UNITED STATES COURT OF APPEALS For the Fifth Circuit
No. 95-50310 Summary Calendar
ARTURO GARDEA,
Plaintiff-Appellant,
VERSUS
UNITED STATES OF AMERICA,
Defendant-Appellee.
Appeal from the United States District Court For the Western District of Texas (EP-93-CV-320) November 6, 1995
Before DAVIS, BARKSDALE and DeMOSS, Circuit Judges.
PER CURIAM:*
BACKGROUND
Appellant Arturo Gardea, an employee of Rudy G. Construction
Company, was injured while working on a project at the federal
prison camp (FPC) in El Paso, Texas. As part of an extensive
remodeling plan, the FPC, through the Bureau of Prisons, hired Rudy
* Local Rule 47.5 provides: "The publication of opinions that have no precedential value and merely decide particular cases on the basis of well-settled principles of law imposes needless expense on the public and burdens on the legal profession." Pursuant to that Rule, the Court has determined that this opinion should not be published. G. Construction to install roofs on barracks that had been provided
to the camp by the United States Army. While in the course and
scope of his employment, Gardea slipped from the roof of a building
and fell two stories to the ground.
Gardea filed a claim with the Federal Bureau of Prisons for
damages arising out of his fall, and the Bureau denied the claim.
Gardea then filed suit against the United States pursuant to the
Federal Tort Claims Act (FTCA). He alleged that the FPC officials
failed to ensure that he had a safe work environment, that proper
safety equipment was available, and that his employer used proper
safety equipment.
The United States filed a motion to dismiss or, in the
alternative, for summary judgment. The Government argued that,
under the FTCA, it had no duty as the owner of the property under
either federal or Texas law to ensure Gardea's safety. The
Government argued that it could assume that Rudy G. Construction
would exercise reasonable prudence in the performance of its work.
The Government also argued that it did not exercise any direct or
indirect control over the tasks performed by Rudy G. Construction,
other than to ensure that the technical requirements of the
contract were being met.
In his opposition, Gardea argued that the FTCA's independent
contractor exception did not apply and that, under Texas law, the
Government owed him a duty to keep the construction site in a safe
condition. Gardea argued that the Government retained some control
over the construction project and, as a result, that it was liable
2 for Gardea's injuries. Alternatively, Gardea argued that there was
a genuine issue of material fact regarding the amount of control
exercised by the Government over Rudy G. Construction which would
give rise to the duty.
The Government submitted a letter brief in reply to emphasize
that, because of its lack of control over Rudy G. Construction, it
was not liable to Gardea under the FTCA and did not owe any duty to
Gardea under state law. Gardea responded to the Government's
letter brief, urging the court to deny the motion because there are
genuine issues of material fact as to the extent of control that
the Government exercised over the construction site and Rudy G.
Construction.
The district court granted summary judgment in favor of the
Government. The court determined that the Government did not
exercise a sufficient degree of control over Rudy G. Construction
to establish an agency relationship and therefore to impute
liability under either federal or state law.
Gardea timely appealed.
OPINION
This Court reviews a grant of summary judgment de novo.
Abbott v. Equity Group, 2 F.3d 613, 618 (5th Cir. 1993), cert.
denied, 114 S. Ct. 1219 (1994). A grant of summary judgment is
appropriate if there is "no genuine issue as to any material fact"
and "the moving party is entitled to judgment as a matter of law."
Fed. R. Civ. P. 56(c).
3 The United States as a sovereign is immune from suit except
as it has consented to suit. Williamson v. United States Dep't of
Agric., 815 F.2d 368, 373 (5th Cir. 1987). The Federal Tort Claims
Act (FTCA), 28 U.S.C. § 2671 et seq., is a limited waiver of
sovereign immunity making the United States Government liable to
the same extent as private parties for certain torts of federal
employees acting within the scope of their employment. United
States v. Orleans, 425 U.S. 807, 813 (1976); 28 U.S.C. § 1346(b).
The United States' statutory consent to suit does not extend to the
acts of independent contractors, but only to the acts or omissions
of federal employees. Orleans, 425 U.S. at 813-14; Logue v. United
States, 412 U.S. 521, 526 (1973); Broussard v. United States, 989
F.2d 171, 174 (5th Cir. 1993).
The Government may be liable, however, for the breach of a
duty owed to the employees of an independent contractor. Lathers
v. Penguin Indus., Inc., 687 F.2d 69, 72 (5th Cir. 1982). Although
state law governs this inquiry, the focus of the inquiry is the
same under either federal or Texas state law: the degree of
control exercised by the Government over the contractor. Id.; see
Broussard, 989 F.2d at 174; Redinger, 689 S.W.2d at 418.
Ordinarily, "an owner or occupier does not have a duty to see
that an independent contractor performs work in a safe manner."
Redinger, 689 S.W.2d at 418. However, when an owner or general
contractor "exercises some control over a subcontractor's work he
may be liable unless he exercises reasonable care in supervising
the subcontractor's activity." Id. The control must be more than
4 the general right to order the work to start or stop, to inspect
the progress of the work or receive reports, to make suggestions or
recommendations, or to prescribe alterations and deviations. Id.;
see also Davis v. R. Sanders & Assocs. Custom Builders Inc., 891
S.W.2d 779, 782 (Tex. Ct. App. 1995). "The general contractor must
retain enough right of supervision over the manner of the work that
the subcontractor is not entirely free to do the work in his own
way." Davis, 891 S.W.2d at 782.
There is no dispute that the Bureau of Prisons contracted with
Rudy G. Construction to install metal roofs on three barracks at
the FPC, that Gardea was an employee of Rudy G. Construction, and
that Gardea was acting within the course and scope of his
employment when he fell. Under the contract, Rudy G. Construction
provided the materials, supplies, labor, tools, and equipment. It
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UNITED STATES COURT OF APPEALS For the Fifth Circuit
No. 95-50310 Summary Calendar
ARTURO GARDEA,
Plaintiff-Appellant,
VERSUS
UNITED STATES OF AMERICA,
Defendant-Appellee.
Appeal from the United States District Court For the Western District of Texas (EP-93-CV-320) November 6, 1995
Before DAVIS, BARKSDALE and DeMOSS, Circuit Judges.
PER CURIAM:*
BACKGROUND
Appellant Arturo Gardea, an employee of Rudy G. Construction
Company, was injured while working on a project at the federal
prison camp (FPC) in El Paso, Texas. As part of an extensive
remodeling plan, the FPC, through the Bureau of Prisons, hired Rudy
* Local Rule 47.5 provides: "The publication of opinions that have no precedential value and merely decide particular cases on the basis of well-settled principles of law imposes needless expense on the public and burdens on the legal profession." Pursuant to that Rule, the Court has determined that this opinion should not be published. G. Construction to install roofs on barracks that had been provided
to the camp by the United States Army. While in the course and
scope of his employment, Gardea slipped from the roof of a building
and fell two stories to the ground.
Gardea filed a claim with the Federal Bureau of Prisons for
damages arising out of his fall, and the Bureau denied the claim.
Gardea then filed suit against the United States pursuant to the
Federal Tort Claims Act (FTCA). He alleged that the FPC officials
failed to ensure that he had a safe work environment, that proper
safety equipment was available, and that his employer used proper
safety equipment.
The United States filed a motion to dismiss or, in the
alternative, for summary judgment. The Government argued that,
under the FTCA, it had no duty as the owner of the property under
either federal or Texas law to ensure Gardea's safety. The
Government argued that it could assume that Rudy G. Construction
would exercise reasonable prudence in the performance of its work.
The Government also argued that it did not exercise any direct or
indirect control over the tasks performed by Rudy G. Construction,
other than to ensure that the technical requirements of the
contract were being met.
In his opposition, Gardea argued that the FTCA's independent
contractor exception did not apply and that, under Texas law, the
Government owed him a duty to keep the construction site in a safe
condition. Gardea argued that the Government retained some control
over the construction project and, as a result, that it was liable
2 for Gardea's injuries. Alternatively, Gardea argued that there was
a genuine issue of material fact regarding the amount of control
exercised by the Government over Rudy G. Construction which would
give rise to the duty.
The Government submitted a letter brief in reply to emphasize
that, because of its lack of control over Rudy G. Construction, it
was not liable to Gardea under the FTCA and did not owe any duty to
Gardea under state law. Gardea responded to the Government's
letter brief, urging the court to deny the motion because there are
genuine issues of material fact as to the extent of control that
the Government exercised over the construction site and Rudy G.
Construction.
The district court granted summary judgment in favor of the
Government. The court determined that the Government did not
exercise a sufficient degree of control over Rudy G. Construction
to establish an agency relationship and therefore to impute
liability under either federal or state law.
Gardea timely appealed.
OPINION
This Court reviews a grant of summary judgment de novo.
Abbott v. Equity Group, 2 F.3d 613, 618 (5th Cir. 1993), cert.
denied, 114 S. Ct. 1219 (1994). A grant of summary judgment is
appropriate if there is "no genuine issue as to any material fact"
and "the moving party is entitled to judgment as a matter of law."
Fed. R. Civ. P. 56(c).
3 The United States as a sovereign is immune from suit except
as it has consented to suit. Williamson v. United States Dep't of
Agric., 815 F.2d 368, 373 (5th Cir. 1987). The Federal Tort Claims
Act (FTCA), 28 U.S.C. § 2671 et seq., is a limited waiver of
sovereign immunity making the United States Government liable to
the same extent as private parties for certain torts of federal
employees acting within the scope of their employment. United
States v. Orleans, 425 U.S. 807, 813 (1976); 28 U.S.C. § 1346(b).
The United States' statutory consent to suit does not extend to the
acts of independent contractors, but only to the acts or omissions
of federal employees. Orleans, 425 U.S. at 813-14; Logue v. United
States, 412 U.S. 521, 526 (1973); Broussard v. United States, 989
F.2d 171, 174 (5th Cir. 1993).
The Government may be liable, however, for the breach of a
duty owed to the employees of an independent contractor. Lathers
v. Penguin Indus., Inc., 687 F.2d 69, 72 (5th Cir. 1982). Although
state law governs this inquiry, the focus of the inquiry is the
same under either federal or Texas state law: the degree of
control exercised by the Government over the contractor. Id.; see
Broussard, 989 F.2d at 174; Redinger, 689 S.W.2d at 418.
Ordinarily, "an owner or occupier does not have a duty to see
that an independent contractor performs work in a safe manner."
Redinger, 689 S.W.2d at 418. However, when an owner or general
contractor "exercises some control over a subcontractor's work he
may be liable unless he exercises reasonable care in supervising
the subcontractor's activity." Id. The control must be more than
4 the general right to order the work to start or stop, to inspect
the progress of the work or receive reports, to make suggestions or
recommendations, or to prescribe alterations and deviations. Id.;
see also Davis v. R. Sanders & Assocs. Custom Builders Inc., 891
S.W.2d 779, 782 (Tex. Ct. App. 1995). "The general contractor must
retain enough right of supervision over the manner of the work that
the subcontractor is not entirely free to do the work in his own
way." Davis, 891 S.W.2d at 782.
There is no dispute that the Bureau of Prisons contracted with
Rudy G. Construction to install metal roofs on three barracks at
the FPC, that Gardea was an employee of Rudy G. Construction, and
that Gardea was acting within the course and scope of his
employment when he fell. Under the contract, Rudy G. Construction
provided the materials, supplies, labor, tools, and equipment. It
also provided safety equipment such as safety belts; its employees
were responsible for their own hard hats and safety goggles. Rudy
G. Construction, not the Government, hired, supervised, and paid
Gardea. The Government did not train Gardea. Rudy Gonzalez, owner
of Rudy G. Construction, testified that he considered it his
responsibility to provide the safety equipment to Gardea and to
ensure that he used it. Accordingly, the Government has satisfied
its initial burden of informing the court of the basis for its
motion and identifying those portions of the record which it
believes demonstrate the absence of a genuine issue of material
fact and that it is entitled to judgment as a matter of law.
Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).
5 The burden now shifts to Gardea who must identify specific
evidence in the record demonstrating that there is a material fact
issue for trial. Anderson v. Liberty Lobby, 477 U.S. 242, 250
(1986). He may not rest upon mere allegations or denials in the
pleadings, but must designate specific facts showing the existence
of a genuine issue for trial. Id. at 256-57. The mere allegation
of a factual dispute between the parties will not defeat an
otherwise properly supported motion for summary judgment. Id. at
248-50, 256-57.
Gardea relies upon Redinger and Pollard v. Missouri Pac. R.R.
Co., 759 S.W.2d 670 (Tex. 1988), to argue that the Government
exercised such control over the work site so as to owe a duty of
care to Gardea. Gardea cites the Government's control over the
access to the construction site, its right of inspection at the
completion of the contract, and the "daily vigil" of the project by
the project manager, James Spindler.
Neither Redinger nor Pollard are applicable. In Redinger, the
general contractor ordered the dirt-hauling subcontractor to move
the dirt so that the concrete trucks could enter the work site.
Redinger, 689 S.W.2d at 417. Redinger, an employee of the plumbing
subcontractor, was working within a few feet of the backhoe charged
with moving the dirt. Redinger was injured when the blade of the
backhoe crushed his finger. The court concluded that there was
sufficient evidence to find that the general contractor was
negligent in allowing the backhoe to operate while Redinger was
working in the area and in failing to warn Redinger. In Pollard,
6 the Texas Supreme Court held that the contractual right of control
gives rise to the duty expressed in Redinger. Pollard, 759 S.W.2d
at 671. Missouri Pacific retained (1) control over the completion
time of the project, (2) authority to specify which poles were to
be removed, (3) authority to specify insurance coverage, and (4)
control over access and storage of materials involving its right-
of-way.
Gardea offers no evidence that the Government contractually
retained the right of control as to, or otherwise directed, the
manner in which Rudy G. Construction or Gardea renovated the roof.
Rudy G. Construction and its employees were free to devise their
own plan, according to their own equipment. Gardea's injury arose
out of the nature of the work rather than as a result of some
danger present on the premises. See Staublein v. Dow Chemical Co.,
885 S.W.2d 502, 505 (Tex. Ct. App. 1994). In Staublein, ARA
Services, Inc. contracted with Dow Chemical to provide cafeteria
service to Dow's employees. Id. at 503. Staublein, an employee of
ARA, was injured when a milk crate he was standing on in the
freezer slipped out from under him. Id. Finding that Dow owed no
duty to Staublein, the court explained that his
injury arose out of an activity conducted in the course and scope of his employment with ARA Services, not from a hidden danger existing on the premises. The activity that allegedly caused [him] harm was the very sort of activity a food service provider would be expected to perform, i.e., working with food in the freezer. The method that [Staublein] chose to reach the higher shelves in the freezer was not under the direct or indirect control of [Dow Chemical]; and arose out of the work activity of [Staublein] or his employer.
7 Id. at 505; see also Shell Chem. Co. v. Lamb, 493 S.W.2d 742, 747
(Tex. 1973). Much like Staublein, Gardea's injury arose out of his
work as a roofer. The Government did not control the day-to-day
work on the roof or instruct Gardea about his job.
Gardea notes that the contracting officer testified that both
she and Spindler had the right to stop subcontractors who were in
violation of federal safety laws. Such authority does not suggest
control over the details of the work: "a requirement that work be
performed in accordance with all applicable laws and safety
regulations is, like a requirement that work be performed in a good
and workmanlike manner, a requirement pertaining to the results of
the work, not the details of performance." Davis, 891 S.W.2d at
782.
Gardea has not identified specific evidence in the record
demonstrating that there is a material fact issue for trial as to
the extent of the Government's control over Rudy G. Construction.
Because the Government did not exercise control over the operative
details of the construction project, there was no duty under Texas
law to maintain a safe work environment for Gardea. Accordingly,
the judgment of the district court is
AFFIRMED.