A painter that suffered serious injury on a U.S. Navy construction project was not entitled to recover against the government for alleged failure to supervise the work of an independent contractor, where the government fulfilled any duty it might have had to supervise work involving peculiar risk by contractually requiring its contractor to develop an approved safety plan, and where any control retained by the Navy to monitor and suspend the contractor’s work did not go beyond its general right and thus did not raise a legal issue as to whether it failed to reasonably exercise retained control over the work.

The plaintiff, Pamela Wood, a painter, was seriously injured when the manlift in which she was riding up the scaffolding system broke away from the building and fell about 70 feet. OSHA conducted an investigation of the accident and cited Abhe & Svoboda, the contractor that employed Wood, with numerous safety violations. Violations included a failure to have a competent person inspect suspended work platforms and failure to train employees in the proper use and load capacities of scaffolds. OSHA also cited the contractor for willful violations based on its construction of the scaffolding. Wood filed suit against the government, arguing that the Navy’s Resident Officer in Charge of Construction (“ROICC”) was responsible for inspecting the contractor’s operations and assuring that the work was performed safely.

According to the court, at least one official from the ROICC acknowledged that he knew prior to the accident that the Contractor was not in one hundred percent compliance with the safety plan. But, the court said there was no evidence that anyone from the ROICC was aware in advance of the particular safety violations contributing to this accident. Moreover, the court found “none of the evidence suggests that anyone from ROICC failed to report any known safety violation to [Contractor] prior to [the accident].” The plaintiff argued that the government, as landowner, was under a duty to use reasonable care to prevent risks arising from known and obvious conditions on the land that could reasonably be anticipated to cause harm to others, and that the government was required to prevent risks arising from the obviously improper construction and use of scaffolding by the Contractor in violation of the safety plan.

To get around the general rule of law that “the employer of an independent contractor is not liable for the physical harm caused to another by an act or omission of the contractor or his servants,” the plaintiff argued that the risk in this case was a “peculiar risk” that created such danger that it constituted a legal exception to the general rule. The court rejected both theories of recovery. With regard to the Navy’s exercise of reasonable care, the court said that since the contract between the Navy and Contractor provided for the Contractor “to take the necessary special precautions by requiring an approved safety plan,” the Navy fulfilled its duties. With regard to the “peculiar risk” theory, the plaintiff would have to prove that the Navy retained a degree of control over the independent contractor’s work, and that the Navy failed to reasonably exercise its retained control to monitor and to suspend work.

In granting the government’s motion to dismiss the causes of action based on the alleged failure of the Navy to exercise retained control and failure to make appropriate decisions to maintain a safe job site, the court held that the government had not waived its sovereign immunity to allow suits alleging violation of discretionary duties such as those involved here. Under the Federal Tort Claims Act (“FTCA”), a plaintiff is limited in the matters it can bring against the federal government. The court concluded that both the monitoring and the right to suspend work were discretionary functions of the government, and that no statute, regulation or policy explicitly mandated the circumstances under which the Navy was to suspend work or the frequency or method of monitoring the Contractor’s safety. Under the FTCA, “a function is non-discretionary only when a federal statute, regulation, or policy specifically prescribes a course of action for an employee to follow.”

Interestingly, the court found that by reading the contract and the Navy’s letter delegating responsibilities to the Contractor together, it could be said that the Navy has some nondiscretionary duties related to the Contractor. “First, to the extent ROICC Cutler was aware of a safety violation, it had a nondiscretionary duty to inform the Contractor of the safety violation…. For example, if ROICC Cutler personnel conducting an inspection observed that a [Contractor] employee was not using his or her safety harness, ROICC Cutler was required to bring that to the attention of the Contractor. Similarly, it could be said that ROICC Cutler had a nondiscretionary duty to ensure that [Contractor’s] safety plan met the requirements laid out in the Contract. Thus, it could not choose to approve a safety plan that fell short of the Contract’s requirements.” But as pointed out by the court, the plaintiff in this case didn’t argue that the conduct that caused the harm in this case stemmed from the Navy’s approval of an inadequate safety plan or from the Navy’s failure to notify the Contractor of known safety violations.” “Rather, Plaintiffs rely on ROICC Cutler’s failure to ensure contractor compliance with the safety plans.”

The court concluded that this argument must fail because it was within the Navy’s discretion to decide how to best monitor safety compliance. And the Navy in turn delegated its discretion to the ROICC “which was in a better position to monitor the Contractor because of its on-site location. Whether ROICC Cutler chose to conduct monthly, weekly or daily inspections or simply to rely on the Contractor’s daily logs, their monitoring remained discretionary.” In its final analysis, the court found that the “inspections conducted by ROICC Cutler are not distinguishable from the OSHA inspections … found to fall within the discretionary function exception” to the government’s waiver of sovereign immunity. The discretionary function exception thus “protects these policy judgments from review by this court.”

In addition, the court found that “no reasonable jury could find that the Navy was supervising the day-to-day operations of [Contractor].” Consequently, claims that the Navy was liable for the apparent negligence of the Contractor were barred by the independent contractor exception which holds that claims against the United States are barred unless the independent contractor’s day-to-day operations are supervised by the Federal Government. For these reasons, the court dismissed the Plaintiff’s case for lack of subject matter jurisdiction. Wood v. U.S., 148 F.Supp. 2d. 68 (D.C.,D.Maine, 2001).

Risk Management Note: This case is included in this newsletter because of the several lessons to be learned from it. First, actions such as failure to enforce a safety plan or to suspend work for safety violations is deemed to be discretionary decisions of the government that are protected by sovereign immunity. Second, by avoiding day-to-day monitoring of the contractor’s work, the government was again protected by sovereign immunity pursuant to the “independent contractor exception” to the waiver of sovereign immunity. These principles may have similar applicability in suits against states or local governments that have preserved their sovereign immunity with regard to similar matters. Finally, it is possible that even private owners may find some comfort in this court’s conclusions that the owner’s responsibility for an independent contractor is limited, and that an owner’s failure to enforce a contractor’s safety plan or suspend work may not establish owner liability. Perhaps this demonstrates the wisdom of including language in the contracts clearly stating that the contractor or consultant is “an independent contractor.”

About the author: Article written by J. Kent Holland, Jr.,  a construction lawyer located in Tysons Corner, Virginia,  with a national practice (formerly with Wickwire Gavin, P.C. and now with Construction Risk Counsel, PLLC) representing design professionals, contractors and project owners.  He is founder and president of a consulting firm, ConstructionRisk, LLC, providing consulting services to owners, design professionals, contractors and attorneys on construction projects.  He is publisher of ConstructionRisk.com Report and may be reached at Kent@ConstructionRisk.com or by calling 703-623-1932.  This article is published in ConstructionRisk.com Report, Vol. 4, No. 3 (Mar 2002).

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