# Petition for Writ of Certiorari — In re Morris

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1998
- **Citation:** 523 U.S. 1058

## Text

Supreme Court, U.S.
FILED

9714 29 DEC 3 4 1997

ee NOE RT NO:

In The
Supreme Court of the United States

October Term, 1997

»

ATHANASIOS RODITIS and CATHY RODITIS

Petitioner,
VS.

UNITED STATES OF AMERICA,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO
THE UNITED STATES COURT OF APPEALS FOR
THE SECOND CIRCUIT

ae en

PETITION FOR WRIT OF CERTIORARI

a Too

GOLDMAN & Rio, Esqs.
Attorneys for Plaintiffs-Appellants
386 Park Avenue South, Suite 1101
New York, N.Y. 10016
TEL: (212) 545-9011
FAX: (212) 545-9016
Counsel of Record - MICHAEL L. GOLDMAN

a

QUESTIONS PRESENTED FOR REVIEW

I. It is not disputed that on March 25, 1992 Petitioner,
plaintiff Athanasios Roditis, slipped and fell and severely hurt
himself on icy, slippery steps of a post office at Great Neck,
New York. Should the trial court have granted Respondent’s
cross-motion for summary judgment dismissing this action
supported solely by statements from attorneys with no personal
knowledge of the facts plus excerpts from contradictory and
confusing deposition testimony from another individual, a
caretaker/janitor who had no personal knowledge of the facts?

II. In compliance with the Federal Tort Claims Act, a
notice of claim form for both Mr. Roditis and for Cathy Roditis,
his wife, was filed. The form was signed only by Mr. Roditis.
The form specifically permits an agent to sign a claim form on
another’s behalf. Should the trial court have granted Petitioners’
motion dismissing Respondent’s “Second Defense” that
Petitioner Cathy Roditis, due to her failure to sign the claim
form, failed to exhaust her administrative remedies even though
the form was signed by her husband; her claim was noted on the
form; the instructions on the form indicate that an agent may
sign on behalf of a claimant; and, as a matter of law, the form
contained information sufficient to give notice of the

occurrence?

TABLE OF CONTENTS

QUESTIONS PRESENTED FOR REVIEW ....... i
TABLE OF AUTHORITIES .............. ili

CITATIONS TO OFFICIAL AND UNOFFICIAL 1

JUDGMENTS AND ORDERS

BASIS FOR JURISDICTION ............. l
STATEMENT OF CASE ................ ]
ARGUMENT -ISSUBT ... 2... ....00.- 4
ARGUMENT -ISSUEII .............. 13
GMI sv nv csuuvecacvshwenee 18

APPENDIX

iii

TABLE OF AUTHORITIES

CASES PAGE(S)
Adams v. U.S. 615F.2d284 ........ 16
Adickes v. S.H. Kress, 398 U.S. 144... 1]
Borgren v. U.S,,723 F. Supp. 581 ........ 13
Celotex Corp, v, Catrett, 477U.S.317 .... 1]
Erxlebenv. U.S.,668F.2d268 ......._. 16
Frantzv,U,S., 29F.2d1435......... 16
| GAF Corp. US., 818 F.2d 901,191 ....._. 15
Hanlon v. U.S, 134,F.R.D.42. .....__ 14
Hilburn v, U.S, 789 F. Supp. 338. ....... 14
Berea yy as 12

Kokara v. US., 750 F. Supp.542 ...... 15,16

Lopezv. US. 758F.2d806 ......._.. 15,16
Pignataro v. Coen v. ConEdv. Webcoy. .. 12
City of New York, 150 A.D.2d 222:

514 NYS2d 392

Quaratino v, Tiffany & Co, 71F.3d58 13

iv

Santiago-Ramirez v. Sec’y of the Dept. of .. 16
Defense, 984 F.2d 16

Transco Lsg, Corp, v. U,S., 896 F.2d 1435 . 16

US. v. Diebold, 369 U.S. 654 ........... 1]
STATUTES CITED
RS 5:5 Wake Rie waa hw CR 1, 2, 4, 11, 14
eee Tee Cua Pee cc e wv auseecoaters 12
OTHER AUTHORITIES

103 N.Y. Jur 2d 389, 394,395 .......... 12

CITATIONS TO OFFICIAL AND UNOFFICIAL JUDGMENTS
AND ORDERS

Petitioners seek review of the Judgment of the United
Stated Court of Appeals for the second circuit dated August 6,
1997, docket number 96-6231; and the judgment (by visiting
judge Manuel Real) of the District Court for the Eastern District
of New York dated July 2, 1996, docket number 93 CV 4480.
A petition for rehearing was denied on October 2, 1997. Copies
of the judgments and opinions are annexed hereto in the
appendix.

BASIS FOR JURISDICTION OF THIS COURT

This petition involves an appeal from the second
circuit Court of Appeals over which this Court has jurisdiction.
Jurisdiction was placed in the court of first instance because the
United States of America is the defendant and the action arose
under the Federal Tort Claims Act (FTCA).

STATEMENT OF THE CASE

This is an action for damages arising out of a serious
personal injury suffered by Petitioner, plaintiff Athanasios
Roditis. On March 25, 1992 Roditis slipped and fell on slippery,

J BEST AVAILABLE COPY

2 =

icy steps at a post office in Great Neck, N.Y. He suffered a
herniated disk. Petitioner Cathy Roditis is the wife of Petitioner
Athanasios Roditis and, as plaintiff, set forth causes of action
for loss of consortium, support and companionship.

Roditis had just parked his vehicle in a parking lot
behind the aforesaid post office. He left the parking lot through
a westward facing walk-way that led to a ianding which was
located approximately behind the left-most 1/3 of the post
office. The landing was sandwiched between the rear of the post
office and the parking lot. To the right of the landing was a
stairway where the accident occurred. The stairway is a 3-step
stairway leading down to a sidewalk that heads north to the
public sidewalk which borders the public street. According to
Respondent’s witness, this post office stairway and sidewalk
which led to the street was open to members of the public on
the day of the occurrence and was not under construction. This
stairway is where the accident occurred. Forward of the landing
was another longer stairway down to a door that led to a lower
level of the post office. This longer stairway was not barricaded
or otherwise inaccessible. To the left of the landing was a
stairway up to a doorway that was barricaded. Ostensibly,
construction was taking place behind the barricade.

As a result of his injury Mr. Roditis has not been
employed and the Roditis family was forced to surrender their
home and move in with Mr. Roditis’ family. They are currently
on welfare.

After a timely filed Claim for Damage form was
presented under the Federal Tort Claims act ("FTCA" hereafter)
on behalf of both Petitioners and no adjustment of the claim was
undertaken, an action was instituted in the district court. In their

3

answer, the defendant-respondent included a defense labelled
“Second Defense” which alleged that Petitioner Cathy Roditis
failed to exhaust administrative remedies due to her failure to
sign the claim form. The claim form was signed by her husband;
her name was printed thereon; her claim was noted on the form;
and the instructions on the form indicate that an agent may sign
on behalf of a claimant.

After the completion of discovery, Petitioners moved
to strike the second defense regarding the failure to exhaust
administrative remedies and Respondent cross-moved for
summary judgment dismissing the action on the grounds that the
Respondent had relinquished control of the place of occurrence
to a construction company, an independent contractor. The
Respondent’s motion was supported by affirmations of
attorneys who had no personal knowledge of the facts and a
copy of the deposition testimony of Mr. Edgar Penny, a
maintenance employee who also had no personal knowledge of
the facts.

The motion for summary judgment was opposed by a
sworn affidavit of Athanasios Roditis in which he stated that
there was no construction taking place in the area where he fell
and that there were no signs, notifications or other warning
devices stating that the place of occurrence was off-limits to
anyone. He also stated that the place of the occurrence was
open to all and that access to the site was unimpeded.

In his deposition, Mr. Penny, the Respondent’s
maintenance employee, discussed several locations on the post
office premises. Some of the locations discussed were under the

control of the construction company and some were not. When
discussing the specific site of the occurrence Mr. Penny clearly

4

and unequivocally stated that the site was open to the public on
the day of the occurrence and available for the public’s use.

The action was reassigned from Judge Allyn Ross to
visiting Judge Manuel Real. Petitioners’ motion. was denied and
Respondent’s motion was granted.

ARGUMENT
Issue I

Petitioners do not dispute the concept that under the
Federal Torts Liability Claims Act (FTCA) the United States
bears no liability under Federal, State or other law for the
tortious acts of its contractors. What Petitioners are attempting
to communicate is that the Petitioner had his accident on a
portion of the Respondent’s premises which was not under the
control of a contractor. If this is the case then, under local law,
the Respondent may bear liability for the occurrence herein. At
the very least, the issue is in dispute and warrants a
trial.

Edgar Penny, Respondent’s only deposition witness,
was not an eyewitness to the accident. In fact, he testified that
he first heard about the accident when he was contacted by the
U.S. Attorney’s office about a month-and-a-half before his
deposition which was 3 1/2 years after the accident. He testified
that he first saw the Respondent’s three Polaroid photos of the
site about a week before his deposition. The undersigned is the
only attorney still connected with this case who was present at
the Penny deposition.

5

What we have here is a classic case of “apples and
oranges’. In his deposition, Penny spoke of two different areas -
one area which includes the site of the occurrence and which
was not under construction and a second site which was behind
a barricade and probably had construction activity.

The error in the Court of Appeals decision is evident
in their finding that Penny, on at least five occasions stated that
the area in which plaintiff fell was off limits. Penny said nothing
of the sort. Penny never saw the accident and never said that
plaintiff fell in one place or another. Penny discussed different
areas, some of which were off-limits due to construction and
some that were not. The fact is that plaintiff fell ina area that
was not off limits and was not included in the area that Penny
said was off limits. In fact, in the only part of the deposition
where Penny discusses the site of the occurrence Penny testified
clearly and unequivocally that there was no construction taking
place there; and that the area was open to the public for bulk
mailing on the day of the accident. Furthermore, when directly
questioned as to whether this was the case at the time of the
accident, March 25, 1992, Penny said “sure”.

What follows is the verbatim exchange between Mr.
Penny and the Petitioners’ counsel regarding the precise area of
the occurrence. When asked if there was a customer entrance in
the back of the post office Penny stated the following:

A. I assume if people want to come in for some
reason, for bulk mailing, they could use the back

entrance, yes, but not usually.

Defendant’s Attorney. (to plaintiffs’ attorney) Is
there a time frame you are talking about here?
Plaintiffs’ Attorney. At any time.

A. (By Penny) At any time, it’s the same thing.

Q. Was that the case back in March of ‘92.

A. Sure.

6

Q. Was there any construction taking place in the area
forward from this doorway to the sidewalk along this
path?

A. No.

With further regard to the loading docks in the back
which were open to the public, Mr. Penny was asked “Were
those loading docks in use around March 25, 1992 to load and
unload mail?” Mr. Penny’s response was “I would assume so...
yes.” How could this be any clearer? As such, Roditis, by
Penny’s admission, fell in an area which was not only owned
and operated by the Respondent and but which was open to the
public for the public’s use on the day of the occurrence! This
means that the area in question was under the control of the
Respondent and not any contractor and was being used for the
Respondent’s benefit in furthering their business interests..

Furthermore, when asked if the site of the occurrence
was “blocked or open” on March 25, 1992, Penny said it was
“open”. When asked if there were signs indicating that the area
in question was off-limits Penny said there weren’t any. When
asked if the area in question ‘vas in any way cordoned off,
Penny said “it wasn’t condoned off that I know of, no.”

The further fact is that Penny himself that he himself
was going to clean snow from the area in question until some
supervisor negligently told him to only clean the perimeter of
the building. Petitioners submit that it was negligence for Penny
not to clean the area in question; that, if the supervisor did
indeed tell Penny not to clean a public area, that it was
negligence for the supervisor to have given Penny this
erroneous instruction; and if the supervisor, when speaking to

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Penny, did not tell Penny to refrain from cleaning this public
area that it was negligent for Penny to misconstrue what the
supervisor told him.

At the time of the accident the construction project
had been underway for several months. Mr. Penny had been at
this particular post office for about 11 years and was, in fact,
the head of its maintenance department. Nevertheless, he
indicated that he was about to clean the area in question and
came in an hour early that day to perform his snow removal
duties until told by one “Bobby G.” not to do so. If Penny, until
stopped by “Bobby G.”, thought that the post office was
responsible for the area in question how was a member of the
general public, like Mr. Roditis, supposed to think otherwise?
Furthermore, if the place of the occurrence was under the
control of the contractors as the Respondent asserts, it was
negligence for the Respondent, who is not an absentee property
owner, to fail to insist that their contractor remedy the situation.

To illustrate that Penny was talking about two
different areas in his deposition testimony the Court will note
that when Penny was asked whose job it was to remove snow
on the day in question, Mr. Penny said “That area was not
removed. That was off-limits to all postal employees, including
myself, because of contract work. It had a barrier there which
nobody could get through, a platform.” Ignoring the fact that
Penny’s answer was wholly unresponsive to the question, the
area referred to by Penny as “that area” was not the area where
Roditis fell. Penny was talking about a platform that was behind
a barricade which may have been in the construction area. In
fact the barricade he is talking about is a plywood barricade that
was nailed to a doorway, completely covering it. The barricade

is visible in the doorway at the end of a walkway in a photo
taken by Respondent. The platform is behind the barricade and
was a part of the construction area. Furthermore, Penny
alternately described the construction area as a “roped-off’ area
and as an off-limits area beyond a wooden barrier. Roditis never
ventured behind any barricades or roped-off area. Roditis did
not fall in the area described by Penny in this portion of his
deposition there nor did he attempt to go into that area. If he
had we would have no dispute with the outcome of this action
and we would quietly go away.

It is not disputed that Roditis never entered upon any
area that was roped off, barricaded or otherwise restricted to
members of the public. He used only those areas that were open
to the general public as of the day of the occurrence. Even
Respondent’s own photos failed to reveal any roped off area.

We also have serious problems with the Court of
Appeals reasoning. They stated:

That the stairs themselves were not under
construction, or immediately surrounded by active
construction work, is not dispositive. The span of a
construction site is not limited to the precise area
where the construction is taking place; it includes
adjacent areas as well. Moreover, the absence of
barricades or warning signs does not establish that the
area was outside the control of the independent
contractor. (Appendix, page A-7, last paragraph, next-
to-last line.)

9

First of all, while the span of a construction site may
not be limited to the precise area where construction is taking
place there is no absolute measurement that can be used to
make this determination. Is it 10 feet? 25 feet? 100 feet? More?
Less? This all depends upon the particular circumstances which
a trial should determine. In any event, in our case, we would
argue that the construction site began, more or less, at the place
where the premises was cordoned off.

Furthermore, while it may be true that the absence of
barricades does not dispositively establish that an area is outside
the control of the independent contractor the absence of the
barricades certainly does not indicate the it is within the control
of an independent contractor.

In addition, we respectfully take exception with the
Second Circuit’s discussion in regard to photographs. The
Second Circuit said:

... plaintiffs’ own photographs indicate that the rear
entrance of the post office, which is immediately
adjacent to the spot where Athanasios fell, was
boarded up - an unmistakable indication that the area
where the accident occurred was within the zone of
construction. (Appendix, page A-8, first full
paragraph, ninth line.)

Firstly, it is not disputed that the photographs referred
two are three (3) Polaroid instant photos taken by the
Respondent not the Petitioner. Secondly, only one of the three
photos shows the site of the occurrence. A boarded up doorway
is visible in the background. Plaintiff never ventured beyond the

10

areas that were open to the public nor did he attempt to breach
the boarded up doorway. We would say that a boarded up
doorway indicates construction activity behind the boarded
area, not in front of it.

With regard to the proceedings in the district court,
what happened there was, in our view, with all respect, a
matter of expediency. A visiting judge was brought in to help
move the calendar. On or about May 20, 1996 Petitioners
served its motion, returnable on June 3, 1996, to dismiss the
Respondent’s second defense. At the Respondent’s request,
Petitioners consented to an adjournment to July 2, 1996. In the
interim, the assistant U.S. attorney that had been assigned to
this case was replaced and this action was reassigned from the
judge to whom it was previously assigned to the visiting judge.
A so-called “status/settlement” conference was previously
scheduled for Thursday, June 20, 1996.

On or about June 19, 1996 we were served with the
Respondent’s response to our motion plus a cross-motion to
dismiss based on the Respondent’s “first defense” of lack of
control. The status/settlement conference was attended by the
incoming assistant United States attorney, another person from
her office, the undersigned and another attorney from the office
of the undersigned. The status/settlement conference was
presided over by the visiting judge, not the assigned judge.
Petitioner spoke first. After discussing the facts we mentioned
that motions were pending and described their objectives. On
the spot, without having read one document or viewed one
exhibit the visiting judge indicated that he was inclined to grant
the motion to dismiss. Despite the fact that the rules, (Rule
56(c)) require 10-days notice and the fact that the previously

OO

a Wii initial

set date for the hearing of this motion and cross-motion was
July 2, 1996, the visiting judge gave us until Monday June 24,
1996 at 4:30 p.m. to respond to the cross-motion to dismiss and
produce authorities to persuade him not dismiss the action.

On June 24, 1996 we appeared with our papers,
including authorities, at the appointed time and place. We were
informed that the judge left early and that we would now be
expected to appear at 8:30 a.m. on June 25, 1996, which is a
half-hour before the building opens and one hour before |
business customarily commences in the district. The necessary
moving papers plus accompanying memorandums were
submitted to the visiting judge. Each side had about a minute or
two to verbally support the arguments in their papers. The court
immediately rendered its decision dismissing this case without
consulting papers, authorities, exhibits or anything, a process
referred to by this Court in the case Celotex Corp. v. Catrett,
477 U.S. 317, as “railroaded”.

On a motion for summary judgment, the inferences to
be drawn from the underlying facts contained in (the moving
party's) materials must be viewed in the light most favorable to

the party opposing the motion. Adickes v. S.H. Kress, 398 U.S.
144 citing United States v. Diebold, Inc., 369 U.S. 654.

Petitioners have more than met their burden of
showing that there are material facts in dispute. As such,
summary judgment is unwarranted and should have been denied.
Celotex Corp. v. Catrett, supra.

There was discussion that Petitioners were trying to
hold the Respondent strictly liable for the occurrence.
Petitioners do not dispute that the FTCA does not confer strict
liability upon the United States. However, Petitioners have

aE

12

never cast this action in strict liability terms. In fact, there is no
strict liability in New York in regard to cases like this. In New
York, strict liability is limited to statutory violations, products
liability and some vicious animal cases. 103 N.Y. Jur 2d 389,
394, 395. New York is a pure comparative negligence state.
CPLR 1411. Petitioner in this case can be found anywhere from
100% to 0.0% culpable for the occurrence herein.

One last point - Petitioners’ papers included a copy of
a page from a document called “Specifications” which was
supplied by the Respondent in connection with the construction
work in question. The document, a drawing of the post office
premises with notations as to the proposed construction project,
failed to show that any construction was planned for the site of
the occurrence, which, in fact, is consistent with Penny’s
testimony. Even if this site were to later come under
construction, which as far as we know it did not, under New
York law it cannot be deemed part of the construction area.
Where there is no evidence that a contractor for a public
authority has actually commenced repairs at the site of an
occurrence, the public authority remains liable even though the
contractor might at some unspecified time make repairs.
Kenyon v. City of New York, 194 A.D.2d 398; 598 NYS2d
508. When the contractor takes over the site liability will shift.
A contractor cannot be held liable where an accident took place

near but not at the site of construction. Pignataro v. Coen v.
Con Ed v. Webco v, City of New York, 150 A.D.2d 222; 514 r

NYS2d 392. The circumstances herein clearly place liability for
the occurrence on the Respondent.
The Petitioners’ point is that the area in question was

open to the public on the day of the occurrence and that it was

——E~ A ee

13

not part of the construction area. At the very least, Penny’s
testimony, even when read in a light most favorable to the
moving party, the Respondent, (which happens to be the
reverse of what we’re supposed to do when deciding motion for
summary judgment), suggests that there is more than enough
material to make out a prima facia case in favor of the
Petitioners due to the Respondent’s negligence. When we have
testimony such as that of Mr. Penny’s, which can be interpreted
one way or the other, summary judgment based on such
testimony is certainly not warranted. After all, the purpose of
the summary judgment procedure is not to decide issues but to
see if there are issues. Quaratino v. Tiffany & Co,, 71 F. 3d 58
(2d Cir. 1995). In this case there is most certainly an issue as to
who controlled the area in question, among others.

If this were an action against any other proprietor or
property-owner a motion such as this would have been denied
in the bat of an eyelash as the Petitioners have clearly met their
burden under Rule 56 by setting forth its theory and debunking
Respondent’s theories upon which it relied to support is
application for summary judgment.

The fact that there can be good faith disagreement
about what Penny said or meant to Say Clearly indicates that

there exist at least some triable issues of fact warranting
remand.

Issue II
In the case Borgren v. United States, 723 F.Supp.

581, a case in which the spouse of the injured party failed to
sign a notice of claim, the court found that “the administrative
claim filed by the Petitioner _. adequately provided sufficient

14

‘nformation to enable the administrative agency to conduct a full
investigation of the incident which resulted in the Petitioner’s
injuries. That being the case, Respondent had adequate notice
as required under 28 U.S.C. 2675.

In Hanlon v. United States, 134 F.R.D. 42, Judge
Weinstein a most respected jurist of the very court where the
instant action was pending decided, in an analogous case against
the same Respondent, the Postal Service, that where one spouse
did not sign a claim form, not only is the omission of a signature
not fatal, the form of the notice to Respondent need not even be
on the official claim form. Since serious injuries were alleged on
Claim Form 95 with regard to the injured Petitioner, “an
experienced agency such as the legal branch of the Postal
Service should have anticipated [a] claim for loss of
consortium”... “To satisfy the statutory requirement, the form
of the notice must simply be sufficient to afford the agency the
opportunity to investigate the claim.” The court, in allowing the
claim, noted that the complaint always referred to two
Petitioners and included a derivative claim for loss of
services/consortium. This is the standard which should be
applied in this part of the country.

Where the administrative agency acknowledges a
claim, even though the claim form was not signed by one
claimant the government had sufficient notice and the tort claim
could be maintained. Hilburn v. ULS., 789 F.Supp. 338.

In our case, the Respondent did acknowledge the
claim-of Cathy Roditis on at least one occasion prior to suit.
After the Petitioners filed their first claim form counsel received
Respondent’s letter dated July 15, 1992. In said letter the
Respondent clearly noted the names of both Petitioners which

15

makes it undeniable that they were aware of the claim of Cathy
Roditis. In fact, after the institution of this action, her deposition
was taken by the Respondent on September 28, 1995.

In another Postal Service case, very much like the case
at bar, where both spouses were noted on the claim form but
only one spouse signed the claim form, and unlike our case a
sum certain was not filled in, the court allowed a loss of
consortium claim against the Postal Service. Kokara v. U.S.,
750 F.Supp. 542. The court held:

Relevant legislative history supports a liberal
construction of the exhaustion requirement. Congress
had two main purposes in enacting section 2675(a) of
the FTCA. First Congress sought to “ease court
congestion and avoid unnecessary litigation, while
making it possible for the government to expedite the
fair settlement of tort claims against the United
States.” .... Second, Congress wanted to provide “fair
and equitable treatment of private individuals and
claimants when they deal with the government or are
involved in litigation with the government” The
dominant theme of section 2675(a), therefore, is to
apprise the agency involved in the activity which gave
rise to the claim so that fair settlement can be
effectuated if warranted. See GAF Corp. US., 818
F.2d 901, 919 (D.C.Cir. 1987) (“Congress repeatedly
characterized presentment as a simple requirement of
notice.”) In Lopez v, ULS., 758 F.2d 806 (1985), the
First Circuit stated, “The claims process is meant
largely to furnish notice to the government sufficient
to allow it to investigate the alleged negligent episode
to determine if settlement would be in the best
interests of all.” .... Moreover, it seems fair to
conclude that the FTCA is “intended to provide a

meena

16

framework conducive to administrative settlement of
claims, not to provide a basis for a regulatory checklist
which, when not fully observed, permits the
termination of claims regardless of their merits.”

Erxleben v. ULS., 668 F.2d 268.

Furthermore, the Kokaras court went on to say that
since Mrs. Kokaras name was on the claim form, even though
she did not sign it, the claim was validly presented and held that
her husband’s signature was sufficient because “28 C.F.R. 14.3
allows one’s agent to file a claim of her behalf.” This is exactly
the theory propounded by these Petitioners in their motion to
strike the Respondent’s Second Defense and a similar result
should ensue in our case.

A claim is properly presented within the meaning of
section 2675(a) when the agency receiving the claim is given
sufficient notice to commence investigation and the claimant
places a value on the claim. Transco Lsg. Corp. v. ULS., 896
F.2d 1435 citing Adams v. ULS., 615 F.2d 284. Frantz v. U.S.,
29 F.3d 222. In our case a value was put on the claim.
Espousing these same principals the court in Santiago-Ramirez
v. Secretary of the Dept. of Defense, 984 F.2d 16 stated “the
law was not intended to put up a barrier of technicalities to
defeat [Petitioners’] claims.” (Citing Lopez v, ULS., 758 F.2d
806.) “A flexible approach is in keeping with the original
purpose behind the filing of an administrative claim.... This
approach to the notice requirement recognizes that Congress
intended to leave the ultimate choice between settlement and
suit in the hands of the claimant.... [The administrative agency]
must have enough information that it may reasonably begin an
investigation of the claim”. In other words, in a case such as

17

that presently before the Court, where a sum certain is claimed
and both Petitioners are named in the claim forms both claims
are to be construed as valid and there is no justification for the
dismissal of the claim of the spouse who did not sign a claim
form.

Given the state of the law, particularly in the district
where this action was pending, the Petitioners’ motion to
dismiss Respondent’s Second Defense should have been

granted.

18

CONCLUSION

For the reasons stated herein, it is respectfully
requested that this Honorable Court grant the instant Petition
and, thereafter, (i) restore Petitioners’ action and remand the
case to the trial court, thereby reversing the order of the court
below granting summary judgment to Respondent; and (ii) grant
Petitioners’ motion to strike Respondent’s “Second Defense”
thereby reversing the order of the court below denying
Petitioners’ motion to dismiss the Respondent’s said second

defense.

Dated: New York, New York
February 25, 1998

Respectfully submitted,

GOLDMAN & RIO, ESQS.,
386 Park Avenue South
New York, N.Y. 10016
(212) 545-9011

MICHAEL L. GOLDMAN
Attorney for Petitioner

APPENDIX

GEORGE LANGE lil.
CLERK

Ata stated Term of the United States Court of Appeals for the Second
Circuit. held at the United States Courthouse, Foley Square, in the City
of New York, on the Second day of October, one houtend nine

hundred and ninety-seven.

Present:
HON. Ellsworth A. Van Graafeiland

HON. John M. Walder, Jr.

Circuit Judges
HON. J. Garvan Murtha

District Judge.*

ATHANASIOS RODITIS and CATHY RODITIS,

Plaintiffs-Appellants,

v.
Docket No. 96-6231
UNITED STATES OF AMERICA,
USCA
FILED 8/6/97
Defendant-Appellee.George Lane II]
Clerk 2d Cir.

Appcal from United States District Court for the Eastern

District of New York.
This cause came on to be heard on the transcript of record from

the Eastern District of New York and was argued by counsel.
ON CONSIDERATION WHEREOF, it is now ORDERED,

ADJUDGED. and DECREED that the judgment of said district court
be and it hc :eby is affirmed in accordance with the opinion of this

court.

ie

For the Court

George Lange III.
Clerk
By:

/s/

Beth J. Meadbor
Administrative
Attomcy

*The Honorable J. Garvan Murtha, Chicf Judge of the United States
District Court for the District of Vermont, sitting by designation.

UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

No. 1203—August Term 1996
(Argued April 8, 1997 Decided August 6, 1997)
Docket No. 96-6231

ATHANASIOS RODITIS and CATHY RODITIS,
Plaintiffs-Appellants,
—against—
UNITED STATES OF AMERICA,
Defendant-Appellee.

Before:

VAN GRAAFEILAND, WALKER, Circuit Judges,
and MURTHA, District Judge.*

Plaint ffs appeal from a judgment of the United States
District Court for the Eastern District of New York
(Real, J., sitting by designation) granting the United

* The Honorable J. Garvan Murtha, Chief Judge of the United States
District Court for the District of Vermont, sitting by designation.

States’ motion for summary judgment in this action for
personal injuries and loss of consortium under the Fed-
eral Tort Claims Act.

Affirmed.

MICHAEL L. GOLDMAN, Goldman & Rio,
New York, New York, for plaintiffs-
appellants.

TRACEY L. SALMON, Assistant United States
Attorney, Eastern District of New York,
Brooklyn, New York (Varuni Nelson,
Assistant United States Attorney,
Zachary W. Carter, United States Attor-
ney, on the brief) for defendant-
appellee. :

PER CURIAM:

Plaintiffs, Athanasios and Cathy Roditis, appeal from
a judgment of the United States District Court for the
Eastern District of New York (Manuel L. Real, District
Judge, of the United States District Court for the Central
District of California, sitting by designation), granting
summary judgment in favor of the United States and dis-
missing plaintiffs’ suit seeking recovery under the Fed-
eral Tort Claims Act (“FTCA”), 28 U.S.C. §§ 2671-80,
for personal injuries Athanasios Roditis suffered while
delivering building material to an independent contrac-
tor performing construction work on the premises of the
United States Post Office in Great Neck, New York.

A-5

Plaintiffs assert (1) that the district court erred in grant-
ing defendant’s motion for summary judgment because
there exists a material issue of fact as to whether the
location at which the injury occurred was within the con-
trol of the United States at the time of the accident and
(2) that, even if the injury occurred within an area under
the control of an independent contractor, the United
States is liable because, under New York tort law, a
landowner owes a nondelegable duty to maintain its
property. We reject both assertions and affirm.

I. BACKGROUND

On March 25, 1992, Athanasios Roditis (“Athana-
sios”) slipped and fell on a patch of ice while attempting
to negotiate a three-step flight of stairs in the rear of the
United States Post Office in Great Neck, New York,
injuring his back. At the time of the accident, Beys Spe-
cialty Contracting Corporation (“Beys Specialty”) was
constructing an underground parking area at the post
office pursuant to a contract with the United States
Postal Service (“USPS”). On the day of the incident,
Athanasios was delivering materials to the construction
site, located to the rear of the post office, for one of the
project’s subcontractors.

According to Athanasios, the accident occurred as he
walked from the post office’s parking lot to Beys Spe-
cialty’s foreman to tell the latter that he had just arrived
with a delivery of construction material. On the way,
Athanasios claimed that he slipped on the stairs because
snow and ice had not been properly cleared. According
to plaintiffs, Athanasios was taken to a hospital and
diagnosed as suffering from a recurrent herniated disc

and other injuries.

Pursuant to 28 U.S.C. § 2675(a), plaintiffs filed two
administrative claim forms, dated June 18 and July 21,
1992, alleging entitlement to recovery for injuries suf-
fered as a result of the fall. On the forms, plaintiffs
sought as much as $2,000,000 in recovery. Although
Cathy Roditis (“Cathy”), Athanasios’s wife, is named as
a “claimant” on the forms, she did not sign the form or
state, even in the most general terms, an injury con-
nected with the accident. Following the denial of plain-
tiffs’ claims, they filed an action in the United States
District Court for the Eastern Dtstrict of New York seek-
ing $5,000,000 in damages for Athanasios’s injuries and
$1,000,000 in damages for Cathy’s alleged loss of con-
sortium. The United States answered alleging that an
independent contractor, not the United States, was
responsible for Athanasios’s injuries and that Cathy had
not stated a claim because she had failed to exhaust her
administrative remedies as required by the FTCA.

A-6

After a period of discovery, plaintiffs moved to strike
the United States’ defense to Cathy’s claim. The United
States opposed the plaintiffs’ motion to strike and filed
a cross-motion for summary judgment on the entire com-
plaint. After oral argument, the district court denied
plaintiffs’ motion to strike and granted defendant's
motion for summary judgment. The district court con-
cluded that, under the FTCA, the United States is not
liable for the negligence of its independent contractors
and that the area in which the accident occurred was
controlled by the general contractor, Beys Specialty, and
not the United States.

A-7

II. DISCUSSION

On appeal, plaintiffs contend that the district court
erred in granting summary judgment because there exists
a genuine issue of material fact with respect to whether
the accident site was under the control of Beys Specialty
or the United States. In the alternative, plaintiffs argue
that even if Athanasios fell within an area controlled by
Beys Specialty, the United States is liable because under
New York tort law a landowner owes a nondelegable
duty to maintain its property.

A. Control Over the Accident Site

On appeal, we review a district court’s grant of sum-
mary judgment de novo, drawing all inferences from the
underlying facts in favor of the nonmovant. See
Quaratino v. Tiffany & Co., 71 F.3d 58, 64 (2d Cir.
1995). The party moving for summary judgment has the
burden of showing the absence of a genuine issue of
material fact. See Adickes v. S.H. Kress & Co., 398 U.S.
144, 157 (1970). Mindful of these standards, we agree
with the district court that there is no genuine issue of
material fact and that the United States is entitled to
judgment as a matter of law. See Fed. R. Civ. P. 56.

Plaintiffs’ affidavit, filed in opposition to the United
States’ motion for summary judgment, states that no
construction work was being done on the steps at the
time of the accident and that there were no barricades or
warning signs indicating that the area was off-limits.
This evidence, however, even:viewed in the light most
favorable to plaintiffs, fails to establish that the USPS
controlled or otherwise had responsibility for the area in
question. That the stairs themselves were not under con-
struction, or immediately surrounded by active con-

BEST AVAILABLE COPY

A-8

struction work, is not dispositive. The span of a con-
struction site is not limited to the precise area where the
construction is taking place; it includes adjacent areas as
well. Moreover, the absence of barricades or warning
signs does not establish that the area was outside the
control of the independent contractor.

Additional evidence leads conclusively to the fact that
the locus of the accident was within the zone controlled
by the Beys Specialty. Edgar Penny, the chief custodian
of the Great Neck Post Office, on at least five occasions
during his deposition, firmly and unequivocally stated
that the area in which Athanasios fell was “off limits” to
postal workers and used solely by the construction work-
ers. Plaintiffs proffered no reasonably credible evidence
in rebuttal. In addition, plaintiffs’ own photographs indi-
cate that the rear entrance of the post office, which is
immediately adjacent to the spot where Athanasios fell,
was boarded up—an unmistakable indication that the
area where the accident occurred was within the zone of
construction. See Brief for the United States, Addendum
A, at 1.

B. Nondelegable duty

Plaintiffs argue in the alternative that, even assuming
that the accident site was not within the control of the
USPS, the United States is nonetheless liable because,
under New York law, a landowner who holds property
open to the public has a nondelegable duty to ensure that
the premises are safe. See, e.g., Thomassen v. J & K
Diner, Inc., 549 N.Y.S.2d 416, 417 (N.Y. App. Div.
1989). Even assuming such a nondelegable duty exists,
plaintiffs nonetheless are foreclosed under the FTCA
from a recovery based on such a duty.

A-9

Consent of the United States to be sued “ ‘cannot be
implied, but must be unequivocally expressed.’ ” United
States v. Testan, 424 U.S. 392, 399 (1976) (quoting
United States v. King, 395 U.S. 1, 4 (1969)). In the
FTCA, Congress waived the United States’ sovereign
immunity for suits arising from any 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.” 28 U.S.C.
§ 1346(b)(1). “Employee” under the FTCA, however,
specifically excludes “any contractor with the United
States.” 28 U.S.C. § 2671; United States v. Orleans, 425
U.S. 807, 813-14 (1976); Logue v. United States, 412
U.S. 521, 526-27 (1973). Thu:, as a general rule,
sovereign immunity precludes suits against the United
States for injuries caused by its independent contractors.

The facts, viewed in the light most favorable to plain-
tiffs, fail to support a reasonable inference that Beys
Specialty was an “employee” within the meaning of the
Act. The United States did not maintain control of “the
detailed physical performance of the contractor,” Logue,
412 US. at 527-28, or supervise “its day-to-day opera-
tions,” Orleans, 425 U.S. at 815. The only arguable indi-
cia of control, the government's retention of a right to
inspect the progress of construction, does not convert a
contractor into a federal employee. See, €.8- Leone v.
United States, 910 F.2d 46, 50 (2d Cir. 1990).

Plaintiffs, however, contend that under New York's
putative nondelegable duty, see 28 U.S.C. § 1346(b)
(noting that liability under the FTCA is determined “in
accordance with the law of the place where the act or
omission occurred”), recovery is possible notwith-
standing the FTCA’s independent contractor exception.

This argument fails for two reasons.

A-10

First, as the Supreme Court has explained, in adopting
the independent contractor exception to liability,
Congress did not simultaneously adopt the exceptions to
that doctrine. See Logue, 412 U.S. at 528; see also
Basher v. United States, No. 92-CV-186, 1995 WL
646343, at *3 (D. Conn. Mar. 14, 1995) (Cabranes, J.).
Thus, any state [law nondelegable duty cannot, on its
own, override the United States’ sovereign immunity
from suits for injuries caused by its independent con-
tractors. See Berkman v. United States, 957 F.2d 108,
112 (4th Cir. 1992) (holding FTCA exemption of lia-
bility for government contractors preempts state law
where it imposes nondelegable duties); Hall v. United
States, 825 F. Supp. 427, 431-32 (D.N.H. 1993) (United
States not liable where plaintiff was injured in an ele-
vator in government building and elevator maintenance
delegated to independent contractor); Rowell v. United
States, No. 89-Civ-8418, 1992 WL 315653, at *2
(S.D.N.Y. Oct. 16, 1992) (noting that if plaintiff “could
predicate government liability upon New York laws
imposing nondelegable duties upon landowners. . . he
would subvert the express mandates of the FTCA that
preclude making the government liable for acts of its
independent contractors”); Smith v. United States, 674 F.
Supp. 683, 686 (D. Minn. 1987); Aetna Life & Cas. Ins.
Co. v. United States, 508 F. Supp. 298, 301 (N.D. IIl.
1981). But see Dickerson, Inc. v. United States, 875 F.2d
1577, 1582-83 (11th Cir. 1989) (holding that “the inde-
pendent contractor exception in the FTCA would not
insulate the Government from the contractor's negli-
gence if the duty was non-delegable under [state] law”).

Plaintiffs’ theory fails for a second reason. State law
nondelegable duties imposed on landowners would
result, in cases such as this, in a form of strict liability

A-11

Consent of the United States to be sued “ ‘cannot be
implied, but must be unequivocally expressed.’ United
States v. Testan, 424 U.S. 392, 399 (1976) (quoting
United States v. King, 395 U.S. 1, 4 (1969)). In the
FTCA, Congress waived the United States’ sovereign
immunity for suits arising from any 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.” 28 U.S.C.
§ 1346(b)(1). “Employee” under the FTCA, however,
specifically excludes “any contractor with the United
States.” 28 U.S.C. § 2671; United States v. Orleans, 425
U.S. 807, 813-14 (1976); Logue v. United States, 412
U.S. 521, 526-27 (1973). Thus, as a general rule,
sovereign immunity precludes suits against the United
States for injuries caused by its independent contractors.

The facts, viewed in the light most favorable to plain-
tiffs, fail to support a reasonable inference that Beys
Specialty was an “employee” within the meaning of the
Act. The United States did not maintain control of “the
detailed physical performance of the contractor,” Logue,
412 US. at 527-28, or supervise “its day-to-day opera-
tions,” Orleans, 425 U.S. at 815. The only arguable indi-
cia of control, the government's retention of a right to
inspect the progress of construction, does not convert a
contractor into a federal employee. See, e.g., Leone v.
United States, 910 F.2d 46, 50 (2d Cir. 1990).

Plaintiffs, however, contend that under New York’s
putative nondelegable duty, see 28 U.S.C. § 1346(d)
(noting that liability under the FTCA is determined “in
accordance with the law of the place where the act or
omission occurred”), recovery is possible notwith-
standing the FTCA’s independent contractor exception.
This argument fails for two reasons.

A-12

First, as the Supreme Court has explained, in adopting
the independent contractor exception to liability,
Congress did not simultaneously adopt the exceptions to
that doctrine. See Logue, 412 U.S. at 528: see also
Basher v. United States, No. 92-CV-186, 1995 WL
646343, at *3 (D. Conn. Mar. 14, 1995) (Cabranes, J.).
Thus, any state law nondelegable duty cannot, on its
own, override the United States’ sovereign immunity
from suits for injuries caused by its independent con-
tractors. See Berkman v. United States, 957 F.2d 108,
112 (4th Cir. 1992) (holding FTCA exemption of lia-
bility for government contractors preempts state law
where it imposes nondelegable duties); Hall v. United
States, 825 F. Supp. 427, 431-32 (D.N.H. 1993) (United
States not liable where plaintiff was injured in an ele-
vator in government building and elevator maintenance
delegated to independent contractor); Rowell v. United
States, No. 89-Civ-8418, 1992 WL 315653, at *2
(S.D.N.Y. Oct. 16, 1992) (noting that if plaintiff “could
predicate government liability upon New York laws
imposing nondelegable duties upon landowners. . . he
would subvert the express mandates of the FTCA that
preclude making the government liable for acts of its
independent contractors”); Smith v. United States, 674 F.
Supp. 683, 686 (D. Minn. 1987); Aetna Life & Cas. Ins.
Co. v. United States, 508 F. Supp. 298, 301 (N.D. III.
1981). But see Dickerson, Inc. v. United States, 875 F.2d
1577, 1582-83 (11th Cir. 1989) (holding that “the inde-
pendent contractor exception in the FTCA would not
insulate the Government from the contractor’s negli-
gence if the duty was non-delegable under [state] law”).

Plaintiffs’ theory fails for a second reason. State law
nondelegable duties imposed on landowners would
result, in cases such as this, in a form of strict liability

A-13

against the United States for injuries caused by its inde-
pendent contractors. The FTCA, however, precludes
government liability absent a negligent act, and, thus,
“does not extend to liability without fault.” Dalehite v.
United States, 346 U.S. 15, 44 (1953); see also Schnei-
der v. United States, 734 F. Supp. 239, 248 (E.D. La.
1990); Maltais v. United States, 546 F. Supp. 96, 101
(N.D.N.Y. 1982) (Miner, J.), aff'd, 729 F.2d 1442 (2d
Cir. 1983) (mem.); Dumansky v. United States, 486 F.

Supp. 1078, 1093 (D.N.J. 1980).

Accordingly, in rejecting plaintiffs’ arguments, we
hold that in this suit under the FTCA, where the United
States is wholly without fault, the federal government
may not be held liable for a negligent or wrongful act or
omission of an independent contractor even where state
law would impose liability in such instances.

Ill. CONCLUSION

We have considered all of plaintiffs’ remaining con-
tentions and have found them to be without merit. For
the reasons set forth above, the judgment of the district
court is hereby AFFIRMED.

A-14

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

FILED in
! Clerks OfficeEDNY
‘ ATHANASIOS RODITIS and July 2, 1996
CATHY RODITIS,
JUDGMENT
| Plaintiffs, |
-against-
CV-93-4480 (ARR)

THE UNITED STATES OF AMERICA,

Defendant.

en ee

An order of Honorable Manuel L. Real, United States

District Court Judge, sitting by intercircuit assignment from the United

States District Court for the Central District of California, having been
filed on July 1, 1996, denying plaintiffs’ motion to strike the second

affirmative defense of the defendant; granting defendant’s cross-motion

for summary judgement and dismissing the action, it is
ORDERED and ADJUDGED that plaintiffs take nothing

of the defendant: that plaintiffs’ motion to stride the second affirmative

defense of the defendant is denied: thaf defendant's cross-motion for
summary judgement is granted; and, that the action is dismissed.

Dated: Brooklyn, N.Y.
July 1 , 1996

| Is/

Robert C. Heinemann
Clerk of Court

GEORGE LANGE Ill,
CLERK

At a stated Term of the United States Court of Appeals for the
Second Circuit, held at the United States Courthouse, Foley Square. in
the City of New York, on the Second dav of October, one thousand
nine hundred and ninety-seven.

Present: HON. Filsworth A. Van Graafeiland
HON. John M. Walder, Jr.
Circuit Judges
HON. J. Garvan Murtha
District Judge.*

ATHANASIOS RODITIS and CATHY RODITIS,

Plaintiffs-Appellants,
w.
Docket No. 96-6231
UNITED STATES OF AMERICA,

USCA
FILED 10/2/97

Defendant-Appellec.George Lane Ill
Clerk 2d Cir.

A Petition for Rehearing having been filed herein by
Appellants Athanasios and Cathy Roditis
Upon consideation thercof, it is Ordered thatr said motion is hereby

denicd.

For the Court
George Lange III,
Clerk

By:

a
Beth J. Mcadbor
Administrative
Attomey
*The Honorable J. Garvan Murtha, Chief Judge of the United States
District Court for the District of Vermont, sitting by designation.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386013_2308%3A1. Public record. Not legal advice.