HUD reliance on independent contractor forecloses tort claim

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Where the Federal Tort Claims Act’s waiver of sovereign immunity excludes negligence or wrongful acts or omissions performed by independent contractors, and the Department of Housing and Urban Development contracted with a company to maintain a property that was for sale, the government was immune for injuries suffered by a potential buyer while he toured the property.

Background

On Jan. 10, 2017, Ernest Wynkoop was touring a property that was for sale when he fell through a stair that collapsed. He suffered a tear to his right rotator cuff which has required two surgeries, and suffered right shoulder pain, right knee pain and a sprain of the lateral ligament of his right knee. The property was owned and being sold by HUD. On Jan. 22, 2020, Wynkoop filed this lawsuit against HUD, alleging negligence in maintaining the property.

The government filed a motion to dismiss Wynkoop’s lawsuit pursuant to Rule 12(b)(1), asserting that HUD contracted the property’s maintenance to an independent contractor and the United States has not waived sovereign immunity for alleged negligence of independent contractors under the Federal Tort Claims Act, or FTCA.

Analysis

Although the government typically is immune from suit, “the FTCA waives sovereign immunity when the federal government ‘would be liable to the claimant in accordance with the law of the place where the act or omission occurred’ for certain torts, such as negligence committed by federal employees acting  within the scope  of their employment.’” The United States asserts that the government’s waiver of sovereign immunity for tort claims specifically excludes negligence or wrongful acts or omissions performed by independent contractors.

Wynkoop responds that he is not arguing that the United States is vicariously liable for the actions of an independent contractor, but rather that it is directly liable, because under Virginia law, a property owner’s duty to maintain premises in a reasonably safe condition is a non-delegable duty. However, this argument was rejected by the Fourth Circuit in Berkman v. United States, 957 F.2d 108 (4th Cir. 1992).

Wynkoop alleges that the government was negligent in that it failed to keep the property where he fell in a reasonably safe condition, failed to properly maintain the stairwell, failed to properly supervise agents and employees as they carried out their duties of inspecting to make sure the stairwell was safe, failed to warn invitees to the property of its dangerous condition and failed to exercise reasonable care to correct the dangerous condition of the stairwell. However, it is undisputed that the government contracted with BLM Companies Inc. to perform these duties and therefore, the government has not waived its sovereign immunity under the FTCA.

Wynkoop cites authority where courts have held that direct liability imposed for breach of a non-delegable duty does not fall under the independent contractor exception to the FTCA. However, all the cases he cites involved “inherently dangerous work.” Because Wynkoop has not alleged that maintenance of the HUD-owned property on which he was injured was inherently dangerous or involved special dangers, these cases do not support his argument that the government is directly liable for his injuries.

Defendant’s motion to dismiss granted.

Wynkoop v. United States of America, Case No. 5:20-cv-4, Dec. 23, 2020. WDVA at Harrisonburg (Urbanski). VLW 020-3-650. 8 pp.