United States District Court, W.D. Louisiana, Lake Charles Division
MAGISTRATE JUDGE KAY
D. CAIN, JR. UNITED STATES DISTRICT JUDGE.
the court is a Motion to Dismiss or, in the alternative,
Motion for Summary Judgment [doc. 11] filed by defendant, the
United States of America ("government"), in
response to the complaint filed by plaintiff Mona Curl under
the Federal Tort Claims Act ("FTCA"), 28 U.S.C.
§ 2671 et seq. Plaintiff opposes the motion.
suit arises from injuries allegedly sustained by plaintiff on
the premises of a United States Postal Service
("USPS") building, known as the Moss Bluff Station,
in Calcasieu Parish, Louisiana. Doc. 1. The building was
leased to USPS by Finley L. Ponthie, LLC
("Ponthie") under a fixed term lease first
effective from 1998 to 2013 and renewed through June 25,
2018. Doc. 11, art. 4, ¶¶
2-4. The lease contains a maintenance rider, under
which Ponthie is responsible for maintaining the premises
"in good repair and tenantable condition."
Id. at p. 16. USPS is required to give Ponthie
written notice whenever a need for maintenance or repair
under the rider arises. Id.
28, 2017, USPS reported a leak in the roof at the Moss Bluff
Station through a call to the USPS Facilities Management
System. Doc. 11, att. 5, p. 2. Upon review it was determined
that the landlord had responsibility, and a letter was sent
to Ponthie on August 2, 2017. Id.; doc. 11, att. 6.
Ponthie responded that he had contracted with Harmon
Construction for the work, and that roof replacement would
begin the week of September 20, 2017. Doc. 11, att. 5, pp.
alleges that she was struck in the head by a pair of vice
grip pliers while exiting the Moss Bluff Station on September
29, 2017, and that these pliers fell from the roof after
slipping out of a roofer's hand. Id. at ¶
3. She submitted an administrative tort claim to USPS, which
was denied. Doc. 16, atts. 1 & 2. She then filed suit
against the government in this court, seeking monetary
damages under the FTCA. Doc. 1.
government now moves for dismissal, asserting that the
FTCA's waiver of sovereign immunity does not extend to
the claims asserted here and so this court lacks subject
matter jurisdiction over the FTCA claims. Doc. 11, att. 1. In
the alternative, it maintains that it is entitled to summary
judgment on plaintiffs premises liability and negligence
claims. Id. Plaintiff opposes the motion, arguing
that she has a viable claim against the government for
negligence regardless of whether it owned the building or
hired the roofing contractor. Doc. 13. She has also amended
her complaint twice, to join Ponthie and Rich Harmon, doing
business as Harmon Construction, and to refine her
allegations based on information produced by the government
under this motion. Docs. 16, 24.
Law & Application
FTCA operates as a waiver to the United States' sovereign
immunity and permits it to be sued in federal court.
Sutton v. United States, 819 F.2d 1289, 1292 (5th
Cir. 1987). Under this statute the government may be held
liable for certain torts committed by its employees, in
accordance with the law of the place where the act or
omission occurred. 28 U.S.C. § 2674; see, e.g.,
Longino v. U.S. Dep't of Agric, 912 F.Supp.2d 424,
429 (W.D. La. 2012). "The question of whether the United
States has waived sovereign immunity pursuant to the FTCA
goes to the court's subject-matter jurisdiction ... and
may therefore be resolved on a Rule 12(b)(1) motion to
dismiss." Willoughby v. United States ex rel. U.S.
Dep't of the Army, 730 F.3d 476, 479 (5th Cir. 2013)
is properly dismissed under Rule 12(b)(1) "when the
court lacks the statutory or constitutional power to
adjudicate [it]." Home Builders Ass'n of Miss.,
Inc. v. City of Madison, Miss., 143 F.3d 1006, 1010 (5th
Cir. 1998) (internal quotations omitted). The court has the
power to dismiss for lack of subject matter jurisdiction
based on any of the following: (1) the complaint alone; (2)
the complaint supplemented by undisputed facts evidenced in
the record; or (3) the complaint supplemented by undisputed
facts plus the court's resolution of disputed facts.
St. Tammany Par., ex rel. Davis v. FEMA, 556 F.3d
307, 315 (5th Cir. 2009). As the party asserting subject
matter jurisdiction, the plaintiff bears the burden of proof
on a 12(b)(1) motion. Willoughby, 730 F.3d at 479.
government moves for dismissal, arguing that the FTCA does
not extend the plaintiffs claims because she cannot show
negligence on the part of any government employee and because
any premises liability allegation does not give rise to a
claim under the FTCA. Plaintiff does not refute the
government's assertion that it cannot be held responsible
for Harmon's negligence. She maintains, however, that
there is liability and subject matter jurisdiction under a
theory of premises liability.
source of premises liability in Louisiana law is found in
Civil Code Articles 2317, 2317.1, and 2322. In order to
prevail, plaintiff must show: (1) the property that caused
the damage was in the defendant's custody; (2) the
property had a condition that created an unreasonable risk of
harm to others on the premises; (3) the condition was a cause
in fact of the resulting injury; and (4) the defendant had
actual or constructive knowledge of the risk. E.g.,
Fontenot v. Fontenot, 635 So.2d 219 (La. 1994). District
courts in the Fifth Circuit are split on whether the FTCA
permits claims based on state law premises liability.
Longino, 912 F.Supp.2d at 428. Courts in this
district have determined that the government can be held
liable for a premises liability claim as long as the
plaintiff shows that the unreasonable risk or unreasonably
dangerous condition was either (1) caused by the negligent or
wrongful act or omission of a federal employee, or (2) known
to a federal employee, who nevertheless failed to act.
Id. at 428-29 (citing Janice v. United
States, 2008 WL 269530, at *6 (W.D. La. Jan. 29, 2008)).
alleges that an unreasonably dangerous condition existed in
the form of Harmon conducting roof work on the Moss Bluff
Station during business hours, and that the government may be
held liable for failing to remedy this condition. In addition
to the other evidence cited above, the government provides a
sworn declaration from Kimberly Evans, a manager at the Moss
Bluff Station. Evans met with Neil Ponthie and Rich Harmon in
September 2017 at Ponthie's request, and designated an
area where Harmon could store supplies for the project. Doc.
11, att. 7, ¶ 5. She states that this was the extent of