787 F.2d 466 (9th Cir. 1986), 85-3744, Mitchell v. United States

Docket Nº:85-3744.
Citation:787 F.2d 466
Party Name:Opal V. MITCHELL, Plaintiff-Appellee, v. UNITED STATES of America, Defendant-Appellant.
Case Date:April 15, 1986
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 466

787 F.2d 466 (9th Cir. 1986)

Opal V. MITCHELL, Plaintiff-Appellee,

v.

UNITED STATES of America, Defendant-Appellant.

No. 85-3744.

United States Court of Appeals, Ninth Circuit

April 15, 1986

Argued and Submitted Feb. 13, 1986.

Page 467

H.K. Dano, Dano, Cone, Fraser & Gilreath, Moses Lake, Wash., and Charles Bush, Seattle, Wash., for plaintiff-appellee.

Harold J. Krent, Dept. of Justice, Washington, D.C., for defendant-appellant.

Appeal from the United States District Court for the Eastern District of Washington.

Before WALLACE and SKOPIL, Circuit Judges, and HENDERSON, [*] District Judge.

SKOPIL, Circuit Judge:

The government appeals from a district court finding of liability for the death of Vernon Mitchell. We reverse.

FACTS AND PROCEEDINGS BELOW

Vernon Mitchell contracted to crop dust a field located near the Yakima River in Washington. On May 18, 1980 his plane struck unmarked power transmission ground wires, resulting in his death. His wife, Opal Mitchell, brought a wrongful death action against Bonneville Power Administration ("BPA"), pursuant to the Federal Torts Claims Act, 28 U.S.C. Sec. 2674 ("FTCA"). She alleged the BPA negligently failed to alert pilots of the presence of ground wires by failing to install warning devices. The government moved for summary judgment, claiming its decision not to mark ground wires with warning devices constituted a "discretionary function" within the protection of 28 U.S.C. Sec. 2680(a). Alternately, the government claimed its decision was reasonable.

The district court denied the government's motion. After trial, the court concluded the agency was negligent in failing to mark the ground wires, and in "blindly relying upon the advice of the Federal Aviation Administration as to whether or not the lines should be marked without making any independent investigation." The court also found Mr. Mitchell was twenty-five percent contributorily negligent.

The government appeals.

DISCUSSION

A party may bring a cause of action against the United States only to the extent the government has waived its sovereign immunity. United States v. Orleans, 425 U.S. 807, 814, 96 S.Ct. 1971, 1976, 48 L.Ed.2d 390 (1976). A party bringing a cause of action against the federal government bears the burden of demonstrating an unequivocal waiver of immunity. Holloman

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