Opposition Brief — Cole v. United States

FILED

No. 88-406 NOV 1 1986

| > Supreme Gourt, U.S,

OCTOBER TERM, 1988

MARION F. COLE, PERSONAL REPRESENTATIVE OF THE

ESTATE OF DEBORAH D. EISENHUT, DECEASED, PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

CHARLES FRIED

Solicitor General

JOHN R. BOLTON

Assistant Atiorney General

JEREMY PAUL

Altorney

Department of Justice

Washington, D.C. 20530

(202) 633-2217

QUESTION PRESENTED

Whether the courts below erred in granting summary

judgment to the United States on the ground that Florida

law imposes no duty upon the employer of an independent

contractor to supervise safety at the contractor’s premises.

(I)

TABLE OF CONTENTS

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TABLE OF AUTHORITIES

Cases:

Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) ... 6

Berkoviiz v. United States, No. 87-498 (June 13, 1988) ... 5, 8, 9

Celotex Corp. v. Catrett, 477 U.S. 317 (1986) ........... 6

City of Miami v. Perez, 509 So. 2d 343 (Fla. Dist. Ct.

App.), review denied, 519 So. 2d 987 (Fla. 1987)...... 5,6

Crawford v. Florida Steel Corp., 478 So. 2d 855 (Fla.

35 625 6 kaa heed esd ees dita ee as 6

McMichael v. United States, 751 F.2d 303 (8th Cir.

a Se es cae ba Kase takessodeds stb’ y

Skow v. Depariment of Transportation, 468 So. 2d 422

es cece aw oa su cano hs as 5, 6

United States v. S.A. Empresa de Viacao Aerea Rio

Grandense (Varig Airlines), 467 U.S. 797 (1984) ...... 8,9

Van Ness v. Independent Construction Co., 392 So. 2d

1017 (Fla. Dist. Ct. App.), review denied, 402 So. 2d

Ee isha os oa 6 6

Statutes and regulations:

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32 C.F.R. (1982):

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Section 3-601 ..... ge a er ee at i)

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In the Supreme Court of the Gnited States

OCTOBER TERM, 1988

No. 88-406

MARION F. COLE, PERSONAL REPRESENTATIVE OF THE

ESTATE OF DEBORAH D. EISENHUT, DECEASED, PETITIONER

V.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 12a-32a)

is reported at 846 F.2d 1290. The opinion of the district

court (Pet. App. la-10a) is reported at 651 F. Supp. 221.

JURISDICTION

The judgment of the court of appeals (Pet. App.

34a-35a) was entered on June 10, 1988. A petition for

rehearing was denied on August 4, 1988 (Pet. App. 33a).

The petition for a writ of certiorari was filed on September

7, 1988. The jurisdiction of this Court is invoked under 28

U.S.C. 1254(1).

STATEMENT

1. Petitioner is the personal representative of Deborah

Eisenhut, an employee of Ordnance Research, Inc. (ORI),

(1)

2

who was killed in an explosion at an ORI laboratory in

Fort Walton Beach, Florida. When the explosion oc-

curred, Ms. Eisenhut was loading smoke cartridges with

an ORI compound known as 119G. ORI was manufactur-

ing 119G purusant to a contract with the U.S. Army Ar-

mament Research and Development Command (ARRAD-

COM) that called for ARRADCOM to purchase 1,500

cartridges from ORI at a total cost of less than $10,000.

ORI had developed 119G to meet ARRADCOM'’s demand

for a composition that would create a flash and signature

smoke for mortar practice rounds. Pet. App. la-2a.

Under Armed Services Procurement Regulations (32

C.F.R. Pts. 1-101 (1982)),' contracts involving ammuni-

tion and explosives are governed by safety procedures set

forth in the Department of Defense Contractors’ Safety

Manual for Ammunition, Explosives, and Related

Dangerous Materials (Safety Manual). A prescribed safety

clause to this effect is automatically included in such con-

tracts. The head of procurement at ARRADCOM,

however, has discretion either to omit this safety com-

pliance clause entirely, thereby eliminating the application

of the Safety Manual to the contract, or to include the

clause but waive any mandatory requirements of the Safe-

ty Manual. See 32 C.F.R. 1.323.!(c) (1982). ARRAD-

COM has made a policy decision to make the requirements

of the Safety Manual mandatory at all contractor owned

and operated facilities except when orders are placed for

' The regulations governing ARRADCOM'’s contract with ORI

were known first as the Armed Services Procurement Regulations and

later as the Defense Acquisition Regulations and were codified at 32

C.F.R. Pts. 1-39 (1982). These regulations have been superseded and

replaced by the Federal Acquisition Regulations codified in Title 48 of

the Code of Federal Regulations. Because the original regulations con-

tinue to apply to contracts entered into while they were in force, cita-

tions to the original regulations are used throughout.

3

“standard commercial items” in an amount less than

$10,000. Pet. App. 3a.

The Chief of the Support Contracting Division, Pro-

curement Directorate, of ARRADCOM elected not to in-

clude the safety clause in ARRADCOM’s contract with

ORI. Accordingly, ARRADCOM did not exercise its right

to supervise safety at ORI’s premises pursuant to the terms

of the Safety Manual, nor did ARRADCOM insist that

ORI adhere to the Safety Manual’s specifications. Pet.

App. 3a. ORI did, however, take precautions against an

accidental explosion caused by static electricity. ORI re-

quired Ms. Eisenhut to wear a Wriststat to ground herself

while she worked with 119G. Although the precise cause

of the February 28, 1980, explosion is uncertain, Ms.

Eisenhut was seen not wearing her Wriststat shortly prior

to the accident. /d. at 24a.

2. After her administrative claim under the Federal

Tort Claims Act was denied, petitioner filed this lawsuit

alleging that ARRADCOM'’s failure to enforce or comply

with procedures detailed in the Safety Manual helped

cause the explosion. Petitioner also alleged that ARRAD-

COM failed to notify ORI of 119G’s dangerous nature and

that ARRADCOM breached its duty to inform ORI that

government inspectors had observed safety violations dur-

ing 119G’s manufacture.

Following extensive discovery and oral argument, the

district court on December 23, 1986, granted summary

judgment for the United States (Pet. App. la-10a). The

court noted (id. at 2a-6a) that ARRADCOM exercised

policy-making discretion when it decided, pursuant to 32

C.F.R. 1-323.1 (1982), to omit the safety clause from its

contract with ORI. Accordingly, the court found (Pet.

App. 6a) that the discretionary function exception to the

FTCA barred any claim against the United States for Ms.

4

Eisenhut’s injuries based on ORI’s alleged failure to comp-

ly with procedures in the Safety Manual.

The district court also concluded (Pet. App. 6a-8a) that

ARRADCOM had breached no duty that it owed to Ms.

Eisenhut under Fiorida law. The court noted (id. at 6a-7a)

that Florida law imposes no duty upon employers to as-

sure the safety of employees of independent contractors.

The court further found inapplicable (id. at 8a) the excep-

tions to this general rule for employers who exercise super-

visory control over the employees of independent contrac-

tors or who own the premises where an accident occurs.?

3. The court of appeals affirmed (Pet. App. 12a-32a).

The court found (id. at 22a) that Florida law does not im-

pose any duty on the purchaser of goods to notify the

manufacturer of hazards involved in the production proc-

ess. Moreover, the court concluded (id. at 22a-28a) that,

even if ARRADCOM has such a duty, the record con-

tained no evidence suggesting that ARRADCOM had

superior knowledge of any dangers posed by small-volume

manufacture of compound 119G. The court also found

(id. at 29a- 32a) that Florida law imposed no obligation on

parties hiring independent contractors to provide a safe

workplace for the contractors’ employees. Accordingly,

the court concluded that petitioner had asserted no plausi-

ble theory that would render the United States liable had it

been a private party acting under Florida law. The court,

therefore, found (id. at 32a n.13) no reason to reach the

issue resolved by the district court of whether the discre-

? The district court also rejected (Pet. App. 9a-10a) plaintiffs claim

that the government negligently communicated misinformation about

the hazard level of compound 119G on the ground that it was barred

by the misrepresentation exception of the FTCA, 28 U.S.C. 2680(h).

5

tionary function exception to the FTCA would bar peti-

tioner’s claim.*

ARGUMENT

The decision below is correct. It does not conflict with

any decision of this Court or any other court of appeals.

Accordingly, no further review is warranted.

1. Petitioner contends (Pet. 6-9) that the discretionary

function exception to the FTCA, 28 U.S.C. 2680(a), does

not bar her suit. As the court of appeals correctly noted

(Pet. App. 32a n.13), however, summary judgment for the

United States was properly granted regardless of whether

Section 2680(a) barred petitioner’s claim. The FTCA

renders the United States liable for tort claims “in the same

manner and to the same extent as a private individual

under like circumstances.” 28 U.S.C. 2674. Accordingly,

petitioner could prevail only if she could establish that

ARRADCOM breached a duty that a private party would

owe to an employee of an independent contractor under

similar circumstances. As the courts below correctly found

(Pet. App. 6a-8a, 21a-32a), Florida courts have repeatedly

adhered to “the general rule that one who hires an in-

dependent contractor is not liable for injuries sustained by

that contractor’s employees in their work.” Skow v.

Department of Transportation, 468 So. 2d 422, 423 (Fla.

Dist. Ct. App. 1985). Accord City of Miami v. Perez, 509

So. 2d 343, 345 (Fla. Dist. Ct. App.), review denied, 519

So. 2d 987 (Fla. 1987); Crawford v. Florida Steel Corp.,

> Following this Court's intervening decision in Berkovitz v. United

States, No. 87-498 (June 13, 1988), petitioner filed a petition for

rehearing asking the court of appeals to reconsider its opinion on the

discretionary function issue. The court of appeals denied the petition

without opinion (Pet. App. 33a).

6

478 So. 2d 855 (Fla. Dist. Ct. App. 1985); Van Ness v. In-

dependent Construction Co., 392 So. 2d 1017 (Fla. Dist.

Ct. App.), review denied, 402 So. 2d 614 (Fla. 1981).

Petitioner contends (Pet. 5) that ARRADCOM failed to

conduct adequate safety inspections and failed to insist on

adherence to the Safety Manual. The Florida Court of Ap-

peals has clearly held, however, that an employer hiring an

independent contractor is not responsible for failing to

supervise conditions at the work site. Van Ness, 392 So. 2d

at 1019-1020. Liability will not be imposed simply because

the employer fails to monitor the contractor’s compliance

with safety regulations. Skow, 468 So. 2d at 424.

Moreover, even when an accident occurs on the employer’s

premises, the employer will be liable only if it commits

“identifiable acts of negligence” (Perez, 509 So. 2d at 346).

Here, petitioner alleges (Pet. 5) that government

employees witnessed the conditions at the ORI facility and

failed to correct them. The Florida courts, however, have

explicitly held (see, e.g., Perez, 509 So. 2d at 347) that the

mere presence of an on-site inspector is insufficient to

create employer liability, and there is no evidence to sug-

gest that government employees observed hazards that

they had reason to suspect ORI itself did not perceive. In

short, Florida law would afford no relief to petitioner

Suing a private party under similar circumstances. Accord-

ingly, petitioner had no cause of action under the FTCA.

2. Petitioner misunderstands the import of the lower

courts’ ruling concerning Florida law and consequently of-

fers no serious challenge to it. Instead, petitioner claims

(Pet. 9-10) that the courts below resolved disputed issues

of fact in a manner contrary to the standards governing

summary judgment set forth in Celotex Corp. v. Catrett,

477 U.S. 317 (1986), and Anderson v. Liberty Lobby,

Inc., 477 U.S. 242 (1986). As Anderson makes clear (477

U.S. at 247-250), however, the district court’s role when

BS NG tS ea ea IS:

a

tated

deciding a summary judgment motion is to review the

evidence presented and to determine whether a reasonable

jury could properly infer that the nonmoving party had

met its burden of persuasion. Here, following extensive

discovery, the district court correctly concluded (Pet.

App. 6a-8a) that no record evidence would support a jury

verdict for petitioner because ARRADCOM breached no

duties owed to petitioner under Florida law.

The court of appeals carefully reviewed the record (Pet.

App. 22a-28a) under the assumption that Florida law

might impose an additional duty on ARRADCOM to

notify ORI if ARRADCOM knew of dangers posed by

119G and ARRADCOM knew or had reason to know that

ORI was unaware of these dangers. Applying the proper

summary judgment standard, the court of appeals con-

cluded (id. at 24a) that “the inference cannot be made that

ARRADCOM possessed such knowledge.” Petitioner

identifies no evidence nor suggests any inference to contest

this conclusion. Indeed, ORI’s own safety practices sug-

gested that ORI was fully aware of the hazards involved in

manufacturing 119G (see id. at 24a-28a). Accordingly,

summary judgment was properly granted because the

record contained no evidence suggesting that ARRAD-

COM had breached any duty owed to petitioner under

Florida law.

3. Petitioner insists (Pet. 6) that the “central issue” in

this case is whether the discretionary function exception

bars a claim based on the government’s failure to enforce

mandatory safety regulations. Even assuming that the

discretionary function exception does not bar petitioner’s

suit, however, petitioner must nonetheless state a cause of

action against the United States under Florida law. Since

both courts below have concluded that petitioner has

failed to do so, and since petitioner does not seriously

challenge that conclusion, there is, as the court of appeals

8

concluded, no occasion even to consider whether the

discretionary function exception would bar such a suit.

In any event, even if ARRADCOM had been responsi-

ble for the safety of ORI employees under Florida law, the

district court correctly concluded (Pet. App. 4a-6a) that

petitioner’s claims were foreclosed by the discretionary

function exception. As this Court explained in United

States v. S.A. Empresa de Viacao Aerea Rio Grandense

(Varig Airlines), 467 U.S. 797, 819-820 (1984), “[w]hen an

agency determines the extent to which it will supervise the

safety procedures of private individuals, it is exercising

discretionary regulatory authority of the most basic kind.”

The district court therefore correctly determined (Pet.

App. 4a-Sa) that ARRADCOM’s decision not to incor-

porate the provisions of the Safety Manual in the contract

with ORI was an exercise of discretion immune from suit

under the FTCA.

Petitioner, relying on this Court’s recent decision in

Berkovitz v. United States, No- 87-498 (June 13, 1988),

contends that Varig Airlines is inapposite because AR-

RADCOM had a mandatory duty to include a clause in the

purchase contract incorporating the Safety Manual. The

relevant regulation (32 C.F.R. 1-323.1(c) (1982)) here,

however, explicity authorized a procuring agency to omit

the safety clause. Pursuant to that regulation, ARRAD-

COM made a policy decision to permit contracting of-

ficers to omit the clause for all purchase contracts for

standard commercial items in amounts less than $10,000

(Pet. App. 3a). ARRADCOM’s contract with ORI covered

smoke cartridges purchased for $8,935, and ARRAD-

COM’s contracting officers exercised their discretion to

omit the safety clause after determining that the cartridges

were standard commercial items, a term not defined by

statute or regulation. Since the contracting officers were

required to balance the explicit regulatory goal of reducing

ee

9

administrative costs on small purchases (32 C.F.R. 3-601

(1982)) with the safety gains expected from compliance

with the manual, the choice concerning whether to include

the safety clause involved a “policy judgment” that both

Berkovitz (slip op. 4-5) and Varig Airlines (467 U.S. at

820) clearly shield from suit.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

CHARLES FRIED

Solicitor General

JOHN R. BOLTON

Assistant Attorney General

JEREMY PAUL

Attorney

NOVEMBER 1988

4 Petitioner’s reliance upon McMichael v. United States, 751 F.2d

303 (8th Cir. 1985), is similary misplaced. In McMichael, the Defense

Department had included in its purchase contract with the manufac-

turer the clause incorporating the Safety Manual that ARRADCOM

explicitly omitted here. Accordingly, the Eighth Circuit concluded

(751 F.2d at 304 (emphasis added)) that the FTCA did not bar “the

plaintiffs from recovery for failure to enforce compliance with the

safety requirements of the contract.” The Eighth Circuit thus found

(id. at 307) that the government’s failure to discover safety violations

on the manufacturer’s premises did not involve the exercise of discre-

tion because the Defense Department had already exercised its discre-

tion to undertake the safety requirements of the Safety Manual! and

had three on-site inspectors to enforce those requirements. ARRAD-

COM, by contrast, chose not to include the safety clause in its con-

tract with ORI, and it assumed no responsibility for satety at ORI's

premises.

US GOVERNMENT PRINTING OFFICE 1966- 241 099/60746