Wood v. U.S.
| Decision Date | 21 June 2001 |
| Docket Number | No. 99-CV-288-BS.,99-CV-288-BS. |
| Citation | 148 F.Supp.2d 68 |
| 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 SECOND MOTION FOR SUMMARY JUDGMENT AND OTHER RELATED MOTIONS
Before the Court is Defendant's Second Motion to Dismiss, or in the alternative, for Summary Judgment (Docket # 37). The Court previously treated Defendant's First Motion (Docket # 10) as a motion for summary judgment. See Wood v. United States, 115 F.Supp.2d 9, 11 (D.Me.2000). For substantially the same reasons, the Court similarly treats Defendant's pending motion as a motion for summary judgment and GRANTS the Motion for the reasons described below.
Additionally, the Court herein decides the plethora of related pending motions, including: Plaintiffs' Motion to Strike Affidavits (Docket # 53); Plaintiffs' Motion to Supplement Pleading (Docket # 62); Defendant's Motion for Leave to File a Response to Footnote Two in Plaintiffs' Motion to Strike Affidavits (Docket # 65); Plaintiffs' Second Motion for Opportunity to Conduct Discovery (Docket # 66); and Plaintiffs' Motion in Limine to Bar Affidavits (Docket # 72).
Generally, a federal court grants summary judgment "if ... there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). "An issue is genuine `if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.'" Ayer v. United States, 902 F.2d 1038, 1044 (1st Cir.1990) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). Pursuant to the Local Rules, the Court has "no independent duty to search and consider any part of the record." Local Rule 56(e). Rather, the Court relies on the parties' submitted statements of material facts ("SMF") and the record citations found therein to construe the relevant facts. See Local Rule 56. The Court must view these facts "in the light most amicable to the party contesting summary judgment, indulging all reasonable inferences in that party's favor." Pagano v. Frank, 983 F.2d 343, 347 (1st Cir.1993). However, the non-movant cannot rely on "`conclusory allegations, improbable inferences, and unsupported speculation.'" Dynamic Image Techs., Inc. v. United States, 221 F.3d 34, 39 (1st Cir.2000) (quoting Medina-Munoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir.1990)).
In this case, Defendant's Motion primarily argues that this Court lacks subject matter jurisdiction over Plaintiffs' remaining claims because the United States has retained its sovereign immunity with regard to these claims. In order for the Court to have subject matter jurisdiction over Plaintiffs' claims against the United States, the claims must fit within the applicable waiver of sovereign immunity found in the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 2671 et seq. Generally, a plaintiff bears the burden of establishing subject matter jurisdiction. See Pejepscot Indus. Park, Inc. v. Maine Cent. R. Co., 215 F.3d 195, 200 (1st Cir.2000). Thus, in light of Defendant's Motion, Plaintiffs bear the burden of proving that their claims either fit within the FTCA's waiver of sovereign immunity or that that there is a genuine issue of material fact with regard to the applicability of the FTCA to their claims.
In light of these standards, the Court lays out the relevant facts below.
This case stems from an accident on August 23, 1998, in which Plaintiff Pamela Wood sustained serious injuries while painting VLF towers located on the Naval Computer and Telecommunications Station in Cutler, Maine (the "Cutler Naval Station"). At the time of the accident, Pamela Wood was employed by Abhe & Svoboda, Inc. ("Abhe & Svoboda" or the "Contractor"), a contractor who had been hired by the United States Navy to paint and repair the Cutler Naval Station VLF towers (the "Tower project").
The Tower project was carried out pursuant to a contract between Abhe & Svoboda and the United States Navy that was entered into on October 29, 1996 ("Naval Contract N62472-95-C-0425" or the "Contract").2 The Contract generally states that Abhe & Svoboda "shall provide appropriate controls to ensure a safe work environment for employees and to protect the public and Government employees, the work site and the environment." (Contract, Section 01560, ¶ 1.1.) More specifically, the Contract calls for the Contractor to submit a plan detailing their safety program and an accident prevention program (the "safety plan") that is subject to Navy approval. (See id. at ¶ 1.8.) The Contract requires that the submitted safety plan comply with various federal regulations, including relevant regulations of the Occupational Safety and Health Administration ("OSHA"). (See id. at ¶ 1.8.1-9.) Pursuant to the Contract, Abhe & Svoboda was also required to provide worker's compensation insurance in compliance with federal and state law. (See Contract, Section 00720, ¶ 1.13.)
Through the above-described language, the United States gave Abhe & Svoboda primary responsibility for its employees' safety. Nonetheless, the Contract also states:
The Contracting Officer will notify the Contractor of any noncompliance with the foregoing provisions and the action to be taken. The Contractor shall, after receipt of such notice, immediately take corrective action. Such notice, when delivered to the Contractor or his representative at the site of the work, shall be deemed sufficient for the purpose. If the Contractor fails or refuses to comply promptly, the Contracting Officer may issue an order stopping all or part of the work until satisfactory corrective action has been taken.
(Contract, Section 00721, ¶ 1.5(c).) By letter, the Contracting Officer, Marilyn Colot, delegated certain administrative functions under the Contract to Lt. Robert Schroeder, the Resident Officer in Charge of Construction ("ROICC") at Cutler Naval Station.3 Among the many administrative functions delegated to ROICC Schroeder was "[e]nsur[ing] contractor compliance with safety requirements."4 ).) Project Engineers Mark Leighton and Kevin Barbee worked under ROICC Schroeder to monitor Abhe & Svoboda's work on the Tower Project including the Contractor's compliance with safety requirements.5
In relevant part, the Tower Project required that Abhe & Svoboda remove paint from various VLF towers located around the Cutler Naval Station and then repaint the towers, which range in height from approximately 200 to 980 feet. Because of the height of the towers, the work required the use of a two-part scaffolding system. The first part, the work platform, was the point from which workers would either remove or apply paint to a portion of the tower. In order to contain the paint, the work platform was shielded by tarps that prevented anyone on the ground from seeing what was occurring on the platform. The work platform was secured to the tower by three cables and could be moved down the tower as work on particular sections of the tower was completed.
The second part of the scaffolding system was the manlift. The manlift was used to carry workers up and down the tower to the work platform (although the work platform could also be accessed by climbing fixed ladders on the tower). The manlift was suspended from two cables and could be raised or lowered by operating two electric motors (one for each cable). The electric motors were operated by control boxes found in the manlift. Each control box contained three buttons: up, down, and emergency shutoff. In theory, the manlift was supposed to be accessed through a hatch door in the floor of the work platform. However, in practice, it appears that the hatch door was sealed and that Abhe & Svoboda workers would simply climb over the railing of the work platform to access the manlift.
In order to prevent workers from falling from the scaffolding, the safety plan, in accordance with OSHA regulations, required workers to wear safety harnesses. These harnesses allowed workers to secure themselves by "tying off" their safety harnesses either directly to the tower or to independent lifelines erected by the Contractor. During the years in question, workers were not required to tie off their safety harnesses while on the work platform. However, they were supposed to wear their safety harnesses and tie off when in the manlift.
Before beginning work on the Tower Project in 1997, Abhe & Svoboda submitted a safety plan that was reviewed by ROICC Cutler. After reviewing the initial plan, ROICC Cutler requested amendments to Abhe & Svoboda's safety plan, which were incorporated by the Contractor in April 1997.
As work began on the Tower project, various Cutler employees witnessed what they believed to be unsafe work practices by Abhe & Svoboda employees working on the towers. As a result, alleged safety violations were reported to OSHA and ROICC Cutler. Then, in August 1997, Abhe & Svoboda had two accidents involving problems with scaffolding systems being used on the Tower project. The Navy investigated one of the accidents and, as a result, recommended a review of the fall protection and rescue plan, the designation of a competent fall protection person and better training for employees working on scaffolding about all aspects of safety. An OSHA investigation of both accidents reached substantially similar conclusions regarding the work site safety deficiencies. As a result, OSHA cited Abhe & Svoboda for serious...
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...court concluded that the conduct alleged to be negligent fell within the discretionary function exception. See Wood v. United States, 148 F.Supp.2d 68 (D.Me.2001); Wood v. United States, 115 F.Supp.2d 9 (D.Me.2000). Alternatively, the court determined that ASI was an independent contractor,......
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