The opinion of the court was delivered by: Munson, District Judge.
MEMORANDUM-DECISION & ORDER
In June of 1985, the United States Veterans Administration
("the VA") entered into a contract with Bhandari Constructors
& Consultants, Inc. and Joseph Davis, Inc. ("Bhandari-Davis"),
who agreed to perform general construction and asbestos
abatement work at the Veterans Administration Medical Center
("VAMC") in Syracuse, New York. Bhandari-Davis in turn
subcontracted work to Snyder Metal Products ("Snyder") and
Amaral Neumeyer Construction, Inc. ("Amaral"). On July 28,
1986, plaintiff, an employee of Amaral, was seriously injured
while working at the VAMC when he fell through a ventilation
shaft.
On June 6, 1987, plaintiff commenced this action against the
United States under the Federal Torts Claim Act ("FTCA" or "the
Act"), 28 U.S.C. § 1346(b), 2671-2680. Plaintiff also joined
Bhandari-Davis and Snyder as pendent party defendants.
Bhandari-Davis and Snyder later impleaded Amaral as a
third-party defendant. Subsequently, the court dismissed
Bhandari-Davis, Snyder, and Amaral from this action pursuant to
the Supreme Court's decision in Finley v. United States,
490 U.S. 545, 109 S.Ct. 2003, 104 L.Ed.2d 593 (1989).*fn1
Plaintiff in his complaint asserts three causes of action.
First, plaintiff contends that the United States acted
negligently in the following respects: covering the ventilation
shaft with an unsecured, thin sheet of metal; failing to
provide warning signs or other protective barriers around the
ventilation shaft; causing the dangerous conditions to exist;
failing to provide adequate and proper supervision; failing to
ensure that there was adequate help to guarantee safety;
failing to provide adequate safety precautions; and failing to
adhere to and enforce various federal and state safety
regulations. See Complaint ¶ 16, Document ("Doc.") 1. Second,
plaintiff asserts a claim against the United States for failing
to comply with and enforce various federal, state, and local
safety regulations. Finally, plaintiff alleges that the United
States' conduct also constitutes gross negligence.
The United States presently contends that plaintiff's claims
should be dismissed because (1) they are based upon the acts
and omissions of independent contractors,
28 U.S.C. § 2671,*fn2 and (2) are within the discretionary function
exception to the FTCA, 28 U.S.C. § 2680(a).*fn3 Since matters
outside the complaint have been presented to the court by both
plaintiff and defendant, the court will treat the United
States' motion as one for summary judgment under Federal Rule
56. See FED.R.CIV.P. 12(b); Fonte v. Board of Managers of
Continental Towers Condominium, 848 F.2d 24, 25 (2d Cir. 1988).
The contract awarded by the VA to Bhandari-Davis in 1985 was
for a major renovation project at the VAMC. See Defendant's
Exhibit ("Def.Ex.") 1, Doc. 46. The contract covered, among
other things, replacement of the heat, ventilation, and air
conditioning ("HVAC") systems, improvements to the fire and
safety systems, and asbestos abatement. Section 01001 of the
contract, entitled "General Conditions," set forth the
respective rights and duties of the VA and the contractor, that
is, Bhandari-Davis. Under clause 1.32 of section 01001,
entitled "Permits and Responsibilities," Bhandari-Davis assumed
the responsibility of obtaining necessary licenses and permits
and complying with applicable federal, state, and municipal law
and regulations governing the performance of the work under the
contract. Clause 1.32 also provided that Bhandari-Davis agreed
that it would be liable "for all damages to persons or property
that occur as a result of [its] fault or negligence and shall
take proper safety and health precautions to protect the work,
the workers, the public, and property of others."
Under clause 1.38(B), Bhandari-Davis assumed the
responsibility of maintaining an inspection system to ensure
that its work at the VAMC complied with the contract's
specifications. All work performed by Bhandari-Davis, however,
was subject to the "general direction of the Contractig [sic]
Officer and [was] subject to Government inspection and test at
all places and at all reasonable times before acceptance to
ensure strict compliance with the terms of the contract."
See also clause 1.44(A) ("The work will be under the direction
of the Veterans Administration Contracting Officer, who may
designate another VA employee to act as Resident Engineer at
the construction site."). Such government inspections, however,
were "for the sole benefit of the Government and [did] not
relieve the Contractor of responsibility for providing adequate
quality control measures." Clause 1.38(C).
In clause 1.36, entitled "Accident Prevention," the VA
transferred the primary duty of ensuring the safety of
employees and other persons during the renovation of the VAMC
to Bhandari-Davis. In particular, subparagraph (A) obligated
Bhandari-Davis to maintain necessary safety barricades, signs,
and signal lights, and to comply with applicable Occupational
Safety and Health Administration ("OSHA") regulations*fn4 and
any other measures that the VA contracting officer deemed
necessary to maintain safety. Bhandari-Davis also was
responsible for the acts and omissions of its employees and the
employees of its subcontractors, clause 1.46(B), and ensuring
its subcontractor's safety compliance. Clause 1.36(D).
The VA did not, however, delegate all responsibilities
regarding accident prevention to Bhandari-Davis. Rather, the VA
retained what may be characterized as an "oversight" or
"policing" role with respect to safety. For example, clause
1.36(C) provided that the VA contracting officer, upon
discovery of noncompliance with applicable safety requirements,
must notify Bhandari-Davis of such non-compliance and order an
appropriate ameliorative response. If Bhandari-Davis failed or
refused to take such action, the VA could order all work
stopped until such corrective steps were taken. In addition,
subparagraph (E) stated that the VA safety officer, namely the
Resident Engineer, was responsible for enforcing all safety
regulations insofar as they were applicable to the safety of VA
employees, visitors, and patients. Subparagraph (E) further
provided that the Resident Engineer in executing this
responsibility was required to make weekly safety inspections
and inform Bhandari-Davis of all violations so that it could
take appropriate corrective action.
After obtaining the above-discussed contract with the VA,
Bhandari-Davis subcontracted with Snyder and Amaral. Snyder
agreed to perform certain sheet metal work
on the HVAC system, while Amaral contracted to undertake
asbestos abatement. In January and February of 1986, Amaral was
performing asbestos abatement on the tenth floor penthouse area
of the VAMC. A ventilation shaft which descended to the
basement of the VAMC was located in the penthouse area. Def.Ex.
4, at 44. The shaft was covered by an exhaust fan. The contract
called for the removal of the fan, the shaft to be sealed and
abandoned, and all shaft openings on the lower floors to be
capped. Def.Ex. 5, at 118. Snyder was responsible for the
removal of the fan and the capping of lower floor ducts. In
addition, Snyder capped the ventilation shaft in the penthouse
area, where previously the fan had been affixed, with a piece
of sheet metal which was locked into place over the shaft. A
piece of heavy, unfastened plywood was then placed over the
sheet metal. Some valves and pieces of pipe were placed on top
of the plywood to prevent slippage. Def.Ex. 9, at 20.
Amaral's function was to wrap the air ducts with plastic to
prevent asbestos from escaping. Def.Ex. 7, at 95-96. On July
28, 1986, plaintiff, an Amaral employee, was sealing air ducts
located in the penthouse area. In order to reach the ducts,
which were located high on the wall, plaintiff and a co-worker
stood on two expansion tanks. Soon thereafter, plaintiff's
co-worker jumped off the tank onto the sheet metal covering the
air shaft to get some materials. Plaintiff followed.
Unfortunately, the covering dislodged and plaintiff descended
approximately seventy-five feet through the air shaft.
Plaintiff sustained serious injuries to his left knee and back.
The United States' position in support of its motion is that,
under the renovation contract, the government delegated full
safety responsibility to its general contractor Bhandari-Davis
and did not retain the authority to control or supervise
Bhandari-Davis' day-to-day operations. The United States
contends that because the tortious acts which plaintiff alleges
resulted in his injuries were not committed by an employee of
the federal government, it can not be held responsible for the
alleged inadequacies in Bhandari-Davis' safety program. In
addition, the government argues that the discretionary function
exception prevents it from being held liable for its failure to
supervise Bhandari-Davis' safety compliance.
Plaintiff asserts in response that he is not attempting to
hold the United States liable for the negligent acts of its
independent contractors.*fn5 Rather, plaintiff asserts that
his claim against the United States is directed against the
government's own negligent conduct. Specifically, plaintiff
asserts that government employees acted negligently in failing
to comply with and enforce safety regulations as required by
the contract. Plaintiff contends in this regard that the
government's obligation to ensure that safety measures were
followed during the renovation project was non-delegable given
the inherently dangerous nature of the project. Finally,
plaintiff contends that the United States, as owner of the
VAMC, had a duty to exercise reasonable care under the
circumstances in maintaining its property in a safe condition
so as to prevent injury to persons entering that property.
A. Independent Contractor Defense
The FTCA constitutes a limited statutory waiver of the United
States' sovereign immunity