The opinion of the court was delivered by: Colleen Kollar-kotelly United States District Judge
Currently pending before the Court are a variety of dispositive motions filed by the Defendants in this action, the United States of America and the General Services Administration ("GSA") (collectively the "Federal Defendants") and Consolidated Engineering Services, Inc. ("CESI") (together with the Federal Defendants, "Defendants"), a contractor that contracted with GSA to perform maintenance and repairs on the Heating Operation and Transmission District ("HOTD") Steam Distribution Complex ("SDC") located in Washington, DC and owned by the United States. Plaintiff Matthew M. Hsieh brings this suit on behalf of himself and his minor daughter, Natalie T. Hsieh, alleging that both Plaintiffs sustained severe burns when they were struck by a vapor emitted from a sidewalk grate as Mr. Hsieh pushed his daughter over the grate in a carriage. Plaintiffs allege that their injuries were caused by Defendants' joint and several negligence.
Defendant CESI has brought a cross-claim against the Federal Defendants seeking indemnification and/or contribution in the event that any damages are imposed upon CESI based on Plaintiffs' claims. CESI has also asserted a counterclaim against Mr. Hsieh, alleging contributory negligence and seeking contribution from Mr. Hsieh in the event that damages are imposed upon CESI.*fn1 The Federal Defendants have likewise asserted a cross-claim against CESI, seeking contractual and/or common law indemnity and/or contribution from CESI in the event that any damages are imposed upon the Federal Defendants.
The parties have completed both fact and expert discovery in this case, and Defendants have filed a variety of dispositive motions. Specifically, the Federal Defendants have filed a Motion to Dismiss or, in the Alternative, for Summary Judgment in which they argue: (1) that Plaintiffs' injuries were caused by CESI's acts or omissions, such that the Court lacks jurisdiction to hear both Plaintiffs' claims and CESI's cross-claim against the Federal Defendants because of the independent contractor exception to the Federal Tort Claims Act ("FTCA"); (2) that the SDC Contract requires CESI to indemnify and hold harmless the Federal Defendants for the incident that caused Plaintiffs' injuries; (3) that any duty on the part of the Federal Defendants to warn Plaintiffs of a danger was fully and validly delegated to CESI via the SDC Contract; and (4) that Plaintiffs cannot show that the Federal Defendants had actual or constructive notice of a hazard. See generally Docket No. . Both CESI and Plaintiffs oppose this Motion. See Docket Nos.  and .
CESI has also filed a Motion for Partial Summary Judgment on the Federal Defendants' cross-claim against CESI, in which it argues that the terms of the SDC Contract do not allow the Federal Defendants to seek indemnification or contribution from CESI for their own negligence. See Docket No. . Finally, both Defendants have filed a Joint Motion for Summary Judgment against Mr. Hsieh, arguing that he cannot recover on his claim because he was contributorily negligent, see Docket No. , and CESI has filed a separate Motion for Summary Judgment against Mr. Hsieh, arguing that if he is found to be contributorily negligent, CESI is entitled to indemnification and/or contribution from Mr. Hsieh as to any damages that may be imposed on CESI, see Docket No. .
The Court has thoroughly reviewed all of the parties' filings in connection with the foregoing motions, as well as the exhibits attached thereto, the relevant statutes and case law, and the entire record herein. In so doing, the Court has found that, although the Federal Defendants flatly assert that Plaintiffs' injuries were caused by CESI's negligence, in reality, a significant factual question exists as to the proximate cause of Plaintiffs' injuries. Specifically, while it is undisputed that the vapor that allegedly injured Plaintiffs was caused by water entering the SDC, the record reveals a genuine issue as to whether that water came from a leaking valve, a larger systemic problem of water leaking into the SDC, or both. The SDC Contract delegated to CESI the responsibility for inspecting the SDC and performing preventative maintenance and repairs under $1,000 (hereinafter "minor repairs"), but provided that GSA retained responsibility for capital improvements and repairs over $1,000 (hereinafter "major repairs"). As such, while the Court concludes that the independent contractor exception applies to the inspection, preventative maintenance, and minor repairs of the SDC--and therefore grants-in-part the Federal Defendants'  Motion to Dismiss, and dismisses CESI's cross-claim and Plaintiffs' claims insofar as they are premised on those activities--a possibility still remains that Plaintiffs' injuries were proximately caused by a lack of capital improvements or major repairs that were not delegated to CESI under the SDC Contract.
This real possibility raises another threshold jurisdictional issue not addressed by any party in its briefing: whether the Federal Defendants' decisions as to capital improvements and major repairs fall within the scope of the discretionary function exception to the FTCA. If the discretionary function exception applies, the Court entirely lacks jurisdiction to entertain Plaintiffs' claims and CESI's cross-claim against the Federal Defendants. As the parties have neither briefed nor developed the record in a manner sufficient to allow the Court to determine whether the discretionary function exception applies in this case, the Court shall require the parties to submit briefing on that issue pursuant to the schedule set forth in the Order accompanying this Memorandum Opinion. Further, the potential application of the discretionary function exception in this case requires that the Court deny without prejudice CESI's  Motion for Partial Summary Judgment because if the Court lacks jurisdiction over Plaintiffs' negligence claims against the Federal Defendants, the Federal Defendants will have no need to seek indemnification or contribution from CESI. As the Court discusses in greater detail below, the factual question as to the proximate cause of Plaintiffs' injuries and the unbriefed question of the discretionary function exception's application in this case also precludes the Court from resolving a number of other issues raised by the parties in their briefs at this time. These include whether the Federal Defendants delegated their duty to warn, whether they had actual or constructive notice of a hazard, and whether CESI can benefit from the so-called government contractor defense. As such, the Court shall deny the parties' motions without prejudice insofar as they are based on those issues.
Finally, it is clear from the record before the Court that the question of Mr. Hsieh's alleged contributory negligence must be left for the jury to resolve at trial. As such, the Court shall DENY Defendants'  Joint Motion for Summary Judgment against Mr. Hsieh, DENY CESI's  separate Motion for Summary Judgment against Mr. Hsieh, GRANT-IN-PART and DENY-IN-PART WITHOUT PREJUDICE the Federal Defendants'  Motion to Dismiss or, in the Alternative, for Summary Judgment, and DENY WITHOUT PREJUDICE CESI's  Motion for Partial Summary Judgment.
The Court begins its discussion of the facts by noting that it strictly adheres to the text of Local Civil Rule 56.1 (identical to Local Civil Rule 7(h) (formerly Rule 7.1(h)). The local rules for summary judgment "assist the district court to maintain docket control and to decide motions for summary judgment efficiently and effectively." Jackson v. Finnegan, Henderson, Farabow, Garret & Dunner, 101 F.3d 145, 150 (D.C. Cir. 1996). "Requiring strict compliance with the local rule is justified both by the nature of summary judgment and by the rule's purposes. . . . The procedure contemplated by the rule thus isolates the facts that the parties assert are material, distinguishes disputed from undisputed facts, and identifies the pertinent parts of the record." Id. (quoting Gardels v. CIA, 637 F.2d 770, 773 (D.C. Cir. 1980)). "[A] district court should not be obliged to sift through hundreds of pages of depositions, affidavits, and interrogatories in order to make [its] own analysis and determination of what may, or may not, be a genuine issue of material fact." Id. (quoting Twist v. Meese, 854 F.2d 1421, 1425 (D.C. Cir. 1988)). As such, in resolving the pending summary judgment motions, this Court "assumes that facts identified by the moving party in its statement of material facts are admitted, unless such a fact is controverted in the statement of genuine issues filed in opposition to the motion." LCvR 56.1.
In the instant case, each party has submitted a statement of material facts in support of its motion for summary judgment, and each opposing party has responded with an opposing statement of material facts. The Court cites to these statements as appropriate in this Background section, referring to opening statements of material fact as the party's "Statement" ("Stmt.") and referring to opposing statements of material fact as the "Opposition Statement" ("Opp'n Stmt."). In addition, where appropriate, the Court cites directly to undisputed facts in the record to supplement the facts identified by the parties.
A. Plaintiffs and the Events Underlying Their Second Amended Complaint
Plaintiff Matthew M. Hsieh is a licensed physician employed as a staff clinician with the National Institutes of Health. Defs. CESI, United States and GSA's Stmt. of Mat'l Facts as to Which There is No Genuine Dispute (hereinafter "Defs.' Joint Stmt.") ¶ 1; M. Hsieh's Opp'n Stmt. of Mat'l Facts Not in Dispute (hereinafter "M. Hsieh Opp'n Stmt."). Mr. Hsieh is the father of co-plaintiff Natalie T. Hsieh, who was three-and-a-half years old on September 11, 2004, when the incident giving rise to the claims in this action occurred. Defs.' Joint Stmt. ¶ 1; M. Hsieh Opp'n Stmt. On September 11, 2004--a sunny day with the temperature in the 70s--Mr. Hsieh and his daughter walked from the Spy Museum to the FBI Building located at 10th Street and Pennsylvania Avenue, NW, in Washington, DC. Defs.' Joint Stmt. ¶¶ 4-5, M. Hsieh Opp'n Stmt. ¶ 1. Mr. Hsieh pushed his daughter in a stroller. Defs.' Joint Stmt. ¶ 6; M. Hsieh Opp'n Stmt. Plaintiffs were accompanied by a friend visiting from out of town who wanted to have her picture taken in front of the FBI Building. Defs.' Joint Stmt. ¶ 7; M. Hsieh Opp'n Stmt.
While taking his friend's picture, Mr. Hsieh noticed a vapor being emitted from a grate in the sidewalk near where he was standing, but "didn't think much of it." Defs.' Joint Stmt. ¶¶ 9-10; M. Hsieh Opp'n Stmt. ¶ 2; Defs.' Joint Ex. 1 (4/3/07 M. Hsieh Dep.) at 32:11-15.*fn2 The manhole under the grate in question is known as Manhole 42. Fed. Defs.' Stmt. of Mat'l Facts as to Which There is No Genuine Issue ("Fed. Defs.' Stmt.") ¶ 10; CESI Stmt. of Mat'l Facts in Genuine Dispute in Opp'n to Fed. Defs.' MTD/MSJ ("CESI Opp'n Stmt.") ¶ 10. After taking his friend's picture, Mr. Hsieh walked over the grate above Manhole 42, while pushing his daughter in her stroller. Defs.' Joint Stmt. ¶ 11; M. Hsieh Opp'n Stmt. During his deposition in this matter, Mr. Hsieh testified that he did not recall sensing that the vapor coming out of the grate was hot as he approached it, and that he did not "feel any intensity of heat or rise in temperature" as he approached the grate. M. Hsieh Opp'n Ex. 1 (4/3/07 M. Hsieh Dep.) at 41:10-16. He further testified that "[w]hen the emissions touched [his] skin, [he] thought this was warmer than what [he had] usually experienced," id. at 41:21-42:1, and "that it felt like there was, sort of, low-grade burning immediately after and sort of, you know, staying after," id. at 42:2-6. It is undisputed that there were no warnings posted in the area of the grate above Manhole 42. M. Hsieh Opp'n Stmt. ¶ 3. Plaintiffs allege that both of them sustained severe burns when they were struck by the vapor emitted from the grate. Second Am. Compl. ¶¶ 6, 18.
Also during his deposition, Mr. Hsieh testified that he could have gone in "[a] few different directions" other than over the grate, but that "given where we were . . . the most logical way we would have gone was where we went," and that the path he took "was just more convenient." Defs.' Joint Ex. 1 (4/3/07 M. Hsieh Dep.) at 87:17-88:19. In addition, Mr. Hsieh acknowledged that he had come in contact with sidewalk grates emitting vapors before and had noticed the vapors "to be at least warm." id. at 18:2-6. Finally, Mr. Hsieh testified, based on his previous experience with grates emitting vapors, that "[i]f you are in the wintertime. . . the emitted things are warmer than the ambient . . . environmental temperature." Defs.' Joint Ex. 1 (4/3/07 M. Hsieh Dep.) at 85:5-12.
B. Defendants and the Facts Relevant to Their Cross-Claims
As an initial matter, the Court notes the Federal Defendants and CESI proffer different versions of the SDC Contract in support of their dispositive motions. Specifically, the Federal Defendants proffer a revised, "red-lined" version of the SDC Contract, while CESI proffers the original Base Award contract issued to D&Z and asserts that "the original base contract was never changed by a proper modification." See Fed. Defs.' MTD/MSJ, Ex. 3 (Revised SDC Contract); CESI MSJ, Ex. 1 (SDC Contract); CESI MSJ at 5. In response, the Federal Defendants assert that:
On May 3, 2007, during the deposition of Mike Vrobel, GSA Contracting Officer for the contract, the correct version of the contract for the second option year (the option year during which the alleged incident occurred) was entered as Exhibit 1. This is the version the parties agreed to as the correct version of the contract, and it is this version that the United States cites to . . . .
Fed. Defs.' Opp'n to CESI Mot. for PSJ ("Fed. Defs.' Opp'n) at 1 n.1.
Indeed, during his deposition, Mr. Vrobel appears to have identified the "edited revised scope of work and services" as "the contract that was in place between GSA and [CESI] as of September 11, 2004," and stated that he "reviewed it,  signed it and the contractor signed it too." Fed. Defs.' Opp'n, Ex. 1 (5/3/07 Vrobel Dep.) at 5:9-6:1. The Federal Defendants also assert that "CESI's prior counsel stipulated to the contract version that the United States relies upon in its briefing," Fed. Defs.' Reply in Support of MSJ ("Fed. Defs.' Reply) at 2 n.2; however, they do not proffer a copy of such a stipulation and none is filed on the docket in this case. Likewise, CESI does not proffer any declaration or other evidence in support of its assertion that the operative contract between GSA and CESI as of September 2004 was the original base award. It therefore appears, based on Mr. Vrobel's testimony, that the Federal Defendants have proffered the proper version of the SDC Contract.
Nevertheless, for purposes of this Memorandum Opinion, the Court notes that the Federal Defendants have largely admitted the descriptions of the operative contract provisions proffered by CESI in its Statement of Material Facts in support of its Motion for Summary Judgment. See CESI Stmt.; Fed. Defs.' Opp'n Stmt. at 1. As such, where possible, the Court relies upon those descriptions, notwithstanding the fact that they are based upon the older, unedited version of the SDC Contract. The Court cites to the actual contract language only when necessary, and notes that insofar as the relevant language does not differ between the two versions of the contract, the parties' dispute regarding the operative contract version is immaterial.
Turning back to the relevant facts, the United States, through GSA, issued a solicitation dated May 25, 2001 requesting proposals concerning maintenance and repair of the SDC. CESI Stmt. of Mat'l Facts as to Which There is No Genuine Issue (hereinafter "CESI Stmt.") ¶ 1; Fed. Defs.' Resp. to CESI's Stmt. (hereinafter "Fed. Defs.' Opp'n Stmt.) at 1. The SDC "consists of approximately 7 miles of tunnels and 5 miles of direct-buried pipelines, supplying 250-psi saturated (406 degrees F) steam to approximately 100 government buildings and monuments in downtown Washington, DC." Fed. Defs.' MTD/MSJ, Ex. 3 (Revised SDC Contract) at 84; CESI MSJ, Ex. 1 (SDC Contract) at 78. The Federal Defendants prepared and drafted the eventual contract, numbered GS-11P-01-YMC-0085 (hereinafter the "SDC Contract"), which was awarded to Day & Zimmerman Services, Inc. on January 22, 2002. CESI Stmt. ¶ 2; Fed. Defs.' Opp'n Stmt. ¶ 2. The SDC Contract was amended by the Federal Defendants and D&Z twice to exercise options to extend the term of the contract, first for a 12-month period, effective March 1, 2003 to February 28, 2004, and then for a second 12-month period, effective March 1, 2004 to February 28, 2005. CESI Stmt. ¶¶ 3-4; Fed. Defs.' Opp'n Stmt. ¶¶ 3-4.
On or about July 9, 2004, GSA, D&Z, and CESI entered into a novation agreement in which CESI agreed to be bound by and to perform the SDC Contract in accordance with the conditions contained therein. Fed. Defs.' Stmt. ¶ 2; CESI Opp'n Stmt. ¶ 32. CESI assumed all obligations and liabilities of, and all claims against, D&Z, and ratified all previous actions taken by D&Z with respect to the SDC Contract with the same force and effect as if the action had been taken by CESI. Id. CESI assumed performance of the SDC Contract effective August 30, 2004. Fed. Defs.' Stmt. ¶ 3; CESI Stmt. ¶ 5. In so doing, CESI agreed to perform maintenance and repair services for the SDC, including all tunnels, vaults, manholes, and sump pumps associated with the SDC. CESI Stmt. ¶ 7; CESI MSJ, Ex. 1 at 17; Fed. Defs.' Opp'n Stmt. at 1; Fed. Defs.' MTD/MSJ, Ex. 3 at 22. The SDC Contract proscribed a specific schedule for CESI to perform inspections and preventative maintenance: tunnels were to be inspected weekly and manholes monthly, with preventative maintenance on each of the twelve zones of the SDC to be performed in the month corresponding to the zone number, e.g., maintenance for Zone 1 was to be performed in January, etc. CESI Stmt. ¶ 8; Fed. Defs.' Opp'n Stmt. at 1.
The SDC Contract provided that CESI was "responsible for the day-to-day inspection and monitoring of all Contractor work performed to ensure compliance with contract requirements." CESI MSJ, Ex. 1 at 29; Fed. Defs.' MTD/MSJ, Ex. 3 at 35. The SDC Contract also required that "a full-time project manager be assigned to the project" by CESI, and provided that the "project manager will be fully responsible for administering personnel, directing work, and interfacing with the Government." CESI MSJ, Ex. 1 at 17; Fed. Defs.' MTD/MSJ, Ex. 3 at 22. It is undisputed that the SDC Contract provided GSA with the right to inspect work performed by CESI for purposes of evaluating CESI's compliance with its obligations under the SDC Contract. See CESI MSJ, Ex. 1 at 30; Fed. Defs.' MTD/MSJ, Ex. 3 at 36. Beyond that, the parties dispute the degree to which the Federal Defendants could otherwise supervise and/or control CESI's performance of the SDC Contract.
Specifically, CESI notes that the SDC Contract identified the "staff of Government employees at GSA  who are specifically dedicated to direct supervision and execution of [SDC] maintenance and repair work, and to facilitation and quality assurance of contractor maintenance and repair work in [the SDC]." CESI MSJ, Ex. 1 at 79; Fed. Defs.' MTD/MSJ, Ex. 3 at 85. CESI also stresses that the SDC Contract provided for CESI to "perform preventative maintenance on all equipment in accordance with Government checklists" included in the SDC Contract, which "define the procedures for inspecting components located in the [SDC]." CESI Stmt. ¶ 10; Fed. Defs.' Opp'n Stmt. at 1; CESI MSJ, Ex. 1 at 18, 80-89; Fed. Defs.' MTD/MSJ, Ex. 3 at 23, 86-95.
Under the terms of the SDC Contract, CESI was responsible for performing minor repairs and replacements, and for setting the schedule for those repairs and replacements, which could be overridden by GSA's Contracting Officer. CESI MSJ, Ex. 1 at 19-20; Fed. Defs.' MTD/MSJ, Ex. 3 at 25-26. CESI was required to give GSA advance notice of any repairs that required interruptions of service to federal buildings, and to schedule such repairs at the convenience of the government. CESI MSJ, Ex. 1 at 22; Fed. Defs.' MTD/MSJ, Ex. 3 at 29. In addition, CESI could not shut down the SDC system or any portion of the system if necessary for a repair. CESI Stmt. ¶ 14; Fed. Defs.' Opp'n Stmt. ¶ 14.*fn3
In addition to performing minor repairs and replacements, the SDC Contract obligated CESI to assist with major repairs or replacements. Such repairs, however, had to be approved by GSA, and GSA's Contracting Officer had the right to set the schedule. CESI Stmt. ¶ 11; Fed. Defs.' Opp'n ...