Posted: June 18, 2014

FTCA Subcontractor Immunity Waived When Government Continues to Play Some Role in Subcontracted Task

On June 11, 2014, the Second Circuit issued a decision in Haskin v. United States, Docket No. 13-3880-CV, holding that the US Postal Service may have waived subcontractor immunity under the Federal Tort Claims Act when it also did some of the work for which the subcontractor was engaged.

In Haskin, the plaintiffs sued the US Postal Service for injuries one of them suffered when he slipped and fell on an icy sidewalk outside a post office. The USPS had contracted with defendant Precise Detailing LLC to provide snow and ice removal services at the office. For that reason, the EDNY dismissed the plaintiffs’ claims against the USPS for lack of subject matter jurisdiction, relying on the Federal Tort Claims Act’s independent contractor exception, which provides that where the Government is without fault, it may not be held liable for a negligent or wrongful act or omission of an independent contractor. The Second Circuit reversed, holding:

[T]he district court prematurely dismissed the [plaintiffs’] suit for lack of subject matter jurisdiction, as genuine issues of material fact existed concerning the alleged negligence of USPS employees. The record contains evidence from which a reasonable jury could find that [the plaintiffs’] injury resulted from the negligence of USPS employees. Here, the USPS chose to contractually delegate some–but not all–of its snow removal responsibilities to Precise. At a minimum, the USPS retained responsibility for inspecting the Branch’s sidewalks when less than two inches of snow fell. In such circumstances, as was the case on December 21, 2009, USPS employees could either (1) ask Precise to come to the Branch or (2) remove the snow and ice themselves. Indeed, USPS employees customarily checked the sidewalks surrounding the Branch for snow and ice, and kept shovels and ice melt chemicals at the Branch to remove snow and ice themselves. . . . A reasonable jury could conclude, therefore, that [the plaintiff] was injured by the negligence of USPS employees–specifically, their failure to detect and remove ice on the sidewalks surrounding the Branch, or their failure to summon Precise to remove the ice.

(Internal quotations and citations omitted).

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