Nabinett v. United States

1

JOYCE NABINETT, Plaintiff, v. UNITED STATES OF AMERICA, Defendant.

CIVIL No. JKB-20-1357

United States District Court, D. Maryland

April 28, 2023

MEMORANDUM

James K. Bredar Chief Judge

Plaintiff Joyce Nabinett, a resident of Maryland, brought a negligence action against the United States of America (the “Government”) under the Federal Tort Claims Act (the “FTC A” or the “Act”), seeking compensation for injuries she sustained when she slipped and fell in a Department of Energy (“DOE”) building in Washington, D.C. (See Am. Compl., ECF No. 7-2.) Currently pending before the Court is the Government's Motion to Dismiss or, in the Alternative, for Summary Judgment (ECF No. 27), filed pursuant to Rules 12(b)(1) and 56 of the Federal Rules of Civil Procedure. (Mem. Supp. Mot Dismiss or Summ. J., ECF No. 27-1.) The Motion has been fully briefed and no hearing is necessary. See Local Rule 105.6 (D. Md. 2021). For the following reasons, the Government's Motion, construed as a Motion to Dismiss will be granted and Plaintiff's claim will be dismissed for lack of subject matter jurisdiction.

I. Background

On November 6, 2018, Plaintiff was working as a security officer at the James Forrestal Building at DOE headquarters in Washington, D.C. (Nabinett Dep. at 17:2-5,18:6-24, Pl. Ex. A ECF No. 28-3 at 3-4^[1]; see also Taylor Dec., Gov't Ex. 3, ECF No. 27-5.) It was raining in Washington, D.C. that day. (Nabinett Dep. at 17:12-17, ECF No. 28-3 at 3; Boyd Report, Pl. Ex. B, ECF No. 28-4 at 4.) When walking through the “GH corridor,” Plaintiff slipped and fell. (Nabinett Dep. at 19:18-19, ECF No. 28-3 at 4.) When she got up, she saw water on the floor and noticed that her pants and hand were wet. (Id. at 19:21-23.) Plaintiff testified that the area where she fell was between the elevators and a courtyard that people would walk through to get to the cafeteria or to use the smoking area, and that it gets “tracked with water.” (Id. at 23:25-25:6.) Plaintiff alleges that she sustained severe physical injuries. (Am. Compl. ¶ 19, ECF No. 7-2.)

The DOE engages contractors to conduct maintenance functions at its facilities. (See Williams Dep. at 65:9-13, Pl. Ex. C, ECF No, 28-5 at 7 (“All the maintenance stuff has been contracted out”).) At the time of Plaintiffs fall, the Government had contracted with Didlake, Inc, (“Didlake”) to “provide management, supervision, manpower, equipment and supplies necessary to provide custodial and related services” at the Forrestal Building. (Didlake Custodial Contract, Gov't Ex. 2, ECF No. 27-4 at 9.) The contract required Didlake to “[p]olice and service main lobbies and high traffic areas for public use 3 times per day” to ensure that “[t]here shall be no evidence of... wet areas of any foreign substances.” (Id. at 36; see also id. at 28-29 (mandating daily cleaning of main and secondary entrances, lobbies, and corridors to be “free of... foreign matter).) Cherylynne Williams, the Government's designated representative pursuant to Rule 30(b)(6),^[2] testified that the custodial contractor was responsible for, among other things, “cleaning the floors,” “cleaning up spills when they occur[,]” “putting down additional mats when additional mats are required when there are wet floors,” and “mopping up floors when they get wet[.]” (Williams Dep. at 11:19-22,12:3-6, ECF No. 28-5 at 3.)

The Didlake contract specifies that “[n]o Government direction or supervision of contractor's employees shall be exercised” and that the “contractor shall provide the name of the on-site project manager[.]” (ECF No. 27-4 at 11.) Didlake was also required to “provide and maintain an inspection system acceptable to the Government covering the services under this contract.” (Id. at 50; see also Williams Dep. at 18:8-19, ECF No. 28-5 at 4 (explaining that Didlake was responsible for quality control, meaning that it had a duty to inspect the work it conducted under the contract).) Williams stated that directing the custodial workers was “the responsibility of the contractor, the Didlake personnel. They have their own management chain and they are responsible for the day-to-day management of their staff.” (Williams Dep. at 17:1-5, ECF No. 28-5 at 4.) The DOE Contracting Officer's Representative (“COR”), on the other hand, “is responsible for quality assurance, making sure that things are getting done, but not necessarily for the day-to-day operations.” (Id. at 17:5-8; see also, ECF No. 27-4 at 11 (providing that the COR will administer “an extensive system of inspections of contractor performance” under the Didlake contract).) The COR on the Didlake contract was the facility manager at the Forrestal Building, Melvin Hale, a federal employee. (Williams Dep. at 9:9-10,21, ECF No. 28-5 at 3.)

The Government also contracted with U.S. Facilities, Inc. (“USF”) to “[p]rovide facility maintenance and management at the U.S. Department of Energy Headquarters facilities.” (USF Maintenance Contract, Gov't Ex. 4, ECF No. 27-6 at 2.) USF's contractual duties included daily inspection of the custodial work “to ensure the [custodial] contractor is using the proper cleaning techniques and materials, and is performing their work in a safe manner in order to protect the building and its occupants”; to “resolve minor disputes with the custodial services contractors on compliance/performance of the contract”; and to "ensure the custodial contractor responds to all emergency and special event calls.” (USF Performance Work Statement, Gov't Ex. 5, ECF No. 27-7 at 10-11.) USF was also required to perform building operations management, including to “inspect buildings and grounds for the purpose of ensuring safe and orderly conditions, evaluate the adherence to established standards of operations and services, and determine deficiencies and initiate[] corrective actions.” (Id. at 13.) Finally, as relevant here, USF managed a Help Desk at the Forrestal Building, which included the responsibility to “receive requests and complaints of building related problems and services from customers”; “distribute Work Orders (WOs) to appropriate shops for completion, e.g. maintenance, custodial, or health and safety”; and “follow up with the maintenance or custodial staff to ensure that they are adhering to agreed-upon standards for timely and accurate issue resolution.” (Id. at 14,16.)

With respect to the use of additional floor mats, Williams explained that additional mats would be required if there was “severe weather,” but that additional mats were needed “[v]ery rarely” because there were “mats at all of the entrances” that “typically [were] sufficient to handle most of the normal traffic.” (Williams Dep. at 12:11-22, ECF No. 28-5 at 3.) Williams testified that “[t]ypically it would not be the building manager or his staff putting out the mats. Typically it would be the custodial contractor putting out the mats if the mats were needed.” (Id. at 40:9-12.) She acknowledged “[t]here is a potential that [Hale] could call the Didlake supervisor and say T think we need to put the mats out' or ‘please put the mats out'” but that “typically the custodial contractor is usually on top of' it. (Id. at 40:18-22.) When asked if Williams herself played any role in the decision to put mats out, she stated that “[t]ypically I don't get involved in that because that's part of the day-to-day operations of the building manager [Hale] and he would then make those decisions.” (Id. at 67:10-13.) She added that “there is a possibility they could ask for my opinion. There is also a possibility that if I see something, that I could bring it to the attention of the facility manager.” (Id. at 67:13-16.) These additional mats were purchased by Hale, and kept in one of the custodial contractor's assigned storage areas. (Id. at 36:14-16,38:7-10, 39:1-3; see also ECF No. 27-4 at 12 (requiring the Government to furnish “[s]pace in the building for the storage of an inventory of supplies and equipment which will be used in the performance of work under the [Didlake] contract”).)

Williams also explained that there are “wet floor signs[] by each of the doors. And Didlake personnel typically when it's raining, they will go around and put out those wet floor signs at all of the entrances.” (Williams Dep. at 34:8-11, ECF No. 28-5 at 5.) She added that there are “additional signs throughout the building in some of the custodial closets” and that “anybody can put those signs out” if “they see a leak or water on the floor,” but “as a general routine, if the custodial folks see something, they will put it out[.]” (Id. at 34:12-35:7.) Some of these additional signs that are put up in the hallways were purchased by the Government, “[b]ut the rest of them typically are custodial and are owned by Didlake[.]” (Id. at 37:11-15.)

For her part, Plaintiff testified that she was aware that contractors are responsible for maintenance of the Forrestal Building and that the “contracting people that normally take care of signs normally will be contacted to go and put the signs down.” (Nabinett Dep. at 27:7-19, Gov't Ex. 1, ECF No. 27-3 at 3.) She also stated that “mats are always there” for safety purposes. (Id. at 28:4-9.) She testified that “employees sometimes would call and say there is a wet area” and then maintenance would come and put out a yellow sign or cone warning that the floor was wet. (Id at 48:10-11,49:4-11.)

Plaintiff filed suit claiming that the Government, by and through its agents, servants, and/or employees, was negligent in failing to maintain the floor of the premises in safe condition failing to provide mats at the entrances to prevent water from being tracked in, and failing to warn Plaintiff of unsafe conditions. (See generally ECF No. 7-2.) The Court previously denied the...