Wood v. U.S., No. Civ. 99-228-B.
| Decision Date | 15 September 2000 |
| Docket Number | No. Civ. 99-228-B. |
| Citation | 115 F.Supp.2d 9 |
| Parties | Pamela WOOD and Glenroy Wood, Plaintiffs, v. UNITED STATES of America, Defendant. |
| Court | U.S. District Court — District of Maine |
Francis J. Hallissey, Machias, ME, Ralph A. Dyer, Portland, ME, for Pamela Wood, Glenroy Wood, plaintiffs.
James M. Moore, U.S. Attorney's Office, Bangor, ME, for United States, defendant.
ORDER ON DEFENDANT'S MOTION TO DISMISS & PLAINTIFFS' MOTION In Limine
Plaintiff Pamela Wood ("Wood") along with her husband, Glenroy Wood, filed claims against Defendant the United States of America under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 2671 et seq. Plaintiffs' claims arise out of injuries Wood sustained while working for an independent contractor at the Naval Computer and Telecommunications Station in Cutler, Maine (the "Cutler Naval Station"). Defendant United States has moved to dismiss, or in the alternative, for summary judgment (Docket # 10). In connection with Defendant's Motion, Plaintiffs have filed a motion in limine seeking to limit Defendant's Motion to a motion for judgment on the pleadings under Rule 12(c) (Docket # 14). In the alternative, if the Court considers Defendant's Motion as a motion for summary judgment, Plaintiffs seek further discovery under Rule 56(f).
For the reasons discussed below, the Court treats Defendant's Motion as a motion for summary judgment and GRANTS Defendant's Motion as to Counts I and IV. On the remaining counts, the Court DENIES Defendant's Motion WITHOUT PREJUDICE and GRANTS Plaintiffs' motion for further discovery pursuant to Rule 56(f).
As a preliminary matter, the Court notes that in support of its' Motion Defendant filed a thirty-nine paragraph statement of material facts along with supporting declarations. See Statement of Material Facts of the United States of America ("Def.SMF") (Docket # 11). Plaintiffs similarly filed a Responsive Statement of Material Facts supported by their own affidavits and exhibits. See Plaintiffs' Responsive Statement of Material Facts ("Pls.SMF") (Docket # 17). Given these plentiful materials outside the pleadings, the Court will construe Defendant's Motion as a motion for summary judgment. See Fed.R.Civ.Pro. 12(c) ().1
For the purposes of summary judgment, the Court views the record in the light most favorable to the nonmoving party. See McCarthy v. Northwest Airlines, Inc., 56 F.3d 313, 315 (1st Cir.1995). Summary judgment is appropriate in the absence of a genuine issue as to any material fact and when the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). An issue is genuine for these purposes if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A material fact is one that has "the potential to affect the outcome of the suit under the applicable law." Nereida-Gonzalez v. Tirado-Delgado, 990 F.2d 701, 703 (1st Cir.1993). Facts may be drawn from "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits." Fed.R.Civ.P. 56(c).
In accordance with the standard laid out above, the Court sketches the relevant facts in the light most favorable to the Woods.
In the Spring of 1996, the United States Department of the Navy (the "Navy") decided that the VLF towers located at the Cutler Naval Station (the "towers") were in need of painting and repair. Rather than use Navy employees to work on the towers, which range from 200 to 980 feet high, the Navy solicited bids from various contractors. The Navy then evaluated the bids submitted based on various factors including the contractor's price, technical expertise, corporate management, past experience as well as the safety plan submitted for completing the work on the towers.
In October 1996, the Navy awarded the contract to Abhe & Svoboda, Inc. ("Abhe & Svoboda"), a contractor based in Minnesota. The contract between Abhe & Svoboda and the Navy required Abhe & Svoboda to comply with various safety requirements by developing a safety plan that would provide a safe working environment for its employees. The contract also required Abhe & Svoboda to secure workers' compensation insurance. Pursuant to the contract, Abhe & Svoboda began work on the towers in Spring 1997 (the "1997 construction season"). Abhe & Svoboda employed Wood as a painter on the tower project.
During the 1997 construction season, Abhe & Svoboda had two accidents at the Cutler tower work site. Both accidents involved problems with the scaffolding systems being used to work on the towers. As a result of these accidents, the Occupational Health and Safety Administration ("OSHA") issued Abhe & Svoboda a citation for serious and willful safety violations and imposed a fine.
Prior to starting its work for the 1998 construction season, the Navy requested that Abhe & Svoboda submit a revised safety plan. However, Abhe & Svoboda was allowed to start work without submitting any revision and did not respond to the Navy's request for a revised safety plan until June 1, 1998, the date upon which the Navy had threatened to stop work if the revisions were not received. Throughout the 1998 construction season, the Navy conducted periodic inspections of the Cutler tower work site to determine Abhe & Svoboda's compliance with the contract including the revised safety plan.
On August 23, 1998, Wood was working with a painting crew of Abhe & Svoboda employees on the towers. While attempting to lower scaffolding to paint the next section of the tower, one member of the crew ran into difficulty operating the motorized "man-lift" portion of the scaffolding. Wood attempted to assist the crew member. At that point, the man-lift broke away from the tower and dropped approximately 70 feet. Wood's co-worker was thrown from the manlift and sustained fatal injuries as a result of the fall. Wood remained in the manlift but suffered injuries for which she was hospitalized. Wood claims her injuries have left her permanently disabled. Neither Wood nor her co-worker were wearing safety harnesses, as required under the contract, at the time of the accident.
Immediately following the accident, the Navy suspended Abhe & Svoboda's work on the towers pursuant to its retained rights under the contract. The suspension remained in effect until September 10, 1998. As a result of the August 23rd accident, Wood filed for and received workers' compensation benefits from Abhe & Svoboda for the injuries she sustained during the course of her employment. Additionally, after exhausting her administrative remedies, she filed a claim against the United States with this Court.
II. DISCUSSION
Suits against the United States are generally barred by the doctrine of sovereign immunity. However, the FTCA provides a limited waiver of sovereign immunity allowing some tort claims to proceed against the United States. In this case, the United States argues that Plaintiffs' various claims are barred under the FTCA because the exceptions in the statute apply to Plaintiffs' claims. If a claim falls within an exception to the FTCA, the United States retains its sovereign immunity as to the claim and this Court has no subject matter jurisdiction over the claim. See 28 U.S.C. § 1346(b)(1).
In relevant part, the FTCA declares:
The United States shall be liable, respecting the provisions of this title relating to tort claims, in the same manner and to the same extent as a private individual under like circumstances, but shall not be liable ... for punitive damages.
28 U.S.C. § 2674. Because the statute specifically exempts the United States from liability for punitive damages, the United States has not waived its sovereign immunity on claims for punitive damages. Therefore, the Court finds that it lacks subject matter jurisdiction over Plaintiffs' claims for punitive damages and Defendant is entitled to judgment as a matter of law on Count IV of Plaintiffs' complaint.
The United States' waiver of sovereign immunity is subject to a number of other exceptions among them is the discretionary function exception. See 28 U.S.C. § 2680(a). Under this exception, the United States retains its immunity against claims "based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government whether or not the discretion involved is abused." Id. There is no subject matter jurisdiction over a claim that falls under the discretionary function exception to FTCA. See Williams v. United States, 50 F.3d 299, 305 (4th Cir.1995); Lesoeur v. United States, 21 F.3d 965, 967 (9th Cir.1994); Fazi v. United States, 935 F.2d 535, 539 (2d Cir.1991).
The First Circuit has provided ample guidance in recent years regarding determinations of whether a claim falls under the discretionary function exception. See Shansky v. United States, 164 F.3d 688 (1st Cir.1999); Irving v. United States, 162 F.3d 154 (1st Cir.1998) (en banc), cert. denied, 528 U.S. 812, 120 S.Ct. 47, 145 L.Ed.2d 41 (1999). Pursuant to these precedents, this Court must first "identify the conduct that allegedly caused the harm." Shansky, 164 F.3d at 690. Then, the Court must separately consider two questions: Id. at 691.
In Count I, Plaintiffs claim that the conduct of the United States that caused Wood's...
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