In support of a summary judgment motion, the moving party
has the burden of showing that there is no dispute as to any
genuine issue of fact material to a judgment in its favor as
a matter of law. Cedillo v. International Assoc. of Bridge and
Structural Iron Workers, Local Union No. 1, 603 F.2d 7, 10 (7th
Cir. 1979). The non-moving party is entitled to all inferences
reasonably made in its favor from the evidence presented. Id.
at 11. Moutoux v. Gulling Auto Electric, Inc., 295 F.2d 573,
576 (7th Cir. 1961). After reviewing the evidence presented by
the parties in this case, the Court concludes that there can be
no genuine dispute that the United States is immune from suit
for the asserted negligence of the IM-C van attendants.
It is well settled that the United States cannot be sued
without its consent. United States v. Mitchell, 445 U.S. 535,
538, 100 S.Ct. 1349, 1352, 63 L.Ed.2d 607 (1980); California v.
Arizona, 440 U.S. 59, 61, 99 S.Ct. 919, 921, 59 L.Ed.2d 144
(1979). The consent relied upon by plaintiff in this action is
derived from the Federal Tort Claims Act ("FTCA"). 28 U.S.C. § 1346.
The FTCA does not, however, constitute a waiver of
sovereign immunity for the negligent acts of independent
contractors of government agencies. 28 U.S.C. § 2671. The
primary issue, therefore, is whether the IM-C van attendants,
whose alleged negligence caused the decedent's injury,*fn2
were independent contractors for the VA.
As the Supreme Court has noted in an analogous context,
there is no shorthand formula for determining whether a
particular individual is an agent or independent contractor.
N.L.R.B. v. United Insurance Co. of America, 390 U.S. 254, 258,
88 S.Ct. 988, 990, 19 L.Ed.2d 1083 (1968); Manahan v. Daily
News-Tribune, 50 Ill. App.3d 9, 13-14, 8 Ill.Dec. 659,
365 N.E.2d 1045 (1977). The self-serving characterizations of the
parties are irrelevant. The basic test to be applied in this
case is the extent to which the VA through Hines Hospital
controlled or could control the work of the IM-C attendants
involved here. See Wardle v. Central States, Southeast and
Southwest Areas Pension Fund, 627 F.2d 820, 824 (7th Cir.
1980), cert. denied, 449 U.S. 1112, 101 S.Ct. 922, 66
L.Ed.2d 841 (1981); Torrence v., Chicago Tribune Co., Inc.,
535 F. Supp. 743 (N.D.Ill. 1981).
The contract between IM-C and the VA establishes the
independent contractor status of IM-C employees. Under the
terms of that contract, the VA simply reserved the right to
furnish "technical guidance and advice or generally supervise
the work to be performed," Contract, p. 8., and the right to
"inspect and investigate" the operations of IM-C. Contract, p.
10. Although reservation of the right to supervise the work is
not irrelevant to this Court's determination, it does not
describe the kind of control necessary to establish an agency
relationship. The VA did not reserve the right to control the
day-to-day "details and means" by which the contractor's work
was to be accomplished. Wardle, supra at 824. See also Logue v.
United States, 412 U.S. 521, 528, 93 S.Ct. 2215, 2219, 37
L.Ed.2d 121 (1973). Accordingly, there is no basis on which
this Court can reasonably infer that an agency relationship
Even a cursory review of the relationship between the
parties supports this conclusion. IM-C is a separate business
entity providing ambulance service to a variety of patients
and hospitals not covered by the contract at issue here.
Government's Exhibit No. 1 Unlike most agency relationships,
this contract provides that IM-C is alone responsible for all
injuries resulting from its own negligence, Contract, pp. 8,
11, and requires IM-C to procure and maintain its own
workman's compensation, employer's
liability, general liability and automobile liability
insurance coverage. Contract, p. 12. In light of these
circumstances, there can be no genuine dispute that IM-C was
an independent contractor of the United States. Accordingly,
the United States is immune from suit on those allegations
relating specifically to the negligence of IM-C and its
Plaintiff's complaint also alleges rather vaguely that the
decedent's injury and subsequent death was proximately caused
by the VA's own failure "to properly supervise the loading of
the decedent and his wheelchair into the van." Complaint,
¶ 6.d. Treating defendant's motion on this issue as a motion to
dismiss, the Court has construed plaintiff's allegation in the
light most favorable to the plaintiff. Mathers Fund, Inc. v.
Colwell Co., 564 F.2d 780, 783 (7th Cir. 1977). Nonetheless, it
is clear that plaintiff can prove no set of facts in support of
this claim which would entitle her to the relief requested.
Cruz v. Beto, 405 U.S. 319, 322, 92 S.Ct. 1079, 1081, 31
L.Ed.2d 263 (1972).
The United States is, of course, liable for the negligence
of its own agents under the FTCA. As a matter of law, however,
the VA cannot be found negligent for its failure to supervise
the loading of the decedent into the van in the absence of a
legal duty to conduct such supervision. Plaintiff has not
alleged nor will this Court infer the existence of such a
duty.*fn4 Accordingly, defendant's motion to dismiss on this
issue must be granted.
For the foregoing reasons, defendant's motion for summary
judgment is granted with regard to the negligence of IM-C and
IM-C's employees. Defendant's motion to dismiss without
prejudice is granted with regard to the negligence of the VA
through Hines Hospital. It is so ordered.