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October 22, 1981

Roderick JENNINGS, et al., Plaintiffs,
UNITED STATES of America, Defendant, v. GEORGE HYMAN CONSTRUCTION CO., Third Party Defendant

The opinion of the court was delivered by: JOHNSON


Plaintiff Roderick Jennings, while employed by George Hyman Construction Company (GHC), fell from a walkway at the National Visitor Center on May 28, 1976. When plaintiff fell, GHC was under contract with the National Capitol Region of the National Park Service, an agency of the United States. After plaintiff's administrative claim for injuries sustained in his fall was denied, plaintiff filed suit on May 25, 1979, in the United States District Court for the District of Columbia against the United States (the Government) under the Federal Tort Claims Act (FTCA). See 28 U.S.C. §§ 1346(b), 2671 et seq. (1976).

 In the first count of the complaint, plaintiff alleged that his injuries were caused by the Government's negligence in failing "to provide plaintiff with a safe place to work; ... to warn the plaintiff of a dangerous condition of which it knew, or in the exercise of reasonable care and inspection it should have known existed; and ... to observe the appropriate construction and safety standards and regulations." The second count concerned the claim of Cheri Jennings, plaintiff's wife, for damages due to loss of consortium. The Government, having entered an indemnification agreement with GHC for personal injuries incurred during construction work on the National Visitor Center, brought a third-party complaint against GHC in the instant action.

 This case is now before the Court on the Government's motion to dismiss on the ground that the United States cannot be liable for the acts of an independent contractor under the FTCA. In appraising the sufficiency of the complaint, this Court must assume that plaintiff's well-pled allegations are true, see Miree v. Dekalb County, Ga., 433 U.S. 25, 27 n.2, 97 S. Ct. 2490, 2492 n.2, 53 L. Ed. 2d 557 (1977), and must draw all inferences in favor of the plaintiff. See Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S. Ct. 1683, 1686, 40 L. Ed. 2d 90 (1974); Jenkins v. McKeithen, 395 U.S. 411, 421, 89 S. Ct. 1843, 1848, 23 L. Ed. 2d 404 (1969). It is well-settled that plaintiff's "complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99, 101-102, 2 L. Ed. 2d 80 (1957). Despite the Supreme Court's liberal standard for review of complaints on motions to dismiss, plaintiff's complaint should be dismissed as plaintiff can state no claim for relief against the Government as a matter of law.


 The FTCA is a limited waiver of sovereign immunity which makes the United States liable for the torts of its employees acting within the scope of their employment to the same extent that a private party would be liable under state law. See United States v. Orleans, 425 U.S. 807, 813, 96 S. Ct. 1971, 1975, 48 L. Ed. 2d 390 (1976); Lucas v. United States, 443 F. Supp. 539, 543 (D.D.C.1978), aff'd, 191 U.S. App. D.C. 225, 590 F.2d 356 (1979). Although the FTCA defines "employees of the government" to include "officers or employees of any federal agency," it specifically excludes from this definition "any contractor with the United States." *fn1" 28 U.S.C. § 2671 (1976). "Since the United States can be sued only to the extent that it has waived its immunity, due regard must be given to the exceptions, including the independent contractor exception, to such waiver." United States v. Orleans, 425 U.S. at 814, 96 S. Ct. at 1975. The Supreme Court has accepted modern common law *fn2" and the law of many states *fn3" in making the distinction between the servant or agent relationship and independent contractors "turn on the absence of authority in the principal to control the physical conduct of the contractor in performance of the contract." Logue v. United States, 412 U.S. 521, 527, 93 S. Ct. 2215, 2219, 37 L. Ed. 2d 121 (1973). Hence, the "critical element in distinguishing an agency from a contractor is the power of the Federal Government to control the detailed physical performance of the contractor." United States v. Orleans, 425 U.S. at 814, 96 S. Ct. at 1975; Logue v. United States, 412 U.S. at 527-28, 93 S. Ct. at 2219.

 While the plaintiff does not appear to contest the Government's argument that GHC was an independent contractor, see Plaintiff's Motion in Opposition to Defendant's Motion to Dismiss, it remains important for other conclusions in this opinion to explain why GHC should be classified as an independent contractor. Under the terms of the Government's construction contract with GHC, GHC assumed broad responsibility to control and supervise the construction in the National Visitor Center. Clause 12 of the contract provides:

The contractor shall, without additional expense to the Government, be responsible for obtaining any necessary licenses and permits, and for complying with any applicable Federal, State, and municipal laws, codes, and regulations in connection with the prosecution of the work. He shall be similarly responsible for all damages to persons or property that occur as a result of his fault or negligence. He shall take proper safety and health precautions to protect the work, the workers, the public, and the property of others. He shall also be responsible for all materials delivered and work performed until completion and acceptance of the entire construction work except for any completed unit of construction thereof which therefore may have been accepted.

 In addition, GHC was forbidden from requiring any laborer "to work in surroundings or under working conditions which are unsanitary, hazardous or dangerous to his health or safety, as determined under construction safety and health standards promulgated by Regulations of the Secretary of Labor." General Provisions of the United States-GHC Construction Contract, cl. 34. The only power that the Government appears to have retained in the contract was its ability to inspect the quality of the materials and GHC's workmanship. See id. at cl. 34.

 The Government's retention of an ability to inspect GHC's work is insufficient to shift GHC's status from an independent contractor to a servant or agent. In Logue v. United States, 412 U.S. 521, 93 S. Ct. 2215, 37 L. Ed. 2d 121 (1973), state and local governments contracted with the Federal Bureau of Prisons to care for federal prisoners in state and local jails. Id. at 523, 93 S. Ct. at 2217. Under these contracts, the Government reserved "the right to enter the institution ... at reasonable hours for the purpose of inspecting the same and determining the conditions under which federal offenders are housed." Id. at 530, 93 S. Ct. at 2220. The Supreme Court held that the contract gave the Government "no authority to physically supervise the conduct of the jail's employees" and "clearly contemplated that the day-to-day operations of the contractor's facilities were to be in the hands of the contractor." Id. at 529-30, 93 S. Ct. at 2220. See United States v. Orleans, 425 U.S. at 815, 96 S. Ct. at 1976. Similarly, the broad responsibilities assumed by GHC under the United States-GHC construction contract make clear that the Government had no right to supervise the detailed physical performance of GHC's construction in the National Visitor Center.

 Moreover, many courts have permitted the Government to exercise greater supervisory powers over the contractor than in the instant case without altering the contractor's legal status from an independent contractor to an agent or servant. For example, in Alexander v. United States, 605 F.2d 828 (5th Cir. 1979), the Fifth Circuit rejected plaintiff's claim that the authority the Government exercised under its safety program at an ammunition plant constituted day-to-day supervision of its contractor. Id. at 834. Rather, the court reasoned that the Government's supervision was "only a means of monitoring compliance with the contract and with government safety regulations." Id. In addition, the Tenth Circuit has reasoned that "(t)he fact that the contract may have reserved to the United States the right to inspect the work and facilities of the independent contractor, and the right to stop the work, does not in itself override or alter the general rule of nonliability for the torts of the contractor." United States v. Page, 350 F.2d 28, 31 (10th Cir. 1965), cert. denied, 382 U.S. 979, 86 S. Ct. 552, 15 L. Ed. 2d 470 (1966).

 Because the Government usually receives a right of general supervision in contracts with private parties in order to ensure that the contract obligations are being met, see Harris v. Pettibone Corp., 488 F. Supp. 1129, 1135 (D.Tenn.1980); Kropp v. Douglas Aircraft Co., 329 F. Supp. 447, 468-69 (E.D.N.Y.1971), "the fact of broad, supervisory control or even the potential to exercise even detailed control, cannot convert a contractor into an agent." Gibson v. United States, 567 F.2d 1237, 1242 (3d Cir. 1977), cert. denied, 436 U.S. 925, 98 S. Ct. 2819, 56 L. Ed. 2d 768 (1978). Thus, many federal courts have "consistently held that the United States cannot be vicariously liable for injuries to workmen on Government construction sites, solely because the Government has retained control over the work and safety practices of the independent contractor whose negligence caused the injury." Id. at 1243.

 In the instant case, the United States-GHC contract provisions created no duty for the Government to provide for the safety of GHC's employees since the safety of GHC's employees was under the exclusive control and supervision of GHC. Although the Government retained the right to inspect GHC's work, this authority was insufficient to shift GHC's status from an independent contractor to a servant or agent. As a result, the United States should not be liable for any negligent acts by GHC which contributed to plaintiff's fall.

 Nevertheless, plaintiff claims that the Government had a duty to provide for the safety of GHC's employees because such a duty could not be delegated to GHC under the United States-GHC contract provisions. Plaintiff makes two arguments in support of this theory of nondelegability. First, plaintiff contends that District of Columbia Construction Regulations imposed a duty upon the Government to maintain reasonably safe working conditions on the construction site. Second, plaintiff maintains that since his work on ...

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