Bragg v. U.S., Civ.A. 496CV138LN.

Decision Date02 April 1999
Docket NumberNo. Civ.A. 496CV138LN.,Civ.A. 496CV138LN.
PartiesKatie M. BRAGG, Individually, Richard Lamar Bragg, Candice Bragg Walters and Katie M. Bragg, Administratrix of the Estate of Richard J. Bragg, Plaintiffs, v. UNITED STATES of America and Kirk Voich Gist, Inc., Defendants.
CourtU.S. District Court — Southern District of Mississippi
55 F.Supp.2d 575
Katie M. BRAGG, Individually, Richard Lamar Bragg, Candice Bragg Walters and Katie M. Bragg, Administratrix of the Estate of Richard J. Bragg, Plaintiffs,
v.
UNITED STATES of America and Kirk Voich Gist, Inc., Defendants.
No. Civ.A. 496CV138LN.
United States District Court, S.D. Mississippi, Eastern Division.
April 2, 1999.

Page 576

Charles W. Wright, Jr., Palmer, Wright & Williamson, Meridian, MS, for plaintiff.

David N. Usry, U.S. Attorney's Office, Jackson, MS, Thomas W. Tyner, Aultman, Tyner, Ruffin & Yarborough, Ltd., Hattiesburg, MS, John L. Low, IV, Watkins & Eager, Jackson, MS, John Richard Barry, Lee Thaggard, Bourdeaux & Jones, Meridian, MS, for defendant.

MEMORANDUM OPINION AND ORDER

TOM S. LEE, Chief Judge.


Defendants United States of America and Kirk Voich Gist, Inc. have separately moved for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. Plaintiffs Katie M. Bragg, Richard Lamar Bragg and Candice Bragg Walters have responded in opposition to the motions and the court, having considered the parties' memoranda of authorities, together with attachments, concludes, for reasons which follow, that the United States' motion is due to be granted, but that Kirk Voich Gist's motion, except as it relates to plaintiffs' strict products liability claim, should be denied.

Plaintiffs' Complaint:

On December 28, 1994, while working for his employer, UNC Aviation Services, at an aircraft painting facility located at the Naval Air Station in Meridian, Mississippi, Richard Bragg was killed when one of the swinging hangar doors closed on him, crushing him between the door and door jamb. Mr. Bragg's widow, Katie M. Bragg, individually and as administratrix of his estate, along with his children, Richard Lamar Bragg and Candice Bragg Walters, filed this wrongful death suit against the United States of America, which had contracted for the design and construction of the hangar facility in question and which owned the facility, and against Kirk Voich Gist, Inc., the architect/engineering firm which designed the facility in question,

Page 577

including the hangar door which killed their decedent. Plaintiffs' claims against the United States, for negligence in the design of the hangar door and failure to maintain the premises in a reasonably safe condition by failing to warn of the dangers posed by the hangar door, are asserted under the Federal Tort Claims Act (FTCA), 28 U.S.C. § 1346(b), 2671-80; their causes of action against Kirk Voich Gist, Inc., (KVG), are based on theories of negligence and strict liability relating to the allegedly defective design of the hangar door.

The Facts:

The Meridian Naval Air Station (NAS) is a training facility for Navy pilots, which is owned and controlled by the United States Government. The "corrosion control facility" (or CCF) where Mr. Bragg was killed is among the maintenance buildings at the Meridian NAS, and was used for "touch-up" painting of military aircraft, particularly the T-45 jets flown by the pilots at the Meridian NAS.

The CCF, as designed by KVG pursuant to its contract with the Department of the Navy, is a three-bay hangar. The jet entrance to each bay is controlled by a massive, electrically powered air-plenum door that is five-feet thick, approximately twenty feet tall and forty-five feet wide, and weighs several tons.1 The doors swing to open and close, moving slowly, at a rate of only about fifteen to twenty feet per minute, or three to four inches per second. At the time of the accident which resulted in Mr. Bragg's death, the doors to the hangar were operated with spring-loaded joystick controls which were mounted on the door. A set of controls was mounted on the interior and exterior faces of the door, inches from the leading edge of the door and about four feet above the ground. Each door could be closed only with the interior joystick and opened only with the exterior joystick and, the doors were designed with the spring-load feature so that the door would stop immediately once the joystick was released. Whenever the door was engaged, a rotating beacon and klaxon horn were activated and continuously annunciated while the door was in motion.

In March 1994, following construction of the CCF by Whitsell-Green, Inc.,2 the Navy accepted the facility, and UNC, a civilian company that the Navy had contracted to perform corrosion control maintenance on its aircraft, immediately began work at the facility. Mr. Bragg had been employed by UNC since 1990 and worked at the CCF up until the time of his death on December 28, 1994. On that date, Bragg's body was found by a co-worker around 2:30 p.m. with his head and left shoulder inside the hangar bay, his neck resting on the interior joystick and holding it in a "close" position.

Though there were no witnesses to the accident, plaintiffs theorize that Mr. Bragg had opened the door slightly, just enough to squeeze though and, while attempting to pass through the opening between the door and the door jamb, tripped and fell, landing on the joystick control and activating the door. They believe the door closed on him before he was able to push himself off of the joystick control.

THE UNITED STATES' MOTION:

The Discretionary Function Exception

Plaintiffs' principal claim against the United States is that the hangar door of the CCF was negligently designed because

Page 578

it had joystick controls rather than push-button controls, and because the controls were located near the leading edge of the door rather than a "safe distance" from the pinch point created where the door edge and door jamb met. They also charge that the Navy's failure to warn of the dangers of the hangar doors constituted a breach of its duty to maintain its premises in a reasonably safe condition. In its motion, the United States argues that this court lacks subject matter jurisdiction because the design and maintenance of the CCF was a discretionary function of the Navy and therefore, claims pertaining to the design and maintenance of the CCF are barred pursuant to the discretionary function exception of the Federal Tort Claims Act.

The United States, as sovereign, "is immune from suit save as it consents to be sued ... and the terms of its consent to be sued in any court define that court's jurisdiction to entertain the suit." Linkous v. United States, 142 F.3d 271, 275 (5th Cir. 1998) (quoting United States v. Mitchell, 445 U.S. 535, 538, 100 S.Ct. 1349, 1351, 63 L.Ed.2d 607 (1980)). Thus, the doctrine of sovereign immunity bars suit against the Government unless there has been a clear and unequivocal waiver by the Government of its sovereign immunity. Boehms v. Crowell, 139 F.3d 452, 462 (5th Cir.1998).

The FTCA represents such a clear and unequivocal waiver of the United States' sovereign immunity with respect to suits against the government based on alleged negligent acts and omissions of its employees;3 that waiver is limited, however, and does not extend to any claim against the government which is "[b]ased on the exercise or performance or the failure to perform a discretionary function or duty on the part of the federal agency or employee of the Government, whether or not the discretion involved be abused." 28 U.S.C. § 2680(a).4 This exception, known as the "discretionary function exception," is said to "mark[ ] the boundary between Congress' willingness to impose tort liability upon the United States and its desire to protect certain governmental activities from exposure to suit by private individuals." United States v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797, 808, 104 S.Ct. 2755, 2761-62, 81 L.Ed.2d 660 (1984). See also Berkovitz v. United States, 486 U.S. 531, 536-37, 108 S.Ct. 1954, 1958-59, 100 L.Ed.2d 531 (1988) (exception represents Congress's desire to prevent "judicial `second-guessing' of legislative and administrative decisions ground in social, economic, and political policy through the medium of an action in tort.").

In Baldassaro v. United States, 64 F.3d 206 (5th Cir.1995), the Fifth Circuit, summarizing the contours of the exception as recast by the Supreme Court in United States v. Gaubert, 499 U.S. 315, 111 S.Ct. 1267, 113 L.Ed.2d 335 (1991), stated that in order for the exception to apply, two requirements must be satisfied: The challenged act must have involved an element of judgment or choice, and it must be based on considerations of public policy. Baldassaro, 64 F.3d at 208. The court explained:

The exception covers only acts that "involv[e] an element of judgment or choice;" thus, "`it is the nature of the conduct, rather than the status of the actor,' that governs whether the exception applies." As the purpose of the exception is to "`prevent judicial "second guessing" of legislative and administrative decisions grounded in social, economic and political policy through the medium of an action in tort,'" it "`protects

Page 579

only governmental actions and decisions based on considerations of public policy.'"

Id. (quoting Gaubert, 499 U.S. at 323, 111 S.Ct. at 1273).

Regarding the element of "discretion," the Court in Gaubert held that the exception will not apply when a federal statute, regulation, or policy specifically prescribes a course of action for the Government to follow, for in that circumstance, there is no "element of choice" as the Government "has no rightful option but to adhere to the directive." United States v. Gaubert, 499 U.S. at 322, 111 S.Ct. at 1273 (1991) (quoting Berkovitz v. United States, 486 U.S. 531, 536, 108 S.Ct. 1954, 1958, 100 L.Ed.2d 531 (1988)). If, on the other hand, the controlling statutes, regulations and administrative policies do not mandate a particular course of action, then the government's decisions on such matters involve an exercise of discretion. Baldassaro, 64 F.3d at 208. As to the "public policy" aspect of the exception, the Court held, and Baldassaro...

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