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ABRAMS-FOGLIANI v. UNITED STATES

December 5, 1996

JENNIFER ABRAMS-FOGLIANI, Plaintiff, against UNITED STATES OF AMERICA, Defendant.


The opinion of the court was delivered by: BARTELS

 The United States of America (hereinafter, the "government") moves for summary judgment in this action brought under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 2671-2680, by which plaintiff Jennifer Abrams-Fogliani ("Fogliani") seeks to recover damages for personal injuries she suffered while ascending an allegedly uneven flight of stairs at the Fort Totten Army Base in Queens, New York. For the reasons given below, the government's motion is granted.

 BACKGROUND

 The following facts are undisputed. In May 1992, Fogliani was hired as an emergency medical technician by the New York City Health and Hospitals Corporation, Emergency Medical Services Division ("EMS"). That same month, she began training at the EMS Building (the "EMS Building" or the "Building") at the Fort Totten Army Base, a Building leased from the United States Department of the Army (the "Department of the Army", "the Army" or the "government") to the City of New York (the "City") since June 1984. On the evening of June 12, 1992, while walking up the stairs to the EMS Building, Fogliani either slipped or tripped. In attempting to regain her balance, her knee popped out. Fogliani alleges that the accident was due to the defective condition of the steps leading into the EMS Facility.

 The government now moves for summary judgment on the ground that this Court lacks subject matter jurisdiction over Fogliani's claim. The government first contends that, under the lease in effect at the time of the accident, the City was an independent contractor of the government. Therefore, under 28 U.S.C. § 1346(b), because the City was neither an employee nor an agent of the government, the government cannot be held liable for its acts or omissions. As a second line of attack, the government argues that, because plaintiff's claim arises out of government actions involving choice and policy considerations, it is barred under 28 U.S.C. § 2680(a), the discretionary function exception to the FTCA.

 DISCUSSION

 I. Independent Contractor Defense

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

 
for injury or loss of property, or personal injury or death 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, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.

 28 U.S.C. §§ 1346(b). Subject matter jurisdiction does not exist over a tort claim against the United States unless the claim falls within the provisions of the FTCA. United States v. Orleans, 425 U.S. 807, 813, 96 S. Ct. 1971, 1975, 48 L. Ed. 2d 390 (1976). As defined in the FTCA, an "employee of the government" includes officers or employees of any federal agency, members of the armed forces, and persons acting on behalf of the federal agency in an official capacity. 28 U.S.C. § 2671. Federal agency is defined by the Act to exclude "any contractor with the United States." 28 U.S.C. § 2671; see also, Orleans, 425 U.S. at 813-14, 96 S. Ct. at 1975-76; Logue v. United States, 412 U.S. 521, 526-27, 93 S. Ct. 2215, 2219, 37 L. Ed. 2d 121 (1973). Thus, the FTCA explicitly excludes liability based on the wrongful acts or omissions of its contractors.

 Whether one is an employee of the government or an independent contractor is a question of federal law. Leone v. United States, 910 F.2d 46, 49 (2d Cir. 1990), cert. denied, 499 U.S. 905, 111 S. Ct. 1103, 113 L. Ed. 2d 213 (1991). The critical factor in distinguishing an employee of the government from an independent contractor is whether the government retained the authority to control the detailed physical performance of the work or whether the worker's day-to-day operations in fact were supervised by the federal government. Logue, 412 U.S. at 527-28, 93 S. Ct. at 2219; Orleans, 425 U.S. at 814-15, 96 S. Ct. at 1976; B & A Marine Co., Inc. v. American Foreign Shipping Co., Inc., 23 F.3d 709, 713 (2d Cir.), cert. denied, U.S. , 115 S. Ct. 521 (1994).

 Pursuant to the lease agreement in effect at the time of Fogliani's accident, the City leased the entirety of the EMS Building "together with rights of ingress and egress thereto." Lease at 1. The City took the EMS Building "as is" without representation or warranty and without obligation to the government to make alterations or repairs. Lease, P 3. Further, the City agreed to hold the government harmless for damages or injuries arising from the use and occupation of the property, Lease, P 7, and to secure and maintain liability insurance to protect the government from any and all liability. Lease, P 28. Finally, the City agreed that, "in lieu of rental, the lessee shall repair, renovate, rehabilitate, and maintain the leased property at its own cost and expense." Lease, P 27.

 Fogliani points to the following provisions of the City's lease which, she contends, indicate that the government retained authority to control the property. First, the government reserved the right to re-enter the property for the purpose of inspection and inventory. Lease, P 6. Further, any repairs made by the City to damaged or destroyed government property incident to its use of the building were required to meet the satisfaction of the government official supervising the lease. Lease, P 9. Likewise, the use and occupation of the property was subject to the "general supervision and approval of the officer having immediate jurisdiction over the property and to such rules and regulations as may be prescribed by him from time to time." Lease, P 16. The lease also required that the property be used only for training and administrative purposes and be available for use from 8:00 a.m. to midnight, Monday through Friday. Lease, P 26. In addition, according to a supplemental agreement, the City agreed to conform with government policies and regulations regarding policing of the building and grounds, trash removal, and parking. Supplemental Agreement, PP 2 & 3.

 Fogliani's arguments notwithstanding, the Court notes first that the record is devoid of any evidence whatsoever that the government operated, managed or supervised the day-to-day business of the City's EMS training facility. Furthermore, after reviewing the lease agreement between the government and the City, the Court concludes that the agreement reflects the City's independent status. In general, a contract by which the government requires compliance with its rules and regulations, reserves to itself broad supervisory powers, or retains the right to inspect does not confer upon it the degree of control sufficient to support a finding of jurisdiction under the FTCA. See Logue, 412 U.S. 521, 93 S. Ct. 2215, 37 L. Ed. 2d 121 (FTCA jurisdiction absent because, although contract required compliance with government rules and regulations regarding treatment of prisoners and retained right of inspection, contract did not authorize government to physically supervise county jail employees); Leone, 910 F.2d 46 (use of detailed government guidelines for conducting medical examinations of pilots does not confer FTCA jurisdiction); Lipka v. United States, 369 F.2d 288, 290-92 (2d Cir. 1966), cert. denied, 387 U.S. 935, 87 S. Ct. 2061, 18 L. Ed. 2d 997 (1967) (presence of full-time government engineer at site charged with ensuring compliance with contract and safety regulations insufficient to demonstrate control sufficient for a finding of FTCA jurisdiction). Additionally, the lease requires the City to obtain and maintain liability insurance, a provision found by many courts to evidence that the lessee acted as an independent contractor. See e.g., Larsen v. ...


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