Fortney v. US
| Decision Date | 21 April 1987 |
| Docket Number | 83-0202-A.,Civ. A. No. 83-0200-A,83-0201-A |
| Citation | 659 F. Supp. 127 |
| Parties | Mark Lynn FORTNEY, Plaintiff, v. UNITED STATES of America, Defendant. Esley W. TIPTON, Plaintiff, v. UNITED STATES of America, Defendant. Daniel Webster HARMON, Plaintiff, v. UNITED STATES of America, Defendant. |
| Court | U.S. District Court — Western District of Virginia |
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.
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. Dalehite, 346 U.S. at 35-36, 73 S.Ct. at 967-968. Finally the Court extended this immunity to the 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 midair due to the existence of non-regulation equipment. The Court held the FAA was not liable in tort for its decision to delegate some inspection responsibility to aircraft manufacturers and to only conduct spot checks. The Court explained:
When an agency determines the extent to which it will supervise the safety procedures of private individuals, it is exercising discretionary regulatory authority of the most basic kind. Decisions as to the manner of enforcing regulations directly affect the feasibility and practicality of the Government's regulatory program; such decisions require the agency to establish priorities for the accomplishment of its policy objectives by balancing the objectives sought to be obtained against such practical considerations as staffing and funding. Here, the FAA has determined that a program of `spotchecking' manufacturers' compliance with minimum safety standards best accommodates the goal of air transportation safety and the reality of finite agency resources. Judicial intervention in such decisionmaking through private tort suits would require the courts to `secondguess' the political, social, and economic judgments of an agency exercising its regulatory function. It was precisely this sort of judicial intervention in policy-making that the discretionary function exception was designed to prevent.
VARIG, 467 U.S. at 819-20, 104 S.Ct. at 2767-68. The Court also indicated that it is the "nature of the conduct, rather than the...
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Thompson v. Dilger
...to inspect and relinquishes primary responsibility for safety to the contractor, that decision is protected. See Fortney v. United States, 659 F.Supp. 127 (W.D.Va.1987), aff'd, 841 F.2d 1127 (4th Cir.1988). See also supra note 11 Actually, counsel for Thompson alleged that the government vi......
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Fortney v. U.S., 89-3277
...district judge agreed, dismissed the case on that basis, and wrote a published opinion explaining his reasoning in detail. 3 See 659 F.Supp. 127 (W.D.Va.1987). The plaintiffs made a motion for reconsideration, arguing that the district court had construed their accusations of government neg......