SAIC and Dawson are responsible for the performance of the construction. Accordingly, absent compliance with FED. R. CIV. P. 56(f), the plaintiff cannot contend that he needs a period of discovery to respond to the defendant's motion.
II. Negligence Claim
The plaintiff bases Count I of his complaint on negligence in failing to erect and maintain adequate safety devices around the air shaft in which plaintiff fell. However, as the Request for Proposals applicable to the SAIC contract and the contract itself provide, both attached as exhibits to the defendant's motion, the duty to provide safety measures was specifically delegated to SAIC and Dawson. Accordingly, the government is not liable under the FTCA for acts or omissions of the contractors in providing and maintaining safety devices. See Borquez v. United States, 773 F.2d 1050, 1052 (9th Cir. 1985); Jennings v. United States, 530 F. Supp. 40, 45 (D.D.C. 1981).
III. Strict Liability Claim
The plaintiff bases Count II of his complaint on a theory of strict liability and contends that the air-shaft in which the plaintiff was injured was a "dangerous instrumentality owned and/or operated by the defendant . . . ." The defendant does not rely upon any matters outside of the pleading in its motion to dismiss Count II and accordingly the plaintiff cannot contend that this motion should be treated as one for summary judgment pursuant to FED. R. CIV. P. 56. The plaintiff fails to oppose the defendant's contention that lawsuits against the government arising in strict or absolute liability are not actionable. Accordingly, this Court treats the defendant's motion to dismiss Count II as conceded by the plaintiff pursuant to Rule 108(b) of the Rules of the United States District Court for the District of Columbia (Jan. 1, 1990).
Even if this Court did not deem the issue conceded, the law is well-settled that the government cannot be held strictly or absolutely liable under the FTCA for ultrahazardous activity. See Jennings v. United States, 530 F. Supp. 40, 45 (D.D.C. 1981). Moreover, even if the plaintiff could employ an "inherently dangerous activity" theory under the FTCA, the plaintiff still cannot demonstrate that building an air-shaft in which he fell is an inherently dangerous activity. As the court in Jennings ruled in an analogous context: "If working on scaffolding and walkways were held to be an inherently dangerous activity, then all construction projects would be classified as inherently dangerous activities. Such a holding would expand the 'inherently dangerous activity' theory far beyond its proper scope." Id.
Accordingly, it hereby is
ORDERED that the defendant's motion to dismiss be, and the same hereby is, GRANTED; and it is further
ORDERED that the plaintiff's complaint be, and the same hereby is DISMISSED; and it is further
ORDERED that the defendant's third-party complaint be, and the same hereby is, DISMISSED as moot.
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