Bowman v. U.S., 86-3597

• Decision Date: 22 July 1987
• Docket Number: No. 86-3597,86-3597
• Citation: 820 F.2d 1393
• Parties: Loyd P. BOWMAN, Administrator of the Estate of Steven Wayne Bowman; Loyd P. Bowman, Administrator of the Estate of Michael Lloyd Bowman; Loyd P. Bowman, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 1393

820 F.2d 1393

Loyd P. BOWMAN, Administrator of the Estate of Steven Wayne Bowman; Loyd P. Bowman, Administrator of the Estate of Michael Lloyd Bowman; Loyd P Bowman, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.

No. 86-3597.

United States Court of Appeals Fourth Circuit.

Argued April 7, 1987.

Decided June 30, 1987.

Rehearing Denied July 22, 1987.

William L. Sitton, Jr. (Underwood, Kinsey & Warren, P.A. on brief) for plaintiff-appellant.

Clifford Carson Marshall, Jr., Asst. U.S. Atty. (Charles R. Brewer, U.S. Atty., on brief) for defendant-appellee.

Before WIDENER, and CHAPMAN, Circuit Judges, and HAYNSWORTH, Senior Circuit Judge.

CHAPMAN, Circuit Judge:

Plaintiff Loyd Bowman was injured and his sons Steven and Michael were killed when their car slid off the Blue Ridge Parkway and tumbled down an embankment. Bowman brought this action under the Federal Tort Claims Act, 28 U.S.C. Secs. 1346, 2671 et seq. 1984, alleging that the United States was negligent in failing either to place a guard rail along the embankment, erect signs warning travelers of the dangerous embankment, or close the Parkway during inclement weather. Finding that this alleged negligence fell within the discretionary function exception to the FTCA created by 28 U.S.C. Sec. 2680(a) the district court dismissed this action. We affirm.

I

The Blue Ridge Parkway is a 496 mile-long roadway which connects the Shenandoah National Park in Virginia with the Great Smokey Mountains National Park in North Carolina. The Parkway was designed, and constructed by, and remains within the exclusive jurisdiction and control of, the United States. Supervisory authority over the Parkway has been delegated by the Secretary of the Interior to the Blue Ridge Parkway Division of the National Park Service.

The Blue Ridge Parkway is an unusual highway in that its primary purpose is not to facilitate transportation and travel. The Parkway was designed to allow the public access to scenic recreational and wilderness areas. Leisure driving and sight-seeing along the Parkway are its intended use. At the time of the accident, Loyd Bowman and his decedents, Michael Lloyd Bowman and Steven Wayne Bowman were traveling north on the Blue Ridge Parkway during a winter storm of freezing rain and sleet. The accident occurred at Milepost 319.6, in McDowell County, North Carolina. This stretch of the Blue Ridge Parkway is a straight, 8 percent downgrade. In order to create a vista of the opposing ridge, the trees and shrubs have been cleared leaving an unobstructed vertical drop of over ninety feet along the east shoulder of the Parkway. The only protection or barrier between the road surface and the embankment is a narrow, grassy shoulder some 18 inches wide.

The Bowmans were traveling north on the Parkway at a speed of ten to fifteen miles per hour when their vehicle struck a patch of ice and slid sideways off the edge of the road, and down the embankment. Steven and Michael Bowman were thrown from the vehicle and killed. Loyd Bowman sustained serious injuries.

Loyd Bowman brought this action in the United States District Court for the Western District of North Carolina under the Federal Tort Claims Act (FTCA). The defendant moved, pursuant to Fed.R.Civ.P. 12(b)(6), for dismissal on the grounds that the alleged negligence fell within the discretionary function exception to the FTCA, which motion the district court granted. Although the district court held that the discretionary function exception would obtain, it also stated that, even if the negligence complained of did not fall within this exception, the plaintiff could not recover under North Carolina law because North Carolina has rejected the "enhanced injury" doctrine. This appeal followed.

II

The FTCA provides a limited waiver of federal sovereign immunity for claims grounded in tort. U.S. v. Yellow Cab Company, 340 U.S. 543, 71 S.Ct. 399, 95 L.Ed. 523 (1951). Perhaps the most significant limitation to this waiver is the discretionary function exception, which is codified at 28 U.S.C. Sec. 2680(a) and provides that sovereign immunity is not waived where:

any 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 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. Sec. 2680(a).

The Supreme Court...