Rooney v. U.S.

• Decision Date: 31 December 1980
• Docket Number: No. 77-4028,77-4028
• Citation: 634 F.2d 1238
• Parties: Dennis ROONEY, Plaintiff-Appellee, Reliance Insurance Co., Plaintiff-In-Intervention-Appellee, v. UNITED STATES of America, Defendant & Third-Party Plaintiff-Appellant, v. CONTEL CORP. et al., Third-Party Defendants.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1238

634 F.2d 1238

Dennis ROONEY, Plaintiff-Appellee, Reliance Insurance Co., Plaintiff-In-Intervention-Appellee, v. UNITED STATES of America, Defendant & Third-Party Plaintiff-Appellant, v. CONTEL CORP. et al., Third-Party Defendants.

No. 77-4028.

United States Court of Appeals Ninth Circuit.

Argued and Submitted March 11, 1980.

Decided Dec. 31, 1980.

Michael J. Singer, Dept. of Justice, Washington, D.C., for defendant and third-party plaintiff-appellant.

R. Jay Engel, San Francisco, Cal., for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of California.

Before ELY, TRASK and CHOY, Circuit Judges.

CHOY, Circuit Judge:

The Government appeals from a judgment entered under the Federal Tort Claims Act (FTCA). The judgment awarded damages to Rooney for injuries sustained when he fell from a radar dome. We affirm.

I. Facts

The United States contracted with a joint venture for it to paint and to maintain various radar domes (radomes). The contract contained numerous provisions regarding safety and allocation of responsibility. Under the terms of the contract, radome crew members were to have a minimum of one year's actual experience. The contractor was given the responsibility to select and to supervise its employees. The Government reserved the right to inspect, to oversee performance of the contract, and to suspend or to terminate the contract, but it was not required to do so.

Rooney was employed by the joint venture and, without the minimum experience required by the contract, was assigned with three other employees to paint radomes at Mt. Tamalpais Air Force Base in Mill Valley, California. The supervisor of the crew left the job site after the first day. An engineering technician for the Air Force was present at the radome site, however.

On October 20, 1971, the third day of work at that job, Rooney apparently failed to tie in to the safety line after ascending the dome. He somehow slipped and fell from the 55-foot radome to a catwalk 15 feet above the ground. He was flown to a nearby military hospital and then was transferred to San Francisco General Hospital.

On October 31, 1972, Rooney filed a Standard Form 95 with the United States Air Force, claiming damages in the amount of $2,000,000. Rooney named Mt. Tamalpais as the place of the accident and referred to the fall and his subsequent treatment in describing the accident. In describing the basis of his claim, he stated only that "(t)he United States of America, by and through its agents, servants and employees negligently and carelessly treated, transported and cared for the claimant."

Rooney did not receive a decision on his claim within six months, so, pursuant to 28 U.S.C. § 2675(a), he filed suit against the United States. His complaint alleged medical malpractice by government employees at Letterman Army Hospital. On August 16, 1974, Rooney successfully moved to amend his complaint to include allegations that he fell while performing intrinsically dangerous work on federal property and that his injuries were the result of the Government's negligent operation and supervision of the work. ¹

The Government filed a third-party complaint against the contractor, designating as defendants Contel Corporation and Information Technology, Inc., a joint venture, and each corporation individually. The Government also filed a motion to dismiss the accident-related claim or, in the alternative, for summary judgment on the grounds (1) that the district court had no jurisdiction because Rooney had failed to file an administrative claim alleging that the Government's negligence caused his fall and (2) that the statute of limitation barred filing the required claim. The district court denied the motion.

The district court dismissed the medical malpractice claim, but found the United States liable under each of Rooney's three theories-for negligently retaining Contel even after it had actual knowledge of the radome crew's inexperience and of the dangerous conditions which proximately caused Rooney's injuries; for breaching a nondelegable duty by failing to ensure that Contel took adequate precautions; ² and for failing to provide safe places of employment, safe methods, and safety devices as required of a statutory employer under the California Labor Code. The district court concluded that the contract entitled the Government to indemnification to the extent that Rooney's accident was caused by the contractor's negligence and apportioned the liability-30% to Rooney, 25% to the Government, and 45% to the contractor. The court awarded damages in the amount of $795,446.33, of which the United States was held to be liable for $423,733.87 and was granted judgment against the contractor for $272,400.35.

II. Jurisdiction

The Government contends that Rooney's administrative claim alleged only medical malpractice and that, because no administrative claim was submitted alleging the Government's negligence with respect to the fall, the district court lacked jurisdiction. We do not agree.

The United States, as a sovereign, may not be sued except insofar as it consents to be sued. United States v. Orleans, 425 U.S. 807, 813-14, 96 S.Ct. 1971, 1975, 48 L.Ed.2d 390 (1976); United States v. Sherwood, 312 U.S. 584, 586, 61 S.Ct. 767, 769, 85 L.Ed. 1058 (1941). A waiver of sovereign immunity must be strictly interpreted. United States v. Sherwood, 312 U.S. at 590, 61 S.Ct. at 771.

The FTCA, 28 U.S.C. §§ 1346, 2671 et seq., is only a limited waiver, making the United States liable to the same extent as a private party for injuries "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." 28 U.S.C. § 1346(b); United States v. Orleans, 425 U.S. at 813, 96 S.Ct. 1975; see also House v. Mine Safety Appliances Co., 573 F.2d 609, 613 (9th Cir.), cert. denied, 439 U.S. 862, 99 S.Ct. 182, 58 L.Ed.2d 171 (1978). To invoke the jurisdiction of the court a claimant must follow the explicit procedural rules of the FTCA. Caidin v. United States, 564 F.2d 284, 286 (9th Cir. 1977).

"An action shall not be instituted upon a claim against the United States for money damages for ... personal injury ... 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, unless the claimant shall have first presented the claim to the appropriate Federal agency." 28 U.S.C. § 2675(a). The claim must be presented "within two years after such claim accrues." 28 U.S.C. § 2401(b). This claim requirement is jurisdictional and cannot be waived. House v. Mine Safety Appliances Co., 573 F.2d at 614.

The primary purpose of the claim requirement is "to expedite the fair settlement of tort claims asserted against the United States." S.Rep.No.1327, 89th Cong., 2d Sess. 2, reprinted in (1966) U.S.Code Cong. & Ad. News, pp. 2515, 2516; Caidin v. United States, 564 F.2d at 286 & n.3. To fulfill this purpose, the claim must provide notification of an incident and injury, must adequately identify the claimant(s), must be filed by the claimant himself or his duly authorized agent or legal representative, and must state a claim for damages in a sum certain. 28 C.F.R. § 14.2(a); ³ see Caidin v. United States, 564 F.2d 284 (9th Cir. 1977).

The Government would have us also require a claimant to state his legal theory for recovery. This we cannot do.

In his claim, Rooney named Mt. Tamalpais Air Force Base (the place where he fell from the radome) as the place of the accident and described the accident by stating:

The claimant, DENNIS ROONEY, sustained injuries as a result of a fall and subsequent medical care. The fall occurred October 20, 1971. At the time of the fall, the claimant was in the process of painting a radar dome. He was transported from the site of the fall by United States Air Force personnel to Letterman Army Hospital. He was treated at Letterman Army Hospital and thereafter transferred by U. S. Government servants, agents and employees to the San Francisco General Hospital in the City and County of San Francisco, California.

Thus he specifically gave the Government notice that his claim was for "injuries (sustained) as a result of a fall and subsequent medical care."

It is true that, in another section of the Standard Form 95, asking the claimant to "state the nature and extent of injury which forms the basis of this claim," Rooney did not specifically mention anything about the fall. However, he did "state the nature and extent of (his) injury." He stated that:

(t)he United States of America, by and through its agents, servants and employees negligently and carelessly treated, transported and cared for the claimant, DENNIS ROONEY, causing severe and painful injuries to his health and welfare including, but not limited to his left leg, his left forearm, injury to his lungs, loss of oxygen, loss of consciousness, respiratory insufficiency, renal insufficiency, neurological disfunction, malnutrition and other injuries.

That portion stating that he was "negligently and carelessly treated, transported and cared for" is surplusage. Rooney gratuitously informed the Government of a legal theory upon which he was basing his claim. He is not jurisdictionally limited by that language, however.

Contrary to the Government's contention, it was not necessary for Rooney to allege in his administrative claim that the Government's negligence caused his fall or that any specific federal employee was responsible for the injuries sustained in the fall. Moreover, even though Rooney's original complaint stated a claim for relief based only upon medical malpractice, that does not make his administrative claim defective.

The Government relies on Provancial v. United States, 454 F.2d 72 (8th Cir. 1972), for the proposition that filing an administrative claim with respect to an injury allegedly...