Opinion
Civil Action No. 02-307
March 31, 2003
MINUTE ENTRY
Before the Court are (1) a Motion for Summary Judgment filed by the United States based on its not being liable to an employee of an independent contractor (Doc. No. 10) and (2) a Second Motion for Summary Judgment filed by the United States based on the its not being liable as it is the statutory employer of plaintiff. (Doc. No. 16). The Court has reviewed the memoranda, pleadings, exhibits and the relevant law and finds the motions without merit.
Ronald Green ("Green") was employed by Leon Duplessis and Sons, Inc. which had been hired by the United States Naval Base in Plaquemines Parish, State of Louisiana, to provide grounds maintenance services which according to an affidavit filed by the Navy included "grasscutting, edging, collection and disposal of litter and trash, tree and shrub pruning, ditch cleaning and miscellaneous other services specified in the contract." (Govt. Exh. "C"). Green avers that his employer was neither hired to fix sink holes nor to warn people of the sink holes that were on the grounds. Apparently while he was "weed-eating" along a canal at the Naval Base, he fell into a sink hole injuring his knee. Plaintiff in an affidavit filed in connection with the first Motion for Summary Judgment contends that the Naval Base employees had knowledge of the sink holes and that they failed to warn of this one. He contends in addition that the Naval Base was aware of the situation and had begun repairing the sink holes and had marked some of them. The instant one, however, was not marked.
On February 8, 2000 he filed his claim as required under the Federal Tort Claims Act, 28 U.S.C. § 2675 ("FTCA"), which claim was denied on August 3, 2001. He filed the instant suit against the United States within the required six month statutory period, on February 4, 2002 pursuant to the FTCA, claiming that his injuries were caused by the negligence of the Naval Base.
In the first Motion for Summary Judgment, the United States contends that the "United States Government is not liable under the Federal Torts Claims Act for injuries occurring to an employee of an independent contractor under strict liability or when the Government had no supervisory control over acts of the employee of an independent contractor." Generally, a principal is not liable for the offenses of an independent contractor committed in the course of performing its duties under the contract if the injury has a nexus to the object of the contract. Hawkins v. Evans Cooperage Co., 766 F.2d 904, 906 (5th Cir. 1985) (Wisdom, J.). Thus, if Green were injured performing a contract involving the sink holes, there might be an argument that this defense might be applicable; however, there is no evidence before the Court that the scope of the Green's employer's work included fixing these sink holes. As such, the Court finds no merit in this motion, and it will be denied.
As to the Second Motion for Summary Judgment, the Government contends that because it is the statutory employer of Green, it is immune from judgment. Thomas v. Calavar Corp., 679 F.2d 416, 419 (5th Cir. 1982). Thus, the issue is whether Green was injured while doing work that is part of the "trade, business or occupation" of the United States." Id. The United States argues that Muldrow v. United States, 1992 WL 200866 (4th Cir. August 14, 1992) is dispositive. The court in that case found that because the United States Navy had issued regulations that give absolute responsibility to the Commander, Naval Base, Norfolk, for maintaining the naval base, that it was "part of the Navy's trade, business, or occupation to trim the grass and maintain the grounds at its naval bases." This finding was supported by the record that on the Naval Base where Muldrow was injured, fifty percent of the grounds maintenance work was actually performed by navy personnel, while the other fifty percent was subcontracted out to outside entities. Id. at **1. No such evidence with respect to the Naval Base at issue here has been presented by this motion. Furthermore, as an unpublished appellate opinion, Rule 36(c) of the Appellate Rules for the Fourth Circuit Court of Appeals provides:
In the absence of unusual circumstances, this Court will not cite an unpublished disposition in any of its published opinions or unpublished dispositions. Citation of this Court's unpublished dispositions in briefs and oral arguments in this Court and in the district courts within this Circuit is disfavored, except for the purpose of establishing res judicata, estoppel, or the law of the case.
If counsel believes, nevertheless, that an unpublished disposition of this Court has precedential value in relation to a material issue in a case and that there is no published opinion that would serve as well, such disposition may be cited if counsel serves a copy thereof on all other parties in the case and on the Court. Such service may be accomplished by including a copy of the disposition in an attachment or addendum to the brief pursuant to the procedures set forth in Local Rule 28(b).
Fed. App. Rules P. 36(c).
As stated by Judge Vance in Commercial Union Ins. Co. v. United States, 1998 WL 637379 (E.D.La. Sept. 16, 1998) citing Cottrell v. J.A. Jones Constr. Co., 582 F. Supp. 75, 78 (W.D.La. 1984) (citations omitted) "because the `United States is engaged in a vast number of trades and businesses pursuant to law,' the court must focus on `the statutes setting forth the responsibilities of Government departments or agencies which contract the work, and the connexity between the work or business authorized and the work in which the independent contractor is engaged to perform.'" Id. at *6 "Thus, the statutory employer defense as applied to government entities is generally sustained in cases in which a `relatively close nexus' is demonstrated between the work furthered by the injured employee and `one or more of the missions provided by law of the governmental agency in question.'" Id. at *7, citing Riveria v. United States Army Corps of Engineers, 891 F.2d 567, 568 (5th Cir. 1990) (parenthetical omitted). The mission of the Navy is vastly attenuated from landscaping. Thus, the Court finds that there are material questions that prevent the granting of this motion. Accordingly,
IT IS ORDERED that the United States' Motion for Summary Judgment (Doc. No. 10) and the United States' Second Motion for Summary Judgment (Doc. No. 16) are DENIED.