Opinion
Civil Action No. DKC 2002-3083.
February 8, 2005
MEMORANDUM OPINION
Presently pending and ready for resolution in this tort liability suit are (1) a motion by Defendant United States of America ("the government") to dismiss, or, in the alternative, for summary judgment, and (2) a motion by Defendant Jim Fletcher for summary judgment. The issues have been fully briefed and the court now rules, no hearing being deemed necessary. Local Rule 105.6. For the reasons that follow, the court will grant the government's motion to dismiss for lack of subject matter jurisdiction and will grant Defendant Fletcher's motion for summary judgment.
I. Background
A. Factual Background
The following facts are uncontroverted or viewed in the light most favorable to Plaintiff Roy Weakland. In 1998, the United States Department of the Navy solicited bids for a contract to build a Joint Strike Fighter Hover Pit ("Hover Pit") on the airfield at the Patuxent Naval Air Station in Lexington Park, Maryland. The Hover Pit was and is owned by Defendant United States of America (by and through the Department of the Navy). In August 1998, the Navy awarded the contract to R.R. Gregory Corporation ("R.R. Gregory") as the General Contractor. Generally, the contract required the construction of a concrete lined pit approximately 150 feet by 90 feet by 12 feet deep, with numerous interior columns to support metal gratings to cover the pit. The Hover Pit was to be used to test vertical take-off aircraft, and, therefore, was required to withstand very high temperatures. R.R. Gregory subcontracted with Shared Systems Technology, Inc. ("SST") to pour the special heat resistant refractory concrete that would be needed inside the Hover Pit, and SST subcontracted with Delphi Engineering, Inc. ("Delphi") for the high temperature heat curing and monitoring activities. Plaintiff Roy Weakland was one of the Delphi employees involved with the project.
Delphi arrived on the site Monday, September 20, 1999 to set up its equipment and begin the curing process but was delayed one day because approximately two feet of water had to be pumped out of the bottom of the Hover Pit by R.R. Gregory due to the passage of a recent hurricane. Accordingly, Delphi did not set up its equipment and begin the curing process until the following day, Tuesday, September 21.
The heat curing process required Delphi to wrap special electrical and propane heating equipment around the columns and other certain areas inside the pit, and then gradually heat it to a certain temperature, maintain that temperature for a period of time, and then gradually cool the temperature. Once the equipment was set up, the heating and curing process could be controlled and monitored by a single person primarily from inside an adjacent generator trailer. However, occasionally the person monitoring the process would be required to exit the trailer to adjust other equipment around the pit, but would not be required to go inside the pit. Additionally, the curing process required continuous around the clock monitoring.
Delphi began the curing process on the afternoon of Tuesday, September 21, and Plaintiff assumed the responsibility of monitoring the process during the evening and early morning shift. He was relieved Wednesday morning by John Winn, the Delphi employee covering the daytime shift. On Wednesday evening, September 22, Plaintiff returned to the work site for his second night shift and relieved Winn. A timecard inside the Delphi trailer indicated that he logged in for his shift at midnight. At approximately 3:30 a.m., Plaintiff was supposed to initiate a temperature cool down, but the temperature gauges the next morning indicated that no such cool down occurred.
On Thursday morning, September 23, Plaintiff was observed staggering around the work site in a listless, sleepy demeanor. Due to his unusual behavior, medical assistance was requested and Plaintiff was ultimately transported to St. Mary's Hospital in Leonardtown, Maryland, where it was determined he had sustained a head injury. Later, at Washington Hospital Center, Plaintiff was diagnosed with having a fractured skull, collapsed lung, and swelling of the brain.
During a subsequent investigation at the Naval Air Station, blood and hair samples were discovered inside the Hover Pit, as well as a baseball hat. Plaintiff has no recollection of how he was injured and there were no eyewitnesses. Plaintiff's theory is that at some point during the early morning hours of September 23, he fell into the Hover Pit. It is undisputed that on the night Plaintiff was injured, there was no lighting equipment around the Hover Pit, nor were there barricades or other fall protection structures around the Pit. Plaintiff alleges that it was the lack of these safety provisions that caused his injuries.
B. Procedural History
On September 18, 2001, Plaintiff filed an administrative claim with the United States Navy as required under 29 U.S.C. § 2675(a). The claim was denied on January 7, 2002 and Plaintiff's subsequent request for reconsideration was also denied. On September 18, 2002, Plaintiff filed suit in this court alleging one count of negligence against the United States, by and through the Department of the Navy ("the government"), R.R. Gregory, Jim Fletcher, a civilian employed as an Airfield Facilities Specialist, and John Does 1-15. Subsequently, the government, R.R. Gregory, and Jim Fletcher answered. R.R. Gregory also filed a third party complaint against the subcontractor SST seeking indemnification and contribution as well as damages for breach of contract. On March 20, 2003, R.R. Gregory moved for summary judgment on the ground that it was immune from liability in a personal injury action as a statutory employer under § 9-508 of the Labor and Employment Article of the Maryland Code. See Md. Code Ann., Lab. Emp. § 9-508 (1999 Repl. Vol). On October 22, 2003, the court granted R.R. Gregory's motion for summary judgment, which was joined in by SST, and entered judgment in R.R. Gregory's favor against Weakland. The court also dismissed without prejudice R.R. Gregory's third-party complaint against SST. See Papers 35, 36 (Memorandum Opinion and Order). As a result of the court's Order, R.R. Gregory and SST were terminated from this matter.
At the time Plaintiff suffered his injury, Fletcher was a civilian employed by Veridian Engineering, Inc. ("Veridian"), a private company which had contracted with the Navy to provide air operations support at the Patuxent Naval Air Station. As an Airfield Facilities Specialist with Veridian, Fletcher's duties included maintenance of the airfield and buildings. See Paper 46, Ex. 7 (Fletcher Dep.) at 4 — 31. This included such tasks as keeping the runways free of foreign object debris (FOD) and processing civil aircraft landing permits. Id.
After a period of discovery, the remaining two Defendants each filed the dispositive motions presently before the court. Defendant Fletcher has moved for summary judgment arguing, inter alia, that he owed no legal duty to Plaintiff and that, even assuming he did, Plaintiff's claim is barred by the doctrine of assumption of risk. The government has moved to dismiss Plaintiff's complaint pursuant to Fed.R.Civ.P. 12(b)(1), challenging the court's subject matter jurisdiction under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 1346. In the alternative, the government argues that even if it is not immune from Plaintiff's suit, it is entitled to summary judgment as a matter of law under the doctrine of assumption of risk. For the following reasons, both the government's and Fletcher's motions will be granted.
II. Standards of Review
A. Motion to Dismiss
Motions to dismiss for lack of subject matter jurisdiction are governed by Fed.R.Civ.P. 12(b)(1). The plaintiff bears the burden of proving that subject matter jurisdiction properly exists in the federal court. See Evans v. B.F. Perkins Co., a Div. of Standex Int'l Corp., 166 F.3d 642, 647 (4th Cir. 1999). In a 12(b)(1) motion, the court "may consider evidence outside the pleadings" to help determine whether it has jurisdiction over the case before it. Richmond, Fredericksburg Potomac R.R. Co. v. U.S., 945 F.2d 765, 768 (4th Cir. 1991); see also Evans, 166 F.3d at 647. The court should grant the 12(b)(1) motion "only if the material jurisdictional facts are not in dispute and the moving party is entitled to prevail as a matter of law." Richmond, 945 F.2d at 768.
B. Motion for Summary Judgment
It is well established that a motion for summary judgment will be granted only if there exists no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). In other words, if there clearly exist factual issues "that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party," then summary judgment is inappropriate. Anderson, 477 U.S. at 250; see also Pulliam Inv. Co. v. Cameo Properties, 810 F.2d 1282, 1286 (4th Cir. 1987); Morrison v. Nissan Motor Co., 601 F.2d 139, 141 (4th Cir. 1987). The moving party bears the burden of showing that there is no genuine issue as to any material fact and that he is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c); Catawba Indian Tribe of South Carolina v. State of S.C., 978 F.2d 1334, 1339 (4th Cir. 1992), cert. denied, 507 U.S. 972 (1993).
When ruling on a motion for summary judgment, the court must construe the facts alleged in the light most favorable to the party opposing the motion. See U.S. v. Diebold, 369 U.S. 654, 655 (1962); Gill v. Rollins Protective Servs. Co., 773 F.2d 592, 595 (4th Cir. 1985). A party who bears the burden of proof on a particular claim must factually support each element of his or her claim. "[A] complete failure of proof concerning an essential element . . . necessarily renders all other facts immaterial." Celotex Corp., 477 U.S. at 323. Thus, on those issues on which the nonmoving party will have the burden of proof, it is his or her responsibility to confront the motion for summary judgment with an affidavit or other similar evidence in order to show the existence of a genuine issue for trial. See Anderson, 477 U.S. at 256; Celotex Corp., 477 U.S. at 324. However, "[a] mere scintilla of evidence in support of the nonmovant's position will not defeat a motion for summary judgment." Detrick v. Panalpina, Inc., 108 F.3d 529, 536 (4th Cir.), cert. denied, 522 U.S. 810 (1997). There must be "sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson, 477 U.S. at 249-50 (citations omitted).
III. Analysis
A. Government's Motion to Dismiss
The government first argues that it is immune from liability in this suit under the independent contractor exception to the FTCA. The FTCA is a limited waiver of sovereign immunity, permitting liability against the United States only for injuries caused by Government employees. A Government employee, by definition in the FTCA, "does not include any contractor with the United States," so that the United States is not liable for the acts or omissions of independent contractors. 28 U.S.C. § 2671; see also United States v. Orleans, 425 U.S. 807, 813-14 (1976) ("Since the United States can be sued only to the extent that it has waived its immunity, due regard must be given to the exceptions, including the independent contractor exception, to such waiver."). If the district court determines that the challenged conduct was performed by an independent contractor, the court "must dismiss the action for want of subject matter jurisdiction." Robb v. United States, 80 F.3d 884, 887 n. 2 (4th Cir. 1996) (citing Williams v. United States, 50 F.3d 299, 304 — 05 (4th Cir. 1995)). Moreover, the FTCA, as a waiver of sovereign immunity, "is strictly construed, and all ambiguities are resolved in favor of the sovereign." Robb, 80 F.3d at 887 (citing United States v. Nordic Village, Inc., 503 U.S. 30, 33 (1992)). Accordingly, the independent contractor exception to the waiver of sovereign immunity has been construed broadly. Robb, 80 F.3d at 887.
The FTCA provides, in pertinent part, that the United States can be subject to claims:
for money damages, . . ., for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.28 U.S.C. § 1346(b)(1).
Whether a party is an independent contractor or an employee of the government is a question of federal law. Id. The critical inquiry turns on whether the government has the power to control the detailed physical performance of the contractor, see Logue v. United States, 412 U.S. 521, 527 — 28 (1973), or whether the government supervises the "day-to-day" operations of the project. Orleans, 425 U.S. at 815. As the Fourth Circuit stated in Williams:
Read together, Logue and Orleans establish the principle that the United States will not be liable under the independent contractor exception of the FTCA by virtue of entering contracts and demanding compliance with federal standards, unless the United States actually supervises the "day-to-day operations" of the endeavor.Williams, 50 F.3d at 306 (quoting Logue, 412 U.S. at 529); see also Wood v. Standard Products Co., Inc., 671 F.2d 825, 832 (4th Cir. 1982) ("[T]he real test is control over the primary activity contracted for and not the peripheral, administrative acts relating to such activity.").
The government argues that the language of the R.R. Gregory contract and its performance thereunder "leave no doubt that R.R. Gregory — and not employees of the United States — were responsible for the day-to-day construction, safety, and operation" of the Hover Pit construction. See Paper 47 at 3. The government points to several provisions in the contract to support its argument. For example, the contract incorporated Federal Acquisition Regulation (FAR) 52.236-7 which provides in part:
The Contractor shall also be responsible for all damages to persons or property that occur as a result of the Contractor's fault or negligence, and shall take proper safety and health precautions to protect the work, the workers, the public, and the property of others.See Paper 47, Ex. 1 (1.11 FAR 52.252-2, Clauses Incorporated By Reference). The contract also included Naval Facilities Engineering Command (NAVFAC) clause 5252.236.9303, Accident Prevention, which specifies that:
(a) In order to provide safety controls for protection to the life and health of employees and other persons; for prevention of damage to property, materials, supplies, and equipment; and for avoidance of work interruptions in the performance of this contract, the Contractor shall comply with all pertinent provisions of Corps of Engineers Manual, EM 38511, entitled "Safety and Health Requirements Manual" as amended, and will also take or cause to be taken such additional measures as the Contracting Officer may determine to be reasonably necessary for the purpose. . . . (d) Compliance with the provisions of the article by subcontractors will be the responsibility of the Contractor.See Paper 47, Ex. 1 (1.5 FAC 5252.236.9303, Accident Prevention). With respect to lighting, the contract required:
During nighttime, . . ., [the contractor is to] mark stationary and mobile equipment and material, and work with red lanterns. Where the Operations Officer or Contracting Officer determines that the red lanterns may confuse pilots approaching for landings, the Operations Officer or Contracting Officer may direct that the red lanterns be left off or that the color of the globes be changed.
Paper 47, Ex. 1 (Sec. 01150, pt. 3.1.4 Nighttime Markings). Finally, R.R. Gregory submitted a 30 page safety plan in which it reiterated that "[t]he responsibility for safety, health, and accident prevention is assigned to the [R.R. Gregory] Project Superintendent," including "provid[ing] appropriate safety barricades, signs, and signal lights." Paper 47, Ex. 5 at US 1974. The government argues that these provisions in the R.R. Gregory contract, together with R.R. Gregory's submitted safety plan, demonstrate that the Navy had delegated to R.R. Gregory the supervisory responsibility for completing the day-to-day work involved in the construction of the Hover Pit, including the responsibility for maintaining a safe work environment for its employees and those of any subcontractors.
Plaintiff, however, contends that the government "exercised daily control over the airfield," and that several officers from the Navy Construction Office ("ROICC") exercised substantial control over the project. See Paper 53 at 13 — 14. In support of this argument, Plaintiff offers the deposition testimony of Brian Dillow, one of the ROICC officers. Dillow testified that it was his responsibility to "make sure the contractor [was] following the spec[ification] of the job" and "complying with the safety plan." See Paper 53, Ex. 3 (Dillow Dep.) at 16. He testified this responsibility required him to go out to the work site "when time allowed between meetings and other projects." Id. at 18. He would also receive daily written reports from the contractors updating the ROICC on the status of the work. Id. at 22; see also Paper 53, Exs. 29, 30 (Daily Activity Reports). Plaintiff also points to the deposition testimony of another officer from the ROICC, Ms. Virginia Fallon, who stated that she and Dillow would be "on site to insure compliance with the safety plan." Id., Ex. 2 (Fallon Dep.) at 29.
Plaintiff's argument that this conduct constitutes "significant oversight and direction given" by the ROICC officers to strip R.R. Gregory of its independent contractor status is unavailing. Plaintiff does not demonstrate that the government "control[led] the detailed physical performance of the contractor." Wood, 671 F.2d at 829. Although the ROICC officers did monitor the contractor's and subcontractors' activities, Plaintiff offers nothing to suggest they controlled or directed the daily activities of the workers. As Dillow testified, the contractors "are the supposed experts. It's their job to know how to do it properly. [ROICC is] just to make sure they are doing it properly." Paper 53, Ex. 3 at 17. Moreover, the mere fact that the government reserved the right to inspect the work of the contractors and ensure their compliance with the applicable safety regulations does not provide the type of daily supervision necessary to convert an independent contractor into a federal employee. See, e.g., Williams, 50 F.3d at 306 — 07; Berkman v. United States, 957 F.2d 108, 114 (4th Cir. 1992) (recognizing that the right to inspect and insure compliance with the terms of the contract is not "day-to-day physical control"); Letnes v. United States, 820 F.2d 1517, 1519 (9th Cir. 1987) ("[D]etailed regulations and inspections are no longer evidence of an employee relationship."); Brooks v. A.R. S. Enterprises, Inc., 622 F.2d 8, 12 (1st Cir. 1980) ("Courts applying the FTCA have consistently held that a government's right to inspect the work of a contractor and to stop work that does not conform to the terms of the contract does not constitute control over the contractor's employees."); Lumpkins v. United States, 187 F.Supp.2d 535, 539 (D.Md. 2002). In short, Plaintiff has offered nothing to demonstrate that R.R. Gregory, or the subcontractors under it, were not independent contractors, and, accordingly, the government is not responsible for injuries created by or associated with the contractors' failure to properly maintain the Hover Pit site.
Moreover, Plaintiff's argument that the government is liable under Maryland law because it has "a non-delegable duty to maintain its premises in a reasonably safe condition" has no basis in law and must fail. See Lumpkins, 187 F.Supp.2d at 540 ("The Fourth Circuit has repeatedly stated . . . that a state nondelegable duty cannot override the FTCA.") (citing Williams, 50 F.3d at 307 — 08 and Berkman, 957 F.2d at 112 — 13); see also McKeel v. United States, 178 F.Supp.2d 493, 499 — 500 (explaining that "the FTCA exception for independent contractors preempts state law nondelegable duties").
Plaintiff contends, however, that he may still have a negligence claim against the government for the conduct of Navy personnel. Although R.R. Gregory was an independent contractor with the responsibility to comply with all applicable safety regulations, "the fact that [it] may have been responsible for [Plaintiff's] fall, however, cannot be viewed as relieving the United States from liability where [Plaintiff] alleges that federal employees also may have caused or contributed to the alleged tort." Berkman, 957 F.2d at 114 (recognizing that the issue of the government's "negligence and causation stands wholly apart from that of" independent contractors) (citing Logue, 412 U.S. at 532 — 33). Here, Plaintiff alleges that his injuries may have been caused by Navy personnel's decision not to allow safety barricades and adequate lighting around the Hover Pit.
The government treats this argument as asserting negligence in the government's failure to assure compliance with safety measures. The issue more logically and directly can be analyzed regarding the specific actions alleged to have resulted in Plaintiff's injuries.
First, with respect to barricades, it is undisputed that R.R. Gregory assumed the responsibility to provide appropriate safety barricades around the Hover Pit. See Paper 47, Ex. 5 at US 1974 (R.R. Gregory's Safety Plan); see also id., Ex. 5 at US 1985. It is also undisputed that prior to the week leading up to Plaintiff's accident, R.R. Gregory had constructed and maintained barricades around the pit. See Paper 47, Ex. 14 (Ayers Dep.) at 41 — 42, 46 — 48; Ex. 2 (Baden Dep.) at 33 — 34. However, at some time before the accident, the barricades around the Hover Pit were removed and had not been replaced before Delphi arrived to do its work on the Hover Pit.
Plaintiff contends that the barricades were removed by order of Navy personnel in preparation for an approaching hurricane. He cites to the deposition testimony of Ayers, R.R. Gregory's project supervisor, to support his contention that the government ordered the barricades removed. Ayers testified that the ROICC wanted the work site "hurricane proof" in preparation of the approaching storm. See Paper 53, Ex. 5 (Ayers Dep.) at 149. Although he could not remember the exact directive, Robert Dillow, one of the ROICC officers, testified generally that hurricane proofing a site would require "remov[ing] all objects that can blow around," or "t[ying] all the stuff down." Paper 53, Ex. 3 (Dillow Dep.) at 42 — 43. These vague references to hurricane proofing do not support Plaintiff's contention that Navy personnel ordered the barricades removed. In fact, in a portion of Ayers deposition that Plaintiff does not cite, Ayers stated he could not remember if securing the site for the hurricane required taking the barricades down. See Paper 47, Ex. 14 (Ayers Dep.) at 158. Moreover, even if Navy personnel ordered the removal of the barricades, Plaintiff offers nothing to suggest that Navy personnel prevented R.R. Gregory from replacing them after the hurricane had passed and before Delphi arrived to begin its work. As it was undoubtedly the responsibility of independent contractor R.R. Gregory to provide adequate safety barricades around the Hover Pit, the government cannot be held liable for what R.R. Gregory failed to do.
Plaintiff also argues that the decision not to allow lighting at the Hover Pit was made by government personnel. Here, Plaintiff has raised a substantial question as to who made the decision, notwithstanding what was provided for in the contract, regarding the use of lights during the nighttime work. He does not contend that R.R. Gregory made the decision about lighting at the Hover Pit, but rather that either Navy personnel, or Defendant Fletcher, made the decision. If the decision not to allow lights at the Hover Pit was made by an employee or agent of the United States, and not by an independent contractor, then the independent contractor exception to the FTCA would not shield the government from potential tort liability.
Plaintiff has put forth evidence that, in the very least, raises a substantial question as to whose decision it was not to allow lights. Several witnesses have testified in depositions that the decision regarding lights at the Hover Pit while Plaintiff was working was made by Navy personnel. For example, the owner of Delphi, Nicolas Pjatikin ("Pjatikin"), testified that he was told by Navy personnel during an initial meeting at the airfield tower that no lights would be allowed because it would interfere with the pilot's vision during nighttime operations. See Paper 53, Ex. 12 (Pjatikin Dep.) at 45 — 47. In addition, Ayers, RR Gregory's construction superintendent, testified in his deposition that he also was instructed that no lights were to be put up during the nighttime work done by Delphi. Paper 53, Ex. 5 (Ayers Dep.) at 60. John Winn, the Delphi employee who worked the day shift, testified that during a meeting with "people from the Navy," he asked if Delphi could put up lights for the nighttime operations and was told "it was not a good idea." Paper 53, Ex. 35 (Winn Dep.) at 26. Plaintiff himself testified that after the runway license class, "the instructor" told him that no outdoor lighting would be permitted. Id., Ex. 21 (Weakland Dep.) at 93.
Although, Ayers initially stated Defendant Fletcher was the one who made the decision, he admitted that it could have been "the female [who] was overseeing the runway." Id. It is unclear if the female Ayers was referring to was Fallon, a Navy engineer from the ROICC who was primarily in charge of the project. See Paper 53, Ex. 2 (Fallon Dep.) at 13. Moreover, Defendant Fletcher testified in his deposition that controlling the kind of lights used on the airfield was not one of his job duties. See Paper 46, Ex. 7 (Fletcher Dep.) at 26.
Plaintiff's contention regarding the government's involvement in the decision regarding lights is consistent with Section 3.1.4 of the contract which provides:
During nighttime, . . ., [the contractor is to] mark stationary and mobile equipment and material, and work with red lanterns. Where the Operations Officer or Contracting Officer determines that the red lanterns may confuse pilots approaching for landings, the Operations Officer or Contracting Officer may direct that the red lanterns be left off or that the color of the globes be changed. Paper 47, Ex. 1 (Sec. 01150, pt. 3.1.4 Nighttime Markings). In light of these statements put forth by Plaintiff and the provision of the contract identified, Plaintiff has raised a substantial question of fact as to whether the decision not to allow Delphi to use lights at the Hover Pit was made by Navy personnel. If Plaintiff can show that a government employee was responsible for the lack of adequate lighting at the Hover Pit, then the independent contractor exception to the waiver of sovereign immunity would not apply.
However, the government also argues that even if the independent contractor exception is not satisfied, it is protected, nevertheless, under the discretionary function exception to the FTCA. "The Fourth Circuit has consistently held that the discretionary function exception provides a broad form of protection for the United States, limiting the liability of the government under the FTCA." McKeel, 178 F.Supp.2d at 500 (citing Bowman v. United States, 820 F.2d 1393 (4th Cir. 1987)). By its terms, the FTCA does not impose liability upon the United States for acts or omissions of government employees "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 be abused." 28 U.S.C. § 2680(a). The exception does not apply, however, if "`a federal statute, regulation, or policy specifically prescribes a course of action for an employee to follow.'" McKeel, 178 F.Supp.2d at 500 (quoting Williams, 50 F.3d at 309).
The Supreme Court has adopted a two-pronged test for determining the applicability of this exception. See United States v. Gaubert, 499 U.S. 315 (1991); Berkovitz v. United States, 486 U.S. 531 (1988). The first prong involves a determination of whether the alleged acts or omissions are discretionary in nature, i.e., those involving judgment or choice. See Williams, 50 F.3d at 309 (citing Gaubert, 499 U.S. at 324). This determination turns upon whether the government conduct is governed by any mandatory statute, regulation, or policy. If such a mandatory rule applies, then the conduct involves no element of discretion and the claim is not barred by the discretionary function exception. Berkovitz, 486 U.S. at 546 — 47. If no such mandatory statute, regulation, or policy applies, then the second prong of the Berkovitz-Gaubert test must be examined.
The second prong requires that the discretion be "based on considerations of public policy." Gaubert, 499 U.S. at 323 (quoting Berkovitz, 486 U.S. at 537). The Fourth Circuit has noted that this is not a fact-based inquiry. Baum v. United States, 986 F.2d 716, 721 (4th Cir. 1993). Rather, the court should "look to the nature of the challenged decision in an objective, or general sense, and ask whether that decision is one which [it] would expect inherently to be grounded in considerations of policy." Id.; see also McKeel, 178 F.Supp.2d at 501. "Thus, the focus of the inquiry is on `the nature of the actions taken and on whether they are susceptible to policy analysis.'" McKeel, 178 F.Supp.2d at 501 (quoting Gaubert, 499 U.S. at 325).
Assuming it was in fact government personnel who made the decision that Plaintiff would not be allowed to use lights while working at the Hover Pit during night, that decision was a discretionary one, influenced by the Navy's need to ensure pilot safety during nighttime operations. In fact, this discretionary decision was specifically contracted for between R.R. Gregory and the Navy. Section 3.1.4 of the contract provides:
During nighttime, . . ., [the contractor is to] mark stationary and mobile equipment and material, and work with red lanterns. Where the Operations Officer or Contracting Officer determines that the red lanterns may confuse pilots approaching for landings, the Operations Officer or Contracting Officer may direct that the red lanterns be left off or that the color of the globes be changed. Paper 47, Ex. 1 (Sec. 01150, pt. 3.1.4 Nighttime Markings). The decision to not allow the use of lights at the work site during the period Plaintiff was working was specifically made due to the concern for pilot safety. Plaintiff's own attached papers support this fact. Delphi's owner, Pjatikin, stated in his deposition that he was told by Navy personnel that lights would not be allowed at night because it would "interfere with the pilot's vision [while] making landings." See Paper 53, Ex. 12 (Pjatakin Dep.) at 45. Daniel Baden, an employee of R.R. Gregory, testified about a meeting he attended between Navy personnel, including ROICC officers Dillow and Fallon, and representatives from the contractors. See Paper 53, Ex. 11 (Baden Dep.) at 27 — 31. He testified that the use of light towers was discussed at this meeting, but that he was instructed that their use would not be acceptable due to the pilots landing. Id. at 29. He further stated that "we had to keep the lights to a minimum to avoid disruption to any landing operations." Id. at 30; see also id., Ex. 21 (Weakland Dep.) at 98 (testifying that Delphi could not use lights because it would "mess up the jets").
Certainly, deciding whether to permit the use of lights on the ground at the work site while its pilots were performing nighttime operations is grounded in policy considerations and judgment by Navy personnel. Such decisions might include whether to suspend nighttime flight operations for a time in order to allow the use of lights, or, as presumably happened here, to determine that flight operations would continue, and that lights would not be allowed. Plaintiff does not point to a statute or regulation that governs or mandates a decision regarding the use of lights under these circumstances. Furthermore, the record indicates that the government specifically contracted for the ability to make this discretionary decision. See Paper 1, Ex. 1 (Sec. 01150, pt. 3.1.4 Nighttime Markings). Moreover, Plaintiff has put forth no persuasive evidence that the government prohibited all types of lights from being used. Although Plaintiff testified that he believed no lights were to be used, including flashlights, John Winn, his coworker, testified that the use of flashlights was permitted. See Paper 47, Ex. 10 (Winn Dep.) at 49 — 50; see also id., Ex. 3 (Pjatikin Dep.) at 46 (testifying flashlights were permitted). However, even if the use of red lanterns was prohibited, that decision would have been a judgment call made by the appropriate official based on the risks outlined in the contract. Accordingly, the government is shielded from liability for its decision with respect to lighting under the discretionary function exception to the FTCA. Because the government cannot be held liable for the tortious conduct of R.R. Gregory and its workers, and because it is protected from liability for its decision regarding the use of lights under the discretionary function exception, this court lacks subject matter jurisdiction over Plaintiff's negligence claim against the government. See Williams, 50 F.3d at 305. Accordingly, the government's motion to dismiss will be granted.
Moreover, Plaintiff's argument that the decision regarding lights is not subject to the discretionary function exception because it was made at the "operational" level instead of the "planning" level is unpersuasive and legally flawed. The Supreme Court has rejected this distinction. "[T]he distinction in Dalehite [ v. United States, 346 U.S. 15 (1953)], was merely [a] description of the level at which the challenged conduct occurred. There was no suggestion that the decisions made at an operational level could not also be based on policy." Gaubert, 499 U.S. at 326; see also Minns v. United States, 974 F.Supp. 500, 506 (D.Md. 1997) (finding that a decision made at the "operational" level was "susceptible to policy analysis and judgment").
B. Defendant Fletcher's Motion for Summary Judgment
Defendant Fletcher ("Fletcher") has moved for summary judgment arguing, inter alia, that he owed no legal duty to Plaintiff and that, even assuming he did, Plaintiff's claim is barred by the doctrine of assumption of the risk. Because the undisputed facts demonstrate that Plaintiff knew he would be working at the Hover Pit without the use of lights, appreciated the risks associated with that task, and voluntarily exposed himself to those risks, Plaintiff's negligence claim is barred by the doctrine of assumption of the risk. Accordingly, Defendant is entitled to judgment as a matter of law.
Because Plaintiff's negligence claim is barred by the doctrine of assumption of the risk, the court need not consider Defendant Fletcher's other arguments.
"In Maryland, it is well settled that in order to establish the defense of assumption of risk, the defendant must show that the plaintiff: (1) had knowledge of the risk of the danger; (2) appreciated that risk; and (3) voluntarily confronted the risk of danger." ADM P'ship v. Martin, 702 A.2d 730, 734 (Md. 1997); see also Crews v. Hollenbach, 751 A.2d 481, 489 — 90 (Md. 2000); Schroyer v. McNeal, 592 A.2d 1119, 1123 (Md. 1991); Odenton Dev. Co. v. Lamy, 575 A.2d 1235, 1239 (Md. 1990); Hooper v. Mougin, 284 A.2d 236, 239 (Md. 1971); Burke v. Williams, 223 A.2d 187, 189 (Md. 1966); Evans v. Johns Hopkins Univ., 167 A.2d 591, 593 — 94 (Md. 1961); Warner v. Markoe, 189 A. 260, 264 (Md. 1937). "The doctrine of assumption of risk rests upon an intentional and voluntary exposure to a known danger and, therefore, consent on the part of the plaintiff to relieve the defendant of an obligation of conduct toward him and to take his chances from harm from a particular risk." Rogers v. Frush, 262 A.2d 549, 554 (Md. 1970). Accordingly, if established, the doctrine "functions as a complete bar to recovery because `it is a previous abandonment of the right to complain if an accident occurs.'" ADM P'ship, 702 A.2d at 734 (quoting Warner, 189 A. at 264).
In deciding whether a plaintiff had knowledge and appreciation of a particular risk, the court applies an objective standard. See Crews, 751 A.2d at 490; ADM P'Ship, 702 A.2d at 734. "The question of whether a plaintiff knew and understood the risk in a case is generally one for the trier of fact, but if a person of normal intelligence, in the same position as the plaintiff, would clearly have comprehended the danger, the question is one for the court." Crews, 751 A.2d at 490 (citing Schroyer, 592 A.2d at 1123). Moreover, the Maryland Court of Appeals has observed that "`there are certain risks which anyone of adult age must be taken to appreciate: the danger of slipping on ice, of falling through unguarded openings, of lifting heavy objects . . . of inflammable liquids . . . and doubtless many others.'" Crews, 751 A.2d at 491 (quoting Prosser and Keeton on Torts § 68, at 490-91 (5th ed. 1984)); see also ADM P'ship, 702 A.2d at 734.
As to the element of voluntariness, the plaintiff must have freely exposed himself to a known danger. See Crews, 751 A.2d at 490. The fact that a plaintiff proceeds to confront a danger after he has paused to consider the extent of the risks involved does not establish conclusively that the plaintiff acted voluntarily. Id. Rather, a defendant must show that:
there [was] no restriction on the plaintiff's freedom of choice either by the existing circumstances or by coercion emanating from the defendant. This is so because . . . [e]ven where the plaintiff does not protest, the risk is not assumed where the conduct of the defendant has left him no reasonable alternative. Where the defendant puts him to a choice of evils, there is a species of duress, which destroys the idea of freedom of election.ADM P'ship, 702 A.2d at 735 (quoting Prosser and Keeton § 68, at 490 — 91). Using these principles as a guide, the court concludes that Plaintiff, as a matter of law, assumed the risk of his injury.
First, Plaintiff plainly knew and appreciated the risks inherit in working at the Hover Pit at night without lights. At his March 31, 2004 deposition, the following exchange occurred between Plaintiff and counsel for Defendant Fletcher:
Q. You said in your statement that you gave that you were told, quote, no lights.
A. Correct. I also remember asking him — we were going to have a trailer light out there, we got to be able to see inside the trailer. They said that's fine. Not outside.
Q. When you said you needed lights outside, what kind of lights were you asking for?
A. Bright enough lights to see the equipment.
Q. Were they going to be . . .
A. Pointed to the equipment, yes.
. . . .
Q. You, meaning Delphi, did not bring lights with you?
A. I don't remember.
Q. Was it clear to you the night when you went to relieve Mr. Winn, that you were going to be working the night shift and that you weren't going to have lights around the pit? You knew that?
A. Yes.
Q. And you said in your statement you knew that was dangerous?
A. Yes.
Q. You knew that as well?
A. Yes.
. . . .
Q. So you believed it was dangerous because there were no lights in the pit, shining in the pit?
A. Anywhere around the pit where we were working, had to walk or anything. We had to got out there, if there was a problem, electrically or gas.
Paper 46, Ex. 8 (Weakland Dep.) at 95 — 97. Moreover, with respect to the lack of barricades around the Hover Pit, Plaintiff and counsel had the following exchange:
Q. All right. So now you knew when you went to relieve Mr. Winn . . .
A. Yes.
Q. . . . that you were going to be working all night, next to a pit, correct?
A. Yes.
Q. You knew it was concrete?
A. Yes.
Q. You knew it was about 9, 10 feet deep?
A. Yes
Q. Did you see any barricades around the pit?
A. Barricades?
Q. Railing.
A. No.
Q. Anything? Protection around the pit?
A. Nothing
Q. All right. You were going to be out there in the middle of the night in darkness . . .
A. Yes.
Q. . . . except for the trailer light?
A. That's correct.
Id. at 99 — 100. The foregoing acknowledgments by Plaintiff make clear that Plaintiff knew and appreciated the inherent risks of working around an open pit at night without barricades or lights. As noted above, "there are certain risks which anyone of adult age must be taken to appreciate," including the danger "of falling through unguarded openings." See Crews, 751 A.2d at 491 (quoting Prosser and Keeton § 68, at 490-91); see also ADM P'ship, 702 A.2d at 734. Moreover, it is important to note that Plaintiff was not injured on the first night of his shift, but rather the second. See Paper 46, Ex. 11 (Winn Dep.) at 21 — 22. Therefore, Plaintiff was fully aware of the conditions in which he would be working on the night he was injured, having already worked the previous night's shift.
Lastly, there is nothing in the record to suggest that Plaintiff did not voluntarily expose himself to the inherent risks which led to his injury. In fact, Plaintiff does not even address the assumption of risk defense in his response to Defendants' respective motions, but rather, focuses solely on their contributory negligence argument.
Although the defenses of contributory negligence and assumption of risk are closely related and often overlap, they are separate and independent defenses to a negligence claim. See Schoyer, 592 A.2d at 1123. "[T]he critical distinction between contributory negligence and assumption of the risk is that, in the latter, by virtue of the plaintiff's voluntary actions, any duty the defendant owed the plaintiff to act reasonably for the plaintiff's safety is superseded by the plaintiff's willingness to take a chance." Id. Consequently, unlike the case of contributory negligence, to establish assumption of the risk, negligence on the part of the plaintiff is not an issue, i.e., proof of the plaintiff's negligence is not required. Id. Rather, "[t]he plaintiff need only be aware of the risk, which he or she then voluntarily undertakes." Id. Thus, "[a] plaintiff who proceeds reasonably, and with caution, after voluntarily accepting a risk, not unreasonable in itself, may not be guilty of contributory negligence, but may have assumed the risk." Id. Accordingly, Plaintiff's argument that he is "entitled to the presumption that [he] exercised ordinary care for [his] own safety," is immaterial to the issue of whether he assumed the risk. See Paper 53 (quoting Nizer v. Phelps, 249 A.2d 112, 124 (Md. 1969)).
The Maryland Court of Appeals on several occasions has examined the voluntariness element of assumption of the risk in factual settings where the risks arose during the course of the plaintiffs' discharge of employment duties. See Crews, 751 A.2d at 492; ADM P'ship, 702 A.2d at 732; Burke, 223 A.2d at 188. For example, in Crews, the court, in affirming the trial court's grant of summary judgment, held that the plaintiff's negligence suit was barred by the doctrine of assumption of risk. 751 A.2d at 488. In Crews, an employee of a private gas company brought suit against several defendants for injuries he sustained while, during the course of his employment, he and his crew were engaged in repairing a gas leak. After examining the plaintiff's deposition testimony in which he clearly demonstrated that he knew and appreciated the risks inherent in working near a ruptured gas line, the court turned to the voluntariness element. Id. at 490 — 92. The plaintiff argued that he was "compelled by the exigency of the facts . . . to repair the leak to prevent serious harm to the people and property of the surrounding neighborhood." Id. at 495. He argued that "opting not to act was not a reasonable alternative under the circumstances," and "therefore he was compelled to address the gas leak." Id.
In Crews, an excavator struck a buried natural gas line owned by the plaintiff's employer, Washington Gas, while excavating land in Bowie, Maryland. Approximately two hours later, a resident, located approximately one mile from the excavation site, noticed the smell of gas in the air and called the fire department. The governmental authorities proceeded to evacuate the surrounding neighborhood and Washington Gas was called to dispatch a repair crew. The plaintiff was the foreman in charge of the crew. While he and his crew were working, the gas ignited and an explosion occurred, severely injuring the plaintiff. 751 A.2d at 485.
The Court of Appeals disagreed. "Although commending Mr. Crew's apparent initiative," the court could not "find in th[e] record any evidence that he was forced to make those efforts or what the larger implications may have been had he not acted." Id.; see also ADM P'ship, 702 A.2d at 739 (finding the plaintiff voluntarily assumed the risk despite her arguments that she feared losing her job if she failed to perform where there was "not a shred of evidence from which [the plaintiff's] concern for her job if the delivery were not made [could] be inferred"); Brady v. Ralph M. Parsons Co., 609 A.2d 297, 304 (Md. 1992) ("[A]ssuming that economic compulsion resulting from a well-grounded fear of loss of employment will render an assumption of risk involuntary, there is no evidence in this case that anyone compelled [the plaintiff] to work from an unfinished scaffold without adequate fall protection, or threatened him with loss of employment if he did not perform the task in that manner.") (internal footnote omitted); Burke, 223 A.2d at 189 (holding that a deliveryman voluntarily assumed the risk of crossing a slippery plank walkway where there was no evidence that his job would have been in jeopardy had he left the items on the construction site instead of taking them into the house). Accordingly, the Court of Appeals affirmed the trial court's conclusion that, based on the undisputed material facts, the plaintiff's suit was barred by the doctrine of assumption of the risk. Crews, 751 A.2d at 488.
Here, as in Crews, there is no evidence that Plaintiff did not voluntarily assume the known risks inherent in working at the Hover Pit at night. In fact, as mentioned above, Plaintiff does not even address the Defendants' arguments regarding assumption of the risk. Although he informed Delphi's owner, Mr. Pjatikin, that he believed the conditions in which he was working were unsafe (additional evidence, incidentally, of the fact he knew and appreciated the risk), he admits that he did not discuss not working the site, nor did he attempt to make arrangements to do the work under different conditions. See Paper 46, Ex. 8 (Weakland Dep.) at 100 — 01. Moreover, Plaintiff does not argue explicitly or implicitly that he believed he would have suffered employment consequences if he refused to work. Even if he did make this argument, the Court of Appeals has found "subjective testimony, without more, [is] not enough to create an issue for the jury" regarding an injured plaintiff's belief that his employment was at risk if he refused to work under known dangerous conditions. See Crews, 751 A.2d at 493 (citing ADM P'ship, 702 A.2d at 739). Not only does Plaintiff not imply that he possessed such a belief, there is no objective evidence in the record that would support such a belief. Because "[t]he record . . . is devoid of any facts that [Plaintiff] was compelled to choose the course of conduct that he selected," see Crews, 751 A.2d at 495, the uncontroverted facts demonstrate that Plaintiff assumed the risk of his injury, and, accordingly, Defendant Fletcher is entitled to summary judgment on Plaintiff's negligence claim.
IV. Conclusion
For the foregoing reasons, the motion to dismiss for lack of subject matter jurisdiction by Defendant United States will be granted, and the motion for summary judgment by Defendant Fletcher will be granted. A separate Order will follow.