1997 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

4-11-1997

Norman v. United States

Precedential or Non-Precedential:

Docket 96-1645

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Recommended Citation

"Norman v. United States" (1997). 1997 Decisions. Paper 82.

http://digitalcommons.law.villanova.edu/thirdcircuit_1997/82
 UNITED STATES COURT OF APPEALS 

 FOR THE THIRD CIRCUIT 

 __________________ 

 No. 96-1645 

 ________________ 

 KENDALL NORMAN, 

 

 Appellant, 

v. 

UNITED STATES OF AMERICA, 

 Third-Party Plaintiff, 

 v. 

 ELWYN INDUSTRIES, and/or ELWYN, INC., 

 Third-Party Defendant. 

 __________________ 

 On Appeal from the United States District Court 

 for the Eastern District of Pennsylvania 

 (D.C. No. 95-cv-04111) 

 __________________ 

 Submitted Pursuant to Third Circuit LAR 34.1(a) 

March 26, 1997 

 Before: SLOVITER, Chief Judge, STAPLETON and ALDISERT, 

 Circuit Judges. 

 (Opinion Filed: April 11, 1997) 

 __________________ 

 

 John F. McElvenny 

 42 South 15th Street 

 Suite 1150 

 Robinson Building 

 Philadelphia, PA 19102 

 Michael LaRosa 

 LaRosa & DeLuca P.C. 

 7300 City Line Avenue, Ste. 300 

 Philadelphia, PA 19151 

 ATTORNEYS FOR APPELLANT 

 
 Michael R. Stiles 

 United States Attorney 

 James G. Sheehan 

 Assistant United States Attorney 

 Chief, Civil Division 

 Lois W. Davis 

 Keir N. Dougall 

 Assistant United States Attorney 

 Office of United States Attorney 

 615 Chestnut Street, Ste. 1250 

 Philadelphia, PA 19106 

 ATTORNEYS FOR APPELLEE 

 United States of America 

 Domenick C. DiCicco, Jr. 

 Simasek, Ruzzi & McKee 

 1818 Market Street, Ste. 3400 

 Philadelphia, PA 19103 

 ATTORNEY FOR APPELLEE 

 Elwyn Ind. and/or Elwyn, Inc. 

__________________ 

OPINION OF THE COURT 

__________________ 

ALDISERT, Circuit Judge. 

 The question for decision in this appeal from dismissal of 

the claim for want of subject matter jurisdiction brought in an 

action brought under the Federal Tort Claims Act is whether the 

activity complained of comes within a recognized exception to the 

Act. The Plaintiff claimed that he slipped and fell in the 

Ceremonial Court Corridor of the William J. Green Federal 

Building and the Byrne Courthouse Building in Philadelphia 

because a film of water and ice was on the floor at the entrance 

to the building. 
3

 The Federal Tort Claims Act vests exclusive 

jurisdiction in district courts for claims against the United 

States “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 occurred.” 28 

U.S.C. § 1346(b). Title 28 U.S.C. § 2671 explains that “Federal 

agency” and “Employee of the government” do not include any 

contractor with the United States. Thus, there is an 

independent-contractor exemption in the Federal Tort Claims Act. 

 The district judge determined that any negligence causing the 

injury was that of the independent contractor (who was brought 

into this case as a third-party defendant), not that of the 

United States. Therefore, the court concluded that Plaintiff's 

claim came within the independent-contractor statutory exception 

to the FTCA and, accordingly, dismissed the complaint for want of 

subject matter jurisdiction. We affirm the judgment of the 

district court. 

 The critical factor used to distinguish a federal 

agency employee from an independent contractor is whether the 

government has the power “to control the detailed physical 

performance of the contractor.” United States v. Orleans 425 

U.S. 807, 814 (1976) (citing Logue v. United States, 412 U.S. 

521, 528 (1973)). “[T]he question here is not whether the 
4

[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.” Id. at 815. The 

contractor here, Elwyn Industries, was given broad 

responsibilities for daily maintenance. The contract 

specifically requires Elwyn to maintain an on-site supervisor, 

and explicitly states that “Government direction or supervision 

of contractor's employees directly or indirectly, shall not be 

exercised.” App. for Appellant at 74a. 

 Alternatively, appellant argues that even if Elwyn 

Industries was negligent, the United States remains liable under 

Pennsylvania law as the owner and possessor of the building. 

There is a split in the circuits on this question. Compare

Dickerson, Inc. v. United States, 875 F.2d 1577 (11th Cir. 1989) 

(interpreting Florida law and holding the government liable), 

with Berkman v. United States, 957 F.2d 108 (4th Cir. 1992) 

(interpreting Virginia law and holding that independentcontractor exception precluded governmental liability even though 

similar property owners might be liable under state law for 

injuries resulting from unsafe conditions). We believe the 

Fourth Circuit offers the better reasoned analysis and we accept 

it as our own. The Berkman court stated:

Thus, while Berkman is correct in his assertion that, under 

Virginia law, the United States when acting as a 

landowner must maintain its property in a reasonably 

safe condition, Berkman must also show that federal law 

permits the application of this law to the United 

States. This he fails to do. The fundamental error in 
5

Berkman's reasoning flows from the fact that the 

government of the United States can act only through 

people. Furthermore, it is well understood that the 

government's activities are not performed exclusively 

by the government's employees and that independent 

contractors and subcontractors conduct a broad array of 

functions on the government's behalf. Thus, the FTCA 

divides the universe of persons through which the 

United States may act into two general classes, 

“employee[s] of the government” and “contractor[s].” 

See U.S.C. §§ 1346(b), 2671. 

 * * * 

 [W]e find nothing in the language of the act or in the 

legislative history of the FTCA to indicate that 

Congress considered the existence of a generalized 

liability, attributable to the United States based on 

any breach of a state defined duty. By expressly 

waiving immunity for the tortious conduct of its 

employees and only its employees, the FTCA requires a 

more focussed approach that requires the courts to 

determine the relationship to the United States of the 

actor whose negligence might be imputed to the 

government under state law. 

Berkman, 957 F.2d at 112-113. See Gibson v. United States, 567 

F.2d 1237 (3d Cir. 1977). 

 We have considered all arguments advanced by the 

parties and have concluded that no further discussion is 

necessary. 

 The judgment of the district court will be affirmed.