Grogan-Fuller v. United States of America

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
STEPHANIE GROGAN-FULLER,
Plaintiff,
v. Case No.: 1:17-cv-01933-EGS
UNITED STATES OF AMERICA
and REPAINTEX COMPANY, et
al.
Defendants.
MEMORANDUM OPINION
Stephanie Grogan-Fuller brings this action against the
United States and two federal contractors, Repaintex Company
(“Repaintex”) and Trademasters Service, Inc. (“Trademasters”).
Ms. Grogan-Fuller alleges that she was injured when she slipped
and fell on water that had accumulated on the floor of a
building owned, operated, and maintained by the federal
government. Invoking the Federal Tort Claims Act (“FTCA”), 28
U.S.C. § 1346, her complaint includes claims for negligence and
vicarious liability against the government.
Pending before the Court is the government’s motion to
dismiss the negligence and vicarious liability claims for lack
of subject matter jurisdiction. Upon consideration of the
motion, the opposition and the reply thereto, the applicable
law, the entire record, and for the reasons stated below, the
Court DENIES the government’s motion to dismiss.
I. Background
A. Factual Background
In December of 2015, Ms. Grogan-Fuller was walking down a
hallway of the west wing of the Orville Wright Building (“Wright
Building”) in Washington D.C. when she slipped on water that had
accumulated on the floor as a result of a water leak. Amended
Compl., ECF No. 20 ¶ 9. She fell to her knees and sustained
serious injuries. Id. ¶¶ 9–12. At the time she sustained her
injuries, Repaintex, a government contractor, provided facility
maintenance and janitorial services for the Wright Building. Id.
¶ 5. Trademasters, also a government contractor, provided
operations and maintenance services for the Wright Building. Id.
¶ 6.
Ms. Grogan-Fuller brought suit against the government and
the two contractors based on the injuries she sustained as a
result of the fall. See generally id. She sues the government
under the FTCA, alleging that the government was negligent in
failing to inspect the hallways to ensure that dangerous
conditions did not exist, and vicariously liable for the
negligence of the two contractors. See id. ¶¶ 13–18, 31–34.
The government has moved to dismiss this case for lack of
subject matter jurisdiction. In support of its motion to
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dismiss, the government attaches the declarations of Calvert
Jones, United States General Services Administration (“GSA”)
Building Manager for the Wright Building, and Elaina Walker,
GSA’s Supervisory Contract Specialist. See Decl. of Calvert
Jones (“Jones Decl.”), ECF No. 15-2; Decl. of Elaina Walker
(“Walker Repaintex Decl.”), ECF No. 15-3; Decl. of Elaina Walker
(Walker Trademasters Decl.”), ECF No. 15-4. The government also
attaches the respective contracts between the government and the
contractors. See Walker Repaintex Decl., Ex. B., ECF No. 15-5;
Walker Trademasters Decl., Ex. C., ECF No. 15-6. The
declarations and contracts detail the obligations and
responsibilities of the government with respect to the
contractors. 1
B. Contractual Provisions
1. Repaintex Contract
In her role as Contract Specialist, Ms. Walker explains
that she is responsible “for the creation and implementation of
contracts dealing with custodial services” and that at the time
Ms. Grogan-Fuller’s accident occurred, she was in charge of the
“implementation of the custodial services contract that was in
effect at the [Wright Building].” Walker Repaintex Decl., ECF
1 The Court may review such materials to determine its
jurisdiction without turning the motion to dismiss into one for
summary judgment. See Caesar v. United States, 258 F. Supp. 2d
1, 2 (D.D.C. 2003).
3
No. 15-3 ¶¶ 2–3. Ms. Walker attached to her declaration the
contract awarded to Repaintex for custodial services. Id. Ex.
B., ECF No. 15-5.
Section C of the contract, entitled “Description/
Specification/ Statement of Work” sets forth the general
parameters of the work to be performed by Repaintex. Id. at 18. 2
Several provisions in Section C relate to the maintenance of
floors. Repaintex was required to “[f]urnish all personnel,
labor, equipment, materials, tools, supplies, supervision,
management . . . and services, except as may be expressly set
forth as Government furnished.” Id. at 21. Section C also states
that Repaintex shall “[b]e responsible to make the management
and operational decisions to meet the quality performance
standards required under this contract.” Id.With respect to the accumulation of water on the floor,
Section C states that “[t]he performance of the cleaning at
building(s) shall take place between the hours of 6:00 a.m. and
9:00 p.m.” and that on a daily basis “[Repaintex] will furnish
the [Contract Officer’s Representative Designee] 64 man-hours
per day to perform support services . . . includ[ing] but not
limited to” responding to “[s]ervice complaints,” “cleanup work
2 When citing electronic filings throughout this Memorandum
Opinion, the Court cites to the ECF header page number, not the
original page number of the filed document.
4
made necessary by toilet floods and similar occurrences” and
“[p]rovid[ing] additional cleaning and servicing requirement[s]
as identified by the [Contracting Officer’s Representative
Designee.]” Id. at 22. The contract further states that “[t]he
person(s) performing the support service duties will take
instruction only from the GSA Buildings Manager or his designee
during the 64 hours assigned to GSA.” Id. (emphasis in
original). Section C also provides that “[Repaintex] shall make
reasonable efforts to assist the Government to prevent hazardous
conditions and property damage.” Id. at 34.
Section C contains a carve out for service calls made by
the government to the contractor’s workers. Section C defines
service calls as “standard service requirements, such as
nonrecurring requests for rearranging furniture in a conference
room, special events support, spills, replenishing restroom
supplies, etc.” Id. at 20. Service calls which the Contracting
Officer or her designee “determines to be urgent (spilled water
in traffic areas . . . etc.) shall be handled immediately.” Id.
at 34.
Ms. Jones, the Building Manager for the Wright Building at
the time of the accident, filed a declaration containing certain
statements related to the Repaintex contract. See generally
Jones Decl., ECF No. 15-2. Ms. Jones stated that Repaintex
“routinely cleaned the floors throughout the building in order
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to fulfill its contracting duties.” Id. ¶ 4. She stated that GSA
“in no way controlled how Repaintex implemented its custodial
practices on a daily or any other routine basis.” Id. ¶ 8.
2. Trademasters Contract
Ms. Walker also attached a declaration explaining the
operations and maintenance contract the government entered into
with Trademasters. Walker Trademasters Decl., ECF No. 15–4. With
respect to that contract, Ms. Walker supervises “the Contract
Specialist responsible for the implementation of the operation
and maintenance contract (‘O&M contract’) that was in effect at
the [Wright Building]” at the time of Ms. Grogan-Fuller’s
accident. Id. ¶ 3. She also attached the Trademasters contract
to her declaration. Walker Trademasters Decl., Ex. C., ECF No.
15-6.
Several provisions in the contract are relevant to
potential liability for Ms. Grogan-Fuller’s accident. Section C
of the Trademasters contract provides that Trademasters is
responsible for “plumbing” “[s]ervice request desk operations,”
and “maintain[ing] kitchen/concession area drains.” Id. at 27–
28. The Section incorporates standards set by the International
Plumbing Code. Id. at 39. Section C requires Trademasters to
prepare a Building Operating Plan that is a compilation of the
requirements in the Statement of Work, and lists information
such as a “description of how building equipment data is
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maintained and updated . . . contingency plans for . . .
[f]loods including flooding caused by plumbing breaks[,
h]azardous materials including . . . leaks or spills [and] water
management[.]” Id. at 48.
Section C also governs emergency requests to Trademasters
related to water issues. Under the contract, “the [g]overnment
(or, where applicable, the tenant Agency) may transmit work
orders to the Contractor for service request[s] or emergency
service request[s].” Id. at 279. Emergency service requests are
defined as “service requests where the work consists of
correcting failures that constitute an immediate danger to
personnel or property, included but not limited to: broken water
pipes.” Id. Trademasters was required to respond to these
emergency requests during normal working hours within 15
minutes. Id. Trademasters was also required to “assist in
identifying facility health and safety hazards and report all
hazards in writing” to the Contract Officer. Id. at 297.
Ms. Jones also stated that “Trademasters was responsible
for all operations and maintenance services within the [Wright
Building], and that GSA in “no way controlled how Trademasters
implemented its operations and maintenance practices on a daily
or any other routine basis.” Jones Decl., ECF No. 15-2 ¶ 12, 17.
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II. Legal Standard
A. Standard of Review for a Motion to Dismiss under
12(b)(1)
A motion to dismiss under Federal Rule of Civil Procedure
12(b)(1) “presents a threshold challenge to the Court’s
jurisdiction,” and thus “the Court is obligated to determine
whether it has subject-matter jurisdiction in the first
instance.” Curran v. Holder, 626 F. Supp. 2d 30, 32 (D.D.C.
2009)(internal citation and quotation marks omitted). “It is to
be presumed that a cause lies outside [a federal court’s]
limited jurisdiction,” Kokkonen v. Guardian Life Ins. Co. of
Am., 511 U.S. 375, 377 (1994), unless the plaintiff can
establish by a preponderance of the evidence that the Court
possesses jurisdiction, see, e.g., U.S. ex rel. Digital
Healthcare, Inc. v. Affiliated Computer, 778 F. Supp. 2d 37, 43
(D.D.C. 2011)(citation omitted). Thus, the “‘plaintiff’s factual
allegations in the complaint . . . will bear closer scrutiny in
resolving a 12(b)(1) motion than in resolving a 12(b)(6) motion
for failure to state a claim.’” Id. (quoting Grand Lodge of
Fraternal Order of Police v. Ashcroft, 185 F. Supp. 2d 9, 13-14
(D.D.C. 2001)(internal citation and quotation marks omitted)).
A motion to dismiss for lack of jurisdiction may be
presented as either a facial or factual challenge. “A facial
challenge attacks the factual allegations of the complaint that
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are contained on the face of the complaint, while a factual
challenge is addressed to the underlying facts contained in the
complaint.” Al-Owhali v. Ashcroft, 279 F. Supp. 2d 13, 20
(D.D.C. 2003)(internal quotations and citations omitted). When a
defendant makes a facial challenge, the district court must
accept the allegations contained in the complaint as true and
consider the factual allegations in the light most favorable to
the non-moving party. Erby v. United States, 424 F. Supp. 2d
180, 182 (D.D.C. 2006). With respect to a factual challenge, the
district court may consider materials outside of the pleadings
to determine whether it has subject matter jurisdiction over the
claims. Jerome Stevens Pharmacy, Inc. v. FDA, 402 F.3d 1249,
1253 (D.C. Cir. 2005).
B. FTCA
Sovereign immunity shields the federal government and its
agencies from suit and is “jurisdictional in nature.” Am. Road &
Transp. Builders Ass'n v. EPA, 865 F. Supp. 2d 72, 79 (D.D.C.
2012)(quoting FDIC v. Meyer, 510 U.S. 471, 475, (1994))(other
citations omitted). The government may waive immunity, but such
a waiver “must be unequivocally expressed in statutory text, and
will not be implied.” Lane v. Pena, 518 U.S. 187, 192
(1996)(internal citations omitted). The FTCA contains a limited
waiver of sovereign immunity that allows the United States to be
sued for the negligent acts or omissions of its employees acting
9
within the scope of their employment. See 28 U.S.C.
§ 1346(b)(1); see also United States v. Orleans, 425 U.S. 807,
813 (1976).
III. Analysis
The government argues that sovereign immunity bars Ms.
Grogan-Fuller’s claims for vicarious liability and negligence
brought against the United States. The Court addresses each
claim in turn.
A. Vicarious Liability: Independent Contractor Exception
Ms. Grogan-Fuller brings a claim for vicarious liability
based on the alleged negligent actions of Repaintex and
Trademasters. Amend Compl., ECF No. 20 ¶ 34. As discussed above,
the FTCA contains a limited waiver of sovereign immunity for the
negligent acts or omissions of its employees. See 28 U.S.C. §
1346(b)(1). The FTCA's definition of “employee of the
government” includes “employees of any federal agency,” but the
definition of “federal agency” explicitly excludes “any
contractor with the United States.” 28 U.S.C. § 2671. Based on
this language, the Supreme Court has recognized an “independent
contractor exception” to the FTCA. See Orleans, 425 U.S. at 814–
15.
When considering whether the independent contractor
exception to the FTCA applies, a court must evaluate the level
of control that the United States exercises over the contractor.
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Id. Under this exception, the government is only liable for a
contractor's acts, if the contractor's “day-to-day operations
are supervised by the Federal Government.” Id. at 815. A
“critical element in distinguishing an agency from a contractor
is the power of the Federal Government ‘to control the detailed
physical performance of the contractor.’” Id. at 814 (quoting
Logue v. United States, 412 U.S. 521, 528 (1973)). The Court of
Appeals for the District of Columbia Circuit (“D.C. Circuit”)
has made clear that “the government may ‘fix specific and
precise conditions to implement federal objectives’ without
becoming liable for an independent contractor's negligence.”
Macharia v. United States, 334 F.3d 61, 68–69 (D.C. Cir. 2003)
(quoting Orleans, 425 U.S. at 816). The government is also
permitted to “reserve the right to inspect the contractor's work
and monitor its compliance with federal law without vitiating
the independent contractor exception.” Hsieh v. Consol. Eng'g
Servs., Inc., 569 F. Supp. 2d 159, 177 (D.D.C. 2008)(citing
Orleans, 425 U.S. at 815).
Whether the government is involved with a contractor’s day-
to-day activities such that the independent contractor exception
applies is a “peculiarly fact-specific inquiry,” which does not
normally “lend itself easily to dismissal before discovery.”
Phillips v. Federal Bureau of Prisons, 271 F. Supp. 2d 97(D.D.C. 2003). Courts in this District, however, are amendable
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to dismissing these types of cases when the documentation in
support of the government’s motion to dismiss is “clear and
uncontroverted” on the issue of whether the independent
contractor exception applies. Id. For example, in Phillips the
plaintiff sued the government for negligence when the staff of a
halfway house failed to act after the plaintiff’s son informed
the staff that he had received a threat on his life. Id. at 99.
The halfway house was a private facility that contracted with a
government agency to provide services to inmates in the District
of Columbia. Id. The plaintiff’s son was fatally wounded by an
unknown assailant on the same day he warned the staff about the
threat. Id. In the government’s motion to dismiss, it provided
the contract governing the agreement between the halfway house
and the government, which stated in relevant part that it was
the contractor’s obligation to provide for the safekeeping of
persons residing in the facility. Id. at 101. Additionally, a
government employee attested that the government was not
involved in the daily operations of the facility. Id. The
plaintiff failed to controvert any facts in the declaration. Id.The district court in Phillips noted that although the
degree to which the government controls a contractor is
typically a fact intensive inquiry, the documentation in support
of the government’s motion made it clear that the government did
not play any role in the staffing of the facility or the
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safekeeping of its residents. Id. Critically, the plaintiff did
not challenge the agency’s contention that the agency was not
involved in the day-to-day operations of the facility. Id.Because the court found that the supporting documents were clear
and uncontroverted, it granted the motion to dismiss on the FTCA
claim. Id.Here, the documents supporting the government’s position
are not clear and are far from uncontroverted. As to Repaintex,
the contract at issue states that on a daily basis “[Repaintex]
will furnish the [Contract Officer’s Representative Designee] 64
man-hours per day to perform support services . . . includ[ing]
but not limited to” responding to “[s]ervice complaints,”
“cleanup work made necessary by toilet floods and similar
occurrences” and “[p]rovid[ing] additional cleaning and
servicing requirement[s] as identified by the [Contracting
Officer’s Representative Designee.]” Walker Repaintex Decl., Ex.
B., ECF No. 15-5 at 22. Critically, the people performing the
support service duties (i.e., responding to service complaints
and cleanup work made necessary by flooding) “will take
instruction only from the GSA Buildings Manager or his designee”
while they are completing their duties. Id. (emphasis in
original). Additionally, the government had the ability to
classify certain service calls as urgent including “spilled
water in traffic areas” which required the contractor to act
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immediately if a call was so designated. Id. at 34. Last,
Repaintex was required to make reasonable efforts to “assist the
Government to prevent hazardous conditions and property damage.”
Id. at 34. Ms. Grogan-Fuller references these provisions and
challenges the government’s contention that it did not control
the day-to-day operations of Repaintex. See Pl.’s Opp’n., ECF
No. 16 at 10–13. Under these provisions of the contract, there
is some indication that, at least when it came to “spilled water
in traffic areas”, the government controlled the daily
activities of Repaintex.
As for Trademasters, there are provisions in its contract
that lead to the same indication. For instance, the
“[g]overnment (or, where applicable, the tenant Agency) may
transmit work orders to the Contractor for service request[s] or
emergency service request[s].” Walker Trademasters Decl., Ex.
C., ECF No. 15-6 at 279. Emergency service requests included
“broken water pipes.” Id. Trademasters was required to respond
to these emergency requests during normal working hours within
15 minutes. Id. These provisions are unlike provisions in other
cases which merely give the government the right to conduct
oversight and inspection. See Verizon Washington, D.C., Inc. v.
United States, 254 F. Supp. 3d 208 (2017)(applying independent
contractor exception, and dismissing case, when government was
simply inspecting contractor’s work). Here, in contrast, the
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contractual language suggests that the government took an active
role in directing when and how the contractors responded to
“broken water pipes” and “spilled water in traffic areas.” And
for good reason as such occurrences can lead to dangerous
conditions. Under these provisions it is not clear, at this
stage in the proceedings, that the government did not “control
the detailed physical performance of the contractor.” See
Orleans, 425 U.S. at 815.
The Court also notes that in the only case on which the
government relies, Hsieh v. Consolidated Engineering Services,
the court had the benefit of discovery in determining the
relationship between the government and the contractors. See,
e.g., 569 F. Supp. 2d at 178 (analyzing deposition testimony).
In this case there has been no discovery or deposition
testimony, and thus the Court is limited to declarations and
unclear contractual provisions which bear on the question of who
is responsible for the conditions of the Wright Building.
“Although courts must, at times, resolve factual disputes raised
in threshold jurisdictional motions,” a court should defer its
jurisdictional decision when the disputed jurisdictional facts
are “indistinguishable from the central question on the merits
of who was at fault.” Hale v. United States, 2015 WL 7760161 at
*6 (D.D.C. 2015); see also Herbert v. Nat’l Acad. of Sciences.,
974 F.2d 192, 198 (D.C. Cir. 1992)(“[T]hough the trial court may
15
rule on disputed jurisdictional facts at any time, if they are
inextricably intertwined with the merits of the case it should
usually defer its jurisdictional decision until the merits are
heard.”). The government is free to argue in subsequent
proceedings that addressing spills was solely the contractors’
responsibility, and that it had no control over the contractors.
Such arguments, however, rely on the resolution of contested
factual issues and require that parties “first be afforded a
more complete opportunity to discover and to dispute the
relevant facts.” Hale, 2015 WL 7760161 at *6. Accordingly, the
government’s motion to dismiss the vicarious liability count is
DENIED.
B. Negligence Claims Against Government
In addition to her claim for vicarious liability, Ms.
Grogan-Fuller alleges that the government itself was negligent
because it had a duty to inspect the hallway where she fell to
ensure dangerous conditions did not exist, and alleges that the
government either knew or should have known such conditions
existed. Amend. Compl., ECF No. 20 ¶ 15. Under District of
Columbia Law, a landowner has a duty to use reasonable care for
the safety of all persons lawfully present on the landowner’s
property. Smith v. Arbaugh's Rest., Inc., 469 F.2d 97, 100 (D.C.
16
Cir. 1972). 3 A plaintiff seeking to recover for a breach of this
duty must show “that the defendant had notice—either actual or
constructive—of the present existence of an allegedly dangerous
condition.” Smith v. Washington Sheraton Corp., 135 F.3d 779,
782 (D.C. Cir. 1998)(internal quotation marks and citation
omitted).
The government seemingly acknowledges that Ms. Grogan-
Fuller has alleged a claim of negligence independent from the
actions of the contractors. Def.’s Reply, ECF No. 18 at 1
(stating Ms. Grogan-Fuller has argued that the government has
failed to address her claims of its own negligence). However,
the government does not address Ms. Grogan-Fuller’s assertion
that the government employees, themselves, were negligent. See
generally id. (limiting arguments to the application of the
independent contractor exception). Instead, the government
simply reiterates the point that the contractors are responsible
for her injuries and, again, argues the independent contractor
exception to the FTCA applies in this case. Id.3 The substantive law that governs in an FTCA action is that of
the state where the act or omission occurred. 28 U.S.C. §
1346(b)(1); see also Richards v. United States, 369 U.S. 1, 9
(1962)(“Where the negligence and the injury normally occur
simultaneously and in a single jurisdiction, the law to be
applied is clear, and no solution to the meaning of the words
‘the law of the place where the act or omission occurred’ is
required.”). Ms. Grogan-Fuller’s accident occurred in the
District of Columbia and therefore D.C. provides the substantive
law for her FTCA claim.
17
This argument misses the point. While the FTCA does not
authorize the United States to assume the liability for the acts
of its independent contractors, it does waive the United States'
immunity from suit resulting from the acts of its employees and
agencies working on behalf of the United States. See 28 U.S.C.
§§ 1346(b), 2671; see also Logue 412 U.S. at 532-33. The fact
that the government may be able to show that Ms. Grogan-Fuller’s
injuries resulted from the negligence of its contractors,
independent or not, does not preclude claims against the
government for its own negligence with regard to the injury. For
example in Logue, the Supreme Court held that government could
not be held liable for the actions of its contractors at a
federal prison, when a federal prisoner committed suicide while
being held at a county jail, because they were not employees of
the United States. 412 U.S. at 525–26, 530. However, the Court
left open the possibility of a FTCA claim based on the related
failure, if any, of a federal deputy marshal, who was an
employee of the United States, to make “specific arrangements .
. . for constant surveillance of the prisoner,” while he was in
the custody of the employees of the county jail. Id. at 532–33
(internal quotation marks and citation omitted).
In this case, Ms. Grogan-Fuller alleges that the
government, as the owner of the Wright Building, had actual or
constructive notice of the allegedly hazardous condition in the
18
Wright Building, see Amended Compl. ECF No. 20 ¶ 15, and that it
was the negligence of its federal employees, in addition to
actions of the contractors, in failing to warn or failing to
remedy the conditions that led to her injuries, id. ¶ 16. Taking
these allegations as true, the government is potentially subject
to suit under the FTCA for the negligent actions of its
employees. The government failed to respond to this argument,
and therefore its motion to dismiss the negligence count of the
complaint is DENIED. Franklin v. Potter, 600 F. Supp. 2d 38, 60
(D.D.C. 2009)(treating defendant’s argument in summary judgment
motion as conceded where plaintiff failed to address it in
plaintiff’s response).
IV. Conclusion
For the foregoing reasons the government’s motion to
dismiss is DENIED. An appropriate order accompanies this
Memorandum Opinion.
SO ORDERED.
Signed: Emmet G. Sullivan
United States District Judge
March 25, 2019
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