Barnson v. United States, C-80-0119A

• Court: United States District Courts. 10th Circuit. United States District Court of Utah
• Writing for the Court: ALDON J. ANDERSON, Senior
• Citation: 630 F. Supp. 418
• Parties: Sylvia BARNSON, surviving wife, Rodney E. Barnson, Randy D. Barnson, Eldora Barnson Johnson, John Steve Barnson, Julia Mae Barnson Wise, and Maida Barnson Simms, surviving children, heirs of Earl S. Barnson, deceased; Vonda L. Cropper, surviving wife, Helen E. Cropper Davis, Janice Cropper Peterson, William D. Cropper, Charles L. Cropper, and Lorraine Cropper Harris, surviving children, heirs of William E. Cropper, deceased; Eva Dean Hanson, surviving wife, Clyde E. Hanson, David B. Hanson and Shane Hanson, surviving children of Byron Hanson, deceased; Vivian P. Howes, surviving wife of Lester Ralph Peterson, deceased; Maurine Pitts, surviving wife of Elbert Pitts, deceased; Rowena Anderson, surviving wife, Byron Anderson, Terral Anderson, and Robert Mellor, surviving children, heirs of Byron Anderson, deceased; Leola Christensen, surviving wife, Alvin Christensen, Karl Christensen, Neil Christensen, and Colleen Peterson, surviving children, heirs of Alvin Christensen, deceased; John Dinsmore; Edna Fisher, surviving wife of Stanley Fisher, deceased; Rell Frederick; Margaret Bodtcher, surviving child, heir of Byron Hanson, deceased; Aldon McIntosh and Tony McIntosh, surviving children, heirs of LaMar McIntosh, deceased; Ada Morrill, surviving wife, Dale Morrill, Denzil Morrill, Steve Morrill, Ida Ann Newby, Cleora Peterson, and Thelma Pope, surviving children, heirs of Clarence Morrill, deceased; Norrene Neel, surviving wife, and Shelley Ann Neel, surviving child, heirs of Jack Neel, deceased; Carl Norton; Doyle Palmer, LaMond Palmer, and LuDale Palmer, surviving children, heirs of Edward Palmer, deceased; Gayle Nillson, surviving heir of Elbert Pitts, deceased; Margaret Quinn, surviving wife, Gary Quinn, Milton Quinn, and Janet Lott, surviving children, heirs of George Quinn, deceased; Bernadine Hurley, surviving child, heir of Farley Smith, deceased; Ida Mae Swenson, surviving wife, Lance Snow, Lon Snow, Lynn Snow, and Shaun Thomson, surviving children, heirs of LeMoyne Snow, deceased, Plaintiffs, v. UNITED STATES of America, Defendant.
• Docket Number: C-81-0715J,No. C-80-0119A,C-81-0045W,C-81-0719W.,C-80-0119A
• Decision Date: 01 July 1985

630 F. Supp. 418

Sylvia BARNSON, surviving wife, Rodney E. Barnson, Randy D. Barnson, Eldora Barnson Johnson, John Steve Barnson, Julia Mae Barnson Wise, and Maida Barnson Simms, surviving children, heirs of Earl S. Barnson, deceased; Vonda L. Cropper, surviving wife, Helen E. Cropper Davis, Janice Cropper Peterson, William D. Cropper, Charles L. Cropper, and Lorraine Cropper Harris, surviving children, heirs of William E. Cropper, deceased; Eva Dean Hanson, surviving wife, Clyde E. Hanson, David B. Hanson and Shane Hanson, surviving children of Byron Hanson, deceased; Vivian P. Howes, surviving wife of Lester Ralph Peterson, deceased; Maurine Pitts, surviving wife of Elbert Pitts, deceased; Rowena Anderson, surviving wife, Byron Anderson, Terral Anderson, and Robert Mellor, surviving children, heirs of Byron Anderson, deceased; Leola Christensen, surviving wife, Alvin Christensen, Karl Christensen, Neil Christensen, and Colleen Peterson, surviving children, heirs of Alvin Christensen, deceased; John Dinsmore; Edna Fisher, surviving wife of Stanley Fisher, deceased; Rell Frederick; Margaret Bodtcher, surviving child, heir of Byron Hanson, deceased; Aldon McIntosh and Tony McIntosh, surviving children, heirs of LaMar McIntosh, deceased; Ada Morrill, surviving wife, Dale Morrill, Denzil Morrill, Steve Morrill, Ida Ann Newby, Cleora Peterson, and Thelma Pope, surviving children, heirs of Clarence Morrill, deceased; Norrene Neel, surviving wife, and Shelley Ann Neel, surviving child, heirs of Jack Neel, deceased; Carl Norton; Doyle Palmer, LaMond Palmer, and LuDale Palmer, surviving children, heirs of Edward Palmer, deceased; Gayle Nillson, surviving heir of Elbert Pitts, deceased; Margaret Quinn, surviving wife, Gary Quinn, Milton Quinn, and Janet Lott, surviving children, heirs of George Quinn, deceased; Bernadine Hurley, surviving child, heir of Farley Smith, deceased; Ida Mae Swenson, surviving wife, Lance Snow, Lon Snow, Lynn Snow, and Shaun Thomson, surviving children, heirs of LeMoyne Snow, deceased, Plaintiffs,
v.
UNITED STATES of America, Defendant.

Nos. C-80-0119A, C-81-0045W, C-81-0715J, C-81-0719W.

United States District Court, D. Utah, C.D.

July 1, 1985.

630 F. Supp. 419

Stewart L. Udall, Phoenix, Ariz., Wayne Owens and Kenley Brunsdale, Salt Lake City, Utah, and Thomas S. Udall, Santa Fe, N.M., for plaintiffs.

Edward Jiran, Laura Rockwood and Russell Young, U.S. Dept. of Energy, Paul F. Figley, U.S. Dept. of Justice, Washington, D.C., and Brent D. Ward and Lawrence J. Leigh, U.S. Attorney's Office, Salt Lake City, Utah, for defendant.

ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

ALDON J. ANDERSON, Senior District Judge.

I. INTRODUCTION

The plaintiffs in this case seek compensation for serious illness and death suffered by numerous uranium miners. According to the plaintiffs, these miners incurred injury from radiation in the Marysvale, Utah uranium mines. The original complaint alleged tort claims against the uranium company (Vanadium Corporation of America and its successor Foote Mineral Company) and the United States. The plaintiffs settled the case against Vanadium Corporation and Foote Mineral on January 31, 1985. The United States is the only remaining defendant.

The claims against the United States stem from a Public Health Service study which began in Marysvale, Utah 35 years ago. The study gathered data about the dangers of uranium mining. According to the plaintiffs, the study revealed that uranium miners worked in extremely dangerous conditions. The complaint alleges that miners suffered radiation injury because the federal government breached a duty to warn them of radiation hazards. The plaintiffs also claim that the government breached a duty to regulate mine safety. These claims against the United States arise under the Federal Tort Claims Act.

On December 19, 1984, the United States moved for summary judgment, arguing that sovereign immunity bars the plaintiffs' suit. The United States is immune from suit unless Congress waives the immunity. See, e.g., Dalehite v. United States, 346 U.S. 15, 30, 73 S.Ct. 956, 965, 97 L.Ed. 1427 (1953). The Federal Tort Claims Act eliminates immunity for many tort suits against the federal government. Nonetheless, the "discretionary function" exception to that Act retains sovereign immunity

630 F. Supp. 420

for claims "... 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. § 2680(a). The discretionary function exception prevents "... judicial `second-guessing' of legislative and administrative decisions grounded in social, economic and political policy through the medium of an action in tort." United States v. Varig Airlines, 467 U.S. 797, 104 S.Ct. 2755, 2765, 81 L.Ed.2d 660 (1984). Arguing that the acts giving rise to the complaint were discretionary, the United States moves for summary judgment

II. DECISION NOT TO WARN

The complaint alleges that the Public Health Service negligently failed to warn the uranium miners of radiation danger. The parties agree that the Service undertook a study of the health effects of mine radiation and failed to disclose the study results to the affected miners. The issue here is whether the decision not to warn was "discretionary" under 28 U.S.C. § 2680(a).

A. IMMATERIAL FACTUAL DISPUTES

The court must first determine whether genuine and material factual disputes preclude summary judgment.

The parties disagree over the extent to which the government knew of radiation dangers when the Public Health Service study began. This dispute relates to the foreseeability of the alleged injury. Foreseeability is an important element of the negligence issue, yet the discretionary function exception immunizes discretionary acts whether they are negligent or not. 28 U.S.C. § 2680(a). Foreseeability is therefore immaterial to the issue now before the court.

Other factual disputes are immaterial because they relate to negligence rather than sovereign immunity. These disputes include the issue of when and how the study began, the question whether the government did an objective study and the disagreement over the year that federal officials first learned of significant radiation dangers. The plaintiffs' allegations concerning the "unique Marysvale situation" fit into the same category. According to the plaintiffs, Marysvale was a "special laboratory" used by federal officials to learn about radiation hazards. The plaintiffs argue that this special relationship between the miners and federal investigators created a heightened duty for the defendant. The extent of the duty owed to the plaintiffs is material to the negligence issue and immaterial to the question whether a discretionary decision occurred.

The parties also disagree over the status of the government officials who made the decision not to warn. According to the defendant,...