based upon 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.A. § 2680(a) (West 1965) (emphasis added).
At issue here is whether the United States' delegation of its responsibility for safety to its general contractor, Black River, is a discretionary function. The contract between Black River and the United States incorporated several clauses from the Federal Acquisition Regulations ("FAR"), including 48 C.F.R. § 52.236.13 Accident Prevention.
In Maltais v. United States, 546 F. Supp. 96 (N.D.N.Y. 1982), aff'd without published opinion, 729 F.2d 1442 (2d Cir. 1983), this court was faced with a similar delegation of responsibility. In Maltais, the plaintiff was an employee of a general contractor who had entered into a contract with the United States. During the course of his employment, the plaintiff fell to his death from a building owned by the United States. The plaintiff sought to recover for his injuries pursuant to the FTCA and New York Tort Law. Id. at 98. As in the present case, pursuant to its statutory authority, the government agency had contractually delegated its responsibility for safety to the general contractor. Id. at 101. The court concluded that such delegation was a discretionary act within the meaning of 28 U.S.C. § 2680(a) and, as such, gave rise to an exemption from FTCA liability. Id.
More recently, this court was faced with a situation remarkably similar to the present one. In Moody, the contract at issue included an Accident prevention Clause that, like the present one, specifically delegated the primary safety obligation to the contractor and reserved for the Government an oversight role. As in this case, the only mandatory, non-discretionary function was the United States' duty to notify the contractor if any noncompliance with the applicable safety regulations was detected. In the present case, as in Moody, there is no allegation that the United States failed to notify Black River once it discovered the contractor's noncompliance. Rather, plaintiff alleges that the United States negligently performed its inspections.
FAR section 52.236-13, as it is incorporated in the contract, does not impose any mandatory obligations on the United States with respect to the method the Government's employees use to detect noncompliance nor does it specify any particular course of action, other than notification, once such noncompliance is discovered. Rather, it leaves such determinations entirely to the discretion of the Government's employees. Under these circumstances, the court adheres to its conclusion in Moody that the Government's "discretion in determining the manner in which safety violations would be detected implicates a significant public policy judgment of a type which the discretionary function exception was intended to encompass." Moody, 753 F. Supp. at 1053. Furthermore, even if the Government's employees negligently performed their inspections as plaintiff alleges, this fact alone would not remove the challenged conduct from the protection of the discretionary function exception. See Moody, 753 F. Supp. at 1049 n.12 (citing Ayer v. United States, 902 F.2d 1038, 1041 (1st Cir. 1990); accord Flynn v. United States, 902 F.2d 1524, 1530 (10th Cir. 1990)).
The cases cited by plaintiff to support his contention that the Government's conduct is not protected by the discretionary function exception are easily distinguishable. The first case, Camozzi v. Roland/Miller & Hope Consulting Group, 866 F.2d 287 (9th Cir. 1989), also was relied on by the plaintiff in Moody. Although the court will not repeat the facts of Camozzi here, suffice it to say that they were very similar to those present in this case. Nevertheless, the court concludes that the distinction made by this court in Moody is applicable to the present situation; i.e., the contract at issue here, unlike the one in Camozzi, does not contain policy choices with respect to how the Government is to effectuate its obligations to oversee the contractor's safety compliance. Rather, as stated above, these decisions are left to the discretion of the Government's employees. Accordingly, Camozzi does not support plaintiff's contention that the Government's conduct is not protected by the discretionary function exception.
Plaintiff also cites McGarry v. United States, 549 F.2d 587, 591 (9th Cir. 1976), cert. denied, 434 U.S. 922, 98 S. Ct. 398, 54 L. Ed. 2d 279 (1977), to support his position. The problem with plaintiff's reliance on McGarry is that the court applied the law of Thorne to the facts of that case. As stated above, the Second Circuit, unlike the Ninth, has not adopted the inherently dangerous activity exception to the general principle that the Government may, pursuant to federal regulations, delegate its responsibility for safety to its independent contractors.
Another, and more serious, problem with plaintiff's reliance on McGarry is that the court's holding in that case was based, at least in part, on its conclusion that "the discretionary function exception is limited to decisions made at the planning rather than the operational level." McGarry, 549 F.2d at 591 (quoting Driscoll v. United States, 525 F.2d 136, 138 (9th Cir. 1975)). After the Supreme Court's recent decision in United States v. Gaubert, U.S. , 111 S. Ct. 1267, 113 L. Ed. 2d 335 (1991), such a dichotomy is legally insupportable. In Gaubert, the Supreme Court specifically held that discretionary conduct is not confined to the policy or planning level. Id. at 1275. Accordingly, plaintiff cannot rely on McGarry to support his contention that the Government's conduct is not protected by the discretionary function exception.
Having reviewed the applicable statutes and case law, the court concludes that the procedures used by the Government's employees to ensure Black River's compliance with the applicable safety regulations, even if negligent, fall within the discretionary function exception of the FTCA. Accordingly, the court grants the United States' motion for summary judgment as to plaintiff's first cause of action based on negligence as barred by section 2680(a)'s exception to FTCA liability.
C. Tibbetts' Motion for Summary Judgment
Tibbetts moves for summary judgment on three grounds. First, it argues that it is not subject to liability for plaintiff's injuries under New York Labor Law sections 200, 240, and 241. Second, it contends that it has no liability for plaintiff's injuries under 29 C.F.R. sections 1910.28 and 1910.29. Finally, Tibbetts claims that it owes no duty to plaintiff upon which any finding of negligence can be based. At oral argument, plaintiff stipulated that he had no opposition to Tibbetts' motion for summary judgment as to those claims premised on violations of New York Labor Law sections 200, 240, and 241 and 29 C.F.R. sections 1910.28 and 1910.29. Therefore, the only claims remaining are those grounded in negligence.
In order to state a cause of action for negligence, plaintiff must demonstrate (1) that defendant had a duty to plaintiff, (2) that defendant breached that duty, and (3) that this breach of duty caused plaintiff's injury. Plaintiff claims that Tibbetts had a duty to clean up the concrete debris at the bottom of the shaft which resulted from holes which Tibbetts' employees punched through or enlarged in the shaft. See Plaintiff's Memorandum of Law in Opposition to Tibbetts' Motion at 4. As support for this claim, plaintiff points to the subcontract between Black River and Tibbetts. Paragraph 7 of this agreement states in pertinent part that
subcontractor will clean up and remove from the work area as directed by the Contractor all rubbish and debris resulting from its work and shall clean up to the satisfaction of the contractor, dirt, grease, machine marks, etc. from walls, ceilings, floors, fixtures, etc. deposited or placed by or resulting from work. . . .
See Hartz Affidavit, Exhibit A at P 27; Plaintiff's Memorandum of Law in Opposition to Tibbetts' Motion at 9.
To the contrary, Tibbetts claims that Black River was responsible for clearing away the concrete debris at the bottom of the shaft. In support of its position, Tibbetts cites the deposition testimony of Brayton Foote, an employee of Black River, who stated that it was his job to remove this debris and that he had done so in other shafts. See Foote Deposition at 52.
Although the question of whether a duty exists is a question of law, the question of who has the duty is a question of fact. Based on the conflicting evidence on this issue, the court concludes that a genuine issue of material fact exists as to whose responsibility it was to clean up the concrete at the bottom of the shaft. Accordingly, the court denies Tibbetts' motion for summary judgment as to plaintiff's first cause of action based on common law negligence.
For the reasons stated above, the court grants the United States' motion for summary judgment pursuant to Fed. R. Civ. P. 56. As to plaintiff's first cause of action based on negligence, the court concludes that the Government's delegation of its responsibility for safety to Black River was a discretionary act within the meaning of 28 U.S.C. § 2680(a). Therefore, any negligence related to this delegation is exempt from liability under the FTCA. As to plaintiff's claim that the United States violated its non-delegable duty to provide plaintiff with a safe working environment under New York Labor Law sections 240 and 241(6), the court holds that these statutes are pre-empted by 48 C.F.R. § 52.236-13 to the extent that they impose a duty on the United States. Thus, having delegated its duty for safety to Black River, the United States has no duty to plaintiff under New York Labor Law sections 240 and 241(6).
Finally, the court concludes that a genuine issue of material fact exists as to whether it was Tibbetts' responsibility to clean up the concrete debris at the bottom of the shaft. Accordingly, the court denies Tibbetts' motion for summary judgment as to plaintiff's first cause of action based on common law negligence. However, because plaintiff concedes that summary judgment is appropriate with respect to its other claims against Tibbetts, the court grants Tibbetts' motion for summary judgment as to those claims.
IT IS SO ORDERED.
DATED: July 10, 1992
Syracuse, New York
Neal P. McCurn
Chief, U.S. District Judge