Opinion
Civil Action No. 01-0177
December 31, 2002
ORDER AND REASONS
Before the Court is a Motion for Summary Judgment, filed by the United States. For the reasons that follow, the motion is GRANTED.
I. BACKGROUND
Plaintiff, Ronald Davis, is an employee of Fleet Tire Service, Inc. ("Fleet"), a tire service and repair company. On January is, 1995, the United States Navy requested that Fleet change four large Michelin tires on a crash truck at the Naval Air Station, Joint Reserve Base ("JRB") in Belle Chase, Louisiana. Fleet assigned the job to Davis, a senior repairman with more than twenty-one years experience in dismounting, repairing, and remounting tires on a variety of vehicles, including buses, 18-wheelers, and heavy equipment. Six or seven months earlier, Davis had mounted these same four tires on this very same truck. See Davis Depo, Def. Exh. A, at 31. Because the Navy was now preparing to sell or trade in the truck, it wanted to replace these newer tires with older ones.
On the morning of January 19, 1995, Davis took his truck, tools, and a helper to the JRB. After removing the third tire from its rim, Davis discovered that a "lock-rim component of the rim — was corroded. Id. at 33-34. Davis went to the office of the Navy's Service Manager and told him about the lock-ring. Id. at 35, 39. The Service Manager said that the truck "was leaving" and that the Navy "wasn't going to buy another wheel." Id. at 35, 50. Davis left the office, went to his truck, and called his boss, Frank Labarre. Id. at 35, 49-50. Labarre told Davis to "do what [h]e had to do" and to "use the pliers to lock it [the ring] down." Id. at 35, 43. Davis did not see or speak with the Service Manager again. Instead, "thinking that [they] could make it work," Davis proceeded back to the crash truck to do as Labarre had instructed. Davis and his helper began adding air to the tire, while holding the lock-ring with pliers. When the air reached sixty pounds, the lock-ring came loose and struck Davis in the head. Id. at 46-47. Davis filed an administrative claim with the Navy and then filed this action under the Federal Tort Claims Act ("FTCA").
According to plaintiff, lock-rings are not sold separately. To replace them, one must buy an entire wheel. See Davis Depo, Def. Exh. A, at 35-36.
II. LAW AND ANALYSIS
The government argues that it is entitled to judgment as a matter of law because: (1) plaintiff cannot prove negligence on the part of any Navy employee; and (2) the United States has not waived its sovereign immunity for recovery under any other theory. The Court agrees.
A. Summary Judgment Standard:
"Summary judgment is proper `if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law."' Kee v. City of Rowlett, Texas, 247 F.3d 206, 210 (5th Cir.) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (quoting Fed.R.Civ.P. 56(c))), cert. denied, 122 S.Ct. 210 (2001). "The moving party bears the burden of showing . . . that there is an absence of evidence to support the nonmoving party's case." Id. at 210. If the moving party meets this burden, "the nonmovant must go beyond the pleadings and designate specific facts showing that there is a genuine issue for trial." Id. "A dispute over a material fact is genuine if the evidence is such that a jury reasonably could return a verdict for the nonmoving party." Id. (internal quotations omitted). "The substantive law determines which facts are material." Id. at 211.
B. Waiver of Sovereign Immunity Under the FTCA:
The FTCA "waives the United States' sovereign immunity for the torts of federal employees by granting the federal district courts jurisdiction over suits for damages `caused by the negligent or wrongful act or omission of any employee of the Government . . . .'" Aretz v. United States, 604 F.2d 417, 426 (5th Cir. 1979) (quoting 28 U.S.C. § 1346 (b)). "The Act also limits the United States' liability in certain respects." Id. First, to fall within the FTCA's waiver of sovereign immunity, the employee in question "must be [an] employee of a `federal agency."' Id. (citing 28 U.S.C. § 2671). The Act's definition of "federal agency" specifically provides that the term "`does not include any contractor with the United States."' Id. (quoting 28 U.S.C. § 2671). Thus, the Act "precludes federal liability for the torts of an independent contractor." Id.
Second, "[t]he liability of the United States under the Act is limited . . . to the `negligent or wrongful' acts of its employees." Id. at 426-27 (quoting 28 U.S.C. § 1346 (b)). "[T]his language has been interpreted to preclude liability of the United States based on strict liability in tort." Id. (citing Laird v. Nelms, 406 U.S. 797 (1972)). These limitations "foreclose any theory of liability . . . based on some nondelegable duty of the employer of an independent contractor." Id.; see also Conner v. United States, 967 F. Supp. 894, 902-03 (M.D. La. 1997) (FTCA does not allow United States to be held liable for acts of independent contractor based on Louisiana law theory that the government, as principal, retained a nondelegable duty to see that work was done safely). Thus, in cases such as this one, where work has been performed by an independent contractor, the United States may be held liable only for `its own employees' independent acts of negligence." Aretz, 604 F.2d at 427 (emphasis added). C. Negligence Under Louisiana Law:
Plaintiff does not dispute that Fleet is an independent contractor. See, e.g., Opp. Memo at p. 20 ("plaintiff is not arguing that the Navy maintained operation control").
Louisiana law governs plaintiffs negligence claim in this case. See 28 U.S.C. § 1346 (b)(1) (in determining whether employee's act or omission was wrongful or negligent, court looks to "the law of the place where the act or omission occurred"). To establish negligence under Louisiana law, a plaintiff "must prove that the defendant's conduct was a cause-in-fact of the plaintiffs harm; that the defendant owed a duty of care to protect against the risk involved; that the defendant breached the duty; and that actual damages resulted from that breach." Dartlone v. Louisiana Power Light Co., 763 So.2d 779, 784-85 (La.App. 2d Cir. 2000) (citing Harris v. Pizza Hut of Louisiana, Inc., 455 So.2d 1364, 1370 (La. 1984)). "Duty is a question of law." Id.
Plaintiff argues that the JRB Service Manager was negligent in refusing to buy a new wheel and telling Davis that he wanted the tire changed despite the corroded lock-ring. Plaintiff has cited and the Court can find no basis in fact or law for imposing on a customer a legal duty to purchase (or authorize the purchase of) a thing. As even plaintiff concedes, "if the Navy did not wish to incur this expense [of a new wheel], it could simply have left the one new tire in place." Opp. Memo at p. 9. This leaves the Service Manager's alleged instruction or request that Davis replace the tire anyway, despite the corroded part. See supra note 3.
It is unclear from Davis' deposition testimony whether the Service Manager actually stated that Davis should replace the tire anyway or whether Davis simply inferred this from the Service Manager's statement that he was not going to buy a new wheel. When asked specifically what the Service Manager said, Davis' response suggested the latter. See Davis Depo, Def. Exh. A, at 50 (Q: What did the service manager tell you, if you remember? What did he tell you when you told him that you thought the lock ring was bad? What did he say? A: Well, all I heard was next [sic] was that the machine was leaving, that they wasn't going to buy another wheel.); see also id. at 35 (Q: So, you knew the lock ring was bad and you told the service manager that it was bad. What happened then? A: Well, after he said he wasn't getting another wheel, so [sic] I called my job. That's when my boss told me to do what we had to do.). In response to a leading question, however, Davis agreed that the Service Manager told him to replace the tire anyway. See id. at 36 (Q: So, did the service manager tell you you had to do it anyway? I mean, is that what happened? A: Right.). For purposes of this motion, the Court has assumed that the Service Manager told Davis both that he would not buy a new wheel and that he wanted the tire replaced anyway.
Although plaintiff does not contend that he told the Service Manager about the specific risks of proceeding with a corroded lock-ring, he argues that the Service Manager should have known the risks given the Navy's experience in changing tires. Assuming this to be true, however, plaintiff has not established a genuine issue regarding any act of independent negligence by the Service Manager, as required under the FTCA. Plaintiff has presented no evidence disputing that Fleet, not the Navy, maintained operational control throughout the tire-changing process. See, e.g., Opp. Memo at p. 20 ("plaintiff is not arguing that the Navy maintained operation control"). Indeed, plaintiff in his deposition testimony conceded that his boss, Frank Labarre, was "the only one that [could) make that decision" to proceed. See Davis Depo, Def. Exh. A, at 37. Plaintiff admits that, except for the Service Manager's alleged response to Davis' statements about the lock-ring, the Service Manager did not watch them, did not supervise their work, and did not tell them how to do their job. See Statement of Contested Facts at p. 4. Moreover, plaintiff does not contend and presents no evidence that the Service Manager instructed plaintiff regarding how he should go about replacing the tire given the existence of a corroded lock-ring. It is undisputed that these decisions were made entirely by Davis and/or his boss and carried out exclusively by Davis and his helper. There is no evidence that the Service Manager was even told about Fleet's plan for addressing the lock-ring, much less that he acquiesced in it. Imposing liability under these circumstances would require a holding that despite hiring an independent contractor, the Navy and/or its Service Manager retained a non-delegable duty to see that work was done safely. Such a result is contrary to the FTCA. See Aretz, 604 F.2d at 427; Conner, 967 F. Supp. at 903.
III. CONCLUSION
Accordingly, for the foregoing reasons, IT IS ORDERED that the government's Motion for Summary Judgment is GRANTED.