Bulloch v. United States, Civ. No. C-19-55.
| Citation | 133 F. Supp. 885 |
| Decision Date | 02 August 1955 |
| Docket Number | Civ. No. C-19-55. |
| Parties | David C. BULLOCH, McRae N. Bulloch, and Kern Bulloch, Plaintiffs, v. UNITED STATES of America, Defendant. |
| Court | U.S. District Court — District of Utah |
Richards, Bird & Bushnell, Dan S. Bushnell, Romney, Boyer & Ronnow, D. Christian Ronnow, Salt Lake City, Utah, for plaintiffs.
A. Pratt Kesler, U. S. Atty. for the District of Utah; Llewellyn O. Thomas, Asst. U. S. Atty. for the District of Utah, Salt Lake City, Utah, for defendant.
This is an action brought by certain sheep owners, plaintiffs herein, to recover damages caused to their herds by the United States of America as a result of nuclear tests conducted by the Government in Nevada in 1952-53. For authority to sue the United States, reliance is placed by plaintiffs upon the Federal Tort Claims Act of August 2nd, 1946, Title 4, Public Law 601, 79th Congress, as amended, 28 U.S.C.A. § 1346.
In addition to this claim of right to sue the United States, in substance the complaint alleges that plaintiffs are residents of Cedar City, Iron County, State of Utah; that in 1952-53 the United States Government through the Atomic Energy Commission, conducted a series of nuclear tests and experiments at the Nevada Proving Ground northwest of Las Vegas, Nevada; that these tests and experiments were "negligently performed, conducted, discharged and executed" by the agents of the defendant acting within the scope of their employment and that as a result, plaintiffs sustained specified damages to their sheep herds; they pray judgment for substantial damages and costs.
Among the defenses interposed by the answer are that the claim alleged in the complaint is not within the terms of the Federal Tort Claims Act, not meeting the conditions of 28 U.S.C.A. §§ 1346(b), 2674, and being excluded by 28 U.S.C.A. § 2680(a), and that, therefore, this Court lacks jurisdiction; and that no claim is stated against the defendant for which recovery may be had because the complaint is based upon the exercise or performance, or the failure to exercise or perform, a discretionary function or duty for which defendant has not consented to be sued.
At the time originally set for the pre-trial conference, the foregoing defenses, based upon the claimed insufficiency of the complaint, were urged. At the suggestion of the Court, concurred in by counsel for the parties, a motion to dismiss the complaint on the ground that it did not state a claim on which relief could be granted, was deemed before the Court. This motion has now been submitted for decision on briefs.
The question to be resolved here, broadly stated, is whether the Federal Tort Claims Act authorizes suit against the United States for damages caused by the negligent performance, conduct, discharge or execution of nuclear tests or experiments by the Government. Because the issue is raised by motion to dismiss the complaint for its alleged failure to state a claim on which relief can be granted, we are not concerned with the niceties of pleading. Only if it appears that plaintiff would not be entitled to relief under any set of facts which could be proved in support of the allegations of the complaint, should the motion be granted. Thomas v. Pick Hotels Corporation, 10 Cir., 1955, 224 F.2d 664; Clyde v. Broderick, 10 Cir., 1944, 144 F. 2d 348; United States ex rel. Peters v. Carson, D.C.W.D.Pa.1954, 126 F.Supp. 137.
The Tort Claims Act, including its exceptions, is too well known and has been too frequently construed to justify here a detailed review of its terms or legislative history, or a general survey of the cases interpreting it. See Annotation 1 A.L.R.2d 222. The principle controlling in this case is that there can be no recovery against the Government on any claim 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 was abused. 28 U.S.C.A. § 2680(a); annotation 19 A.L.R.2d 845.
Where the acts or omissions relied upon are those directly involving the exercise of discretion, the Courts have not hesitated to deny recovery, whether the discretion was regarded as properly, improperly or negligently exercised. Smart v. United States, 10 Cir., 1953, 207 F.2d 841; Chournos v. United States, 10 Cir., 1951, 193 F.2d 321, certiorari denied 343 U.S. 977, 72 S.Ct. 1074, 96 L.Ed. 1369; Coates v. United States, 8 Cir., 1950, 181 F.2d 816, 19 A.L.R.2d 840; North v. United States, D.C.D.Utah, Cent.D., 1950, 94 F.Supp. 824, 19 A.L.R.2d 845. Where it is clear, as here, that the major, or overall, activity involved the exercise of a discretionary function or duty on the part of a federal agency or its employees, but where the acts or omissions relied upon may be substantially independent of, or merely incidental to, any authorized discretionary performance, difficulty and conflict are indicated in the decisions.
There is a line of authority which at least infers that any act or omission which arises within the scope and in the course of performance of a discretionary function of government, cannot furnish the basis of a valid claim under the Act. Williams v. United States, D.C.N.D.Fla., Marianna D., 1953, 115 F.Supp. 386, affirmed 5 Cir., 218 F.2d 473; Olson v. United States, D.C.D.N.D.N.W.D.1950, 93 F.Supp. 150; Thomas v. United States, D.C.W.D.Mo.St.Jo.D.1949, 81 F. Supp. 881.
There is another line of authority which distinguishes between acts or omissions arising from the exercise or performance of a discretionary function and those occurring within the scope or area of the discretionary function but which themselves do not involve any proper element of discretion. Ford v. United States, 10 Cir., 1952, 200 F.2d 272 (); United States v. Gray, 10 Cir., 1952, 199 F.2d 239; Oman v. United States, 10 Cir., 1949, 179 F.2d 738, affirmed 10 Cir., 195 F.2d 710; United States v. White, 9 Cir., 1954, 211 F.2d 79; Pennsylvania R. R. Co. v. United States, and related cases, D.C. D.N.J.1954, 124 F.Supp. 52; Bevilacqua v. United States (Yentsch v. United States), D.C.W.D.Pa.1954, 122 F.Supp. 493; Hernandez v. United States, D.C.D. Hawaii, 1953, 112 F.Supp. 369; Worley v. United States, D.C.D.Or.1952, 119 F. Supp. 719; Harris v. United States (Thomas v. United States, Ellis v. United States), D.C.E.D.Okl.1952, 106 F.Supp. 298, affirmed 10 Cir., 205 F.2d 765 (); Grigalauskas v. United States, D.C.D. Mass.1951, 103 F.Supp. 543, affirmed 1 Cir., 195 F.2d 494.
The reasoning employed in the latter cases seems more persuasive. I am inclined to follow it, unless the case of Dalehite v. United States, 346 U.S. 15, 73 S.Ct. 956, 97 L.Ed. 1427, forecloses this, as has been suggested by the defendant. There, indeed, is language in the decision which, if considered out of context and without reference to the facts involved, throws doubt on plaintiffs' position.
There can be no doubt that the determination of how tests are to be conducted, when they are to be conducted, and in what manner they are to be conducted, whether made at high or low level, as long as within the discretionary power granted by Congress to the Atomic Energy Commission, could not give rise to liability, notwithstanding how lacking in ordinary care or circumspection such determination might be. On the other hand, it seems equally as clear that if an official were driving an automobile incidental to the planning or execution of a nuclear test and within the scope of duties in connection therewith, and by gross inattention and carelessness, let us say, he killed a child, not because he was exercising a discretion in traveling at a rate of speed bearing some relationship to the exigencies of his duty, but because he was just plain careless, the exception provided in the Act would not protect the Government from liability.
Between these extremes may be situations more in keeping with the possibilities of the present case. All discretionary decisions or activities may have been determined. The decision to make the test and the means involved as a matter of necessity or convenience may have been decided in the exercise of a proper discretion. Yet, because of inattention to the minimum requirements of ordinary care, no notice of an impending detonation may have been given to a herder whose flocks were in the area clearly to be affected. There may have been clear knowledge of the danger to the sheep. If the failure to give notice reasonably could be attributed to a discretionary decision at any level that such notice would be impractical or would interfere with the carrying out of the project or would involve wasted time without justification, the Court might not be permitted to weigh exercise of that discretion to see whether it comported with due care or was abused. However, if none of these or similar questions were involved, but without reference to any discretionary decision, damage was caused by a negligent failure to do what ordinary care would require, I cannot but think that a case might thus be presented on which relief could be granted under the Tort Claims Act.
Several comments in the Dalehite case are consistent with this idea, and others affirmatively support it. I quote only a few: (Emphasis added).
To continue reading
Request your trial
-
Whitcombe v. County of Yolo
...F.2d 723, 724-725 (discretionary function to admit patient to hospital, but no immunity for treatment thereafter); Bulloch v. United States (D.Utah 1955) 133 F.Supp. 885, 889 (decision as to how and when and in what manner to conduct nuclear tests was discretionary, but failure to give prop......
-
Tarasoff v. Regents of University of California
...range assumed to be discretionary but failure to warn person about to go onto range of unsafe condition was not); Bulloch v. United States (D.Utah 1955) 133 F.Supp. 885, 888 (decision how and when to conduct nuclear test deemed discretionary but failure to afford proper notice was not); Her......
-
Tarasoff v. Regents of University of California
...range assumed to be discretionary but failure to warn person about to go onto range of unsafe condition was not); Bulloch v. United States (D.Utah 1955) 133 F.Supp. 885, 888 (decision how and when to conduct nuclear test deemed discretionary but failure to afford proper notice was not); Her......
-
Connelly v. State of California
...723, 724--725 (discretionary function to admit patient to hospital, but no immunity for treatment thereafter); Bulloch v. United States (D.Utah 1955) 133 F.Supp. 885, 889 (decision as to how and when and in what manner to conduct nuclear tests was discretionary, but failure to give proper n......