Falling Tree Limbs and the Government Contractor Defense

A bicycle rider was injured when struck by a falling limb, during tree trimming work in conjunction with a U.S. Army Corps of Engineers drainage project. The bike rider sued the contractor in Louisiana state court, and the contractor removed the case to federal court, arguing that it was performing work under the direction of a government official.

A federal district court has agreed, at least for now, that there is a sufficient nexus between the government agency, the government officials providing guidance to the contractor, and the resulting injury, to allow the contractor to assert this defense and maintain the case in federal court.

On the fateful day, the contractor “had employed an off-duty constable to direct traffic near the work area and to warn and prevent passersby from entering the dangerous work area.” The bike rider either didn’t see or ignored the traffic director and was injured by a falling branch.

The contractor argued that it was acting under direction of a federal agency, and thus entitled to the government contractor defense and the federal officer removal statute. The judge was skeptical: “nothing that the Court has seen suggests that anyone with the Corps was present . . . much less that anyone with the Corps directed [the contractor]’s conduct that day.” But the contractor’s claim was sufficiently colorable under the federal law to keep the case in federal court.

The case is Lucas v. Boh Bros. Constr. Co., 2020 U.S. Dist. LEXIS 5186 (E.D. La. Jan. 10, 2020) (subscription required).