American Exch. Bank of Madison, Wis. v. United States

• Decision Date: 16 July 1958
• Docket Number: No. 12011.,12011.
• Citation: 257 F.2d 938
• Parties: The AMERICAN EXCHANGE BANK OF MADISON, WISCONSIN, As Executor of the Estate of Pauline H. Williams, deceased, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

257 F.2d 938 (1958)

The AMERICAN EXCHANGE BANK OF MADISON, WISCONSIN, As Executor of the Estate of Pauline H. Williams, deceased, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.

No. 12011.

United States Court of Appeals Seventh Circuit.

July 16, 1958.

Robert L. Curry, Madison, Wis., Roberts, Roe, Boardman, Suhr & Bjork, Madison, Wis., for appellant.

George Cochran Doub, Asst. Atty. Gen., Civil Division, Alan S. Rosenthal, Paul A. Sweeney, Attorneys, Department of Justice, Washington, D. C., George E. Rapp, U. S. Atty., Madison, Wis., for appellee.

Before DUFFY, Chief Judge, and HASTINGS and PARKINSON, Circuit Judges.

DUFFY, Chief Judge.

This action was brought by Pauline H. Williams under the Federal Tort Claims Act to recover damages for personal injuries sustained when she fell on steps leading to an entrance of the post office building in the city of Madison, Wisconsin. Since this appeal was taken, Mrs. Williams passed away and The American Exchange Bank of Madison, Wisconsin, as Executor of the Estate of Pauline H. Williams, deceased, has been substituted as party plaintiff.

On September 3, 1952, the day when Mrs. Williams fell, the steps of the post office were dry. They were constructed from granite and were free from any wear or defect. They were about twenty-six feet in width. It was and is plaintiff's theory that the Wisconsin Safe Place Statute was applicable, and provided a specified standard of care, the violation of which, constituted negligence. Plaintiff insists that any private person or concern owning a building used by the public, or providing a place of employment, in the State of Wisconsin, would have been required to erect railings or handrails on the steps leading to the post office entrance.

The District Court held that neither the Safe Place Statute nor the rules and orders of the Wisconsin Industrial Commission are applicable to the post office building owned and operated by the United States Government, and that the United States was not negligent at the time Mrs. Williams was injured. Judgment was entered dismissing the action.

On September 3, 1952, at 11 a. m., Mrs. Williams, then seventy years of age, approached the Monona Avenue (main) entrance of the post office building at Madison, Wisconsin, intending to mail two letters in the building. She ascended the first flight of three steps, crossed the stone platform or landing, and started to ascend the flight of five steps leading to the stone platform in front of the doorway or entrance. Upon reaching the top step which was a part of the second platform or landing, she fell backward to the platform between the two flights of steps, and suffered personal injuries.

The pertinent provisions of the Federal Tort Claims Act are: Title 28 U.S.C. § 2674 — "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, * * *" Title 28 U.S.C. § 1346(b) provides in part: "* * * the District Court, * * * shall have exclusive jurisdiction of civil actions on claims against the United States, for money damages, * * * for * * personal injury * * * caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred."

In finding the issues favorable to the defendant, the trial court relied in large part upon §§ 1.02 and 1.03(3) of the Wisconsin Statutes. In § 1.02 the Wisconsin legislature consented "* * * to the acquisitions heretofore effected and hereafter to be effected by the United States, by gift, purchase or condemnation proceedings, of the title to places or tracts of land within the state; and, subject to said conditions, the state hereby grants, cedes and confirms to the United States exclusive jurisdiction over all such places and tracts. * * *"

Section 1.03(3) provides for the state to retain concurrent jurisdiction over the federally owned property so that process issued under the authority of the state may be served on or in any such property.

The trial court held that by reason of the provisions of §§ 1.02 and 1.03(3), the Wisconsin Safe Place Statute and the Rules and Orders of the Wisconsin Industrial Commission are inapplicable to the post office premises and the United States could not be found negligent for failing to comply therewith.

It may be conceded that the State of Wisconsin could not penalize the federal government for violations of the Wisconsin Safe Place Statute or of safety orders. We think, however, that fact is immaterial. The Safe Place Statute sets up a standard of care which replaces the common law for persons in Wisconsin insofar as public buildings and places of employment are concerned. But in this case, the State of Wisconsin is not attempting to subject the federal government to the Safe Place Statute. It is the federal government, through the Tort Claims Act, that has consented to liability the same as is imposed upon a private person in Wisconsin. Section 2674 says: "The United States shall be liable * * * in the same manner and to the same extent as a private individual under like circumstances * * *." Section 1346(b) provides the District Court has jurisdiction of civil actions against the United States for damages caused by negligent and wrongful acts of an employee of the government while acting within the scope of his office or employment "under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred."

It seems clear to us that Congress has said in unambiguous language that the United States is to be treated exactly as a private individual and not as a sovereign entity in determining its liability. In Indian Towing Co., Inc., v. United States, 350 U.S. 61, 68-69, 76 S. Ct. 122, 126, 100 L.Ed. 48, the Supreme Court said, in referring to the Federal Tort Claims Act: "The broad and just purpose which the statute was designed to effect was to compensate the victims of negligence in the conduct of governmental activities in circumstances like unto those in which a private person would be liable and not to leave just treatment to the caprice and legislative burden of individual private laws."

As a second ground for holding the United States not liable, the trial court cited Title 28 U.S.C. § 2680(a) which provides: "The provisions of this chapter and section 1346(a) of this title shall not apply to — (a) Any claim based upon an act or omission of an employee of the Government, * * * 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 trial court reasoned that the function of deciding whether a handrail should be installed on a post office building was one for the General Services Administration, which agency was charged with the duty of maintenance of the premises, and the Court concluded that this was a discretionary function. In its brief in this Court, the United States does not discuss the point except to say this independent ground for dismissing the action was correct, but, because not necessary to the result, it would not treat § 2680(a) in its brief.

After Dalehite v. United States, 1953, 346 U.S. 15, 73 S.Ct. 956, 97 L.Ed. 1427, it appeared the discretionary function defense in § 2680(a) might be available in a great variety of cases. Dalehite was the Texas city disaster case and was a four to three decision. Then came Indian Towing Co., Inc., v. United States, 1955, 350 U.S. 61, 76 S.Ct. 122, 127, 100 L.Ed. 48. One of the dissenting Justices in Dalehite wrote the Indian Towing five to four opinion. The Court said: "The differences between this case and Dalehite need not be labored. The governing factors in Dalehite sufficiently emerge from the opinion in that case." This statement seems more ominous than enlightening.

The following year Rayonier, Incorporated, v. United States, 1956, 352 U.S. 315, 77 S.Ct. 374, 377, 1 L.Ed.2d 354, was decided. This opinion (seven to two) was written by another of the Justices who dissented in Dalehite. As to any distinction between the Government's negligence when it acts in a "proprietary" capacity or its negligence when it acts in a "uniquely governmental" capacity, the court said: "To the extent that there was anything to the contrary in the Dalehite case it was necessarily rejected by Indian Towing."

In Dalehite, 346 U.S. at pages 27-28, 73 S.Ct. at page 964, the Court said: "The legislative history indicates that while Congress desired to waive the Government's immunity from actions for injuries to person and property occasioned by the tortious conduct of its agents acting within their scope of business, it was not contemplated that the Government should be subject to liability arising from acts of a governmental nature or function. Section 2680(a) draws this distinction." However, the distinction between governmental and proprietary functions under the Federal Tort Claims Act is badly shattered if not destroyed by the Indian Towing case. That opinion refers to the "`non-governmental'-`governmental' quagmire that has long plagued the law of municipal corporations."

There may still remain some immunity from liability under § 2680(a) at the planning rather than at the operational level. In Indian Towing Co., Inc., 350 U.S. at page 69, 76 S.Ct. at page 126 the Court said: "The Coast Guard need not undertake the lighthouse service. But once it exercised its discretion to operate a light on Chandeleur Island and engendered reliance on the guidance...