Linn v. United States , 281 F. App'x 339 ( 2008 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
June 10, 2008
No. 07-60499 Charles R. Fulbruge III
Clerk
DIANE LINN, Individually and as Wrongful Death Beneficiary & Executrix
of the Estate of Decedent John David Linn; AMY LINN, Individually
Plaintiffs - Appellants
v.
UNITED STATES OF AMERICA
Defendant - Appellee
Appeal from the United States District Court
for the Northern District of Mississippi, Aberdeen
No. 1:04-CV-181
Before KING, WIENER, and ELROD, Circuit Judges.
PER CURIAM:*
Plaintiffs Diane Linn, on her own behalf and on behalf of the estate of
decedent John David Linn, and Amy Linn, appeal the district court’s summary
judgment dismissal of their action against the United States of America. The
district court held that the plaintiffs’ case was barred by the independent-
contractor exception of the Federal Tort Claims Act. We affirm its judgment on
alternative grounds.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
No. 07-60499
I. BACKGROUND
John David Linn (“Linn”) died in an accident while helping to repair and
upgrade systems at Columbus Air Force Base (“CAFB”). Linn was working for
a subcontractor, Kenny Betts Field Service (“Kenny Betts”), at the time. CAFB
is an United States Air Force flight training center located in Columbus,
Mississippi. CAFB utilizes a Centralized Aircraft Support System (the “CASS”).
The CASS provides high-pressure air and electrical power to T-38 jet aircraft,
which assists in the ignition of the jets’ engines. The high-pressure air in the
CASS is pumped from compressors to pneumatic service lines through manholes
that extend approximately twenty feet underground. The compressed air is then
piped from the service lines to the T-38 jets. The compressed air ultimately
spins the T-38 jets’ turbine engines and, thereby, permits the jets’ engines to
start.
The CASS became operational in 1985, and was operated and maintained
by DynCorp International (“DynCorp”) pursuant to an aircraft maintenance
contract. After nearly fifteen years of use, the CASS was in need of overall
repair and renovation. On July 25, 2000, therefore, CAFB sought to contract the
work out through a competitive bidding process by posting a Pre-Solicitation
Notice on the government’s Electronic Posting System. CAFB received bids from
five construction firms, including SunBelt Builders, Inc. (“SunBelt”).
Neil Cole, CAFB’s director of business operations, concluded in a letter
dated September 19, 2000, that SunBelt had sufficient capabilities and expertise
to complete the construction repairs and upgrades on the CASS. SunBelt had
experience with large construction contracts, including natural gas line piping,
and had previously performed construction work at CAFB. Accordingly, on
September 28, 2000, SunBelt was awarded a firm, fixed-price contract to repair
and upgrade the CASS in the amount of $1,190,000. CAFB did not contract with
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any other firm, although SunBelt subcontracted some of the work. Kenny Betts
was one such subcontractor.
On December 22, 2000, SunBelt made an initial inspection of the CASS
manholes in preparation for the construction project. It then commenced
construction in January, 2001. Due to flight training requirements, SunBelt
only took control of the CASS from DynCorp during non-flying hours, meaning
sometime after 4:00 or 4:30 p.m. on weekdays and at all times on weekend days.
Neither CAFB nor DynCorp personnel supervised SunBelt during these times.
By August 1, 2001, all of the necessary repairs to eight of nine CASS manholes
had been completed, inspected and accepted by CAFB. The last manhole,
manhole number six, was scheduled to be completed and inspected by CAFB’s
engineering technician, Gurley Sudduth, on Saturday, August 4, 2001.
On the morning of August 4, 2001, when Sudduth arrived to inspect
manhole number six, Kenny Betts’ workers, including Linn, were still installing
pipe couplings to the pressure piping in the manhole. Sudduth therefore left the
site and promised to return later in the day. Shortly after lunch, with the work
mostly completed, Kenny Betts increased the air pressure in the CASS to its
maximum operational pressure in order to test the manhole for potential air
leaks. Linn was in the manhole at that time. As he began climbing out of the
manhole, an explosion of highly pressurized air occurred, ejecting him upward
through the manhole and onto a runway’s surface. As a result, Linn sustained
fatal head injuries.
At the time of Linn’s death, no personnel from CAFB were present nor did
CAFB personnel pressurize the CASS. A subsequent investigation concluded
that the explosion occurred because a pipe coupling on an air line was not
installed according to the manufacturer’s specifications.
On June 1, 2004, the plaintiffs filed the instant suit against the United
States pursuant to the Federal Torts Claims Act (the “FTCA”), 28 U.S.C.
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§ 1346(b)(1).1 In their January 12, 2005, amended complaint, the plaintiffs
averred that CAFB employees never warned Linn that it was unsafe to enter the
CASS manhole while the system was pressurized nor otherwise trained him to
safely work on the CASS. Yet according to the amended complaint, the United
States had an affirmative duty to warn Linn and others of dangerous conditions
at CAFB, to adequately supervise its premises to avoid or eliminate dangerous
conditions, and to adequately train and supervise individuals working at CAFB,
including employees of independent contractors, such as Linn. Therefore, the
plaintiffs alleged four counts of negligence against the United States that
proximately caused Linn’s death: (1) failure to train individuals with regard to
working in hazardous spaces; (2) failure to train and warn with regard to
working in hazardous spaces; (3) failure to warn about and abate dangerous
conditions on its premises; and (4) failure to supervise employees and contractors
to ensure that activities at CAFB were conducted in a safe manner.
On January 26, 2005, the United States moved to dismiss the case for lack
of subject matter jurisdiction or, in the alternative, for summary judgment. The
United States argued that: (1) the district court lacked subject matter
jurisdiction because the negligent acts that caused Linn’s death were made by
SunBelt and Kenny Betts, and the independent-contractor exception to the
FTCA bars actions based on the conduct of the government’s independent
contractors; and, (2) even if the district court had jurisdiction, the United States
did not owe a duty of care to Linn under Mississippi law because Linn was under
1
The plaintiffs also brought suit against SunBelt, Cross Electrical Service, LLC
(“Cross”), an electrical subcontractor, and Victaulic Company of America (“Victaulic”), the
manufacturer of the pipe coupling that caused the explosion when it burst off the air line.
Cross was never served with a complaint, however, and was dismissed on September 19, 2005.
SunBelt and Victaulic, meanwhile, were dismissed by agreement on October 20, 2005, and
May 21, 2007, respectively. The claims against these defendants are relevant to this appeal
only inasmuch as they explain the delay between the district court’s summary judgment order
and the district court’s final judgment.
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No. 07-60499
the direct control and supervision of SunBelt and Kenny Betts at the time of his
death. In support of its motion, the United States submitted its contract with
SunBelt, and argued that it was clear from the contract that SunBelt assumed
control for the implementation of the CASS project and responsibility for the
safety of its employees and its subcontractors’ employees.
The United States also submitted affidavit testimony from individuals
involved in the CASS project that generally touched upon either: (1) CAFB’s
purported lack of control over the CASS project; or (2) the United States’ claim
that it warned SunBelt and Kenny Butts concerning the hazards associated with
working on the CASS. With regard to the government’s purported lack of control
over the CASS project, Cole, CAFB’s director of business operations, stated in his
affidavit that SunBelt “was responsible for the hiring, supervision, payment and
safety of all on-site personnel, including subcontractors and their employees.”
While he attended weekly meetings to assess the “project’s progress . . . and to
discuss the contracted repair work scheduling[,]” Cole also claimed that SunBelt
always controlled the nature, performance and method of the contracted work.
Gerald Givens, the construction manager for the civil engineers at CAFB,
concurred. He stated that during non-flight hours, when the CASS was being
repaired, both the CASS and the work site were controlled by SunBelt, CAFB
employees did not supervise or direct SunBelt’s work, and CAFB’s only role in
the actual construction was to approve a project after it was completed.
Moreover, according to Sudduth, the CAFB inspector, he would only inspect the
completed projects for flaws in the work. Yet if there were any flaws, he would
merely bring them to the attention of SunBelt, rather than providing any advice
or supervision as to how to fix the defects.
With regard to the United States’ alleged failure to warn Linn, both
Givens and Morgan Murphy, the resident engineer for the United States Army
Corps of Engineers at CAFB, testified that they warned Randy McGee, SunBelt’s
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No. 07-60499
project manager, of the hazards associated with working on the CASS.
Furthermore, James Mooney, a DynCorp supervisor stationed at CAFB, testified
in his affidavit that he “discuss[ed] the dangers and hazards of the [CASS]
manholes with the subcontractor (Kenny Betts) before the accident on August
4, 2001, which included the warning that no one should be in the manholes while
they were under high pressure.”
In response, the plaintiffs argued that the district court had jurisdiction
under the FTCA and that genuine issues of material fact precluded the entry of
summary judgment. First, the plaintiffs argued that the independent-contractor
exception of the FTCA did not bar their suit because they merely sought to hold
the United States responsible for the negligent actions of its employees, not for
the corresponding negligence of Kenny Betts or the other defendants. Second,
the plaintiffs argued that summary judgment was improper because: (1) under
Mississippi law the United States owed a duty of care, as a premises owner with
control over a construction project located on its premises; and (2) the United
States failed to warn or train workers how to safely work on the CASS. In
support of the latter claim, the plaintiffs submitted a citation issued by the
United States Department of Labor to CAFB finding that CAFB violated
regulations promulgated under the Occupational Safety and Health Act
(“OSHA”) by failing to provide training or warnings concerning the hazards
associated with entering confined spaces of the CASS. In addition, the plaintiffs
claimed that the government’s contract with SunBelt gave the United States
control over the construction project and vested it with responsibility for the
safety of any and all workers.
On August 8, 2005, the district court granted the United States summary
judgment. The district court determined that the independent-contractor
exception to the FTCA barred the plaintiffs’ suit because Linn was the employee
of an independent contractor, and the United States did not have sufficient
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control over either the CASS project or Kenny Betts such as to convert Linn’s
status into that of a de facto employee of the government. Because the district
court held that the plaintiffs’ claim was not cognizable under the FTCA, it never
reached the question whether the record established a genuine issue of fact
concerning the United States’ liability under Mississippi law.
On June 19, 2007, the plaintiffs filed a timely appeal. Both parties have
briefed the issues of subject matter jurisdiction and whether the United States
owed a duty of care to Linn under Mississippi law.
II. DISCUSSION
A. Standard of Review
We review a grant of summary judgment de novo, viewing all the evidence
in the light most favorable to the nonmoving party and drawing all reasonable
inferences in that party’s favor. See Crawford v. Formosa Plastics Corp., 234
F.3d 899, 902 (5th Cir. 2000) (citations omitted). “Summary judgment is proper
when the evidence reflects no genuine issues of material fact and the non-
movant is entitled to judgment as a matter of law.” Id. (citing Fed. R. Civ. P.
56(c)). “A genuine issue of material fact exists ‘if the evidence is such that a
reasonable jury could return a verdict for the non-moving party.’” Id. (quoting
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). “Even if we do not
agree with the reasons given by the district court to support summary judgment,
we may affirm the district court’s ruling on any grounds supported by the
record.” Berquist v. Wash. Mut. Bank, 500 F.3d 344, 349 (5th Cir. 2007) (citation
and quotation omitted).
B. Independent-contractor exception
“It is elementary that ‘[t]he United States, as sovereign, is immune from
suit save as it consents to be sued . . . , and the terms of its consent to be sued in
any court define that court’s jurisdiction to entertain the suit.’” United States
v. Mitchell, 445 U.S. 535, 538 (1980) (quoting United States v. Sherwood, 312
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U.S. 584, 586 (1941)). “Courts must strictly construe all waivers of the federal
government’s sovereign immunity, and must resolve all ambiguities in favor of
the sovereign.” Linkous v. United States, 142 F.3d 271, 275 (5th Cir. 1998)
(citing United States v. Nordic Vill., Inc. 503 U.S. 30, 34 (1992)). The FTCA
constitutes a “limited waiver of sovereign immunity, making the Federal
Government liable to the same extent as a private party for certain torts of
federal employees acting within the scope of their employment.” United States
v. Orleans, 425 U.S. 807, 813 (1976).
The relevant provision of the FTCA provides that:
the district courts . . . shall have exclusive jurisdiction
of civil actions on claims against the United States, for
money damages . . . for injury or loss of property, or
personal injury or death 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 or omission occurred.
28 U.S.C. § 1346(b)(1). By its own terms, the FTCA only waives sovereign
immunity for injuries caused by an “employee of the Government,” § 1346(b)(1),
but excludes from that waiver injuries caused by “‘any contractor with the
United States,’” Orleans, 425 U.S. at 813-14 (quoting 28 U.S.C. § 2671); Means
v. United States, 176 F.3d 1376, 1379 (11th Cir. 1999) (citation omitted) (“The
alleged tortfeasor’s status as an ‘employee of the government’ is the sine qua non
of liability under the FTCA.”). This is known as the independent-contractor
exception to the FTCA, and it must be given due regard when a court considers
whether jurisdiction exists. Orleans, 425 U.S. at 814; see also Linkous, 142 F.3d
at 275; Broussard v. United States, 989 F.2d 171, 174 (5th Cir. 1993) (citation
omitted).
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When there is a dispute whether the independent-contractor exception
bars a lawsuit, it is most often the case that the dispositive question is whether
or not the individual that caused the plaintiff’s injuries is an employee of the
federal government or of an independent contractor. See, e.g., Rodriguez v.
Sarabyn, 129 F.3d 760, 765 (5th Cir. 1997); Linkous, 142 F.3d at 276-77;
Broussard, 989 F.2d at 177-76. This is a question of federal law, and we have
stated that the “critical factor in determining whether an individual is an
employee of the government or an independent contractor is the power of the
federal government to control the detailed physical performance of the
individual.” Linkous, 142 F.3d at 275 (citing Orleans, 425 U.S. at 814;
Broussard, 989 F.2d at 174).
This is exactly the type of analysis the district court undertook to resolve
this case. However, the district court focused its attention on whether Linn was
an independent contractor or an employee of the United States. The district
court summarized its understanding of the plaintiffs’ argument by stating that:
“[i]n essence, it is the plaintiffs’ position that the independent-contractor
exception to the FTCA does not bar the instant case . . . because the United
States, through the Department of the Air Force, exercised effective control over
the CASS project[,] thereby converting Linn into an employee of the United
States.” After reviewing the evidence concerning the government’s alleged
control of the CASS project, the district court determined that the facts
“weigh[ed] heavily in favor of Linn being an independent contractor in relation
to the United States as opposed to an employee.” As a result, “pursuant to the
independent-contractor exception to liability under the FTCA, the court
conclude[d] that the United States [was] immune from liability for Linn’s
terrible and tragic death.”
The government continues on appeal to argue that the independent-
contractor exception bars the plaintiffs’ claims because Linn was an employee
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of an independent contractor, not an employee of the United States. We
disagree. First, it is simply irrelevant to the plaintiffs’ claims whether Linn
worked for an independent contractor. See, e.g., Gotha v. United States, 115 F.3d
176, 179-82 (3d Cir. 1997) (holding that an employee of an independent
contractor could bring a suit under the FTCA based on the government’s
allegedly negligent failure to provide safe access to an office trailer on a naval
base); Will v. United States, 60 F.3d 656, 660 (9th Cir. 1995) (holding that a
district court erred in dismissing an independent contractor’s suit under the
FTCA). The independent-contractor exception is concerned with whether the
tortfeasor was an employee of the United States or an independent contractor,
not with the status of the plaintiffs’ decedent. See Rodriguez, 129 F.3d at 765;
Linkous, 142 F.3d at 276-77; Broussard, 989 F.2d at 177-76.
Second, the plaintiffs in this case are not seeking to hold the United States
vicariously liable for the acts of SunBelt, Kenny Betts or any other independent
contractor. Rather, they are seeking to hold the United States directly liable for
Linn’s death because federal employees (CAFB personnel) failed to adequately
warn, train and supervise him, and failed to adequately abate dangerous
conditions on federal property. The mere fact that independent contractors
might also have caused Linn to be injured does not implicate the independent-
contractor exception. See Phillips v. United States, 956 F.2d 1071, 1077-78 (11th
Cir. 1992) (holding that the independent-contractor exception did not bar the
suit of an independent contractor’s employee because the employee sought to
hold the Army Corps of Engineers responsible for its own negligent failure to
carry out its safety responsibilities).
In Sandoval v. United States, 980 F.2d 1057, 1058 (5th Cir. 1993), a
federal prisoner brought suit against the United States under the FTCA because
a United States marshal negligently placed him in a prison facility run by a
private corporation where he was injured as a result of the corporation’s tortious
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conduct. The district court dismissed the case, determining that the action could
not be maintained under the FTCA because the government could not be held
responsible for the acts of an independent contractor. Id. We reversed, however,
since the prisoner was merely attempting to seek to hold the government
responsible for the government’s own conduct, namely, negligently placing hm
under the care of the corporation’s employees. Id. at 1059. Similarly, here, the
plaintiffs are seeking to hold the United States liable for the conduct of its
employees, not the acts of independent contractors.
C. The plaintiffs’ substantive claims
Unlike our review of the independent-contractor exception above, which
was based on federal law, whether the United States is liable for a “negligent or
wrongful act or omission of any employee of the Government” under the FTCA
is generally determined “in accordance with the law of the place where the act
or omission occurred.” § 1346(b)(1); but see Laird v. Nelms, 406 U.S. 797, 799
(1972) (“Regardless of state law characterization, the [FTCA] itself precludes the
imposition of liability if there has been no negligence or other form of
‘misfeasance or nonfeasance,’ . . . on the part of the Government.”). The
Supreme Court has “consistently held that § 1346(b)’s reference to the ‘law of the
place’ means law of the State—the source of substantive liability under the
FTCA.” FDIC v. Meyer, 510 U.S. 471, 478 (1994) (citations omitted); see also
Bodin v. Vagshenian, 462 F.3d 481, 489 (5th Cir. 2006) (citation omitted)
(“Whether the United States owed an independent duty to the plaintiffs is a
question of . . . state law.”). Here, both parties agree that Mississippi law
governs the plaintiffs’ substantive claims.
“The elements of a negligence action are well-settled in Mississippi.”
Gulledge v. Shaw, 880 So. 2d 288, 292 (Miss. 2004). A plaintiff must prove “(1)
duty, (2) breach, (3) causation, and (4) injury.” Id. at 292-93 (citing Miss. Dep’t
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of Transp. v. Cargile, 847 So. 2d 258, 262 (Miss. 2003). The only element we
need discuss in this appeal is duty.2
Generally, under Mississippi law, the owner of a premises “has a duty to
use reasonable care to keep its premises in a reasonably safe condition for
business invitees.” Coho Res., 829 So. 2d at 10 (quoting Jones, 701 So. 2d at
782). But this duty does not automatically extend to the employees of
independent contractors. See id. at 10-11 (citation omitted). The Mississippi
Supreme Court has held that:
Where a party . . . contracts with another . . . to
perform original construction or repair work . . . and
devolves upon the contractor the right and fact of
control of the premises and the nature and details of
the work, the owner has no liability for injuries
experienced by the contractor’s workers where those
injuries arose out of or were intimately connected with
the work.
Magee v. Transcon. Gas Pipe Line Corp., 551 So. 2d 182, 185 (Miss. 1989); see
also Jackson Ready-Mix Concrete v. Sexton, 235 So. 2d 267, 271 (Miss. 1970)
(“[T]he owner or occupier is under no duty to protect [a contractor’s employees]
against risks arising from or intimately connected with defects of the premises,
2
The United States also argues that even if it had a duty to the plaintiffs it did not
breach that duty because it is undisputed that SunBelt and Kenny Betts were warned by
CAFB employees of the hazards associated with working on the CASS. The United States
relies on Jones v. James Reeves Contractors, Inc., 701 So. 2d 774, 783 (Miss. 1997) (citations
omitted), where the Mississippi Supreme Court held that even if a premises owner owes a duty
of care to an independent contractor’s employee, that duty is satisfied if the owner warns the
independent contractor of a hazard, regardless of whether the warning is given directly to the
contractor’s employees. However, we do not rely on this basis for two reasons. First, assuming
arguendo that the OSHA citation issued to CAFB is admissible, there is a genuine dispute
concerning whether CAFB employees issued any warning to SunBelt and Kenny Betts.
Second, in a recent case, the Mississippi Supreme Court indicated that in some circumstances
when a duty exists, warning a contractor of hazardous conditions is not sufficient to satisfy an
owner’s duty of care. Coho Res., Inc. v. McCarthy, 829 So. 2d 1, 14 (Miss. 2002) (holding that
an owner had a duty not only to warn of dangerous conditions, but also to supervise workers
in a safe manner).
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or of machinery or appliances located thereon, which the contractor has
undertaken to repair.”). What is critical to determining whether the premises
owner has a duty to the employees of an independent contractor is whether the
owner maintains de jure control (under the contract) or de facto control (the
contract notwithstanding) over the performance of that aspect of the work that
has given rise to the injury. Magee, 551 So. 2d at 186 (citations omitted); Coho
Res., 829 So. 2d at 13.
In Magee, the Mississippi Supreme Court held that the owner did not
retain sufficient de jure control over a project because: (1) a provision of the
contract required the contractor to assume full responsibility for conditions
pertaining to the work, the site and all conditions therewith; and (2) another
provision of the contract required the contractor to assume responsibility for the
care and maintenance of the work under construction until the work was
accepted as completed by the owner. 551 So. 2d at 186. Nor did the plaintiff
offer evidence disputing the owner’s claim that it did not retain de facto control
of the work. Id. Thus, notwithstanding the fact that the owner had an employee
on site who would periodically inspect the work of the contractor, the owner did
not owe the contractor’s employee a duty of care. Id. at 185-86.
By contrast, in the most recent Mississippi Supreme Court case to address
this issue, Coho Resources, the court held that there was sufficient evidence to
create a jury question as to whether a premises owner retained substantial
control over a work site. 829 So. 2d at 13. That case involved a wrongful death
verdict based on the death of an independent contractor’s employee working to
restore production on an old oil well. Id. at 6. The court noted that while the
independent contractor assumed full and complete responsibility for the
conditions pertaining to the work, the contract at issue also vested the owner
with the right to dismiss the independent contractor’s personnel and to
terminate the contract if a complete safety program was not followed. Id. at 11.
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In addition, the contract was a “day rate” or “hourly rate” contract, which stood
in contrast to a “turnkey” contract under which a well-service company is paid
a set price and is solely responsible for the work. Id. at 12.
Moreover, testimony indicated that the owner retained de facto control of
the project because: (1) a “company man” of the owner was on site 75%-85% of
the time; (2) the owner provided the independent contractor with a step-by-step
procedure that the contractor was required to follow; and (3) the contractor’s
crew was required to follow the owner’s procedure under the supervision of the
owner’s company man, including the operation that resulted in the accident. Id.
at 12-13. Indeed, a so-called company man admitted at trial that he had
ultimate control over the work, that he was the “boss” of the work site (“no ifs,
ands, or buts about it”), and that the independent contractor’s employees were
required to stop and start working when he told them. Id. Based on all the
evidence of control, the court concluded that whether the exception to the
general rule that an owner does not have a duty to protect an independent
contractor applied in that case was a jury question that could not be overturned.
Id. at 13.
In the instant case, the plaintiffs claim that under Coho Resources a
genuine issue of fact exists concerning the amount of control the government
retained over the repair and upgrade of the CASS. The plaintiffs list a number
of contract terms that they claim vested the government with control, including
provisions wherein SunBelt agreed to: (1) limit its use of the work site so as to
allow government occupancy; (2) coordinate progress meetings with a CAFB
contracting officer; (3) notify a CAFB officer four days before a pre-installation
meeting; (4) submit a written request before cutting or altering elements of the
CASS that affected the efficiency, maintenance or safety of the elements; (5)
identify hazardous substances or conditions exposed during the work to a CAFB
contracting officer for decision or remedy; (6) review network drawings with a
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CAFB contracting officer; (7) submit shipping drawings and samples to a CAFB
contracting officer to check for conformance with the contract; (8) receive
approval before storing hazardous substances on CAFB premises; (9) stop
working on the project if the CAFB contracting officer became aware of a serious
or imminent safety risk and SunBelt failed to take corrective action; (10)
maintain a superintending officer satisfactory to CAFB; (11) obtain approval
from a CAFB contracting officer for the machinery and other mechanical
equipment to be incorporated into the work; and (12) terminate from the project
any employee that CAFB deemed incompetent, careless or otherwise
objectionable.
While lengthy, we do not agree that these contract provisions are sufficient
to establish that the government retained substantial control over performance
of the CASS project. First, some of the provisions simply do not show de jure
control at all, rather, they merely indicate that CAFB retained the right to
monitor the progress of the service for which it paid, and to ensure the quality
of the work. See Magee, 551 So. 2d at 185-86 (citation omitted) (“The fact that
[the owner] had employees that conducted periodic inspections on the work could
change nothing.”); Int’l Paper Co. v. Townsend, 961 So. 2d 741, 750 (Miss. Ct.
App. 2007) (stating that the ability to check for quality did not constitute
supervision). Second, none of the provisions is specific to the aspect of the
project that gave rise to Linn’s death, namely, the testing of the manhole for air
leaks. See Jones, 701 So. 2d at 783 (“Therefore, since [the contractor] had
unfettered control over that portion of the work which gave rise to the injury, .
. . [the owner] is absolved of responsibility . . . .”); Magee, 551 So. 2d at 186
(citations omitted) (“What is critical is whether the project owner maintains any
right of control over the performance of that aspect of the work that has given
rise to the injury.”); Int’l Paper Co., 961 So. 2d at 749 (holding that owner of
premises did not owe a duty of care to an independent contractor because it
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exercised no control over the aspect of work which gave rise to the injury even
though it could control other aspects of the work).
Third, while the contract set forth an array of contract specifications, the
means and methods of implementing those specifications were generally left to
the discretion of SunBelt. Unlike in Coho Resources, the specifications the
plaintiffs highlight are not step-by-step procedures for the completion of the
entire project. Fourth, SunBelt agreed to assume the responsibility to provide
a safe work environment and procedures. Fifth, unlike in Coho Resources, the
contract at issue in this case was a firm, fixed-price contract, akin to the turnkey
contract that the Coho Resources court indicated was less indicative of de jure
control because the contractor is paid a set price based on completion of the
contract.
Lastly, while we recognize that the court in Coho Resources relied in part
on the fact that the contract there, as here, gave the owner a right to dismiss the
independent contractor’s personnel and a limited right to stop work based on
serious safety concerns, we do not believe that this fact alone is dispositive. To
the contrary, we believe that the most important facts to the Coho Resources
court are missing here, namely, evidence tending to indicate that CAFB had de
facto control over the aspect of the project giving rise to Linn’s death. The only
evidence concerning the issue of de facto control (or lack thereof) was offered by
the government. According to the affidavit testimony of CAFB personnel, CAFB
personnel never supervised the performance of SunBelt or Kenny Betts’
personnel in the performance of the contract, including the testing of manholes
for air leaks. Indeed, there was no CAFB supervisor monitoring the testing of
manhole six on the day of the accident nor were the means or methods for
testing the manhole otherwise prescribed by a CAFB employee. In short, unlike
in Coho Resources, CAFB had no “company man” on site during the CASS project
who was in fact, if not technically, the ultimate supervisor of the project.
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No. 07-60499
III. CONCLUSION
For the reasons stated above, we AFFIRM the district court’s judgment.
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