United States Court of Appeals,
Eleventh Circuit.
No. 94-8188.
Beverly TISDALE, as natural parent and legal custodian for
Christopher Tisdale-Lugo, a minor, Plaintiff-Appellant,
v.
UNITED STATES of America; Coleman Realty Company; Joel K.
Coleman dba Coleman Realty Co., Defendants-Appellees.
Sept. 6, 1995.
Appeal from the United States District Court for the Northern
District of Georgia. (No. 1:92-002868-CV-ODE), Orinda D. Evans,
Judge.
Before COX, Circuit Judge, RONEY and WOOD*, Jr., Senior Circuit
Judges.
HARLINGTON WOOD, JR., Senior Circuit Judge:
Beverly Tisdale appeals the decision of the district court
granting the United States' motion for summary judgment. Ms.
Tisdale filed suit against the United States under the Federal Tort
Claims Act after her ten year-old son, Christopher Tisdale-Lugo,
was injured at a property owned by the Department of Housing and
Urban Development ("HUD") when a metal staircase collapsed beneath
him. Ms. Tisdale filed suit against the Coleman Realty Company
("Coleman"), which had contracted with HUD to maintain the
property, pursuant to 28 U.S.C. § 1367. The district court granted
the United States' motion for summary judgment after concluding
that the United States was not liable for any negligence committed
by Coleman as Coleman was an independent contractor under federal
law. The district court also found that the United States could
*
Honorable Harlington Wood, Jr., U.S. Circuit Judge for the
Seventh Circuit, sitting by designation.
not be found liable as a landowner under Georgia law for the unsafe
condition of the property as it had surrendered possession and
control of the property to Coleman. The district court last found
that no genuine issue of material fact existed regarding whether
the United States was liable for negligently supervising Coleman.
For the reasons given below, we affirm the decision of the district
court to grant the United States' motion for summary judgment.
I. BACKGROUND
The facts of this case are relatively straightforward. On
February 7, 1990, Beverly Tisdale visited a residential property
located at 1380 McPherson Avenue in Atlanta, Georgia. Ms. Tisdale
was accompanied by her ten year-old son, Christopher Tisdale-Lugo,
and by her mother, Laverne Tisdale (collectively, "the Tisdales").
The dwelling was owned by HUD and had been advertised for sale by
HUD in a local newspaper. The purpose of the Tisdales' visit was
to inspect the property in contemplation of a possible purchase.
Shortly after their arrival at the house, Christopher climbed a
metal, exterior staircase located at the rear of the dwelling.
After he had reached the landing at the top of the stairs, the
staircase collapsed and Christopher fell to the ground, breaking
his left ankle. It was later determined that the staircase's
collapse was due to the extensive rusting of its supports.
HUD had acquired the dwelling on August 5, 1987, by special
warranty deed from Lomas and Nettleton Company. On September 29,
1989, HUD entered into an Area Management Broker contract ("AMB
contract") with Coleman which included the McPherson Avenue
property. Under an AMB contract, a real estate broker or other
qualified individual agrees to arrange for and supervise the
management, rehabilitation, and maintenance of certain properties
that have been acquired by HUD. As an Area Management Broker
("AMB"), Coleman was additionally required to inspect the
properties covered by the AMB contract on a regular basis and to
1
eliminate any safety hazards that the inspections revealed. In
1
More specifically, as stated by the district court, the AMB
contract required Coleman to:
(1) post warning signs; (2) notify police, taxing
authorities, utility companies, and owner's
associations of HUD's interest in the property; (3)
notify HUD of damage due to vandalism, fire, and other
causes; (4) remove and dispose of interior and
exterior trash; (5) secure property to prevent
unauthorized entry and damage by elements; (6)
winterize operating systems and equipment; (7) order
termite and other pest control inspections; (8)
eliminate conditions which present safety hazards
within five days of assignment of property and
thereafter as required; (9) complete and provide HUD
with lead based paint hazard report; (10) assume
responsibility for keys and/or lock boxes; (11) ensure
that grass and shrubbery are cut/trimmed, clippings are
removed, and snow is removed from walkways and
sidewalks; (12) obtain tax and special assessment
bills and forward to HUD for processing/payment; (13)
complete form HUD-9516 (Property Disposition Listing
Report) and provide to HUD; (14) provide listing of
needed repairs, with cost estimates; (15) solicit bids
for repairs; (16) inspect completed repairs and ensure
that repair contract is properly fulfilled; (17) post
HUD "For Sale" sign; (18) routinely inspect properties
and document such inspections with HUD inspection
Report (9519 or 9519a) every 15 days after initial
inspection; (19) determine fair market rental rate;
(20) execute month-to-month leases; (21) collect and
deposit rent; (22) investigate tenant complaints and
provide recommendations to HUD; (23) initiate and
administer eviction actions; (24) have operating
systems tested and furnish report of condition to HUD;
(25) provide assistance to interested parties regarding
properties available for sale; (26) provide
transportation to HUD representative for property
inspections no more than once a month (randomly
selected properties); and (27) monitor, inspect, and
approve lawn maintenance contractor for area.
this regard, Coleman was authorized to make any necessary repairs
up to $1000, but any repairs that were in excess of this amount
required prior authorization from HUD.
Other responsibilities held by HUD under the AMB contract
included: (1) placing advertisements in an attempt to sell the
properties; (2) determining the sales disposition of a
property—e.g., the asking price of the property, whether it was to
be sold "as is," and whether it was to be sold with or without
insurance; (3) reassessing the property every thirty days if it
remained unsold and determining whether to authorize further
repairs; (4) deciding whether the property should be rented and
setting the rental rate; (5) determining whether an eviction
proceeding should be commenced regarding those properties that were
rented; and (6) ensuring that its AMB's complied with the terms of
the AMB contracts—this included the review of all documents
submitted by the AMB's and the inspection of at least ten percent
of the properties assigned to each AMB.
On January 31, 1992, Ms. Tisdale filed suit against the United
States pursuant to the Federal Tort Claims Act ("FTCA"), 28 U.S.C.
§ 2671, et seq. Jurisdiction for the action exists by virtue of 28
U.S.C. § 1346(b). Ms. Tisdale also filed suit against Coleman
pursuant to 28 U.S.C. § 1367. Ms. Tisdale later filed an amended
complaint on June 25, 1992, and she filed a second amended
complaint on September 15, 1993. On April 3, 1992, the United
States filed a motion to dismiss the action for lack of subject
matter jurisdiction; the district court denied this motion on
September 29, 1992.
In addition, the United States filed a motion for summary
judgment on August 10, 1993. The district court granted the motion
for summary judgment on November 17, 1993, after finding that the
United States was not liable for the negligence of Coleman, as
Coleman was an independent contractor and not an employee of the
United States. The district court further found that the United
States owed no duty of care to the Tisdales as the owner of the
property as it had relinquished possession and control of the
McPherson Avenue property, via the AMB contract, to Coleman. The
district court also rejected Ms. Tisdale's argument that the United
States was liable for negligently supervising the performance of
Coleman. On January 14, 1994, the district court also dismissed
the claims against Coleman, without prejudice, for lack of
jurisdiction. This appeal followed.
II. STANDARD OF REVIEW
We review the district court's grant of a motion for summary
judgment by determining de novo whether there exists a genuine
issue as to any material fact requiring submission of the case to
the finder of fact or whether judgment as a matter of law was
appropriate. Fed.R.Civ.P. 56(c); Sammons v. Taylor, 967 F.2d
1533, 1538 (11th Cir.1992) (citations omitted). In making this
determination, we view all evidence in the light most favorable to
the non-moving party. Sammons, 967 F.2d at 1538 (citation
omitted). The conclusions of law reached by the district court in
this regard are reviewed de novo, as are all conclusions of law
raised on appeal. Morrison v. Washington County, Ala., 700 F.2d
678, 682 (11th Cir.), cert. denied, 464 U.S. 864, 104 S.Ct. 195, 78
L.Ed.2d 171 (1983).
III. DISCUSSION
A. Independent Contractor Status
Ms. Tisdale brought this suit under the FTCA which provides
a limited waiver of sovereign immunity for actions against the
United States involving
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). The United States argues, and the district
court agreed, that the United States is not liable for the acts or
omissions of Coleman under the FTCA because Coleman is an
independent contractor, and not an employee or agency of the United
States.
Suits under the FTCA are limited to those which involve
claims arising from "the negligent or wrongful act or omission of
any employee of the Government ... acting within the scope of his
office or employment." 28 U.S.C. § 1346(b). The FTCA specifically
excludes "any contractor with the United States" from its coverage.
28 U.S.C. § 2671. Thus, the United States is not liable for the
acts or omissions of the independent contractors that it employs.
See United States v. Orleans, 425 U.S. 807, 813-16, 96 S.Ct. 1971,
1975-77, 48 L.Ed.2d 390 (1976). Our review of this matter
convinces us that the district court correctly concluded that
Coleman held only the status of an independent contractor in regard
to the McPherson Avenue property. Therefore, the United States is
not liable for any negligent acts that Coleman may have committed.
It is true, as Ms. Tisdale argues, that HUD retained the
authority under the AMB contract to ensure that Coleman fulfilled
its contractually-assumed obligations, but this fact does not
necessarily convert Coleman into an employee or agency of the
United States. "[B]y contract, the Government may fix specific and
precise conditions to implement federal objectives. Although such
regulations are aimed at assuring compliance with goals, the
regulations do not convert the acts of entrepreneurs ... into
federal governmental acts." Id. at 816, 96 S.Ct. at 1976-77.
(footnote and citations omitted). The true test for independent
contractor status addresses the United States' power " "to control
the detailed physical performance of the contractor,' " or, in
other words, whether Coleman's "day-to-day operations are
supervised by the Federal Government." Id. at 814, 815, 96 S.Ct.
at 1976 (quoting Logue v. United States, 412 U.S. 521, 528, 93
S.Ct. 2215, 2219, 37 L.Ed.2d 121 (1973)) (footnote omitted).
We find that Coleman is an independent contractor because the
very purpose of an AMB contract is to turn over the day-to-day
management, rehabilitation, and supervision of certain properties
to AMB's such as Coleman. HUD's primary objective is to dispose of
the properties covered by the AMB contracts; HUD owns far too many
of these properties, and it is too insufficiently staffed to
properly manage all of them itself. Therefore, HUD must enter into
AMB contracts in order to facilitate its objective of disposing of
these properties. The extensive list of duties assumed by Coleman
under the AMB contract, recounted in footnote 1, supra, illustrates
the extent to which HUD relinquished its day-to-day duties to
Coleman. Those responsibilities that HUD did retain—e.g.,
determining the asking price for the property, authorizing repairs
over $1000, reassessing the property every thirty days, and
deciding whether to rent the property—cannot be characterized as
"day-to-day" duties.
B. Landowner's Duty Under O.C.G.A. § 51-3-1
Our determination that Coleman is an independent contractor
means only that the United States is not directly or vicariously
liable for any negligent or wrongful acts or omissions that Coleman
may have committed. The United States can still, of course, be
found liable for any tortious conduct committed by HUD. The FTCA
provides that "[t]he United States shall be liable, respecting the
provisions of this title relating to tort claims, in the same
manner and to the same extent as a private individual under like
circumstances." 28 U.S.C. § 2674. As the allegedly negligent act
or omission at issue here occurred in Georgia, we now turn to that
state's laws.
The applicable statute, O.C.G.A. § 51-3-1, states:
Where an owner or occupier of land, by express or implied
invitation, induces or leads others to come upon his premises
for any lawful purpose, 2 he is liable in damages to such
persons for injuries caused by his failure to exercise
ordinary care in keeping the premises and approaches safe.
Therefore, the United States qua landowner may be liable to the
Tisdales under § 51-3-1 if the McPherson Avenue property was in an
unsafe condition. It has been previously determined under Georgia
2
The Tisdales visited the McPherson Avenue property in
response to an advertisement placed by HUD—it is not disputed
that they were invitees.
law, however, that a landowner may relinquish possession and
control of his property to an independent contractor and thereby be
relieved of his duties to those who enter his property. E.g.,
Hodge v. United States, 310 F.Supp. 1090, 1098 (M.D.Ga.1969),
aff'd, 424 F.2d 545 (5th Cir.1970); Towles v. Cox, 181 Ga.App.
194, 195, 351 S.E.2d 718, 720 (Ga.Ct.App.1986). Upon the
landowner's delivery of possession and control of the property to
an independent contractor, "[t]he contractor then becomes the
"occupier' of the land within the meaning of the Georgia statute."
Hodge, 310 F.Supp. at 1098 (citing Tyler v. Peel Corp., 371 F.2d
788, 790 (5th Cir.1967)). As the "occupier" of the land within the
meaning of O.C.G.A. § 51-3-1, the independent contractor thereby
becomes potentially liable, in the landowner's stead, to invitees
for damages caused by the unsafe condition of the premises.
Our review of this record convinces us that the United States
had turned over possession and control of the McPherson Avenue
property to Coleman. "Possession may be defined as having personal
charge of or exercising the rights of management or control over
the property in question. Custody and control are the commonly
accepted and generally understood incidents of possession." Hodge,
310 F.Supp. at 1098. The AMB contract at issue here specifically
conferred managerial authority upon Coleman. As discussed above,
Coleman was entrusted with the day-to-day decision-making regarding
the McPherson Avenue Property.3 That HUD retained the authority to
3
Ms. Tisdale notes in this regard that HUD contracted with a
different company for the maintenance of the lawn. Apparently,
her reason for doing so is to demonstrate that the United States
did not fully relinquish possession and control of the property
to Coleman since another company was responsible for maintaining
ensure that Coleman was performing its obligations under the AMB
contract is not sufficient, standing alone, to defeat the finding
that Coleman was in possession and control of the McPherson Avenue
property.4 See id. at 1099 (finding that an independent contractor
had possession and control over the portion of the roof under
repair despite the fact that government inspectors visited the roof
in order to see that contract specifications were being met).
Therefore, the United States owed no duty to the Tisdales as a
landowner under § 51-3-1 at the time of Christopher's unfortunate
accident. Since the United States did not owe the Tisdales a duty
under Georgia law here, the United States cannot be found liable
for Christopher's injury. E.g., Ramey v. E.S. Pritchett, 90
Ga.App. 745, 750-51, 84 S.E.2d 305, 310 (Ga.Ct.App.1954).
C. Nondelegable Duty
Ms. Tisdale also argues that the duty imposed upon owners and
occupiers of land under O.C.G.A. § 51-3-1 is nondelegable and that
the United States is therefore unable to escape liability for the
allegedly hazardous condition of the McPherson Avenue property.
However, the duty held by landowners to invitees under Georgia law
the lawn. It is indisputable under Georgia law, however, that a
landowner may relinquish possession and control of only a portion
of his or her property to an independent contractor. See, e.g.,
Hodge, 310 F.Supp. at 1098-99 (listing cases); Towles, 181
Ga.App. at 195-96, 351 S.E.2d at 720. The possible presence of
another independent contractor at the McPherson Avenue property
does not concern our inquiry since Coleman clearly had charge of
the portion of the property in question here—the rear, exterior
staircase.
4
Moreover, Ms. Tisdale admitted in all three versions of her
complaint that "Defendant Coleman, by virtue of its contract with
HUD, was the occupier of said property. Defendant Coleman was in
possession and control of the aforementioned property."
remains nondelegable only for so long as the landowner retains
possession and control of the property. Once a landowner has
surrendered possession and control to an independent contractor,
the bar on delegation evaporates. See Englehart v. OKI Am., Inc.,
209 Ga.App. 151, 153, 433 S.E.2d 331, 334 (Ga.Ct.App.1993) ("[I]t
is the longstanding rule in Georgia that a property owner can
delegate the responsibility of maintaining a safe workplace by
relinquishing possession and control of the property to an
independent contractor.") (listing cases).
As discussed above, we agree with the district court's finding
that the United States did relinquish possession and control of the
McPherson Avenue property to Coleman. Coleman thus became the
occupier of the property and thereby assumed the nondelegable duty
under Georgia law to exercise ordinary care to keep the property
safe.5 Therefore, the United States may not be found liable for
the allegedly hazardous condition of the property.
D. Negligent Supervision
Ms. Tisdale last argues that the United States may be found
liable under the FTCA for the negligence of HUD officials in
failing to properly supervise Coleman under the AMB contract. As
the district court correctly noted, Ms. Tisdale's position is not
without support: "Although the [FTCA] precludes federal liability
5
Moreover, the AMB contract explicitly delegated the
responsibility for maintaining the safety of the property to
Coleman. Among other duties, Coleman was to: (1) inspect the
property and eliminate safety hazards within five days of signing
the AMB contract; (2) routinely inspect the property every
fifteen days thereafter; (3) post any needed warning signs; and
(4) inspect completed repairs to ensure that they were completed
correctly.
for the torts of an independent contractor, ... the employment of
an independent contractor does not necessarily insulate the United
States from liability for its own employees' independent acts of
negligence which occur in connection with the work of an
independent contractor." Berman v. United States, 572 F.Supp.
1486, 1491 (N.D.Ga.1983) (citations omitted); see also Logue v.
United States, 412 U.S. 521, 532-33, 93 S.Ct. 2215, 2221-22, 37
L.Ed.2d 121 (1973). Our review of this matter ultimately convinces
us, however, that no genuine issue of material fact exists
regarding whether the United States was negligent in its
supervision of Coleman.
As discussed above, Coleman was required, under the AMB
contract, to inspect the McPherson Avenue property every fifteen
days and to complete an inspection report form after each
inspection. The record indicates that Coleman did not file any
inspection report forms with HUD until August 1990—nearly one year
after its contractual relationship with HUD had begun. Viewing
this fact in the light most favorable to Ms. Tisdale, it would seem
to follow that a lack of documentation implies a lack of
inspections. Carrying this supposition one step further, it was,
or should have been, foreseeable to HUD officials that a lack of
inspections created a potential risk to those persons who visited
the property in response to HUD's advertisements.
There is evidence in the record, however, that Coleman did
perform the required inspections: Mr. Coleman testified in his
deposition that the required bi-monthly inspections were made
during this period, but that he had not completed any inspection
reports because he had mistakenly believed that they were not
required if no problems were discovered. In addition, a sign-in
sheet kept at the McPherson Avenue property indicates that Coleman
inspected the property on January 30, 1990, approximately one week
before Christopher's accident.
Whether or not Coleman actually completed the reports is an
issue of causation—it is not related to the initial inquiry into
the United States' possible liability for failing to ascertain
whether or not the inspections were performed. Causation issues
should normally be addressed by the finder of fact under Georgia
law: "Ordinarily, questions of negligence and diligence, cause and
proximate cause are questions solely for consideration by the jury,
and such questions should not be resolved as a matter of law except
in plain and palpable cases." Williams v. Nico Indus., Inc., 157
Ga.App. 814, 815, 278 S.E.2d 677, 680 (Ga.Ct.App.1981), rev'd on
other grounds, Malvarez v. Georgia Power Co., 250 Ga. 568, 300
S.E.2d 145 (Ga.1983). We find that the uncontroverted evidence
which indicates that the inspections were actually performed makes
the lack of causation "plain and palpable" in this case. The
United States' failure to ensure that the safety inspections were
performed did not play a role in Christopher's unfortunate accident
since Coleman performed the inspections anyway. Therefore, we find
that no material issue of fact exists regarding HUD's liability for
negligently supervising Coleman.
IV. CONCLUSION
For the reasons set forth above, the decision of the district
court to grant the United States' motion for summary judgment is
affirmed.
AFFIRMED.