Hodge v. United States of America

Filing 18

ORDER granting 15 Defendant's Motion to Dismiss Plaintiff's Amended Complaint. Signed by Honorable Timothy D. DeGiusti on 9/29/2017. (mb)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
DANIEL HODGE,
Plaintiff,
v.
UNITED STATES OF AMERICA,
Defendant.

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Case No. CIV-16-109-D

ORDER
Before the Court is Defendant’s Motion to Dismiss Plaintiff’s Amended Complaint
[Doc. No. 15], filed pursuant to Fed. R. Civ. P. 12(b)(1) and (6). The United States asserts
its sovereign immunity from suit in this action under the Federal Tort Claims Act (FTCA),
28 U.S.C. §§ 1346, 2671-80, and alternatively asserts that the Amended Complaint fails to
state a claim upon which relief can be granted. Plaintiff Daniel Hodge has responded in
opposition to the Motion, and Defendant has replied. Thus, the Motion is fully briefed.
Factual and Procedural Background
Plaintiff brings suit to recover damages for personal injuries allegedly suffered as a
result of negligence by a civilian employee of the United States Air Force who managed
an airplane hangar at Tinker Air Force Base where Plaintiff was working, and Defendant’s
alleged failure to maintain safe flooring inside the hangar or to warn of a dangerous
condition. At the time of the workplace accident in June 2013, Plaintiff was employed by
a contractor, United Mechanical, Inc., which was installing natural gas piping in the
building, and Plaintiff was using a boom lift to perform his work. Plaintiff states that a

metal grate covering a trench in the floor collapsed under the weight of the lift and
catapulted him from the basket, causing him to suffer serious physical injuries and
disabling him from further work as a pipefitter. Plaintiff alleges that Defendant’s building
manager, Curtis Kisling, denied Plaintiff’s request to move two lockers from the path that
Plaintiff chose for driving the lift through the building and, instead, instructed Plaintiff to
go a different route that caused him to cross over the grate-covered trench multiple times.
According to the Amended Complaint, a piece of grating material that had been modified
to fit the trench suddenly failed on Plaintiff’s sixth pass over the grate, and one wheel of
the lift fell through the grate into the trench, causing Plaintiff to be ejected. Based on these
alleged facts, Plaintiff asserts claims of negligence and premises liability.
By the Motion, Defendant seeks a dismissal for lack of subject matter jurisdiction
based on the doctrine of sovereign immunity, which “precludes suit against the United
States without the consent of Congress [and] the terms of its consent define the extent of
the court’s jurisdiction.” Franklin Sav. Corp. v. United States (In re. Franklin Sav. Corp.),
385 F.3d 1279, 1287 (10th Cir. 2004) (internal quotation omitted); see Governor of Kan.
v. Kempthorne, 516 F.3d 833, 841 (10th Cir. 2008). The FTCA “is a limited waiver of
sovereign immunity, making the Federal Government liable to the same extent as a private
party for certain torts of federal employees acting within the scope of their employment.”
United States v. Orleans, 425 U.S. 807, 813 (1976); see 28 U.S.C. § 1346(b)(1). The FTCA
mandates that the government’s liability for the actionable conduct of a federal employee
is determined by “the law of the place where the act or omission occurred.” 28 U.S.C.
§§ 1346(b)(1), 2674; see Hoery v. United States, 324 F.3d 1220, 1222 (10th Cir. 2003);
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Ayala v. United States, 49 F.3d 607, 611 (10th Cir. 1995). Thus in this case, Defendant’s
alleged tort liability is governed by the substantive law of Oklahoma.
First, Defendant asserts that it has not waived immunity for acts or omissions of
independent contractors. As pertinent here, the FTCA defines “employee” to mean
“employees of any federal agency,” and “federal agency” includes military departments
but excludes “any contractor with the United States.” See 28 U.S.C. § 2671. Relying on
this “independent contractor exception” (Orleans, 425 U.S. at 814), Defendant states and
provides evidence that the Department of Energy (“DOE”) contracted with Honeywell
International, Inc. (“Honeywell”) in July 2012 to install natural gas piping at Tinker Air
Force Base for the purpose of improving energy efficiency; Plaintiff’s employer was a
subcontractor of Honeywell responsible for the installation of pipe in the hangar where
Plaintiff was working. Defendant asserts that DOE’s contract with Honeywell delegated
responsibility for workplace safety and supervision to Honeywell, and Honeywell prepared
a contractually-required accident prevention plan that subcontractors were required to
follow and that specifically provided for safe operation of aerial lifts and adequate floor
coverings. Defendant contends the United States cannot be held liable for a failure of
Honeywell or its subcontractors to comply with these provisions. With respect to the
delegation of safety matters to Honeywell, Defendant asserts that this decision is protected
by the discretionary function exception of the FTCA. See 28 U.S.C. § 2680(a). This
exception bars any claim “based upon the exercise or performance or the failure to exercise
or perform a discretionary function or duty on the part of a federal agency or an employee
of the Government.” Id.
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Second, as an alternative basis for dismissal on jurisdictional grounds, Defendant
asserts that the Administrative Workers Compensation Act, Okla. Stat. tit. 85A, § 1-125,
provides Plaintiff’s exclusive remedy for his on-the-job injuries because Oklahoma law
mandates that an employee of a contractor is Defendant’s statutory employee under the
Act. Defendant relies on a principle of Oklahoma law that “the principal for whom a
contractor is performing work is immune from tort liability for injuries suffered by the
contractor’s employees in the course of that work, if the work performed by the contractor
is ‘necessary and integral’ to the principal’s operations.” Izard v. United States, 946 F.2d
1492, 1494 (10th Cir. 1991) (citing Murphy v. Chickasha Mobile Homes, Inc., 611 P.2d
243, 244-45 (Okla. 1980)). In applying the “necessary and integral” test to a contractor of
the federal government, “the proper focus is on the agency or department of the United
States which contracted for the work.” Id. at 1495. Defendant asserts that the installation
of natural gas piping was necessary and integral to DOE’s operations and thus the United
States is protected from tort liability by the statutory employer defense of Oklahoma law.
Finally, as another alternative basis for dismissal for lack of jurisdiction, Defendant
asserts that Plaintiff failed to exhaust his administrative remedies under the FTCA, which
is a jurisdictional precondition to suit. Although Plaintiff filed a timely administrative
claim, Defendant contends it contained a statement of facts that did not provide sufficient
notice of the theories of liability now asserted in the Amended Complaint. 1

1

If all else fails, Defendant seeks dismissal of the Amended Complaint for failure to state
a claim on which relief can be granted, allegedly because it contains insufficient factual allegations
to show negligent conduct by Mr. Kisling or a basis for premises liability. For reasons discussed
infra, the Court’s jurisdictional ruling precludes a determination of the merits of Plaintiff’s claims.

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Standard of Decision
The Court begins with a determination of its jurisdiction. 2 Because sovereign
immunity is a matter of subject matter jurisdiction, the defense may properly be asserted
by a motion to dismiss under Rule 12(b)(1). See Holt v. United States, 46 F.3d 1000, 1002
(1995); see also E.F.W. v. St. Stephen’s Indian High Sch., 264 F.3d 1297, 1302-03 (10th
Cir. 2001).
“Motions to dismiss for lack of subject matter jurisdiction ‘generally take one of
two forms: (1) a facial attack on the sufficiency of the complaint’s allegations as to subject
matter jurisdiction; or (2) a challenge to the actual facts upon which subject matter
jurisdiction is based.’” City of Albuquerque v. U.S. Dep’t of Interior, 379 F. 3d 901, 906
(10th Cir. 2004) (quoting Ruiz v. McDonnell, 299 F. 3d 1173, 1180 (10th Cir. 2002)); see
Peterson v. Martinez, 707 F.3d 1197, 1205 (10th Cir. 2013). If the motion challenges only
the sufficiency of a plaintiff’s jurisdictional allegations, a district court must confine itself
to the complaint and accept the factual allegations as true. See Holt, 46 F.3d at 1002; see
also Peterson, 707 F.3d at 1206 (only “well-pleaded facts” are accepted). Where the
motion challenges the facts on which subject matter jurisdiction depends, however, the
court “may not presume the truthfulness of the complaint’s factual allegations” and “has
wide discretion to allow affidavits, other documents, and a limited evidentiary hearing to

2

“The requirement that jurisdiction be established as a threshold matter . . . is inflexible
and without exception.” Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94-95 (1998) (internal
quotation omitted). However, federal courts are not required to decide jurisdictional issues in any
particular sequence. See Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 584-85 (1999).

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resolve disputed jurisdictional facts.” Holt, 46 F.3d at 1003; see Paper, Allied Indus.,
Chem. & Energy Workers Int’l Union v. Continental Carbon Co., 428 F. 3d 1285, 1292 93
(10th Cir. 2005); Sizova v. Nat’l Inst. of Standards & Tech., 282 F.3d 1320, 1324 (10th Cir.
2002); E.F.W., 264 F.3d at 1303. As the party asserting federal jurisdiction, Plaintiff bears
“the burden of alleging the facts essential to show jurisdiction and supporting those facts
with competent proof.” United States ex rel. Stone v. Rockwell Int’l Corp., 282 F.3d 787,
797-98 (10th Cir. 2002); see Hertz Corp. v. Friend, 559 U.S. 77, 96-97 (2010); Kokkonen
v. Guardian Life Ins. Co., 511 U.S. 375, 377 (1994).
In this case, Defendant challenges the underlying factual basis for Plaintiff’s
assertion of jurisdiction under the FTCA, and thus, Plaintiff’s allegations need not be
accepted as true. Because the jurisdictional issues are not intertwined with the merits of
Plaintiff’s tort claims, Defendant’s Motion may properly be decided under Rule 12(b)(1)
by considering matters outside the Amended Complaint. 3
Discussion
Defendant primarily invokes the independent contractor exception to the FTCA’s
waiver of sovereign immunity. Plaintiff contends the exception is inapplicable because his
tort claims are based on the direct “negligence of Defendant’s employee Curtis Kisling and
the dangerous condition of the grate-covered trench in the hangar floor” rather than

3

A court must convert a Rule 12(b)(1) motion to a Rule 56 motion for summary judgment
“when resolution of the jurisdictional question is intertwined with the merits of the case.” See
Holt, 46 F.3d at 1003. The jurisdictional question is intertwined with the merits of the case if
“resolution of the jurisdictional question requires resolution of an aspect of the substantive claim.”
See Continental Carbon, 428 F.3d at 1292; see also Sizova, 282 F.3d at 1324-25; Pringle v. United
States, 208 F.3d 1220, 1223 (10th Cir. 2000).

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Defendant’s vicarious liability for any act or omission of Honeywell or any contract-related
“work on the trench grating or the hangar floor.” See Pl.’s Resp. Br. [Doc. No. 16] at 10.
Regarding premises liability, Plaintiff asserts that “Defendant is not entitled to invoke the
‘independent contractor defense’ because it interfered with and directed [Plaintiff’s] work.”
Id. at 12. He relies on Marshall v. Hale-Hallsell Co., 932 P.2d 1117 (Okla. 1997), for the
proposition that a property owner who engages an independent contractor to perform work
is not obligated to protect the contractor’s employees from hazards that are incidental to or
part of the work so long as the owner “does not himself undertake to interfere with or direct
that work.” See Pl.’s Resp. Br. [Doc. No. 16] at 11 (quoting Marshall, 932 P.2d at 1119)
(emphasis added). Plaintiff argues that the highlighted condition is not met in this case so
Defendant had a duty to protect its contractors’ employees from work-related harm.
Defendant replies that Plaintiff’s cited authority is a state law case regarding tort
liability but the United States’ immunity under the FTCA is a matter of federal law. See
Williams v. United States, 50 F.3d 299, 307-08 (4th Cir. 1995); see also Logue v. United
States, 412 U.S. 521, 528 (1973) (state law cannot abrogate independent contractor
exception). Defendant asserts that Plaintiff fails to cite any federal authority for avoiding
the FTCA’s independent contractor exception.
The difficulty with Defendant’s independent contractor argument is that the
exception prevents the United States from being held liable for tortious conduct of an
independent contractor; it is not implicated where a tort claim is based on the conduct of
the government’s own employee. Plaintiff asserts, as the basis of his negligence and
premises liability claims, that Mr. Kisling directed him to follow a particular route to
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perform his work and that Mr. Kisling knew or should have known that a floor grating on
the route could not safely bear the weight of Plaintiff’s lift. See First Am. Compl. [Doc.
No. 9], ¶¶ 10, 13. Plaintiff claims Mr. Kisling negligently violated a duty to Plaintiff “by
failing to exercise ordinary care in fulfilling his job duties,” such as by “failing to warn
Plaintiff about the defective grating” and “directing Plaintiff to drive over the grating.” Id.
¶ 10. Similarly, Plaintiff claims Defendant is liable for its premises because, among other
things, “Defendant failed to warn Plaintiff of a hidden, dangerous condition.” Id. ¶ 14.
The independent contractor exception to FTCA liability does not apply to the conduct of a
federal employee like Mr. Kisling.
Defendant’s real argument is that its delegation of workplace safety and supervision
to Honeywell shields Defendant from tort liability because Mr. Kisling owed no duty to
Plaintiff – either to direct his work or provide a safe path – and Mr. Kisling had no authority
over Plaintiff’s job performance. See Plaintiff’s Reply Br. [Doc. No. 17] at 1 (“the United
States, including its employees, owed [Plaintiff] no duty”), id. at 3 (“Without a duty there
can be no liability.”). In Defendant’s view, any duty to direct or protect Plaintiff falls on
Honeywell, the independent contractor, and the delegation of workplace safety and
supervision to Honeywell shields Defendant from FTCA liability. 4

After careful

consideration of the facts shown by the case record, the Court finds that Plaintiff has failed

4

As stated supra, Defendant also contends the decision to delegate all project safety
matters to Honeywell is protected by the discretionary function exception. Plaintiff does not
challenge the delegation decision but simply argues it is ineffective to avoid liability because Mr.
Kisling actually directed Plaintiff’s work. See Pl.’s Resp. Br. [Doc. No. 16] at 13.

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to effectively counter this argument or to show that Mr. Kisling had any responsibility to
assist Plaintiff in planning his work or determining a safe path for his lift.
Plaintiff’s FTCA claims have a common factual basis, that is, Mr. Kisling owed a
duty of care because he “directed Plaintiff on a route to take while using a [boom] lift.”
See First Am. Compl. [Doc. No. 9], ¶ 2. The alleged facts supporting this assertion are as
follows:
Plaintiff needed to access the northeast corner of Hangar B240 for his work
on [the date of the accident]. He identified a path for the boom lift that he
thought provided the best access to the work area, but there were two lockers
that needed to be moved a short distance to provide enough space for the
boom lift. Plaintiff contacted the building manager, Curtis Kisling (a Tinker
AFB civilian employee), and requested that the lockers be moved. Kisling
told Plaintiff he did not want to move the lockers, and told Plaintiff to drive
the boom lift through the main hangar area instead. To use the path selected
by Kisling, Plaintiff would have to traverse a grate-covered trench multiple
times. Plaintiff went back and specifically asked Kisling if driving the
manlift over the grating would be a problem. Kisling assured Plaintiff it
would not, and told Plaintiff there recently had been a crane set up in the area
of the grating without incident.
Id. ¶ 4.
The flaw in Plaintiff’s employee-negligence theory is that, although he spins a
persuasive argument with artful wording, the factual allegations of his pleading do not
support his characterization of Mr. Kisling’s conduct as “specific direction that [Plaintiff]
perform his work in a particular manner.” See Pl.’s Resp. Br. Br. [Doc. No. 16] at 13.
Instead, the First Amended Complaint describes Mr. Kisling’s involvement quite clearly:
While Plaintiff was determining an acceptable route to transport materials to an area of the
hangar where they were needed, Plaintiff asked Mr. Kisling to move two lockers that were
in his chosen path and Mr. Kisling declined, telling Plaintiff to go another way. In
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assessing an alternate route, Plaintiff recognized a metal grating in the floor might present
a safety issue and asked Mr. Kisling about it. Mr. Kisling responded with the information
known to him, that is, it had recently borne the weight of a crane. In other words, Plaintiff
engaged Mr. Kisling and requested his input into the decision-making process for safely
performing the subcontract work. Under the terms of the contract, however, Mr. Kisling
had no authority over that process.
DOE entered into a master contract with Honeywell that controlled the project to
install natural gas piping in airplane hangars at Tinker Air Force Base and covered the
subcontract with Plaintiff’s employer. 5

It is undisputed that the contract expressly

delineated the parties’ duties and obligations, and delegated to Honeywell the
responsibility to provide safe working conditions and supervise workers performing the
contract work. As fully shown by Defendant’s Motion and supporting brief, the contract
incorporated federal regulations and contained specific provisions regarding safety
requirements, and mandated that Honeywell formulate and implement a written Accident
Prevention Plan (“APP”) for the project. See Def.’s Mot. Dismiss, Ex. 3 [Doc. No. 15-3].
The APP named Honeywell’s project manager as a full-time site safety officer to oversee
the work and supervise the subcontractor’s safety representatives or project managers, who
are named in the APP and include a representative of Plaintiff’s employer. Id. at 10-11.
The APP had specific provisions regarding the type of work in which Plaintiff was engaged
at the relevant time, “material handling” using an “aerial lift.” Id. at 33, 43-44. The APP

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The authenticity of the written materials supporting Defendant’s Motion is unchallenged.

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also had a provision regarding floor openings and covers. Id. at 48. There is no allegation
that Mr. Kisling had any role to play in making the assessments required by the APP for
Plaintiff’s work, namely, determining whether the metal grating over the floor opening had
“sufficient strength to support [Plaintiff’s] load” and evaluating Plaintiff’s “material
handling needs . . . in terms of weight, size, distance and path of movement.” Id. at 33, 48.
Honeywell, Plaintiff’s employer, or Plaintiff was responsible to know the weight and safety
requirements of his loaded lift and to select a path that would meet his material handling
needs.
Distilled to its essence, Plaintiff’s theory of Defendant’s liability is that Mr. Kisling
negligently supervised Plaintiff’s contract work. The Court finds that Plaintiff has failed
to show Mr. Kisling had any authority or responsibility in the performance of his duties as
Defendant’s employee to supervise Plaintiff or direct Plaintiff’s work, and that Defendant
cannot be held liable for the failure of Honeywell or its designee to perform that
responsibility. See, e.g., Logue v. United States, 412 U.S. 521, 530 (1973) (contract gave
federal employee “no authority to control the activities of the [contractor’s] employees” so
independent contractor exception applied); Carroll v. United States, 661 F.3d 87, 98 (1st
Cir. 2011) (contracts delegated responsibility for safety measures to contractors so
independent contractor exception applied); Bowman v. United States, 65 F.3d 856, 859
(10th Cir. 1995) (same).

Therefore, the independent contractor exception excludes

Plaintiff’s action from the FTCA’s waiver of Defendant’s sovereign immunity from suit.

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Conclusion
For these reasons, the Court lacks subject matter jurisdiction of Plaintiff’s FTCA
claims against the United States.
IT IS THEREFORE ORDERED that Defendant’s Motion to Dismiss Plaintiff’s
Amended Complaint [Doc. No. 15] is GRANTED, as set forth herein. This action is
dismissed for lack of jurisdiction. A separate judgment of dismissal will be entered.
IT IS SO ORDERED this 29th day of September, 2017.

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