Independent Contractor Exception
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MATTHEW LAURENCE, et al.,
DEPARTMENT OF THE NAVY; U.S.
DEPARTMENT OF HOUSING AND
URBAN DEVELOPMENT; UNITED OPINION
STATES OF AMERICA,
Appeal from the United States District Court
for the Northern District of California
D. Lowell Jensen, District Judge, Presiding
Argued and Submitted
June 14, 1995--San Francisco, California
Filed June 28, 1995
Before: Mary M. Schroeder, Robert R. Beezer,
and David R. Thompson, Circuit Judges.
Opinion by Judge Schroeder
Richard L. Bowers, The Boccardo Law Firm, San Jose, California,
for the plaintiffs-appellants.
Eva M. Plaza and Steven M. Talson, United States Department
of Justice, Washington, D.C., for the defendantsappellees.
SCHROEDER, Circuit Judge:
Plaintiffs, 250 current and past residents of the Midway
Village public housing complex in Daly City, California,
appeal the district court's grant of summary judgment to the
government in their suit under the Federal Tort Claims Act,
28 U.S.C. SS 1341(b), 2671-80. Plaintiffs sought damages for
personal injuries allegedly caused by the government in connection
with the 1944 construction of Midway Village,
national defense housing which later became a low-income
housing project. The complaint alleges that the government
negligently used soil contaminated with lampblack as landfill
for the original facility. The published district court opinion
fully discusses the suit's background and the parties' arguments.
Laurence v. United States, 851 F. Supp. 1445 (N.D.
The district court granted summary judgment to the government
on two separate and independent grounds. One ground
was that the challenged activity was performed by an independent
contractor. Id. at 1452-53. Under the FTCA, the
United States is subject to liability for the negligence of an
independent contractor only if it can be shown that the government
had authority to control the detailed physical performance
of the contractor and exercised substantial supervision over its day-to-day activities. See United States v. Orleans,
425 U.S. 807, 814-15 (1976); Letnes v. United States, 820
F.2d 1517, 1519 (9th Cir. 1987).
 We agree with the district court that the independent
contractor exception bars liability in this case. The evidence
established that the Federal Public Housing Authority
("FPHA") directed the construction of the military housing
facility for use by the U.S. Navy. The FPHA contracted with
the civilian architectural and engineering firm of Ellinger, Lee
& Mitchell ("EL&M") to do a feasibility study, and to survey,
design and construct the housing facility. Charles Lee, a name
partner in EL&M and the civil engineer in charge of the project,
testified in a 1948 eminent domain valuation proceeding
that he "signed a contract" with the United States and made
the decision to use fill.
 Lee did not testify that he made or approved the actual
decision to use the contaminated landfill. The record shows,
however, that EL&M was charged with this task. With the
exception of a letter authorization from FPHA to EL&M,
dated November 13, 1944 and authorizing EL&M to conduct
a "Survey of Subsurface Foundation Conditions, Surface
Drainage and Existing Utilities for [Midway Village]," there
is no credible evidence of governmental activity. The letter
authorization does not create a genuine issue of material fact
as to whether the government exercised the requisite
"substantial supervision" by controlling the detailed physical
performance and day-to-day work of EL&M. See Letnes, 820
F.2d at 1519. Accordingly, the independent contractor exception
bars liability in this case.
Assuming that the United States was responsible for the
decision to use contaminated fill, the district court also
decided that the government would have no liability because
of the discretionary function exception to the FTCA, 28
U.S.C. S 2680(a). See Laurence, 851 F. Supp. at 1450-52.
Because we find that the activity at issue here is governed by
the independent contractor exception, we find it unnecessary
to reach the issue of the applicability of the discretionary
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