Baum v. US, Civ. A. No. HAR-90-353

• Decision Date: 23 May 1991
• Docket Number: Civ. A. No. HAR-90-353,HAR-90-830.
• Citation: 765 F. Supp. 268
• Parties: Price A. BAUM, Plaintiff, v. UNITED STATES of America, Defendant. UNITED STATES of America, Third-Party Plaintiff, v. Michael MASSEY, Third-Party Defendant. Margaret LEEDY, Plaintiff, v. UNITED STATES of America, Defendant. UNITED STATES of America, Third-Party Plaintiff, v. Price A. BAUM, et al., Third-Party Defendants.
• Court: U.S. District Court — District of Maryland

765 F. Supp. 268

Price A. BAUM, Plaintiff, v. UNITED STATES of America, Defendant.

UNITED STATES of America, Third-Party Plaintiff, v. Michael MASSEY, Third-Party Defendant.

Margaret LEEDY, Plaintiff, v. UNITED STATES of America, Defendant.

UNITED STATES of America, Third-Party Plaintiff, v. Price A. BAUM, et al., Third-Party Defendants.

Civ. A. Nos. HAR-90-353, HAR-90-830.

United States District Court, D. Maryland.

May 23, 1991.

John J. Boyd, Jr., David M. Grove, Smith, Somerville & Case, Baltimore, Md., for plaintiff and third-party defendant Price A. Baum.

J. Philip Kessel, Chaikin & Karp, for plaintiff Margaret Leedy; Paul B. Tierney, Rockville, Md., of counsel.

Richard D. Bennett, U.S. Atty., Roann Nichols, David I. Salem, Asst. U.S. Attys., Baltimore, Md., for defendant and third-party plaintiff U.S.

William N. Zifchak, Sasscer, Clagett, Channing & Bucher, Upper Marlboro, Md., for third-party defendant Michael Massey.

MEMORANDUM OPINION

HARGROVE, District Judge.

Currently pending before this Court is Defendant and Third-Party Plaintiff United States of America's ("Government") Motion to Dismiss, or in the Alternative, for Summary Judgment, on all claims asserted against it in the above-captioned actions. Also pending is Plaintiff and Third-Party Defendant Price A. Baum ("Baum") Motion to Dismiss Counts III and IV of the third-party complaint filed by the Government in case no. HAR-90-830. The issues have been fully briefed. No hearing is deemed necessary. Local Rule 105.6 (D.Md.).

I. FACTS:

These suits arise out of a traffic accident which occurred on May 24, 1987, at approximately 4:40 p.m. Baum was traveling at approximately 40 miles per hour on eastbound Maryland Route 198 (Ft. Meade Road), in Anne Arundel County, Maryland. Plaintiff Margaret Leedy ("Leedy") was a passenger in Baum's vehicle. Baum, a disabled person, was operating a specially equipped Ford van with hand controls.¹ Plaintiffs claim that a vehicle being driven on westbound Route 198 by Third-Party Defendant Michael Massey ("Massey") crossed into Plaintiffs' lane of travel while approaching a bridge over the Baltimore-Washington Parkway near an entrance ramp onto the Parkway and collided with them on the driver's side of the van.² Sandra Yates (now Mrs. Sandra Massey) was a passenger in Massey's vehicle.

Following the collision, the Baum vehicle caromed off the road into the grassy shoulder. It knocked down a road sign erected with 4-inch by 4-inch wooden posts, ran into a curved stone bridge payment adjacent to the eastbound lanes, ricocheted, crossed the eastbound and westbound lanes of Route 198, went over an 8-inch high curb, crossed a four foot wide sidewalk, and penetrated a steel bridge rail and cast iron bridge post mounted on an 8.25-inch parapet adjacent to the westbound lane. The guardrail broke upon impact and the van plunged 22 feet onto the right southbound lane of the Baltimore-Washington Parkway, landing on its roof. Massey's vehicle sustained only a four-inch dent to the left front fender.

On January 31, 1990, Baum filed a one-count complaint against the Government for negligence under the Federal Torts Claims Act (FTCA), 28 U.S.C. § 2674. A separate suit containing the same or similar allegations was filed against the Government by Leedy on March 19, 1990.³ Plaintiffs assert that the Government "negligently designed and constructed the bridge-rail system in question in violation of its own specifications, its own custom and practice, and reasonably accepted engineering principles and practices observed in the early 1950's when the structure in question was designed and constructed." The complaint further alleges that the Government "failed to maintain the bridge in question in a reasonably safe condition for highway users, notwithstanding actual knowledge that the bridge rail was `structurally inadequate' according to defendant's own inspections." Complaints, paragraph 7.

On May 10, 1990, the Government filed a third-party complaint against Massey seeking contribution and indemnification should it be held liable for any injury to Baum. Two weeks later, the Government filed a third-party complaint in the Leedy case, again seeking contribution and indemnification from Massey. The Government also asks for contribution and indemnification from Baum for any judgment Leedy may obtain.

By order of this Court dated June 8, 1990, the two cases and all third-party claims were consolidated for all purposes.

The Government seeks to have the allegations against it dismissed, claiming that its actions were not the proximate cause of the accident. In the alternative, the Government maintains that the allegations against it are part of the discretionary function of the National Park Service, and is therefore barred by 28 U.S.C. § 2680(a).⁴

Baum has filed a Motion to Dismiss Counts III and IV of the Government's third-party complaint in the Leedy case. These are the counts that relate to the Government's contribution and indemnity claims against Baum. The Government does not oppose Baum's motion to dismiss its claim for contribution. Accordingly, Count III of the Government's third-party complaint in the Leedy case is dismissed. The Government has filed an opposition to Baum's assertion that it is barred from seeking indemnification against him for this accident.

II. BRIDGE DESIGN AND MAINTENANCE:

The Route 198 overpass over the Baltimore-Washington Parkway (structure no. 3230-024P) was designed and constructed under the supervision of the National Park Service between 1950 and 1952. The National Park Service owned and maintained the bridge until it was demolished and replaced with a new structure in 1989.

Specifications governing design and construction of the bridge were set forth in the Standard Specifications for Highway Bridges (Fifth Edition 1949), adopted by the American Association of State Highway Officials. The guidelines specified that guardrails were to be placed along side of bridges to provide for the protection of traffic. The metal to be used on bridge rails was not specified.

Cast steel was used on guardrail posts on sixteen bridge structures on Route 198. Six structures, more than one-fourth of the total number, utilized cast iron posts. Plaintiffs assert that it was widely known at the time of construction that cast iron was a more brittle material than cast steel and was an undesirable alternative to cast steel in guardrail construction.

In 1978, Federal Highway Administration ("FHWA") bridge inspectors began conducting routine inspections of National Park Service owned bridges on the Baltimore-Washington Parkway. The bridge in question in the case at bar was initially inspected on May 25, 1983, by Robert L. King ("King"), a structural engineer employed by FHWA. King specified "Steel railing structurally inadequate" in his Bridge Safety Inspection Report. King also found that the bridge itself was "critically deficient and in danger of collapse due to the deteriorated condition of the concrete in the slab." He recommended that the bridge be replaced in fiscal year 1984.

Three years later, a different engineer, Janice Halvorsen, inspected the bridge, which was still in place. She also noted that the steel railing in place was "structurally inadequate."

In November, 1986, a requisition was issued to the National Park Service to repair or replace missing or damaged bridge railings on the Baltimore-Washington Parkway. Among those to be replaced were two rails on the south side of the Route 198 bridge over the Parkway. The rails had not been replaced six months later when the accident occurred, nor had barriers or warning signs been set in place. Concrete barriers had been placed in front of the guardrail on another bridge over the Parkway where an accident occurred six-years earlier. The National Park Service decided not to place barriers on the bridge in question following the Baum/Massey accident since the entire bridge was scheduled to be replaced the following year.

III. MOTION TO DISMISS UNDER FTCA:

A motion to dismiss pursuant to Fed.R. Civ.P. 12(b)(6) ought not be granted unless "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-102, 2 L.Ed.2d 80 (1957). The court must consider well-pled allegations in the complaint as true when ruling on a motion to dismiss. Jenkins v. McKeithen, 395 U.S. 411, 421-22, 89 S.Ct. 1843, 1848-49, 23 L.Ed.2d 404 (1969). Allegations are to be construed liberally in favor of the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974). The court must disregard the contrary allegations of the opposition party. A.S. Abell Co. v. Chell, 412 F.2d 712, 715 (4th Cir.1969).

A. FTCA Standards:

The Government maintains that the construction and maintenance of the bridge and guardrail is a discretionary function of the United States Park Service, which oversaw the construction and continues to supervise the maintenance of the bridge. Thus, the Government argues that it preserves its sovereign immunity over any negligence caused by the construction and maintenance of the bridge and guardrail pursuant to 28 U.S.C. § 2680(a).⁵ It seeks dismissal on all claims brought against it.⁶

The Supreme Court defined the parameters of the discretionary function exception to FTCA in Dalehite v. United States, 346 U.S. 15, 35-36, 73 S.Ct. 956, 967-968, 97 L.Ed. 1427 (1953). Dalehite involved a ship loaded with fertilizer which exploded in a Texas harbor. The fertilizer was produced at a United States facility according to governmental specifications by a private contractor. In finding that the United States enjoyed sovereign immunity and that the federal court had no jurisdiction to hear the case, the Supreme Court reiterated that "no action lies against the United States unless the legislature has authorized it."...