Holdsworth v. United States of America et al

Filing 68

-CLERK TO FOLLOW UP-DECISION AND ORDER adopting the Report and Recommendation of Magistrate Judge Leslie G. Foschio in its entirety. The Governments motion to dismiss (Docket No. 37) is therefore granted and all claims against the Government are dis missed pursuant to the independent contractor and the discretionary function exceptions to the FTCA. The case is transferred to Judge Arcara for further proceedings as to the remaining issues in this case. Signed by Hon. Michael A. Telesca on 6/28/16. (JMC)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
JOSHUA HOLDSWORTH,
Plaintiff,
v.

11-CV-00889
DECISION AND ORDER

UNITED STATES OF AMERICA, and
L&D JOHNSON PLUMBING & HEATING,
INC., a/k/a U.S. Veterans
Construction & Management Corp.,
Defendants.

I.

Introduction
Plaintiff

Joshua

Holdsworth

(“plaintiff”)

commenced

this

negligence action on October 24, 2011 against the United States of
America (“the Government”) and L&D Johnson Plumbing & Heating,
Inc., also known as U.S. Veterans Construction & Management Group
(“L&D”) (collectively, “defendants”) pursuant to the Federal Tort
Claims Act (“FTCA”), 28 U.S.C. §§ 1346(b), 2671-80.

Plaintiff is

seeking to recover monetary damages for personal injuries that he
suffered while working on a construction project at the Veteran
Affairs Hospital

(“the

Hospital”)

in

Buffalo

New

York.

The

Government is the owner of the Hospital and L&D was the general
contractor of a project to repair and upgrade the VA Hospital’s
sprinkler system.

Plaintiff’s employer, Eastern Tank Services

(“ETS”), was a subcontractor for L&D.

II.

Procedural Background
On November 5, 2011, L&D brought a cross-claim against the

Government for indemnification or contribution should L&D be found
negligent for plaintiff’s injuries.

On February 17, 2012, the

Government filed its first motion to dismiss the action based on
lack of subject matter jurisdiction asserting that plaintiff’s
claims were barred by the FTCA’s independent contractor exception,
28 U.S.C. § 2671(a), and the discretionary function exception,
28

U.S.C.

§

2680(a).

On

September

27,

2012,

United

States

Magistrate Judge Leslie G. Foschio granted plaintiff and L&D a
90-day discovery period limited to the independent contractor and
discretionary functions exceptions to the FTCA and dismissed the
Government’s first motion without prejudice.

On October 11, 2012,

the Government filed cross-claims against L&D for contribution and
indemnification, should the Government be found to be culpable for
plaintiff’s injuries.
On April 25, 2013, following the limited discovery period
described above, the Government renewed its motion to dismiss the
complaint (Docket No. 37), which plaintiff opposed on August 28,
2013 (Docket No. 46) and L&D opposed on August 30, 2013 (Docket
No.

47).

Magistrate

Judge

Foschio

filed

his

Report

and

Recommendation (“R&R”) on September 2, 2014, recommending that this
Court grant the Government’s motion to dismiss all claims against

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it. The matter is now before this Court for determination of
plaintiff's

Objections

to

the

R&R

pursuant

to

28

U.S.C.

§ 636(b)(1).
III. Factual Background
The R&R contains a detailed recitation of the facts taken from
the pleadings and motion papers filed in this action.

The Court

therefore adopts the “Facts” section in its entirety and will make
reference to the facts contained therein. Docket No. 58, p. 5-12.
The Government, on behalf of the Department of Veterans
Affairs (“VA”), awarded a contract (“the contract”) to L&D for the
renovation of the sprinkler system (“the project”) at the Buffalo
VA Hospital.

Vincent Rizzo (“Rizzo”), Engineering Manager for the

VA hospital, was responsible for the day to day operations of the
engineering and environmental management departments. Robert Reiter
(“Reiter”), a VA engineering technician and project manager, was
the contracting officer’s technical representative for the project.
The contract provided that L&D was responsible for establishing
plans

and

decisions

procedures
regarding

to

the

complete
choice

the

of

project,

materials

and

including

all

construction

methods, the possible use of hazardous materials, and the safety of
the worksite.

The contract also provided that “[t]he Contractor

shall hold and save the Government, its officers and agents, free
and harmless

from

liability

of

any

nature

Contractor’s performance.” Contract § 1.11.A.

3

occasioned

by

the

As the contractor,

L&D was responsible for quality control, risk assessment, safety,
and

Occupational

Safety

and

Health

Administration

(“OSHA”)

compliance and worksite inspections for the project. The contract
at 37(C.2-C.3) and § 2.7 at 41.
reference

several

The contract also incorporated by

provisions

of

the

Federal

Acquisition

Regulations, including 48 C.F.R. § 52.236-2, which requires the
contractor to provide prompt written notice to the contracting
officer of any “unknown physical conditions at the site, of an
unusual nature, which differ materially from those ordinarily
encountered and generally recognized as inhering in work of the
character provided for in the contract.” 48 C.F.R. § 52.236-2(a).
Upon receipt of the written notice, the Contracting Officer is then
required to investigate the site conditions and make an equitable
written adjustment of the contract concerning the cost and time
allotted for the project in the event of material differences in
worksite conditions. See 48 C.F.R. § 52.236-2(b).

No equitable

adjustment was allowed absent the written notice. See 48 C.F.R.
§ 52.236-2(c).
Under 48 C.F.R. § 52.236-3, L&D was required to take the
reasonably necessary steps to ascertain the nature and location of
the work, investigate and satisfy itself as to the conditions which
could affect the work or its cost, including the equipment and
facilities needed before and during work performance and any
obstacles reasonably ascertainable during a site inspection.

4

L&D

was responsible for obtaining insurance at its own expense and for
the safety of the worksite and compliance with all applicable laws
and codes for the duration of the project. The contract §§ 4.27,
4.7.
The work on the project required the relining of two 25,000
gallon water storage tanks located on the 14th floor of the
hospital.

The workers were required to enter the tanks through a

manhole to sandblast and re-coat the interior.

During a daily

inspection of the 14th floor during the project, work was halted to
address a safety issue concerning communication between workers
inside and outside the tanks, and how a worker inside a tank could
be retrieved.

It was decided that an interior worker would

communicate by pounding on the tank, and a device installed by
subcontractor ETS, which consisted of a tripod and crank with a
cable over the manhole, would aid in retrieving someone who may
become injured or ill while working inside the tank.
On October 30, 2008, plaintiff, while working on the project
as an employee of ETS, was attempting to exit the first tank when
he became stuck in a manhole located under ductwork with only
15 inches of clearance causing

an injury to his back.

At some

point during this incident, the owner of ETS (plaintiff’s brother)
recommended adding a second manhole on the end cap of the second
tank.

After

determining

that

the

OSHA requirements

did

not

necessitate a second access point in the tank, Reiter denied the

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request to install a second manhole in the second tank.

For

unrelated reasons, the second tank was not relined until two years
later, without the addition of a second access point.
IV.

Discussion
Pursuant to 28 U.S.C. § 636(b)(1)(C) and Rule 72 of Federal

Rules

of

Civil

Procedure,

this

Court

must

make

a

de

novo

determination of those portions of the R&R to which objections have
been made. However, “in a case where a party makes only conclusory
or general objections, or simply reiterates his original arguments,
the Court reviews the Report and Recommendation only for clear
error.” Butto v. Collecto, Inc., 290 F.R.D. 372, 379 (E.D.N.Y.
2013) (internal quotation marks omitted).

Here, the R&R found

that all of the claims against the Government should be dismissed
because the Federal Tort Claims Act (the “FTCA”), under which
plaintiff brought his suit against the Government, contains two
exceptions:

(1)

the

independent

contractor

exception (“ICE”),

28 U.S.C. § 2671 (“§ 2671”), and (2) the discretionary function
exception (“DFE”), 28 U.S.C. § 2680(a) (“§ 2680”) relevant to this
case.

In its opposition to the Government’s motion to dismiss,

plaintiff and L&D asserted that neither exception to the FTCA
applies.
Plaintiff
complaint

contends

asserts

that

negligence

ICE

does

not

allegations

apply
against

because

the

government

employees, including creating a hazardous condition by defective

6

design of the water tank, and failing to either add a second
manhole to the first tank or to alter the ductwork located over the
manhole. Plaintiff’s Memorandum at 3-6, 11-13. Both Plaintiff and
L&D argued that ICE does not apply because the Government retained
control

over

the

work

to

be

performed

under

the

contract.

Plaintiff’s memorandum, p. 6-10; L&D’s memorandum, p. 2-9.
IV. Objections to the Report and Recommendation
A.

Independent Contractor Exception

In its Objections, filed October 10, 2014, L&D asserts that
ICE is inapplicable because plaintiff’s accident did not result
from L&D’s “method of working” and, based on its denial of the
request to install a manhole in the second tank, the Government
would have denied a request to install a second manhole in the
first tank.

L&D also notes that Rizzo testified in his deposition

that adding another manhole “was at [the] discretion of contractor
L&D as to how to execute its work,” but he later stated that
“adding another access hole would itself be major work, and so,
clearly beyond the scope of the project.”
(internal quotation marks omitted).

L&D’s Objections, p. 4

The Government responds that

the relevant portions of the contract establish that “‘L&D was
responsible

for

the

day-to-day

supervision

of

the

Sprinkler

Project’ as ‘demonstrated by the Contract as well as by the
deposition testimony of VA employees Reiter, Rizzo and Reisman.’”
The Government’s response to Objections, p. 6, quoting R&R, p. 19.

7

“It

is

well

established

that

‘[t]he

United

States,

as

sovereign, is immune from suit save as it consents to be sued . .
., and the terms of its consent to be sued in any court define that
court's jurisdiction to entertain the suit.’” Kwitek v. U.S. Postal
Serv., 694 F. Supp. 2d 219, 223-224 (W.D.N.Y. 2010), quoting United
States v. Sherwood, 312 U.S. 584, 586 (1941).

“Congress can waive

the government's sovereign immunity, but only through clear and
unequivocal statutory language, and waivers of sovereign immunity
and their conditions must be strictly construed in the government's
favor.” Id. at 224.

Where the relationship between the government

and a contracting outside vendor is in dispute, the terms of the
contract

should

government

be

reviewed

controls

contractor,

and

the

(2)

to

detailed

whether

determine
physical

the

“(1)

whether

performance

government

the

of

the

supervises

the

day-to-day operations of the contractor.” Id., citing Moreno v.
United States, 965 F.Supp. 521, 524 (S.D.N.Y. 1997) and Roditis v.
United States, 122 F.3d

108, 111 (2d Cir. 1997).

Where the terms

of the contract are unambiguous, courts should enforce the plain
meaning of the agreement. See PaineWebber, Inc. v. Bybyk, 81 F.3d
1193, 1199 (2d Cir.1996).
Focusing upon the language of the contract, as the Court is
required

to

do,

responsibility

it

for

is

clear

that

maintenance

of

the
the

Government
project

to

delegated
L&D,

and,

moreover, there is no evidence in the record that the Government
8

retained daily or substantial control over maintenance. In support
of its contention that the Government retained control over the
project, L&D points to: (1) what it considers “a dangerous design
defect in the premises;” (2) the lack of a second access point in
the first tank; and (3) its supposition that if L&D had requested
a second manhole in that tank, the Government “would have denied
that costly work request.” L&D’s Objections, p. 6.

The Government

notes, however, that pursuant to the contract, L&D was required to
provide prompt, written notice of any unknown physical conditions
of an unusual nature at the site that differed materially from
those ordinarily encountered and generally recognized as inhering
in work provided for in the contract. The Government's response to
Objections, p. 7.

The Government concedes that it held weekly

construction progress meetings with L&D, conducted safety meetings
prior to

commencement

of the

project,

and

“visited

the site

regularly but for brief periods of time for inspection of the
work.” The Government's response to Objections, p. 8.
Here,

the

R&R

correctly

states

that

the

Government

had

delegated the responsibilities of daily supervision and management
of the project facilities and worksite and worker safety to L&D and
retained no authority to control the detailed physical performance
of the contractor.

L&D was responsible for establishing plans and

procedures to complete the project, including construction methods
and the safety of the worksite, quality control, risk assessment,

9

worker safety, OSHA compliance and worksite inspections. Moreover,
under the contract, L&D was required to provide prompt written
notice to the Government’s contracting officer of any unknown and
unusual physical conditions at the site that “differ materially
from those ordinarily encountered and generally recognized as
inhering in work of the character provided for in the contract.”
L&D

was

also

responsible

for

supervising

any

subcontractors

(plaintiff’s employer in this case) including safety and quality of
job performance and coordinating and monitoring said performance.
It

is

clear

from

the

evidence

in

the

record,

including

the

testimony given by Rizzo, Reiter, and Reisman, that the Government
retained the authority to inspect the project’s progress under the
contract and for conformity with applicable laws, regulations, and
codes.

L&D was responsible for maintaining the proper insurance,

directly supervising the

worksite, complying with applicable

statutes, and was generally responsible for worksite safety.
Consequently, the Court finds L&D’s Objections to the R&R’s
application of the “independent contractor” exception here to be
unpersuasive.

The Court further rejects L&D’s assertion that

because VA safety manager Heidi Reisman declined subcontractor
ETS’s request to install a second manhole in the second tank, the
Government would have also refused a request by L&D to install a
second manhole in the first tank.
record.

This is not supported by the

L&D’s responsibility under the contract to assess the

10

safety of the project worksite included the first tank.

The

benefit of hindsight does not absolve the contractor of this
responsibility based on a request made by ETS after plaintiff’s
accident on a different tank without the same alleged hazards.
Moreover, the R&R notes that the Government was not advised of
plaintiff’s accident and injuries until the commencement of this
action, and no change order was requested for an additional access
point in the first tank.
The Court adopts this portion of the Report and Recommendation
in its entirety and dismisses all claims against the Government
pursuant to the independent contractor exception.
B.

Discretionary Function Exception (“DFE”)

In the R&R, Judge Foschio also found that the DFE exempts the
Government from liability under the FTCA for negligent design of
the first tank facility and failure to warn because the records
establishes that the Government’s decision not to re-design the
subject tank or the location of the surrounding ductwork was an
exercise

of

discretion

“grounded

considerations.” R&R, p. 31-32.

in

economic

policy

In its Objections, L&D asserts

that this exception is inapplicable to its claim of negligent
design of the first water tank and/or placement of the tank and
overhead ductwork because the Government has failed to demonstrate
that its decision to install the tank’s manhole under the ductwork

11

was susceptible to policy analysis or justification. Objections,
p. 7-11.
The determination as to whether the DFE applies involves a
two-part inquiry: (1) whether the challenged governmental conduct
was discretionary and, (2) if so, was that conduct based on
considerations of public policy.
486 U.S. 531, 536 (1988).

See Berkovitz v. United States,

The FTCA does not apply to “claim[s]

based upon the exercise or performance or the failure to exercise
or perform a discretionary function or duty . . . whether or not
the discretion involved be abused.” 28 U.S.C. § 2680(a). “If there
is a statute, regulation, or policy requiring a specific course of
action for a government employee to follow ‘then there is no
discretion in the conduct for the discretionary function exception
to protect.’” Brotman v. United States, 111 F. Supp. 2d 418, 423
(S.D.N.Y. 2000), quoting Berkovitz, 486 U.S. at 536.
The Court rejects L&D’s contention that the Government’s
conduct with respect to the design and placement of the access
point

in

the

first

tank

“are

not

susceptible

to

any

policy

analysis” (Objections, p. 12) and adopts the R&R’s findings with
respect to the DFE in its entirety.

In his complaint, plaintiff

asserts that the manhole in the first tank was a dangerous hazard
due to the inadequate size of the manhole, the placement of the
manhole directly under the duct work, and the ladder that was
welded to the manhole at a 45 degree angle.

12

It is further alleged

that the Government was requested to add a second manhole to both
water tanks and

reroute the duct work but that, despite having

knowledge of these defective conditions, the requests were refused.
The record is clear, however, that a request was not made to add a
second manhole to the second tank until after plaintiff’s accident
in the first tank.
Moreover, the R&R takes note of L&D’s documented belief that
it “had no reason to include the cost of moving the manhole in its
bid [for the project], because [L&D] had no reason to regard the
manhole’s location as unsafe, nor to anticipate that a company
engaged in the business of relining water storage tanks, such as
the plaintiff’s employer [ETS], would assign the task to a large,
tall person, such as the plaintiff.” Johnson Declaration ¶ 10; see
also R&R, p. 32-33.

L&D further concluded that “if the plaintiff

indeed had difficulty entering or exiting the tank, and injured
himself in the process, it was not because of the manhole’s
location but because [plaintiff] was not fit for this particular
job.”

Id.

¶

10.

The

Court

finds

that

the

record

clearly

establishes that the Government’s decision not to install a second
manhole in the tank or alter its location or the location of the
ductwork, in anticipation of the type of worker fitting plaintiff’s
specifications,

was

a

policy

decision

which

precludes

the

Government’s liability under the discretionary function exception.

13

Accordingly, the Court adopts the R&R in its entirety and the
claims

against

the

Government

pursuant

to

the

independent

contractor and the discretionary function exceptions to the FTCA
are dismissed.
V.

CONCLUSION
Based on the foregoing, the Court adopts the Report and

Recommendation

of

Magistrate

Judge

Leslie

G.

Foschio

in

its

entirety.

The Government’s motion to dismiss (Docket No. 37) is

therefore

granted

dismissed

pursuant

discretionary

and
to

function

all

claims

the

against

independent

exceptions

to

the

the

Government

contractor
FTCA.

The

and
case

are
the
is

transferred to Judge Arcara for further proceedings as to the
remaining issues in this case.
ALL OF THE ABOVE IS SO ORDERED.

S/Michael A. Telesca
HON. MICHAEL A. TELESCA
United States District Judge
Dated:

June 28, 2016
Rochester, New York.

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