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Grogan-Fuller v. United States

United States District Court, District of Columbia

March 25, 2019

STEPHANIE GROGAN-FULLER, Plaintiff,
v.
UNITED STATES OF AMERICA and REPAINTEX COMPANY, et al. Defendants.

          MEMORANDUM OPINION

          Emmet G. Sullivan United States District Judge.

         Stephanie Grogan-Fuller brings this action against the United States and two federal contractors, Repaintex Company (“Repaintex”) and Trademasters Service, Inc. (“Trademasters”). Ms. Grogan-Fuller alleges that she was injured when she slipped and fell on water that had accumulated on the floor of a building owned, operated, and maintained by the federal government. Invoking the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 1346, her complaint includes claims for negligence and vicarious liability against the government.

         Pending before the Court is the government's motion to dismiss the negligence and vicarious liability claims for lack of subject matter jurisdiction. Upon consideration of the motion, the opposition and the reply thereto, the applicable law, the entire record, and for the reasons stated below, the Court DENIES the government's motion to dismiss.

         I. Background

         A. Factual Background

         In December of 2015, Ms. Grogan-Fuller was walking down a hallway of the west wing of the Orville Wright Building (“Wright Building”) in Washington D.C. when she slipped on water that had accumulated on the floor as a result of a water leak. Amended Compl., ECF No. 20 ¶ 9. She fell to her knees and sustained serious injuries. Id. ¶¶ 9-12. At the time she sustained her injuries, Repaintex, a government contractor, provided facility maintenance and janitorial services for the Wright Building. Id. ¶ 5. Trademasters, also a government contractor, provided operations and maintenance services for the Wright Building. Id. ¶ 6.

         Ms. Grogan-Fuller brought suit against the government and the two contractors based on the injuries she sustained as a result of the fall. See generally Id. She sues the government under the FTCA, alleging that the government was negligent in failing to inspect the hallways to ensure that dangerous conditions did not exist, and vicariously liable for the negligence of the two contractors. See Id. ¶¶ 13-18, 31-34.

         The government has moved to dismiss this case for lack of subject matter jurisdiction. In support of its motion to dismiss, the government attaches the declarations of Calvert Jones, United States General Services Administration (“GSA”) Building Manager for the Wright Building, and Elaina Walker, GSA's Supervisory Contract Specialist. See Decl. of Calvert Jones (“Jones Decl.”), ECF No. 15-2; Decl. of Elaina Walker (“Walker Repaintex Decl.”), ECF No. 15-3; Decl. of Elaina Walker (Walker Trademasters Decl.”), ECF No. 15-4. The government also attaches the respective contracts between the government and the contractors. See Walker Repaintex Decl., Ex. B., ECF No. 15-5; Walker Trademasters Decl., Ex. C., ECF No. 15-6. The declarations and contracts detail the obligations and responsibilities of the government with respect to the contractors.[1]

         B. Contractual Provisions

         1. Repaintex Contract

         In her role as Contract Specialist, Ms. Walker explains that she is responsible “for the creation and implementation of contracts dealing with custodial services” and that at the time Ms. Grogan-Fuller's accident occurred, she was in charge of the “implementation of the custodial services contract that was in effect at the [Wright Building].” Walker Repaintex Decl., ECF No. 15-3 ¶¶ 2-3. Ms. Walker attached to her declaration the contract awarded to Repaintex for custodial services. Id. Ex. B., ECF No. 15-5.

         Section C of the contract, entitled “Description/ Specification/ Statement of Work” sets forth the general parameters of the work to be performed by Repaintex. Id. at 18.[2]Several provisions in Section C relate to the maintenance of floors. Repaintex was required to “[f]urnish all personnel, labor, equipment, materials, tools, supplies, supervision, management . . . and services, except as may be expressly set forth as Government furnished.” Id. at 21. Section C also states that Repaintex shall “[b]e responsible to make the management and operational decisions to meet the quality performance standards required under this contract.” Id.

         With respect to the accumulation of water on the floor, Section C states that “[t]he performance of the cleaning at building(s) shall take place between the hours of 6:00 a.m. and 9:00 p.m.” and that on a daily basis “[Repaintex] will furnish the [Contract Officer's Representative Designee] 64 man-hours per day to perform support services . . . includ[ing] but not limited to” responding to “[s]ervice complaints, ” “cleanup work made necessary by toilet floods and similar occurrences” and “[p]rovid[ing] additional cleaning and servicing requirement[s] as identified by the [Contracting Officer's Representative Designee.]” Id. at 22. The contract further states that “[t]he person(s) performing the support service duties will take instruction only from the GSA Buildings Manager or his designee during the 64 hours assigned to GSA.” Id. (emphasis in original). Section C also provides that “[Repaintex] shall make reasonable efforts to assist the Government to prevent hazardous conditions and property damage.” Id. at 34.

         Section C contains a carve out for service calls made by the government to the contractor's workers. Section C defines service calls as “standard service requirements, such as nonrecurring requests for rearranging furniture in a conference room, special events support, spills, replenishing restroom supplies, etc.” Id. at 20. Service calls which the Contracting Officer or her designee ...


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