Filed: Apr. 11, 1997
Latest Update: Mar. 02, 2020
Summary: Opinions of the United 1997 Decisions States Court of Appeals for the Third Circuit 4-11-1997 Norman v. United States Precedential or Non-Precedential: Docket 96-1645 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1997 Recommended Citation "Norman v. United States" (1997). 1997 Decisions. Paper 82. http://digitalcommons.law.villanova.edu/thirdcircuit_1997/82 This decision is brought to you for free and open access by the Opinions of the United States Co
Summary: Opinions of the United 1997 Decisions States Court of Appeals for the Third Circuit 4-11-1997 Norman v. United States Precedential or Non-Precedential: Docket 96-1645 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1997 Recommended Citation "Norman v. United States" (1997). 1997 Decisions. Paper 82. http://digitalcommons.law.villanova.edu/thirdcircuit_1997/82 This decision is brought to you for free and open access by the Opinions of the United States Cou..
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Opinions of the United
1997 Decisions States Court of Appeals
for the Third Circuit
4-11-1997
Norman v. United States
Precedential or Non-Precedential:
Docket 96-1645
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1997
Recommended Citation
"Norman v. United States" (1997). 1997 Decisions. Paper 82.
http://digitalcommons.law.villanova.edu/thirdcircuit_1997/82
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 1997 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
__________________
No. 96-1645
________________
KENDALL NORMAN,
Appellant,
v.
UNITED STATES OF AMERICA,
Third-Party Plaintiff,
v.
ELWYN INDUSTRIES, and/or ELWYN, INC.,
Third-Party Defendant.
__________________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 95-cv-04111)
__________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
March 26, 1997
Before: SLOVITER, Chief Judge, STAPLETON and ALDISERT,
Circuit Judges.
(Opinion Filed: April 11, 1997)
__________________
John F. McElvenny
42 South 15th Street
Suite 1150
Robinson Building
Philadelphia, PA 19102
Michael LaRosa
LaRosa & DeLuca P.C.
7300 City Line Avenue, Ste. 300
Philadelphia, PA 19151
ATTORNEYS FOR APPELLANT
Michael R. Stiles
United States Attorney
James G. Sheehan
Assistant United States Attorney
Chief, Civil Division
Lois W. Davis
Keir N. Dougall
Assistant United States Attorney
Office of United States Attorney
615 Chestnut Street, Ste. 1250
Philadelphia, PA 19106
ATTORNEYS FOR APPELLEE
United States of America
Domenick C. DiCicco, Jr.
Simasek, Ruzzi & McKee
1818 Market Street, Ste. 3400
Philadelphia, PA 19103
ATTORNEY FOR APPELLEE
Elwyn Ind. and/or Elwyn, Inc.
__________________
OPINION OF THE COURT
__________________
ALDISERT, Circuit Judge.
The question for decision in this appeal from dismissal of
the claim for want of subject matter jurisdiction brought in an
action brought under the Federal Tort Claims Act is whether the
activity complained of comes within a recognized exception to the
Act. The Plaintiff claimed that he slipped and fell in the
Ceremonial Court Corridor of the William J. Green Federal
Building and the Byrne Courthouse Building in Philadelphia
because a film of water and ice was on the floor at the entrance
to the building.
The Federal Tort Claims Act vests exclusive
jurisdiction in district courts for claims against the United
States “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, 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 occurred.” 28
U.S.C. § 1346(b). Title 28 U.S.C. § 2671 explains that “Federal
agency” and “Employee of the government” do not include any
contractor with the United States. Thus, there is an
independent-contractor exemption in the Federal Tort Claims Act.
The district judge determined that any negligence causing the
injury was that of the independent contractor (who was brought
into this case as a third-party defendant), not that of the
United States. Therefore, the court concluded that Plaintiff's
claim came within the independent-contractor statutory exception
to the FTCA and, accordingly, dismissed the complaint for want of
subject matter jurisdiction. We affirm the judgment of the
district court.
The critical factor used to distinguish a federal
agency employee from an independent contractor is whether the
government has the power “to control the detailed physical
performance of the contractor.” United States v. Orleans 425
U.S. 807, 814 (1976) (citing Logue v. United States,
412 U.S.
521, 528 (1973)). “[T]he question here is not whether the
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[contractor] receives federal money and must comply with federal
standards and regulations, but whether its day-to-day operations
are supervised by the Federal Government.” Id. at 815. The
contractor here, Elwyn Industries, was given broad
responsibilities for daily maintenance. The contract
specifically requires Elwyn to maintain an on-site supervisor,
and explicitly states that “Government direction or supervision
of contractor's employees directly or indirectly, shall not be
exercised.” App. for Appellant at 74a.
Alternatively, appellant argues that even if Elwyn
Industries was negligent, the United States remains liable under
Pennsylvania law as the owner and possessor of the building.
There is a split in the circuits on this question. Compare
Dickerson, Inc. v. United States, 875 F.2d 1577 (11th Cir. 1989)
(interpreting Florida law and holding the government liable),
with Berkman v. United States,
957 F.2d 108 (4th Cir. 1992)
(interpreting Virginia law and holding that independent-
contractor exception precluded governmental liability even though
similar property owners might be liable under state law for
injuries resulting from unsafe conditions). We believe the
Fourth Circuit offers the better reasoned analysis and we accept
it as our own. The Berkman court stated:
Thus, while Berkman is correct in his assertion that, under
Virginia law, the United States when acting as a
landowner must maintain its property in a reasonably
safe condition, Berkman must also show that federal law
permits the application of this law to the United
States. This he fails to do. The fundamental error in
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Berkman's reasoning flows from the fact that the
government of the United States can act only through
people. Furthermore, it is well understood that the
government's activities are not performed exclusively
by the government's employees and that independent
contractors and subcontractors conduct a broad array of
functions on the government's behalf. Thus, the FTCA
divides the universe of persons through which the
United States may act into two general classes,
“employee[s] of the government” and “contractor[s].”
See U.S.C. §§ 1346(b), 2671.
* * *
[W]e find nothing in the language of the act or in the
legislative history of the FTCA to indicate that
Congress considered the existence of a generalized
liability, attributable to the United States based on
any breach of a state defined duty. By expressly
waiving immunity for the tortious conduct of its
employees and only its employees, the FTCA requires a
more focussed approach that requires the courts to
determine the relationship to the United States of the
actor whose negligence might be imputed to the
government under state law.
Berkman, 957 F.2d at 112-113. See Gibson v. United States,
567
F.2d 1237 (3d Cir. 1977).
We have considered all arguments advanced by the
parties and have concluded that no further discussion is
necessary.
The judgment of the district court will be affirmed.
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