United States District Court, District of Columbia
G. Sullivan United States District Judge.
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.
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
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.
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.
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
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.
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.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.”
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.
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