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Barr v. United States

March 17, 2009

JESSAYLYN BARR, INDIVIDUALLY AND BY HER PARENT, JENNIFER BARR, AND JENNIFER BARR, INDIVIDUALLY, PLAINTIFFS,
v.
UNITED STATES OF AMERICA, FENCE CRETE AMERICA, INC., TURF CARE LANDSCAPING, INC. DEFENDANTS.



The opinion of the court was delivered by: Elaine E. Bucklo United States District Judge

MEMORANDUM OPINION AND ORDER

On October 23, 2004, Jessalyn Barr, then five years old and living with her family on the Great Lakes Naval Base in Great Lakes, Illinois, was severely injured when a portion of a concrete wall bordering an open field near her home fell onto and crushed her head. On October 17, 2006, Jessalyn and her mother, Jennifer, brought this action to recover for injuries they sustained as a result of the accident. Among other claims, plaintiffs assert a claim for relief against the United States ("defendant") pursuant to the Federal Tort Claims Act, 28 U.S.C. §2671 et seq. ("FTCA"), alleging that Jessalyn's injuries resulted from negligence on the part of the United States. Plaintiffs' first amended complaint asserts that the United States: a) failed to properly repair and maintain the concrete wall; b) failed to inspect or have a proper inspection in place to detect the unreasonable and dangerous condition of the concrete wall; c) failed to warn the general public, including Jessalyn Barr, of the dangerous and defective condition of the concrete wall; d) failed to properly inspect the concrete wall to determine whether said wall conformed to the required specifications necessary for that type of wall; e) failed to barricade said concrete wall to prevent individuals, including Jessalyn Barr, from coming near the wall while it was in its dangerous and defective condition; and f) allowed the concrete wall to remain in a hazardous, dangerous, and unsafe condition.

The United States has brought a motion for summary judgment seeking to dispose of plaintiffs' putative negligent selection, negligent oversight,*fn1 and police response claims. For the reasons discussed below, the motion is granted in part.

I.

The facts of this case are not in dispute. In fact, neither party responded to the other's Local Rule 56.1 statement of material facts.*fn2 Accordingly, all of the facts set forth in their respective L.R. 56.1 filings are deemed admitted. Espinoza v. Northwestern University, 105 Fed.Appx. 113, 114 (7th Cir. 2004) (statements not controverted deemed admitted, provided they are supported by the record).

In February of 1998, after engaging in a competitive selection process, the United States Navy hired defendant Turf Care, Inc., the lowest bidder, to install a plastic perimeter fence around two Navy housing villages. Later that year, in response to neighborhood safety concerns, the Navy decided to install a concrete barrier fence along one portion of the perimeter, and to make completion of the concrete fence a priority. The Navy did not solicit competitive bids for the concrete fence project but contracted with Turf Care to undertake the project as a modification to the earlier, plastic fence project.

The contract specifications for the concrete barrier project provided that Turf Care was responsible for submitting a detailed quality control plan, which required the Navy's approval prior to the start of work. Defendant's L.R. 56.1 Statement of Material Facts ("SMF"), Exh. K at section 01450 p. 2. After approval, "[t]he Contracting Officer [i.e., the Navy] reserves the right to require changes in the QC Plan and operations as necessary to ensure the specified quality of work." Id. The specifications also included detailed requirements, incorporating criteria set forth in various American Society for Testing and Materials (ASTM) publications, relating to the materials to be used. Id. at section 01450 page 1.

In a pre-construction conference attended by Navy personnel (including project manager Sandy Ginalski and construction representatives Sue Smith and John Pflug*fn3 ) and Turf Care employees (including vice president and project manager George Lytle and project superintendent Ronald Blalock*fn4 ), detailed contract administration procedures were set forth. According to these procedures, "the contractor (i.e., Turf Care) shall maintain an adequate inspection system, to ensure that work conforms to contract requirements." Def.'s SMF, Exh. J at 9. Pre-installment meetings were also held, at which Navy representatives discussed and approved the methods and materials to be used.

During the installment phase of the project, Turf Care was responsible for day-to-day operations, and the United States did not communicate with laborers, provide equipment, or dictate the means and methods of installation. John Pflug was onsite daily, however (except during a short medical leave), and Sue Smith visited the site three days a week. Both Pflug and Smith inspected the installation to ensure it was being carried out in accordance with the project plans and specifications. Both testified that they inspected the materials prior to their use. Pflug also testified that during his inspections, he measured the depths of the holes dug for the footings of the fence and confirmed that they were consistent with the specifications. In addition to Pflug's and/or Smith's daily site inspections, weekly meetings were held between Navy representatives and Turf Care representatives to discuss any issues that arose.

Turf Care subcontracted with defendant FenceCrete to obtain the pre-cast concrete panels that were used in the construction of the fence. The United States had no contractual relationship with FenceCrete. Although the parties are silent in their briefs as to how FenceCrete was chosen to provide the fence materials, there is evidence in the record to suggest that the United States chose FenceCrete to be Turf Care's subcontractor. In an undated Quality of Life Point Paper, Lieutenant Ralph Ingraham, Chairman of the QOL*fn5 Housing Committee, set forth a proposal for installing a solid barrier in the area posing safety concerns. He stated:

NTC*fn6 Housing engineers contacted their equivalents at Maxwell [Air Force Base] and learned that the installation cost, done by Fencrete (sic) America (see enclosure (1)) was approximately $62 per foot. The fencing is made entirely of concrete, pre-cast posts that allow pre-cast panels to slide into grooves. The length along the 24th Street border is 1,240 feet, therefore, the estimated cost, if installation cost is the same as Maxwell AFB, would be approximately $77,000. This cost will increase if the existing 10-foot fence is to be removed.

Def.'s SMF, Exh. E. The Quality of Life paper concludes with the recommendation to install an 8-foot solid barrier at the identified location, based on the "example" at Maxwell Air Force Base. Id. A reasonable inference is that the United States decided to use FenceCrete based on Maxwell's experience and the information provided by Maxwell's housing engineers.

Even more forceful evidence that the United States was responsible for FenceCrete's selection is a letter dated April 27, 1999 from George Lytle of Turf Care to Sandy Ginalski. In that letter, Lytle requests an increase in the contractual amount Turf Care would receive for the project to compensate for additional labor costs occasioned by defective material provided by FenceCrete. Lytle states, "[s]ince the manufacturer, Fencecrete America, is the company that the Navy insisted that we purchase the product from, we feel the Navy should compensate Turf Care Landscaping for additional labor costs..." (emphasis added) Plaintiffs' SMF, Exh. F.

John Pflug indeed became aware, during installation, of defects in the materials obtained from FenceCrete, such as chips in the concrete and roughness of the posts. He concluded, however, that the problems were not structural. Smith testified that she cannot recall whether at the time of installation, she believed the fence was being installed properly. Her testimony on what she would have done had she concluded that it was not being installed properly is muddled: she first stated that she probably would have done nothing and ...


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