Shackleton v. United States

WANDA SHACKLETON AND MARK SHACKLETON v. UNITED STATES OF AMERICA, et al.

CIVIL ACTION NO. 1:13-CV-03135

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF LOUISIANA ALEXANDRIA DIVISION

August 9, 2016

CHIEF JUDGE DRELL

MAGISTRATE JUDGE PEREZ-MONTES

REPORT AND RECOMMENDATION

Plaintiffs Wanda and Mark Shackleton filed a tort claim pursuant to the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b) and 2671, et seq. ("FTCA") on November 26, 2013 against the United States of America ("United States").¹ Plaintiffs seek damages for personal injuries sustained by Wanda Shackleton ("Shackleton") while working at the U.S. Army Garrison at Ft. Polk, Louisiana ("Ft. Polk") on June 6, 2012.

Shackleton was employed by Northrup Grumman Enterprise Management Services Corp. ("Northrup Grumman") as a tool room attendant. Northup Grumman was an independent contractor performing work at Ft. Polk pursuant to a contractwith the U.S. Army.² Northrup Grumman maintained and repaired Army vehicles at Ft. Polk.

Shackleton alleges that she was working in a tool room at Fort Polk when she opened a sliding drawer in a "Stanley Vidmar" tool chest. The tool chest suddenly tipped over, pinning her body against another tool chest and injuring her.

The United States answered the complaint and named Northup Grumman as a third party defendant (Doc. 4), pursuant to the contract. Northrup Grumman then filed a motion to dismiss the third-party complaint, arguing that, under Louisiana law, an employer who pays worker's compensation is immune from tort liability (except intentional torts) and is also immune from a third-party's claim for tort contribution or indemnity, unless there is a specific contractual provision permitting the claim. The United States and Northrup Grumman filed a joint motion to dismiss the United States's third-party complaint (Doc. 13). The United States stipulated that it would dismiss its third-party complaint and all third-party claims against Northrup Grumman, with prejudice (Doc. 19). The Court granted the motion and dismissed all third-party claims against Northrop Grumman (Doc. 20).

Northrup Grumman and the Insurance Co. of the State of Pennsylvania ("Insurance Co.") then intervened in the suit (Docs. 26, 30) and filed a complaint against the United States and Shackleton to recover worker's compensation benefitspaid after the accident (Doc. 31). The United States filed a motion to dismiss the Intervenors' complaint for lack of jurisdiction under the FTCA (Doc. 35) which was denied (Doc. 43).

The United States then filed a motion to dismiss the Shackletons' complaint for lack of subject matter jurisdiction under the FTCA and for failure to state a claim on which relief may be granted (Doc. 53). The United States contends that both the "independent contractor exception" and the "discretionary function exception" to the FTCA apply in this case. Alternatively, Defendant contends that it contractually delegated its responsibility for workplace safety to the contractor, and that it is not liable for Shackleton's injuries under a theory of premises liability. The Shackletons responded to the motion (Doc. 64), and the United States replied (Doc. 65).

At an April 20, 2016 hearing on the motion, Plaintiffs stipulated they do not have any evidence to support their contentions that employees of the United States installed the Stanley Vidmar tool cabinets or, after proper installation, removed the bolts that prevented the tool cabinets from tipping over. Plaintiffs further stipulated that they do not have any evidence to show that employees of the United States: (1) failed to cause the Stanley Vidmar tool chests to be installed properly; (2) failed to have and carry out adequate inspection procedures; (3) failed to detect that the tool chests were not bolted to the floor (or each other); or (4) failed to warn Shackleton that the tool chests were not bolted to the floor.

Plaintiffs maintain that Defendant was actively negligent in failing to provide Shackleton a safe place to work, failing to exercise due care, and violating mandatoryworkplace safety and inspection regulations and rules. Plaintiffs' claims rest-entirely and solely-upon the possibility that the United States may have installed the told chest and, at that time, failed to bolt the told chest to the floor. To their credit, however, Plaintiffs freely admit there is presently no evidence that the United States installed the tool chest or failed to bolt it to the floor. There is also no evidence of what else may have occurred after installation-for example, whether the United States, Northrup Grumman, or another contractor removed the bolts or moved the tool chest.

The United States's motion to dismiss (Doc. 53) is now before the Court for disposition.

Law and Analysis

I. Subject matter Jurisdiction

Federal courts have limited subject matter jurisdiction and cannot entertain cases unless authorized by the Constitution and legislation. See Coury v. Prot, 85 F.3d 244, 248 (5th Cir. 1996). There is a presumption against subject matter jurisdiction that must be rebutted by the party bringing an action to federal court. Coury, 85 F.3d at 248.

A court may dismiss for lack of subject matter jurisdiction on any one of the following bases: (1) the complaint alone; (2) the complaint supplemented by undisputed facts evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the court's resolution of disputed facts. See Robinson v. TCI/US West Communications, Inc., 117 F.3d 900 (5th Cir. 1997). Where subject matterjurisdiction is being challenged, the trial court is free to weigh the evidence and resolve factual disputes in order to satisfy itself that it has the power to hear the case. No presumption of truthfulness attaches to the plaintiff's allegations. Montez v. Dep't of Navy, 392 F.3d 147, 149 (5th Cir. 2004).

The United States contends it is not liable for Shackleton's injuries because it is immune from liability. The FTCA waives the United States' sovereign immunity for the torts of federal employees by granting the federal district courts jurisdiction over suits for damages "caused by the negligent or wrongful act or omission of any employee of the Government. . . ." The FTCA also limits the United States's liability in certain respects. See Aretz, 604 F.2d 417, 426 (5th Cir. 1979), on rehearing, 635 F.2d 485 (5th Cir. 1981).

Under the FTCA, Congress has granted consent for the government to be sued for acts committed by an employee of the government while acting within the scope of his office or employment. See 28 U.S.C. § 1346(b); see also Longino v. U.S. Dept. of Agric., 912 F.Supp.2d 424, 429 (W.D. La. 2012) (citing Linkous v. United States, 142 F.3d 271, 275 (5th Cir. 1998)). Under the FTCA, the government may be liable if a private person would be liable to the claimant in accordance with the law of the place where the act or omission occurred. See Longino, 912 F.Supp.2d at 429 (citing United States v. Olson, 546 U.S. 43, 44 (2005)); see also 28 U.S.C. §§ 1346(b)(1), 2674.

Several exceptions limit the waiver of sovereign immunity. See 28 U.S.C. § 2680; Gibson v. U.S., 809 F.3d 807, 811 (5th Cir. 2016). Also, the United States cannot be held vicariously liable for the negligent acts of independent contractors.See Lathers v. Penguin Industries, Inc., 687 F.2d 69, 72 (5th Cir. 1982); see also 28 U.S.C. § 2671.

A. Independent Contractor Exception

The United States contends the independent contractor exception applies in this case because Northrup Grumman is an independent contractor, a fact that does not appear to be disputed by Plaintiffs. Plaintiffs argue that Northrup Grumman was not responsible for the installation of the relevant tool chests.

Under the FTCA, the government has waived immunity and agreed to be sued (under a theory of vicarious liability) for acts committed by an employee of the government while acting within the scope of his office or employment. See 28 U.S.C. § 1346(b). Independent contractors (and their employees) who are employed by agencies of the United States are excluded from the government's waiver of immunity under the FTCA as follows: the FTCA applies only to negligent acts or omission by an employee of the United States, see 28 U.S.C. § 1346(b); an employee of the United States includes officers or employees of any federal agency, see 28 U.S.C. § 2671; and the term "Federal agency" does not include any contractor employed by the United States, see id. See also Logue v. U.S., 412 U.S. 521, 532-32 (1973); Lathers, 687 F.2d at 72; Robbins v. Computer Sciences Corp., 486 F.Supp.2d 581, 585 (S.D. Miss. 2007).

The independent contractor exclusion of § 2671 shields the United States from tort liability arising from the performance of duties that were reasonably delegated to a contractor. Berkman v. U.S., 957 F.2d 108, 113 (4th Cir. 1992). However, the fact that an independent contractor may have been responsible for tortious conductdoes not relieve the United States from liability where federal employees also may have caused or contributed to the alleged tort. Berkman, 957 F.2d at 114.

Defendant argues that Northrup Grumman not only leased the property "as is" from Defendant, but also contractually accepted responsibility for workplace safety and, therefore, the "independent contractor exception" applies to the Shackletons' claims. However, for that exception to apply, Plaintiffs would have to allege the United States is vicariously liable for a negligent act or omission of Northrup Grumman, and they have not done so. Instead, Plaintiffs allege the United States is directly liable for the negligence of its own employees who caused the injury to Shackleton. Therefore, the independent contractor exclusion is not applicable to Plaintiffs' claims.³ See Carroll v. U.S., 661 F.3d 87, 93 (1st Cir. 2011) (citing Wood v. U.S., 290 F.3d 29, 36 n.4 (1^st Cir. 2002)); see also Winters v. United States, 127 F.Supp.2d 814, 817 n.2 (S.D. Tex. 2001) ...