Russ v. United States

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
VINCENT SCOTT RUSS; EMILY L. 
RUSS, Wife of Vincent Scott Russ,
Plaintiffs-Appellants,
v.  No. 01-1397
UNITED STATES OF AMERICA,
Defendant-Appellee.

Appeal from the United States District Court
for the Middle District of North Carolina, at Durham.
Frank W. Bullock, Jr., District Judge.
(CA-99-488-1)
Argued: February 25, 2002
Decided: April 12, 2002
Before WILKINSON, Chief Judge, MICHAEL, Circuit Judge, and
Raymond A. JACKSON, United States District Judge for the
Eastern District of Virginia, sitting by designation.
Affirmed by unpublished per curiam opinion.
COUNSEL
ARGUED: John Francis Bloss, Sr., CLARK, BLOSS & MCIVER,
P.L.L.C., Greensboro, North Carolina, for Appellants. Lynne P.
Klauer, Assistant United States Attorney, Greensboro, North Caro-
lina, for Appellee. ON BRIEF: Benjamin H. White, Jr., United States
Attorney, Greensboro, North Carolina, for Appellee.
2 RUSS v. UNITED STATES
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Plaintiff Vincent Scott Russ and his wife, Emily Russ, contend that
the United States is liable under the Federal Tort Claims Act
("FTCA"), 28 U.S.C. § 1346(b), 2671-80, for injuries Russ sustained
when the wheelchair ramp built at his home with federal grant money
collapsed. The district court concluded that the United States had not
waived its sovereign immunity and dismissed the case. Because we
agree that the alleged negligence falls within the misrepresentation
exception of the FTCA, we affirm.
I.
Plaintiff Vincent Scott Russ ("Russ") is a disabled veteran who
applied for and received a $4,100 grant for a wheelchair ramp for his
home under the Home Improvement and Structural Alteration
("HISA") program, which is directed by the Department of Veterans
Affairs ("VA"). When Russ applied for the HISA grant, he was given
a list of contractors. On the application he signed, he choose Michael
Russell Construction Company ("Russell") to build the ramp. How-
ever, Russell did not perform the work properly. And on August 3,
1997, as Russ was walking down the ramp, the ramp caved in and
Russ fell off. As a result, Russ suffered painful, permanent injuries to
his pelvis, shoulder, hand, and back.
Russ alleges that a VA employee, Dwight Fields, told him that if
he selected Russell to perform the work on his home, he would not
have to solicit other bids. Russ further contends that Fields said he
knew Michael Russell, that Russell had performed many jobs for the
VA, and that Russ’ application would be approved immediately if he
chose Russell. Russ argues that Fields "gratuitously selected" Russell
for the project by promising this "instant" approval and failed to use
due care in selecting Russell. Russ contends that had he known cer-
RUSS v. UNITED STATES 3
tain facts, for example that Russell was not a licensed contractor in
North Carolina, he would not have chosen him. Russ and his wife,
Emily, (collectively "plaintiffs") filed suit against the United States
for negligence under the FTCA. Russ sought damages for his injuries,
while Emily Russ sought recovery for loss of consortium under North
Carolina law.
The United States denied the allegations and moved for summary
judgment on both claims, alleging that the claims were actually for
misrepresentation and were excluded from the FTCA’s waiver of sov-
ereign immunity. The district court concluded that despite plaintiffs’
attempts to characterize their claims as being based on simple negli-
gence, they were essentially based on a misrepresentation. Russ v.
United States, 129 F. Supp. 2d 905, 910 (M.D.N.C. 2001). The dis-
trict court explained that "[t]he Government’s failure to use due care
in communicating information to Vincent Scott Russ is directly
related to Plaintiffs’ injuries. The Government’s misrepresentations
are integral to Plaintiffs’ claims and are not merely incidental to other
negligent conduct." Id. The court held that the claims fell within the
misrepresentation exception of the FTCA. See 28 U.S.C. § 2680(h).
Accordingly, the district court granted the United States’ motion for
summary judgment and dismissed the case for lack of subject matter
jurisdiction. Russ, 129 F. Supp. 2d at 911.
II.
Plaintiffs contend that they allege negligence, not misrepresenta-
tion, and that the United States has waived its sovereign immunity in
this case. However, we agree with the district court that, "the grava-
men of [plaintiffs’] action is misrepresentation." Russ, 129 F. Supp at
910. After having read the briefs and listened to oral argument, we
conclude that the district court correctly decided the case before it.
Accordingly, we affirm the judgment.
AFFIRMED