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Shelton v. United States

United States District Court, D. Maryland

February 21, 2017

BRADLEY SHELTON, Plaintiff,
v.
UNITED STATES OF AMERICA, et al., Defendants.

          MEMORANDUM OPINION AND ORDER

          Paul W. Grimm United States District Judge.

         While performing electrical work as a foreman for NCM Demolition & Remediation (“NCM”) at the National Aeronautics and Space Administration (“NASA”) Goddard Space Flight Center (“GSFC”), Plaintiff Bradley Shelton, came in contact with high voltage electricity in an electrical vault that should have been de-energized, but was not, and was severely injured. He filed this suit in negligence against the United States[1] and Capitol Technology Services, Inc. (“CTSI”), which was under a contract with NASA to provide facilities operations and maintenance services at NASA GSFC. CTSI filed a cross-claim against the United States for contribution and/or indemnification. ECF No. 22. Now pending is the Government's motion to dismiss the claims against it for lack of jurisdiction, or alternatively for summary judgment. ECF No. 69.[2] At issue is whether an exception to the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 2671, bars the “sole claim” that Shelton “is continuing to pursue . . . against the Government, ” namely, that the Government “retained the duty to keep the people of GSF[C] safe from electrocution harm by means of coordinating the power disconnection, and that it breached its duty by informing NCM that the power was disconnected at Building 2 when it was not disconnected.” See Pl.'s Opp'n 10. Because the misrepresentation exception to the FTCA bars this remaining claim against the Government, I will grant the motion to dismiss Shelton's claim against the Government and CTSI's cross-claim for contribution against the Government. I also will dismiss CTSI's cross-claim for indemnification as premature.

         Background

         To demolish an historic building (“Building 2”) at NASA GSFC, the United States, through its agencies, NASA and the United States Army Corps of Engineers (“USACE”), awarded the Building 2 Task Order to NCM. On August 1, 2011, the Government authorized NCM to proceed with the demolition of Building 2, but only for the asbestos “Abatement effort.” Partial Notice to Proceed, Jt. Ex. 16, Jt. Rec. 705, ECF No. 69-18. “On August 12, 2011, NCM informed CTSI that it ‘need[ed] to cut power” so that NCM could ‘demo walls that are on top of the floor tile.'” Oct. 9, 2015 Mem. Op. 2-3, ECF No. 55 (quoting Jt. Rec. on CTSI's Mot. for Sum. J.). Jeffrey Steir, who was a project manager at NASA at the time of the incident, informed Devin Miller, Project Engineer for NCM, on August 16, 2011 that “the power [was] turned off in the Building.” Steir Dep. 15:5-7, 122:12-123:4, Jt. Rec. 640, 667, Jt. Ex. 13, ECF No. 69-15. Specifically, Steir testified that the following communication occurred on August 16, 2011 outside Building 2:

O&M was there. I was there with Devin. We were standing outside. O&M was, a representative from O&M was inside the building and when they killed the switchgear, it took down the whole, I guess it was the west side first, and then they provided [sic] to the east side switchgears and then they turned them off and then all the power in the east side was turned off. And we said there you go, the power's turned off in the building.

         Steir Dep. 122:12-123:4, Jt. Rec. 667 (emphasis added).

         The switchgear inside Building 2 “included an air break switch that could be used to turn off the power from Feeder 10, ” which fed power to Building 2. Engineer's Preliminary Report 2, Ex. 1 to Pl.'s Opp'n to CTSI's Mot. for Sum. J., ECF No. 26-4. “When the switch was turned off it de-energized the power to the load side, ” that is, the power running from the vault, inside Building 2. Id. Thus,

on August 16, 2011, CTSI “secured the power in Building 2, . . . however, power was not cut at that time.” Instead, CTSI “perform[ed] a ‘lockout tagout, ' which consisted of locking and identifying switchgears and other components that were live or hot.” In other words, CTSI turned off the electricity within the building but kept it on in the electrical rooms, or “vaults, ” which were locked and on the doors of which were affixed warning signs. “The warning sign on the outer back panel [of the switchgear cabinet] state[d] clearly that the panel should not be opened unless electrical power ha[d] been turned off.”

         Oct. 9, 2015 Mem. Op. 2-3 (quoting Jt. Rec. on CTSI's Mot. for Sum. J.). Indeed, Steir testified that a “full blown-out killing of the power” was not done because “[i]t was never requested.” Steir Dep. 113:6-11, Jt. Rec. 664.

         Significantly, “[p]ower to the line side of th[e] switch, ” i.e., power running to the vault, “could only be turned off by disconnecting the power at a location outside of Building 2, ” that is, by “disconnecting Feeder 10 inside a manhole outside of Building 2.” Engineer's Preliminary Report 2 (emphasis added). Shelton's August 29, 2011injury occurred in Building 2's electrical vault, when Shelton came “in contact with or in proximity to the high voltage feeder 10 line side.” NASA Report 15, Jt. Rec. 846 (emphasis added). NCM had removed the doors, and, in Shelton's “view, the locks and labels did not apply when a building was unoccupied, as was Building 2.” Oct. 9, 2015 Mem. Op. 3. At that time, NCM had progressed to “removing copper solely for the purpose of salvage, ” even though its authorization to proceed only covered asbestos abatement. Id.

         In his Complaint, Shelton alleged that the United States breached various “mandatory dut[ies]” to “follow safety procedures, ” to ensure the workers' safety, to provide adequate training, supervision, and oversight, “to test its circuits prior to demolition” and “to ensure that all electricity had been turned off.” Compl. ¶¶ 21, 24-37, 39-58, 60-62, 64-65, ECF No. 1. Specifically, he claimed that “[t]he negligence occurred when in the time prior to the August 29, 2011 electrocution, NASA failed to communicate to USACE that the electrical lines had not been de-energized, ” instead “inform[ing] the on site project engineer that the electricity was off, ” and then USACE “failed to communicate to the demolition subcontractor, NCM, that the electrical rooms were off limits and that the switchgear was still live.” Id. ¶¶ 22, 23 (emphasis added).

         The Government moved to dismiss the negligence claim against it for lack of jurisdiction, on the basis that it was immune to suit under the independent contractor and/or discretionary function exception to the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 2671. ECF No. 23. I denied the motion, ruling that on the record before me at that time, “the evidence [was] disputed as to whose responsibility it was to de-energize the switchgear” and whether “the Government had a role in disconnecting the electricity, ” and therefore discovery was necessary to resolve the factual disputes, with the “disputed jurisdictional facts [being] very much intertwined with the issue of liability.” Aug. 5, 2015 Mem. & Order 6-8, ECF No. 47; see also Oct. 9, 2015 Mem. Op. 1 n.1, ECF No. 55 (noting that “a genuine dispute exist[ed] as to whether the Government or CTSI was responsible for workplace safety at the time of the accident”).

         Following the close of discovery, the Government renewed its motion to dismiss for lack of jurisdiction, alternatively moving for summary judgment. In response, Shelton concedes that “the facts revealed through discovery do not support recovery against the government for [his] claims” that “the Government should have 1) detected the fact that the switchgear remained energized and warned NCM of potential hazards from energized equipment, 2) directed CTSI to secure the electrical vaults differently, 3) supervised NCM more closely, and 4) questioned CTSI's method, means, or timing of de-energizing Building 2, ” and therefore he “is no longer making any of those claims.” Pl.'s Opp'n 10. Shelton asserts that the “sole claim” that he “is continuing to pursue . . . against the Government” is that the Government “retained the duty to keep the people of GSF[C] safe from electrocution harm by means of coordinating the power disconnection, and that it breached its duty by informing NCM that the power was disconnected at Building 2 when it was not disconnected.” Id.

         Shelton cites NCM Project Manager Chance Jackson's deposition testimony, the USACE and NASA Reports, and statements by USACE representative Christopher Brooks as evidence that the Government erroneously stated that “the power to Building 2 had been air-gapped on August 16, 2011.” See Pl.'s Opp'n 9. An “air gap is . . . where the line is cut, physically cut and there's no line going between the two.” Steir Dep. 103:11-25, Jt. Rec. 662. It is a means of “mak[ing] sure that the power has been completely cut to a building, “[a]nd a switch is not an air gap.” Id. As noted, NASA's Steir informed Miller of NCM on August 16, 2011 that “the power [was] turned off in the Building.” Steir Dep. 122:12-123:4, Jt. Rec. 667. But, Steir testified that he had not “witnessed prior to August 23rd, 2011 any air gapping in the project.” Id. at 56:6-8, Jt. Rec. 650. Arguably, however, NCM could have understood Steir's statement to mean that the line side of the power in the vault was turned off, too.

         Jackson testified that he “received . . . a work order signed by the electrical subcontractor specifically saying the feeder lines numbers. . . that were disconnected, air gapped” in a manhole outside of Building 2, although he could not recall when he received it. Jackson Dep. 45:23- 46:23, 105:25-106:8, Jt. Rec. 271, 284, Jt. Ex. 4, ECF No. 69-6 (emphasis added). Jackson later testified that he “got that written work order from the owner, ” that is, the Government, explaining that CTSI “would give that to the owner, the owner would give it to [him], and then [he] knew that it was deenergized to perform work.” Id. Id. at 46:2-4, 60:11-61:12, Jt. Rec. 271, 274-75. As for who in particular sent him the email, Jackson stated: “I would think that an e-mail with attachment would have came [sic] from Jeff Steir, that he would have got it from whatever department or subcontractor that he needed to.” Id. at 106:9-14, Jt. Rec. 284. Jackson could not locate the work order. See Id. at 106:15-18. He also stated that “it was [NCM] company policy . . . that [NCM] didn't ...


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