                                                                                                                           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Precedential or Non-Precedential: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




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           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



                                  3
[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



                                4
          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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