Autery v. U.S.

• Citation: 992 F.2d 1523
• Decision Date: 11 June 1993
• Docket Number: No. 92-6427,92-6427
• Parties: Nell D. AUTERY, As Administratrix of the Estate of Roy Franklin Autery; Charlotte Schreiner, Plaintiffs-Appellees, v. UNITED STATES of America, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

Page 1523

992 F.2d 1523

Nell D. AUTERY, As Administratrix of the Estate of Roy Franklin Autery; Charlotte Schreiner, Plaintiffs-Appellees, v. UNITED STATES of America, Defendant-Appellant.

No. 92-6427.

United States Court of Appeals Eleventh Circuit.

June 11, 1993.

William R. Sawyer, Asst. U.S. Atty., Mobile, AL, Jennifer H. Zacks, Asst. U.S. Atty., Appellate Staff Civ. Div., Dept. of Justice, Washington, DC, for defendant-appellant.

Andrew T. Citrin, David G. Wirtes, Jr. and Joseph M. Brown, Jr., Cunningham, Bounds, Yance, Crowder & Brown, Mobile, AL, for plaintiffs-appellees.

Appeal from the United States District Court for the Southern District of Alabama.

Before TJOFLAT, Chief Judge, KRAVITCH, Circuit Judge, and RONEY, Senior Circuit Judge.

KRAVITCH, Circuit Judge:

Roy Franklin Autery was killed and Charlotte Schreiner was injured when a black locust tree fell on their car as they drove through Great Smokey Mountain National Park. Nell Autery, as administratrix of her brother's estate, and Schreiner (together, "the plaintiffs") brought this negligence action against the United States under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2674 ("FTCA"). After a bench trial, the district court entered a judgment for the plaintiffs, holding that the United States had negligently failed to (1) devise, implement and follow an appropriate tree hazard management plan; (2) properly maintain the National Park area; (3) properly inspect the trees in the National Park in the area where the accident occurred; and (4) identify and remove the hazardous trees which fell and struck Autery and Schreiner. ¹ The court awarded $500,000 in compensatory damages to Autery's estate and $20,000 to Schreiner for negligent infliction of emotional distress, 786 F.Supp. 944.

At issue in this case is whether the alleged negligent conduct by the United States falls within the ambit of the discretionary function exception of the FTCA, 28 U.S.C. § 2680(a). Because we hold that it does, we REVERSE the judgment of the district court and DISMISS the case for lack of subject matter jurisdiction. ²

I.

The district court made findings of fact summarized as follows. Autery and Schreiner were driving on U.S. Highway 441 in Great Smokey Mountain National Park ("GSMNP") on July 5, 1989 when two locust trees fell into the roadway. GSMNP is owned and operated by the United States. Autery, who was driving, was killed instantly when one of the trees struck the car. Schreiner was injured. The tree in question was approximately 50 years old, approximately 70 feet in height and fell due to root rot. The accident occurred near the Oconaluftee Visitor's Center; a road sign in the area read, "35 Miles Per Hour, Congested Area." At the time of the accident, GSMNP did not have in force a written tree hazard management plan. In October 1976, the National Park Service ("Park Service" or "NPS") had issued Special Directive 76-9 (Health and Safety of Park Visitors) which stated in part Protection of the visitor, and park and concessioner employees, from violations of laws and regulations and from hazards inherent in the park environment, is a prime responsibility of the National Park Service. The saving and safeguarding of human life takes precedence over all other park management activities, whether the life is of the visitor, concessioner, or park employee....

R. 2-64 at 11-12 (emphasis added by district court). Pursuant to this directive, the unwritten policy at GSMNP at the time of the accident was to

make every reasonable effort within the constraints of budget, manpower, and equipment available to detect, document, remove, and prevent tree hazards.

Id. at 12. ³

In order to effectuate this policy, GSMNP personnel initially conducted visual inspections from trucks driven along the road. Any tree that appeared hazardous was then inspected more closely. "[I]t was the established practice at the park for all employees to identify and report known or potentially known hazardous trees to supervisors or maintenance personnel for appropriate action." Id. at 10-11.

The district court also found that prior to the accident, GSMNP personnel received information regarding the risks to black locust trees in high-density areas. Keith Langdon, Supervisory Natural Resource Specialist at GSMNP, received a letter in November 1988 from Dr. William Sites, a plant pathologist, which contained the following "critical safety information":

Black locust trees are short-lived and due to decay (following borer activity), break up and drop limbs and tops. Avoid them in new areas; remove them when possible in existing areas.

Id. at 12 (emphasis added by district court). Langdon circulated this letter to Tim Stubbs, the primary preparer of the written tree hazard management plan, and met with GSMNP rangers and maintenance personnel to discuss the potential dangers posed by black locust trees. ⁴

Based on this evidence, the district court determined that park personnel "had or should have had ... knowledge ... of the black locust tree danger ..., [and that no] actions were taken with regard to reducing the hazards identified with the black locust trees." Id. at 14. The court further concluded that this inaction--the failure of park personnel to implement a closer inspection of tree hazards--"was a failure by the defendant to use due care in the safeguarding of human life by the removal of black locust tree hazards." Id. at 15. ⁵

II.

A.

The FTCA waives the sovereign immunity of the United States for claims brought against it

for injury or loss of property, or personal injury or death 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.

28 U.S.C. § 1346(b). Jurisdiction over FTCA claims is vested exclusively in the federal courts. Id. This waiver of immunity, however, is qualified by several exceptions. See 28 U.S.C. § 2680. At issue here is the "discretionary function" exception, which precludes government liability for

[a]ny 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 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. § 2680(a).

The discretionary function 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, 2762, 81 L.Ed.2d 660 (1984). Separation of powers principles further support Congress' decision 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 814, 104 S.Ct. at 2765.

The Supreme Court recently has clarified the two-part test for determining whether the government's conduct falls within the scope of the discretionary function exception. ⁶ We must first determine whether the challenged act or omission violated a mandatory regulation or policy that allowed no judgment or choice. United States v. Gaubert, --- U.S. ----, 111 S.Ct. 1267, 1273-74, 113 L.Ed.2d 335 (1991). "The requirement of judgment or choice is not satisfied if a 'federal statute, regulation or policy specifically prescribes a course of action for an employee to follow,' because 'the employee had no rightful option but to adhere to the directive.' " Id. at ----, 111 S.Ct. at 1273 (quoting Berkovitz v. United States, 486 U.S. 531, 536, 108 S.Ct. 1954, 1958, 100 L.Ed.2d 531 (1988)).

" '[E]ven assuming the challenged conduct involves an element of judgment,' " however, we then must determine if the challenged actions are the kind of conduct " 'that the discretionary function exception was designed to shield.' " Id. (quoting Berkovitz, 486 U.S. at 536, 108 S.Ct. at 1958); see also Phillips v. United States, 956 F.2d 1071, 1075 (11th Cir.1992). The conduct must be "grounded in the policy of the regulatory regime." Gaubert, --- U.S. at ----, 111 S.Ct. at 1275. In Gaubert, the Court discussed the type of conduct that would be considered grounded in judgment or choice but not in developing or carrying out public policy.

[If a governmental official] drove an automobile on a mission connected with his official duties and negligently collided with another car, the exception would not apply. Although driving requires the constant exercise of discretion, the official's decisions in exercising that discretion can hardly be said to be grounded in regulatory policy.

Id. at ---- n. 7, 111 S.Ct. at 1275 n. 7.

B.

1.

Before we address whether the government's conduct violated a mandatory regulation or policy, we must determine exactly what conduct is at issue. The government argues that the conduct to be evaluated is "the Park Service's decision to establish and implement a tree inspection program. Gov't Br. at 9. Plaintiffs, on the other hand, contend that "the conduct at issue [is] the park's failure to carry out the mandates of its then existing policy of identifying and eliminating known hazardous trees." Pls. Br. at 24-25. Plaintiffs apparently concede that the discretionary function exception applies "to the park's decision to adopt a ... tree hazard plan," but argue that "[t]he doctrine does not apply to the manner in which the park's employees carried out the plan." Id. at 27. The district court, in adopting the...