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Fraser v. United States

June 4, 2007

OSCAR FRASER, PLAINTIFF,
v.
UNITED STATES OF AMERICA, DEFENDANT.



The opinion of the court was delivered by: Glasser, United States Senior District Judge

MEMORANDUM AND ORDER

INTRODUCTION

Plaintiff Oscar Fraser ("Fraser" or "Plaintiff") filed this action against the United States of America ("the Government") seeking damages for personal injuries under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346(b), 2401(b), 2671-2680 (2006).*fn1

Fraser, a construction worker, alleges that he sustained injuries when a concrete capstone that was being hoisted by a forklift fell from a height of approximately ten to eleven feet, causing the makeshift scaffold upon which he was standing to collapse. See Compl. ¶ 24. The Government now moves to dismiss the complaint pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure ("Rule 12(b)(1)"). For the reasons set forth below, the Court grants the Government's motion.

FACTS

The Government, by and through the Federal Bureau of Prisons, owns the premises and buildings located at 63 Flushing Avenue, Building No. 4 in the Brooklyn Navy Yard in Brooklyn, New York (the "Premises"). See Compl. ¶¶ 9, 11. On March 28, 2005, the United States, through the Federal Bureau of Prisons, awarded a contract to Cooper Construction Inc. ("Cooper") for the purpose of renovating the Premises.*fn2 See id. ¶¶ 13-14; Declaration of Assistant United States Attorney Margot Schoenborn ("Schoenborn Decl."), dated February 15, 2007, Ex. A.

A. The Accident

From approximately July 2005, through January 20, 2006, Fraser was employed as a mason and carpenter on the Premises. See Affidavit of Plaintiff in Opposition to the Defendant's Motion to Dismiss ("Pl. Aff."), dated April 20, 2007, ¶ 3. On or about January 20, 2006, Fraser sustained injuries when a concrete capstone that was being hoisted by a forklift fell from a height of approximately ten to eleven feet, causing the makeshift scaffold upon which Fraser was standing to collapse. See Compl. ¶ 24; Pl. Aff. ¶ 9. Fraser sustained several injuries for which he underwent surgery and physical therapy. See Pl. Aff. ¶ 10. Fraser claims that, prior to January 20, 2006, he complained to "Mike" the "foreman of the construction project" that the "makeshift scaffold was too narrow and not suitable for the work [Fraser] did with respect to the installation of the capstones and the construction project generally."*fn3 Pl. Aff. ¶¶ 6,13.

B. The Complaint

Plaintiff alleges that the injuries he suffered as a result of the fall were "due to the negligence, carelessness and recklessness of the defendant, its Bureau of Prisons, agents, servants and/or employees" in failing to, amongst other things, properly maintain, construct, grade, level or pave the ground or surface upon which the forklift was operating, thus allowing it to be operated on an uneven surface which caused the forklift to "wobble, shake and dislodge the capstone." Compl. ¶ 27. He also alleges that the Government was negligent in failing to properly erect the scaffolding upon which Fraser was standing at the time he fell, and in failing to provide proper safety equipment. See Compl. ¶ 27. Fraser complains that a forklift was "not the proper equipment for lifting a capstone," and that the makeshift scaffolding was too narrow. See Pl. Aff. ¶ 11. Additionally, Fraser claims that the pavement upon which the forklift was operated, which was located in the rear of the warehouse that was being renovated, was broken, not part of the construction project, and that this condition pre-existed plaintiff's employment at the Premises in July 2005. See Pl. Aff. ¶¶ 11, 15-16.

C. The Contract

Plaintiff has challenged the authenticity of the contract attached within Exhibit A to the Schoenborn Declaration (the "Contract"). See Pl. Br. at 3. Exhibit A consists of the Solicitation, Offer and Award (Standard Form 1442), dated June 2, 2005, between the Government and Cooper. See Schoenborn Decl. ¶ 1, Ex. A. The documents in Exhibit A include the Standard Form 1442, the Standard Form 24 (the Bid Bond), a Power of Attorney form, a letter from the Contracting Officer to Cooper with respect to its bid, and a form marked "IFB 21451-0035." IFB 21451-0035 consists of three sections containing provisions that allocate and delegate specific responsibilities between the Government and Cooper.

Fraser argues that, because a box in paragraph 29 on the Standard Form 1442 is checked, that means that the Standard Form 1442, which is three pages in length, constituted the entirety of the contract between the Government and Cooper. Paragraph 29 states, "Award (Contractor is not required to sign this document) Your offer on this solicitation, is hereby accepted as to the items listed. This award consummates the contract, which consists of (a) the Government solicitation and your offer, and (b) the contract award. No further contractual document is necessary." Schoenborn Decl., Ex. A, Standard Form 1442 ¶ 29. (emphasis added). Fraser also contends that the silence of Robert J. Kruskie, who signed the Standard Form 1442 as the Contracting Officer, as to the authenticity of Sections I, II, and III of IFB 21451-0035 is evidence that IFB 21451-0035 and the attachments referenced therein were not part of the Cooper Contract.

The Government defends the authenticity of the Contract. The Government submitted a declaration from Patrick J. Nicholson, the Contracting Officer's Technical Representative ("COTR"), that states that the contract attached to the Schoenborn Declaration was indeed the Cooper Contract which he abided by in overseeing the construction. See Reply Declaration in Support of Motion to Dismiss ("Nicholson Decl."), dated May 2, 2007, ΒΆ 3. The Government further argues that Sections I, II, and III of IFB 21451-0035 were, in fact, incorporated by the Standard Form 1442 pursuant to paragraphs 11 and 14 of the amendments to the Standard Form 1442. Paragraph 11 indicates that the Standard Form 1442 is amended by the items set ...


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