Larry Poitra v. United States ( 2001 )

  •                        United States Court of Appeals
                                 FOR THE EIGHTH CIRCUIT
                                        No. 01-1859
    Larry Poitra,                            *
                    Appellant,               *
                                             * Appeal from the United States
          v.                                 * District Court for the District
                                             * of Nebraska.
    United States of America;                *
    Industrial Builders, Inc.                *      [UNPUBLISHED]
    a North Dakota Corporation,              *
                    Appellees.               *
                                  Submitted: November 12, 2001
                                       Filed: December 14, 2001
    Before BYE, RICHARD S. ARNOLD, and BEAM, Circuit Judges.
           Larry Poitra appeals from the district court's1 grant of summary judgment in
    favor of the United States based on the discretionary function exception to the Federal
    Tort Claims Act. See 28 U.S.C. §§ 2671 et seq.
          The Honorable Joseph Bataillon, United States District Judge for the District
    of Nebraska.
           In 1993, the United States Army Corps of Engineers (Corps) hired Industrial
    Builders, Inc. (IBI), a general contractor, to work on a bridge construction project in
    Sidney, Nebraska. Poitra, an employee of IBI, was injured during the course of this
    project, and brought this personal injury action against the United States, alleging that
    the Corps maintained control over IBI and directly supervised the work that caused
    his injuries. The Corps had one on-site representative for the project whose job was
    to ensure that IBI was complying with the construction contract for the benefit of the
    United States.
           The district court determined that the duties of this on-site Corps representative
    were discretionary in nature because the contract (which incorporated federal
    acquisition regulations) between IBI and the Corps did not specify a particular course
    of conduct or set forth detailed job duties for the representative to follow. Further,
    the exercise of discretion by the on-site representative was grounded in economic and
    public policy considerations properly applied by the Corps. See, e.g., Dykstra v.
    United States Bureau of Prisons, 
    140 F.3d 791
    , 795 (8th Cir. 1998) (two-part test to
    determine applicability of discretionary function exception). Accordingly, the district
    court granted the United States' motion for summary judgment based on the
    discretionary function exception.2 We have reviewed the record and agree with the
    well-reasoned decision of the district court that the discretionary function exception
    applies in this case. We therefore affirm the result. See 8th Cir. R. 47B.
           In an Order entered February 14, 2001, the district court dismissed any
    remaining claims against IBI because they were derivative. This ruling is
    unchallenged on appeal.
    A true copy.

Document Info

DocketNumber: 01-1859

Filed Date: 12/14/2001

Precedential Status: Non-Precedential

Modified Date: 10/13/2015