Sutton v. Earles, s. 92-55548
| Decision Date | 03 June 1994 |
| Docket Number | 92-55551,92-55549,92-55564 and 92-55578,Nos. 92-55548,s. 92-55548 |
| Citation | 26 F.3d 903 |
| Parties | Robert SUTTON; Marlene Sutton, Plaintiffs, v. Virl EARLES, Third-Party-Defendant-Appellee, v. UNITED STATES of America, Defendant-Third-Party-Plaintiff-Appellant. Stephen BRENNAN, Plaintiff, v. Virl EARLES, Third-Party-Defendant-Appellee, v. UNITED STATES of America, Defendant-Third-Party-Plaintiff-Appellant. Ernest E. CHAVEZ; Carol Kemble; Terez UJJ, Individually and as Representative of the Estate of John Bakos; Robert D. Hulings et al., Plaintiffs-Appellees, v. UNITED STATES of America, Defendant-Third-Party-Plaintiff-Appellant. Ernest E. CHAVEZ; Carol Kemble; Terez UJJ, Individually and as Representative of the Estate of John Bakos; Robert D. Hulings et al., Plaintiffs-Appellees, v. UNITED STATES DEPARTMENT OF DEFENSE; United States Department of the Navy; United States Army Corps of Engineers; United States Coast Guard, Defendants-Appellants. Virl EARLES, Plaintiff-Appellee, v. UNITED STATES of America, Defendant-Appellant. Stephen BRENNAN, Plaintiff-Appellee, v. Virl EARLES, Third-Party-Defendant-Appellee, v. UNITED STATES of America, Defendant-Third-Party-Plaintiff-Appellant. Marie KATZ, Individually, and as Personal Representative of the Estate of Ronald Flem Meyers, Deceased, Plaintiff-Appellee, v. Virl EARLES, Third-Party-Defendant, v. UNITED STATES of America, Defendant-Third-Party-Plaintiff-Appellant. to 92-55580. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Dennis P. Gauhan, Gauhan and King, Long Beach, CA, for plaintiffs and appellees Marie Katz, individually and as the personal representative of Ronald Flem Meyers.
Neal Hirschfeld, Greenspoon, Marder, Hirschfeld & Rafkin, Fort Lauderdale, FL, for plaintiffs and appellees Carol Kemble, Ernest E. Chavez, Estelle Schmid, individually and as representative of the Estate of Kathy Weaver, Roberta Hulings, individually and as representative of the Estate of Patricia Hulings, Terez UJJ, individually and as representative of the Estate of John Bakos, and Robert Weaver, individually.
Martin Stein, Robert A. Olson, Greines, Martin, Stein & Richland, Beverly Hills, CA, for plaintiffs and appellees Ernest Chavez, Carol Kemble, Marie Katz, individually and as representative of the Estate of Ronald Flem Meyers, Roberta Hulings, individually and as representative of the Estate of Patricia Hulings, Terez UJJ, individually and as representative of the Estate of John Bakos, Estelle Schmid, individually and as representative of the Estate of Kathy Weaver, and Marlene and Richard Sutton, as heirs of Anthony Sutton.
Mark D. Wenzel, Stone & Dolinger, Los Angeles, CA, Martin Stein, Robert A. Olson, Greines, Martin, Stein & Richland, Beverly Hills, CA, for plaintiffs and appellees Marlene and Richard Sutton, as heirs of Anthony Sutton.
Appeal from the United States District Court for the Central District of California.
Before: TANG, CANBY, and BEEZER, Circuit Judges.
Opinion by Judge CANBY.
The plaintiffs are four survivors and the representatives of five deceased victims of an allision between a pleasure boat and a Navy mooring buoy. They obtained a judgment against the United States in this negligence action brought under the Suits in Admiralty Act ("SIAA"), 46 U.S.C.App. Secs. 741-752 (1988). In a prior appeal, we held that the discretionary function exception set forth in the Federal Tort Claims Act should be read into the SIAA. Earles v. United States (Earles I), 935 F.2d 1028, 1032 (9th Cir.1991). We vacated the judgment and remanded for a determination whether the government's actions and omissions in this case fell within the discretionary function exception, thus precluding liability on the part of the United States. The district court found the exception inapplicable, and the United States appeals. 1 The government further challenges the district court's negligence findings, as well as the amount, type and manner of calculation of the damage awards. We AFFIRM in part, REVERSE in part and REMAND.
The facts of the accident giving rise to this action are set forth more fully in our prior opinion, Earles I, 935 F.2d at 1029-30. Five people died and four people were injured when a pleasure craft, the WHISKEY RUNNER, operated by Virl Earles, ran into a mooring buoy designated "Oscar 8" within the waters of the United States Naval Weapons Station in Huntington Harbor, California. The district court found both the government and Earles to have been negligent and judged each to be responsible for fifty percent of the losses caused by the allision.
The district court based its finding of government negligence upon the following acts and omissions: (1) the government permitted the development of Huntington Harbor with the understanding that pleasure boaters would traverse the Weapons Station, yet did not take precautions to monitor the safety of such boaters; (2) the government failed to maintain a system of permits for boaters within the Weapons Station as "required" by federal regulations; (3) the government had abandoned its previous policy of briefing boaters on the rules and regulations for transit within the Weapons Station waters and of issuing permits to boaters for use of those waters--a policy that had ensured that boaters in the harbor were competent; (4) the government should have known that boaters in the Weapons Station would be minimally qualified to operate their craft because California requires nothing more than an automobile license for boat operators; (5) the government should have foreseen that intoxicated boaters would traverse the Weapons Station waters and it had a duty to take reasonable actions to protect the harbor users; (6) the government did not mark the speed limit in the harbor adequately in that the speed limit signs were not lighted and did not indicate adequately the area in which the speed limit applied; (7) the government failed to illuminate Oscar 8, an obstacle to navigation; (8) the government abandoned an earlier system that provided easy access to information regarding the Weapons Station--a system that enabled boaters to familiarize themselves with the facility.
The government challenges the negligence finding on the grounds that: (1) all of its actions fall within the discretionary function exception to the SIAA's waiver of sovereign immunity; (2) even if the exception does not apply, the government owed no duty to plaintiffs; (3) even if the government owed a duty to plaintiffs, the district court's finding of negligence was clearly erroneous.
We review de novo the district court's determination that the actions and omissions of the government in this case fall outside the scope of the discretionary function exception. Kennewick Irrigation Dist. v. United States, 880 F.2d 1018, 1021 (9th Cir.1989). The discretionary function exception is a qualification on the federal government's general waiver of sovereign immunity for tort claims and is explicitly codified within the Federal Tort Claims Act ("FTCA"). Pursuant to the exception, the government retains sovereign immunity from suit for "[a]ny claim ... based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused." 28 U.S.C. Sec. 2680(a).
[We] apply a two-step test for determining whether the discretionary function exception applies. We must first consider whether the action is a matter of choice for the acting employee. The discretionary function exception will not apply when a federal statute, regulation, or policy specifically prescribes a course of action for an employee to follow. If the challenged conduct does involve an element of judgment, our second step is to determine whether that judgment is of the kind that the discretionary function exception was designed to shield. To be shielded the judgment must be grounded in social, economic, and political policy.... We must examine separately [each claimed negligent act].
Kennewick, 880 F.2d at 1025 ().
The government challenges the district court's determination that the discretionary function exception does not apply to the omissions of the government regarding programs designed to train and issue permits to boaters that use the harbor--elements of negligence one through five and eight of the district court's decision, laid out above. We agree with the government that the discretionary function exception encompasses certain of its omissions.
The first question is whether the decision to enforce boater regulations or not was discretionary at all. As the district court recognized, the discretionary function exception does not protect the government when it elects not to perform a duty that a statute or regulation requires it to perform. See Berkovitz v. United States, 486 U.S. 531, 536, 108 S.Ct. 1954, 1958, 100 L.Ed.2d 531 (1988). In such a case, the government "employee has no rightful option but to adhere to the directive," and there is no discretion for the exception to protect. Id. The plaintiffs argue that the regulations of the Corps of Engineers set forth in the margin 2 impose a mandatory duty on the Navy to enforce a system of boater regulation.
Whether these regulations imposed a mandatory duty upon the Weapons Station Commander is essentially a question of statutory interpretation; we conclude that they did not. There is no question that the regulations impose a number of duties on those who operate private watercraft: their craft must be registered and documented; they must follow prescribed routes; they must obey all posted signs and instructions; and so on. 33 C.F.R. Sec. 204.195(b)(1), (6), and (11)....
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