# Opposition Brief — Cole v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385002_0088%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1988 - **Citation:** 488 U.S. 966 ## Text 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 Page a pena a kaw was bee 60d fe kaw 903 l aa re ata leas ull k'e Wik eu a oem a6 oe oe eS Oe Say as kd eee eae ee es ds wae és bee Oa l i Peeks einen se Cekas Crd ea daee nse 04 ae ah ee 5 ea is a eieg es peal ans Shue dese eew oa MUS 9 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: Ts ly ne pda eenaeaes SE ce a ae ea in a 4 32 C.F.R. (1982): yg Oe Ne cay eek eee a 3 a le nd ea oe a babe 2, 8 ras 3 Section 3-601 ..... ge a er ee at i) ae rae ee Suc eS fas tS aetna ny on ea 2 re ee i aS aad 2 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385002_0088%3A2. Public record. Not legal advice.