Caseflicks

Court of Appeals for the Second Circuit • 2000

Natalia Makarova v. United States

201 F.3d 110 | 2000 U.S. App. LEXIS 321

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Takeaway

In short, this case shows that FTCA jurisdiction depends on whether a private employer would be liable under local law; where workers’ compensation supplies an employee’s exclusive remedy, the federal government retains immunity from a tort suit.

Background

Natalia Makarova, a celebrated ballerina, was injured in 1982 when scenery fell on her shoulder during a performance of “On Your Toes” at the Kennedy Center in Washington, D.C. The Kennedy Center produced the show, hired its director and stage manager, paid performers, arranged bond coverage, and maintained workers’ compensation coverage. Makarova’s services were contracted for through her personal-services corporation, but she personally signed a rider agreeing to perform under the contract and Actors’ Equity rules.

Her agreement required her to play a particular role, follow a fixed rehearsal and performance schedule, use specified hair, makeup, and shoes, and provide exclusive services during the contract term. In 1984, she filed an administrative claim. In 1997, she brought an FTCA action against the United States, which owns and operates the Kennedy Center through the Smithsonian Institution.

The government moved to dismiss under Rule 12(b)(1), arguing that Makarova was a Kennedy Center employee and that workers’ compensation was therefore her exclusive remedy. The Southern District of New York agreed, finding her an employee under New York law and holding that the District of Columbia Workers’ Compensation Act barred her tort claim. Makarova appealed.

Issues

Issue #1

Whether the federal courts had subject-matter jurisdiction over Makarova’s FTCA negligence claim despite the District of Columbia workers’ compensation exclusivity rule.

Holding

No. Because Makarova was a Kennedy Center employee and a private employer could not have been sued in tort for her work-related injury under District of Columbia law, the FTCA did not waive the United States’ sovereign immunity.

Reasoning

Sovereign immunity is jurisdictional, and the FTCA supplies only a limited waiver. The plaintiff bears the burden to establish, by a preponderance of the evidence, that her claim falls within that waiver. On a Rule 12(b)(1) motion, the district court may consider evidence beyond the pleadings; the appellate court reviews factual findings for clear error and legal conclusions de novo.

The FTCA permits recovery only where the United States, if it were a private person, would be liable under the law of the place where the negligent act or omission occurred. Since Makarova was injured in Washington, D.C., District of Columbia law controlled the availability of a tort remedy.

Under the District of Columbia Workers’ Compensation Act, an employee’s remedy against her employer for a work-related injury is workers’ compensation, not a tort action. Thus, if Makarova was the Kennedy Center’s employee, she could not sue a comparable private employer in tort, and she likewise could not sue the United States under the FTCA.

Issue #2

Whether Makarova was an employee rather than an independent contractor under New York law.

Holding

Yes. The Kennedy Center exercised sufficient control over the terms and manner of her work to make her an employee under New York law.

Reasoning

New York does not apply an absolute rule distinguishing employees from independent contractors. Its principal inquiry is control: who has the right to direct what work will be done and when and how it will be performed.

The Kennedy Center controlled substantial features of Makarova’s work. It hired her to play a specified part in a particular production, required adherence to a set rehearsal and performance schedule, dictated period-appropriate hair styling, supplied required shoes and makeup, and received her exclusive services during the engagement.

Although Makarova retained meaningful artistic discretion in her own dancing and acting, the Kennedy Center and its director retained artistic control over the production and her performance within it. New York precedent also treats performing artists working under a producer’s contract, schedule, and supervision as employees.

Issue #3

Whether Makarova was an employee of the Kennedy Center under District of Columbia law.

Holding

Yes. She performed services for pay in the District of Columbia under a contract of hire and under the Kennedy Center’s control.

Reasoning

The District of Columbia statute defines an employee broadly as a person in another’s service under a written or implied contract of hire. Makarova fit that definition: she agreed to perform a defined role in “On Your Toes” for the Kennedy Center in Washington, D.C. for a specified period and compensation.

The Kennedy Center also met the statutory definition of employer because it used Makarova’s services for pay. As the show’s producer, it contracted for production rights, hired key production personnel, paid performers, and maintained workers’ compensation coverage.

The court distinguished Spackman, where an opera singer was found to be an independent contractor because the opera company did not control her performance; instead, independent-contractor stage personnel did. Here, by contrast, the Kennedy Center maintained artistic control over “On Your Toes” and over Makarova’s work, placing her in the Kennedy Center’s service.

Other evidence supported the conclusion. Makarova had previously accepted medical benefits paid by the Kennedy Center’s workers’ compensation insurer after a rehearsal injury. Conversely, scattered payroll descriptions and a modest 1099 entry did not overcome the actual employment relationship, especially because the available records were incomplete and inconsistent.