Russ v. U.S.

• Decision Date: 17 January 2001
• Docket Number: No. Civ. 1:99CV00488.,Civ. 1:99CV00488.
• Court: U.S. District Court — Middle District of North Carolina
• Parties: Vincent Scott RUSS and Emily L. Russ, Plaintiffs, v. UNITED STATES of America, Defendant.

129 F.Supp.2d 905

Vincent Scott RUSS and Emily L. Russ, Plaintiffs, v. UNITED STATES of America, Defendant.

No. Civ. 1:99CV00488.

United States District Court, M.D. North Carolina.

January 17, 2001.

B. Ervin Brown, II, Moore and Brown, Winston-Salem, NC, Anna Engelhard Caldwell, Winston-Salem, NC, for Vincent Scott Russ, Emily L. Russ.

Lynne P. Klauer, Office of U.S. Atty., Greensboro, NC, for U.S.

MEMORANDUM OPINION

BULLOCK, District Judge.

Plaintiffs Vincent Scott Russ and Emily L. Russ have filed claims against the United States of America ("Government") alleging that Vincent Scott Russ was injured on or about August 3, 1997, when he fell from a wheelchair ramp at his home. The ramp was constructed by Michael Russell Construction Company with a $4,100.00 grant approved by the Veterans Administration ("VA") pursuant to the Home Improvement and Structural Alteration ("HISA") program. Plaintiffs have brought this action under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 1346(b), alleging negligence and alleging loss of consortium under North Carolina law. The Government has moved for summary judgment on both claims. For the following reasons the court will grant the Government's motions for summary judgment and dismiss the case.

FACTS

The following facts are established in the pleadings, affidavits, deposition testimony, and exhibits offered by the parties. Where there are disputes, each party's position is given.

Plaintiff Vincent Scott Russ is a disabled veteran who applied for and was granted benefits under the HISA program. The HISA program is directed by the Department of Veterans Affairs and administered by the Prosthetics and Sensory Aids Services Division ("PSAS"). Upon approval of a HISA application, a veteran with a service-related disability is eligible to receive a lifetime grant of up to $4,100.00 for construction to provide access to his or her home or for home improvements or structural alterations necessary to ensure continuation of treatment for the veteran. The Government claims that the VA does not contract with the person or firm selected by the veteran to undertake the construction and does not take responsibility for services obtained with a HISA grant.

In May 1997, Vincent Scott Russ met with the VA Chief of PSAS, Dwight C. Fields, in Salisbury, North Carolina. Vincent Scott Russ wanted a wheelchair ramp built on the front of his home and a deck built on the back of his home. Fields informed Russ about the HISA program and gave him an application. Russ was provided with a list of contractors' names and addresses. Plaintiffs allege that under HISA a veteran must solicit contractor bids before a contractor is selected. Plaintiffs contend that Fields told Russ that if he chose Michael Russell Construction Company to perform the work he would not have to solicit other bids. Plaintiffs further allege that Fields said he knew Michael Russell and could vouch for him and that Russell performed many jobs for the VA. Allegedly Fields also said that no complaints had been filed against Russell and that Russ's application would be approved immediately if he chose Russell as the contractor. Defendant denies that any of these remarks were made.

Unbeknownst to Plaintiffs, Russell was not a licensed contractor in North Carolina and he did not obtain the necessary permits for the construction he undertook at Plaintiffs' residence. Had he known this information, Vincent Scott Russ would not have chosen Russell to perform the construction.

Vincent Scott Russ's HISA application was approved in July 1997. Allegedly Fields unilaterally approved the application without properly following the internal procedures of the VA. Construction began at Plaintiffs' home that same month. Vincent Scott Russ observed that the construction was of poor quality and reported this to Fields on or about July 31, 1997. On or about August 1, 1997, Vincent Scott Russ provided photographs of the construction to Fields. Vincent Scott Russ alleges that he made numerous requests for inspections of the ramp. Plaintiffs claim that Fields denied these requests and encouraged Vincent Scott Russ to use the ramp. The Government contends that the VA had no duty to inspect the ramp and admits that the VA did not inspect the ramp.

Because construction on the deck was underway but not completed at the back door of Plaintiffs' home, the ramp at the front door was the only means of access to the home. Vincent Scott Russ was walking down the ramp on August 3, 1997, when the floor caved in and his foot was trapped, causing him to fall down and off the ramp. As a result of the fall, Russ has allegedly suffered severe painful and permanent injuries to his pelvis, shoulder, hand, and back.

Plaintiffs filed an amended complaint in this action on March 15, 2000, alleging negligence under the Federal Tort Claims Act and loss of consortium under North Carolina law.

DISCUSSION

Summary judgment must be granted if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). The moving party bears the burden of persuasion on the relevant issues. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The non-moving party may survive a motion for summary judgment by producing "evidence from which a [fact finder] might return a verdict in his favor." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). When the motion is supported by affidavits, the non-moving party must set forth specific facts showing that there is a genuine issue for trial. See Fed.R.Civ.P. 56(e); see also Cray Communications, Inc. v. Novatel Computer Sys., Inc., 33 F.3d 390, 393-94 (4th Cir.1994) (moving party on summary judgment motion can simply argue the absence of evidence by which the non-movant can prove her case). In considering the evidence, all reasonable inferences are to be drawn in favor of the non-moving party. Anderson, 477 U.S. at 255, 106 S.Ct. 2505. However, "[t]he mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be evidence on which the [fact finder] could reasonably find for the plaintiff." Id. at 252, 106 S.Ct. 2505.

Plaintiff Vincent Scott Russ claims that the Government is liable for his injuries due to negligence under the Federal Torts Claims Act, 28 U.S.C. §§ 1346(b), 2671-80. Plaintiff Emily L. Russ seeks recovery for loss of consortium under North Carolina law. The Government has moved for summary judgment on both claims on the grounds that this court lacks jurisdiction over Plaintiffs' claims. The Government further argues that the discretionary function exception bars this action, that it is not responsible for negligence of an independent contractor, and that Plaintiffs have not stated a cause of action for negligence under North Carolina law.¹

The United States as sovereign is immune to suit except as it consents to be sued. United States v. Mitchell, 445 U.S. 535, 538, 100 S.Ct. 1349, 63 L.Ed.2d 607 (1980). A plaintiff bringing a claim against the United States bears the burden of identifying an "unequivocal" waiver of sovereign immunity. Williams v. United States, 50 F.3d 299, 304 (4th Cir.1995). Under the Federal Tort Claims Act the United States waives sovereign immunity for tortious acts for which a private individual would be liable in similar circumstances. 28 U.S.C. §§ 1346(b), 2671-80. The subject matter jurisdiction granted to the federal courts pursuant to a waiver of sovereign immunity by the United States must be strictly construed. McMahon v. United States, 342 U.S. 25, 27, 72 S.Ct. 17, 96 L.Ed. 26 (1951). The FTCA provides certain express exclusions from the United States' waiver of sovereign immunity. One of those exceptions is for any claim arising from misrepresentation or deceit. 28 U.S.C. § 2680(h).² The Government argues that the claims brought by Plaintiffs are claims of intentional or negligent misrepresentation and thus fall under this exception of the FTCA.

In response, Plaintiffs first contend that the misrepresentation exception applies only in a commercial or financial setting and does not apply to claims involving personal injury. Plaintiffs argue that negligent misrepresentation is the failure to use due care in obtaining and communicating information upon which a party may rely in the conduct of his business or economic affairs, and is not applicable to a case involving personal injury. (Pls.' Mem. in Opp'n to Def.'s Mot. for Summ.J., p. 10). Second, Plaintiffs maintain that because they allege simple negligence and loss of consortium, not misrepresentation, the United States has waived its sovereign immunity in this case.

Two Supreme Court decisions establish the framework for applying the FTCA misrepresentation exception. See Block v. Neal, 460 U.S. 289, 103 S.Ct. 1089, 75 L.Ed.2d 67 (1983), and United States v. Neustadt, 366 U.S. 696, 81 S.Ct. 1294, 6 L.Ed.2d 614 (1961). In United States v. Neustadt, the Supreme Court found that a claim brought by home purchasers alleging that they had relied on an appraisal completed by the Federal Housing Administration ("FHA") arose from misrepresentation and therefore was not actionable under the FTCA. The home purchasers were furnished a report of an inaccurate FHA inspection and appraisal and were thereby induced to buy a house in excess of its fair market value. The Supreme Court described the traditional definition of negligent misrepresentation as the failure to "use due care in obtaining and communicating information upon which [a] party may reasonably be expected to rely in the conduct of his economic affairs." Neustadt, 366 U.S. at 706, 81 S.Ct. 1294.

In Block v. Neal the Supreme Court found that the misrepresentation exception did not apply to a homeowner's claim that the Farmers Home Administration ("FmHA") failed to properly inspect and supervise...