659 F.Supp. 127 (W.D.Va. 1987), Civ. A. 83-0200, Fortney v. United States

Docket Nº:Civ. A. 83-0200
Citation:659 F.Supp. 127
Party Name:Fortney v. United States
Case Date:April 21, 1987
Court:United States District Courts, 4th Circuit, Western District of Virginia

Page 127

659 F.Supp. 127 (W.D.Va. 1987)

Mark Lynn FORTNEY, Plaintiff,


UNITED STATES of America, Defendant.

Esley W. TIPTON, Plaintiff,


UNITED STATES of America, Defendant.

Daniel Webster HARMON, Plaintiff,


UNITED STATES of America, Defendant.

Civ. A. Nos. 83-0200-A, 83-0201-A, 83-0202-A.

United States District Court, W.D. Virginia, Abingdon Division.

April 21, 1987

Page 128

Stephen A. Vickers, Bristol, Va., Brian D. Weinstein and Russell W. Budd, Dallas, Tex., Edwin C. Stone, Radford, Va., for plaintiff.

Thomas R. King, Asst. U.S. Atty., Roanoke, Va., for defendant.


GLEN M. WILLIAMS, District Judge.

These three consolidated cases are presently before the court for judgment following a bench trial.

The Radford Army Ammunitions Plant ("R.A.A.P.") is a munitions factory that the United States Army owns. The Army has contracted with Hercules, Inc. ("Hercules") to operate R.A.A.P. Hercules is responsible for safety at R.A.A.P. (Plaintiffs' Exhibits 9, 98-99, and 192); but the Army has retained the right to inspect the premises for quality, security, and safety and, consequently, maintains a small staff at the plant.

One of the intermediate processes that Hercules carries on at R.A.A.P. is the dehydration of nitrocellulose. In the 1960's Hercules began experimenting with automating this process, and in December 1980 Hercules instigated a trial period for one specific automated dehydration system. On May 6, 1981 this experimental system exploded severely burning plaintiffs; and they subsequently brought suit pursuant to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 2671-80, alleging that the government had failed to use reasonable procedures to assure that Hercules utilized necessary safety precautions in its performance of hazardous work.

The FTCA largely abrogates the federal government's immunity from tort liability. However, the FTCA preserves that immunity for claims "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. § 2680(a). This exemption from tort liability is commonly referred to as the discretionary function exception ("d.f.e.").

The Supreme Court first explored the d.f.e. in Dalehite v. United States, 346 U.S. 15, 73 S.Ct. 956, 97 L.Ed. 1427 (1953). In Dalehite fertilizer that had been produced as part of a government program to aid war ravaged countries exploded aboard a ship levelling much of Texas City, Texas and killing many persons; and plaintiffs sued for negligent manufacture. 1 The Court held the United States was not liable because the d.f.e. protects the government from tort liability for "the discretion of the executive or the administrator to act according to ... [his] judgment of the best course ..." Dalehite, 346 U.S. at 34, 73 S.Ct. at 967. The Court then explained that the d.f.e. "includes more than the iniation of programs and activities. It also includes determinations made by executives or administrators in establishing plans, specifications or schedules of operation." Dalehite, 346 U.S. at 35-36, 73 S.Ct. at 967-968. Finally the Court extended this immunity to the "acts of subordinates in carrying out the operations of government in accordance with official directions." Dalehite, 346 U.S. at 36, 73 S.Ct. at 968.

The Court further developed the parameters of the d.f.e. in United States v. S.A. Empresa de Viacao Aerea Rio Grandense, 467 U.S. 797, 104 S.Ct. 2755, 81 L.Ed.2d 660 (1984), (" VARIG "). In VARIG two commercial aircrafts that the Federal Aviation Administration ("FAA") had certified as airworthy caught on fire mid-air due to the existence of non-regulation...

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