The only evidence supporting the claim of the government's direct involvement in handling the waste is the opening argument made by government counsel to a jury in a 1948 land valuation case. See Opp'n at 11. Such arguments by counsel are not admissible evidence, Darden v. Wainwright, 477 U.S. 168, 182, 106 S.Ct. 2464, 2472, 91 L.Ed.2d 144 (1986), and would in any event not be sufficiently material in the present context to withstand summary adjudication. See Celotex, 477 U.S. at 323-25, 106 S.Ct. at 2553.

B. Plaintiffs' Argument that the Government was Negligent in Failing to Prevent the Placement of the Contaminated Soil by EL & M

Plaintiffs argue that "the facts show that Mr. Lee knew the land was not usable for the purposes the government wanted. This information was transmitted to the government at least by December 21, 1944." Opp'n at 15. Plaintiffs accordingly draw the conclusion that "the government must have approved the operation since reports were given to the Federal Public Housing Authority orally and in writing." Id. at 16.

Giving, as the Court must, plaintiffs the benefit of the inference that the government was aware of Lee's reports and activities concerning lampblack, the premise of liability is nonetheless misplaced. Specifically, the government is shielded from such liability on the basis of the discretionary function and independent contractor exceptions to the FTCA.

1. The Discretionary Function Exception

In this Circuit at this time, the government bears the burden of proving the applicability of an exception to the FTCA's general waiver of immunity. Prescott v. United States, 973 F.2d 696, 702 (9th Cir. 1992); cf. Kiehn v. United States, 984 F.2d 1100, 1105 n. 7 (10th Cir.1993) (questioning whether the...