Caplan v. U.S.

• Decision Date: 30 June 1989
• Docket Number: No. 88-5558,88-5558
• Citation: 877 F.2d 1314
• Parties: Jay L. CAPLAN and Eva M. Caplan, Plaintiffs-Appellees, v. UNITED STATES of America, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1314

877 F.2d 1314

Jay L. CAPLAN and Eva M. Caplan, Plaintiffs-Appellees, v. UNITED STATES of America, Defendant-Appellant.

No. 88-5558.

United States Court of Appeals Sixth Circuit.

Argued Feb. 21, 1989.

Decided June 30, 1989.

David Y. Olinger, Jr., Asst. U.S. Atty., Louis DeFalaise, U.S. Atty., Lexington, Ky., Michael Jay Singer, Dept. of Justice, Civ. Div., Appellate Staff, William Cole (argued), Dept. of Justice, Appellate Section, Civ. Div., Washington, D.C., for defendant-appellant.

William A. Dykeman (argued), Winchester, Ky., for plaintiffs-appellees.

Before MARTIN and RYAN, Circuit Judges, and SMITH, District Judge. ^*

RYAN, Circuit Judge.

The United States appeals the district court's judgment for plaintiffs entered after trial without a jury in this negligence action brought under the Federal Tort Claims Act, 28 U.S.C. Secs. 1346(b), 2671 et seq. The action arose from injuries suffered by plaintiff Jay L. Caplan when he was struck by a falling tree as he worked as a tree cutter in a government-owned forest. We affirm the district court's judgment for plaintiffs.

In approximately 1975, the U.S. Forest Service decided to institute a mass tree-killing program in several areas of the Daniel Boone National Forest, a federally-owned forest in Kentucky. The goal of the program was to clear out low quality trees to enable reforestation with higher quality trees. The Forest Service instituted the program in 1975 by injecting herbicide into most trees in designated areas of the forest.

In 1982, the Forest Service solicited bids for the cutting down of trees that had survived the 1975 mass herbicide treatment. Plaintiff Jay Caplan was a successful bidder, and in December 1982 he began cutting down live trees in several areas of the forest. Forest Service personnel informed Caplan of the mass herbicide treatment, but not the date of the treatment. Caplan could distinguish dead trees still standing from live trees that he was to cut down: dead trees or "snags" looked like poles with few or no limbs.

On April 11, 1983, just as Caplan finished cutting down a live tree in a tract in the forest known as the "Mill Branch area," a 30-foot long dead tree fell and struck him. The falling tree fractured Caplan's vertebrae, and as a result he is a paraplegic. The district court found, and the government does not contest, that the dead tree's fall was caused by a failure of the tree's support system and the ground shock resulting from the fall of the live tree that Caplan had just cut down. The court found that the instability of the dead tree, which had been injected with herbicide in 1975 as part of the government's mass herbicide program, resulted from root system decay that had advanced to such an extent that the tree was barely anchored in the ground: "[I]t was as if a telephone pole was supported by being stuck into six (6) inches of sand." The court further found that the steep slope on which the tree was located and the gravelly, moist soil in which the tree stood enhanced its instability.

Plaintiffs brought this negligence action in April 1985 under the Federal Tort Claims Act, seeking damages of approximately $3.5 million. In October 1987, the case was tried without a jury, and in a memorandum opinion dated November 1987, the district court held that the government was negligent in failing to warn Caplan of an unreasonably dangerous condition in the Mill Branch area created by a large number of unstable dead trees. The court held that this negligent failure to warn was a proximate cause of Caplan's injuries, and in a separate decision on damages the district court awarded Caplan $2,155,865.52 and his wife $250,000 for loss of consortium. The district court denied defendant's motion under Fed.R.Civ.P. 59 for a new trial or to alter or amend judgment, and this appeal followed.

I.

The government argues that whether or not it was negligent in failing to warn Caplan of a dangerous condition in the Mill Branch area, it is immune from liability for Caplan's injuries under the "discretionary function exception" to the Federal Tort Claims Act. The district court rejected this argument in its memorandum and order denying the government's motion for new trial.

Under the Federal Tort Claims Act, the government's sovereign immunity is preserved for

[a]ny 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 be abused.

28 U.S.C. Sec. 2680(a). If a case falls within the discretionary function exception to the Federal Tort Claims Act, this court is without subject matter jurisdiction. Feyers v. United States, 749 F.2d 1222, 1225 (6th Cir.1984),cert. denied, 471 U.S. 1125, 105 S.Ct. 2655, 86 L.Ed.2d 272 (1985).

Although the boundaries of the discretionary function exception are not altogether clear, the Supreme Court has emphasized that the purpose of the exception is to protect governmental conduct involving the exercise of policy judgment:

The basis for the discretionary function exception was Congress' desire 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." The exception, properly construed, therefore protects only governmental actions and decisions based on considerations of public policy. In sum, the discretionary function exception insulates the Government from liability if the action challenged in the case involves the permissible exercise of policy judgment.

Berkovitz v. United States, 486 U.S. 531, 108 S.Ct. 1954, 100 L.Ed.2d 531, 541 (1988) (quoting United States v. Varig Airlines, 467 U.S. 797, 814, 104 S.Ct. 2755, 2765, 81 L.Ed.2d 660 (1984)).

In the present case, the government's failure to warn Caplan of a dangerous condition in the Mill Branch area was not conduct involving the exercise of policy judgment. Rather, the relevant policy decision in this case was the government's decision to deforest parts of the Daniel Boone National Forest in preparation for reforestation. This case is therefore governed by a line of cases holding that once the government makes a policy decision protected by the discretionary function exception, it must proceed with due care in the implementation of that decision. For example, in Indian Towing Co. v. United States, 350 U.S. 61, 76 S.Ct. 122, 100 L.Ed. 48 (1955), the Supreme Court held the government liable for the negligent operation of a lighthouse:

The Coast Guard need not undertake the lighthouse service. But once it exercised its discretion to operate a light on Chandeleur Island and engendered reliance on the guidance afforded by the light, it was obligated to use due care to make certain that the light was kept in working order ... and to repair the light or give warning that it was not functioning.

350 U.S. at 69, 76 S.Ct. at 126-27.

Similarly, in Reminga v. United States, 631 F.2d 449 (6th Cir.1980), this court held that the discretionary function exception did not apply to the government's negligent preparation of a navigational chart.

The import of our holding in Reminga is that once having exercised the discretion to issue navigational charts, the government is accountable for its negligence in failing to locate hazards accurately on the charts it publishes. Erroneously locating navigational hazards on its charts, like running a red light with a motor vehicle and causing an accident, involves no discretionary function or duty. Having undertaken, in its discretion, to issue charts locating navigational hazards at all, the FAA was liable for doing so carelessly.

Myslakowski v. United States, 806 F.2d 94, 98 (6th Cir.1986), cert. denied, 480 U.S. 948, 107 S.Ct. 1608, 94 L.Ed.2d 793 (1987); see also Butler v. United States, 726 F.2d 1057, 1063 (5th Cir.1984). Thus in this case, having exercised the discretion to deforest the Daniel Boone National Forest, the government is accountable for its negligence in the implementation of this decision.

The government's reliance on Myslakowski as support for its argument that the discretionary function exception should apply in this case is misplaced. In Myslakowski, plaintiffs sued the government for failure to warn of the rollover propensity of jeeps sold by the government pursuant to an "as-is-where-is" policy promulgated by the Post Office Department. This court held that the failure to provide warnings was within the discretionary function exception because the failure to warn was required by the government's "as-is-where-is" sales policy. [O]mitting to require that any warnings be given concerning the performance of jeep vehicles ... was an inherent part of the discretionary decision to sell the vehicles "as-is-where is."

Myslakowski, 806 F.2d at 99. In the present case, however, the discretionary policy decision to deforest parts of the Daniel Boone National Forest did not require, either directly or implicitly, omission of warnings. Therefore, the failure to warn in this case, unlike that in Myslakowski, should not be protected as part and parcel of the discretionary policy decision.

We hold that the discretionary function exception to the Federal Tort Claims Act does not immunize the government from liability for Caplan's injuries.

II.

The government challenges the district court's holding that it was under a duty to warn Caplan of the dangerous condition in the Mill Branch area created by the large number of unstable dead trees. Under Kentucky law, it is well established that a landowner owes invitees

"a duty to use ordinary care to have his premises in a reasonably safe condition for use in a manner consistent with the purpose of invitation, or at least not to lead them into a dangerous trap or to expose them to an unreasonable risk, but to give them adequate and timely notice and warning of latent...