711 F.3d 654
6th Cir.2013Background
- Decedent Clarence Berrien died from a gutter falling at the Class VI liquor store on Selfridge Air National Guard Base, while employed by TECOM/All-Star under a base maintenance contract.
- The store was designed by Wilson/Jenkins and constructed 1992–1993 by the Bell Company; construction supervision was by independent contractor Marshall Waters Woody.
- TECOM held the base-wide maintenance contract (1998–2008) and was required to inspect gutters and post safety warnings; the United States undertook periodic spot reviews of TECOM’s work.
- Berrien’s death led to FTCA claims by his estate and his wife for wrongful death and loss of consortium, including a failure-to-warn theory against the United States.
- District court dismissed design/construction negligence as barred by the contractor exception but allowed the failure-to-warn claim to proceed, awarding $1,181,611 after a bench trial.
- The appellate court reverses, holding FTCA liability is foreclosed because the contractor exception applies and the United States did not have actual knowledge of the dangerous condition; Michigan nondelegable-duty concepts do not defeat the contractor exception.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| FTCA contractor exception bars the claim? | Berrien argues United States liability rests on its own negligence. | United States argues contractor negligence is barred by Logue-style exception. | Yes, contractor exception bars FTCA liability for conduct by TECOM/contractors. |
| Was failure to warn attributable to TECOM or the United States? | United States failed to warn invitees of a known hazard. | If TECOM was responsible, contractor exception bars; if United States liable, claim fails on merits. | Contractor exception bars TECOM-based failure to warn; United States-based failure to warn fails on merits. |
| Did discretionary function exception apply to decisions about safety inspections? | N/A | Decisions to hire a contractor and conduct spot checks are discretionary. | Discretionary function exception precludes FTCA liability. |
| Did the United States have actual knowledge of the dangerous condition? | Army had constructive knowledge via blueprints; should have known. | No actual knowledge; condition largely undiscoverable. | Clearly erroneous to find Army had actual knowledge; undiscoverable defects cannot impute knowledge. |
| Can Michigan nondelegable-duty doctrine override FTCA contractor exception? | Nondelegable duty to warn should bind United States. | Nondelegable duty cannot abrogate contractor exception under Logue. | No; state nondelegable-duty concept cannot defeat the FTCA contractor exception. |
Key Cases Cited
- Logue v. United States, 412 U.S. 521 (1973) (FTCA contractor exception; government liability for its own negligence preserved)
- United States v. Gaubert, 499 U.S. 315 (1991) (Two-pronged test for discretionary-function immunity)
- Totten v. United States, 806 F.2d 698 (6th Cir. 1986) (Delegation of safety responsibilities to contractor; discretionary function protection)
- Feyers v. United States, 749 F.2d 1222 (6th Cir. 1984) (Spot checks of safety programs; discretionary function protection)
- Tyson v. Department of Veterans Affairs, No. 06-14465, 2007 U.S. Dist. LEXIS 46099 (E.D. Mich. 2007) (Affirmed rejection of nondelegable-duty argument vitiating contractor exception)
- Angel v. United States, 775 F.2d 132 (6th Cir. 1985) (Government liable for its own negligence; independent contractor not insurer)