UNITED STATES COURT OF APPEALS For the Fifth Circuit

No. 95-50310 Summary Calendar

ARTURO GARDEA,

Plaintiff-Appellant,

VERSUS

UNITED STATES OF AMERICA,

Defendant-Appellee.

Appeal from the United States District Court For the Western District of Texas (EP-93-CV-320) November 6, 1995

Before DAVIS, BARKSDALE and DeMOSS, Circuit Judges.

PER CURIAM:*

BACKGROUND

Appellant Arturo Gardea, an employee of Rudy G. Construction

Company, was injured while working on a project at the federal

prison camp (FPC) in El Paso, Texas. As part of an extensive

remodeling plan, the FPC, through the Bureau of Prisons, hired Rudy

* Local Rule 47.5 provides: "The publication of opinions that have no precedential value and merely decide particular cases on the basis of well-settled principles of law imposes needless expense on the public and burdens on the legal profession." Pursuant to that Rule, the Court has determined that this opinion should not be published. G. Construction to install roofs on barracks that had been provided

to the camp by the United States Army. While in the course and

scope of his employment, Gardea slipped from the roof of a building

and fell two stories to the ground.

Gardea filed a claim with the Federal Bureau of Prisons for

damages arising out of his fall, and the Bureau denied the claim.

Gardea then filed suit against the United States pursuant to the

Federal Tort Claims Act (FTCA). He alleged that the FPC officials

failed to ensure that he had a safe work environment, that proper

safety equipment was available, and that his employer used proper

safety equipment.

The United States filed a motion to dismiss or, in the

alternative, for summary judgment. The Government argued that,

under the FTCA, it had no duty as the owner of the property under

either federal or Texas law to ensure Gardea's safety. The

Government argued that it could assume that Rudy G. Construction

would exercise reasonable prudence in the performance of its work.

The Government also argued that it did not exercise any direct or

indirect control over the tasks performed by Rudy G. Construction,

other than to ensure that the technical requirements of the

contract were being met.

In his opposition, Gardea argued that the FTCA's independent

contractor exception did not apply and that, under Texas law, the

Government owed him a duty to keep the construction site in a safe

condition. Gardea argued that the Government retained some control

over the construction project and, as a result, that it was liable

2 for Gardea's injuries. Alternatively, Gardea argued that there was

a genuine issue of material fact regarding the amount of control

exercised by the Government over Rudy G. Construction which would

give rise to the duty.

The Government submitted a letter brief in reply to emphasize

that, because of its lack of control over Rudy G. Construction, it

was not liable to Gardea under the FTCA and did not owe any duty to

Gardea under state law. Gardea responded to the Government's

letter brief, urging the court to deny the motion because there are

genuine issues of material fact as to the extent of control that

the Government exercised over the construction site and Rudy G.

Construction.

The district court granted summary judgment in favor of the

Government. The court determined that the Government did not

exercise a sufficient degree of control over Rudy G. Construction

to establish an agency relationship and therefore to impute

liability under either federal or state law.

Gardea timely appealed.

OPINION

This Court reviews a grant of summary judgment de novo.

Abbott v. Equity Group,

(5th Cir. 1993), cert.

denied,

(1994). A grant of summary judgment is

appropriate if there is "no genuine issue as to any material fact"

and "the moving party is entitled to judgment as a matter of law."

Fed. R. Civ. P. 56(c).

3 The United States as a sovereign is immune from suit except

as it has consented to suit. Williamson v. United States Dep't of

Agric.,

(5th Cir. 1987). The Federal Tort Claims

Act (FTCA),

et seq., is a limited waiver of

sovereign immunity making the United States Government liable to

the same extent as private parties for certain torts of federal

employees acting within the scope of their employment. United

States v. Orleans,

(1976);

(b).

The United States' statutory consent to suit does not extend to the

acts of independent contractors, but only to the acts or omissions

of federal employees. Orleans,

; Logue v. United

States,

(1973); Broussard v. United States,

(5th Cir. 1993).

The Government may be liable, however, for the breach of a

duty owed to the employees of an independent contractor. Lathers

v. Penguin Indus., Inc.,

(5th Cir. 1982). Although

state law governs this inquiry, the focus of the inquiry is the

same under either federal or Texas state law: the degree of

control exercised by the Government over the contractor. Id.; see

Broussard,

; Redinger, 689 S.W.2d at 418.

Ordinarily, "an owner or occupier does not have a duty to see

that an independent contractor performs work in a safe manner."

Redinger, 689 S.W.2d at 418. However, when an owner or general

contractor "exercises some control over a subcontractor's work he

may be liable unless he exercises reasonable care in supervising

the subcontractor's activity." Id. The control must be more than

4 the general right to order the work to start or stop, to inspect

the progress of the work or receive reports, to make suggestions or

recommendations, or to prescribe alterations and deviations. Id.;

see also Davis v. R. Sanders & Assocs. Custom Builders Inc.,

(Tex. Ct. App. 1995). "The general contractor must

retain enough right of supervision over the manner of the work that

the subcontractor is not entirely free to do the work in his own

way." Davis,

.

There is no dispute that the Bureau of Prisons contracted with

Rudy G. Construction to install metal roofs on three barracks at

the FPC, that Gardea was an employee of Rudy G. Construction, and

that Gardea was acting within the course and scope of his

employment when he fell. Under the contract, Rudy G. Construction

provided the materials, supplies, labor, tools, and equipment. It

also provided safety equipment such as safety belts; its employees

were responsible for their own hard hats and safety goggles. Rudy

G. Construction, not the Government, hired, supervised, and paid

Gardea. The Government did not train Gardea. Rudy Gonzalez, owner

of Rudy G. Construction, testified that he considered it his

responsibility to provide the safety equipment to Gardea and to

ensure that he used it. Accordingly, the Government has satisfied

its initial burden of informing the court of the basis for its

motion and identifying those portions of the record which it

believes demonstrate the absence of a genuine issue of material

fact and that it is entitled to judgment as a matter of law.

Celotex Corp. v. Catrett,

(1986).

5 The burden now shifts to Gardea who must identify specific

evidence in the record demonstrating that there is a material fact

issue for trial. Anderson v. Liberty Lobby,

(1986). He may not rest upon mere allegations or denials in the

pleadings, but must designate specific facts showing the existence

of a genuine issue for trial.

. The mere allegation

of a factual dispute between the parties will not defeat an

otherwise properly supported motion for summary judgment.

.

Gardea relies upon Redinger and Pollard v. Missouri Pac. R.R.

Co.,

(Tex. 1988), to argue that the Government

exercised such control over the work site so as to owe a duty of

care to Gardea. Gardea cites the Government's control over the

access to the construction site, its right of inspection at the

completion of the contract, and the "daily vigil" of the project by

the project manager, James Spindler.

Neither Redinger nor Pollard are applicable. In Redinger, the

general contractor ordered the dirt-hauling subcontractor to move

the dirt so that the concrete trucks could enter the work site.

Redinger, 689 S.W.2d at 417. Redinger, an employee of the plumbing

subcontractor, was working within a few feet of the backhoe charged

with moving the dirt. Redinger was injured when the blade of the

backhoe crushed his finger. The court concluded that there was

sufficient evidence to find that the general contractor was

negligent in allowing the backhoe to operate while Redinger was

working in the area and in failing to warn Redinger. In Pollard,

6 the Texas Supreme Court held that the contractual right of control

gives rise to the duty expressed in Redinger. Pollard,

. Missouri Pacific retained (1) control over the completion

time of the project, (2) authority to specify which poles were to

be removed, (3) authority to specify insurance coverage, and (4)

control over access and storage of materials involving its right-

of-way.

Gardea offers no evidence that the Government contractually

retained the right of control as to, or otherwise directed, the

manner in which Rudy G. Construction or Gardea renovated the roof.

Rudy G. Construction and its employees were free to devise their

own plan, according to their own equipment. Gardea's injury arose

out of the nature of the work rather than as a result of some

danger present on the premises. See Staublein v. Dow Chemical Co.,

(Tex. Ct. App. 1994). In Staublein, ARA

Services, Inc. contracted with Dow Chemical to provide cafeteria

service to Dow's employees.

. Staublein, an employee of

ARA, was injured when a milk crate he was standing on in the

freezer slipped out from under him.

Finding that Dow owed no

duty to Staublein, the court explained that his

injury arose out of an activity conducted in the course and scope of his employment with ARA Services, not from a hidden danger existing on the premises. The activity that allegedly caused [him] harm was the very sort of activity a food service provider would be expected to perform, i.e., working with food in the freezer. The method that [Staublein] chose to reach the higher shelves in the freezer was not under the direct or indirect control of [Dow Chemical]; and arose out of the work activity of [Staublein] or his employer.

7

; see also Shell Chem. Co. v. Lamb,

(Tex. 1973). Much like Staublein, Gardea's injury arose out of his

work as a roofer. The Government did not control the day-to-day

work on the roof or instruct Gardea about his job.

Gardea notes that the contracting officer testified that both

she and Spindler had the right to stop subcontractors who were in

violation of federal safety laws. Such authority does not suggest

control over the details of the work: "a requirement that work be

performed in accordance with all applicable laws and safety

regulations is, like a requirement that work be performed in a good

and workmanlike manner, a requirement pertaining to the results of

the work, not the details of performance." Davis,

.

Gardea has not identified specific evidence in the record

demonstrating that there is a material fact issue for trial as to

the extent of the Government's control over Rudy G. Construction.

Because the Government did not exercise control over the operative

details of the construction project, there was no duty under Texas

law to maintain a safe work environment for Gardea. Accordingly,

the judgment of the district court is

AFFIRMED.

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