Pinckney v. US

• Decision Date: 02 October 1987
• Docket Number: No. 86-49-CIV-3.,86-49-CIV-3.
• Parties: Pian PINCKNEY and husband, Roy Pinckney, Plaintiffs, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — Eastern District of North Carolina

671 F. Supp. 405

Pian PINCKNEY and husband, Roy Pinckney, Plaintiffs, v. UNITED STATES of America, Defendant.

No. 86-49-CIV-3.

United States District Court, E.D. North Carolina, Fayetteville Division.

October 2, 1987.

Reginald Greggory Edwards, Banks and Edwards, Fayetteville, N.C., for plaintiffs.

Paul M. Newby, Asst. U.S. Atty., U.S. Atty., Raleigh, N.C., for defendant.

ORDER

BRITT, Chief Judge.

On 16 September 1987 Magistrate Wallace W. Dixon filed his memorandum and recommendation with regard to the motion by defendant for summary judgment. Defendant has filed objections thereto, and the matter is before the court for determination.

Defendant's primary objections are directed toward its contention that Magistrate Dixon failed to take into consideration allegations in plaintiffs' complaint. Magistrate Dixon in his memorandum referred to the fact that the record was incomplete. This, no doubt, resulted from an order of this court, upon motion of defendant, to suspend discovery pending a resolution of the motion for summary judgment. Nevertheless, Magistrate Dixon considered, as he was required to do under the provisions of Rule 56 of the Federal Rules of Civil Procedure, all matters of record. Upon a de novo review of the record, the court is convinced that Magistrate Dixon's well-reasoned recommendation is in accordance with law.

Defendant's objections to the recommendation of Magistrate Dixon are overruled. The court adopts the recommendation of Magistrate Dixon as its own; and, for the reasons set forth in his memorandum, which is attached hereto and incorporated herein by reference, the motion of defendant for summary judgment is denied.

This 2 October 1987.

MEMORANDUM AND RECOMMENDATION

WALLACE W. DIXON, United States Magistrate.

This matter is before the court on the defendant's motion for summary judgment. The parties have extensively briefed the question and the court has heard the parties at oral argument. Thus, the matter is ripe for recommendation to the district judge.

I.

The facts giving rise to the case are essentially undisputed. Plaintiff Pian Pinckney (plaintiff) was in the employ of HLJ Management Group (HLJ) on May 23, 1984, and functioning as a "shift leader." HLJ was under contract with the United States to furnish civilian mess attendant (kitchen police) services at several designated building locations on the U.S. Army military reservation at Fort Bragg, North Carolina. A part of HLJ's contractual responsibilities required that all window ledges be cleaned daily. On May 23, plaintiff's military counterpart, Specialist First Class Curtis Norris, the so-called first cook, pointed plaintiff's attention to a dirty window ledge and told her it needed cleaning. Plaintiff, in a effort to comply, moved behind a deep fat fryer and stove and between these objects and a wall. The area plaintiff positioned herself in was only about eighteen inches wide. As she was cleaning the window ledge, the window suddenly dropped onto plaintiff's hand, injuring her. As plaintiff was removing her hand from beneath the window and turning to leave from behind the fryer and stove, a gas line running along the floor to the fryer erupted and ignited, severely burning her entire back, buttocks, left side and left abdomen, and right leg. As a result, plaintiff has sustained serious and permanent bodily disfigurement impairing her future earning capacity. Plaintiff was awarded a $10,000.00 lump sum settlement for bodily disfigurement in an action against HLJ before the North Carolina Industrial Commission. In this present action, she seeks a recovery against the United States under the Federal Tort Claims Act (FTCA), 28 U.S.C. § 2671 et seq., attributing her injuries to the negligence of the government in several respects.

The defendant has moved for summary judgment, in essence challenging the court's jurisdiction contending that the North Carolina Worker's Compensation Act provides the sole and exclusive remedy available to plaintiff. A brief statement outlining the government position follows, concluding with the court's analysis.

II.

First, the government argues that the North Carolina Worker's Compensation Act bars plaintiff from pursuing this civil action. The government says that N.C.Gen. Stat. § 97-10.1 makes the worker's compensation act provisions the exclusive remedy in actions as between employer and employee.¹ Therefore, the government argues that since it was plaintiff's employer, her remedy is limited to that which is available only under worker's compensation. As such, she is barred from bringing this civil action and the court lacks subject matter jurisdiction.

To be sure, the government's position hinges on whether it properly can be construed as plaintiff's employer. In this regard, the government argues that the court should find it so under one or both of two theories — the joint employer theory or the statutory employer theory. These doctrines will be addressed in turn and in doing so the court must examine the North Carolina law.

Section 1346(b) of the FTCA requires that the issue of government liability be decided "in accordance with the law of the place where the act or omission occurred." Under 28 U.S.C. § 1346(b) and §§ 2671 to 2680 and subsequent case law it is clear that

congress did not intend to create substantive federal law in enacting the FTCA; it limited the liability of the United States to vicarious liability for the acts or omissions of its employees which, in turn, were tortious under the law of the place where the acts or omissions occurred. Both the precipitating tort and the scope of the government's vicarious liability were to be governed by `the law of the state where the act or omission occurred.' See Laird v. Nelms, 406 U.S. 797, 804, 92 S.Ct. 1899, 1903 32 L.Ed.2d 499 (1972); Richards v. United States, 369 U.S. 1, 6-7, 82 S.Ct. 585, 589 7 L.Ed.2d 492 (1962).

Norton v. United States, 581 F.2d 390, 394, (4th Cir.), cert. denied, 439 U.S. 1003, 99 S.Ct. 613, 58 L.Ed.2d 678 (1978). As the accident occurred in North Carolina, this court must look to whatever substantive law the state courts of North Carolina would apply in like circumstances involving a private defendant, absent any federal law to the contrary. Rayonier, Inc. v. United States, 352 U.S. 315, 318 (1957); Richards v. United States, 369 U.S. 1, 82 S.Ct. 585, 7 L.Ed.2d 492 (1962); Johnson v. United States, 528 F.2d 489 (4th Cir.1975); James v. United States, 467 F.2d 832 (4th Cir. 1972); Tyndall v. United States, 295 F.Supp. 448 (E.D.N.C.1969), aff'd, 430 F.2d 1180 (4th Cir.1970). See also, Caban v. United States, 728 F.2d 68 (2d Cir.1984); Jones v. United States, 693 F.2d 1299, 1301 (9th Cir.1982). Thus, I am required to look to the law that the state of North Carolina would apply to determine the applicability vel non of these theories on which the government relies.

Joint Employer.

Under this theory and its typical application, an employer "loans" the services of his employee to another employer for the completion of a designated job. In some circumstances, such a "borrowed servant" can become the employee of both employers such that both employers are liable to the employee for worker's compensation. See Henderson v. Manpower of Guilford County, Inc., 70 N.C.App. 408, 319 S.E.2d 690 (1984).² Joint employment arises in this context when a single employee is under contract with two employers, under the simultaneous control of both, and simultaneously performing the same or closely related services for both. Id. The lending employer (HLJ in the government's analysis) is denominated a general employer and the borrowing employer (the defendant) is denominated a special employer. The special employer becomes liable for worker's compensation if (1) the employee has a contract for hire with the special employer; (2) the work done is that of the special employer; and, (3) the special employer has the right to control the details of the employer's work. Id. This latter consideration of the degree of control is determinative. Lewis v. Barnhill, 267 N.C. 457, 465, 148 S.E.2d 536 (1966) (crucial test is the special employer's right to control the work done and the manner of performing it). Thus, in the absence of evidence that the special employer assumes control of the employee's manner of performing the work, the employee is presumed to remain solely in the employ of the general employer. Id. See also, Collins v. James Paul Edwards, Inc., 21 N.C.App. 455, 204 S.E.2d 873, cert. denied, 285 N.C. 589, 206 S.E.2d 862 (1974).

The government argues that it occupies the position of a special or joint employer of the plaintiff and because the plaintiff's recovery against her employer is limited by the worker's compensation act, which she has already obtained, it is not liable in this separate civil action.

Applying the standards for determining the joint employer relationship set out above, I must disagree with the government's contention. Crucial to this determination is my conclusion that on the record, compiled thus far, I am unable to say that the United States exercised the required degree of control over plaintiff's work, nor did it exercise the requisite degree of control over the manner in which she performed her work. Plaintiff was solely responsible to her supervisors at HLJ. The defendant's contentions to the contrary, based on plaintiff's statements at her deposition are unavailing.

Indeed, the court is bound by the presumption that the general employer retains control unless that presumption is rebutted and overcome by evidence that the special employer in fact assumes control over the manner in which the work is performed. Lewis v. Barnhill, supra, 267 N.C. at 465, 148 S.E.2d 536 (emphasis in original). To be sure, plaintiff's answers to some of the defendant's questions at deposition could lead to an inference that she thought she was under the control of the military. See Deposition at...