The opinion of the court was delivered by: John T. Curtin United States District Judge
This action was brought against the United States Postal Service ("USPS") pursuant to the Federal Tort Claims Act ("FTCA"), which provides a limited waiver of sovereign immunity to allow claims for money damages based on the negligence of federal government employees. See 28 U.S.C. § 1346(b)(1). Plaintiff Edward Kwitek claims that he was injured while working as a driver for Midwest Transport, Inc., under a contract with the USPS, as he was loading containers of mail onto a Midwest trailer at the LaSalle Post Office Station in Niagara Falls, New York.
On the eve of trial, the government moved pursuant to Fed. R. Civ. P. 12(b)(1) to dismiss the complaint for lack of subject matter jurisdiction on the ground that the FTCA's waiver of sovereign immunity does not apply in this case because plaintiff was injured while performing work as an independent contractor, and because the injury arose from the exercise of a discretionary function (see Item 29). The court heard oral argument of the motion on September 1, 2009 (see Item 43), and reserved decision pending further submissions upon development of a more complete record at trial (see Tr. 2-3).*fn1 The twoday bench trial on the issue of liability*fn2 commenced the next day, September 2, 2009.
The following constitutes the court's ruling on the government's motion to dismiss.
The USPS and Midwest entered into a "Transportation Services Contract," known as Highway Contract Route ("HCR") No. 14041, for provision of mail transportation services between post office facilities in Buffalo, Grand Island, and Niagara Falls, New York, for the period of July 1, 2003, through June 30, 2007 (Joint Trial Ex. 44). In Section B, "Statement of Work and Specifications," the Contract establishes a schedule for Midwest to make three runs daily between the designated USPS locations within specified time frames (see id. at § B.1, pp. 3699-3701), and provides the following "Work Requirements:"
[Midwest] may be required to load and unload as outlined below:
a. [Setting forth approximate daily average loading and unloading times at the designated locations].
b. Sufficient time for loading and unloading at intermediate office(s) is included in the en route schedule.
c. At offices where postal personnel are on duty, [Midwest] will inquire prior to departure to determine if all mail has been tendered.
d. [Midwest] will be required to drop trailers upon arrival at destinations as directed by a postal official. [Midwest] will also be required to pick up outbound loads at location(s) directed by a postal official prior to departure.
e. In order to maintain schedule, postal personnel may assist with loading and unloading.
g. [Midwest] will be required to report in sufficient time to load and depart on schedule.
h. [Midwest] will be required to load, transport, and unload all classes of mail at the headout, en route, and destinating offices.
(Id. at § B.1.4, pp. 3701-02).
The background facts of plaintiff's personal injury claim, developed through his testimony at trial, are as follows.
Plaintiff began working for Midwest in July 2003. He was assigned to the Buffalo-Grand Island-Niagara Falls route for approximately two years prior to October 19, 2005, the date on which his injury is alleged to have occurred. He testified that his normal routine included three trips each day along the route, five days a week. His shift began each day at 11:30 a.m. at the Midwest yard, where he would do a "pretrip" check of tire pressure, fluids, and other operational functions of the tractor before heading to the Buffalo Station to pick up a trailer and begin his run to the postal stations in Grand Island and Niagara Falls, and then back to Buffalo (Tr. 7-13).
Plaintiff testified that he ordinarily arrived at the LaSalle Post Office Station in Niagara Falls around 1:20 p.m. He was allotted twenty minutes to disconnect his tractor and reconnect it to another trailer loaded with mail to be transported back to Buffalo. C.C. Cox, the Mail Handler in charge of the dock at the LaSalle Station, was "always there," and "usually everything was loaded." If Mr. Cox was off, someone else was there to load the truck. In the ...