Under New York law, "a party injured by the owner's failure to fulfill [its duty of safety] may recover from the owner even though the responsibility for maintenance has been transferred to another." Mas v. Two Bridges Assocs. by Nat. Kinney Corp., 75 N.Y.2d 680, 687, 555 N.Y.S.2d 669, 673, 554 N.E.2d 1257, 1261 (1990). In other words, a land owner's duty to maintain safe premises is non-delegable. In cases such as the present one, where the Government has delegated to an independent contractor the responsibility for maintaining its property, imposing a non-delegable duty of safety on the Government "would essentially impose strict liability on the Government, disregarding the central inquiry mandated by the FTCA: whether any Government employee is guilty of a negligent act or omission." Id.; see also Brown v. United States, 1994 U.S. Dist. LEXIS 8793, *34, 1994 WL 319015, at *11 (W.D.N.Y. 1994) (a claim against the United States under the theory that it possessed a non-delegable duty as a landowner under New York law is not permitted by the FTCA because such a theory of liability represents a form of strict liability). Consequently, courts have consistently held that non-delegable duties may not be used as a means to impose liability on the Government under the FTCA. McCutcheon v. United States, 1996 U.S. Dist. LEXIS 15812, No. 94 Civ. 596E(F), 1996 WL 607083, at *5 (W.D.N.Y. Oct. 15, 1996); see also Basher v. United States, 1995 U.S. Dist. LEXIS 16939, *1, 1995 WL 646343, at *3 (D. Conn. 1995) (the FTCA does not authorize claims against the Government based on a non-delegable duty, which the Government has nonetheless delegated to an independent contractor).
C. Discretionary Function Exception
Finally, the Court lacks subject matter jurisdiction over this action because Moreno's claims are barred by the discretionary function exception to the FTCA. The FTCA provides that no claims may be brought which are "based on 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. § 2680(a). The purpose of the discretionary function exception is to "prevent 'judicial second guessing' of legislative and administrative decisions grounded in social, economic, and political policy through the medium of an action in tort." Berghoff v. United States, 737 F. Supp. 199, 202 (S.D.N.Y. 1989) (quoting United States v. S.A. Empresa de Viacao Aerea Rio Grandense, 467 U.S. 797, 813, 81 L. Ed. 2d 660, 104 S. Ct. 2755 (1984)).
Moreno claims that because the USMS was responsible for ensuring that P&L maintained the Building, including making any necessary repairs or alterations, the USMS may be held liable for P&L's failure to repair the defective floor drain. This claim is without merit. Both the USMS's decision to hire P&L to manage the Building, as well as its supervision of P&L in that capacity were discretionary decisions within the meaning of the FTCA exception.
As a general matter, it is clear that "contracting out the responsibility to maintain the [Building] while balancing fiscal considerations entails exercising judgment based on policy." Williams v. United States, 50 F.3d at 310. Thus, it is well established that the United States' decision to contract with independent companies to ensure maintenance of premises is a discretionary function, insulated from liability. Id. Moreover, the seizure warrant in this action specifically authorized the USMS to "use its discretion in maintaining the premises and leaseholds" and to utilize the "services of . . . a property manager . . . as it deems appropriate to protect and maintain" the Building. Seizure Warrant, annexed to the Johnson Decl. as Exh. "A," at 2. Accordingly, the USMS's decision to delegate the inspection and repair of the Building to P&L was a discretionary function authorized by law, and Moreno cannot challenge that decision under the FTCA.
Similarly, Moreno cannot challenge the manner in which USMS supervised P&L's performance under the Contract. The USMS delegated the day-to-day task of detecting and repairing unsafe conditions to P&L, while reserving the right to conduct tests to assure itself that the services provided by P&L conformed to the Contract requirements. This method of supervision was a policy decision precisely of the type the discretionary function exception is intended to protect. See United States v. S.A. Empresa de Viacao Aerea Rio Grandense, 467 U.S. at 819-21 ("When an agency determines the extent to which it will supervise the safety procedures of private individuals, it is exercising discretionary regulatory authority of the most basic kind."); see also Berghoff v. United States, 737 F. Supp. at 204-05 ("The United States' decision regarding the extent to which it would supervise [the contractor's] safety precautions is discretionary, and . . . cannot form the basis for a claim."). In sum, the method and extent of supervision of an independent contractor is within the sound discretion of the Government. Id. For this reason as well, Moreno's claims must be dismissed.
D. Additional Discovery
Moreno's assertion that further discovery is necessary before the Court can decide the jurisdictional issue is without merit. Specifically, Moreno claims that discovery is necessary because it may shed light on the following issues: (1) whether the USMS possessed actual and/or constructive notice of the defective floor drain and failed to take remedial measures to repair said condition; (2) whether the USMS had any involvement in the construction or design of the floor drain; and (3) whether a USMS employee regularly visited the Building before the accident. However, these factual allegations, even if true, do not confer jurisdiction on this Court.
First, whether the USMS had notice of the defective floor drain is irrelevant to the issue of P&L's status as an independent contractor, which is clear from the express terms of the Contract. See Gertrude Burke v. United States, 1996 U.S. Dist. LEXIS 17550, *5, 1996 WL 671151, at *2 (S.D.N.Y. 1996) (case dismissed for lack of subject matter jurisdiction and no genuine issue of fact exists as to whether Government was responsible for repairing a defective sidewalk because contract clearly indicated that such responsibility rested with the contractor). In any event, any purported omissions by the Government do not create liability because the USMS's delegation of matters of safety and repair to P&L falls within the discretionary function exception to the FTCA. See Williams v. United States, 50 F.3d at 310 (given that the decision to hire independent contractor falls within the ambit of the discretionary function exception, plaintiff's assertion that the United States was negligent in inspecting and/or correcting defect must fail because these decisions "are embraced by the overarching decision to engage [the contractor]"). Second, there is no allegation in the complaint that the USMS designed and/or constructed the floor drain and Moreno's attempt to raise this issue in the present motion is without support. Finally, even assuming a USMS employee periodically inspected P&L's maintenance of the Building, this fact would not warrant a finding that the USMS had the type and extent of control and supervision required for a finding of liability under the FTCA. "The Government's power to inspect does not create a duty of care to a contractor's workers and does not support jurisdiction." Kapnisakis v. United States, 1995 U.S. Dist. LEXIS 12451, *7, 1995 WL 510018, at *3; see also Leone v United States, 910 F.2d 46, 50 (2d Cir. 1990) (Government not liable under FTCA even though United States "acted generally as an overseer"), cert. denied, 499 U.S. 905, 113 L. Ed. 2d 213, 111 S. Ct. 1103 (1991); Berghoff v. United States, 737 F. Supp. 199, 202 (S.D.N.Y. 1989) (fact that contract may provide for Government employee's presence at a construction site does not warrant finding that the construction company is a Government agent under the FTCA). In the face of the unambiguous contractual language, the fact that a USMS employee might have regularly visited the Building to ensure P&L's compliance with the Contract does not cast doubt upon P&L's status as an independent contractor. See Vasquez v. United States, 1994 U.S. Dist. LEXIS 8031, *5, 1994 WL 268242, at *2 (S.D.N.Y. 1994) (where contract terms make clear that maintenance company is independent contractor, allegations of Government control must fail).
For the reasons set forth above, defendants' motion to dismiss for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1) is granted.
SHIRLEY WOHL KRAM
United States District Judge
Dated: New York, New York
May 28, 1997