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Hodge v. United States

United States District Court, W.D. Oklahoma

September 29, 2017

DANIEL HODGE, Plaintiff,
v.
UNITED STATES OF AMERICA, Defendant.

          ORDER

          TIMOTHY D. DEGIUSTI, UNITED STATES DISTRICT JUDGE.

         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); 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.

         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]

         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 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 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 ...


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