Ayer v. US, Civ. No. 86-0206-B.

• Decision Date: 17 October 1989
• Docket Number: Civ. No. 86-0206-B.
• Citation: 721 F. Supp. 1395
• Parties: Donald W. AYER, Jr., Plaintiff, v. The UNITED STATES of America, Defendant.
• Court: U.S. District Court — District of Maine

721 F. Supp. 1395

Donald W. AYER, Jr., Plaintiff, v. The UNITED STATES of America, Defendant.

Civ. No. 86-0206-B.

United States District Court, D. Maine.

October 17, 1989.

Phillip Buckley, Bangor, Me., for plaintiff.

Michael Dubose, Asst. U.S. Atty., Bangor, Me., for defendant.

MEMORANDUM AND ORDER

VAN SICKLE, District Judge, sitting by designation.

Plaintiff seeks to recover damages for injuries recieved in a fall while on a tour of a United States Air Force missile capsule. The working floor of the facility ended about three feet short of the wall of the capsule, and there was no guard rail across the opening. Plaintiff stepped into the opening and fell some six or eight feet to the floor of the capsule. He has grounded his action on the Federal Tort Claims Act, (FTCA) (28 U.S.C., Section 2671, et seq.) Specifically, he claims the government is liable due to its failure to maintain the facility in a reasonably safe condition, its failure to properly warn him of the danger and its negligence in designing the facility in a manner that allowed the accident to occur. The United States has moved for summary judgment, claiming that the "discretionary functions exception" contained in the FTCA bars recovery on the failure to maintain and the negligent design theories, and that the plaintiff has failed to show evidence to rebut its evidence of adequate warnings.

The FTCA waived sovereign immunity from suit for certain specified torts of federal employees. The "discretionary functions exception" to the FTCA is found in 28 U.S.C., Section 2680, which reads:

The provisions of this chapter and section 1346(b) of this title shall not apply to —

(a) Any claim based upon an act or omission of an employee of the Government, exercising due care, in the execution of a statute or regulation, whether or not such statute or regulation be valid, or 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.

The definition of "discretionary function" has given the courts a great deal of trouble. (See Gleason v. U.S., 857 F.2d 1208 (8th Cir.1988), and the cases cited therein.) However, this court feels that the recent decision by the U.S. Supreme Court, Boyle v. United Technologies Corp., ___ U.S. ___, 108 S.Ct. 2510, 101 L.Ed.2d 442 (1988) is the most compelling on this case, both because of the similarity in the fact situation and because it is the latest discussion of the matter.

In Boyle, the Supreme Court held that the decision as to how to design the escape hatches in a helicopter was a discretionary function. Certainly, if the design of a helicopter is discretionary, so must be the design of a missile system. Sovereign immunity bars the granting of relief on the claim of negligent faulty design.

The facility was designed with a gap in the floor next to the wall, and with no guardrail. It is alleged that maintaining the facility in this manner subjects the United States to liability. There is no claim that the facility had not been built and maintained in accordance with the design. In fact, the same deficiencies alleged to be design deficiencies are alleged to be the result of maintainance. Surely, if there is immunity for designing the facility, so must there be immunity for constructing and maintaining it in accordance with that design.

The claim based on a failure to warn falls into a different category, implicating questions of fact rather than statutory interpretation. When...