Norman v. U.S., 96-1645
| Decision Date | 11 April 1997 |
| Docket Number | No. 96-1645,96-1645 |
| Citation | 111 F.3d 356 |
| Parties | Kendall NORMAN, Appellant, v. UNITED STATES of America, Third-Party Plaintiff, v. ELWYN INDUSTRIES, and/or Elwyn, Inc., Third-Party Defendant. |
| Court | U.S. Court of Appeals — Third Circuit |
John F. McElvenny, Michael LaRosa, LaRosa & DeLuca P.C., Philadelphia, PA, for Appellant.
Michael R. Stiles, United States Attorney, James G. Sheehan, Assistant United States Attorney Chief, Civil Division, Lois W. Davis, Keir N. Dougall, Assistant United States Attorney, Office of United States Attorney, Philadelphia, PA, for Appellee United States of America.
Domenick C. DiCicco, Jr., Simasek, Ruzzi & McKee, Philadelphia, PA, for Appellee Elwyn Ind. and/or Elwyn, Inc.
Before: SLOVITER, Chief Judge, STAPLETON and ALDISERT, Circuit Judges.
The question for decision in this appeal from dismissal of the claim for want of subject matter jurisdiction brought in an action brought under the Federal Tort Claims Act is whether the activity complained of comes within a recognized exception to the Act. The Plaintiff claimed that he slipped and fell in the Ceremonial Court Corridor of the William J. Green Federal Building and the Byrne Courthouse Building in Philadelphia because a film of water and ice was on the floor at the entrance to the building.
The Federal Tort Claims Act vests exclusive jurisdiction in district courts for claims against the United States "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, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act occurred." 28 U.S.C. § 1346(b). Title 28 U.S.C. § 2671 explains that "Federal agency" and "Employee of the government" do not include any contractor with the United States. Thus, there is an independent-contractor exemption in the Federal Tort Claims Act. The district judge determined that any negligence causing the injury was that of the independent contractor (who was brought into this case as a third-party defendant), not that of the United States. Therefore, the court concluded that Plaintiff's claim came within the independent-contractor statutory exception to the FTCA and, accordingly, dismissed the complaint for want of subject matter jurisdiction. We affirm the judgment of the district court.
The critical factor used to distinguish a federal agency employee from an independent contractor is whether the government has the power "to control the detailed physical performance of the contractor." United States v. Orleans 425 U.S. 807, 814, 96 S.Ct. 1971, 1973, 48 L.Ed.2d 390 (1976) (citing Logue v. United States, 412 U.S. 521, 528, 93 S.Ct. 2215, 2219, 37 L.Ed.2d 121 (1973)). "[T]he question here is not whether the [contractor] receives federal money and must comply with federal standards and regulations, but whether its day-to-day operations are supervised by the Federal Government." Id. at 815, 96 S.Ct. at 1976. The contractor here, Elwyn Industries, was given broad responsibilities for daily maintenance. The contract specifically requires Elwyn to maintain an on-site supervisor, and explicitly states that "Government direction or supervision of contractor's employees directly or indirectly, shall not be exercised." App. for Appellant at 74a.
Alternatively, appellant argues that even if Elwyn Industries was negligent, the United States remains liable under Pennsylvania law as the owner and possessor of the building. There is a split in the circuits on this question. Compare Dickerson, Inc. v. United States, 875 F.2d 1577 (11th Cir.1989) (...
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