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PELHAM v. UNITED STATES

June 4, 1987

Jerry and Phyllis Pelham, Plaintiffs,
v.
United States of America, et al., Defendants



The opinion of the court was delivered by: ACKERMAN

 This personal injury action is brought by the plaintiffs, Jerry and Phyllis Pelham, against the United States, Allis Chalmers Corporation, Fairfield Tractor Company, Inc., L & H Construction Company ("L & H"), Catanzaro & Son Demolition Contractors, Ronald Davis, Ronald Davis Trucking Company, and four unidentified entities. It arises from conduct undertaken in 1982 on a construction and demolition project at the Picatinney Arsenal in Dover, New Jersey, a United States Army installation.

 Defendant United States moves for reconsideration of my ruling of November 25, 1985 denying the government's motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(1) or in the alternative, for summary judgment based on the discretionary function exception to the Federal Tort Claims Act (FTCA). Under rule 12 I of the local rules of this district, the court will reconsider its prior ruling if it determines that it overlooked dispositive factual matters or controlling decisions of law.

 The government urges two grounds in support of reconsideration: (1) that the court erred in converting its rule 12(b)(1) motion to a motion for summary judgment, and (2) that recent Third Circuit precedent overrules the analysis employed by the court under the FTCA. Because the government argues that new law controls the motion here, I have reconsidered my prior decision. However, for the reasons discussed infra, the government's motion to dismiss is still denied.

 STANDARD FOR VIEWING THE FACTS

 Turning to the first ground, the government contends that the court incorrectly gave plaintiff the benefit of all favorable inferences when it is the plaintiff that has the burden of demonstrating jurisdiction. The government argues that without the benefit of factual inferences drawn in the plaintiff's favor, the court could not have found jurisdiction.

 Reviewing the applicable law, I find that the government is correct in its contention that a motion for summary judgment is an improper vehicle for considering challenges to the subject matter jurisdiction of the court, *fn1" notwithstanding that the government sought summary judgment as an alternative form of relief. When challenged by a defendant, the burden of demonstrating federal jurisdiction rests with the pleader. Tanzymore v. Bethlehem Steel Corp., 457 F.2d 1320, 1321 (3d Cir. 1972). In considering a rule 12(b)(1) motion, the court must read the complaint liberally, taking all uncontroverted factual allegations in it as true. See Scheuer v. Rhodes, 416 U.S. 232, 236, 40 L. Ed. 2d 90, 94 S. Ct. 1683 (1974). The court may not be aided by presumptions or argumentative inferences drawn from the pleadings. Norton v. Larney, 266 U.S. 511, 515, 69 L. Ed. 413, 45 S. Ct. 145 (1924). It necessarily follows then that the burden may not be switched and imposed on the movant when the basis for seeking judgment is a challenge to the jurisdiction of the court.

 It was unnecessary for the court to convert the motion to one for summary judgment, however, for the court may properly look to affidavits, depositions and other extra-pleading material in determining its own jurisdiction. Tanzymore, 457 F.2d at 1323. Therefore, the only practical difference between challenging jurisdiction under rule 56 and rule 12(b)(1) is the way the court construes the facts. Thus, in determining jurisdiction, the court may not provide the nonmovant the benefit of favorable influences, but must determine whether, based on all of its submissions to the court, the nonmovant has borne its burden of demonstrating its entitlement to a federal forum.

 The foregoing being so, however, I reject the government's argument that plaintiffs benefitted from favorable factual inferences in my previous opinion. At this point, a review of the facts utilizing the appropriate rule 12(b)(1) standard is in order.

 Plaintiff Jerry Pelham worked as a construction laborer for a subcontractor engaged in a construction and demolition project at Building 65 at the Picatinney Arsenal. The project was being carried out pursuant to an agreement between an Army Corps of Engineers and defendant L & H, the general contractor at the job site.

 On May 25, 1982, during the demolition phase, plaintiff was called to attach cables to a roof-support suspension beam. He was instructed to stand in a metal garbage dumpster to be lifted on the forks of a forklift to the suspension beam approximately twenty feet above floor level. As the box was being lifted with plaintiff in it, the forklift lurched, causing plaintiff to lose his balance. His hand was caught between the forklift mast chain and pulley, amputating portions of three fingers and severely lacerating a fourth on his left hand.

 The contract between the Army Corps of Engineers and L & H governing the demolition and construction phases of this project, which is part of the record of this case, explicates the respective responsibilities of the contractor and the "contracting officer," the person executing the contract on behalf of the government or his or her authorized representative. General Provision 1(b). General Provision 10 provides that all work is subject to the government's inspection at all reasonable times for the government's benefit but that "any such inspection . . . shall not relieve the Contractor of the responsibility of providing quality control measures to assure that the contract strictly complies with the contract requirements." Moreover, the contract requires the contractor to personally supervise the work done, General Provision 11, bring the job in compliance "with any applicable Federal, state and municipal laws, codes and regulations," General Provision 12, and generally "take proper safety and health precautions to protect the work, the worker, the public and the property of others," General Provision 12.

 The government's project engineer at the site was Frederick A. Labudzinski. According to his own deposition, Mr. Labudzinski's duties included monitoring compliance with the plans and specifications of the contract, which included the general provisions of the contract and their safety provisions. See Labudzinski Dep. at 15-18, Exh. D to Plaintiff's Brief in Opposition to Summary Judgment. Mr. Labudzinski spent ten to twenty percent of his time performing on-site tasks. Id. at 20. Throughout the demolition phase of the project, during which plaintiff was injured, either Mr. Labudzinski or an assistant inspected the project on a daily basis. Id. at 34.

 Sometime shortly before plaintiff's injury, Mr. Labudzinski inspected the demolition site and first observed a worker in a metal container in the air hoisted by the forklift. Id. at 37-38. When asked whether he believed this procedure met safety requirements, Mr. Labudzinski testified at deposition as follows:

 
Q. Did you think the practice of having a worker present in a metal container contained on the forks of a forklift suspended in the air met the safety requirements of the general provisions of the building 65 contract when you saw it on the one or two occasions that you did before Mr. Pelham was injured?
 
A. I raised the issue with the superintendent for L & H Construction, Larry Maffie, M-A-F-F-I-E, Lawrence Maffie on the practice. He assured me that that was, it I recall, standard procedure for that type of demolition.
 
Q. Are you finished?
 
A. Yes.

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