Larry Poitra v. United States , 23 F. App'x 622 ( 2001 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 01-1859
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Larry Poitra, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the District
* of Nebraska.
United States of America; *
Industrial Builders, Inc. * [UNPUBLISHED]
a North Dakota Corporation, *
*
Appellees. *
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Submitted: November 12, 2001
Filed: December 14, 2001
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Before BYE, RICHARD S. ARNOLD, and BEAM, Circuit Judges.
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PER CURIAM.
Larry Poitra appeals from the district court's1 grant of summary judgment in
favor of the United States based on the discretionary function exception to the Federal
Tort Claims Act. See 28 U.S.C. §§ 2671 et seq.
1
The Honorable Joseph Bataillon, United States District Judge for the District
of Nebraska.
In 1993, the United States Army Corps of Engineers (Corps) hired Industrial
Builders, Inc. (IBI), a general contractor, to work on a bridge construction project in
Sidney, Nebraska. Poitra, an employee of IBI, was injured during the course of this
project, and brought this personal injury action against the United States, alleging that
the Corps maintained control over IBI and directly supervised the work that caused
his injuries. The Corps had one on-site representative for the project whose job was
to ensure that IBI was complying with the construction contract for the benefit of the
United States.
The district court determined that the duties of this on-site Corps representative
were discretionary in nature because the contract (which incorporated federal
acquisition regulations) between IBI and the Corps did not specify a particular course
of conduct or set forth detailed job duties for the representative to follow. Further,
the exercise of discretion by the on-site representative was grounded in economic and
public policy considerations properly applied by the Corps. See, e.g., Dykstra v.
United States Bureau of Prisons, 140 F.3d 791, 795 (8th Cir. 1998) (two-part test to
determine applicability of discretionary function exception). Accordingly, the district
court granted the United States' motion for summary judgment based on the
discretionary function exception.2 We have reviewed the record and agree with the
well-reasoned decision of the district court that the discretionary function exception
applies in this case. We therefore affirm the result. See 8th Cir. R. 47B.
2
In an Order entered February 14, 2001, the district court dismissed any
remaining claims against IBI because they were derivative. This ruling is
unchallenged on appeal.
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A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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