Dalessio v. U.S. Dep't of Hous. & Urban Dev.

528 F.Supp.3d 341

Stephen DALESSIO, Plaintiff

v.U.S. DEPARTMENT OF HOUSING & URBAN DEVELOPMENT, et al., Defendants

CIVIL ACTION NO. 20-3379

United States District Court, E.D. Pennsylvania.

Filed March 24, 2021

Kevin Weinstein, Vincent F. Presto, Master Weinstein Moyer, P.C., Philadelphia, PA, for Plaintiff.

Thomas Joseph O'Malley, Marshall Dennehey Warner Coleman & Goggin, Philadelphia, PA, for Defendants.

MEMORANDUM OPINION

NITZA I. QUIÑONES ALEJANDRO, J.

INTRODUCTION

In the amended complaint, Plaintiff Stephen Dalessio ("Plaintiff") brings this premises liability action under the Federal Tort Claims Act (the "FTCA"), 28 U.S.C. §§ 1346(b), 2671 - 2680, against, inter alia , the United States Department of Housing & Urban Development ("HUD"), seeking to hold HUD liable for injuries he allegedly sustained when he tripped and fell on an unsafe sidewalk on a property owned by HUD. [ECF 4]. Before this Court is a motion to dismiss filed by the United States of America, on behalf of HUD, pursuant to Federal Rule of Civil Procedure ("Rule") 12(b)(1), for lack of subject-matter jurisdiction.¹ [ECF 7]. Plaintiff opposes the motion.² [ECF 10]. The issues presented in the motion to dismiss have been fully briefed and are ripe for disposition. For the reasons set forth herein, the motion is granted and Plaintiff's claims against HUD/the United States are dismissed for lack of subject-matter jurisdiction.

BACKGROUND

As noted, Plaintiff asserts claims against HUD, premised on injuries he allegedly suffered when he tripped and fell on an unsafe sidewalk on a property owned by HUD in Philadelphia. [ECF 4]. The United States filed the instant motion to dismiss arguing that this Court lacks subject-matter jurisdiction over the claims asserted against it because these claims fall within the independent contractor exception and the discretionary function exception to the FTCA's waiver of sovereign immunity. The following facts are gleaned from Plaintiff's amended complaint and various documents attached to the United States’ motion to dismiss:³

On July 13, 2018, Plaintiff, an invitee, tripped and fell on an unsafe sidewalk located on the property of 937 North 65^th Street, Philadelphia, Pennsylvania—a property owned by HUD (the "Property"). As a result, Plaintiff suffered various injuries, including serious injuries to his left ankle, leg, and lower extremity. Plaintiff alleges that HUD was responsible for the inspection, maintenance, and repair of the sidewalk at the Property because HUD owns the Property and, therefore, is liable.

Seven months before Plaintiff's accident, HUD assigned the Property to non-party BLM Companies, LLC ("BLM") for property maintenance and preservation services. HUD made the assignment pursuant to a preexisting contract between HUD and BLM that required BLM, inter alia , to provide maintenance services to HUD-owned properties in Pennsylvania (the "HUD-BLM Contract").

Under the HUD-BLM Contract, BLM is responsible for the maintenance and preservation of various assigned properties without supervision or approval from HUD. In that regard, the HUD-BLM Contract provides the following relevant provisions:

• Subsection H.7 (Additional Responsibilities): "The Contractor shall take proper health and safety precautions to protect contractor's employees (including subcontractors), and the public ... The Contractor is responsible for any and all injuries/damages to persons and/or property resulting from the Contractor's performance under this contract." (HUD-BLM Contract, ECF 7-1, Ex. A, Attach. 1).

• Section C.5.2.2.1.2.1 (Health and Safety Hazards and Emergency Repairs) of the contract provides:

"The Contractor's responsibility to remedy Health and Safety Hazards and Emergency Repairs remains until the property closes and HUD is no longer responsible for its maintenance . The remedy of Health and Safety Hazards is a Contractor Expense. Examples of Health and Safety Hazards include but are not limited to ... trip hazards ...." (Id. ) (emphasis added).

• Section C.2.2 (Definitions) of the contract defines "Health and Safety Hazards" as "any condition or situation at the property that exposes the government to abnormal risk, that presents a source of danger, which could cause an accident, or poses the threat of injury, harm to the public or property that must be corrected within one (1) day of discovery or notification." (Id. ).

• Section C.5.2.3 (Property Maintenance): "The Contractor shall maintain properties in Ready to Show Condition. The Contractor shall be liable for damages to all acquired properties due to failure to inspect or maintain property in ready to show condition or secure property or other act, neglect, failure, or misconduct of the Contractor, a Subcontractor, or any Management Official of any of the foregoing. The Contractor shall indemnify HUD for losses due to any act, neglect, failure, or misconduct of the Contractor, a Subcontractor, or any Management Official of any of the foregoing. The Contractor shall not be held liable for casualty damage as long as, before and after such casualty, the Contractor takes immediate and reasonable action to protect the property." (Id. ).

• Section C.2.2 (Definitions) of the contract defines "Ready to Show Condition" to include "Dwellings and structures must be free of all health and safety hazards and broken window ... The yard must be free of trash and debris; accumulated leaves and holes must be covered or filled ...." (Id. ).

• The HUD-BLM Contract's Property Management Plan further provides that BLM will perform "Initial Clean Out Services" of assigned properties, which will include "[r]emov[ing] or repair[ing] tripping hazards and holes in the flooring and other places as required." (Id. at Ex. A, Attach. 1, at 162-63) (emphasis added).

LEGAL STANDARD

A Rule 12(b)(1) motion to dismiss challenges the existence of subject-matter jurisdiction. As the party invoking this Court's jurisdiction, Plaintiff bears the burden of proving that the requisite jurisdictional requirements are met. Development Fin. Corp. v. Alpha Housing & Health Care, Inc. , 54 F.3d 156, 158 (3d Cir. 1995). "[W]hen there is a fact question about whether a court has jurisdiction, the trial court may examine facts outside the pleadings ... ‘[b]ecause at issue in a factual 12(b)(1) motion is the trial court's jurisdiction—its very power to hear the case.’ " Robinson v. Dalton , 107 F.3d 1018, 1021 (3d Cir. 1997) (quoting Mortensen v. First Fed. Sav. & Loan Ass'n , 549 F.2d 884, 891 (3d Cir. 1977) ). Therefore, this Court is free to consider evidence outside the pleadings to resolve factual issues bearing on the jurisdictional issue. See Gotha v. United States , 115 F.3d 176, 179 (3d Cir. 1997). A court may properly consider whether the FTCA's independent contractor exception is applicable on a motion to dismiss pursuant to Rule 12(b)(1) because the motion raises jurisdictional issues. See Norman , 111 F.3d at 357 (affirming judgment analyzing motion for relief under FTCA due to tortfeasor's independent contractor status under Rule 12(b)(1) ); Pace v. United States, 2008 WL 4559598, at *2 (D.N.J. Oct. 9, 2008) (addressing the United States’ motion under Rule 12(b)(1) rather than under Rule 56 where the government argued that a cleaning service was an independent contractor responsible for negligence which led to plaintiffs’ injuries).

DISCUSSION

As noted, the United States argues that this Court lacks subject-matter jurisdiction over Plaintiff's claims against it in this matter because HUD is protected from liability under the FTCA's independent contractor exception and under the discretionary function exception. Generally, the United States is immune from suit for monetary damages. Sconiers v. United States , 896 F.3d 595, 597 (3d Cir. 2018). The FTCA, however, provides a limited waiver of the United States’ sovereign immunity allowing tort claims under specific circumstances. Id . Specifically, § 2674 provides that:

The United States shall be liable, respecting the provisions of this title relating to tort claims, in the same manner and to the same extent as a private individual under like circumstances, but shall not be liable for interest prior to judgment or for punitive damages.

28 U.S.C. § 2674. The scope of this waiver must be strictly construed in favor of the United States. Orff v. United States , 545 U.S. 596, 601-02, 125 S.Ct. 2606, 162 L.Ed.2d 544 (2005) ; Lightfoot v. United States , 564 F.3d 625, 628 (3d Cir. 2009). The FTCA's waiver is subject to several exceptions; where an exception to the waiver applies, sovereign immunity remains a jurisdictional bar to suit. See Dolan v. United States Postal Serv. , 546 U.S. 481, 485, 126 S.Ct. 1252, 163 L.Ed.2d 1079 (2006) ; United States v. Sherwood , 312 U.S. 584, 586, 61 S.Ct. 767, 85 L.Ed. 1058 (1941) ("the terms of the [United States’] consent to be sued in any court define that court's jurisdiction to entertain the suit."). This Court will address each potential exception separately.

Independent Contractor Exception

In interpreting various provisions of the FTCA, the United States Court of Appeals for the Third Circuit ("Third Circuit") has concluded that one such exception to the waiver of sovereign immunity is the so-called "independent contractor exception." Norman v. United States , 111 F.3d 356, 357 (3d Cir. 1997). In finding this exception, the Third Circuit relied primarily on § 1346(b) of the FTCA, which provides that district courts:

shall have exclusive jurisdiction of civil actions on claims against the United States, for money damages ... for ... personal injury ... caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.

28 U.S.C. § 1346(b) (emphasis added); see also N...