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October 18, 1990


The opinion of the court was delivered by: Munson, District Judge.


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).


A. The Contract

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.

B. The Accident

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

1. Statutory Framework

The FTCA constitutes a limited statutory waiver of the United States' sovereign immunity

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