Kasch v. United States

Background

Eugene “Gus” Newport suffered head and neck injuries while being transported from his home to a Veterans Administration medical facility. The plaintiffs—his spouse, Kathryn Ruth Kasch, and his children, Kyle Newport and Maria Mercedes Newport—alleged that Owl, Inc. negligently failed to secure Newport’s wheelchair in its van. They brought wrongful-death and personal-injury claims against the United States under the Federal Tort Claims Act.

The plaintiffs alleged that the Veterans Administration contracted with Owl to transport non-ambulatory patients and failed to adequately supervise and oversee Owl’s performance, especially patient safety. The United States moved under Federal Rule of Civil Procedure 12(b)(1), which allows dismissal for lack of subject-matter jurisdiction. The court had previously dismissed the original complaint with leave to amend because it sought to hold the United States responsible for the conduct of an independent contractor.

Retained-control theory

The court concluded that the contract between the Veterans Administration and Owl identified Owl as an independent contractor and left the manner of performing the transportation services to Owl’s discretion. The contract required Owl to provide the personnel, management, equipment, and other resources necessary for transportation, and assigned Owl responsibility for driver screening and a quality-control plan.

Although the Veterans Administration retained the right to inspect Owl’s equipment and vehicles, the evidence showed that it did not have authority to supervise transportation after patients were placed in the vehicle or to communicate regularly with Owl during transport. The plaintiffs did not submit opposing evidence to rebut those points. The court also concluded that the contract’s provisions concerning a contracting representative, safety noncompliance, and contract oversight did not give the government sufficient control over how Owl performed the work.

The court therefore rejected the plaintiffs’ theory that the United States retained contractual supervisory control sufficient to support jurisdiction. The second and fourth claims, which were based on duties allegedly retained under the contract, were dismissed with prejudice.

Peculiar-risk theory

The plaintiffs alternatively argued that California’s “peculiar risk” doctrine imposed a direct, non-delegable duty on the United States to ensure that Owl took adequate safety precautions. Under that doctrine, a person or entity that hires an independent contractor may have a duty to address a special, recognizable danger arising from the work itself.

The court held that the record was not developed enough to decide whether transporting a non-ambulatory person in a wheelchair involved a peculiar risk. That question depends on the particular facts, including whether the alleged negligence was inherent in the work or was merely a collateral detail of how the contractor performed it. The court noted that expert testimony might be needed.

Because the jurisdictional question overlapped with facts and evidence relevant to the merits, the court declined to dismiss the claims based on the peculiar-risk theory at that stage. The two negligence and wrongful-death claims based on an alleged direct non-delegable duty owed by the United States to Newport may proceed.

Other arguments and disposition

The United States made brief arguments that the discretionary-function exception to the Federal Tort Claims Act barred the claims and that the amended complaint failed to state a claim. The court declined to address those arguments because they were raised only in undeveloped footnotes.

Judge James Donato ordered that the United States’ request to dismiss be granted and denied in part. The second and fourth claims were dismissed with prejudice, while the two claims based on the alleged direct non-delegable duty may proceed. The parties were ordered to jointly file a proposed case-management schedule by April 17, 2025.