Cyr v. United States of America et al

Filing 68

OPINION AND ORDER granting in part and denying in part 63 Motion to Dismiss for Lack of Subject Matter Jurisdiction, and denying 63 Motion to Dismiss for Failure to State a Claim. Plaintiff's claims against the Government alleging a failure to maintain or repair the Post Office Parking lot as a result of LV's negligence are dismissed. The Government's motion is denied in all other respects. Signed by Chief Judge Christina Reiss on 6/21/2011. (pam)

UNITED STATES DISTRICT COURT
FOR THE
DISTRICT OF VERMONT

20II JUN 21 PH I: 28
CLERK

BY

::J2M.

DEPUTY Cl.ERK

REGINALD CYR,

)

)

Plaintiff,
)

)

v.
) Case No. 5:10-cv-194
)
UNITED STATES OF AMERICA, LONDONDERRY)
VENTURES, NEPO: LONDONDERRY, LLC, and
)
STEVE GORDON d/b/a STEVE'S SERVICE,
)
)

Defendants.
)

OPINION AND ORDER GRANTING IN PART AND DENYING IN PART

DEFENDANT UNITED STATES' MOTION TO DISMISS FOR LACK OF

SUBJECT MATTER JURISDICTION, AND DENYING UNITED STATES'

MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM

(Doc. 63)

Plaintiff Reginald Cyr brings this negligence action against Defendants United
States (the "Government"), Londonderry Ventures ("LV"), NEPO: Londonderry, LLC
("NEPO"), and Steve Gordon d/b/a Steve's Service. Plaintiff alleges that Defendants'
negligence caused him to slip and fall on a patch of ice and snow in the parking lot
outside the Post Office in Londonderry, Vermont. Presently before the court are the
Government's motions to dismiss the Amended Complaint for lack of subject matter

jurisdiction and failure to state a claim upon which relief can be granted. After a period
ofjurisdictional discovery, the parties completed briefing on April 11, 2011. Plaintiff is
represented by Richard K. Bowen, Esq., and the Government is represented by AUSA
Nikolas P. Kerest.
For the reasons set forth below, the Government's motion to dismiss for lack of
subject matter jurisdiction is GRANTED in part and DENIED in part, and the
Government's motion to dismiss for failure to state a claim is DENIED.

I.

Factual Background.

On February 12,2008, Plaintiff slipped and fell in one of the parking spaces
adjacent to the Post Office building in Londonderry, Vermont. Both the Post Office
building and the parking lot where Plaintiff fell (the "parking lot") are part of the
Mountain Marketplace shopping center, which includes other businesses.
LV owns the land upon which the Mountain Marketplace is located, including its
parking lot. On August 31, 1999, LV, as lessor, entered into a lease with NEPO, as
lessee (the "Ground Lease"), which includes the land on which the Post Office building
sits, but which specifically excludes the ten parking spaces adjacent to the Post Office
building where Plaintiff slipped and fell. The Ground Lease provides that NEPO, its
subtenants, and their business invitees "shall have the right to travel over the adjacent
lands of [LV] for the purpose of gaining access to the leased premises, and ... shall have
the right to park in not less than ten (10) parking spaces immediately adjacent to the
leased premises." (Doc. 63-2.) LV retained certain maintenance obligations under the
Ground Lease, including the obligation to provide "snowplowing ... in such amounts
and at such intervals as [NEPO] shall reasonably require," and to provide
"[s]nowplowing ... for the parking and driveway areas adjacent to the leased premises,"
id. at 14, which includes the area where Plaintiff fell.

NEPO subleased the premises it holds under the Ground Lease to the United
States Postal Service ("USPS") in a sublease dated February 26, 1999 (the "Sublease").
A diagram attached to the Sublease notes" 10 Dedicated Customer Parking Spaces" (Doc.
63-2 at 39) adjacent to the Post Office building where Plaintiff slipped and fell. The
parties dispute whether this diagram should be interpreted to include those ten parking
spaces as part of the leasehold conveyed by the Sublease, notwithstanding their exclusion
from the Ground Lease between LV and NEPO. See Docs. 63, 64 at 2-4. Even if the ten
parking spaces are not included in USPS's leasehold, the Ground Lease afforded USPS
and its customers the right to park in those spaces, and to travel over the parking lot in
order to access the Post Office.

2

Although LV was obligated under the Ground Lease to provide snow removal
services for both the property subject to the Ground Lease, as well as the adjacent parking
lot and driveway areas, USPS entered into a letter agreement with LV dated February 17,
2000 in which LV agreed to maintain the sidewalks and parking lot outside the Post
Office building for a $100.00 monthly fee. (Doc. 63-1 at 6.) Specifically, during winter,
LV agreed to "[p]low/sand parking lot as needed"; "[s]hovel, sand, salt remove ice as
needed"; and to check walkways "daily and sand[]/salt[] daily if necessary," Id. The
Government now disputes that this agreement applied to the parking lot in which Plaintiff
fell, but does not identify what other "parking lot" it refers to. Additionally, in an
interrogatory response, the Government averred that "[USPS] contracted with [LV] to
perform year round maintenance of the parking lot in front of the Post Office building
including plowing and salting of the parking lot as needed in the winter." (Doc. 66-1 at
4.)

LV subsequently subcontracted its obligations under the maintenance agreement
with USPS to Steve Gordon. Mr. Gordon agreed to provide winter maintenance for the
entire Mountain Marketplace parking lot, including the parking spaces adjacent to the
Post Office building. See Doc. 63-4 at 2.
On October 19,2010, Plaintiff filed an Amended Complaint in which he alleges
that:
The defendants, and/or their agents, servants, or employees, were jointly
and severally negligent in the ownership, operation, and maintenance of the
said premises in that they failed to maintain the area in front of the Post
Office building and the adjacent walking area and parking lot in a proper
and safe manner; they permitted an icy condition to exist which caused a
hazard and a peril to persons traversing the area seeking to enter/exit the
Post Office, and in particular failed to warn or apprise pedestrians in
general, and in particular, of the dangers then and there existing; failed to
take any proper remedial action to alleviate the condition when they knew,
or should have known, that persons would traverse the said area in order to
conduct business in the said Post Office.
(Doc. 9 ~ 16.)

3

The Government moved to dismiss all claims against it for lack of subject matter
jurisdiction on October 29,2010. Before ruling on the motion, the court ordered the
parties to engage in jurisdictional discovery. Upon completion of discovery, the
Government withdrew its original motion (Doc. 14) and filed new motions to dismiss
under Fed. R. Civ. P. 12(b)(1) for lack of subject matter jurisdiction, and under Fed. R.
Civ. P. 12(b)(6) for failure to state a claim upon which relief can be granted (Doc. 63).
The Government's motions are now ripe for decision. Plaintiff opposes the motions.

II.

Standard of Review.
A.

Motion to Dismiss for Lack of Subject Matter Jurisdiction.

"Determining the existence of subject matter jurisdiction is a threshold
inquiry and a claim is properly dismissed ... under Rule 12(b)(1) when the district court
lacks the statutory or constitutional power to adjudicate it." Morrison v. Nat 'I Australia

Bank Ltd., 547 F.3d 167, 170 (2d Cir. 2008) (internal quotation marks omitted). Once the
parties have been afforded the opportunity to engage in jurisdictional discovery, and
"where evidence relevant to the jurisdictional question is before the court, 'the district
court ... may refer to [that] evidence.''' Robinson v. Gov't ofMalaysia, 269 F.3d 133,
140 (2d Cir. 2001) (quoting Makarova v. United States, 201 F.3d 110, 113 (2d Cir.
2000)). "[N]o presumptive truthfulness attaches to plaintiffs allegations, and the
existence of disputed material facts will not preclude the trial court from evaluating for
itself the merits ofjurisdictional claims." Mortensen v. First Federal Savings & Loan

Ass'n, 549 F.2d 884,891 (3d Cir. 1977); see also Ensign-Bickford Co. v. ICI Explosives
USA Inc., 817 F. Supp. 1018,1023 n.7 (D. Conn. 1993). Moreover, the consideration of
evidence outside the pleadings does not transform a Rule 12(b)(I) motion into a motion
for summary judgment under Rule 56. See Makarova, 201 F.3d at 113; Fed. R. Civ. P.
56.
Plaintiff "has the burden of proving by a preponderance of the evidence that
[subject matter jurisdiction] exists." Makarova, 201 F.3d at 113. To bring suit against
the United States, the plaintiff must establish some basis for finding a waiver of
sovereign immunity. See Lunney v. United States, 319 F.3d 550, 554 (2d Cir. 2003). In
4

the absence of a waiver of sovereign immunity, the court lacks subject matter jurisdiction
to adjudicate claims brought against the United States. Wake v. United States, 89 F.3d
53, 57 (2d Cir. 1996); see also United States v. Mitchell, 445 U.S. 535, 538 (1980) ("the
terms of [the government's] consent to be sued in any court define that court's
jurisdiction to entertain the suit.").

B.

Motion to Dismiss for Failure to State a Claim.

To survive a motion to dismiss under Rule 12(b)(6), "a complaint must contain
sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its
face." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atlantic Corp. v.

Twombly, 550 U.S. 544, 570 (2007»; see also Fed. R. Civ. P. 8(a)(2). In Iqbal, the
Supreme Court set forth a "two-pronged" approach for analyzing a Rule 12(b)(6) motion
to dismiss. Iqbal, 129 S. Ct. at 1950. First, a court must accept a plaintiffs factual
allegations as true and draw all reasonable inferences from those allegations in the
plaintiffs favor. Id. at 1949-50. However, this assumption of truth does not apply to
legal conclusions, and "[t]hreadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice." Id. at 1949. Second, a court
must determine whether the complaint's "well-pleaded factual allegations ... plausibly
give rise to an entitlement to relief." Id. at 1950. "A claim has facial plausibility when
the plaintiff pleads factual content that allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged." Id. at 1949 (citing Twombly, 550
U.S. at 556). "The plausibility standard is not akin to a 'probability requirement,' but it
asks for more than a sheer possibility that a defendant has acted unlawfully." Id.

III.

Conclusions of Law and Analysis.
A.

The Government's Rule 12(b)(l) Motion to Dismiss.

Plaintiff asserts that the Federal Tort Claims Act ("FTCA") waives the
Government's sovereign immunity for his claims. See 28 U.S.C. §§ 1346,2671. Under
the FTCA, district courts have jurisdiction over claims against the United States that
allege 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,
5

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)(1). In its motion, the Government makes two arguments why the
FTCA does not provide a waiver of immunity in this case: (1) Plaintiff has failed to
establish that the Government owed him a duty of care, and therefore the Government
cannot be liable to him for negligence under Vermont law; and (2) even if the
Government owed Plaintiff a duty of care, the Government is immune under statutory
exceptions to the FTCA that preserve sovereign immunity for claims based upon the
conduct of government contractors, and conduct that is a discretionary government
function.
i.

Plaintiff Has Sufficiently Established Duty.

The Government argues that this court lacks jurisdiction over Plaintiffs claims
because Plaintiff has not established that the Government owed him a duty of care. The
Government contends that there is no waiver of immunity under such circumstances
because the FTCA waiver "only extends to torts committed by government employees
'under circumstances where the United States, if a private person, would be liable to the
claimant[.]'" Guttridge v. United States, 927 F.2d 730, 731-32 (2d Cir. 1991) (quoting
28 U.S.C. § 1346(b»; see also Whittington v. United States, 2004 WL 1088283, at *1-3
(6th Cir. May 5, 2004) (affirming dismissal for lack of subject matter jurisdiction because
plaintiff did not establish that government owed it a duty of care).
The existence of a legal duty is the first element of common law negligence under
Vermont law, see Langle v. Kurkul, 146 Vt. 513, 518, 510 A.2d 1301,1304 (1986), and a
negligence claim must fail absent a legal duty running from the defendant to the plaintiff,

see Rubin v. Town ofPoultney, 168 Vt. 624, 625, 721 A.2d 504,506 (1998). The
Government offers two arguments as to why it owed no duty to Plaintiff in this case.
First, it argues that the parking lot in which Plaintiff fell is outside the premises that
USPS subleased from NEPO, and therefore USPS does not own, lease, occupy, or control
the parking lot. Second, it argues that snow and ice during the winter months in Vermont
present an "open and obvious" danger from which USPS had no duty to protect Plaintiff.
6

In response, Plaintiff disputes that the parking lot is outside USPS's leasehold, and argues
that, in any case, USPS assumed control over the parking lot when it engaged LV to
maintain the parking area and walkways adjacent to the Post Office building. Plaintiff
further argues that it would be premature to decide whether the slippery parking lot was
"open and obvious."

In Vermont, whether a legal duty exists is primarily a question of law, see Denis
Bail Bonds, Inc. v. State, 159 Vt. 481, 487, 622 A.2d 495,499 (1993), that is "ultimately
a question of fairness." Langle, 146 Vt. at 520,510 A.2d at 1305 (internal quotation
marks omitted). A court must consider the relationship between the parties, the nature of
the risk (including its foreseeability), and the public policy implications of imposing a
duty on the defendant to protect against the risk. Id.
Pursuant to these principles, Vermont has recognized that the "owner or occupier
of land owes a business invitee the duty to maintain the premises in a safe condition,
suitable for use by the invitee." Seewaldt v. Mount Snow, Ltd., 150 Vt. 238, 241,552
A.2d 1201, 1202 (1988) (internal citation omitted). "This duty requires the business
owner or operator to use reasonable care to keep its premises in a safe and suitable
condition so that [the invitee will] not be unnecessarily or unreasonably exposed to
danger." Id. (internal quotation marks omitted); see also Smith v. Monmaney & Speno,
127 Vt. 585, 588,255 A.2d 674,676 (1969) (holding that duty extends to danger incident
to accumulations of ice and snow), overruled on other grounds by Favreau v. Miller, 156
Vt. 222, 227, 591 A.2d 68, 72 (1991). In addition, the business owner has a duty to warn
invitees of known dangerous conditions. See Farnham v. Inland Sea Resort Props., Inc.,
2003 VT 23,

~

10, 175 Vt. 500, 824 A.2d 554 (citing Peters v. State, 161 Vt. 582, 583,

636 A.2d 340,341 (1993)). The duty to ensure reasonably safe premises arises out of the
defendant's "occupancy, ownership, [or] control ... of such premises[.]" Ortiz v. Rock
Cut Deli, 2003 WL 68034, at *2 (S.D.N.Y. Jan. 7,2003) (internal quotation marks
omitted); see also Beaulac v. Robie, 92 Vt. 27, 102 A. 88, 91 (1917) (holding that duty to
ensure reasonably safe premises arises out of "control" or "possession" of the premises).

7

Contrary to the Government's contention, whether the Sublease includes the
parking lot is not dispositive of whether USPS had sufficient control over the parking lot
to give rise to a legal duty of care. Although the Vermont Supreme Court has not directly
addressed the issue, courts generally recognize that a lessee's duty of care may arise from
exercising control over an area which its lessor has agreed to maintain. For example, in

Farrar v. Teicholz, 570 N.Y.S.2d 329 (N.Y. App. Div. 1991), the plaintiff tripped and fell
in the parking lot of the Shrub Oak Shopping Center, approximately twenty feet from the
entrance to A&P Supermarket. Plaintiff sued A&P for failing to maintain the parking lot,
even though A&P was a lessee whose leasehold did not include the parking area where
the plaintiff fell. A&P moved for summary judgment, arguing that it did not owe the
plaintiff a duty to ensure that the parking lot was reasonably safe. The court explained
that the "determinative factor is one of possession or control," and denied A&P's motion
for summary judgment because A&P's manager routinely inspected the parking lot and
called "A&P maintenance" with any complaints, and A&P maintenance would either
notify its landlord of the problem or assign a contractor to perform the necessary work.

Id. at 331-32. As a Florida appellate court explained:
[T]he common law duties owed to invitees by landowners and those
lawfully possessing property remain intact. The law is clear that more than
one party may have a duty to persons entering the premises. In addition,
the fact that one person is under a duty and one fails to perform is no
defense to one who has assumed control. ... Thus, it is not ownership of
the property which determines the duty of care, but rather the failure of a
person who is in actual possession and control (be it the owner, an agent, a
lessee, a construction contractor, or other possessor with authority or
control), to use due care to warn or to exclude, licensees and invitees from
areas known to the possessor to be dangerous because of operations or
activities or conditions.

Worth v. Eugene Gentile Builders, 697 So. 2d 945,947 (Fla. Dist. Ct. App. 1997)
(internal citations omitted); see also Krieger v. The Wilson Corp., 131 P.3d 661,672-73
(N.M. Ct. App. 2005) ("We agree ... that it is not sufficient to simply say that the leased
premises was the restaurant only, therefore Lessee had no control over the parking lot,
and therefore Lessee has no liability for Krieger's injury. Control is a factual issue ...
8

[and] [s]ignificant to the inquiry of control would be to know how long the defect had
been there, whether there was any agreement ... regarding the parking lot, or the actions
of the parties in relation to the care and use of the parking lot."); Doe v. CloverleafMall,
829 F. Supp. 866, 870 (S.D. Miss. 1993) ("A tenant's duty also extends to areas of the
premises not within the leasehold but as to which the tenant ... exercises actual
possession or control. And in the latter instance, that duty of care to invitees devolves
upon the tenant even though the lessor has contracted to maintain and repair those parts
of the premises."); Wal-Mart Stores, Inc. v. Alexander, 868 S.W.2d 322,324 (Tex. 1993)
("A lessee is responsible for those areas adjacent to the demised premises which it
actually controls."); 62 AM. JUR. 2D Premises Liability § 12 (2011) ("a lessee who
assumes actual control over a portion of adjacent property also assumes legal
responsibility for that adjacent portion, even though none of the adjacent property is
included in the lease").
Here, USPS and its invitees had the right to park in and travel over the parking lot.
USPS then "entered into a letter agreement with [LV] for maintenance ofthe parking lot
and sidewalks outside the Post Office building." (Doc. 63-1 ,-r 10.) Accordingly, by the
Government's own admission, LV was a "contractor hired to perform services for
[USPS]," services which included "shoveling, sanding, salting, and removing ice" in the
"parking lot outside of the Post Office building." Id.,-r 11. In addition, USPS monitored
the condition of the parking lot, generally supervised and evaluated LV's performance of
the maintenance contract, and contacted LV when the terms of the maintenance contract
were not being met. Id.,-r,-r 13-14. In fact, Postmaster Daley contacted LV to remind it to
"address the condition of the parking lot" on the same day that Plaintiff fell. (Doc. 66-1,
Response Nos. 4 & 5) The Government now argues that it "is illogical to assert that
[USPS] contracted with a third party to maintain an area not covered by its Sublease and
an area for which [LV] already had an explicit, independent obligation to maintain."
(Doc. 66 at 3.) Illogical or not, the record developed through jurisdictional discovery
(including affidavits and interrogatory responses submitted by the Government) supports
that conclusion.
9

Guided by this case law from other jurisdictions, as well as the relevant factors
(including public policy considerations) for determining duty under Vermont law, the
court concludes that USPS assumed sufficient control over maintenance of the parking lot
to preclude dismissing the Amended Complaint on the grounds that the Government did
not owe Plaintiff a duty of care. 1
The Government's next argument, that it owed no duty in this case because
Plaintiff alleges a dangerous condition that was "open and obvious," fails as a matter of
law. The Government relies on the Vermont Supreme Court's pronouncement that the
"business invitee ha[s] a right to assume that the premises, aside from obvious dangers,
[are] reasonably safe for the purpose for which he [is] upon them, and that proper
precaution [has] been taken to make them so." Dalury v. S-K-L Ltd., 164 Vt. 329, 334­
35,670 A.2d 795, 799 (1995) (emphasis supplied). But "in Vermont, the obviousness of
a danger is an issue bearing on the plaintiff's negligence, not the defendant's lack of
duty." Wisdom v. TJX Cos., Inc., 410 F. Supp. 2d 336,344-45 (D. Vt. 2006); see also

Hoar v. Sherburne Corp., 327 F. Supp. 570, 578 (D. Vt. 1971) ("The risk of unsafe
premises is not assumed by business [invitees], although licensees (and trespassers)
assume the risk of obvious dangers."). Accordingly, a determination that the icy area on
which Plaintiff fell was "obvious" would be relevant to whether Plaintiff was
1 Even if USPS did not "control" the parking lot in which Plaintiff fell, and therefore did not
have a duty to maintain and repair the parking lot, USPS may still owe a duty to warn its invitees
about the presence of dangerous conditions of which it had knowledge. See Restatement
(Second) of Torts § 360, comment a. (1965) ("The lessee may ... know that the common
entrance to the apartment or office which he has leased has become dangerous for use because of
the lessor's failure to maintain it in safe condition. His knowledge may subject him to liability
... ifhe fails to warn ... of the danger."); Kendzierski v. Delaware Federal Credit Union, 2009
WL 342895, at *5 (Del. Super. Ct. Feb. 4, 2009) ("while a lessor's retention of control over
portions of a leased premise relieves the lessee of its obligation to maintain those portions in a
reasonably safe condition, it does not imply that the lessee also avoids the duty to warn of such
dangers when the lessor fails in its duty"); Hopkins v. F. W Woolworth Co., 419 N.E.2d 302,
304 (Mass. App. Ct. 1981) ("Even if a finding were warranted that Woolworth had no control
over the sidewalk on which the plaintiff fell, it would not be relieved from its duty to warn its
invitees of danger."). Plaintiff has brought a failure to warn claim against the Government, and
the record shows that Postmaster Daley was aware of ice in the parking lot on the day Plaintiff
fell. Thus, USPS's duty to warn independently establishes this court's subject matter jurisdiction
under the FTCA.

10

contributorily negligent, but not to whether the Government owed Plaintiff a duty of care
in the first instance. See Lattrel! v. Swain, 127 Vt. 33,40,239 A.2d 195,200 (1968)
("Where a defect or danger is patent or obvious it is contributory negligence to fail to
exercise ordinary care to avoid it."); Wal! v. A. N Deringer, Inc., 119 Vt. 36, 38,117
A.2d 390, 391 (1955) (holding plaintiff contributorily negligent for failing to notice, and
consequently falling over, a six-inch step in defendant's place of business).
Moreover, there is no rule in Vermont that ice and snow during the winter months
are per se "open and obvious," and whether Plaintiff was negligent in failing to observe
the dangerous condition presents a factual issue for jury resolution. See Wisdom, 410F.
Supp. 2d at 344; Wakefieldv. Tygate Motel Corp., 161 Vt. 395, 398, 640 A.2d 981,982
(1994) (explaining that one responsible for the premises has a duty to use reasonable care
to keep the premises "safe from accumulation of ice and snow"); Monmaney, 127 Vt. at
589,255 A.2d at 674 ("The presence of [ice and snow] upon the common [walkway] ...
is sufficient to compose a question for the jury on liability for injuries arising from the
danger ....").
In sum, the Government's assertion that it did not owe Plaintiff a duty of care is
not a ground on which Plaintiff s Amended Complaint can be dismissed. The record
amassed during jurisdictional discovery supports a conclusion that USPS had a duty of
care because it asserted some measure of control over the parking lot in which Plaintiff
fell, and had knowledge that ice and snow were present in the parking lot on the day in
question which arguably gave rise to a duty to warn. In such circumstances, the FTCA
waives sovereign immunity to the extent a private person could be liable on the same
basis. See 28 U.S.C. § 1346(b). Whether the snow and ice on which Plaintiff fell were
"open and obvious" cannot be decided as a matter of law and must await further factual
development.
ii,

The Government is Immune from Claims Based Upon LV's Negligent
Conduct.

The Government next argues that it is immune from Plaintiff s claims because the

11

Government contracted LV to maintain the parking lot, and the FTCA does not waive
immunity for claims based upon the negligence of government contractors. In other
words, because the Government contracted away whatever duty it had to maintain the
parking lot, Plaintiffs claims are not premised upon the wrongful act or omission of any
Government employee, and therefore the FTCA provides no waiver of sovereign
immunity. Plaintiff responds that USPS employees retained the duty to warn even if
USPS contracted away its duty to maintain or repair the parking lot, and therefore the
FTCA waives immunity for Plaintiff s failure to warn claim.
The FTCA permits actions against the United States for "personal injury or death
caused by the negligence or wrongful act or omission of any employee of the
Government while acting within the scope of his office or employment." 28 U.S.c. §
1346(b). The FTCA defines "employees of the Government" to include "officers or
employees of any federal agency[.]" 28 U.S.C. § 2671. The term "federal agency"
includes "the executive departments, the judicial and legislative branches, the military
departments, independent establishments of the United States ... but does not include

any contractor with the United States." Id. (emphasis supplied). "Thus, as a general rule,
sovereign immunity precludes suits against the United States for injuries caused by its
independent contractors." Roditis v. United States, 122 F.3d 108, 111 (2d Cir. 1997).
The issue of whether an individual or entity is a government employee is a
question of federal law. See United States v. Orleans, 425 U.S. 807, 813-14 (1976). "A
critical element in distinguishing an [employee] from a contractor is the power of the
Federal Government 'to control the detailed physical performance of the contractor.''' Id.
at 814 (quoting Logue v. United States, 412 U.S. 521, 528 (1973)). When the
Government lacks that power, or does not supervise the "day-to-day operations" of an
entity it has hired, such factors weigh against finding an employment relationship. Id. at
815. Other factors that favor "contractor" status include the ability of an entity to
discipline its own employees or subcontractor, see Cruz v. United States, 70 F. Supp. 2d
1290, 1294 (S.D. Fla. 1998), and an entity's obligation to provide its own equipment,
employees, or subcontractor to perform the work, see Bergho.ffv. United States, 737 F.
12

Supp. 199,202 (S.D.N.Y. 1989). Finally, courts recognize that the "government's
retention of a right to inspect the progress of [an entity's work], does not convert a
contractor into a federal employee." Roditis, 122 F.3d at 111.
In this case, Plaintiff does not dispute that LV was an independent contractor at
the time of Plaintiffs fall. In its maintenance agreement with USPS, LV agreed to
"[p]low/sand parking lot as needed," and "[s]hovel, sand, salt, remove ice as needed."
(Doc. 63-1 at 6.) In performing these obligations, LV hired its own subcontractor, Mr.
Gordon, who provided the equipment, employees, and insurance necessary to complete
the work. Postmaster Daley monitored LV's compliance with the agreement, but "never
provided detailed day-to-day supervision of the performance of [LV's] employees" or
subcontractor. (Doc. 63-1

~~

13-14, 16-17.) Courts, including this one, have recognized

that similar maintenance agreements establish contractor relationships under the FTCA.
See Dingler v. United States, 2008 WL 4065642, at *1-4 (D. Vt. Aug. 26, 2008) (finding
that entity who contracted with United States to "inspect, maintain, repair, test and clean"
the elevators was a contractor for purposes of the FTCA); Norman v. United States, 111
F.3d 356,357-58 (3d Cir. 1997) (rejecting claim ofa slip and fall in a federal building
because United States had hired a contractor who was "given broad responsibilities for
maintenance," and who had its own employees whom the government did not directly
supervise).
Because LV was an independent contractor obligated to perform winter
maintenance on the Post Office parking lot, the FTCA does not waive sovereign
immunity for Plaintiffs negligent maintenance claims against the Government. As a
result, this court lacks subject matter jurisdiction over such claims, and they must be
dismissed.
However, as Plaintiff correctly points out, and as the Government concedes, LV
was not obligated to warn of any dangerous conditions present in the Post Office parking
lot. See Doc. 66 at 3-4. Thus, Plaintiffs failure to warn claim alleges wrongful conduct
or omissions on the part of government employees, and the government contractor
exception to the FTCA's waiver of sovereign immunity does not apply.
13

iii.

The Government's Failure to Warn was not a "Discretionary
Function" Under the FTCA.

The Government contends that it is nonetheless immune from Plaintiff s failure to
warn claim because its decision to hire a contractor was discretionary in nature and
subsumed any duty to warn USPS customers about the alleged slippery conditions in the
parking lot. In addition, the Government argues that the decision whether to warn is
itself discretionary. Plaintiff disagrees, and argues that USPS has failed to identify a
"discretionary function" in the context of its failure to warn.
The "discretionary function exception" to the FTCA provides that the United
States is not liable for a "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, whether or not the discretion involved be abused." 28
U.S.C. § 2680(a). This exception to the FTCA's waiver immunity "prevent[s] judicial
'second-guessing of legislative and administrative decisions grounded in social,
economic, and political policy through the medium of an action in tort." United States v.
S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797, 814
(1984). By immunizing such decisions, the discretionary function exception "protect[s]
the Government from liability that would seriously handicap efficient government
operations." Id. The Government bears the burden of proving that the discretionary
function exception applies. See Cestonaro v. United States, 211 F.3d 749,756 n.5 (3d
Cir. 2000); see also 14 Wright & Miller, Federal Practice and Procedure § 3658 (3d ed.
1998) ("[M]ost courts have concluded that the burden of proving the applicability of the
discretionary-function exception falls upon the United States.")
In United States v. Gaubert, 499 U.S. 315, 322 (1991) and Berkovitz v. United
States, 486 U.S. 531, 536 (1988) the Supreme Court set forth two requirements for an
action to be a "discretionary function" under the FTCA. First, "the act must involve an
element ofjudgment or choice. An act does not involve an element ofjudgment or
choice if it is mandatory; if' a federal statute, regulation, or policy specifically prescribes
a course of action for an employee to follow ... the employee has no rightful option but
14

to adhere to the directive."? In re World Trade Center Disaster Site Litig., 521 F.3d 169,
195 (2d Cir. 2008) (quoting Berkovitz, 486 U.S. at 536) (other internal quotation marks
omitted). Second, "the judgment ... in question must be grounded in 'considerations of
public policy' or susceptible to policy analysis." Coulthurst v. United States, 214 F.3d
106, 109 (2d Cir. 2000) (quoting Gaubert, 499 U.S. at 322-23). "Not every act that
involves 'discretion' is protected." In re World Trade Center, 521 F.3d at 195.
The Government argues that the exercise of discretion lies in its decision to hire a
contractor who had special expertise in ameliorating the conditions that allegedly gave
rise to Plaintiffs slip and fall. It contends that because it exercised discretion in selecting
the contractor, and required that entity to maintain the area in question, the discretionary
function exception to a waiver of sovereign immunity protects it from failure to warn
claims. The problem with this argument is twofold.
First, the Government points to no evidence that LV agreed to assume
responsibility for making safety judgments. At best, the letter agreement between LV
and USPS merely requires LV to plow, salt, shovel, sand, and remove ice "as needed"
and "if necessary" without identifying which party will make this determination, or any
consequences for the failure to do so. (Doc. 63-1.) Mr. Gordon, in turn, understood that
his obligation was to "[sland and salt when needed or asked for by store or parking lot
owner." (Doc. 63-4, Answer No.6). This is a far cry from a "comprehensive instrument
providing that [the contractor] was responsible for maintenance of the [p]remises ...
including ensuring that the floors were free of debris and slip-resistant[,] for having an
engineer on call twenty-four hours per day lest things go awry at the [p]remises[,] ...
[and] for the daily operations of the [p]remises." Williams v. United States, 50 F.3d 299,
307 (4th Cir. 1995); see also Fraser v. United States, 490 F. Supp. 2d 302, 310 (E.D.N.Y.
2007) (contract "mandated" that contractor "not only maintain the physical property on
which it was working, but also "provide and maintain work environments and procedures
which will ... safeguard the public and Government personnel, property, materials,
supplies and equipment exposed to Contractor operations and activities," "[t]ake all
reasonable steps and precautions to prevent accidents and preserve the life and health of
15

contractor and Government personnel performing or in any [] way coming in contact with
the performance of this contract[,]" and assume all responsibility for any damages as a
result of its fault or negligence).
Second, as previously noted, the USPS exercised at least some control over the
parking lot, and contacted LV on the day in question "to take care of the parking lot as
required by the letter agreement between the [USPS] and [LV]." (Doc. 66-1, Response
No.5.) Although the retention of some supervisory authority will not automatically
defeat a discretionary function exception, it must be coupled with delegation of the day­
to-day task of detecting and repairing unsafe conditions in order for the exception to
apply. Here, it cannot be said that USPS delegated to LV the task of ensuring the safety
of the parking lot, including the duty to warn. See DujJv. United States, 999 F.2d 1280,
1281-82 (8th Cir. 1993) (finding that the government delegated to the contractor the
obligation to "take all reasonable steps and precautions to prevent accidents" and holding
that"[t]he exercise of discretion here occurred when the government decided to delegate
to its contractor responsibility for making safety judgments ... Because the government's
decision to delegate responsibility for safety is covered by the [discretionary function]
exception, we will find jurisdiction only if the government has also retained and
exercised control over the project's safety.").
The Government next argues that the decision to warn is itself discretionary as it
involves judgment, choice, and policy considerations and thus is immunized from judicial
second-guessing. Plaintiff counters that, in this case, the failure to warn violated a
mandatory policy of the USPS Supervisor's Safety Handbook (the "Handbook") which
states that supervisors "must establish snow and ice removal plans where necessary," and
"[p]rovide for reinspection and cleaning as often as necessary to handle drifting snow and
refreezing." (Doc. 63-6 at 82) (emphasis supplied). The Handbook does not, however,
require the posting of warnings and allows the establishment of snow and ice removal
plans "where necessary," and reinspection and cleaning "as often as necessary." Id.
Because these directives require an element ofjudgment or choice for their
implementation, the discretionary function exception's first requirement is satisfied. See
16

Summers v. United States, 905 F.2d 1212, 1225 (9th Cir. 1990) (finding failure to post
warning sign was discretionary because the decision did not contravene a prescriptive
federal statute, regulation, or policy).
As to the second requirement, the court must consider whether the failure to warn
of icy conditions was "grounded in considerations of public policy" or "susceptible to
policy analysis." The inquiry into the policy implications of a particular discretionary
decision or act focuses "not on the agent's subjective intent in exercising the
discretion ... , but on the nature of the actions taken," and the decisions made. Gaubert,
499 U.S. at 322. The nature of the decision in this case-whether to post a warning sign
about ice in the parking lot-requires only judgment about the severity of snow and ice
conditions on a particular day, not an assessment of competing economic, social, or
political policy considerations. See Summers, 905 F.2d at 1215 ("where the challenged
governmental activity involves safety considerations, the rationale for the [discretionary
function] exception falls away and the U.S. will be responsible for the negligence of its
employees") (quoting ARA Leisure Servs. v. United States, 831 F.2d 193, 195 (9th Cir.
1987)).
The Government apparently contends that liability for the United States on a
failure to warn theory is always barred by the discretionary function exception. See Doc.
63 at 17. But "a failure to warn falls within the discretionary function exception only if it
implicates political or economic policy considerations," Lesoeur v. United States, 21 F.3d
965,970 (9th Cir. 1994), and FTCA cases concerning the Government's duty to warn are
divided accordingly. Compare Reichart v. United States, 695 F. Supp. 2d 8, 15
(W.D.N.Y. 2010) (finding that Government's failure to warn of an unsafe pier used for
public recreation purposes was a discretionary function immunized from liability where
Army Corps chose from three alternatives in deciding not to post warnings), with Boyd v.
United States, 881 F.2d 895, 898 (lOth Cir. 1989) (finding that Government's failure to
warn swimmers of dangerous conditions in popular swimming area "does not implicate
any social, economic, or political policy judgments with which the discretionary function
exception is properly concerned.").
17

Courts that have held that a failure to warn fits within the discretionary function
exception have found, as Gaubert requires, that the Government's decision not to warn
served identifiable economic, social, or political policy interests. For example, in Kiehn
v. United States, 984 F.2d 1100 (lOth Cir. 1993), the plaintiff was injured after he fell
from a cliff in Little Rainbow Park, a remote area of Dinosaur National Monument. ld. at
1101. The plaintiff brought suit against the United States, challenging the National Park
Service's ("NPS") decision to not post warning signs at the location of his fall. The
Tenth Circuit held that this decision was grounded in policy considerations because it
furthered "the fundamental purpose of ... monuments ... [which] is to conserve the
scenery and the natural and historic objects and the wild life therein and to provide for the
enjoyment of future generations." ld. at 1104 (quoting 16 U.S.C. § 1 (l988)). The court
also noted an NPS Management Policy "of carefully using signs so as to minimize their
intrusion upon the area's natural and historical setting." ld.
Similarly, in Lesoeur, supra, the plaintiff alleged that NPS should have warned her
about the dangers of white water rafting tours with the Hualapai Indian Tribe in Grand
Canyon National Park. The plaintiff's failure to warn claim was barred by the
discretionary function exception because, in declining to provide warnings, NPS
furthered important political interests. The court explained that "[i]t is not difficult to see
how relations between the Tribe and the United States could have been ... adversely
affected by the NPS' warning Park visitors of using the Tribe's tours[.]" Lesoeur, 21
F3d at 970. While safety warnings that could affect tribal relations cannot be challenged
in a tort claim against the United States, the court cautioned that "[i]n the usual case, the
failure to warn involves only 'safety considerations under an established policy, rather
than the balancing of competing policy considerations." ld. (quoting Summers, 905 F.2d
at 1215). In such cases, "the discretionary function exception does not apply." ld.
As the Ninth Circuit acknowledged in Lesoeur, the Government's failure to warn
is not immunized in the absence of identifiable social, economic, or political policy
interests competing with basic safety concerns. The Second Circuit recognized this
principle in Andrulonis v. United States, 952 F.2d 652 (2d Cir. 1991). There, a scientist
18

from the Center for Disease Control ("CDC") failed to warn his colleague about the
dangers of conducting experiments with a viral strain of the rabies disease. Id. at 653.
The Government attempted to invoke the discretionary function exception, arguing that
the scientist's decision to permit experimentation without a warning furthered the general
CDC policy of eradicating rabies. In finding no discretionary function, the court
explained that no policy interest could be served by the failure to warn: "Nothing
indicates that CDC policy required, or even encouraged, [the scientist] to ignore unsafe
laboratory conditions and thereby unnecessarily place the lives of laboratory workers at
risk in order to further a scientific cause or any other objective of the government." Id. at
655. The court added that "it is hardly conceivable that the CDC would ever have a
policy to keep silent about obvious, easily-correctable dangers in experiments using drugs
supplied by the CDC." Id.
In this case, the Government has not identified any social, economic, or political
policy interests that were at stake when the decision not to post a warning sign was made.
The Government cites only the Handbook as defining the "policy" at issue here. The
Handbook, however, merely directs USPS supervisors to provide for snow and ice
removal whenever snow and ice removal is necessary. Liability for the negligent
implementation of this policy cannot be said to "seriously handicap efficient government
operations." Varig Airlines, 467 U.S. at 814. Thus, the decision of whether to warn
required consideration only of customer safety, without any countervailing policy
interests. Cf Brown v. United States, 661 F. Supp. 2d 341, 363 (E.D.N.Y. 2009) ("The
decision of whether and where to post warning signs at the beach involves a weighing of
safety concerns with considerations of aesthetics and the need to preserve park resources
as well as concerns for cost and staffing issues.") Accordingly, the Government's failure
to warn was not grounded in or susceptible to a policy analysis, and the discretionary
function exception does not apply. See Smith v. United States, 546 F.2d 872, 877 n.5
(lOth Cir. 1976) (finding that discretionary function exception does not apply when
decision not to post warning sign was "not related to any policy decision, but to [a
perceived] lack of need for warning there.").
19

B.

The Government's Rule 12(b)(6) Motion to Dismiss.

Relying on the heightened pleading standard announced in Iqbal and Twombly,

supra, the Government argues that Plaintiffs Amended Complaint contains insufficient
factual allegations to state a plausible negligence claim.
The elements of common law negligence in Vermont are: (1) the defendant must
owe a legal duty to protect the plaintiff from an unreasonable risk of harm; (2) the
defendant must have committed a breach of this duty by failing to exercise reasonable
care; (3) the defendant's conduct must be the proximate cause of the plaintiffs injury;
and (4) the plaintiff must have suffered actual loss or damage. See Langle, 146 Vt. at
518, 510 A.2d at 1304. A business owner breaches its duty when it fails to repair or warn
of dangerous conditions on the premises. See Farnham, 2003 VT 23,

~

10.

Plaintiff alleges that, on the day in question, (1) snow and ice present in the
parking lot adjacent to the Post Office building created slippery conditions; (2) no signs
warning of the slippery conditions were posted in the parking lot; and (3) the slippery
conditions caused Plaintiff to fall to the ground in the parking lot. See Doc. 9 ~~ 14-18.
Plaintiff further alleges that USPS had contracted with LV to provide maintenance
services for the premises at which Plaintiff was injured. Id.

~

12. As required by Iqbal

and Twombly, these averments are facts, and not merely "labels and conclusions," or a
"formulaic recitation of the elements of a cause of action." Twombly, 550 U.S. at 555
(citations omitted). From these facts it is reasonable to infer that USPS owed Plaintiff a
duty to maintain the parking lot and warn of dangerous conditions thereon, that USPS
knew or should have known of a dangerous condition existing in the parking lot
immediately adjacent to its building, that USPS failed to warn of such danger before it
was remedied, and that, but for the failure to warn, Plaintiff would not have been injured.
Plaintiff may not ultimately recover on his claims, if, for example, USPS acted
reasonably under the circumstances, or if the ice on which Plaintiff slipped was an
obvious danger, but these are fact questions that cannot be resolved on a Rule 12(b)(6)
motion to dismiss. See generally Forcier v. Grand Union Stores, Inc., 128 Vt. 389, 393,
264 A.2d 796, 799 (1970); Shea v. Peter Glenn Shops, Inc., 132 Vt. 317, 319, 318 A.2d
20

177,178 (1974). Plaintiffs Amended Complaint sets forth a plausible claim, and
therefore the Government's motion to dismiss must be denied. See Fed. R. Civ. P.
12(b)(6).

IV.

Conclusion.
For the foregoing reasons, the Government's Rule 12(b)(6) motion to dismiss for

failure to state a claim (Doc. 63) is DENIED. The Government's Rule 12(b)(1) motion to
dismiss for lack of subject matter jurisdiction (Doc. 63) is GRANTED in part and
DENIED in part. Plaintiffs claims against the Government alleging a failure to maintain
or repair the Post Office parking lot as a result of LV's negligence are dismissed. The
Government's motion is DENIED in all other respects.
SO ORDERED.

JIDated at Rutland, in the District of Vermont, this 21 day of June, 2011.

United States District Court

21