Opinion
Civil No. 02-1349 (JBS).
Filed: July 21, 2004
John Mininno, Esquire, MININNO LAW OFFICE, Collingswood, New Jersey, Attorney for plaintiffs Steven and Kelly Miletta.
Christopher J. Christie, UNITED STATES ATTORNEY, By: Rudolph A. Filko, Assistant United States Attorney, Newark, New Jersey, Attorneys for defendant United States of America.
William A. Feldman, Esquire, Frank Butterfield, Esquire, FELDMAN FIORELLO, Wayne, New Jersey, Attorneys for defendant Syska Hennessy, Inc.
John R. Gercke, Esquire, GERCKE, DUMSER, SHOEMAKER SIERZEGA, PC, Cherry Hill, New Jersey, and James H. Landgraf, Esquire, CURETON CAPLAN, Delran, New Jersey, Attorneys for defendant Ranco Construction, Inc.
Bruce A. Tritsch, Esquire, Fairfield, New Jersey, Attorney for defendant John Trongone, Jr., Inc.
OPINION
The present case arises from plaintiff's April 5, 2001 fall through a skylight on the roof of a military housing building at the Fort Dix, New Jersey military base. At the time, plaintiff Steven Miletta was working on the roof as part of a project to renovate the housing unit. The skylight was covered with a standard plastic bubble dome, but it was not able to hold plaintiff's weight when he tripped and fell on it.
Plaintiff and his wife, Kelly Miletta, have filed this lawsuit seeking damages from the United States, general contractor Syska Hennessy, subcontractor Ranco Construction, Inc., and sub-subcontractor Joseph Trongone, Jr., Inc. Plaintiff was the owner, officer, and on-site superintendent for sub-sub-subcontractor Miletta Brothers, Inc. when he was injured.
Presently before the Court is the motion for summary judgment filed by the United States, in which it argues that summary judgment should be granted in its favor on all claims asserted against it because it is immune from suit under the independent contractor and discretionary function exceptions to the Federal Tort Claims Act ("FTCA"). It further argues that summary judgment should be entered in its favor on any claims that may escape protection by the FTCA exceptions because no reasonable factfinder could conclude that it breached a mandatory duty owed to plaintiff when it was not aware until after the accident that there was a skylight on the building.
Plaintiffs, joined by defendants Syska Hennessy, Ranco Construction, and Joseph Trongone, oppose the government's motion, arguing that the United States is bound by a mandatory duty contained in the Safety Outline for the project which required it to "notify the contractor of any observed safety issues," and that it breached this duty because it should have seen the skylight on the roof and should have, therefore, notified Syska Hennessy of its hazard, so that Syska Hennessy could have protected the area and eliminated the risk.
See Syska Hennessy, Rule 7.1 Statement, joining all of plaintiffs' arguments except those which may "express or imply negligence on the part of [Syska Hennessy]."
See Ranco Construction, Ltr. to Court, Jan. 14, 2004, joining all of plaintiffs' arguments, though it disagrees with certain facts which are not material to this motion.
See Joseph Trongone, Jr., Inc., Rule 7.1 Statement, joining all of plaintiffs' arguments, though it disagrees with certain facts which are not material to this motion.
The Court has considered the arguments of the parties, including their oral arguments made on March 4, 2004, and finds, for the following reasons, that summary judgment must be granted in favor of the United States on all claims asserted against it. First, all negligence claims but one — the claim based on the mandatory duty to notify the contractor of observed safety issues — fall within either the independent contractor exception or the discretionary function exception to the FTCA. Second, summary judgment must be granted on the one claim that does not fall within the FTCA exceptions because there is no evidence from which a reasonable factfinder could conclude that the United States breached its duty to notify the contractor of "observed" safety issues because there is no evidence that the United States "observed" the skylight before the accident. Finally, liability in this matter cannot be based on a state non-delegable landowner duty law because all site safety work was the responsibility of Syska Hennessy and is shielded by the independent contractor exception of the FTCA.
Plaintiffs concede that the independent contractor exception applies to relieve the United States of liability for any acts or omissions of Syska Hennessy and its subcontractors. (See Pl. Br. at 14.)
I. BACKGROUND
In June 1997, the United States and Syska Hennessy CEM ("Syska Hennessy") entered into contract number DACA 87-97-D-0039 for renovations to Building 5651, an existing housing facility at the Fort Dix, New Jersey, military base. (Jalowski Decl. ¶ 2;id., Ex. A.) Syska Hennessy subcontracted the project's roofing work to Ranco Construction; Ranco Construction subcontracted certain aspects of the roofing work to Joseph Trongone, Jr., Inc.; and Joseph Trongone subcontracted the structural steel work to Miletta Brothers, Inc., a company for which plaintiff Steven Miletta was acting as principal owner, officer, and project superintendent on the date of the accident. This motion focuses on the role of the United States in the construction project, so the Court will limit its discussion to facts relevant to this issue.
The plaintiff and the United States have agreed, for purposes of this motion, that the contract placed sole responsibility for "ensuring work place safety, supervising all work and ensuring compliance with the Contract requirements, including all safety provisions," on Syska Hennessy. (Def. Facts ¶ 2; Pl. Resp. to Def. Facts ¶ 2.) To this end, Syska Hennessy prepared a "Site Safety and Health Plan" in September 1999, (Jalowski Decl., Ex. C), and met with representatives from the United States Corps of Engineers on November 20, 2000 for a "pre-construction safety conference," (Def. Facts ¶ 13; Pl. Resp. to Def. Facts ¶ 13). At the conclusion of the November 20th conference, John T. O'Rear for Syska Hennessy and Paul Jalowski for the Corp of Engineers signed a "Pre-Construction Safety Conference Outline." (Jalowski Decl., Ex. H.) The provision in the Outline that is pertinent to this motion reads as follows:
For this reason, the plaintiffs have conceded that the independent contractor exception applies, such that the United States cannot be held responsible for the acts and omissions of its independent contractor, Syska Hennessy, and its subcontractors, Ranco Construction, Joseph Trongone, and Miletta Brothers. See Pl. Br. at 14; see also Logue v. United States, 412 U.S. 521, 532-33 (1973); Norman v. United States, 111 F.3d 356, 358 (3d Cir. 1997).
The Court need not, therefore, discuss the application of these well-settled principles to this case, as there remains no question of fact that the exception applies and that it requires dismissal of claim against the United States that are based on the conduct of the other involved parties in this matter.
Government Project Office Responsibilities
(1) The Government will notify the contractor of any observed safety issues.
(Id. at 5.)
Work then began on the project and, on April 5, 2001, plaintiff fell through a skylight on the roof of Building 5651 when he tripped on roofing material while completing structural steel work for Miletta Brothers. (Def. Facts ¶ 22; Pl. Resp. to Def. Facts ¶ 22.) The skylight was covered by a standard plastic bubble dome, but was not otherwise covered or barricaded for safety purposes. (See Pl. Facts ¶ 14.)
On June 25, 2001, the United States Department of Labor, Occupational Safety and Health Administration issued a Citation to Miletta Brothers, Inc. for two "serious" safety violations based on the fact that the skylight was not barricaded contrary to 29 C.F.R. 1926.501(b)(4)(ii) and 29 C.F.R. 1926.502 (i)(1). (See Filko Decl., Ex. J.)
The two individuals from the Army Corps of Engineers involved with the project were Paul Jalowski, Resident Engineer, and George Paprocki, Project Engineer. (Filko Decl., Ex. C, Jalowski Dep. at 10:20-11:6, 26:20-27:6.) Each insists that he did not know that the building had a skylight until plaintiff fell through it. Mr. Jalowski testified that he never saw the skylight and that "no specific concerns or questions [were] brought to my attention regarding the skylight" before plaintiff's fall. (Id. at 46:1-9.) The "first time [Mr. Jalowski] realized that this particular building had a skylight" was "at the time of the accident." (Mininno Decl., Ex. 3, Jalowski Dep. at 20:21-24.) Mr. Paprocki testified that "the first time [he] became aware there was a skylight on the roof" was "after the accident." (Filko 1/28/04 Decl., Ex. A, Paprocki Dep. at 45:2-8.)
Mr. Paprocki was the "day-to-day interface or liaison between the Corps of Engineer's resident office and the construction contractor." (Filko Decl., Ex. C, Jalowski Dep. at 27:1-6.) As such, he generally "walked the job" daily. (Minnino Decl., Ex. 1, Hirschlein Dep. at 73:24-25; id., Ex. 5, Paprocki Dep. at 37:8-11; Filko Decl., Ex. C, Jalowski Dep. at 27:1-15.) He remembers going onto the roof of the building once prior to the accident "to see the progress of the removal of the ballast" because someone called from the safety office, concerned about whether there was a barrier around the roof's perimeter. (Mininno Decl., Ex. 5, Paprocki Dep. at 24:20-27:5.) When he reached the roof, the barrier was in place, so his visit was less than fifteen minutes in length. (Id. at 28:25-29:2.) He does not remember seeing a skylight, and says that he "didn't see anything else other than to make sure the barrier was up and that they were using a chute for the ballast." (Id. at 30:2-13.) While on the roof, he stayed "near the entrance of the roof, the hatchway, and that portion of the roof on that side of the hatchway." (Id. at 31:13-16.) As compared to the location of the skylight, he was "all the way on the other side of the roof, on the far end." (Id. at 32:11-12.) He did not again go on the roof until after the accident. (Id. at 32:13-16.)
Mr. Jalowski, as the Resident Engineer, had "limited involvement" at the worksite, only visiting it about once a month. (Mininno Decl., Ex. 3, Jalowski Dep. at 12:21-13:15.) He testified that he was never on the roof of the building prior to the accident. (Id. at 21:10-11.) He understood that his responsibilities with respect to project safety were limited:
The Cor[ps] has a responsibility to review the contractor's safety program to ensure that it meets the terms of the safety manual. And during the course of the project, we would look at safety . . . and if we note any deficiencies, we would bring it to the contractor's attention.
(Mininno Decl., Ex. 2, Jalowski Dep. at 12:8-14.)
Mr. Jalowski and Mr. Paprocki had reviewed blueprints of the project prior to the accident, but neither remembers seeing a skylight indicated on the roof. (Id., Ex. 3, Jalowski Dep. at 21:2-9; id., Ex. 7, Paprocki Dep. at 46:4-13.) The skylight was indicated on the roof, but was labeled as a "hatchway." (Id., Ex. 30.) The plan called for the contractor to "maintain existing hatchway" and to "preserve skylight hatch." (Id.) Other involved individuals also do not remember noticing the skylight on the prints prior to the accident; Anthony Garruccio, Senior Project Manager for Syska Hennessy, and Tom Barry, Superintendent for the project for Ranco Construction, testified that they do not recall "seeing that skylight on the drawings when [they] looked at them." (Mininno Decl., Ex. 9, Garruccio Dep. at 25:11-19; id., Ex. 13, Barry Dep. at 30:6-13.)
Others who worked on the project testified that prior to the accident, Mr. Paprocki and Mr. Jalowski never said anything about a skylight, never referred to a skylight, and never discussed "any safety concerns with regard to fall protection . . . or safety on that roof" because of a skylight. (Filko Decl., Ex. B, Barry Dep. at 67:3-22; id., Ex. D, Hirschlein Dep. at 90:22-92:12, 94:2-25; Minnino Decl., Ex. 1, Hirschlein Dep. at 74:16-25.) Joseph Trongone testified that he saw the skylight prior to the accident, because it was "clearly visible" to someone standing on the roof because of its plastic bubble dome, but he admits that he never told anyone at the Corps of Engineers about the skylight prior to the accident. (Filko Decl., Ex. F, Trongone Dep. at 74:25-75:1; Mininno Decl., Ex. 15, Trongone Dep. at 31:6-11.) Plaintiff admits that the skylight was not visible from the ground, (id., Ex. 23, Miletta Dep. at 37:16-19), and Scott Hirschlien verified that Mr. Paprocki did not spend much time on the roof, explaining that he is "a big man, okay. And for him to climb that ladder, no, not that I say he didn't climb that ladder because I did see him on the roof [after the accident], but to answer your question specifically whether we did a prior walk-through before any work commenced, I can't be sure," (id., Ex. 19, Hirschlein Dep. at 100:7-17).
In hindsight, Scott Hirschlein, Senior Superintendent for Syska Hennessy, concluded that "in my opinion, they should have walked the roof, seen this potential as a hazard, included it or incorporated it in their safety plan as protection around these skylights, and that's how it could have been avoided." (Filko Decl., Ex. D, Hirschlein Dep. at 93:11-16.) Similarly, plaintiffs' expert, Vincent A. Gallagher, who was not aware of "anybody in the Army who had actual knowledge" of the skylight, concluded that the United States should have monitored the roof, should have identified the skylight as a "hazard and violation of safety standards," and should have "taken reasonable steps to ensure that it was controlled." (Id., Ex. I at 14-15.)
It is not clear that the Corps representatives would have known, had they seen the skylight, that it qualified as a safety hazard under OSHA and Red Book standards. Mr. Jalowski testified that prior to the accident he does not "think [he] had a knowledge that skylights required protection." (Mininno Decl., Ex. 3, Jalowski Dep. at 20:10-13.) Mr. Paprocki testified that, prior to the accident, "hypothetically, I don't think I would have considered a skylight a hazard." (Id., Ex. 7, Paprocki Dep. at 47:2-24.)
They were not alone. Scott Hirschlein, Senior Superintendent for Syska Hennessy, Tom Barry, Superintendent on the job for Ranco Construction, and Joseph Trongone, Jr. of Joseph Trongone, Jr., Inc., testified that prior to the accident, they did not know there were requirements in OSHA or the Red Book "with respect to the guarding of a skylight on a roof" and that they would not "think skylights represent a danger on a flat roof." (Id., Ex. 12, Barry Dep. at 18:13-25; id., Ex. 15, Trongone Dep. at 27:2-6; id., Ex. 16, Trongone Dep. at 74:22-24; id., Ex. 18, Hirschlein Dep. at 37:12-38:17; id., Ex. 20, Hirschlein Dep. at 74:20-23.)
However, the Court need not reach the issue of whether Mr. Jalowski or Mr. Paprocki should have known, when they saw the skylight, that it violated safety codes, because there is no evidence that they saw the skylight prior to the accident, for the reasons expressed herein.
Plaintiffs filed the present lawsuit on March 26, 2002, alleging that his injuries were caused by the negligence of the United States, Syska Hennessy, Ranco Construction and Joseph Trongone. After motion practice regarding the filing of cross-claims, third-party complaints, and the interpretation of a subrogation provision in the subcontract between Syska Hennessy and Ranco Construction, the United States filed the present motion for summary judgment on February 3, 2004. The Court heard the arguments of the parties on March 4, 2004, and received a supplemental submission from the United States on March 11, 2004.
II. DISCUSSION
A. Standard of Review
Summary judgment is appropriate when the record "show[s] 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." Fed.R.Civ.P. 56(c). A dispute is "genuine" if "the evidence is such that a reasonable jury could return a verdict for the non-moving party." See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is "material" if it might affect the outcome of the suit under the applicable rule of law. Id.
In deciding whether there is a disputed issue of material fact, the court must view the evidence in favor of the non-moving party by extending any reasonable favorable inference to that party; "the nonmoving party's evidence `is to be believed, and all justifiable inferences are to be drawn in his favor.'" Hunt v. Cromartie, 526 U.S. 541, 552 (1999) (quoting Liberty Lobby, 477 U.S. at 255). The threshold inquiry is whether there are "any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Liberty Lobby, 477 U.S. at 250.
The moving party always bears the initial burden of showing that no genuine issue of material fact exists, regardless of which party ultimately has the burden of persuasion at trial.Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). However, where the nonmoving party bears the burden of persuasion at trial, "the burden on the moving party may be discharged by `showing' — that is, pointing out to the district court — that there is an absence of evidence to support the nonmoving party's case." Celotex, 477 U.S. at 325. The non-moving party "may not rest upon the mere allegations or denials of" its pleading and must present more than just "bare assertions, conclusory allegations or suspicions" to show the existence of a genuine issue. Fed.R.Civ.P. 56(e); Gans v. Mundy, 762 F.2d 338, 341 (3d Cir. 1985).
B. Analysis
The Court will grant summary judgment in favor of the United States because (1) the discretionary function exception of the Federal Tort Claims Act (FTCA) shields it from liability for all claims except the claim based on its one mandatory duty to notify Syska Hennessy of all "observed safety issues," (2) the record is clear that the United States did not breach this mandatory duty to notify Syska Hennessy of "observed safety issues" because it did not "observe" the safety issue caused by the skylight until after the accident, and (3) the United States has not waived sovereign immunity for a claim based on New Jersey's non-delegable landowner duty law.
1. Discretionary function exception
The Federal Tort Claims Act (FTCA) provides a partial waiver of the United States' sovereign immunity, as it allows plaintiffs to assert suits against the United States for certain negligent acts of federal employees. 28 U.S.C. § 2674. With its "discretionary function exception," though, the Act explicitly provides that immunity is not waived for claims based on:
28 U.S.C. § 2674 provides, in pertinent part:
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 interest prior to judgment or for punitive damages.
The terms of the FTCA, because they are waivers of sovereign immunity, must be "construed strictly in favor of the sovereign . . . and not enlarged beyond what the language requires." United States v. Nordic Village, 503 U.S. 30, 34 (1992) (citingRuckelshaus v. Sierra Club, 463 U.S. 680, 685 (1983); McMahon v. United States, 342 U.S. 25, 27 (1951)).
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). This "discretionary function exception" is intended to "prevent judicial `second-guessing' of legislative and administrative decisions grounded in social, economic, and political policy." Berkovitz v. United States, 486 U.S. 531, 536-37 (1988) (quoting United States v. Varig Airlines, 467 U.S. 797, 814 (1984)).
To determine whether the discretionary function exception applies, the court must first consider whether the alleged action was a matter of choice for the acting employee or was prescribed by the Constitution, a federal statute, regulation, or policy because conduct must involve an element of judgment or choice to be discretionary. Berkovitz, 486 U.S. at 536; United States Fid. Guar. Co. v. United States, 837 F.2d 116, 120 (3d Cir. 1988). To determine whether discretion is involved, the focus is on the "nature of the conduct." United States v. Gaubert, 499 U.S. 315, 322 (1991). Provided the "conduct was of the type associated with the exercise of official discretion," it is considered discretionary regardless of whether the actor actually balanced concerns in reaching his decision. U.S. Fidelity, 837 F.2d at 120.
If the court determines that the conduct involved was discretionary, the court must then consider whether the judgment "is of the kind that the discretionary function exception was designed to shield." Berkovitz, 486 U.S. at 537. The exception was designed to protect policy decisions, so if an "established governmental policy, as expressed or implied by statute, regulation, or agency guidelines, allows a Government agent to exercise discretion, it must be presumed that the agent's acts are grounded in policy when exercising that discretion," such that the exception applies. Gaubert, 499 U.S. at 324. This presumption, though, is overcome if the plaintiff shows that the "challenged actions are not the kind of conduct that [are] grounded in the policy of the regulatory regime." Id. at 324-25. For example, if the challenged action was a discretionary decision made while negligently driving a motor vehicle, the plaintiff could overcome the presumption as the discretion involved did not aid any regulatory policy. Id.
Here, the plaintiff seeks to base the United States' liability on the one mandatory duty imposed on the United States — the duty to "notify the contractor of any observed safety issues." (Jalowski Decl., Ex. H at 5.) The Pre-Construction Safety Outline created this mandatory duty, providing in mandatory language that the Government "will notify" the contractor of observed safety issues.
The provision provided in full:
Government Project Office Responsibilities
(1) The Government will notify the contractor of any observed safety issues.
(2) The Government may interpret safety requirements for the Prime Contractor, Syska Hennessy/CEM, when requested and will assist Syska Hennessy/CEM to analyze and resolve job safety problems.
(3) The Contractor is responsible for making the necessary inspections of the work and for observing the actions of the workmen to see that safe working procedures are maintained and that the work is being performed as planned. Any violations of safety requirements observed during these inspections will be brought to the attention of Syska Hennessy/CEM, the Prime Contractor, representative on the site for prompt on-the-site correction.
(Jalowski Decl., Ex. H at 5; see also Pl. Br. at 25-28.)
The United States, though, argues that this Court should find that the "will notify" provision did not create a mandatory duty. First, the United States argues that the provision does not impose a mandatory duty because it is part of the Pre-Construction Safety Conference Outline and not the pre-existing contract entered between the parties. The United States argues that the Pre-Construction Safety Conference Outline was not intended to modify the original contract, and therefore does not impose mandatory contractual duties on the United States.
The Court considered this argument in 2002 in a different case involving a worker's fall on a construction site at a military base. See Ryan v. United States, 233 F. Supp. 2d 668 (D.N.J. 2002). There, as here, the Resident Engineer for the Corps of Engineers testified that, although he and a representative for the Prime Contractor signed the Pre-Construction Safety Outline which established safety guidelines for the construction site, he did not believe that it imposed contractual obligations. See id. at 681 n. 13; see also Mininno Decl., Ex. 3, Jalowski Dep. at 22:18. However, this Court found that the document "created contractual responsibilities on the part of [the contractor] and the United States" because parties to an existing contract may, by mutual assent, modify or add to the terms of that contract, provided the proposed modification is accepted by the each party and is supported by new or additional consideration. Id. (citing County of Morris v. Fauver, 153 N.J. 80, 99-100 (1998); Ross v. Orr, 3 N.J. 277, 282 (1949)). Therefore, because the Outline was prepared by the government, was tailored to the specific construction project, and was signed by representatives for the government and for the contractor to indicate their agreement to its terms, the Court found that it contractually bound the parties. Ryan, 233 F. Supp. 2d at 681 n. 13.
Similarly, the Pre-Construction Safety Conference Outline created for the Building 5651 renovation project created contractual obligations here. The document was drafted by the United States, was signed by John T. O'Rear, Project Safety Engineer for Syksa Hennessy, and by Paul Jalowski, Resident Engineer for the U.S. Army Corps of Engineers, and was supported by the additional consideration of new promises provided by each party. (Jalowski Decl., Ex. H.) Thus, the United States is contractually bound by the mandatory notification duty in the Outline.
The United States next argues that even if the document created contractual duties, it did not impose mandatory contractual duties on the United States in spite of its requirement that the United States "will notify" Syska Hennessy of observed safety issues. The United States points to the decision of the United States District Court for the Northern District of New York, inDoud v. United States, 797 F. Supp. 138 (N.D.N.Y. 1992), a case which considered a similar notification clause and granted summary judgment in favor of the United States. In Doud, though, there were "no allegation[s] that the United States failed to notify [its contractor] once it discovered the contractor's noncompliance," so there was no claim for breach under the notification clause. Doud, 797 F. Supp. at 146. In dicta, the court explained that the notification clause could have been the basis for a mandatory duty claim because the contract between the parties did "not impose any mandatory obligations on the United States . . . other than notification, once such noncompliance [with safety regulations] is discovered." See Doud, 797 F. Supp. at 144 (emphasis added). Otherwise, the United States was free to exercise its discretion in determining the manner in which safety violations would be detected and the plaintiff could not assert claims based on the United States' failure to exercise that discretion in some particular manner. Doud, 797 F. Supp. at 145 (quoting Moody v. United States, 753 F. Supp. 1042, 1053 (N.D.N.Y. 1990)). TheDoud court, therefore, found that the notification clause imposed just one mandatory duty on the government — that of notification in the event that a safety violation was found. Whether the safety violation should have been found was irrelevant; the mandatory duty was only triggered if it actually was found.
Similarly, the present contract imposes just one mandatory duty on the United States — the duty to notify its contractor if it observed safety violations at the work site. Therefore, claims based on any alleged act or omission other than a failure to notify about an observed safety issue must be dismissed. The plaintiffs cannot base liability on whether the United States should have conducted better safety inspections of the site, should have seen the skylight, or should have been more aware of the pertinent safety regulations. The only claim that is not covered by the discretionary function exception is a claim based on the United States' mandatory duty to notify its contractor of "observed safety issues." The Court will consider the viability of this claim next.
2. Mandatory Duty Claim
The Court finds that, on this record, there is no evidence which could cause a reasonable factfinder to conclude that the United States breached its mandatory duty to notify Syska Hennessy of observed safety issues because there is no evidence that an employee of the United States observed the skylight prior to the accident.
The parties have not disputed, for purposes of this motion, that the skylight could be considered a "safety hazard" under the pertinent site safety standards. The Corps of Engineers' "Red Book" provides that "all floor and roof openings into which persons can accidentally walk or fall through shall be guarded by a physical barrier or covered," Red Book 24.A.01, and OSHA regulations provide that "[e]ach employee on a walking/working surface shall be protected from tripping in or stepping into or through holes (including skylights) by covers," 29 C.F.R. § 501(b)(4)(ii). The skylight was covered, albeit with a plastic dome that could not bear Mr. Miletta's weight, (see Mininno Decl., Exs. 27, 28), and those who saw the skylight thought that it was adequately protected, (see, e.g. id., Ex. 16, Trongone Dep. at 74:22-24; id., Ex. 20, Hirschlein Dep. at 74:20-23). Regardless, the Court need not reach the issue here as to whether the skylight was a "safety issue," because there is no question that it was not "observed" by the Corps of Engineers.
There is no evidence in the record that Mr. Jalowski, Mr. Paprocki, or any other United States employee actually observed the skylight prior to the accident. The best anyone can state is an opinion that someone "should have" observed it because they "should have" better inspected their premises. (See, e.g. Filko Decl., Ex. D, Hirschlein Dep. at 93:11-16; id., Ex. I at 14-15.) However, the United States' choice regarding their manner of inspection was discretionary and is protected by the discretionary function exception, as explained above, as it undertook no contractual duty of periodic inspection.
The skylight was covered with a plastic bubble that was readily visible from the roof, and it did allow light to radiate into a stairwell in the building. No one, however, has contradicted the testimony of Mr. Jalowski and Mr. Paprocki that they were not aware of, and did not see, the skylight prior to the accident. (See Mininno Decl., Ex. 3, Jalowski Dep. at 20:21-24; Filko 1/28/04 Decl., Ex. A, Paprocki Dep. at 45:2-8.) No one remembers talking about the skylight; no one remembers telling Mr. Jalowski or Mr. Paprocki about the skylight; no one remembers seeing Mr. Jalowski or Mr. Paprocki look at the skylight. (See, e.g. Filko Decl., Ex. B, Barry Dep. at 67:3-22;id., Ex. D, Hirschlein Dep. at 90:22-92:12, 94:2-25; id., Ex. F, Trongone Dep. at 74:25-75:1; Mininno Decl., Hirschlein Dep. at 74:16-25; id., Ex. 15, Trongone Dep. at 31:6-11; id., Ex. 19, Hirschlein Dep. at 100:7-17.) The skylight was not visible from the ground, (id., Ex. 23, Miletta Dep. at 37:16-19), Mr. Jalowski was never on the roof prior to the accident, (id., Ex. 3, Jalowski Dep. at 21:10-11), and Mr. Paprocki was on the roof one time prior to the accident and spent just fifteen minutes looking at something on the opposite end of the roof, (id., Ex. 5 Paprocki Dep. at 28:25-32:16). Perhaps Mr. Paprocki should have noticed the skylight while he was on the roof, or perhaps Mr. Jalowski should have realized the building included a skylight, but liability under the mandatory notification clause only attaches if they actually saw the skylight. There is simply no evidence that any employee of the United States saw the skylight.
Moreover, while plaintiffs argue that the Court should assume that Mr. Paprocki and Mr. Jalowski knew, or should have known, about the skylight because it is included on the blueprint for the project, the blueprint actually refers to the opening as a "hatchway" and calls for the contractor to "maintain existing hatchway" and to "to preserve skylight hatch for access to attic." (Mininno Decl., Ex. 30.) The testimony in the record confirms that others did not notice the skylight on the blueprint either prior to the accident. (See, e.g. id., Ex. 9, Garruccio Dep. at 25:11-19; id., Barry Dep. at 20:6-13.) Whether employees of the United States should have seen it, again, is irrelevant. Liability is based on whether Mr. Paprocki, Mr. Jalowski, or some other government actor, actually saw the skylight. For this issue, the record simply includes no evidence that any such individual saw the skylight, drew the plans which included the skylight, or referred in any way to the skylight. The plans were drawn by Myers Associates, and not the Corps of Engineers, and the plans included the skylight just to note that it was to be "maintained," and thus not part of the renovation project. (See id., Ex. 30.) Thus, it is entirely reasonable to conclude that those involved on site for the Corps, namely Mr. Jalowski and Mr. Paprocki, simply did not know that there was a skylight on the building until Mr. Miletta's accident. Without such proof that Mr. Jalowski or Mr. Paprocki actually knew about the skylight, the United States cannot be held to have breached its duty to notify Syska Hennessy of observed safety issues.
The Court recognizes that the building which included the skylight was owned by the United States. However, there is simply no evidence that anyone involved in the project for the United States knew about the skylight. Where the moving party on a motion for summary judgment does not bear the burden of persuasion at trial, such as the defendant United States here, its burden on the motion for summary judgment "may be discharged by `showing' — that is, pointing out to the district court — that there is an absence of evidence to support the non-moving party's case." Celotex, 477 U.S. at 325. Here, the United States has met this burden. There is no evidence that someone working for the United States observed the skylight, and without such evidence, there can be no liability based on the mandatory notification clause.
3. Liability based on landowner nondelegable duties
Finally, plaintiffs assert that the case should proceed against the United States because the United States, as landowner, had a nondelegable duty under state law to provide a reasonably safe workplace for its independent contractors. (Pl. Br. at 17.) Liability against the United States, though, cannot be based on this state duty because the United States has not waived its sovereign immunity for this claim that is based on the alleged negligence of its independent contractors.
In New Jersey, a landowner "has a non-delegable duty to exercise reasonable care for the safety of . . . persons using the premises at his invitation," including independent contractors performing work on the premises. Kandarge v. United States Dep't of the Navy, 849 F. Supp. 304, 310 (D.N.J. 1994) (quoting De Los Santos v. Saddlehill, Inc., 211 N.J. Super. 253, 261 (App.Div. 1986)); Accardi v. Enviro-Pak Sys. Co., 317 N.J. Super. 457, 462 (App.Div. 1999). The duty is not absolute; when an independent contractor is hired to "carry on an activity which by its very nature involves a peculiar or high risk of harm to the contractor's employee, the landowner is generally not responsible for injuries sustained by the contractor's employee in the course of his assigned duties" because the landlord may assume that "the worker, or his superiors, are possessed of sufficient skill to recognize the degree of danger involved and to adjust their methods of work accordingly." Kandarge, 849 F. Supp. at 310 (quoting Wolczak v. Nat'l Elec. Prods. Corp., 66 N.J. Super 64, 75 (App.Div. 1961)); Cassano v. Aschoff, 226 N.J. Super. 100, 115 (App.Div. 1988) (quoting Donch v. Delta Inspection Servs., Inc., 165 N.J. Super. 567, 574 (Law. Div. 1979)).
As explained above, the United States, as sovereign, is "immune from suit save as it consents to be sued." United States v. Testan, 424 U.S. 392, 399 (1976). In passing the FTCA, the United States explicitly chose not to waive its immunity over claims involving the acts of its independent contractors. See 28 U.S.C. § 2671. Therefore, where site safety has been delegated to an independent contractor, such that the independent contractor exception applies to bar claims against the United States based on the independent contractor's acts or omissions, the plaintiff cannot circumvent the independent contractor exception through a state law non-delegable site safety claim. See Roditis v. United States, 122 F.3d 108, 112 (2d Cir. 1997); Dumansky v. United States, 486 F. Supp. 1078, 1093 (D.N.J. 1980); see also Norman v. United States, Civ. No. 95-4111, 1996 WL 377136 (E.D. Pa. July 3, 1996); Smith v. United States, 674 F. Supp. 683, 686 (D. Minn. 1987); Jennings v. United States, 530 F. Supp. 40, 45 (D.D.C. 1981). Sovereign immunity is not waived for claims which seek to impose liability on the basis of an independent contractor's negligence, regardless of whether the claims are asserted under the FTCA or are alleged in terms of a breach of a state nondelegable landowner duty. Dumansky, 486 F. Supp. at 1093.
The independent contractor exception stems from the definition of "employee" in section 2671 of the FTCA, which provides that the United States is liable to the same extent as a private party for injuries that are "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 . . ." 28 U.S.C. § 2671 (emphasis added). The definition of "employee of the Government" specifically excludes "any contractor [working] with the United States." Id.; see United States v. Orleans, 425 U.S. 807, 814 (1976).
Moreover, the United States is permitted to delegate these site-safety duties to its independent contractor. See Dumansky v. United States, 486 F. Supp. 1078, 1093 (D.N.J. 1980). Once delegated, the United States may not be held liable for a negligent or wrongful act or omission of an independent contractor even where state law would impose liability in such instances under "state law nondelegable duties imposed on landowners" because application of this state law duty against the United States "would result . . . in a form of strict liability against the United States for injuries caused by its independent contractors," and the FTCA explicitly "precludes government liability absent a negligent act" by its own employee.Roditis v. United States, 122 F.3d 108, 112 (2d Cir. 1997).
Here, the parties agree that the United States placed sole responsibility for "ensuring work place safety, supervising all work and ensuring compliance with the Contract requirements, including all safety provisions," on its independent contractor, Syska Hennessy, such that the United States cannot be held responsible for the acts and omissions of its independent contractor, Syska Hennessy, and its subcontractors, Ranco Construction, Joseph Trongone, and Miletta Brothers pursuant to the independent contractor exception of the FTCA. (Pl. Br. at 14; Def. Facts ¶ 2; Pl. Resp. to Def. Facts ¶ 2.) As a result, plaintiffs cannot circumvent this application of the independent contractor exception by asserting that the United States is liable based on state nondelegable duty law.
Therefore, this Court finds that summary judgment must be granted in favor of the United States on all claims asserted against it.
III. CONCLUSION
For the foregoing reasons, this Court will grant summary judgment on all claims asserted against the United States.
The accompanying Order is entered.
ORDER
This matter having come before Court on the motion of defendant United States of America for summary judgment on all claims asserted against it [Docket Item 69-1]; the Court having considered the submissions of the parties and having heard the arguments of the parties on March 4, 2004; for the reasons expressed in an Opinion of today's date and for good cause;IT IS this 21st day of July, 2004 hereby
ORDERED that the motion of defendant United States of America for summary judgment [Docket Item 69-1] be, and hereby is, GRANTED ; and
IT IS FURTHER ORDERED that JUDGMENT is entered in favor of the United States on all claims asserted against the United States in this matter.