UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK
March 25, 1992
LILLIAN LIEBERMAN, et al. Plaintiffs,
UNITED STATES OF AMERICA, Defendant.
The opinion of the court was delivered by: EUGENE H. NICKERSON
MEMORANDUM AND ORDER
NICKERSON, District Judge:
Defendant United States moves for summary judgment based on a lack of subject matter jurisdiction pursuant to Rule 12 (b) (1) of the Federal Rules of Civil Procedure. Defendant argues that because the Federal Tort Claims Act (the Act), 28 U.S.C. § 2671, does not waive sovereign immunity for acts of independent contractors, this court lacks subject matter jurisdiction since the negligent or wrongful act causing injury was not that of employees of the government but of an independent contractor. Plaintiff opposes the motion and seeks further discovery.
Plaintiffs allege that on February 24, 1987, Lillian Lieberman fell on an icy walkway in front of the Bay Ridge Branch Office of the Social Security Administration in Brooklyn, New York. That office is leased by the United States General Services Administration from the Postal Management Services Corporation for Murrey, Ltd. (Postal Management), a California corporation. The lease provides that the lessor is responsible for maintenance and cleaning of the office. At the time of the incident, Lenroc Maintenance Services, Inc. (Lenroc) provided those maintenance services under a contract with Postal Management.
Defendant says that there are no genuine issues of material fact.
The Act makes the United States liable for money damages "caused by 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. § 1346(b). Section 2671 of Title 28 U.S.C. provides in pertinent part:
"Federal agency" includes the executive departments, the judicial and legislative branches, the military departments, independent establishments of the United States, and corporations primarily acting as instrumentalities or agencies of the United States, but does not include any contractor with the United States.
"Employees of the government" includes officers or employees of any federal agency, . . . and persons acting on behalf of a federal agency in an official capacity, temporarily or permanently in the service of the United States, whether with or without compensation.
Defendant says that Postal Management and Lenroc, private corporations, were exclusively responsible for the proper maintenance of the Office, including snow removal, and that no federal employee was assigned or performed such maintenance duties.
"A critical element in distinguishing an agency from a contractor is the power of the Federal Government 'to control the detailed physical performance of the contractor.'" United States v. Orleans, 425 U.S. 807, 814, 96 S. Ct. 1971, 1976, 48 L. Ed. 2d 390 (1976) quoting Logue v. United States, 412 U.S. 521, 527-28, 93 S. Ct. 2215, 2219, 37 L. Ed. 2d 121 (1973). The Court continued, "the question here is . . . whether [the contractor's] day-to-day operations are supervised by the Federal Government". Orleans, 425 U.S. at 815, 96 S. Ct. at 1976.
Plaintiffs' theory is that Bernard Lamote, the Branch Manager of the Office, was directly responsible for maintenance duties, including snow removal, and supervised closely the activities of the Lenroc employee responsible for actually shoveling the walkway.
Plaintiffs have presented evidence indicating that Lamote control led the detailed physical performance of snow removal at the time of the accident. Ed Kaliner, an owner and president of Lenroc, testified by deposition that Lamote was "basically in charge of the building and if there was any problems [sic] or something that had to be taken care of", he would contact Kaliner. Kaliner also testified that often, if there were specific maintenance tasks which were not performed or performed inadequately, Lamote would talk directly to the Lenroc employee without bothering to contact Kaliner. Kaliner reported that only if the problem persisted would Lamote contact him.
This testimony at least raises an issue of fact as to whether Lamote's supervision of snow removal was sufficiently controlling to make the United States liable. Moreover, plaintiffs say that they have been unable to depose Lamote, who has been outside of the United States. They should have a chance to do so.
The case is referred to the Magistrate for completion of discovery.
Dated: Brooklyn, New York
March 25, 1992
Eugene H. Nickerson, U.S.D.J.
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