United States District Court, District of Columbia
August 28, 2002
DOROTHY COOPER, PLAINTIFF,
UNITED STATES GOVERNMENT AND GENERAL SERVICES ADMINISTRATION, DEFENDANTS
The opinion of the court was delivered by: John M. Facciola, United States Magistrate Judge.
This Federal Tort Claims Act ("FTCA") matter has been referred to me
purposes under LCvR 73.1. For the reasons set forth below, I will
grant defendant's motion for summary judgment.
Plaintiff, Dorothy Cooper, brings this FTCA suit pursuant to 28
U.S.C.A. § 2672 (1994), et seq., alleging that the Government
Services Administration ("GSA") was negligent.
Plaintiff admits that there is no genuine issue of material fact as to
1. Government Services, Inc. ("GSI"), a private
contractor, entered into a contract with the United
States to operate cafeterias, lunch counters, and
vending equipment for the convenience and benefit of
government employees in buildings under the
jurisdiction of the GSA, a federal agency.
2. The Department of Labor, located at 3rd and C
Streets, N.W., Washington, DC, is one of the buildings
where GSI operates a cafeteria.
3. Plaintiff's injuries occurred in the course and
scope of her employment with GSI at the Department of
4. Under the contract, GSA was obliged to provide what
the contract called "original equipment required for
satisfactory operation" to include stoves, ovens, and
hot food holding equipment.
5. GSI was required by the contract to make all
repairs, major and minor, to government owned
Plaintiff alleges that, on August 5, 1999, she was instructed by her
supervisor to clean under the kitchen counters. She asserts that a cover
on a transformer box was off on that date and that her hand hit wires in
the transformer box and she received a severe electrical shock. Complaint
for Negligence ("Compl."), ¶ 7.
She also alleges that on November 22, 1999, she was cleaning a warmer
which she discovered later had a worn and exposed wire. Again, she
sustained a severe electrical shock. Id., ¶ 9. She asserts that the
defendants, the GSA and the United States, "failed to maintain the
electrical appliances and let them rune down to a state of disrepair and
defectiveness to the extent, that the items in question, had become a
hazard to Plaintiff and all in the vicinity." Id., ¶ 10. Plaintiff
asserts as a separate count of negligence that defendants had a duty to
maintain the kitchen equipment in the Department of Labor and "to warn
Plaintiff of the defective and hazardous condition of the electrical
equipment." Id., ¶¶ 13-14.
Thus, plaintiff proceeds upon two theories of negligence, that the two
federal defendants had a duty to maintain the electrical appliances that
hurt her and that they had a duty to warn her of the equipments'
Under Rule 56(c) of the Federal Rules of Civil Procedure, a court must
enter summary judgment if there is "no genuine issue as to any material
fact and if the moving party is entitled to a judgment as a matter of
law." See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). As
to genuineness, Rules 56(c) and (e) require the non-movant to point to
specific evidence that would permit a reasonable jury to return a verdict
for the non-movant. Anderson v. Liberty Lobby, Inc., 477 U.S. at 248;
Matsushita Elec. Indust Co. Ltd v. Zenith Radio
Corp. 475 U.S. 574, 586
(1986); Flemmings v. Howard Univ., 198 F.3d 857, 860 (D.C. Cir. 1999);
Anderson v. Zubieta, 180 F.3d 329, 338 (D.C. Cir. 1999). Furthermore, the
court must draw all reasonable inferences in the non-movant's favor.
Flemmings v. Howard Univ., 198 F.3d at 860; Anderson v. Zubieta, 180 F.3d
Under the FTCA, the federal government is liable to the same extent as
a private party for any "personal injury or death caused by the negligent
or wrongful act or omission of any federal employee of the government who
is acting within the scope of their employment . . ." 28 U.S.C.A. §
1346(b)(1); See United States v. Orleans, 425 U.S. 807, 813 (1976);
Cannon v. United States, 645 F.2d 1128, 1133 (D.C. Cir. 1981). The FTCA
was never intended, and has not been construed by the Supreme Court, to
reach outside this narrow waiver of immunity. U.S. v. Orleans, 425 U.S.
The FTCA only waives immunity for the actions of federal government
"employees." The Act defines government employees to include officers and
employees of "any federal agency," but excludes "any contractor with the
United States." 28 U.S.C.A. § 2671. Since the federal government can
only be liable to this limited extent, it is critical to distinguish
between a federal agency and an independent contractor. See U.S. v.
Orleans, 425 U.S. at 814 (citing Dalehite v. United States, 346 U.S. 15,
In Logue v. United States, 412 U.S. 521, 528 (1973), the Supreme Court
defined an independent contractor as "a person who contracts with another
to do something for him but who is not controlled by the other nor
subject to the other's right to control with respect to his physical
conduct in the performance of the undertaking." Id. at 527 (citing
Restatement (Second) of Agency § 2 (1958)). Specifically, the Court
ruled that whether the party is an independent contractor depends on the
ability of the United States "to control the detailed physical
performance of the contractor." Id. at 528. In addition, the Court ruled
that the important question in determining whether the party is an
independent contractor is "not . . . that it must comply with federal
standards and regulations, but whether its day-to-day operations are
supervised by the federal government." U.S. v. Orleans, 425 U.S. at 815.
See also Logue v. U.S., 412 U.S. 527; Cannon v. U.S., 645 F.2d 1134;
Hockman v. U.S., 741 F. Supp. 5 (D.D.C. 1990). This same distinction is
also the relevant standard in the District of Columbia. Rose v. Silver,
394 A.2d 1368 (D.C. 1978).
Thus, a contractor must adhere to federal regulations does not render
it an agency of the United States. As the Supreme Court noted in
[T]he government (by contract) may fix specific and
precise conditions to implement federal objectives.
Although such regulations are aimed at assuring
compliance with goals, the regulations do not convert
the acts of entrepreneurs or of state governmental
bodies into federal government acts.
U.S. v. Orleans, 425 U.S. at 815, 816 (citing Jackson v. Metropolitan
Edison Co., 419 U.S. 345
In the case at bar, while the contract required GSA to provide
"original equipment required for satisfactory operation" to include
stoves, ovens and hot food
holding equipment, it required GSI to "[m]ake
all repairs, minor and major, to government-owned equipment." Contract,
¶ III (11). Since the contract imposed the entire responsibility for
maintenance of all government equipment upon GSI, without GSA reserving
any right whatsoever to control how and when GSI made those repairs, GSI
was unquestionably an independent contractor as to those repairs. When
the United States delegates a responsibility to an independent
contractor, it is not responsible in tort for the independent
contractor's negligent performance of that responsibility. Hockman v.
United States, 741 F. Supp. 5, 7 (D.D.C. 1990) (citing Borquez v. United
States, 773 F.2d 1050, 1052 (9th Cir. 1985)); Jennings v. United States,
530 F. Supp. 40 (D.D.C. 1981). See Hall v. United States, 825 F. Supp. 427
(D.N.H. 1993); Smith v. United States, 674 F. Supp. 683, 686 (D.Minn.
1987). Indeed, any other rule would nullify the independent contractor
exemption in the FTCA.
Plaintiff asserts, however, that, because GSA reserved the right to
approve the replacement of equipment,*fn1 GSI was an agent,*fn2 not an
independent contractor. Plaintiff's Opposition to Defendants Motion to
Dismiss at 3-4. However, courts have allowed the government extensive
flexibility in the amount of supervision it exerts over a contractor
before it will deem that contractor an agent and its acts the acts of the
United States. In fact, the amount of control that GSA retained in this
case was minimal, especially when compared to other cases where courts
have found that the agent was an independent contractor despite the
retention of supervision by the federal government. In Jennings v. United
States, 530 F. Supp. 40 (D.D.C. 1981), the court ruled that the
government's retention of the ability to inspect the contractor's work is
insufficient to shift contractor's status from an independent contractor
to a servant or agent. Id. at 43 (citing Logue v. U.S., 412 U.S. at
527). In addition, the Tenth Circuit has ruled 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). See also Alexander v. United States,
605 F.2d 828 (5th Cir. 1979). In this case, GSA did not reserve the right
to supervise GSI in the manner in which GSI repaired the government's
equipment or to inspect the quality of the repairs. GSA merely reserved
the right to approve the replacement of appliances that GSI deemed
irreparable. This minimal reservation by GSA does not change the status
of GSI from independent contractor to an employee or agent as to repairs
GSI made or failed to make.
Furthermore, plaintiff cannot possibly point to any evidence that would
convince the finder of fact that GSA's grant or denial of permission
under this term of the contract was the proximate cause of her injuries
on either occasion.
Plaintiff then argues that GSA's responsibility under the contract to
"maintain and repair . . . [the] electrical lines, and existing
ventilating and air conditioning lines all to the point of connection
with the concession equipment . . ." may serve as a predicate of its
liability. Contract, ¶ V (4). But, once again, she cannot point to
any evidence whatsoever that GSA's alleged failure to fulfill this
responsibility was the proximate cause of her injuries.
Finally, in order to eliminate any possible theory of liability before
granting summary judgment, I must note that the fact that the United
States owns the premises upon which the accidents occurred is
inconsequential. In the District of Columbia, a landowner must have
actual or constructive notice of a dangerous condition before she may be
held liable for failing to correct it. Croce v. Hall, 657 A.2d 307, 309
(D.C. 1995). Plaintiff does not point to any evidence that the federal
defendants had any advance notice of the allegedly dangerous conditions
that ultimately injured her.
Furthermore, the general rule in the District of Columbia is that an
employer is not liable for the physical harm caused by the acts or
omissions of its independent contractor. Wilson v. Good Humor Corp.,
757 F.2d 1293, 1301 (D.C. Cir. 1985). See, e.g., WMATA v. L'Enfant Plaza
Properties, Inc., 448 A.2d 864, 888 (D.C. Cir. 1982). This long-standing
rule is riddled with exceptions specifying certain conditions under which
employers may be held vicariously liable for the torts of their
contractors. See id. The exceptions fall into three broad categories: (1)
negligence of the employer in selecting, instructing, or supervising the
contractor, (2) non-delegable duties of the employer, arising out of some
relation toward the public, and (3) work which is specially, peculiarly,
or inherently dangerous. See Restatement (Second) of Agency, §
219 (1958). Assuming for the sake of the argument that these common law
exceptions apply to the independent contractor exception to the FTCA,*fn3
none apply here. The rationale of these exceptions is that, when they
apply, "the employer is in the best position to identify, minimize and
administer the risks involved in the contractor's activities." Wilson v.
Good Humor Corp., 757 F.2d at 1301. Here, an injury sustained due to
exposed wiring in the kitchen is a danger which the independent
contractor, not the government, is in the best position to warn against.
Certainly, a duty to warn must be coincident with the employer's
potential liability and in this case there is no predicate for that
For the reasons set forth, I shall grant defendant's motion for summary
judgment. A separate order accompanies this opinion. Additionally, I am
also entering final judgment for the defendants in accordance with
Federal Rule of Civil Procedure 58.
In accordance with the accompanying Memorandum Opinion, it is, hereby,
ORDERED that Defendant's Motion to Dismiss, Or Alternatively For Summary
Judgment [#13] is GRANTED.
Defendant's Motion to Dismiss, Or Alternatively for Summary Judgment
having been granted, it is therefore, hereby,
ORDERED that plaintiff take nothing, and that the action be dismissed
on the merits, with each party to bear her or its own costs and fees.