# DALESSIO v. U.S. DEPARTMENT OF HOUSING & URBAN DEVELOPMENT

> District Court, E.D. Pennsylvania · March 24, 2021

URL: https://www.frixlaw.com/law-library/cases/10400689

## Case

- **Court:** District Court, E.D. Pennsylvania
- **Decided:** March 24, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10400689

## How later opinions describe it (automated extraction)

- holding “both negligence in supervising a contractor and the failure to supervise a contractor at all are included in the decision protected by the discretionary function exception.”
- holding that “suits against independent contractors are not viable” under the FTCA

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

STEPHEN DALESSIO : CIVIL ACTION
Plaintiff :
: NO. 20-3379
v. :
:
U.S. DEPARTMENT OF HOUSING & :
URBAN DEVELOPMENT, . :
Defendants :

NITZA I. QUIÑONES ALEJANDRO, J. MARCH 24, 2021

MEMORANDUM OPINION
INTRODUCTION
In the amended complaint, Plaintiff Stephen Dalessio (“Plaintiff”) brings this premises
liability action under the Federal Tort Claims Act (the “FTCA”), 28 U.S.C. §§ 1346(b), 2671-
2680, against, inter alia, the United States Department of Housing & Urban Development
(“HUD”), seeking to hold HUD liable for injuries he allegedly sustained when he tripped and fell
on an unsafe sidewalk on a property owned by HUD. [ECF 4]. Before this Court is a motion to
dismiss filed by the United States of America, on behalf of HUD, pursuant to Federal Rule of Civil
Procedure (“Rule”) 12(b)(1), for lack of subject-matter jurisdiction.1 [ECF 7]. Plaintiff opposes
the motion.2 [ECF 10]. The issues presented in the motion to dismiss have been fully briefed and

1 It is well-settled that the only proper defendant for claims brought under the FTCA is the United
States of America, and not a federal agency sued in its own name or individual federal employees sued in
their official capacities. See Bailey v. U.S. Marshals Serv. Headquarters, 426 F. App’x 44, 45-46 (3d Cir.
2011); CNA v. United States, 535 F.3d 132, 138 n.2 (3d Cir. 2008). In light of this well-settled law, and in
order to properly consider the present motion to dismiss, this Court will dismiss the United States
Department of Housing and Urban Development from this action and, in turn, substitute the United States
of America as the proper Defendant subject to Plaintiff’s FTCA claims. For clarity and consistency,
however, the Court will refer to the United States of America as the “United States” or “HUD” throughout
this Opinion.

2 This Court has also considered the United States’ reply. [ECF 11].
are ripe for disposition. For the reasons set forth herein, the motion is granted and Plaintiff’s
claims against HUD/the United States are dismissed for lack of subject-matter jurisdiction.

BACKGROUND
As noted, Plaintiff asserts claims against HUD, premised on injuries he allegedly suffered
when he tripped and fell on an unsafe sidewalk on a property owned by HUD in Philadelphia.
[ECF 4]. The United States filed the instant motion to dismiss arguing that this Court lacks subject-
matter jurisdiction over the claims asserted against it because these claims fall within the
independent contractor exception and the discretionary function exception to the FTCA’s waiver
of sovereign immunity. The following facts are gleaned from Plaintiff’s amended complaint and
various documents attached to the United States’ motion to dismiss:3

On July 13, 2018, Plaintiff, an invitee, tripped and fell on an
unsafe sidewalk located on the property of 937 North 65th Street,
Philadelphia, Pennsylvania—a property owned by HUD (the
“Property”). As a result, Plaintiff suffered various injuries,
including serious injuries to his left ankle, leg, and lower extremity.
Plaintiff alleges that HUD was responsible for the inspection,
maintenance, and repair of the sidewalk at the Property because
HUD owns the Property and, therefore, is liable.

Seven months before Plaintiff’s accident, HUD assigned the
Property to non-party BLM Companies, LLC (“BLM”) for property
maintenance and preservation services. HUD made the assignment
pursuant to a preexisting contract between HUD and BLM that
required BLM, inter alia, to provide maintenance services to HUD-
owned properties in Pennsylvania (the “HUD-BLM Contract”).

Under the HUD-BLM Contract, BLM is responsible for the
maintenance and preservation of various assigned properties
without supervision or approval from HUD. In that regard, the
HUD-BLM Contract provides the following relevant provisions:

3 When a party asserts a factual attack to subject-matter jurisdiction, as the United States does here,
the court is not restricted to considering only the allegations in the complaint; rather, the court “must weigh
the evidence relating to jurisdiction” with discretion to allow affidavits and documents. Turicentro, S.A. v.
American Airlines, Inc., 303 F.3d 293, 300 n.4 (3d Cir. 2002), overruled on other grounds by Animal Sci.
Prods. v. China Minmetals Corp., 654 F.3d 462 (3d Cir. 2011).
• Subsection H.7 (Additional Responsibilities): “The
Contractor shall take proper health and safety precautions to
protect contractor’s employees (including subcontractors),
and the public . . . The Contractor is responsible for any and
all injuries/damages to persons and/or property resulting
from the Contractor’s performance under this contract.”
(HUD-BLM Contract, ECF 7-1, Ex. A, Attach. 1).

• Section C.5.2.2.1.2.1 (Health and Safety Hazards and
Emergency Repairs) of the contract provides: “The
Contractor’s responsibility to remedy Health and Safety
Hazards and Emergency Repairs remains until the property
closes and HUD is no longer responsible for its
maintenance. The remedy of Health and Safety Hazards is
a Contractor Expense. Examples of Health and Safety
Hazards include but are not limited to . . . trip hazards . . . .”
(Id.) (emphasis added).

• Section C.2.2 (Definitions) of the contract defines “Health
and Safety Hazards” as “any condition or situation at the
property that exposes the government to abnormal risk, that
presents a source of danger, which could cause an accident,
or poses the threat of injury, harm to the public or property
that must be corrected within one (1) day of discovery or
notification.” (Id.).

• Section C.5.2.3 (Property Maintenance): “The Contractor
shall maintain properties in Ready to Show Condition. The
Contractor shall be liable for damages to all acquired
properties due to failure to inspect or maintain property in
ready to show condition or secure property or other act,
neglect, failure, or misconduct of the Contractor, a
Subcontractor, or any Management Official of any of the
foregoing. The Contractor shall indemnify HUD for losses
due to any act, neglect, failure, or misconduct of the
Contractor, a Subcontractor, or any Management Official of
any of the foregoing. The Contractor shall not be held liable
for casualty damage as long as, before and after such
casualty, the Contractor takes immediate and reasonable
action to protect the property.” (Id.).

• Section C.2.2 (Definitions) of the contract defines “Ready to
Show Condition” to include “Dwellings and structures must
be free of all health and safety hazards and broken window .
. . The yard must be free of trash and debris; accumulated
leaves and holes must be covered or filled . . . .” (Id.).
• The HUD-BLM Contract’s Property Management Plan
further provides that BLM will perform “Initial Clean Out
Services” of assigned properties, which will include
“[r]emov[ing] or repair[ing] tripping hazards and holes in
the flooring and other places as required.” (Id. at Ex. A,
Attach. 1, at 162-63) (emphasis added).

LEGAL STANDARD
A Rule 12(b)(1) motion to dismiss challenges the existence of subject-matter jurisdiction.
As the party invoking this Court’s jurisdiction, Plaintiff bears the burden of proving that the
requisite jurisdictional requirements are met. Development Fin. Corp. v. Alpha Housing & Health
Care, Inc., 54 F.3d 156, 158 (3d Cir. 1995). “[W]hen there is a fact question about whether a court
has jurisdiction, the trial court may examine facts outside the pleadings . . . ‘[b]ecause at issue in
a factual 12(b)(1) motion is the trial court’s jurisdiction—its very power to hear the case.’”
Robinson v. Dalton, 107 F.3d 1018, 1021 (3d Cir. 1997) (quoting Mortensen v. First Fed. Sav. &
Loan Ass’n, 549 F.2d 884, 891 (3d Cir. 1977)). Therefore, this Court is free to consider evidence
outside the pleadings to resolve factual issues bearing on the jurisdictional issue. See Gotha v.
United States, 115 F.3d 176, 179 (3d Cir. 1997). A court may properly consider whether the
FTCA’s independent contractor exception is applicable on a motion to dismiss pursuant to Rule
12(b)(1) because the motion raises jurisdictional issues. See Norman, 111 F.3d at 357 (affirming
judgment analyzing motion for relief under FTCA due to tortfeasor’s independent contractor status
under Rule 12(b)(1)); Pace v. United States, 2008 WL 4559598, at *2 (D.N.J. Oct. 9, 2008)
(addressing the United States’ motion under Rule 12(b)(1) rather than under Rule 56 where the
government argued that a cleaning service was an independent contractor responsible for
negligence which led to plaintiffs’ injuries).
DISCUSSION
As noted, the United States argues that this Court lacks subject-matter jurisdiction over
Plaintiff’s claims against it in this matter because HUD is protected from liability under the
FTCA’s independent contractor exception and under the discretionary function exception.

Generally, the United States is immune from suit for monetary damages. Sconiers v. United States,
896 F.3d 595, 597 (3d Cir. 2018). The FTCA, however, provides a limited waiver of the United
States’ sovereign immunity allowing tort claims under specific circumstances. Id. Specifically, §
2674 provides that:
The United States shall be liable, respecting the provisions of this
title relating to tort claims, in the same manner and to the same
extent as a private individual under like circumstances, but shall not
be liable for interest prior to judgment or for punitive damages.

28 U.S.C. § 2674. The scope of this waiver must be strictly construed in favor of the United States.
Orff v. United States, 545 U.S. 596, 601-02 (2005); Lightfoot v. United States, 564 F.3d 625, 628
(3d Cir. 2009). The FTCA’s waiver is subject to several exceptions; where an exception to the
waiver applies, sovereign immunity remains a jurisdictional bar to suit. See Dolan v. United States
Postal Serv., 546 U.S. 481, 485 (2006); United States v. Sherwood, 312 U.S. 584, 586 (1941) (“the
terms of the [United States’] consent to be sued in any court define that court’s jurisdiction to
entertain the suit.”). This Court will address each potential exception separately.
Independent Contractor Exception
In interpreting various provisions of the FTCA, the United States Court of Appeals for the
Third Circuit (“Third Circuit”) has concluded that one such exception to the waiver of sovereign
immunity is the so-called “independent contractor exception.” Norman v. United States, 111 F.3d
356, 357 (3d Cir. 1997). In finding this exception, the Third Circuit relied primarily on § 1346(b)
of the FTCA, which provides that district courts:
shall have exclusive jurisdiction of civil actions on claims against
the United States, for money damages . . . for . . . personal injury . .
. 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 or omission occurred.

28 U.S.C. § 1346(b) (emphasis added); see also Norman, 111 F.3d at 357.
The FTCA defines “employee of the Government” to include “officers and employees of
any federal agency.” 28 U.S.C. § 2671. Based on these two provisions of the FTCA, the Third
Circuit concluded that “the United States is not liable for injuries caused by the negligence of its
independent contractor[s.]” Jackson v. Liberty Mut. Ins. Co., 282 F. App’x 150, 151 (3d Cir. 2008)
(citing Norman, 111 F.3d at 357); see also Moreno v. United States, 387 F. App’x 159, 160 (3d
Cir. 2010) (holding that “suits against independent contractors are not viable” under the FTCA).
In determining whether an entity or individual is a federal employee or an independent
contractor, the “critical factor . . . is whether the government has the power ‘to control the detailed
physical performance of the contractor.’” Norman, 111 F.3d at 357 (citing Orleans, 425 U.S. at
814). “[T]he question here is not whether the [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.” Norman, 111 F.3d at 357 (citing Orleans, 425 U.S. at 815) (internal
quotations omitted). To make this determination, courts “have looked to the contract between the
United States and the contactor to determine whether the United States exercised day-to-day
supervision over the work of the contractor.” Dugan v. Coastal Indus., Inc., 96 F. Supp. 2d 481,
483 (E.D. Pa. 2000). “Only convincing proof that a federal employee exercised supervisory
control over an independent contractor’s daily operations will subject the Government to liability
for the negligence of its contractor.” Courts v. U.S., 2016 WL 4521687, at *3 (D.N.J. Aug. 29,
2016). “Broad governmental oversight is not sufficient to elevate a government vendor or service
provider from independent contractor to employee status for the purpose of the FTCA.” Smiley v.
Artisan Builders, 2015 WL 3948044, at *4 (E.D. Pa. June 26, 2015).
Here, Plaintiff asserts that HUD was negligent and, therefore, liable for his injuries because

HUD owns the Property and that its ownership imposes “an obligation to maintain and/or repair
the sidewalk in front of” the Property. (Am. Comp. ¶ 32). Nowhere, however, does Plaintiff allege
that HUD in any way controlled the day-to-day activities of either BLM or any of the other entities
named in the amended complaint that may have been contracted to inspect, maintain, service,
and/or repair the sidewalk in front of the Property. Further, HUD has presented unrefuted evidence
that, at the time Plaintiff’s injuries occurred, HUD had contracted out the day-to-day inspection,
maintenance, and repair responsibilities for the Property to BLM. The HUD-BLM Contract
expressly provides that BLM—not HUD—was responsible for taking “proper health and safety
precautions to protect . . . the public” and was “responsible for any and all injuries/damages to
persons . . . resulting from the Contractor’s performance under this contract.” (Section H.7). The

HUD-BLM Contract also mandates that the “Contractor shall maintain” the Property and “shall be
liable for damages . . . due to failure to inspect or maintain” the Property. (Section C.5.2.3).
Further, the HUD-BLM Contract expressly provides that “HUD is no longer responsible for [the
Property’s] maintenance.” (Section C.5.2.2.1.2.1).4
Given this record, the undisputed evidence establishes that BLM had the exclusive
responsibility and control over the maintenance and safety of the Property when Plaintiff suffered

4 Although the HUD-BLM Contract does not explicitly deprive the Government of day-to-day
supervisory responsibility, “[a] contract between the Government and an independent contractor need not
expressly state that the Government ‘will refrain from exercising supervision for an independent contractor
relationship to exist.’” Courts, 2016 WL 4521687, at *5.
his fall and was injured. Accordingly, BLM was an independent contractor—not a federal
employee—and, as such, the independent contractor exception to the FTCA applies.
Consequently, “the United States is not liable for injuries caused by the negligence of [BLM,]”
Jackson, 282 F. App’x at 151 (citing Norman, 111 F.3d at 357), and Plaintiff cannot assert an

FTCA claim against the United States under the facts alleged. Because Plaintiff’s FTCA claim
against the United States is barred by sovereign immunity, this Court lacks subject-matter
jurisdiction over said claim.5
Discretionary Function Exception
Plaintiff also argues that this Court can exercise subject-matter jurisdiction over his claims
against the United States because he has alleged that HUD was negligent for its failure to
adequately supervise, train, and instruct BLM on the standards for inspecting and repairing the
Property. (Pltf. Opp., ECF 10, at 12 (citing Am. Comp. ¶ 34(g) and (j)). This argument is
misplaced. Plaintiff’s amended complaint is completely silent with respect to BLM and/or HUD’s
relationship with BLM. In fact, the cited paragraphs in the amended complaint reference only the

“defendants herein,” which does not include BLM. Regardless, even if Plaintiff had made such

5 This conclusion is consistent with other courts’ analysis of similar claims asserted under the FTCA
stemming from similar HUD contracts. See, e.g., Woods v. Secretary of Housing & Urban Development,
2017 WL 4621690, at *4 (E.D. Pa. Oct. 16, 2017); Smith v. Steffens, 429 F. Supp. 2d 719 (E.D. Pa. 2006);
Brimfield v. United States, 2002 WL 31413375 (E.D. Pa. Oct. 17, 2002); Balkonis v. United States, 2002
WL 32348285, at *3 (E.D. Pa. Aug. 14, 2002); Redford v. United States, 2020 WL 4586794, at *3 (D.N.H.
Aug. 10, 2020) (dismissing FTCA claim against HUD and holding “[b]ecause BLM is an independent
contractor, the government is immune from [plaintiff’s] premises liability claim.”).

Notwithstanding the clear application of the independent contractor exception here, Plaintiff argues
that Pennsylvania law precludes a property owner’s delegation of its duty to maintain its property in a safe
condition. As Plaintiff himself seems to recognize, however, this argument was rejected by the Third
Circuit in Norman v. United States, 111 F.3d 356 (3d Cir. 1997). See also Richardson v. Philadelphia
Authority for Industrial Development, 2004 WL 1614882, at *4 (E.D. Pa. July 16, 2004). As such,
Plaintiff’s argument has no merit.
allegations in his amended complaint, such allegations fall within the “discretionary function
exception” to the FTCA.
The discretionary function exception provides that the government cannot be held liable
for any claim based on “the exercise or performance or the failure to exercise or perform a

discretionary function or duty on the part of a federal agency or an employee of the Government,
whether or not the discretion involved be abused.” 28 U.S.C. § 2680(a). If a claim falls within
this exception to FTCA liability, then sovereign immunity applies and the court lacks subject-
matter jurisdiction over the claim. Chapman v. United States, 480 F. Supp. 3d 601, 613 (M.D. Pa.
2020) (holding that court lacked subject-matter jurisdiction over claim falling within discretionary
function exception). Numerous courts have found that training and supervising independent
contractors are clearly discretionary functions of the government. See, e.g., Chapman, 480 F.
Supp. 3d at 613 (holding plaintiff’s claims against government agency alleging “negligence in the
hiring, supervision, training, and retention of [contractor] are . . . barred by the discretionary
function exception.”); Brown v. United States, 2018 WL 741731, at *4 (E.D. Pa. Feb. 7, 2018),

aff’d 823 F. App’x 97, 101-01 (3d Cir. July 30, 2020) (holding discretionary function exception
barred claims against government agency premised on negligent hiring, retention, training,
discipline, and supervision of contractor, and collecting cases holding the same); Kirchmann v.
United States, 8 F.3d 1273, 1277 (8th Cir. 1993) (holding “both negligence in supervising a
contractor and the failure to supervise a contractor at all are included in the decision protected by
the discretionary function exception.”). This Court agrees. Therefore, to the extent Plaintiff’s
claims against the United States/HUD are premised on negligent supervision, training, and/or
instruction of contractors, these claims are barred by the discretionary function exception.
Accordingly, this Court lacks subject-matter jurisdiction over these claims.
CONCLUSION
For the foregoing reasons, this Court finds that because the independent contractor and
discretionary function exceptions to the FTCA apply, Plaintiff has failed to meet his burden of
establishing this Court’s subject-matter jurisdiction over his FTCA claims against the United

States. Consequently, this Court further finds that the United States has not waived its sovereign
immunity, its motion to dismiss is granted, and Plaintiff’s claims against the United States only
are dismissed for lack of subject-matter jurisdiction. An Order consistent with this Memorandum
Opinion follows.

NITZA I. QUIÑONES ALEJANDRO, U.S.D.C. J.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10400689. Public record. Not legal advice.