599 F.2d 823 (7th Cir. 1979), 78-1985, Steele v. United States

Docket Nº:78-1985.
Citation:599 F.2d 823
Party Name:Jack STEELE, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.
Case Date:June 12, 1979
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

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599 F.2d 823 (7th Cir. 1979)

Jack STEELE, Plaintiff-Appellant,


UNITED STATES of America, Defendant-Appellee.

No. 78-1985.

United States Court of Appeals, Seventh Circuit

June 12, 1979

Argued April 4, 1979.

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George C. Pontikes, Chicago, Ill., for plaintiff-appellant.

Thomas P. Sullivan, U. S. Atty., Mary M. Thomas, Asst. U. S. Atty., Chicago, Ill., for defendant-appellee.

Before CUMMINGS and WOOD, Circuit Judges, and JAMESON, Senior District Judge. [*]

HARLINGTON WOOD, Jr., Circuit Judge.

The plaintiff, Jack Steele, appeals from the district court's dismissal of his complaint against the United States. The facts as revealed in the record and the briefs of the parties are as follows: According to the plaintiff's complaint, he was injured on August 15, 1975, while installing runway lights and signs on an inactive runway at O'Hare International Airport in Chicago, Illinois. While connecting wires to a transformer box, he sustained an electrical shock because the current to the box was on. Unknown to the plaintiff, an agency of the United States, the Federal Aviation Administration, operated and controlled a remote power switch regulating the flow of electricity to the transformer. The plaintiff alleges that the FAA negligently left the electric current on and negligently failed to warn the plaintiff of the remote power switch. He seeks damages for personal injuries, pain and suffering, medical expenses, and lost wages.

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The plaintiff initially commenced an action in the district court against the FAA on August 12, 1977. The district court dismissed this complaint because the plaintiff had failed to first file an administrative claim with the appropriate federal agency as required by the Federal Tort Claims Act. The plaintiff has not appealed from that dismissal. 1

On September 14, 1977, the plaintiff filed an administrative claim with the FAA which rejected it because the accident had occurred more than two years prior to the filing of the claim, See 28 U.S.C. § 2401(b), and because the claim form failed to specify a sum certain as required by Department of Justice regulations, 28 C.F.R. § 14.2 (1978). 2 The plaintiff amended the claim form to state a sum certain and resubmitted it to the FAA. On October 17, 1977, the FAA again returned the form, explaining as it had earlier, that the claim was untimely.

On January 4, 1978, the plaintiff filed his present complaint in federal district court, generally alleging that before November 1, 1975, he neither knew, nor in the exercise of reasonable diligence could have known, of the remote power switch or the control of the United States or its agents over it. On June 21, 1978, the district court granted the defendant's motion to dismiss on the ground that the claim accrued on the date of the injury, which was more than two years before the filing of a claim with the FAA. The only issue raised in this appeal is whether the two-year statute of limitation for presenting tort claims to federal agencies prevents the plaintiff from prosecuting this action. We hold that it does and affirm the judgment of the district court.

The applicable statute of limitation, 28 U.S.C. § 2401(b) provides:

A tort claim against the United States shall be forever barred unless it is presented in writing to the appropriate Federal agency within two years after such claim accrues . . . .

We note initially a matter which seems to have been assumed by the parties and which we think is implicit in the prior decisions of this court. 3 Although the liability of the government under the Federal Tort Claims Act is determined "in accordance with the law of the place where the act or omission occurred," 28 U.S.C.

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§ 1346(b), when a "claim accrues" is determined by federal law. Kossick v. United States, 330 F.2d 933 (2d Cir.), Cert. denied, 379 U.S. 837, 85 S.Ct. 73, 13 L.Ed.2d 44 (1964); Tyminski v. United States, 481 F.2d 257, 262-63 (3d Cir. 1973); Portis v. United States, 483 F.2d 670, 672 n. 4 (4th Cir. 1973); Quinton v. United States, 304 F.2d 234 (5th Cir. 1962); Jordan v. United States, 503 F.2d 620, 622 (6th Cir. 1974); Reilly v. United States, 513 F.2d 147, 148 (8th Cir. 1975); Hungerford v. United States, 307 F.2d 99, 100-01 (9th Cir. 1962), Noted in 63 Colum.L.Rev. 536 (1963); Exnicious v. United States,563 F.2d 418, 420 n. 6 (10th Cir. 1977). 4

We can do little more than restate the reasons for a federal rule given in Quinton v. United States, 304 F.2d 234 (5th Cir. 1962). Congress, by enacting a two-year statute of limitation for tort claims against the government, clearly manifested its intention to have a uniform rule defining when such claims become stale, and "(t)he simple fact is that (the) law respecting the accrual of a particular claim cannot be divorced from the . . . law fixing the period after accrual within which the plaintiff can bring suit on an accrued claim." Id. at 238. Application of the laws of the various states to determine when claims accrue would thus "permit the states to do indirectly what Congress clearly forbids them to do directly by increasing or decreasing their statutes of limitations on particular claims," Id. at 236, and would leave the government subject to diverse local rules on accrual. 5 This would undercut the policy of repose for the United States the very purpose of the two-year limitation. See Cooper v. United States, 442 F.2d 908, 912 (7th Cir. 1971).

That the question of when a claim accrues is governed by federal law does not, of course, end our inquiry since we must still determine what is the appropriate rule. 6 The Restatement of Torts provides the following general rule for when a cause of action accrues. Restatement (Second) of Torts § 899, comment C (1977). Ordinarily, a statute of limitation does not begin to run until the tort is complete, I. e., when there has been "an invasion of a legally protected interest of the plaintiff." In a negligence

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action where damage is the last...

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