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Clayton v. United States

United States District Court, D. New Jersey

December 18, 2012

Theresa CLAYTON, Plaintiff
UNITED STATES of America, et al., Defendants.

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[Copyrighted Material Omitted]

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Jason Daria, Esq., John M. Dodig, Esq., Feldman, Shepard, Wohlegelertner & Tanner, Philadelphia, PA, for Plaintiff Theresa Clayton.

Paul Blaine, AUSA, Office of the United States Attorney, Camden Federal BLDG & U.S. Courthouse, Camden, NJ, for Defendant United States.

Dana Charles Argeris, Esq., Marshall Dennehey Warner Coleman & Goggin, Cherry Hill, NJ, for Defendant Eastern Construction and Electric.

Stephen A. Rudolph, Esq., Monte & Rudolph, PA, Sea Girt, NJ, for Defendant Meridian Management Corporation.


SIMANDLE, Chief Judge.


On June 21, 2008, Steven Clayton died after touching an energized power wire

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while working on a utility pole replacement project at Fort Hamilton U.S. Army base in Brooklyn, New York. Theresa Clayton, as the wife of the deceased and administrator of his estate, seeks compensation from the United States, NorthStar Technology Corporation (" Northstar" ), Eastern Construction & Electric, Inc. (" Eastern" ), and Meridian Management Corporation (" Meridian" ) for their respective roles in the accident.

Before the Court are Defendant United States' motion for summary judgment [Docket Item 48] and Defendant Meridian's motion for summary judgment [Docket Item 51].

For the reasons explained herein, the United States' motion will be granted in part and denied in part and Meridian's motion will be granted. The Court's principal holdings are: (1) both New York and New Jersey law yield the same outcome on both motions; (2) disputed issues of material fact exist regarding the extent of the Army's supervision of Steven Clayton; and (3) no disputed issues of material fact exist regarding whether Meridian owed Steven Clayton a duty of care.


The Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1346(b)(1) because federal district courts have original jurisdiction over claims seeking money damages for personal injury and death caused by the negligent and wrongful acts and omissions of the employees of the United States. The Court has supplemental jurisdiction over the remaining Defendants and claims pursuant to 28 U.S.C. § 1367(a) since the remaining claims are so related to the claims against the United States.[1]


Defendants NorthStar and Eastern both moved for partial summary judgment on the question of whether Clayton was acting as an employee for one or both entities under the relevant workers' compensation laws. [Docket Items 31 & 32.] Eastern's motion was unopposed and, because there was good cause, the Court granted it. [Docket Items 53 & 54.] It is therefore established that Clayton was working as an employee of Eastern. The Court denied Northstar's motion, as Clayton's alleged status as a special employee of Northstar is a matter of genuine factual dispute. [Docket Items 53 & 54.]


The Army needed to replace several high voltage utility poles at Fort Hamilton. Northstar had entered into a Basic Ordering Agreement (" BOA" ) to handle construction services at Fort Hamilton. Robert Downes was employed by the Army at Fort Hamilton as a Lead Construction Representative, and he served as the Contracting Officer's Representative for the utility pole project. (Army Statement of Facts (" SOF" ) ¶ 24.) Northstar did not handle high voltage electrical projects. Downes had known Mike Dietz, a high voltage electricity lineman, since the early 1990s because Dietz had worked on at least 15 projects at Fort Hamilton. (Army SOF ¶ 40.) When looking for a subcontractor

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to replace the poles, Downes suggested that Northstar contact Dietz to see if his employer could put in a bid. (Downes August 21, 2009 Dep. 29:25-30:15.) Dietz's employer at the time was Eastern and, on November 30, 2007, NorthStar subcontracted with Eastern to have Eastern replace the poles.

Steven Clayton supervised a three-man crew for Eastern that also included Dietz and Chuck Miller, a groundman.

On the morning of June 1, 2008, Clayton's crew planned to replace utility pole number 123. The power lines leading to pole 123 were supposed to be shut down or de-energized. Before the work on pole 123 began, Dietz went to pole 136 to de-energize the wires going to pole 123. Dietz missed de-energizing one of the wires because the wires were in a unique configuration. (Dietz Dep. 112:2.) Unfortunately, Clayton did not test the wires before touching them. (Dietz Tr. 118, 194-95; see also Docket Item 48-37 at 3.) When Clayton went up to pole 123 in his utility bucket, his shoulder and hand touched an energized wire. He died from electrocution.

Plaintiff filed negligence, wrongful death, and survival claims against the United States pursuant to the Federal Tort Claims Act (" FTCA" ). Plaintiff also filed negligence, reckless and intentional conduct, wrongful death, survival, and punitive damages against Meridian and the other corporate Defendants.



There are two sets of briefing before the Court. In the briefing regarding the Army's motion for summary judgment, both the Army and the Plaintiff cited New York state case law discussing duties owed by landowners and general contractors. The Army stated, " As the actions complained of on the part of the Army took place in New York, that state's tort law provides the controlling substantive legal principles." (Army Mot. Summ. J. at 18-19.) Neither the Army nor the Plaintiff disputed the applicability of New York law in assessing the Army's motion. In the briefing regarding Meridian's motion for summary judgment, both Meridian and Plaintiff cited New Jersey state law discussing when a duty of care exists. Neither Meridian nor the Plaintiff disputed the applicability of New Jersey law in assessing Meridian's motion. None of the parties conducted a choice of law analysis.[2]

The Court must determine which state's substantive law applies. Plaintiff Theresa Clayton is a citizen of New Jersey. (Compl. ¶ 1.) Meridian is a Florida corporation. (Compl. ¶ 5.) The electrocution accident occurred in New York. The Court hearing the action is in the District of New Jersey.

The FTCA waives sovereign immunity and grants district courts jurisdiction over tort claims against the United States " 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)(1) (emphasis added). In other words, " it is the substantive law of the State wherein the cause of action accrues which governs the liability of the United States on claims brought under the Federal Tort Claims Act." Ciccarone v. United States, 486 F.2d 253, 257 (3d Cir.1973). In this case, all of

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the allegations before the Court involve acts that occurred in New York. In a multistate tort action, the Federal Tort Claims Act (" FTCA" ) requires a federal court to apply the whole law of the place where the acts of negligence occurred, including its choice-of-law rules. 28 U.S.C. §§ 1346(b), 2674; Richards v. United States, 369 U.S. 1, 82 S.Ct. 585, 7 L.Ed.2d 492 (1962). The Court must therefore apply New York's choice of law rules.

Under New York law, " [t]he first step in any case presenting a potential choice of law issue is to determine whether there is an actual conflict between the laws of the jurisdictions involved." Matter of Allstate Ins. Co. (Stolarz), 81 N.Y.2d 219, 223, 597 N.Y.S.2d 904, 613 N.E.2d 936, 937 (1993). " It is only when it can be said that there is no actual conflict that New York will dispense with a choice of law analysis." Curley v. AMR Corp., 153 F.3d 5, 12 (2d Cir.1998). " If no conflict exists, then the court should apply the law of the forum state in which the action is being heard." Excess Ins. Co. Ltd. v. Factory Mut. Ins. Co., 2 A.D.3d 150, 151, 769 N.Y.S.2d 487, 489 (2003), aff'd sub nom. Excess Ins. Co. Ltd. v. Factory Mut. Ins., 3 N.Y.3d 577, 789 N.Y.S.2d 461, 822 N.E.2d 768 (2004).

The Court declines, at this time, to resolve all choice of law questions that may pertain to this case. For purposes of deciding the present motions, the Court finds that there is no conflict because (1) under either New York or New Jersey law, Meridian did not owe the decedent a duty of care and (2) under either New York or New Jersey tort law, there are disputed issues of material fact that preclude the Court from granting summary judgment for the Army.


Summary judgment is appropriate " if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). A dispute is " genuine" if " the evidence is such that a reasonable jury could return a verdict for the non-moving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A fact is " material" only if it might affect the outcome of the suit under the applicable rule of law. Id. Disputes over irrelevant or unnecessary facts will not preclude a grant of summary judgment. Id. The district court must " view the facts and draw reasonable inferences in the light most favorable to the party opposing the summary judgment motion." Scott v. Harris, 550 U.S. 372, 378, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007).

Once the moving party has supported its motion, " its opponent must do more than simply show that there is some metaphysical doubt as to material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). A summary judgment movant may meet its burden by showing that the opposing party is unable to meet its burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Nonetheless, Defendants, as the moving parties on the motion, bear the initial responsibility of demonstrating the absence of a genuine issue of material fact. Id.


The United States argues four main points in its summary judgment motion. First, the United States argues that Theresa Clayton failed to present an administrative claim to the Army seeking recovery in her personal or individual capacity before she commenced the lawsuit. This failure should, the Army argues, bar her claims because the Federal Tort

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Claims Act (" FTCA" ) requires claimants to present administrative claims before filing lawsuits. Second, the United States argues that the Army was not supposed to, and did not supervise the work of Steven Clayton and the other Eastern employees. Third, the Army argues that the administrative claim form that Theresa Clayton did submit as administrator of her husband's estate only provided notice of a failure to supervise claim; as a result, the Army argues that all other claims are barred. Fourth, the Army argues that the Army owed no duty of care in the circumstances of this case because the work performed was inherently dangerous and carried out in a careless manner.

The Court will address each argument in turn.[3] For the reasons explained herein, the Army's motion will be substantially denied because material issues of disputed fact exist regarding the Army's supervision of Clayton.

1. The FTCA Bars Claims in Theresa Clayton's Individual Capacity

The Army correctly argues that Theresa Clayton's failure to present administrative claims to the Army before filing this lawsuit precludes her from seeking relief in her individual or personal capacity. The Federal Tort Claims Act " operates as a limited waiver of the United States's sovereign immunity." White-Squire v. U.S. Postal Service, 592 F.3d 453, 456 (3d Cir.2010). Because this waiver is limited, its terms " define the court's jurisdiction to entertain the suit." Bialowas v. United States, 443 F.2d 1047, 1048-49 (3d Cir.1971). The FTCA mandates that " [a]n action shall not be instituted upon a claim against the United States ... unless the claimant shall have first presented the claim to the appropriate ...

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