Ayer v. U.S., 89-2035

• Citation: 902 F.2d 1038
• Decision Date: 06 March 1990
• Docket Number: No. 89-2035,89-2035
• Parties: Donald W. AYER, Jr., Plaintiff, Appellant, v. UNITED STATES of America, Defendant, Appellee. . Heard
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

Page 1038

902 F.2d 1038

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

No. 89-2035.

United States Court of Appeals First Circuit.

Heard March 6, 1990.

Decided May 14, 1990.

Barbara A. Cardone with whom Phillip D. Buckley and Rudman & Winchell, Bangor, Me., were on brief, for plaintiff-appellant.

Michael M. DuBose, Asst. U.S. Atty., with whom Richard S. Cohen, U.S. Atty., Augusta, Me., and Margaret D. McGaughey, Asst. U.S. Atty., Portland, Me., were on brief, for defendant-appellee.

Before CAMPBELL, Circuit Judge, and COFFIN and BOWNES, Senior Circuit Judges.

COFFIN, Senior Circuit Judge.

While participating in a visitor's tour of Vandenberg Air Force Base, Donald W. Ayer, Jr. fell and was injured. He brought suit for damages under the Federal Tort Claims Act (FTCA), 28 U.S.C. Sec. 2674, on three counts. Count I alleged that the United States had failed to provide and maintain reasonably safe premises for civilian invitees. Count II claimed that the government had failed to warn tour members of the dangers presented by the facility design. Count III alleged negligent design of the site and failure to alter the design in a manner adequate to protect tour participants.

The District Court for the District of Maine dismissed Counts I and III, holding that the claimed negligence fell within the discretionary function exception to the FTCA. The court also granted summary judgment for the United States on Count II, ruling that Ayer had failed to bring forward any specific facts that rebutted the government's evidence that warnings were given. 721 F.Supp. 1395.

On appeal, Ayer contests both decisions. We affirm.

I. FACTS

In November 1984, Ayer participated in a Distinguished Visitors Tour of Vandenberg Air Force Base, California, jointly sponsored by the Maine National Guard and the United States Air Force. Tour participants were shown facilities not ordinarily accessible to non-military personnel, including an underground missile launch site known as the Delta-Zero Launch Control Facility ("LCF"). The launch control chamber ("LCC") of the facility is a capsule-shaped underground room. The floor of the room is supported by shock absorbers and is not attached to the walls, leaving a two to three foot gap between the edge of the floor and the wall. At the time of the incident, there was no railing or other protective device around the circumference of the floor. The edge was marked, however, by a yellow line of paint or tape. The floor was painted a rust color, as were the walls, with the exception of the lower part of the walls, which were painted a lighter brown color.

The control chamber was designed without an attached floor so that it would withstand reverberations from a near-miss nuclear detonation; the design allows the floor to move freely. The uncontroverted evidence also indicates that the chamber was designed without railings "to assure floor freedom of motion and to minimize shock and vibration transmission to sensitive electronic equipment or to personnel." Affidavit of M. Gordon Dittemore, Appendix at 109. Further, the lighting arrangements were established to be consistent with mission and operating needs.

The LCC at Vandenberg and six identical facilities nationwide constitute the national launch facilities for Minuteman missiles. Vandenberg Air Force Base is the only facility from which test launches are made and where personnel are trained in launch procedures. The LCCs were formally inspected to assure a standardized configuration.

The base commander at Vandenberg made an affirmative decision against structurally modifying the launch control facility to accommodate civilian visitors. This decision rested on a determination that any changes might jeopardize the launch site by confining the free motion of the floor and might impede training because Vandenberg's LCC would differ from other launch sites. Ayer does not dispute either the fact that this decision was made or the asserted reasons for the decision.

The government's evidence shows that the tour group in which Ayer participated received several warnings about the danger of falling presented by the LCC's design. First, on the bus carrying tour members to the facility, Air Force personnel informed the tourists that the floor was not attached and that they should therefore be careful to stay close to the middle of the room. Additional warnings were given immediately before the group descended in the elevator to the underground facility and again before they entered the chamber.

Donald Ayer was one of the last participants in his group to enter the control chamber. As he did so, his attention was focused on the tour leader, who had begun speaking. He moved to the left to make room for other participants still entering the chamber. In doing so, he stepped off the edge of the floor and fell through the gap between the wall and the floor to the platform located approximately six feet below. He sustained injuries to his knee, thigh and shoulder.

Ayer raises two issues to this court. First, he contends that Counts I and III were improperly dismissed because the discretionary function exception is inapplicable here. He gives two reasons for this conclusion. While admitting that the decision to invite tour members was protected by the discretionary function exception, he asserts that once civilian guests were invited, the government owed a duty of due care to those guests. He also argues that the judgment not to make safety changes does not involve the kind of policy considerations necessary to bring the decision within the discretionary function exception. He contends, therefore, that changes should have been made to protect visitors and that the government was negligent in failing to provide such measures, specifically including some sort of barrier, better lighting and adequate warnings of the danger.

Second, Ayer contests the grant of summary judgment on the claim of inadequate warnings. As evidence that warnings were given, the government presented affidavits from Air Force personnel and deposition evidence from another tour member. Ayer does not dispute this evidence. He claims, however, to have no recollection of warnings and asserts that his inability to remember raises a genuine issue of material fact about the adequacy of the warnings. We shall address each of these issues in turn.

II. DISCRETIONARY FUNCTION EXCEPTION

In the Federal Tort Claims Act, the United States waived sovereign immunity from suit, declaring that The United States shall be liable, respecting the provisions of this title relating to tort claims, in the same manner and to the same extent as a private individual under like circumstances....

28 U.S.C. Sec. 2674. The Act, however, contains a number of exceptions to liability. The exception relevant to this case provides that no liability shall lie for:

[a]ny claim ... 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. Sec. 2680(a).

As the Supreme Court has noted, this exception "marks the boundary between Congress' willingness to impose tort liability upon the United States and its desire to protect certain governmental activities from exposure to suit by private individuals." United States v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797, 808, 104 S.Ct. 2755, 2761, 81 L.Ed.2d 660 (1984). If a discretionary function was involved, the fact that critical factors were not considered or that the decision was negligently made will not bring the challenged conduct outside of the exception. Dube v. Pittsburgh Corning, 870 F.2d 790, 797 (1st Cir.1989). See also 28 U.S.C. Sec. 2680(a) (by its terms, the exception immunizes decisions "whether or not the discretion involved be abused").

The Supreme Court has addressed the scope of the discretionary function exception in three principal cases. See Berkovitz v. United States, 486 U.S. 531, 108 S.Ct. 1954, 100 L.Ed.2d 531 (1988); Varig Airlines, 467 U.S. 797, 104 S.Ct. 2755, 81 L.Ed.2d 660 (1984); Dalehite v. United States, 346 U.S. 15, 73 S.Ct. 956, 97 L.Ed. 1427 (1953). These cases establish that "[w]here there is room for policy judgment and decision, there is discretion." Dalehite, 346 U.S. at 35-36, 73 S.Ct. at 967-968. "[I]t is the nature of the conduct, rather than the status of the actor, that governs whether the discretionary function applies in a given case." Varig Airlines, 467 U.S. at 813, 104 S.Ct. at 2764. Berkovitz established a two-part test for determining whether the exception applies. First, the action at issue must involve an element of choice. "[I]f the employee's conduct cannot appropriately be the product of judgment or choice, then there is no discretion in the conduct for the discretionary function exception to protect." Berkovitz, 486 U.S. at 536, 108 S.Ct. at 1958. Where there is room for judgment, the court then must determine whether the decision involved the kind of judgment Congress intended to protect:

The basis for the discretionary function exception was Congress' desire to "prevent judicial 'second-guessing' of legislative and administrative decisions grounded in social, economic, and political policy through the medium of an action in tort."

Id. at 536-537, 108 S.Ct. at 1958-1959 (quoting Varig, 467 U.S. at 814, 104 S.Ct. at 2764). In sum, the discretionary function exception "applies only to conduct that involves the permissible exercise of policy judgment." Berkovitz, 486 U.S. at 539, 108 S.Ct. at 1960 (emphasis added).

Ayer contends that the Air Force's decision against making safety modifications was an impermissible exercise of judgment because once the government opened its premises to guests, it automatically was subject to a duty of due care. He also argues that...