Mocklin v. Orleans Levee Dist.

• Decision Date: 18 July 1988
• Docket Number: Civ. A. No. 88-1199
• Citation: 690 F. Supp. 527
• Parties: Louis F. MOCKLIN, Jr., et al. v. The ORLEANS LEVEE DISTRICT and its Board of Levee Commissioners, et al.
• Court: U.S. District Court — Eastern District of Louisiana

690 F. Supp. 527

Louis F. MOCKLIN, Jr., et al. v. The ORLEANS LEVEE DISTRICT and its Board of Levee Commissioners, et al.

Civ. A. No. 88-1199

United States District Court, E.D. Louisiana.

July 18, 1988.

Lee, Martiny & Caracci, Dennis P. Couvillion, Metairie, La., for Louis F. Mocklin, Jr., Maria Ryan Mocklin.

Richard B. Ehret, McGlinchey, Stafford, Mintz, Cellini & Lang, P.C., Michael S. Guillory, New Orleans, La., for Orleans Levee Bd. & its Bd. of Levee Com'rs, Wayne Ducote, John Ross, Emile W. Schneider, George Talbot, Jr., Frank Uddo.

John Volz, U.S. Atty., Thomas L. Watson, Asst. U.S. Atty., New Orleans, La., for U.S. Army Corps of Engineers.

Lemle, Kelleher, Kohlmeyer, Dennery, Hunley, Moss & Frilot, David A. Olson, New Orleans, La., for Luhr Bros., Inc.

ORDER AND REASONS

FELDMAN, District Judge.

Plaintiffs, Louis and Maria Mocklin, brought this action for damages arising out of the death of their young son. On the afternoon of July 17, 1986, eight-year-old Louis P. Mocklin and his seven-year-old brother, Patrick, were playing along a levee near Lake Ponchartrain in New Orleans. According to Patrick, Louis waded out approximately one hundred feet into the lake and then suddenly disappeared from sight. Louis's body was found by the police the next day in eight feet of water. He had drowned.

Louis's parents sued the Orleans Levee District and its Board of Commissioners and several other entities that were allegedly involved in work being done to the levee. The work was a part of a hurricane protection project undertaken by the Corps of Engineers and conducted by defendant Luhr Bros., Inc. under a contract between Luhr and the Corps. After the Levee Board impleaded the Corps, the plaintiffs amended their complaint to also include the Corps as a direct defendant. Both the plaintiffs and the Levee Board seek to recover from the Corps under the Federal Torts Claims Act. The Corps now moves for dismissal or, alternatively, for summary judgment on both the claims of the plaintiffs and the third-party claims of the Levee Board.

In its motion, the Corps asserts two theories of relief. First, the Corps contends that the allegedly actionable negligent acts were committed by others acting as independent contractors, not as Corps employees. Under this theory, the Corps asserts that none of the acts of these other parties may be imputed to the Corps. Second, the Corps argues that any negligent acts committed by the Corps itself are insulated under the discretionary function exception to the Federal Tort Claims Act.

By seeking recovery against the United States both on the basis of the so-called employee status of those who conducted the Lake Ponchartrain activities, and on the basis the Corps's own decisions regarding the manner in which the project was to be undertaken, the plaintiffs and the Levee Board, in effect, seek two bites at the apple.

I. The Independent Contractor Defense

It is settled doctrine that the United States cannot be held liable under the Federal Tort Claims Act for the negligence of its independent contractors. 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); Cavazos v. United States, 776 F.2d 1263, 1264 (5th Cir.1985); Lathers v. Penguin Industries, 687 F.2d 69, 72 (5th Cir.1982).¹ For the Government to be held liable under the Federal Tort Claims Act, the negligent person must be an "employee" as defined by the Act.² In Cavazos, the Fifth Circuit examined the standards governing application of the independent contractor defense. This defense underscores and is driven only by the control relationship between the contracting parties. The core of employee status under the Act finds its basis in "the power of the Federal Government `to control the detailed physical performance of the contractor....'" 776 F.2d at 1264 (quoting Orleans, supra, 425 U.S. at 814, 96 S.Ct. at 1975-76). That a purported employee may receive federal funds or be subject to federal regulation is not sufficient. The test is far narrower. One seeking to overcome the independent contractor defense must show that the contractor's "day-to-day operations are supervised by the Federal Government." Cavazos, supra, 776 F.2d at 1264 (quoting Orleans, supra, 425 U.S. at 815, 96 S.Ct. at 1976). The Fifth Circuit calls this the test of "daily-detailed-control." 776 F.2d at 1264. The plaintiff and, in this case, the Levee Board, bear the burden of proving that the allegedly negligent contractor was an employee of the Government, not an independent contractor, within the meaning of the Act. Duncan v. United States, 562 F.Supp. 96, 99 (E.D.La.1983).

Not surprisingly, the contract itself is the starting point. In Wood v. Standard Products Co., 671 F.2d 825 (5th Cir.1982), the Fifth Circuit said that, in applying the independent contractor defense, the Court must look first to the terms of the contract which fix the relationship between the Government and the contractor. Id. at 829. Under the hurricane protection contract, Luhr alone was responsible for complying with applicable regulations, providing safety mechanisms, and overseeing subcontractors. Luhr had operational control of the project area and was required to supervise its employees. The respondents claim that the contract gave the Corps the right to issue notices of deficiency with regard to the contractor's work and to stop the project if the contractor failed to comply with applicable safety standards. But the case law teaches that those perogatives simply do not equate with daily detailed control. See Lathers v. Penguin Industries, 687 F.2d 69, 73-74 (5th Cir.1982); Alexander v. United States, 605 F.2d 828, 834 (5th Cir.1979).

Furthermore, nothing in the facts of this case indicates that the Corps of Engineers in fact exercised greater authority over Luhr's daily operations than the prime contract contemplated. While the Corps's onsite investigator, Calvin Tozel, did occasionally give advice to the workers and warn trespassers to stay away from the site, he did not by any means exercise the kind of daily detailed control necessary to make Luhr and its personnel Government employees; indeed, he could be criticized for not acting as he did. The respondents also assert that Mr. Tozel was present at the project site during much of the time of the operations and, in fact, worked out of an office structure at the site. The argument is weak. Tozel's consistent presence does not alter the fact that the Corps of Engineers did not exercise daily detailed control over the project. See Market Insurance Co. v. United States, 415 F.2d 459, 464 (5th Cir.1969). The plaintiffs and the Levee Board have not established on this record that Luhr and its workers (and subcontractors) were Government employees during the course of the Lake Ponchartrain project. There are no material issues in dispute as to this issue. Thus, if the United States is to be held responsible for Louis Mocklin's death, the only theoretical basis for its responsibility can be the assertion of acts of direct negligence by the Corps of Engineers and its employees.³

II. The Discretionary Function Exception

The employment of an independent contractor does not shield the Federal Government from liability for the negligent acts of its own employees. Aretz v. United States, 604 F.2d 417, 427 (5th Cir.1979). The direct negligence claims that are made against the Corps center on the detailed directions included in the prime contract regarding the method of completing the project. In particular, the Court is told, the Corps itself acted negligently in directing that flotation channels be constructed in otherwise shallow water so that equipment could be brought to the construction site. These flotation channels were created by dredging the lake bed, making deeper channels of water that could be used to bring in vessels with equipment for the project. The respondents add that the Corps was also negligent in not providing sufficient safety mechanisms, such as warning signs, to deter potential trespassers.

The Corps counters in response that it is immune from liability because its action in connection with the decision to direct the contractor to construct and maintain the flotation channels was subject to the discretionary function exception to the Federal Tort Claims Act, 28 U.S.C. § 2680(a).⁴

The case literature which speaks to the discretionary function exception is neither a model of clarity or apparent consistency. In its most recent application of the exception, United States v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797, 104 S.Ct. 2755, 81 L.Ed.2d 660 (1984), the Supreme Court refreshingly conceded that its interpretation of the Federal Tort Claims Act "has not followed a straight line." Id. at 811, 104 S.Ct. at 2763. The most prominent case on the discretionary function exception is Dalehite v. United States, 346 U.S. 15, 73 S.Ct. 956, 97 L.Ed. 1427 (1953) and no analysis can start elsewhere. In Dalehite tort claims against the Federal Government were asserted because of the explosion of a ship laden with government-manufactured fertilizer in a Texas harbor. The blast leveled much of the city and killed several persons. The fertilizer had been manufactured by the United States government as a part of a wartime effort to bring food to several foreign countries. The district court found the Government to have been negligent in three distinct ways. First, the Government was negligent in drafting and adopting the fertilizer export plan as a whole. Second, the Government was negligent in several particular instances during the manufacture of the fertilizer. And, finally, the Government was found negligent in failing to police the loading of the transport vessel properly.

The case came to the Supreme Court from this Circuit. The Supreme Court started with the proposition that,...