Dolphin Gardens, Inc. v. United States

• Decision Date: 18 June 1965
• Docket Number: Civ. No. 7867.
• Citation: 243 F. Supp. 824
• Court: U.S. District Court — District of Connecticut
• Parties: DOLPHIN GARDENS, INC. v. UNITED STATES of America and Western Contracting Corp.

243 F. Supp. 824

DOLPHIN GARDENS, INC. v. UNITED STATES of America and Western Contracting Corp.

Civ. No. 7867.

United States District Court D. Connecticut.

June 18, 1965.

David Gill Proctor, Niantic, Conn., for plaintiff.

Jon O. Newman, U. S. Atty., New Haven, Conn., for United States.

Clarence A. Hadden, Pouzzner & Hadden, New Haven, Conn., for Western Contracting Corp.

BLUMENFELD, District Judge.

The plaintiff, Dolphin Gardens, Inc., has brought an action under the Federal Tort Claims Act, ch. 753, 60 Stat. 842 (1946) (codified in scattered sections of 28 U.S.C.), seeking damages for injuries to property in which it held a leasehold interest. The damages were allegedly caused by fumes from dredged material which was deposited by the defendant, Western Contracting Corp., on land owned by Western and the United States pursuant to a contract with the United States. Both defendants have now moved for summary judgment. The Government's motion will be considered first.

The waiver of sovereign immunity established by the Federal Tort Claims Act imposes upon the United States liability for the torts of its employees "in the same manner and to the same extent as a private individual under like circumstances * * *." 28 U.S.C. § 2674. But the reach of the act is subject to fourteen listed exceptions, the first of which is relevant to the present case:

"§ 2680. Exceptions.

"The provisions of this chapter * * * shall not apply to —

"(a) 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 be abused."

It is the contention of the Government that the activity complained of is a "discretionary function" within the meaning of 28 U.S.C. § 2680(a) and that recovery is barred by that section.

In Dalehite v. United States, 346 U.S. 15, 26-27, 73 S.Ct. 956, 963, 97 L.Ed. 1427 (1953), the Supreme Court read § 2680(a) "as a clarifying amendment to the House bill to assure protection for the Government against tort liability for errors in administration or in the exercise of discretionary functions." And it concluded, at 32, 73 S.Ct. at 966, "that Congress exercised care to protect the Government from claims, however negligently caused, that affected the governmental functions."

A brief statement of the historical origin of governmental immunity is found in Elgin v. District of Columbia, 337 F.2d 152, at 154 (D.C.Cir.1964), where Circuit Judge McGowan said:

"Almost from the very moment of creation by the courts of an immunity initially resting upon the ancient dogma that the king can do no wrong, the judges have been alert to insist that the king be acting as such at the time injury occurs. With kings replaced by city councils¹ as the embodiments of the grace by which men permit themselves to be governed, this alertness was verbalized in somewhat different terms, but the core of the judicial insight remained the same. It is, we believe, essentially this: If a king, or a city council, is to do the job of governing well, then there is something to be said for withholding the threat of answerability in damages for at least some of the actions and decisions which governing necessarily entails. He who rules must make choices among competing courses of action and in the face of conflicting considerations of policy. The capacity and the incentive to govern effectively are arguably not enhanced by the prospect of being sued by those citizens who may be adversely affected by the choice eventually made. Thus it has been thought wise to sweep this restrictive cloud from the horizon and to let those responsible for the conduct of public affairs calculate their courses of action free of this intimidating influence. By the same token, in those areas of governmental action where the reason for the rule does not apply, the rule itself is disregarded."

The distinction between immunized "discretionary functions" and negligence at the "operational level" has not been clearly drawn, United States v. Gregory, 300 F.2d 11, 99 A.L.R.2d 1011 (10th Cir.1962), and "there is no litmus paper test to distinguish acts of discretion," Ove Gustavsson Contracting Co. v. Floete, 299 F.2d 655, 659 (2d Cir.1962), cert. denied, 374 U.S. 827, 83 S.Ct. 1862, 10 L.Ed.2d 1050 (1963), so that "each case * * * must stand on its own record." Blitz v. Boog, 328 F.2d 596, 599 (2d Cir.), cert denied, 379 U.S. 855, 85 S.Ct. 106, 13 L.Ed.2d 58 (1964).

In this case, the defendant, Western Contracting Corp., entered into a contract with the United States for the dredging and improvement of a portion of a channel in the Thames River. The substance dredged from the river bed was pumped from the dredging barge through a pipe-line to land owned by each of the defendants, part of which was within and part of which was adjacent to the United States Naval Submarine Base. The plaintiff owned a group of apartment buildings about a mile and a half away from where the spoil was deposited. On or about September 30, 1958, the atmospheric conditions, combined with wind from the north, carried gases and other substances emanating from the deposited dredgings to the buildings where the gases allegedly reacted upon the exterior surfaces of the buildings to cause severe damage.

The plaintiff does not suggest that responsibility for the damage rests in the decision to dredge the channel, for it is established that such determinations are "discretionary functions" within the meaning of § 2680(a). United States v. Gregory, supra, 300 F.2d 11; F. & M. Schaefer Brewing Co. v. United States, 121 F.Supp. 322 (E.D.N.Y.1954). Rather, it is argued that the "negligence" for which the Government is liable lies in the decision to dump the spoil onto the particular shore-side vacant lots instead of carrying it out to sea, and in the failure to take precautions to prevent the escape of fumes. Yet, it is difficult to see how these decisions differ in...