Richardson v. U.S.

• Citation: 943 F.2d 1107
• Decision Date: 30 August 1991
• Docket Number: 90-35424,Nos. 90-35423,s. 90-35423
• Parties: Kenneth RICHARDSON; Norman J. Trapp, Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 1107

943 F.2d 1107

Kenneth RICHARDSON; Norman J. Trapp, Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee.

Nos. 90-35423, 90-35424.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Feb. 5, 1991.

Decided Aug. 30, 1991.

David E. Williams, Critchlow, Williams & Schuster, Richland, Wash., for plaintiff-appellant Richardson.

Gregg L. Tinker, Longfelder, Tinker, Kidman & Flora, Inc., P.S., Seattle, Wash., for plaintiff-appellant Trapp.

Thomas O. Rice, Asst. U.S. Atty., Spokane, Wash., for defendant-appellee.

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

Before WIGGINS, BRUNETTI and T.G. NELSON, Circuit Judges.

BRUNETTI, Circuit Judge:

This case involves a suit against the United States under the Federal Tort Claims Act for injuries caused when lightning simultaneously struck a power line and the plaintiffs who were carrying a metal irrigation pipe underneath the power line. ¹ In two prior appeals before this court we found the district court applied an incorrect standard of care to determine negligence and remanded for a new trial. See Richardson v. United States, 645 F.2d 731, 735 (9th Cir.1981) ("Richardson I "); Richardson v. United States, 841 F.2d 993, 995 (9th Cir.1988) ("Richardson II "). The previous appeals did not address the question of the applicability of the discretionary function exception to the Federal Tort Claims Act. After this court's second remand, the district court found the discretionary function exception applied and dismissed the case for lack of subject matter jurisdiction. We affirm.

I. Facts and Proceedings Below.

The relevant facts are not disputed. The following is taken from Richardson II:

On May 10, 1975, plaintiffs Kenneth Richardson and Norman Trapp were moving aluminum irrigation pipes on the farm that Trapp was renting. Suspended above one part of the farm were three power transmission lines owned and operated by [Bonneville Power Administration ("BPA") ]. At the point where the plaintiffs were working, the lines are 30 feet above the ground.

At the time of the accident, plaintiffs were each carrying one end of a 40-foot length of pipe, and Trapp was dragging a 20-foot length of pipe behind him, resting the shorter pipe on the longer one. As they passed underneath the power lines, plaintiffs suddenly received a high-voltage charge of electricity. Both were knocked unconscious and suffered severe and permanent injuries.

841 F.2d at 995. After the second trial in this case, the district court made findings of fact including: "Had the power line been equipped with an overhead ground system a lightning strike would have been diverted and grounded and the injuries would not have occurred." This fact is not disputed. The question of BPA's negligence thus narrowed to the question whether BPA had a duty to install overhead ground wires at the place where the accident occurred. This fact also shapes the issue regarding the discretionary function exception to liability: whether the decision not to install the overhead ground wires at the place where the accident occurred was a discretionary function of BPA.

The plaintiffs filed separate suits against the United States alleging that the injuries were caused by the negligence of BPA, an agent of the United States. Jurisdiction was based on the Federal Tort Claims Act. The government's answer included the claim that the district court lacked jurisdiction over the subject matter of the action. The district court, after a court trial, found the government was not liable for appellant Richardson's injuries and Richardson appealed to this court. This court reversed and remanded for a new trial on the ground that the trial court applied an incorrect standard of care in determining liability. Richardson I, 645 F.2d at 735.

Prior to Richardson's second trial, appellant Trapp's suit was consolidated with Richardson's. Richardson II, 841 F.2d at 995. The liability issue was then tried again, this time applying the standard of care set forth in Richardson I. Prior to ruling, however, a Washington state court decided a case which criticized Richardson I and set forth a different applicable standard of care. See Keegan v. Grant County Pub. Util. Dist., 34 Wash.App. 274, 661 P.2d 146, 149-150 & n. 2 (1983). The trial judge in the present case held that he was bound by the law of the case as set forth in Richardson I and rejected the standard stated in Keegan. This time the trial court found the government liable for the appellants injuries. The trial court also considered and rejected the government's claim that the discretionary function exception applied. ²

This court reversed stating that the law of the case does not control when "there has been a dispositive intervening decision of an intermediate appellate state court." Richardson II, 841 F.2d at 996. The court recognized that the original trial was conducted according to the proper standard but declared that the original judgment could not be reinstated and that a new trial was necessary. Id. at 998 n. 9.

On remand, the district court declined to relitigate the factual issues in the case. ³ An evidentiary hearing was held in which the government again argued that the appellants' claims were foreclosed by the discretionary function exception and evidence was heard regarding the government's potential liability under Keegan as dictated by Richardson II. The district court determined that the discretionary function exception applied in this case because "[t]he decision whether to install overhead ground wires is obviously a design decision, vis-a-vis, construction." The district court held that because the discretionary function applied, the court was without subject matter jurisdiction over the action and ordered the cases dismissed. The appellants' motion for reconsideration was denied on May 4, 1990. An appeal was timely filed on May 21, 1990.

II. Analysis.

A. The Discretionary Function Exception.

We review the trial court's determination of subject matter jurisdiction under the discretionary function exception de novo. Kennewick Irrigation Dist. v. United States, 880 F.2d 1018, 1021 (9th Cir.1989). The Federal Tort Claims Act authorizes suits against the United States for damages for personal injuries in situations where a private person would be liable under the law where the act or omission causing the injuries occurred. 28 U.S.C. §§ 1346(b), 2674. Such a suit is not available, however, when the act or omission complained of is "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." 28 U.S.C. § 2680(a).

In Kennewick, the Kennewick Irrigation District brought suit against the United States for damages arising out of two breaks in Kennewick's main irrigation canal. 880 F.2d at 1019. The breaks were caused by a phenomenon called "piping" whereby water erodes the sides of the canal "causing a gradually increasing channel and eventually a break in the canal." Id. at 1020. The canal was designed by the United States Bureau of Reclamation. A United States Magistrate found the Bureau's failure to line the canal with concrete and take other preventative measures in the design of the canal fell outside the discretionary function exception. Id. at 1021. This court affirmed in part, and vacated and remanded in part.

The Kennewick court reviewed the history of Supreme Court discretionary function decisions including the Court's latest pronouncement in Berkovitz v. United States, 486 U.S. 531, 108 S.Ct. 1954, 100 L.Ed.2d 531 (1988). Berkovitz, this court stated,

directs us to apply a two-step test for determining whether the discretionary function exception applies. We must "first consider whether the action is a matter of choice for the acting employee.... [T]he discretionary function exception will not apply when a federal statute, regulation, or policy specifically prescribes a course of action for an employee to follow." Berkovitz, 108 S.Ct. at 1958. If the challenged conduct does involve an element of judgment, our second step is to "determine whether that judgment is of the kind that the discretionary function exception was designed to shield." Id. at 1959. To be shielded, the judgment must be " 'grounded in social, economic, and political policy.' " Id., quoting [United States v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines) ], 467 U.S. [797,] 814, 104 S.Ct. [2755,] 2765 [81 L.Ed.2d 660 (1984) ].

Kennewick, 880 F.2d at 1025.

The court analyzed the Bureau of Reclamation's design decision under the two step Berkovitz test and found first that the decision did not contravene a prescriptive federal statute, regulation or policy. Id. at 1027. The court then discussed whether the decision was grounded in social, economic, or political policy. The court held that the Bureau of Reclamation's design decision not to line the canal was within the discretionary function exception because it " 'involve[d] not merely engineering analysis but judgment as to the balancing of many technical,' economic, 'and even social considerations.' " Id. at 1029 (quoting Boyle v. United Technologies Corp., 487 U.S. 500, 511, 108 S.Ct. 2510, 2517, 101 L.Ed.2d 442 (1988)). Engineering decisions which involve the application of objective scientific standards without the consideration of economic, political, and social factors, however, fall outside the discretionary function exception. Id. at 1030. Also, though the government's decision must have been made in light of the consideration of social, economic, or political policy judgments before the exception will apply, the government need not prove it considered these factors. The discretionary function exception may apply "in the absence of a conscious decision." Id. at 1028 (internal quotations omitted).

The appellants in the present...