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MOSCHETTO v. UNITED STATES

May 8, 1997

GIUSEPPE MOSCHETTO and ROSETTA MOSCHETTO, Plaintiffs, against UNITED STATES OF AMERICA, Defendants.


The opinion of the court was delivered by: PARKER

 BARRINGTON D. PARKER, JR., U.S.D.J.

 This action, which is brought pursuant to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 2671 et seq., concerns injuries allegedly sustained by Guiseppe Moschetto ("Moschetto") during the construction of the United States District Courthouse in White Plains, New York ("the courthouse") -- the courthouse in which this Court sits.

 Currently before this Court is defendant's motion to dismiss the complaint for lack of subject matter jurisdiction, pursuant to Fed. R. Civ. P. 12(b)(1), or, in the alternative, for summary judgment, pursuant to Fed. R. Civ. P. 56. I will proceed pursuant to Rule 12(b)(1), which permits the Court to consider evidence outside the pleadings in order to resolve disputed jurisdictional fact issues. Antares Aircraft, L.P. v. Federal Republic of Nigeria, 948 F.2d 90, 96 (2d Cir. 1991)(citations omitted), vacated on other grounds, 505 U.S. 1215, 112 S. Ct. 3020; 1992 U.S. LEXIS 4579; 120 L. Ed. 2d 892 (1992); Exchange National Bank v. Touche Ross & Co., 544 F.2d 1126, 1130-31 (2d Cir. 1976), modified on other grounds, 726 F.2d 930 (2d Cir. 1984). For the reasons stated below, defendant's motion to dismiss is granted.

 BACKGROUND

 The injury at issue here occurred on December 9, 1994, at which time Moschetto was an employed as a laborer by Lehrer, McGovern and Bovis, Inc. ("LMB"). LMB had been retained by the General Services Administration ("GSA") to design and construct the courthouse. Moschetto was, at the time of his injury, working for LMB at the courthouse construction site.

 Plaintiffs assert that, when injured, Moschetto was "pushing a dumpster up an improperly designed, constructed and inspected ramp, which collapsed causing him to fall, sustaining severe personal injuries." Plaintiffs' Memorandum of Law in Opposition to the Defendant's Motion to Dismiss the Plaintiffs' Complaint for Lack of Subject Matter Jurisdiction, or in the Alternative, for Summary Judgment ("Plaintiffs' Memorandum") at 4.

 FEDERAL TORT CLAIMS ACT

 As a general proposition, the federal government is immune from suit absent an express waiver of sovereign immunity. Lane v. Pena, 135 L. Ed. 2d 486, 116 S. Ct. 2092, 2096 (1996); Federal Deposit Ins. Corp. v. Meyer, 510 U.S. 471, 475, 114 S. Ct. 996; 1994 U.S. LEXIS 1866; 127 L. Ed. 2d 308 (1994); United States v. Orleans, 425 U.S. 807, 813-14, 48 L. Ed. 2d 390, 96 S. Ct. 1971 (1976); Leone v. United States, 910 F.2d 46, 47 (2d Cir. 1990). The FTCA grants such a waiver in negligence actions when a plaintiff's injuries result from "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. § 2679(b)(1); see Orleans, 425 U.S. at 813-14; Branch v. United States, 979 F.2d 948, 950 n.1 (2d Cir. 1992); McHugh v. University of Vermont, 966 F.2d 67, 70 (2d Cir. 1992); Rivera v. United States, 928 F.2d 592, 608 (2d Cir. 1991); Leone, 910 F.2d at 48-49.

 Here, the Government contends that it cannot be held liable to Moschetto because all, if any, negligent acts or omissions were committed by LMB, not the Government, and therefore are not actions of a Government employee, within the meaning of section 2679. In support of this contention, the Government relies on, inter alia, 28 U.S.C. § 2671, which specifically excludes "any contractor with the United States" from the definition of government employee under the FTCA. 28 U.S.C. § 2671; Leone, 910 F.2d at 48 (citing Orleans, 425 U.S. 807 at 814); see also Logue v. United States, 412 U.S. 521, 528, 37 L. Ed. 2d 121, 93 S. Ct. 2215 (1973).

 Plaintiffs, on the other hand, contend that although LMB had been hired by the GSA to design and construct the courthouse, the Government is nonetheless liable to them for Moschetto's injuries. Plaintiffs assert two theories of governmental liability. The first is seemingly a theory of strict liability based on the Government's role as "owner, operator, developer, controller and designer of the [courthouse]." Plaintiffs' Memorandum at 2. The second is based on what plaintiffs assert is the Government's own negligence in maintaining the construction site in a safe condition.

 Plaintiffs' first theory -- strict liability -- cannot be maintained. Plaintiffs assert that:

 Plaintiffs' Memorandum at 10. Yet, the FTCA does not waive sovereign immunity for claims of strict liability, whether derived from state law or some other source. Berghoff v. United States, 737 F. Supp. 199, 203 (S.D.N.Y. 1989); cf. Laird v. Nelms, 406 U.S. 797, 32 L. Ed. 2d 499, 92 S. Ct. 1899 (1972)(FTCA's waiver of ...


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