Ryan v. U.S.
| Decision Date | 11 December 2002 |
| Docket Number | Civil Action No. 00-1613(JBS). |
| Citation | 233 F.Supp.2d 668 |
| Parties | Kenneth RYAN, Plaintiff, v. UNITED STATES of America, et al., Defendants. |
| Court | U.S. District Court — District of New Jersey |
Robert Ian Segal, Segal, Gibney, Burns, and Cedar, Medford, NJ, for Plaintiff.
Christopher J. Christie, United States Attorney by John Andrew Ruymann, Assistant United States Attorney, Trenton, NJ, for Defendants, United States of America, United States Air Force, United States Army, and United States Army Corps of Engineers.
Judith A. Schneider, Koch & Corboy, Cherry Hill, NJ, for Defendant, Volmar Services, Inc.
Robert A. Berns, Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, Newark, NJ, for Defendant, A.R.G.C.
This action involves the interplay of landowner, contractor and subcontractor liability when a laborer employed by the subcontractor is injured while working on renovations at a government military base. Plaintiff Kenneth Ryan alleges that while he was involved in demolition work on the Fort Dix, New Jersey military base, he fell from termite-infested ceiling joists and severely fractured his left foot. At the time, he was employed by defendant American Removal General Contracting ("A.R.G.C."). A.R.G.C. was the subcontractor for defendant Volmar Services, Inc. ("Volmar") which had contracted with defendant United States Army Corps of Engineers for the renovation of the housing units on the property owned by defendant United States of America.
Two motions are presently before this Court. The first is the motion of defendants United States of America, United States Air Force, United States Army, and United States Army Corps of Engineers ("federal defendants") for summary judgment on the claims contained in the complaint of plaintiff Kenneth Ryan and the cross-claims contained in the answer of defendant Volmar. The second is the motion of defendant A.R.G.C. Corporation for summary judgement in its favor on the cross-claims contained in the answer of defendant Volmar.
In the first motion, the federal defendants assert that summary judgment should be entered in their favor and that plaintiff Ryan's complaint and Volmar's cross-claims should be dismissed with prejudice as to them because the claims against them are barred by the doctrine of sovereign immunity. While the Federal Tort Claims Act (FTCA) waives such immunity over negligence claims, they argue that this case falls under the independent contractor and the discretionary function exceptions to the Act's waiver. Volmar and plaintiff Ryan, however, contend that summary judgment should not be entered because the discretionary function exception does not insulate the government here because government actors breached mandatory contractual duties. Volmar further argues that summary judgment should not be entered because the independent contractor exception does not apply here since Volmar's own status was that of an employee rather than a contractor.
In the second motion, defendant A.R.G.C. Corporation ("A.R.G.C.") asserts that summary judgment should be entered in its favor as to defendant Volmar's cross-claims because it is not liable for contribution or indemnity under the New Jersey Workers' Compensation bar. Volmar, however, argues that summary judgment is not appropriate because A.R.G.C. agreed in their subcontract to indemnify Volmar for claims arising from the negligence of A.R.G.C. or its employees.
This Court will grant in part and deny in part the federal defendants' motion for summary judgment. This Court will grant it to the extent that it asserts claims against the United States Air Force, the United States Army, and the United States Army Corps of Engineers because the FTCA only waives sovereign immunity to allow negligence claims to proceed against the United States itself, and not against its agencies. This Court will also grant it to the extent that it asserts claims against the United States for the negligence of its contractor, Volmar, or the subcontractor, A.R.G.C. because the claims are shielded by the independent contractor exception to the FTCA, and will grant it to the extent that it asserts claims against the United States for breach of a landowner duty of care because a landowner does not have a duty to inform a contractor about obvious risks of hazardous work. However, this Court will deny the motion for summary judgment to the extent that it asserts claims against the United States for the direct negligence of United States employees with respect to contractual duties to inspect and survey the work site.
This Court will then consider the motion of A.R.G.C. for summary judgment on the cross-claims of Volmar and will grant summary judgment as to cross-claim one because it is barred by New Jersey's Workers' Compensation Act, as to cross-claim two because A.R.G.C. is not liable for implied indemnification because it is not in a special relationship with Volmar, and as to cross-claim four because A.R.G.C. cannot be required to indemnify Volmar in excess of the terms of the subcontract's indemnification clause. The motion as to cross-claim three will be granted in part to the extent that it seeks indemnification from A.R.G.C. for losses caused by Volmar's negligence and denied in part to the extent that it seeks indemnification from A.R.G.C. for losses caused by A.R.G.C.'s negligence because the terms of the subcontract's indemnification clause limit A.R.G.C.'s indemnification responsibility to losses caused by its, or its employees, negligence. Finally this Court will deny the motion as to cross claim five because questions of fact remain about whether A.R.G.C. provided the insurance that was required by the parties' subcontract.
On April 20, 1998, plaintiff Kenneth Ryan fell while he was removing copper wiring from ceiling joists at a housing unit at the Fort Dix, New Jersey, military base. (Cordry Decl., Ex. A at Tr. 59:11-14, 66:12-69:6.) At the time of the fall, he was employed by defendant American Removal General Contracting (A.R.G.C.), a company that defendant Volmar Services, Inc. (Volmar) had subcontracted to work on the demolition project that Volmar had contracted with defendant United States Army Corps of Engineers to complete.
On September 30, 1997, defendant United States Army Corps of Engineers ("Corps of Engineers"), as contracting officer for the United States, entered into contract number DACA51-97-C-0059 with Volmar for the renovation of military housing units at Fort Dix owned by defendant United States. (Kara Decl. ¶ 2.) Under the contract, Volmar was to make major interior and exterior renovations to 142 existing three- and four-bedroom housing units in the Garden Terrace Family Housing Area on Fort Dix so that they could be used as housing for Air Force personnel and their families. (Kara Decl. ¶ 3.)
The 790-page, eleven-million-dollar contract detailed with precision the job requirements. This Court will recount the contract's clauses that are pertinent to the present motions for summary judgment in the discussion section of this Opinion.
Volmar subcontracted necessary demolition work to A.R.G.C., whose president was Peter Young. (Ruymann Decl., Ex. 2 at Tr. 9:12-20.) The federal defendants did not have a contract with A.R.G.C. and did not participate in hiring A.R.G.C. (Ruymann Decl., Ex. 2 at Tr. 18:14-21, Ex. 3 at Tr. 41:1-21.) A.R.G.C. president Young took his directions from Volmar employees Andy Abdallah and Bill DiGiacomo. (Ruymann Decl., Ex. 2 at Tr. 20:24-23:17.) Mr. Abdallah was Volmar's Quality Control Manager and Mr. DiGiacomo was Volmar's Superintendent and Safety Officer for the Fort Dix project. (Ruymann Decl., Ex. 3 at Tr. 9:18-11:10.)
The demolition work began around the end of January 1998. (Ruymann Decl., Ex. 2 at Tr. 19:3-5.) The project was divided into phases. (Corboy Decl., Ex. K at 4.) During phase one, the parties worked on ten units in accordance with the original terms of the contract that required renovations of the units. Some portions of the exterior and interior of the housing units were demolished during phase one, but the housing structures were saved.1 (Kara Decl., Ex. 6 at Sheet 41, Gen. Demolition Notes 8 and 11.) During the work on the units in phase one, though, termite-damaged wood was discovered to a different extent in all of the units. (Ruymann Decl., Ex. 4 at Tr. 110:2-22; Corboy Decl., Ex. K at 10.) Each time it was found, A.R.G.C. notified Volmar which notified the Corps of Engineers and the parties would modify the contract so the termite-damaged wood could be replaced. (Ruymann Decl., Ex. 4 at Tr. 110:9-112:7, Ex. 3 at Tr. 159:10-160:22, 197:15-200:1.) After plaintiff's fall, because so much termite-infested wood had been found in the phase one housing units, the parties amended the contract to require complete demolition of the remaining housing units so all termite-damaged wood would be eliminated. (Ruymann Decl., Ex. 3 at Tr. 51:2-52:5.)
During phase one, before the contract was amended to require complete demolition because of the termite-damaged wood, plaintiff Ryan was working for A.R.G.C. on Building 1201, the eighth housing unit to be demolished at Fort Dix. (Ruymann Decl., Ex. 1 at Tr. 59:6-63:12.) Ryan had worked on the demolition work at the project on-and-off for about one month and had performed demolition work before. (Cordry Decl., Ex. A at Tr. 51:17-25; Ruymann Decl., Ex. 1 at Tr. 11:9-12:4, 191:8-18.) Ryan remembers that on April 20, 1998, either Rodney Williams, the A.R.G.C. foreman, or Peter Young, A.R.G.C.'s president, asked him to go into the eighth unit and remove electrical wire that ran from the ceiling lamps. (Ruymann Decl., Ex. 1 at Tr. 63:3-20.) He claims that he was not told how to remove the wire, but admits that he did not need...
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