United States District Court, S.D. New York
October 17, 2005.
BARBARA FISKO, MATTHEW CARDINALE, Plaintiffs,
U.S. GENERAL SERVICES ADMINISTRATION, THE UNITED STATES OF AMERICA, Defendants.
The opinion of the court was delivered by: ROBERT SWEET, Senior District Judge
The defendant the United States of America (the "Government")
has moved under Rule 12(b) (1), Fed.R.Civ.P., to dismiss the
complaint of plaintiffs Barbara Fisko ("Fisko" or the
"Plaintiff") and her husband Matthew Cardinale ("Cardinale"),
(collectively, the "Plaintiffs") seeking damages for a fall
resulting from a defective sidewalk and drain. For the reasons
set forth below, the motion is granted, and the complaint
The Plaintiffs filed their complaint on December 20, 2004,
pursuant to the Federal Tort Claims Act ("FTCA"),
28 U.S.C. §§ 1346, 2671-80, alleging that Fisko was injured on April 2, 1997
while walking on a thoroughfare between buildings Five, Six, and
Seven of the former World Trade Center, when she tripped and fell
due to a defective sidewalk and an unsecured drainage cover and
that the Government was negligent in failing to maintain these
premises in a reasonably safe condition. In addition to the
Government, the Plaintiffs named as a defendant "U.S. General
Services Administration, as an Executive Agency of the United
States of America." Since the only proper defendant in an FTCA
action is the United States of America, 28 U.S.C. § 2679 (a), the
US General Services Administration is dismissed from this action,
Diaz v. U.S. Postal Service, No. 02 Civ. 8892 (NRB), 2003 WL
21767530, at *1, n. 1, 2003 U.S. Dist. LEXIS 13199 (S.D.N.Y. July 31,
2003), a proposition not challenged by the Plaintiffs. Cardinale
maintains that he is entitled to compensation for lost services,
companionship, consortium, and comfort of his wife.
The Government's motion to dismiss was heard and marked fully
submitted on May 25, 2005. By affidavit of counsel for the
Plaintiffs, the Plaintiffs have conceded that the claim of
Cardinale is barred by a failure to exhaust his administrative
remedies, that Fisko's claim is limited to $2 million, the amount
of her administrative claim, and that there is no right to a jury
trial. The remaining issue is whether or not Fisko has
established jurisdiction in this Court.
The facts are described in the complaint as follows.
On April 2, 1997, Fisko was injured while she was walking on
the Plaza, a public thoroughfare located between buildings Five,
Six, and Seven of the former World Trade Center when she tripped
and fell due to a "defective sidewalk and an unsecured drainage
cover" and was "violently propelled to the ground." See
Complaint ("Compl."), ¶¶ 1, 8, 9. The complaint alleges that the
Government was negligent in failing to properly inspect,
maintain, or repair the sidewalk and the drain, and in failing to
provide a safe environment for Fisko and that as a result, Fisko required
extensive medical attention and treatment. See Compl. ¶ 9.
On or about April 2, 1999, Fisko filed an administrative claim
with the General Services Administration ("GSA") seeking $2
million in damages for injuries sustained when she "was walking
in the plaza area near 7 World Trade Center" and "tripped and
fell over a drainage hole." See Claim For Damage, Injury, or
Death Filed by Claimant Barbara Fisko, dated April 2, 1999,
attached as Exhibit A to the Declaration of Mark S. Johnson
("Johnson Decl."). The GSA denied Plaintiff's claim on June 22,
2004. See Letter from Mark S. Johnson, dated June 22, 2004,
attached as Exhibit B to the Johnson Decl.
Certain additional facts are relevant to the jurisdictional
issue raised by the Government and are appropriate for
consideration without the necessity to convert the Government's
motion to that for summary judgment. See Perezic v. Crespo,
No. 94 Civ. 8238 (SHS), 1996 WL 233687, at *3, 1996 U.S. Dist.
LEXIS 6046 (S.D.N.Y. May 7, 1997).
GSA entered into a lease with the Port Authority, dated June 2,
1970, for space which comprised the entire premises known as Six
World Trade Center for use primarily by the United States Customs
Service. On April 2, 1997, GSA was using the space pursuant to the terms of the lease. See Declaration of Florine
Rhodes, dated March 17, 2005 ("Rhodes Decl."), ¶ 2.
On October 1, 1995, the Government, through GSA, entered into a
contract with Eastco Building Services, Inc. (the "Eastco
Contract"). Id. ¶ 5. Pursuant to the Eastco Contract, Eastco
was responsible for the maintenance, supervision, and repair of
the sidewalks and drainage systems in the plaza area surrounding
World Trade Center Six. Id. ¶ 4. Section C, paragraph 1 of the
Eastco Contract, entitled "Scope of Work," specified in
subsection A, that "the Contractor shall provide all management,
supervision, labor, material, 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." Id. ¶ 6. In addition, Section C,
paragraph 8 of the Eastco Contract, entitled "Architectural and
Structural Repairs," specified in subsection A that "The
Contractor shall provide all labor, equipment and materials
necessary to perform all architectural and structural maintenance
and repairs to the interior and exterior of the facility
including but not limited to: . . . sidewalks . . ." Id. ¶ 7.
Subsection B further provided: "The level of maintenance shall
assure that the property is free of missing components or defects
which affect the safety . . . of the facility." Id. Section J, Exhibit 1, Paragraph B(1) (i) of the Eastco Contract
included "storm drainage equipment and systems" as equipment to
be "operated, maintained and repaired" by Eastco. Id. ¶ 8.
Paragraph B (2) of Section J, Exhibit 1, stated that: "The GSA
Form 1736 (Equipment Inventory List) provides an inventory of the
equipment and systems installed in the building(s) which must be
serviced." Id. Section J, Exhibit 2, of the Eastco Contract,
which contains GSA Form 1736 (Equipment Inventory List), includes
"40 areaway drains" located on the Plaza among the equipment to
be maintained and serviced by Eastco. Id. ¶ 9.
The Contract includes a section pertaining to "Preventive
Maintenance," which according to Fisko limits Eastco's duty with
respect to repair and maintenance of the areaway drains to annual
inspection of the drains, and establishes that the Government,
and not Eastco, had responsibility for any further repairs. See
Plaintiffs' Memorandum of Law in Opposition to Government's
Motion to Dismiss the Complaint ("Pl. Br."), at 2-3. Nelson
Palma, Buildings Manager of the Greater Manhattan Field Office of
GSA, Region II, has stated by affidavit that preventive
maintenance is maintenance performed to prevent the failure and
breakdown of equipment and occurs on a less frequent basis than
repair of equipment. See Declaration of Nelson Palma ("Palma
Decl."), ¶ 4. Eastco was responsible for both preventive
maintenance and supervision of the equipment and repairs as
needed and had a separate obligation under the Contract to
maintain and repair the equipment covered under the Contract, including the drains, on a
regular basis. Id.; see also Rhodes Decl., ¶¶ 7-9.
According to Palma, this responsibility included patrolling the
plaza on a daily basis and looking for any defects in equipment,
such as loose drains, that might occur on the property and
providing for their repair. Palma Decl. ¶ 4.
No GSA employee supervised the day-to-day operations of Eastco,
which performed maintenance of the sidewalks, storm drainage
system, and equipment in the Plaza. See Rhodes Decl. ¶ 11. No
GSA employee supervised or directed the work of Eastco employees.
Id. Eastco maintained liability insurance to cover its
operations under the Eastco Contract. Id. ¶ 12.
The Standard Imposed Upon Fisko
On a motion to dismiss pursuant to Rule 12(b) (1), the
plaintiff bears the burden of establishing by a preponderance of
the evidence that subject matter jurisdiction exists over their
complaint. See Makarova v. United States, 201 F.3d 110, 113
(2d Cir. 2000). In other words, Plaintiff must establish that
this court has the constitutional or statutory authority to hear
this case. Id. The FTCA's Independent Contractor Exception Bars The
The "United States, as sovereign, is immune from suit save as
it consents to be sued . . ., and the terms of its consent to be
sued in any court define that court's jurisdiction to entertain
the suit." United States v. Mitchell, 445 U.S. 535, 538,
100 S. Ct. 1349, 63 L. Ed. 2d 609 (1980) (citation omitted). The
Government cannot be sued without its consent, and "the existence
of consent is a prerequisite for jurisdiction." United States v.
Mitchell, 463 U.S. 206, 212, 103 S. Ct. 2961, 77 L. Ed. 2d 580
(1983). Although Congress can waive the Government's sovereign
immunity through clear and unequivocal statutory language,
waivers of sovereign immunity and their conditions must be
strictly applied against the claimant. See Lane v. Pena,
518 U.S. 187, 192, 116 S. Ct. 2092, 135 L. Ed. 2d 486 (1996);
Millares Guiraldes de Tineo v. United States, 137 F.3d 715, 719
(2d Cir. 1998). Accordingly, if the Government has not waived its
sovereign immunity, or if the conditions under which the
Government has agreed to waive that immunity have not been met,
federal subject matter jurisdiction does not exist over the
plaintiff's claims. See United States v. Sherwood,
312 U.S. 584, 586, 61 S. Ct. 767, 85 L. Ed. 1058 (1941); Williams v.
United States, 947 F.2d 37, 39 (2d Cir. 1991).
The FTCA provides a limited waiver of the Government's
sovereign immunity. See Millares Guiradesco de Tineo,
137 F.3d at 719. That statute waives the Government's sovereign
immunity only with respect to claims against the United States that seek money
damages for personal injury "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). The FTCA defines Government "employees" as any "officers
or employees of any federal agency . . . and persons acting on
behalf of a federal agency in an official capacity."
28 U.S.C. § 2671. A "federal agency" includes "executive departments, the
judicial and legislative branches, the military departments,
independent establishments of the United States, and corporations
primarily acting as instrumentalities or agencies of the United
States, but does not include any contractor with the United
States." Id.; Leone v. United States, 910 F.2d 46, 49 (2d
Cir. 1990). If the injuries alleged in a complaint were caused by
an independent contractor, the FTCA does not waive sovereign
immunity for that claim, and it must be dismissed for lack of
subject matter jurisdiction. See United States v. Orleans,
425 U.S. 807, 814 (1976); see also Roditis v. United
States, 122 F.3d 108, 111 (2d Cir. 1997) (per curiam)
("sovereign immunity precludes suits against the United States
for injuries caused by its independent contractors"); Leone,
910 F.2d at 49.
Here, subject matter jurisdiction over Fisko's claims depends
upon whether Eastco was a Government contractor or Government
agency under the FTCA. The determination as to whether an entity
is a Government agency or a contractor is a question of federal law, see Leone, 910 F.2d at 49, which is determined
by the terms of the contract between them. See Hentnik v.
United States, No. 02 Civ. 9498 (DC), 2003 WL 22928648, at *4,
2003 U.S. Dist. LEXIS 22240 (S.D.N.Y. Dec. 10, 2003). As the
Second Circuit has held: "Courts have found it indicative of an
agency relationship if the Government enjoys the power to control
the detailed physical performance of the contractor . . . or if
the Government in fact supervises the day-to-day operations." B
& A Marine Co., Inc. v. Am. Foreign Shipping Co., 23 F.3d 709,
713 (2d Cir. 1994) (internal quotations and citations omitted).
The retention of a right to inspect the progress of a
contractor's project or the reservation of broad supervisory
powers to control a contractor's compliance with the contract's
specifications does not establish the agency relationship
necessary for FTCA jurisdiction over the Government. See,
e.g., Logue v. United States, 412 U.S. 521, 528,
93 S. Ct. 2215, 37 L. Ed. 2d 121 (1973); Roditis v. United States,
122 F.3d 108, 111 (2d Cir. 1997) (the "[G]overnment's retention of a
right to inspect . . . does not convert a contractor into a
federal employee"); Leone, 910 F.2d at 50 (where Government
acts "generally as an overseer," no FTCA jurisdiction); Lipka v.
United States, 369 F.2d 288, 290-92 (2d Cir. 1966) (holding
general direction from Government does not confer jurisdiction);
Hentnik, 2003 WL 22928648, at *4 ("Where the Government has no
contractual right to control the contractor['s] physical
performance or supervise its day-to-day operations, but instead reserves the right to inspect the contractor['s]
performance only to ensure compliance with the terms of the
contract, the Government cannot be held liable for the acts of
its independent contractor").
Here, the Eastco Contract charged Eastco with responsibility
for the maintenance, supervision, and repair of the sidewalks and
drainage systems in the plaza area between Six and Seven World
Trade Center as set forth above. See Rhodes Decl. ¶ 4.
Subsection B of that section provided that: "The level of
maintenance shall assure that the property is free of missing
components or defects which affect the safety . . . of the
facility." Id. In addition, Section J, Exhibit 1, Paragraph
B(1) (i) of the Eastco Contract includes "storm drainage
equipment and systems" as equipment to be "operated, maintained
and repaired" by Eastco. Id. ¶ 8. Moreover, Paragraph B(2) of
Section J, stated that: "The GSA Form 1736 (Equipment Inventory
List) provides an inventory of the equipment and systems
installed in the building(s) which must be serviced." Section J,
Exhibit 2, constituting the GSA Form 1736 (Equipment Inventory
List), included "40 areaway drains" located at the plaza among
the equipment to be maintained and serviced. Id. ¶ 9.
The Government did not exercise control over the detailed
physical performance or supervise the day-to-day activities of
Eastco, but reserved the right to inspect the performance to
ensure compliance with the terms of the contract. See Rhodes Decl.,
Exh. B, Section E(2)(C). These factors establish that the
Government was acting "generally as an overseer" and that no
agency relationship existed with Eastco. See, e.g., Leone,
910 F.2d at 50. In addition, Eastco maintained liability
insurance to cover its operations under the Eastco Contract.
Id., Rhodes Decl. ¶ 11.
In view of these circumstances, Eastco was a contractor under
the FTCA. See, e.g., Roditis, 122 F.3d at 111-12; Leone,
910 F.2d at 50-51; Shivcharan v. United States, No. 04 Civ.
1296 (SJ), 2005 WL 408046, at *2, 2005 U.S. Dist. LEXIS 6126
(E.D.N.Y. Feb. 15, 2005) (granting motion to dismiss pursuant to
independent contractor exception where contract provided that
contractor would maintain projects in a safe condition, provide
day-to-day maintenance, and take health and safety precautions to
protect workers); Diaz, 2003 WL 21767530, at *1-2 (granting
motion to dismiss where contract obligated contractor to provide
all labor and materials to complete renovations, have a competent
superintendent on-site at all times, and indemnify the United
States for any injuries that resulted from its work); Carter v.
United States, No. 96 Civ. 9139 (MBM) 1998 WL 744009, at *2-3,
1998 U.S. Dist. LEXIS 16758 (S.D.N.Y. Oct. 26, 1998) (granting
motion to dismiss where contracts delegated responsibility for
renovation, maintenance, and cleaning to contractors; contractor
responsible for renovation also agreed to be responsible for any
damages to persons as a result of its negligence and to directly
superintend the project); Forshaw v. United States, No. 96 Civ. 0150, 1998 WL 641357, at *2-3,
1998 U.S. Dist. LEXIS 14653 (N.D.N.Y. Sept. 14, 1998) (granting motion
to dismiss where contract "delegated supervision and control of
construction" to the contractor).
In an action directly on point involving a contract with
virtually identical provisions, this Court has dismissed for lack
of subject matter jurisdiction a lawsuit brought by an individual
who slipped and fell on the plaza adjacent to the federal
building at 26 Federal Plaza. Burke v. United States, No. 96
Civ. 2470 (LBS), 1996 WL 671151, at *1-2, 1996 U.S. Dist. LEXIS
17550 (S.D.N.Y. Nov. 19, 1996). The court in Burke found that
pursuant to the terms of the Government's contract with the
contractor, Ogden Allied Building and Airport Services Inc.
("Ogden"), the United States was not responsible for maintenance
and repair to the sidewalk, and that because of the discretionary
function exception to the FTCA, the court lacked jurisdiction to
hold the Government liable for any negligent delegation of
responsibility to Ogden or negligent supervision of Ogden. Id.
at *2. The contract in Burke and the Eastco Contract in the
present case contain identical provisions, delegating full
responsibility for the maintenance and repair of the subject area
(in Burke the sidewalk in 26 Federal Plaza, and in the present
case, the drain in the plaza surrounding Six World Trade Center)
to the contractor. As in the Eastco Contract, the Burke
contract provided that: The Contractor [Ogden] shall provide all labor,
equipment and materials necessary to perform all
architectural and structural maintenance and repairs
to the interior and exterior of the facility
including but not limited to . . . sidewalks,
driveways, roads, curbing, parking areas, patios and
exterior stairways. . . .
Id. at *1-2. Likewise, as with the Eastco Contract, the
contract in Burke provided that "the level of maintenance shall
assure that the property is free of missing components or defects
which affect the safety, appearance, or intended use of the
facility . . ." Id.; compare Rhodes Decl. ¶ 7 ("The level of
maintenance shall assure that the property is free of missing
components or defects which affect the safety . . . of the
facility."). Finally, as with the contract in Burke, the Eastco
Contract provided that the "Contractor is responsible for the
day-to-day inspection and monitoring of all work performed to
ensure compliance with the contract requirements." See Rhodes
Decl., Exh. B, at 0030, ¶ 1.
Moreover, the Eastco Contract, like the contract in Burke,
stated that any repair of equipment valued under $2,000 was the
responsibility of Eastco, not GSA. See Palma Decl. ¶ 5; Rhodes
Decl., Exh. B, pp. 8-11, Section B, ¶¶ 1-3; see also Burke
1996 WL 671151, at *2. The Eastco Contract stated that: "the
contractor shall provide all management, supervision, labor,
materials, supplies, repair parts, and equipment (except as
otherwise provided), and shall plan, schedule, coordinate and
ensure effective performance of all services described herein."
Id.; Rhodes Decl., Exh. B at p. 8, section B, ¶ 1. The cost of
providing maintenance repairs up to $2,000 and architectural and structural
repairs up to $2,000 was included in the Contract. Palma Decl. ¶
5. According to Palma, the areaway drain that is the subject of
the present lawsuit constitutes equipment with a value of less
than $2,000 and therefore, was the responsibility of Eastco
pursuant to the Contract. Id.; see Burke, 1996 WL 671551,
at *2 ("Plaintiff alleges that she fell on a piece of sidewalk
which was `broken, cracked and uneven' . . . Repair of such a
defect would rarely exceed $2,000 and certainly would never
The Claim Is Barred By § 2680(a) Of The FTCA
To the extent that the complaint includes a claim that the
Government is liable for negligently supervising Eastco or its
employees, or that it was negligent in selecting Eastco as its
contractor, 28 U.S.C. § 2680(a) provides that no claims may be
brought against the Government that are "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." 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."
United States v. Gaubert, 499 U.S. 315, 323, 111 S. Ct. 1267,
113 L. Ed. 2d 335 (1991) (citation omitted). To determine whether the act or omission complained of
constitutes a "discretionary function," the Supreme Court has
developed a two-part test. First, courts are to consider whether
the challenged actions were truly discretionary and involved "an
element of judgment or choice" or "whether they were instead
controlled by mandatory statutes or regulations." Gaubert,
499 U.S. at 322, 328; see also Berkovitz v. United States,
486 U.S. 531, 544, 108 S. Ct. 1954, 100 L. Ed. 2d 531 (1988) (holding
exception does not preclude suits alleging the violation of a
"specific mandatory directive"). If an employee violates a
mandatory regulation, then there is no protection from liability
as the action was contrary to policy and the discretionary
function exception does not apply. See Gaubert,
499 U.S. at 322, 324. Here, Fisko has not pointed to such mandatory and
specific regulation, and therefore does not get past the first
prong of the Gaubert test. GSA was not required to hire a
particular contractor or to engage in a particular degree of
oversight over the independent contractor it chose.
It is well-settled that the selection and supervision of
contractors is a discretionary function and cannot form the basis
for liability under the FTCA. See, e.g., United States v.
Varig Airlines, 467 U.S. 797, 819-20, 104 S. Ct. 2755,
81 L. Ed. 2d 660 (1984) (extent of supervision is discretionary function
"of the most basic kind"); Williams v. United States,
50 F.3d 299, 309-10 (4th Cir. 1995) (selection of particular contractor
falls within discretionary function); Hentnik, 2003 WL 22928648, at *4 ("It
is well settled that the selection and supervision of contractors
is a discretionary function"); Carter, 1998 WL 744009, at *4
("Courts have repeatedly held that the selection and supervision
of contractors is a discretionary function, and thus cannot
result in governmental liability"). Consequently, the Court also
lacks subject matter jurisdiction over the Government with
respect to any claims of negligent selection or supervision.
Fisko has contended that the Government is liable for the
alleged damage to the drain because, pursuant to the Eastco
Contract, the Government contract inspectors retained the right
to inspect the contractor's work. See Pl. Br. at 3.
"Reservation of the power to control a contractor's compliance
with the contract's specifications does not make the contractor
an employee." Lipka, 369 F.2d at 291 (citations omitted). "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." Abrams-Fogliani v.
U.S., 952 F. Supp. 143, 145-46 (E.D.N.Y. 1996) (citing Logue,
412 U.S. 421). Furthermore, as noted above, the Eastco Contract
delegates the primary responsibility for day-to-day inspection
and monitoring of all of the work of the contractor.
Specifically, the section in the Eastco Contract entitled
"Contractor Responsibility" immediately preceding the section describing the Government inspectors' role, states: "the
Contractor is responsible for the day-to-day inspection and
monitoring of all work performed to ensure compliance with
contract requirements." See Rhodes Decl., Exh. B, at 0030, at
Section E, ¶ 1. Therefore, the inclusion in the Eastco Contract
of a provision stating that Government inspectors could further
inspect the contractor's work to ensure compliance does not mean
that Eastco did not maintain control over the repair and
maintenance of the drains.
Finally, the Eastco Contract required Eastco to obtain and
maintain liability insurance, "a provision found by many courts
to evidence that the lessee acted as an independent contractor."
See Rhodes Decl. ¶ 12, Exh. G; Abrams-Fogliani,
952 F. Supp. at 146; Larsen v. Empresas El Yunque, Inc., 812 F.2d 14, 16
(1st Cir. 1986); De Blasio v. United States, 617 F. Supp. 1004,
1006-07 (E.D.N.Y. 1985) (and cases cited therein).
Fisko's contention that the law of New York State controls the
liability of the United States because it was a lessee of the
subject property from the Port Authority is misplaced. As the
Supreme Court explained in Logue, 412 U.S. 421, the FTCA, and
not the law of the state, governs the liability of the Government
for tort actions:
Congress, of course, could have left the
determination as to whose negligence the Government
should be liable for under the Federal Tort Claims Act to the law of the
State involved, as it did with other aspects of
liability under the Act. But it chose not to do this,
and instead incorporated into the definitions of the
Act the exemption from liability for injury caused by
employees of a contractor. While this congressional
choice leaves the courts free to look to the law of
torts and agency to define "contractor," it does not
leave them free to abrogate the exemption that the
Id. at 528. Fisko has argued that the Government is liable for
non-delegable duties of landowners under New York State law,
see Pl. Br. at 4-5. However, "To the extent that plaintiff's
complaint can be construed to allege liability for non-delegable
duties of landowners under state law there is no subject matter
jurisdiction. The Tort Claims Act does not waive sovereign
immunity as to such claims." See Burke, 1996 WL 671151, at
*2, n. 4.
For the foregoing reasons, the motion of the Government is
granted and the complaint is dismissed.
It is so ordered.
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