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June 12, 1996

JOHN F. O'NEILL, Plaintiff, against UNITED STATES OF AMERICA, Defendant.

The opinion of the court was delivered by: SPATT

 This is an action brought under the Federal Tort Claims Act ("FTCA" or "Act") 28 U.S.C. § 1346(b), to recover damages for personal injuries sustained by the plaintiff John O'Neill ("the plaintiff" or "O'Neill") in the boiler room at the Holtsville facility of the Internal Revenue Service ("IRS"). This decision follows a bench trial conducted on May 3, May 8, May 9 and June 6, 1996.


 This opinion and order includes the Court's findings of fact and conclusions of law as required by Fed. R. Civ. P. 52(a). See Colonial Exchange Ltd. Partnership v. Continental Casualty Co., 923 F.2d 257 (2d Cir. 1991). During this discussion the Court will make findings of fact, which will be supplemented by additional findings later in the opinion.

 On June 19, 1975, the United States of America entered into a Supplemental Agreement to an existing lease with the Town of Brookhaven, involving the IRS facility at Holtsville (Plaintiff's Exh. 1). This agreement provided in part:

The Lessor shall deliver and the Government shall receive the land, buildings, equipment and facilities of the IRS-ADP Center in their then-existing condition. The Government shall maintain the demised premises, including the buildings and any and all equipment, fixtures, facilities, landscaping, and appurtenances furnished by the lessor under this supplemental Agreement in good repair and tenantable condition, except in the case of damage arising from the acts or negligence of the Lessor's agents or employees. For the purpose of so maintaining said premises and property, the Government may enter and inspect the same and make any necessary repairs thereto.
. . . .
B.17. It is the understanding of the parties hereto that, by execution of this Supplemental Agreement No. 4, the Government shall assume full responsibility for, and pay all costs incidental to the operating, maintenance and repair of, the entire facility, including all services connected therewith both on and off the premises.

 In turn, the IRS retained independent contractors to maintain and repair the leased premises at Holtsville. One such contractor is the Ogden-Allied Service Corporation ("Ogden-Allied" or "contractor"). A modification to the maintenance contract dated February 24, 1989 (Plaintiffs Exh. 2) provided, in part, as follows:

Contractor shall provide all supervision, management, labor, materials, equipment, etc. for the operation and maintenance of all mechanical, and utility systems and subsystems at the Brookhaven Service Center, described in Solicitation No. 87-044 dated 4/1/87. (P. 000022).
. . . .
1. Scope of Work.
A. The contractor shall provide all management, supervision, labor, materials, supplies, repair parts, tools, and equipment, and shall plan, schedule, coordinate and ensure effective and economical completion of all work and services specified in this contract. (P. 000044).
. . . .
F. Repairs
(1) Minor Repairs. As a part of the services provided under this contract, the contractor shall perform all repairs necessary to prevent the breakdown or failure of a piece of equipment. Minor repairs are defined as unanticipated and unscheduled work required to prevent the breakdown or failure of a piece of equipment or a system; or to put back into service after a breakdown or failure a piece of equipment or a system where the cost labor, materials, and parts is expected to be $ 7,500.00 or less. This dollar threshold applies to each individual repair job that may be required. The contractor shall immediately perform necessary repairs when they are required in order to ensure continuity of operations, or to return equipment to service as soon as possible. The COTR shall be advised that the repairs are being accomplished. Work should not be delayed in order to notify the COTR, except where guarantees or warranties are involved in which case the COTR shall be notified prior to repairs being made. All parts shall be approved by the COTR. (P. 000047).
. . . .

 1. The Role of IRS Personnel in Contract Administration.

. . . .
B. Contracting Officer's Technical Representative, (COTR).
The above named individual is hereby designated as the COTR. The responsibilities of the COTR include, determining the adequacy of performance by the contractor in accordance with the terms and conditions of this contract; inspecting and accepting work performed, and services delivered; acting as the Government's representative to ensure compliance with contract requirements insofar as the work is concerned; advising the contractor of nonperformance or unsatisfactory performance; and advising the contracting officer of any factors which may cause delay in performance of the work. (P. 000057).
. . . .
D. Contract Inspectors. Contract inspectors are subordinates of the COTR and are responsible for the day-to-day inspection and monitoring of the contractors work. The responsibilities of the contract inspector includes, but are not limited to: inspecting the work to ensure compliance with the contract requirements; documenting through to assure that all defects or omissions are corrected; conferring with representatives of the contractor regarding any problems encountered in the performance of the work and generally assisting the COTR in carrying out his responsibilities.
2. Government Inspection of Service. All services, which include services performed, material furnished or utilized in the performance of services, and workmanship in the performance of services, shall be subject to inspection and test by the Government, to the extent practicable, at all times and places during the terms of the contract. All inspections by the Government shall be made in such a manner as not to unduly delay the work. (P. 000058).

 The plaintiff John O'Neill was employed by Ogden-Allied in 1987 to work at Holtsville as a watch engineer. He had done this work for Ogden-Allied and other contractors for more than twenty years. The duties of a watch engineer consist, as the name implies, of taking readings and visual checking certain areas of the Holtsville facility, including the boiler room. O'Neill worked a night shift from 12:00 midnight to 8:00 a.m. He checked the plant, made hourly readings and also performed preventive maintenance work. On the date of this occurrence he was taking hourly readings of the meters in the boiler room. He did this approximately eight times a shift.

 On May 5, 1993 at approximately 2:30 a.m., O'Neill entered the boiler room and was going to check the fuel oil readings, when he tripped on the "blow-down" pipes located on the floor between the two boilers. (See photographs, Plaintiff's Exhs. 3 to 6, and 7A to 7Q). "Blow-down" pipes or lines are connected to the boilers and are designed to relieve the pressure in the boilers, acting as a drain from the boilers. Douglas Pavon, the engineer who worked on the design of the boiler room testified that the blow-down pipes are designed to dispose of stale and dissolved solids and sediment from the water in the boiler. According to Pavon, the ports from which the waste material leaves the boiler and goes into the blow-down pipes must be located at the bottom of the boiler, and, therefore, the blow-down pipes usually run along the floor. He also stated that the blow-down pipes cannot be buried in concrete because the heat generated in the pipes would crack the concrete. Also, according to Pavon, if the pipes were placed in trenches, this would lead to a collection of debris and oil, which would be a fire hazard. In sum, Pavon testified that blow-down pipes on the floor are a necessary component in a boiler room and the blow-down pipes at issue were not unusual in design and complied with the applicable codes.

 However, according to Dr. William Marletta, a safety engineer produced by the plaintiff who inspected the boiler room, the blow-down pipes were 2 1/2 inches above the floor level, which was contrary to good and accepted standards and practice and constituted a hazard.

 The plaintiff testified that he tripped and fell over the same blow-down pipes five or six times prior to this occurrence. He stated that formerly there was a plywood stepover ramp over the pipe, which safeguarded the area. However this plywood protective ramp had been missing for about ten years. The plaintiff complained about the blow-down pipes being a safety hazard five or six times to his employer, Ogden-Allied. He also complained to three IRS employees, William Boeklin, James Darling and Bob Peru. He made these complaints to the IRS personnel on prior occasions when he tripped over the pipes about a year before the accident of May 5, 1993. He also complained about "difficult" lighting in the boiler room.

 The Court finds that the placement of the blow-down pipes on the floor of the boiler room rising to a level of 2 1/2 inches over the level of the floor, constituted a dangerous condition. While the Court does not credit the testimony of the plaintiff with regard to actual notice to the IRS, the Court finds that the IRS had constructive notice of this dangerous condition on the boiler room floor. In addition, the Court finds that the plaintiff tripped over the blow-down pipes on May 5, 1993 at approximately 2:30 a.m., in the manner he described. The plaintiff's version is supported by the Ogden-Allied Daily Log, which confirms the happening of this occurrence (Plaintiff's Exh. 15).

 The damages issues in this case are unclear. O'Neill had major medical problems prior to this accident. In August 1990 he underwent a cervical laminectomy, which was performed by Dr. Allen Zippin. He was out of work for eight months after this major surgery. Prior to this accident the plaintiff was having difficulty in walking, staggered on occasion and had a problem with his equilibrium. Also, the plaintiff had slight pain and tingling in his hands prior to this occurrence. In addition, O'Neill had a drinking problem for many years. In some of his physicians' reports it was stated that he consumed large quantities of alcohol, from one to three quarts on weekends, and other heavy alcohol ingestion during the week.

 The plaintiff claims that, as a result of the fall, he sustained multiple injuries to his neck, shoulders, lower back, right hip, right leg, right ankle and radiating pain into his arms and hands. He was treated by Dr. Harvey Lerner, his family doctor on five or six occasions; by Dr. Allan Zippin, the neurosurgeon who previously operated on his cervical spine, on seven occasions; by Dr. Salvatore Inserra, an orthopedic surgeon on twenty occasions; and by Dr. Mark Zuckerman, a neurologist about eight times. On August 6, 1994, the plaintiff was operated on by Dr. Inserra for a carpal tunnel syndrome condition.

 Despite the fact that the plaintiff was treated by a battery of physicians, only Dr. Zuckerman testified. Although there is no duty on a party to produce any particular witness, the plaintiff's other treating physicians were in a position to give material non-cumulative testimony on the issue of the plaintiff's prior injuries and the injuries sustained in this occurrence. Furthermore, the plaintiff was in the best position to produce his own physicians. Accordingly, if the issues of injuries and damages were to be addressed, the Court would draw the inference that the testimony of Dr. Lerner, Dr. Zippin and Dr. Inserra would have been unfavorable to the plaintiff on these issues. See U.S. v. Ouimette, 798 F.2d 47, 49-50 (2d Cir. 1986) cert. denied, 488 U.S. 863, 102 L. Ed. 2d 134, 109 S. Ct. 163 (1988).

 However, the Court need not delve into the difficult question involving the injuries and damages sustained by the plaintiff in this occurrence, because the plaintiff failed to prove any responsibility on the part of the IRS, as will be described later in the opinion.


 The FTCA is a limited waiver of the sovereign immunity of the United States. This Act provides for lawsuits against the United States for injuries "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. § 1346(b) (1982). The Act defines "employee of the government" to include "officers and employees of any federal agency," and specifically excludes "any contractor with the United States" from the definition of "federal agency." 28 U.S.C. § 2671 (1982). Thus, if the accident was caused by the negligence of a contractor, rather than the IRS, the United States is immune from suit.

 In the seminal case of United States v. Orleans, 425 U.S. 807, 814, 96 S. Ct. 1971, 1976, 48 L. Ed. 2d 390 (1976) (quoting from Logue v. United States, 412 U.S. 521, 528 93 S. Ct. 2215, 2219, 37 L. Ed. 2d 121 (1973)), the Supreme Court set forth the standard to be applied in delineating the responsibilities of a federal agency from an independent contractor: "A critical element ... is the power of the Federal Government 'to control the detailed physical performance of the contractor.'"

 I. The Liability Issues

 II. Is the IRS Liable for the Negligent Acts of Ogden-Allied?

 In this case, there is no question that Ogden-Allied Service Corp. acted as an independent contractor in its duties at the Holtsville IRS facility. Indeed, plaintiff's counsel states in his memorandum of law, page 1, that the plaintiff as a watch engineer for Ogden-Allied "was responsible for the running of the mechanical rooms." Further, the Court finds that Ogden-Allied was not an agent of the IRS. For purposes of the FTCA, the common law of torts and agency defines the distinction between an independent contractor (for whose torts the Government is not responsible) and an employee, servant or agent (for whose torts the Government is responsible). As stated above, courts have found it indicative of an agency relationship if the Government enjoys the "power 'to control the detailed physical performance of the contractor,'" United States v. Orleans, supra. 425 U.S. at 814 (quoting Logue v. United States, 412 U.S. at 521). See also Logue, 425 U.S. at 528; Leone v. United States of America, 910 F.2d 46, 50 (2d Cir. 1990) cert. denied, 499 U.S. 905, 113 L. Ed. 2d 213, 111 S. Ct. 1103 (1991); Letnes v. United States of America, 820 F.2d 1517, 1518 (9th Cir. 1987).

 The undisputed evidence in this case establishes that, in its activities with regard to the IRS boiler room, Ogden-Allied was an independent contractor. Ogden-Allied agreed to provide "all supervision, management, labor, material, equipment, etc. for the operation and maintenance of all mechanical ... systems at the Brookhaven Service Center." Ogden-Allied further agreed to provide "all management, supervision, labor, materials, supplies, repair parts, tools and equipment," and to "plan, schedule, coordinate and ensure effective and economical completion of all work and service specified in the contract." In addition, Ogden-Allied agreed to perform "all repairs necessary to prevent the breakdown or failure of a piece of equipment," including the blow-down pipes involved in this case. The only involvement of IRS in this regard is to be "advised that the repairs are being accomplished."

 As to the maintenance of the IRS boiler room and its appurtenances, including the blow-down pipes, the IRS did not assume control over and did not direct or supervise the Ogden-Allied work. Daniel F. Gearon was the IRS Chief of Operations and Maintenance Section in Holbrook in May 1993. He testified about the duties of Ogden-Allied and the IRS with regard to the boiler room, as follows:

Q Would you briefly describe the nature of the interaction that occurred between the IRS and Ogden at the facility.
A Ogden did the -- they ran the building. They did the maintenance. We inspected them and we just evaluated our inspections as against their performance.
Q Now, would an IRS employee ever involve himself or herself in involving any physical labor with Ogden?
A No.
Q Would an IRS employee ever direct an Ogden employee how to maintain the premises?
A No.
Q Would an IRS employee ever supervise an Ogden employee as to that employee performing maintenance functions?
A No.
Q Did an Ogden employee performing maintenance functions ever directly report to an IRS employee?
A No.
Q Now, did Ogden have an office in the total energy plant?
A Yes.
Q And did they have employees in that office?
A Yes.
Q Did IRS, have an office (sic) the total energy plant?
A No.
Q And did there come a time when IRS employees would visit the total energy plant?
Q And what would the purpose be in visiting the total energy plant?
A Daily they would check the logs to see if everything was running smoothly and check the machinery to see if preventive ...

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